Executive Summary: Key Legal and Evidentiary Issues

• The City of Hamilton’s refusal to post the Christian Heritage Party’s advertisement on public transit raised questions about balancing freedom of expression against the City’s duty to provide a safe and inclusive environment.

• The procedural fairness and reasonableness of the City’s decision-making process were scrutinized, particularly in light of established administrative law principles.

• The appropriateness of granting intervener status to various organizations hinged on whether their perspectives were distinct and could assist the court without duplicating the parties’ submissions.

• The court considered whether proposed interveners had a real, substantial, and identifiable interest in the proceedings or special expertise relevant to the issues.

• Allegations of bias, partisanship, and the potential for interveners to improperly expand the litigation’s scope were evaluated.

• The decision clarified the criteria and limits for intervener participation, including restrictions on supplementing the factual record and duplicating arguments.

Background and facts of the case

In July 2023, the City of Hamilton refused to display an advertisement submitted by the Christian Heritage Party of Canada (CHP) for the city’s transit system. The advertisement, which featured a photo of a smiling woman and the statement “Woman: An Adult Female. Bringing Respect for Life and Truth to Canadian Politics,” was rejected by the City on the grounds that it could cause harm to the transgender community and compromise the transit system’s goal of being safe and welcoming for all. The City acknowledged CHP’s right to freedom of expression and invited the party to discuss alternatives that might minimize any infringement of this right, but CHP instead sought judicial review of the City’s decision.

Procedural history and lower court findings

The Divisional Court dismissed CHP’s application for judicial review. The court found that the City had acted fairly and reasonably, consulting with CHP and other stakeholders and inviting further feedback. Applying the factors from Baker v. Canada and principles from Canada (Minister of Citizenship and Immigration) v. Vavilov and Doré v. Barreau du Québec, the court concluded that the City’s process was procedurally fair and proportionate, balancing the City’s statutory interest in a safe and inclusive transit system with CHP’s Charter right to freedom of expression. The Divisional Court also found no evidence of bias or discrimination against CHP.

Intervention motions and legal standards

On appeal, four organizations sought leave to intervene as friends of the court: Egale Canada (Egale), Free Speech Union of Canada (FSUC), Charter Advocates Canada, and Association for Reformed Political Action (ARPA). The court considered the nature of the case, the issues raised, and whether each applicant could make a useful, non-duplicative contribution. The test for intervention is more relaxed in constitutional cases, where broader societal interests may be at stake. The court looked for a real, substantial, and identifiable interest, a distinct perspective, or recognized expertise.

Analysis of proposed interveners

Egale, a long-standing advocate for LGBTQ+ rights, was granted leave to intervene. The court found that Egale’s expertise and perspective on the challenges faced by transgender and non-binary individuals were distinct from the City’s and could assist the court, even if Egale was not indifferent to the outcome. Egale was not permitted to supplement the factual record but could argue the relevance of Charter section 7 to the case.

ARPA, a Reformed Christian advocacy group, was also granted intervener status. Despite some overlap with CHP’s arguments, ARPA was recognized as having a distinct perspective, particularly regarding the characterization and protection of the speech in question. The court rejected arguments that ARPA’s past litigation against the City or its counsel’s connections to CHP disqualified it from intervening.

FSUC and Charter Advocates were denied leave to intervene. The court found that FSUC, as a newly formed organization, did not demonstrate a distinct perspective or substantial interest beyond a general advocacy for free expression. Charter Advocates similarly failed to show a unique interest or perspective, and its desire to shape the law was insufficient for intervener status.

Outcome and final orders

The Court of Appeal granted intervener status to Egale and ARPA, subject to conditions: both must take the record as it is, avoid duplicating the parties’ submissions, and are limited in the length of their written and oral submissions. They are not entitled to costs. The motions by FSUC and Charter Advocates were dismissed without costs. The successful parties on the intervention motions were Egale and ARPA, but no monetary award or costs were ordered in their favor.