Ontario Divisional Court: decision to remove “offensive” bus shelter ads and city’s refusal to intercede not subject to judicial review

  • May 22, 2020
  • Christopher Wirth and Shamim Fattahi

In People for the Ethical Treatment of Animals, Inc. v. City of Toronto, 2020 ONSC 2356, the Ontario Divisional Court dismissed an application for judicial review of a media company’s decision to remove an animal advocacy group’s bus shelter advertisements targeted against Canada Goose and the city’s refusal to compel the reposting of the ads under its lease contract.


In August 2018, People for the Ethical Treatment of Animals, Inc. entered into an agreement with Astral Media Outdoors L.P., pursuant to which Astral agreed to display PETA’s advertisements on four bus shelters. These ads were part of PETA’s publicity campaign against the coat manufacturer, Canada Goose, and included the words “Boycott Canada Goose”. PETA’s agreement explicitly gave permission to Astral to remove any material it deemed unacceptable, contrary to its trade policies, or in violation of any laws, subject to providing PETA with a refund.

Astral built, owned and maintained the bus shelters, having contracted with the City of Toronto to lease the space for building the shelters, while providing the city with a percentage of its advertising revenues. Astral’s agreement with the city required it to comply with certain advertising standards to not post ads that were “offensive to the public on religious, racial or other grounds”, and to allow the city to review ads that Astral was concerned may not comply with the requirements. This agreement also permitted the city to direct Astral to remove prohibited or offensive ads. However, this agreement did not give the city any power to compel Astral to post ads of a particular company or to review Astral’s decision not to post advertising.

On the same day that the ads were posted, Astral notified PETA that it had removed them after receiving a complaint from Canada Goose. The city was not involved in Astral’s decision to remove the ads. It only became aware of the issue after it received a letter from PETA requesting that it direct Astral to run the ads. The city declined to do so, stating that it could not determine that any actions taken were not in compliance with applicable law.

PETA then brought an application for judicial review of Astral’s decision to remove the ads and the City’s decision not to compel Astral to repost them.

Divisional court decision

PETA and the intervenor, Animal Justice Canada, argued that the respondents – Astral and the city – had breached a duty of procedural fairness owed to PETA because it was not notified before the ads were removed. They also argued that PETA’s rights to free expression under s. 2(b) of the Charter had been breached. PETA asked for an order in the nature of certiorari and mandamus requiring Astral or the City to repost the ads.

In response, the city and Astral argued that their decisions were not subject to judicial review because they arose from a private contract between PETA and Astral. They also argued that no Charter rights were engaged due to the private nature of the dispute, and in the alternative, that there had been no breach of procedural fairness.

The court held that the decisions at issue were not subject to judicial review and that it did not have jurisdiction over the disputes between the parties. The court dismissed the application.

In reaching this conclusion, the court applied the principles set out in Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26, which limited the availability of judicial review to where there is an exercise of state authority that is of a sufficiently public character. The court also applied the test set out in Air Canada v. Toronto Port Authority and Porter Airlines Inc., 2011 FCA 347, which had considered the factors relevant to determining whether a dispute falls within the scope of public law such that it can be subject to judicial review. The court rejected Animal Justice’s arguments that these principles and this test had no application here because Charter rights were at issue. Rather, the court determined the first threshold issue was whether the case could proceed as an application for judicial review.

Applying the Air Canada factors, the court concluded that Astral’s decision did not have a sufficiently public character to make it susceptible to judicial review. In particular, the matter was essentially a private contractual dispute between Astral and PETA. The court distinguished cases in which advertising on public buses had been found to be subject to s. 2(b) of the Charter from the instant case, as PETA was challenging a decision made under a private contract rather than a municipal policy, and the bus shelters displaying the ads were owned and managed by Astral despite being located in public places. Further, Astral was a private corporation, which did not function as the city’s agent nor as a part of government and its decision to remove the ads was not based on a law. Astral was not exercising any kind of state compulsory power when it removed PETA’s ads, and public law remedies were not appropriate in this case. Astral’s decision also did not fall into the “exceptional category” of decisions that “have a very serious, exceptional effect on the rights of a broad segment of the public” such that they would be of “great public moment”.

The court also concluded that for many of the same reasons, the city’s decision to decline to require Astral to repost the ads was not subject to judicial review. There was no contractual or other legal relationship between PETA and the City; the matter was simply a contractual dispute between PETA and Astral, which the City had declined to intercede in. The City’s involvement in the dispute was not related to its public responsibilities, and under its contract with Astral, it had no power to compel Astral to repost the ads.  


As this case demonstrates, where the decision in question was made pursuant to a private agreement, it will not be subject to judicial review even when it relates to the use of public property if the character of the matter is essentially a private commercial dispute.

Christopher Wirth is a Partner and Shamim Fattahi is an Articling Student at Keel Cottrelle LLP.