Executive Summary: Key Legal and Evidentiary Issues

• Richard Thain sought a declaration that the City of Winnipeg breached his Charter rights by refusing to run his transit bus advertisements in 2014 after Pattison Outdoor Advertising LP deemed them non-compliant with the Canadian Code of Advertising Standards.
   
• Central to the motion was whether Pattison acted as the City's agent or delegated decision-maker when it refused to run the Ads, thereby attracting Charter scrutiny under s. 32.
   
• Contested evidentiary issues arose over whether the City could rely on examination for discovery transcripts — of both its own representative and Pattison's representative — in support of its summary judgment motion.
   
• Under Rules 31.11 and 39.04 of the Court of King's Bench Rules, a party cannot rely on discovery transcripts of a non-adverse party or its own representative in lieu of filing a proper affidavit.
   
• The Contract between the City and Pattison expressly designated Pattison as an independent contractor and granted the City ultimate discretion over advertising acceptance, creating a factual dispute about the true nature of their relationship.
   
• Unresolved factual questions about the degree of the City's involvement in the decision to refuse the Ads rendered summary judgment inappropriate and necessitated a trial.
   

Facts of the case

In 2010, the City of Winnipeg and Pattison Outdoor Advertising LP entered into a contract for the sale and placement of advertising on Winnipeg Transit buses. In August 2014, plaintiff Richard Thain entered into two contracts with Pattison for the placement of advertisements on those transit buses. The Ads pertained to the public funding of religious schools in the province of Ontario and were scheduled to run from September 15 through October 12, 2014, timed to coincide with the opening of the Canadian Museum for Human Rights in Winnipeg. On September 15, 2014, Pattison advised Thain that the Ads would not run because they were found to be in violation of the Canadian Code of Advertising Standards (the "Code"). Following the refusal, Thain entered into a contract with a different service provider and had the Ads placed on bus shelters in Winnipeg instead. Thain alleged that Pattison acted as an agent or co-conspirator of the City in refusing his Ads, and that this refusal breached his Charter rights to freedom of conscience and expression under ss. 2(a) and 2(b). The claim against Pattison was subsequently resolved by agreement between the parties, though it had not yet been discontinued on the court record at the time of this decision. On February 6, 2023, Thain confirmed through counsel that he would pursue only Charter remedies against the City of Winnipeg. On February 28, 2023, the court granted the City permission to bring a motion for summary judgment to dismiss the plaintiff's claim against it, and that motion is the subject of this decision.

Policy and legislative provisions at issue

The City and Pattison's 2010 contract contained several provisions central to the dispute. It expressly stated that Pattison was an independent contractor and shall not be deemed to be an agent or representative of the City. It provided that the City would be guided by the general principles of the Code in determining advertising acceptability, and that no advertisement would be accepted which promoted or posed "a specific theology or religious ethic point of view, policy or action." The contract further stipulated that Pattison was responsible for interpreting and implementing "advertising guidelines" and dealing directly with potential advertisers, while the City retained the role of sole and final arbiter in all matters relating to advertising acceptance, with authority to refuse or order the removal of any advertising material at any time in its absolute discretion. Where Pattison and an advertiser were in a dispute regarding compliance with the guidelines, Pattison would refer the advertisement to Advertising Standards of Canada for adjudication under the Code, and to the City for adjudication of its internal advertising guidelines. Section 32(1)(b) of the Canadian Charter of Rights and Freedoms provides that the Charter applies "to the legislature and government of each province in respect of all matters within the authority of the legislature of each province." The constitutional question before the court was the extent to which s. 32 applied to the City's contractual relationship with Pattison and to Pattison's decision to refuse the Ads. The summary judgment motion was governed by Rule 20 of the Court of King's Bench Rules, M.R. 553/88.

Reasoning and analysis

The court first addressed the evidentiary objections raised by Thain regarding two exhibits attached to the City's supporting affidavit: the transcript of the examination for discovery of a Pattison representative (Exhibit "B") and the transcript of the examination for discovery of a City representative (Exhibit "C"). Applying Rules 31.11 and 39.04 of the Court of King's Bench Rules and the reasoning in Telecommunication Employees Association of Manitoba Inc. et al. v. Manitoba Telecom Services Inc. et al., 2005 MBQB 259, the court held that the City could not rely on either transcript. With respect to Exhibit "C," the court found that the "adverse party" requirement was not met, and that a party should not be permitted to rely on a discovery transcript in circumstances where it should have filed an affidavit. With respect to Exhibit "B," the court found that the Pattison representative was examined by the plaintiff's counsel, not the City's, making the transcript the plaintiff's property; there was no evidence of an agreement allowing it to be used interchangeably by the City. The court noted that the plaintiff, as the examining party, was entitled to rely on both transcripts in his defence of the motion.

Turning to the Charter analysis, the court confirmed that the City, as a municipal government, would undoubtedly be considered government for the purposes of s. 32, and that governments cannot avoid their Charter obligations by delegating or contracting out of those obligations, as established in Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, Godbout v. Longueuil (City), [1997] 3 S.C.R. 844, and Dickson v. Vuntut Gwitchin First Nation, 2024 SCC 10. The court reviewed the Contract and found that while it nominally designated Pattison as an independent contractor, the City retained ultimate decision-making power and control over advertising, and was entitled to be involved in the adjudication of advertising disputes. The City's own representative had agreed on examination that Pattison was required to bring to the City's attention any advertisements it deemed may be a problem, and the evidence further showed that Pattison consulted with the City regarding the Ads and that the City advised Pattison in writing that the Ads "may not comply with … the Code." However, the court found that the evidence did not establish the extent to which the City was involved in the final decision to refuse the Ads, or whether, if Pattison made the decision alone, it was acting as the City's agent or delegated decision-maker. The court rejected the City's argument that it lacked the ability to direct Pattison with respect to the Ads and accepted that a contested factual issue existed regarding the degree of the City's involvement. Applying the framework from Hryniak v. Mauldin, 2014 SCC 7, and Dakota Ojibway Child and Family Services et al. v. MBH, 2019 MBCA 91, the court found that the City, as the moving party, had filed little evidence in support of its motion and had been further disadvantaged by being unable to rely on two of the transcripts it sought to introduce. The court also noted that even if the City did not direct Pattison regarding the Ads, the City's own decision not to become involved could itself attract Charter scrutiny — a question the court found was not suitable for summary disposition, particularly given the caution expressed in Shell v. Barnsley, 2006 MBCA 133, that complex Charter issues should not be decided on summary judgment.

Ruling and overall outcome

The court dismissed the City's motion for summary judgment. Justice Grammond held that the question of whether Pattison was acting as the City's agent or delegated decision-maker at the material time, and the related question of whether the refusal to run the Ads attracts Charter scrutiny, both require a trial for resolution. The plaintiff, Richard Thain, was the successful party on the motion. Costs were not determined in this decision; the court noted that if costs cannot be agreed upon, counsel may request an appearance to make submissions. No monetary award was granted or ordered in connection with this motion.