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March 4, 2019

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LAW TIMES COVERING ONTARIO'S LEGAL SCENE | MARCH 4, 2019 3 www.lawtimesnews.com BY ANITA BAL AKRISHNAN Law Times A "SIGNAGE enforcement blitz" by the City of Toronto has raised "a potentially profound contest" between the legislation governing signs and the right to expression guaranteed by the Canadian Charter of Rights and Freedoms, according to a recent court decision. A property owner, 819630 Ontario Ltd., alleged that the City of Toronto illegally re- moved a billboard from the roof of its property at 300 Bridgeland Ave., according to the Feb. 21 Ontario Superior Court of Jus- tice decision, 819630 Ontario Limited v. Toronto (City of), 2019 ONSC 1203, written by Justice Edward Morgan. The sign was initially permit- ted 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 "Cal- vin Klein and Ralph Lauren." The sign's original 1999 per- mit was issued in the North York bylaw, the decision said. In the years since, the board has fea- tured 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 precise- ly as it had from the day the Ap- plicant 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 altera- tion into something other than what it was when the permit was issued, without actually chang- ing at all. The sign would speak without speaking, uttering pro- hibited sounds of silence." The sign's location put it in the crosshairs of several differ- ent 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 al- tered" since the implementation of a 2010 new, Toronto-wide sign law, wrote Morgan. The North York bylaw al- lows several exceptions to the definition of an "alteration," including: a change in the mes- sage displayed by a sign, the re-arrangement of numerals, letters or copy applied directly to the face of a sign and specifi- cally designed and intended to be periodically re-arranged, and repair and maintenance, Mor- gan 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 appli- cants 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 unlaw- ful 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 Di- visional Court file should be stayed and the matter proceed as an action, rather than an ap- plication, 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 Roth- stein 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 sub- ject to Charter review, and in- fringements have to be justified under the test in s. 1 of the Char- ter, which says that rights and freedoms set out in the Charter are "subject only to such reason- able limits prescribed by law as can be demonstrably justified in a free and democratic society. "When there is a Charter is- sue, 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.]" LT Andrew Lokan says it is well established that freedom of commercial expression and the regulation of advertising is subject to Charter review. NEWS Property owner protests removal of sign Legal battle waged over billboard ATTENTION! ONTARIO LAWYERS & PARALEGALS The Law Society of Ontario Bencher Elections Start: APRIL 15, 2019 STOP! THINK! CONSIDER! SAY "NO" TO THE MANDATED STATEMENT OF PRINCIPLES BEFORE YOU VOTE, VISIT: www.stopsop.ca for more info about the Stop SOP slate of Candidates Untitled-13 1 2019-02-26 3:41 PM #BencherElection2019 commentary Continued from page 1

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