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Lerners Successfully Represents City of Hamilton in the Divisional Court

Congratulations to the counsel team of C. Kirk Boggs and Stuart Zacharias who successfully defended their client, the City of Hamilton, against a judicial review application in Christian Heritage Party of Canada v City of Hamilton, 2024 ONSC 6181.

The application was brought by the Christian Heritage Party of Canada (CHP). CHP, a registered political party, had sought to run a bus shelter advertisement within the City’s transit system which included the words “Woman: An Adult Female. Bringing Respect for Life and Truth to Canadian Politics.” The City, in a detailed written decision, declined to run the advertisement. While it recognized CHP’s important right to freedom of political expression, it concluded that the ad, which in conjunction with CHP’s website advocated the position that there are only two biological genders, could impact the City’s ability to provide a “safe and welcoming transit system” for all its users. In particular, based on the City’s investigations and consultations, it concluded that running the ad could be detrimental to the health and safety of transgender and non-gender conforming individuals using its transit system. In its application CHP sought, among other things, an order directing the City run the advertisement. In unanimously dismissing the application, the Divisional Court held that the City, as required by the applicable legal test (Doré/Loyola), proportionately balanced its statutory interest in providing a transit system that is safe and welcoming for all people against CHP’s Charter right to freedom of speech. In doing so, the court held, the City reached a fair, balanced, and reasoned decision that fell within a range of reasonable, acceptable outcomes. The court also rejected CHP’s assertions of bias on the part of the City. CHP was ordered to pay costs to the City in the agreed amount of $35,000.

This is believed to be the first Ontario court decision upholding an administrative decision of this type, with respect to a proposed advertisement, by a municipality.

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