|
Charter - Agency. Christian Heritage Party of Canada v. Hamilton (City) [where agent involved in decision]
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”)".
This case involved "the City’s advertising agent" making an initial denial of the advertisement (followed later by a direct City decision) - which gave rise to consideration of the role of the agent's decision in the case, especially in an administrative context. Generally in law the decision of a legitimate agent will be viewed as the decision of the principle, so that gives rise to the novel issue of agency in this Charter context:b. The decision under judicial review was that of the City
[27] As set out above, the Divisional Court did not treat the initial communication from OutFront as a “decision” for purposes of the judicial review.
[28] According to the appellants, however, the Divisional Court erred in law and made palpable and overriding errors of fact by dismissing OutFront’s involvement and what CHP referred to as the “original decision” as irrelevant. The appellants submit that the Court ignored a crucial portion of the history of the proceedings, thus undermining the rest of the Court’s procedural fairness and reasonableness analysis. By refusing to consider OutFront’s initial response to the Advertisement, the appellants argue that the Divisional Court erred in attempting to divorce the City’s decision from the history of the proceedings dating back to January 2023. The appellants rely on the majority’s statement in Vavilov that, “[t]he review of an administrative decision can be divorced neither from the institutional context in which the decision was made nor from the history of the proceedings”: at para. 91.
[29] The City argues that CHP’s initial interaction with OutFront Media is not relevant to CHP’s judicial review application. Per CHP’s Notice of Application, the decision under review was the City’s decision to reject the Ad on July 6, 2023. The City, which underscores that it was not even aware of CHP’s communication with OutFront at the time, made its own independent decision and is the “final arbiter”.
[30] In my view, the Divisional Court did not err by focusing on the Decision Letter from the City as the decision under review.
[31] That does not mean, however, that CHP’s correspondence with OutFront is irrelevant. As the appellants’ correctly note, the history and context of a decision under review may well be relevant. For example, had the City undertaken no separate inquiry, and simply affirmed OutFront’s view that the proposed Ad was inconsistent with CCAS, then OutFront’s initial response to CHP could have been a key consideration on review. However, that is not what occurred. The City did not affirm OutFront’s reliance on CCAS. Instead, the City undertook its own process to decide that the Advertisement should not be accepted. That process and determination were properly the focus of the judicial review application.
[32] I would reject the appellants’ argument that the Divisional Court erred in the description of the decision on review by focusing on the City’s Decision Letter, and dismissing OutFront’s involvement.
|
