The Canadian Centre for Bio-Ethical Reform, a pro-life advocacy group, was denied advertising space on public buses by the South Coast British Columbia Transportation Authority for one of its campaigns aimed at demonizing women who have an abortion. It argued that the refusal constituted an unreasonable infringement on its Charter right to freedom of expression. The decision of TransLink was upheld by the chamber’s judge on judicial review, but ultimately overturned by the Court of Appeal, primarily on the basis of its failure to properly address the Charter argument. The Court of Appeal remitted the matter back to TransLink for reconsideration.

Administrative law – Decisions reviewed – Transportation Authority – Human Rights – Charter of Rights and Freedoms – Judicial review – Appeals – Fresh evidence – Standard of review – Reasonableness – Proportionality

Canadian Centre for Bio-Ethical Reform v. South Coast British Columbia Transportation Authority, [2018] B.C.J. No. 3156, 2018 BCCA 344, British Columbia Court of Appeal, September 11, 2018, S.D. Frankel, H. Groberman and L. Fenlon JJ.A.

The Canadian Centre for Bio-Ethical Reform (“CCBR”), a pro-life/anti-abortion organization, sought to set aside an order dismissing its petition for judicial review of a decision of the South Coast British Columbia Transportation Authority (“TransLink”) denying it advertising space on public buses. The CCBR argued TransLink’s refusal constituted an unreasonable infringement on its right to freedom of expression guaranteed by section 2(b) of the Charter of Rights and Freedoms.

TransLink refused CCBR’s request to sell it advertising space on its public buses on the basis of a policy it had adopted regarding advertising. The policy set out, in part, that no advertisement would be accepted which TransLink, in the exercise of its sole discretion, considers to be of questionable taste or in any way offensive in the style, content or method of presentation. In rendering its decision, TransLink provided little reason. TransLink mostly relied on and supported the opinion of its advertising licensee (Lamar Advertising), which found the proposed CCBR advertisement was inconsistent with Canadian Advertising Standards.

The decision of TransLink was upheld on judicial review to the British Columbia Supreme Court. The chambers judge rejected CCBR’s argument that TransLink’s decision was unreasonable because it did not reference Charter values. Further, the chambers judge disagreed with CCBR’s position that TransLink could only reject advertising content that was discriminatory or hateful, which it said the proposed advertisement was not. The chambers judge found the advertisement could cause psychological harm to women because it implied that they were “killers” and concluded TransLink’s reliance on the Canadian Advertising Standard was a reasonable method of filtering advertisements. Notably, the chambers judge referenced and relied on content contained on CCBR’s website, which was never in evidence during the hearing.

On appeal, CCBR put forth two key arguments.

To begin with, CCBR argued the chambers judge erred in finding justification for TransLink’s decision outside of the decision itself (in this case, an email) and by relying on CCBR’s website. The Court of Appeal agreed. The Court of Appeal held the decision-maker provided “no insight whatsoever” into why CCBR’s advertisement was unacceptable, but simply stated a conclusion. The Court of Appeal said, in reviewing the decision, it could not understand why TransLink made the decision it did or whether it fell within the range of reasonableness given the lack of justification provided. In coming to this conclusion, the Court of Appeal made sure not to say that it was requiring detailed reasons by TransLink, but simply that there were “no dots for a court to connect”. This, the Court of Appeal implied, was a substantive difference and not mere semantics. For example, TransLink’s decision did not acknowledge CCBR’s right to freedom of expression under the Charter, let alone set out how the denial to sell them advertising space was a proportionate balance. The fact that CCBR had raised the possible breach of its Charter rights may have, in part, influenced the Court of Appeal’s emphasis on the need for more reasoning provided in TransLink’s decision to deny it advertising space.

In addition to the above, the Court of Appeal agreed with CCBR that the chambers judge erred in referring to and relying on the CCBR website, which was not before the original decision-maker. The Court of Appeal reiterated that, on judicial review, it was not open for the judge to consider content the decision-maker did not.

For these reasons, the Court of Appeal allowed CCBR’s appeal, set aside TransLink’s decision, and remitted the matter back to TransLink for reconsideration.

This case was digested by Adam R. Way, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter. If you would like to discuss this case further, please contact Adam R. Way at away@harpergrey.com.

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