Simon's Megalomaniacal Legal Resources

Fairness - Baker - Importance of Decision (2)

. Christian Heritage Party of Canada v. Hamilton (City)

In Christian Heritage Party of Canada v. Hamilton (City) (Ont CA, 2026) the Ontario Court of Appeal dismissed an appeal, here brought against an earlier dismissal of a JR application - that against "whether the respondent, City of Hamilton (the “City”), acted unfairly or unreasonably in rejecting a proposed advertisement for City-owned transit shelters from the appellants, Christian Heritage Party of Canada and Christian Heritage Party Hamilton-Mountain Electoral District Association (collectively, “CHP”)".

Here the court considers, in an administrative Charter context, Baker fairness issues - particularly the 'importance of the decision':

c. The City’s process did not breach the duty of fairness

[33] The parties agree that the framework governing whether the City met its duty of fairness is that set out by the Supreme Court in Baker, at paras. 23-28, and includes five listed criteria to consider:

(a) The nature of the decision to be made and process followed in making the decision;

(b) The nature of the statutory scheme and the terms of the statute pursuant to which the body operates;

(c) The importance of the decision to the individuals affected;

(d) The legitimate expectations of the person(s) affected by the decision; and

(e) The agency or administrator's choice of procedure.

[34] The Divisional Court’s conclusions are set out above. At the end of its analysis, the Divisional Court held, at para. 37:

Considering the five Baker factors, the process that the City applied in reaching its decision is fair. The decision is not an adjudicative one. Rather, the decision is a relatively low-level administrative decision, albeit one that involved weighing significant interests. The process was proportional and reasonable. CHP was consulted through its email discussions with OUTFRONT and the City. In its decision, the City invited feedback from CHP.

[35] The appellants argue they were denied fairness by the City. They contend that the Divisional Court repeatedly erred in law and mixed law and fact when conducting its procedural fairness analysis and applying the Baker framework.

[36] First, the appellants submit that the Divisional Court improperly considered the interests of third parties in their application of the Baker framework. With respect to the third and fourth Baker factors, the Divisional Court stated:

The importance of the issues arising from the proposed Advertisement was high both for CHP but also for transgender and gender non-conforming people, all of which were legitimate interests: CHP’s interest in political expression, and the City’s and transgender/gender non-conforming people’s interest in having a safe, respectful, and inclusive environment for all community members who use public services such as public transit, including those who are not cis-gender.

[37] The appellants argue that it was an error for the Divisional Court to refer to the importance of the issues in the decision for “transgender and gender non-conforming people” as it was not the fairness entitlements of those groups at issue in the City’s decision with respect to the proposed Advertisement.

[38] The appellants are correct that the focus of the fairness inquiry is whether they were treated fairly, not whether the City addressed the needs of other interested groups in the decision. The choice of process by the City, however, also is a relevant Baker criterion, though it is usually discussed as the fifth factor, and not, as in the Divisional Court’s analysis, as part of the third and fourth factors. That said, in this case, the choice of procedure occurred in the context of the City attempting to balance CHP’s interests with the importance of the decision to the third party groups mentioned. In my view, setting out this context as part of its explanation of its process did not constitute an error. Further, as I read the Divisional Court’s conclusion, the City’s reference to the importance of the issues for other groups explained its decision to consult those groups but played no role in its reasoning on whether the appellants were denied a fair process. The Divisional Court acknowledged that the issue was of high importance to CHP.

[39] Importantly, the Divisional Court’s reasoning as to why the City met its fairness obligations to the CHP did not relate to the importance of the issue for third party groups, but rather to its findings that CHP was consulted, that the decision was administrative rather than adjudicative in nature, and that the City’s process overall was reasonable and proportionate.

[40] The appellants take issue with these conclusions, and in particular, the finding that CHP was “consulted.” According to the appellants, the record does not demonstrate that the City corresponded with CHP as a means of consultation. Rather, after OutFront’s decision, the City only became directly involved after CHP’s counsel sought clarification for the application of the CCAS.

[41] Finally, the appellants contend that the Divisional Court failed to adhere to its own guidance in the earlier litigation between the parties: CHP 2018. The court in CHP 2018 held that “it was imperative for the city to undertake an adequately robust process”: at para. 63. CHP should have had “an opportunity to participate”: CHP 2018, at para. 60.

[42] The City argues that it provided an opportunity to CHP to participate through its forthright communications with CHP’s counsel, which identified the issues that the City was considering. The City also provided answers to the questions posed by CHP’s counsel in correspondence. As well, according to the City, CHP had multiple opportunities to put forward any submissions or evidence that it wished, nor was a specific invitation to do so required. CHP’s counsel made the decision not to respond further, nor did CHP request an opportunity to put forward further evidence. The City underscores the Divisional Court’s observation that, “CHP does not identify what other views it was prevented from expressing or what the City should have but failed to consider in reaching its decision.”

[43] The City also highlights that the Decision Letter specifically invited CHP to suggest alternatives to rejecting the Advertisement which address the concerns outlined in the letter. CHP provided no response to this invitation.

[44] I see no error in the Divisional Court’s Baker analysis. The decision to accept or deny a proposed advertisement for transit shelters was administrative in nature. It required, under the statutory schemes governing the City, the balancing of several legal and policy considerations. CHP was entitled to be informed of these considerations and to have an opportunity to participate in the City’s process.

[45] The City’s process was not perfect. There is no reason why the City’s correspondence with CHP could not have expressly invited responses, submissions and further evidence, if any, from CHP. Nonetheless, the record shows that CHP had ample opportunities to participate in the City’s process.

[46] CHP did in fact provide responses to the City’s evolving position, both directly by asserting CHP’s position on key issues in dispute and indirectly by posing additional, pointed questions to the City. For example, on May 29, 2023, counsel to CHP responded to an email from Mr. Grant which had referred to the proposed Ad as an “unusual” one requiring special care from the City. Counsel raised the City’s concern with respect to the safety of transit users, by asking, “You state that the advertisement is unusual. What exactly is unusual? It is a political party advertising one of its political and public policy positions. Can you advise how the proposed political advertisement would make the transit system ‘unsafe’?”

[47] The City’s engagement over a period of months with CHP while it conducted due diligence on the Advertisement distinguishes this case from CHP 2018. There, CHP’s advertisement was at first accepted and hung in bus shelters. The advertisements were then removed, and this decision was made in an entirely internal process, with no opportunity for CHP to participate whatsoever.

[48] Further, it was clear to CHP throughout its correspondence with the City that the City had not yet come to a final decision. For example, in the May 31, 2023 email, Mr. Grant wrote:

Assuming, for the moment, that this ad will be approved, and to expedite the next part of the process, perhaps you can give me a sense of the locations you would like to place the advertisement and your advertising budget for this purchase and I can have my marketing manager reach out to our advertising firm to make them aware.

[49] In my view, reviewing the record as a whole in light of the Baker analysis, the City provided an adequate opportunity for CHP to be heard. It also provided CHP with a clear sense of the issues under consideration, their origins and implications, and therefore a good understanding of the case to be met. Accordingly, I conclude the City did not breach its duty of fairness.

[50] For these reasons, I would reject this ground of appeal.