Big Wheel of Justice Creaks Slowly Forward

By Robin Rix

Strategic Media’s third-party fascia sign at 340 Adelaide Street West at Peter Street. Photo by Rami Tabello from Illegal Signs.

Last week, further to news reported on Illegal Signs, we briefly noted the Ontario Superior Court’s refusal to grant Strategic Media a temporary exemption from certain provisions of the City of Toronto’s sign bylaw. If granted, Strategic Media (and most likely all other advertisers) would have been allowed to suspend compliance with these provisions until a court resolved the ongoing claim [PDF] over whether these provisions are valid.
The provisions in question relate to third-party fascia signs, “third-party” meaning a sign advertising a business, product, or service unrelated to the property on which it is situated, and “fascia” meaning a wall-mounted sign that projects no more than forty-five cm from the wall.
Special rules exist for this type of sign. You can’t erect one without a permit, and your permit will restrict its size, location, and distance from other signs. If you dislike the restrictions, you can seek a variance—or, if you’re Strategic Media, you can erect your signs anyway and see what happens.
Here’s what we think about the court decision.

1. The court came to the right decision…

The breezy three thousand–word decision—worth reading if you have even a passing interest in the subject—applied the three-stage test for granting an “interlocutory injunction,” which is court-speak for a temporary remedy that lasts until an underlying case is resolved. A publication ban pending resolution of a criminal trial is perhaps a good analogy.
The first stage, almost a formality, was whether there was a “serious issue” to be considered. Almost everything qualifies under this heading, and the court agreed that Strategic Media’s claim did so.
The second stage was whether Strategic Media would suffer “irreparable harm” if it failed to get an injunction. In this context, “irreparable” means that the harm would be unquantifiable in monetary terms or would be impossible to correct afterward.
The court held that Strategic Media would not suffer irreparable harm if it failed to get an injunction, rejecting both arguments that it advanced:
(a) Economic harm. The company’s co-founder suggested in an affidavit that the company might go bankrupt if it lost, but later changed position on the stand—not usually a wise strategy—to say that the company would at most be “truncated.” The court responded that short-term economic pain does not generally qualify as “irreparable harm.”
(b) Harm to private third parties. The company suggested that other private parties, like building owners who leased space to it for the signs, might lose money if the injunction were refused. The court responded that economic harm to private third parties was not generally a relevant factor in deciding whether to grant such injunctions.

Ontario Superior Court ruling on Strategic Media’s application for an interlocutory injunction.

The third stage was whether the “balance of convenience” favoured Strategic Media or the City in granting or refusing the injunction. Relevant factors include which party would suffer greater harm, the public interest, and the type of law under dispute.
While the court acknowledged that Strategic Media might suffer some economic and reputational damage if it lost, it held that other more weightier factors favoured the City. In particular, the court noted that the bylaw reflected the City’s attempt to promote the public interest, that the public interest was generally served by complying with existing laws until they were judicially resolved to be invalid, and that suspending the provisions on third-party fascia signs might encourage non-compliance with the rest of the sign bylaw.
Of particular interest was the court’s citation of a leading sign case, Vann Media Group v Oakville, which held that the issue of sign regulation was so important that the appropriate remedy for invalid provisions was time to allow redrafting of the provisions, rather than throwing them out entirely. Such an observation suggests that, even if Strategic Media wins its larger case, the most that it could hope for is a diluted bylaw rather than a signage free-for-all.

2. … but this is only the first round.

The court’s decision does not answer—or even consider— the overarching issue of whether the restrictions on third-party fascia signs are constitutionally and administratively valid.
The constitutional argument, which we previously considered, is that these restrictions may unreasonably impair advertisers’ freedom of expression, particularly as identical restrictions do not exist for fascia signs erected by property-owners or tenants on their own buildings, or for signs painted directly onto buildings.
The administrative argument is that the City might not have had the authority to enact the bylaw or, in the alternative, might have violated certain principles when enacting the bylaw so as to render it invalid.
The recent court decision doesn’t address these arguments. It states only that Strategic Media is not entitled to an exemption from the bylaw while its main case is progressing. We’re still at a very preliminary stage, and no one should get too excited yet.

3. And what about those pesky kids?!

The case represents a turnaround of fortunes for Illegal Signs, a group whose self-described mission is to destroy illegal billboards through the rule of law.
Last year, the City didn’t appreciate the group very much, going so far as to argue (unsuccessfully) that its requests for information were frivolous and vexatious. No more. This year, it took the opposite position, noting that being “inundated with complaints” suggested evidence of “actual public interest” in the issue, and arguing that this should influence the court when deciding whether the balance of convenience favoured Strategic Media or the City.
We’re not sure which is more surprising—that the City cited the activities of Illegal Signs as evidence that the public interest would be harmed if compliance with the bylaw was suspended, or that the court took these complaints as seriously as it did. But it suggests that beating your head against a wall can, after a few years and a whole lot of criticism, occasionally get results.
With thanks to Rami Tabello. You can see some examples of allegedly illegal billboards by Strategic Media here.