Galganov v. Russell (Township), 2012 ONCA 409

• Judge: Weiler, Sharpe and Blair, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: February 02, 2012
• Jurisdiction: Ontario
• Citations: 2012 ONCA 409;(2012), 293 O.A.C. 340 (CA)

Galganov v. Russell (2012), 293 O.A.C. 340 (CA)

MLB headnote and full text

Temp. Cite: [2012] O.A.C. TBEd. JN.036

Howard Galganov (applicant/appellant) v. The Corporation of the Township of Russell (respondent)

Jean-Serge Brisson (applicant/appellant) v. The Corporation of the Township of Russell (respondent)

(C52704; 2012 ONCA 409)

Indexed As: Galganov v. Russell (Township)

Ontario Court of Appeal

Weiler, Sharpe and Blair, JJ.A.

June 15, 2012.

Summary:

The Township of Russell passed a bylaw which required that all new exterior commercial signs be in English and French. Galganov and Brisson each challenged the bylaw. Their applications were ordered to be tried together with evidence from one used in the other.

The Ontario Superior Court, in a decision reported at [2010] O.T.C. Uned. 4566, dismissed the applications. The application judge dismissed Galganov's application on the basis that he did not have standing to bring it as he did not reside, own property or operate a business in the Township and he did not have any specific interest in the bylaw nor was he directly affected by it. The application judge held that Brisson had standing as he carried on a business in the Township and had a direct interest in the bylaw. She held that the bylaw was intra vires the Township's statutory authority under the Municipal Act. She concluded that the requirement that Brisson's sign describing his services be in English as well as in French was not an infringement of his right to freedom of expression under s. 2(b) of the Charter or of his equality rights under s. 15(1) of the Charter nor was there a breach of international law. Alternatively, any Charter infringement was justified under s. 1 of the Charter. Galganov and Brisson appealed.

The Ontario Court of Appeal dismissed both appeals. The court found that the application judge erred in concluding that there was no infringement of Brisson's s. 2 Charter rights, but held that this infringement was justified under s. 1 of the Charter.

Civil Rights - Topic 1860.71

Freedom of speech or expression - Limitations on - Requirement of bilingual signs - Brisson applied to quash a township's bylaw which required that all new exterior commercial signs be in English and French - The application judge held that the requirement that Brisson's sign describing his services be in English as well as in French was not an infringement of his right to freedom of expression under s. 2(b) of the Charter - Alternatively, any infringement was justified under s. 1 of the Charter - The Ontario Court of Appeal dismissed Brisson's appeal - The application judge erred in concluding that there was no infringement of Brisson's s. 2(b) Charter rights - Choice of language was an important aspect of expression - The fact that his sign was a commercial sign did not remove it from the scope of the protected freedom in s. 2(b) - The sign conveyed meaning and therefore could not be excluded from the protection of s. 2(b) - However, the infringement was justified under s. 1 of the Charter - The objective of the bylaw, the promotion of the equality of status of both French and English, the official languages of Canada, was a pressing and substantial one - The bylaw also met the proportionality test - The benefits of the bylaw were proportional to any deleterious effect on freedom of expression or inconvenience suffered - The joint use of French and English was rationally connected to the township's concern of ensuring that its bilingual nature was reflected on exterior commercial signs - Requiring Brisson to employ English on his sign in addition to French was a minimal impairment of his right to freedom of expression - See paragraphs 50 to 85.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See Civil Rights - Topic 1860.71 ].

Municipal Law - Topic 3775

Bylaws - Particular bylaws (incl. scope of ) - Sign bylaw - Brisson applied to quash a township's bylaw which required that all new exterior commercial signs be in English and French - The application judge held that the bylaw was intra vires the Township's statutory authority under the Municipal Act as it came within its power under, inter alia, s. 11(2)(5) of the Act to pass bylaws for matters respecting the economic, social and environmental well-being of the municipality - The Ontario Court of Appeal agreed that the bylaw was intra vires the township's authority - Specific authority in the Act was not required in order to enact the bylaw - The general municipal powers granted to a municipality in s. 11(1) of the Act allowed it to "provide any service or thing that the municipality considers necessary or desirable for the public" - The bylaw was in relation to a thing - It was an action taken by the Township relating to a material entity (signs) or a non-material entity or idea (the social well-being of persons) - The bylaw related to the social well-being of the township found in the spheres of jurisdiction in s. 11(2)(5) of the Act - The court rejected the argument that, because of the importance of language rights, a specific power rather than a general power was required - See paragraphs 21 to 49.

Municipal Law - Topic 3843

Bylaws - Quashing bylaws - Grounds for judicial interference - Ultra vires - [See Municipal Law - Topic 3775 ].

Municipal Law - Topic 3887

Bylaws - Quashing bylaws - Judicial review - Practice - Status or standing - Galganov applied to quash a township's bylaw which required that all new exterior commercial signs be in English and French - Section 273(1) of the Municipal Act, provided that "any person" could apply to quash a bylaw - The application judge dismissed Galganov's application on the basis that he did not have standing to bring it as he did not reside, own property or operate a business in the Township and he did not have any specific interest in the bylaw nor was he directly affected by it - The application judge held that, notwithstanding the use of the words "any person" in s. 273(1), the court had the discretion to refuse to grant standing where a person has not shown any particular personal interest in a by-law and is not directly affected by it - The Ontario Court of Appeal dismissed Galganov's appeal - In repealing the prior version of the Municipal Act and adopting the term "any person" in the Act, the legislature discarded the restrictive "pigeon hole" approach to standing in which it had explicitly included certain connecting factors, such as residency, or being a ratepayer, in favour of the broader phrase "any person" - However, the legislature did not eliminate the principled exercise of judicial discretion respecting standing - The court maintained the discretion to refuse to grant standing in accordance with the common law rules respecting standing - The application judge properly exercised her discretion to refuse to grant Galganov standing because he was not affected by the bylaw - See paragraphs 9 to 16.

Cases Noticed:

Croplife Canada v. Toronto (City) (2005), 198 O.A.C. 35; 75 O.R.(3d) 357 (C.A.), leave to appeal denied (2005), 349 N.R. 198; 215 O.A.C. 394 (S.C.C.), refd to. [para. 26].

114957 Canada ltée (Spraytech, Société d'arrosage) et al. v. Hudson (Town), [2001] 2 S.C.R. 241; 271 N.R. 201; 2001 SCC 40, refd to. [para. 27].

United Taxi Drivers' Fellowship of Southern Alberta et al. v. Calgary (City), [2004] 1 S.C.R. 485; 318 N.R. 170; 346 A.R. 4; 320 W.A.C. 4; 2004 SCC 19, refd to. [para. 28].

Chaperon v. Sault Ste. Marie (City) (1994), 19 O.R.(3d) 281 (Gen. Div.), refd to. [para. 42].

Trumble v. Kapuskasing (Town) (1986), 57 O.R.(2d) 139 (H.C.J.), affd. (1988), 63 O.R.(2d) 798 (C.A.), refd to. [para. 42].

R. v. Greenbaum (M.), [1993] 1 S.C.R. 674; 149 N.R. 114; 61 O.A.C. 241, refd to. [para. 43].

R. v. Beaulac (J.V.), [1999] 1 S.C.R. 768; 238 N.R. 131; 121 B.C.A.C. 227; 198 W.A.C. 227, refd to. [para. 44].

Lalonde et al. v. Commission de restructuration des services de santé (Ont.) (2001), 153 O.A.C. 1; 56 O.R.(3d) 505 (C.A.), affd. (1999), 131 O.A.C. 201; 48 O.R.(3d) 50 (Div. Ct.), refd to. [para. 44].

Irwin Toy Ltd. v. Québec (Procureur général), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2, refd to. [para. 51].

Chaussure Brown's Inc. et al. v. Québec (Procureur général), [1988] 2 S.C.R. 712; 90 N.R. 84; 19 Q.A.C. 69, refd to. [para. 52].

Singer (Allan) Ltd. v. Québec (Procureur général) et al., [1988] 2 S.C.R. 790; 90 N.R. 48; 19 Q.A.C. 33, refd to. [para. 57].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 62].

Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81, refd to. [para. 62].

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255, refd to. [para. 65].

Lavoie et al. v. Canada et al., [2002] 1 S.C.R. 769; 284 N.R. 1; 2002 SCC 23, refd to. [para. 78].

Montreal (City) v. 2952-1366 Québec Inc., [2005] 3 S.C.R. 141; 340 N.R. 305; 2005 SCC 62, refd to. [para. 81].

Statutes Noticed:

Municipal Act, S.O. 2001, c. 25, sect. 8(1), sect. 8(2) [para. 25]; sect. 11(1) [para. 30]; sect. 11(2)(5) [para. 32]; sect. 273(1) [para. 9].

Russell (Township) Bylaws - Bylaw No. 49-2008, sect. 2.1 [para. 21].

Authors and Works Noticed:

Levi, Ron, and Valverde, Mariana, Freedom of the City: Canadian Cities and the Quest for Governmental Status (2006), 44 Osgoode Hall L.J. 409, generally [para. 29, footnote 3].

Rogers, Ian MacFee, The Law of Canadian Municipal Corporations (1971) (Looseleaf), vol. 1, para. 63.35 [para. 27]; vol. 2, para. 191.3 [para. 13].

Counsel:

Brian A. Crane, Q.C., Guy Régimbald and Matthew Estabrooks, for the appellants, Howard Galganov and Jean-Serge Brisson;

Ronald F. Caza and Marc Sauvé, for the respondent;

Chris Schafer, for the intervener, Canadian Constitution Foundation.

These appeals were heard on February 2, 2012, before Weiler, Sharpe and Blair, JJ.A., of the Ontario Court of Appeal. The following decision was delivered by Weiler, J.A., on June 15, 2012.