Not for Sale: Banning Commercial Signs

During every Federal Election, my father is not satisfied with having just an ordinary lawn sign in his front yard. He erects those 4×8 foot signs you see on highways on his front lawn. I’d like to stop that unsightly aesthetic and not just because Dad’s political preferences differ from my own.

When it comes to local governments regulating advertising signage, a greater public interest is at stake. Courts have held that a town’s distinct visual character and aesthetic is affected by the use of commercial signage. As such, the Town of Oakville has long attempted to restrict third party advertising signs to distinguish itself from its neighbouring municipality of Mississauga.

Unfortunately, Oakville hit another roadblock in the courts in Vann Media Group Inc. v. Oakville (“Oakville”). In Oakville, the Ontario Court of Appeal held that the Town’s restrictions on third party billboard signage were in effect an “absolute” prohibition. As such, sign bylaw provisions are contrary to the Charter of Rights and Freedoms.

When Oakville lost a previous court decision in 2002, it embarked on a public consultation process before adopting a new sign bylaw. The respondent sign company chose not to participate in this process. Nevertheless, the trial judge held that there were only 9 locations where signs could be erected in compliance with the new sign bylaw. Of those, only one or two locations had sufficient visibility from traffic to be commercially viable. Thus, the trial judge found the entire sign bylaw to be unconstitutional and ordered the Town to issue permits.

The Appeal Court in Oakville did not strike down the entire sign bylaw, only the provisions it found unconstitutional. The Court also quashed the lower Court’s Order mandating permits to the respondent sign company.

A few years ago, I defended the City of Nanaimo from a Charter challenge on its third party sign bylaw restrictions. Some lessons that can be learned from that successful defence in contrast to Oakville are as follows:

1. Have a meaningful Charter review/public process. The City of Nanaimo did that and also had a written document, which it tendered into evidence breaking down the Charter considerations restricting third party signage.

2. Consider sign bylaws from neighbouring municipalities. This is relevant to the Court as it provides a broad legislative spectrum in which it can view the sign bylaw in context. In Nanaimo’s case, the evidence showed other municipalities had sign bylaws that were even more restrictive than Nanaimo’s.

3. Avoid an “absolute” ban on sign advertising. Oakville’s bylaw situation where compliance meant only one or two commercially viable billboards in the entire town was seen as an “absolute” prohibition.

4. Ensure your sign bylaw meets the minimal impairment test of the Charter. This is where most sign bylaws fail: either in that restrictions are too broad or too onerous. If you wish to prohibit signage broadly, then you must show that your restriction meets your objective with the least amount of impairment of the rights of others. The City of Nanaimo did allow third party signage for new businesses during a 90-day period but banned them after that.

It is fair game for municipalities to be distinct from others with respect to commercial advertising on its streets. However, municipalities must provide evidence to justify their distinction. Thus, it is Oakville’s prerogative to be distinct from Mississauga. By the way, my Dad lives in Mississauga.