Ontario Court quashes City of Hamilton’s decision to remove political party’s discriminatory, anti-transgender bus-stop ads due to failure to consider the party’s Charter right to free speech

Administrative law – Decisions reviewed – Municipal councils – Judicial review – Natural justice – Procedural requirements and fairness – Standard of review – Reasonableness – Human rights complaints – Discrimination – Gender

Christian Heritage Party of Canada v. Hamilton (City), [2018] O.J. No. 5105, 2018 ONSC 3690, Ontario Superior Court of Justice, October 4, 2018, R.E. Mesbur, M.N. Varpio and F.L. Myers JJ.

The applicant placed advertisements in bus shelters depicting the back of an individual with short hair and a ball cap entering a room labelled “Ladies Showers” with the slogan “Competing Human Rights…” above the photo and “Where is the Justice? Bringing Respect for Life and Justice to Canadian Politics” written below. There was an active political debate in Hamilton at the time concerning municipal policies for the use of public facilities, including washrooms, by transgendered people. The City removed the ads on the grounds that they were discriminatory to the transgendered community and not in keeping with the principles set out in the City’s Equality and Inclusion Policy.

The Ontario Superior Court of Justice quashed the City’s decision. The City failed to demonstrate that the process undertaken in making the decision was reasonable. It had denied the applicant its fundamental right to natural justice because it did not consult the applicant during the decision-making process and there was no indication that the applicant’s Charter right to express itself was considered.

This case was digested by Kara Hill, 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 Kara Hill at khill@harpergrey.com.

To stay current with the new case law and emerging legal issues in this area, subscribe here.