A property owner, 819630 Ontario Ltd., alleged that the City of Toronto illegally removed a billboard from the roof of its property at 300 Bridgeland Ave., according to the Feb. 21 Ontario Superior Court of Justice decision, 819630 Ontario Limited v. Toronto (City of), 2019 ONSC 1203, written by Justice Edward Morgan.
The sign was initially permitted to read “Building Space for Lease” in 1999, and in 2000, the Canadian distributor of Calvin Klein and Ralph Lauren clothes leased the property, changing the message of the sign to “Calvin Klein and Ralph Lauren.”
The sign’s original 1999 permit was issued in the North York bylaw, the decision said. In the years since, the board has featured Telus in 2007, TD Bank in 2011, Geranium Homes in 2014 and Friday Harbour in 2015, the decision said.
“I asked the City’s counsel if, in the City’s view, it would have been an ‘alteration’ of the sign if it continued to advertise Calvin Klein and Ralph Lauren precisely as it had from the day the Applicant received its sign permit, but the tenant in the Property stopped selling Klein and Lauren jeans and started selling Levi’s,” wrote Morgan. “In the City’s understanding of the term, it would have undergone an alteration into something other than what it was when the permit was issued, without actually changing at all. The sign would speak without speaking, uttering prohibited sounds of silence.”
The sign’s location put it in the crosshairs of several different laws, wrote Morgan in the decision. The sign was located in the former City of North York, where an original North York bylaw still governs signs that have not been “substantially altered” since the implementation of a 2010 new, Toronto-wide sign law, wrote Morgan.
The North York bylaw allows several exceptions to the definition of an “alteration,” including: a change in the message displayed by a sign, the re-arrangement of numerals, letters or copy applied directly to the face of a sign and specifically designed and intended to be periodically re-arranged, and repair and maintenance, Morgan wrote.
There was also a dispute about language in the City of Toronto Act — which uses the word “erected” — and the North York bylaw — which uses the word “regulation.”
On top of that, because the sign was within 400 metres of Highway 401, it was regulated by the Public Transportation and Highway Improvement Act, which requires the sign to have a permit issued by the Ministry of Transportation of Ontario, Morgan wrote.
Another issue at play in the decision was whether the sign fell within restrictions on “off premise” or “third party” signs.
Rodney Gill, solicitor 1 at the City of Toronto, says the city’s position was that there were multiple reasons why the applicants should fail.
“They erected a different sign. Even if you don’t believe that, they did not have the right MTO permit, so it is an unlawful sign. And even if you find [the city’s] law does not apply, the North York bylaw provides that you can remove the sign in that it’s unlawful,” says Gill.
“We thought there were a number of reasons the sign was legitimately removed.”
Morgan decided that a Divisional Court file should be stayed and the matter proceed as an action, rather than an application, to allow for discovery, expert evidence and evidence on the policy thinking behind the current rules. Lawyers Eric and Kevin Sherkin of Levine Sherkin Boussidan PC, who represented the property owner, declined to comment.
Andrew Lokan, a partner at Paliare Roland Rosenberg Rothstein LLP in Toronto, who was not involved in the case, says it is well established that freedom of commercial expression and the regulation of advertising is subject to Charter review, and infringements have to be justified under the test in s. 1 of the Charter, which says that rights and freedoms set out in the Charter are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
“When there is a Charter issue, the AG sometimes sends a lawyer to come along. They are often able to put in the kind of record that explains a law,” says Lokan. “That doesn’t seem to have happened in this case . . . These are more practice points than a Charter [issue.]”