Many of our readers, particularly those who live or work in the Oakville area, may find it interesting to know that a battle has been raging for years over the town’s anti-billboard by-law that has reached the highest courts of both Ontario and Canada.
There are no billboards in Oakville, such as you find throughout Hamilton and the Greater Toronto Area, and which not infrequently, display the advertising of our colleagues in the personal injury bar.
The lack of billboards in Oakville may not have been noticeable, as it is difficult to notice something missing that was never there in the first place. But noticeable or not, and despite the town’s best efforts, the Oakville landscape is on the verge of change.
First some background. In 1994, the Town of Oakville passed a by-lawimposing a total ban on billboard advertising within its borders. Itsjustification for the ban included preservation of the town’s unique character, prevention of aesthetic blight and driver distraction. Areferendum was held on the issue in 2000, but a lack of eligiblevoter turn-out led to the results of the referendum not being legally binding.
In 2002, the issue reached the Ontario Court of Appeal in Vann Niagara Ltd. v. The Corporation of the Town of Oakville, which held that the by-law was unconstitutional as it violated freedom of expression protected under section 2(b) of the Canadian Charter of Rights and Freedoms (the “Charter”), overturning the decision of the Superior Court of Justice which ruled in favour of the Town’s by-law.
The applicant in the case, Vann Niagara Ltd., now known as Vann Media Group Inc. (“Vann”’), is an advertising company that seeks to erect billboards for its clients across the Oakville landscape, limited, however, to those areas of the Town that are not residential or heritage zones.
The Court of Appeal held that expression that is commercial expression is expression none-the-less, and is protected under section 2(b) of the Charter. The by-law was quashed as being overly intrusive on that freedom and the Court of Appeal granted the Town an opportunity to re-word the by-law to allow the billboard advertising restriction to be minimally intrusive and in compliance with the Charter.
Oakville’s appeal to the Supreme Court of Canada was limited to the narrow issue of the Town’s right to restrict the size of billboard signage to certain dimensions. The Supreme Court held that to be a minimal restriction on freedom of expression and therefore not a violation of the Charter’s right to freedom of expression.
The courts have had to grapple with this issue in other municipalities as well. A complete ban on billboards was allowed in the Township of Nichol, a small rural municipality. In Burlington and Stoney Creek the court both upheld and quashed by-laws restricting the type, size and location of signs, depending upon the degree of justification given by the city. In Scarborough, a cap on the number of billboards was upheld.
In Oakville, extensive consultations ensued and a new by-law was passed, only to be struck down yet again by the Superior Court of Justice earlier this year on a further application brought by Vann. Justice Gray in his decision said of the revised by-law, “It is evident that whether or not it was the municipality’s intent, the result of the [revised] by-law is to effectively ban billboard advertising in Oakville”. He went on to conclude as follows, “while the objectives of the municipality in preventing urban blight and minimizing driver distractions are pressing and substantial, the Town has not shown that the means chosen to achieve these objectives are justified”. He held that the revised by-law did not minimally impair Vann’s constitutional rights and it was quashed accordingly.
Again, the Town of Oakville has been given time to re-draft the by-law, and the battle will presumably rage on. In the meantime, the Town was directed by the Court to grant Vann the necessary permits to erect billboards within non-residential areas. As a result, our colleagues in the personal injury bar are now permitted to display the proverbial question across the Oakville horizon: “Injured?”.