The Globe and Illegal Signs report today that Titan Outdoor Canada Company has asked the courts to save its sixteen vinyl billboards from a City of Toronto removal order.
Putting on its legal cap, Torontoist reviewed the notice of application [PDF]—the first step in the court process—filed by Titan in the Ontario Superior Court. The notice alleges that the City lacks the authority to regulate the distinction between different types of signs, is acting improperly in seeking to revoke permits that it previously granted, and is breaching Titan’s constitutional right to free expression.
While we’re reluctant to offer tips to Titan on how it might strengthen its case, and while we’re cheerfully optimistic of the City’s ability to defend itself, we suggest the following thoughts.
Titan’s first allegation seems like the weakest. As observers of signs may know, different types of permits are required for different types of signs. A sign painted directly onto a building (known as a “mural sign”) requires one type of permit, while a non-painted sign requires a different type of permit. Crucially for this case, it is generally easier to get a permit for a painted sign than a non-painted sign, and the rules for painted signs tend to be more permissive, especially with regard to how close they can be to other signs.
Titan freely admits that it installs signs made of vinyl in places where it only has permission to paint on walls. But it justifies its behaviour by claiming that the City should treat its vinyl billboards more like mural signs (defined in the sign bylaw as “a sign painted directly on a wall”), for which it has permits, rather than fascia signs (defined as “a sign mounted wholly against the wall or parapet wall of a building and which projects not more than forty-five hundredths (0.45) metre from the wall, exclusive of platforms or light fixtures”), for which it does not have permits.
How so? Titan claims that vinyl is just like paint, but better—less expensive, quicker to install and therefore less disruptive to passers-by, an added layer of protection/insulation for the building’s facade, more aesthetically pleasing because the advertising copy is crisper, and better for the environment since the act of painting releases airborne pollutants (compared, presumably, against the green movement known as the vinyl production industry).
We’ll leave it to the court (and our readers) to decide on the truth of these claims and the merits of Titan’s approach to legal interpretation. But we tend to view Titan’s position to be at odds with the trend of deference that Canadian courts tend to show to municipal councils to make their own decisions about matters within their jurisdiction. Toronto has decided in clear terms to treat painted murals differently from non-painted billboards. Unless this decision is unconstitutional (more on that later) or patently unreasonable—and there are various arguments in favour of painted murals that render it not patently unreasonable to make this distinction, such as that the process of creating them generates less waste—it seems unlikely that Titan could challenge the City’s authority to distinguish between painted and non-painted signs.
Titan (and others) might disagree with the logic of the distinction, but that’s why we periodically review our laws and have elections, right? And the fact that Titan has previously lobbied the City to amend the bylaw, and is now resorting to the courts because its political lobbying failed, doesn’t do much to support its position that it now doesn’t recognize the City’s authority to make these types of distinctions.
Photo by Flo’s Diner from the Torontoist Flickr Pool.
Titan’s second allegation is curious. It contends that the City lacks the authority (or, more accurately, that the City has failed to cite the correct authority) to revoke the permits that it previously issued.
Whether this statement is true is a matter for the courts to determine, but Torontoist submits that it would be perverse—Kafkaesque, almost—if a government authority found itself unable to revoke a permit after learning that the permit was not being used for the reasons why it was granted.
The third allegation is perhaps the most difficult to assess. Titan asserts, correctly, that commercial expression is protected by the general freedom of expression guarantee found in section 2(b) of the Charter of Rights and Freedoms. But, as any law student in the first term of first year knows, section 2(b) is restricted by section 1 of the Charter, which “guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
The combined operation of these two provisions shifts the onus (as it should) to the state to justify why it should breach a person’s rights. In this case, the legal question is whether the City’s sign bylaw—including the restrictions that it places on non-painted signs—is a reasonable limit on free expression that is justified in a free and democratic society.
The test for determining the reasonableness of this limit is well-established: the City must show that it has a legitimate objective in breaching Titan’s rights, that the bylaw is rationally connected to this objective, that the bylaw operates in a way that minimally impairs Titan’s rights, and that the overall effect of the impairment is proportionate to the objective.
We’re not going to second-guess the courts on matters of Charter interpretation, but the key hurdle for the City to cross will likely be the penultimate one: whether the bylaw operates in such a way as to impair Titan’s rights to the smallest degree possible.
That may turn out to be the key question, and Torontoist eagerly awaits the next steps [PDF] of the process to see how it will be resolved. Titan’s full written arguments are due by April 4, the City’s full written defence is due by April 28, and the court hearing is set for two days in the week of May 12. We’ll keep you posted.
With additional reporting from Jonathan Goldsbie.