September 16, 1998

To:Chairman and Members, Etobicoke Community Council

From:Bruce Ashton, P.Eng., Director of Building & Deputy Chief Building Official, West District

Subject:Etobicoke Sign By-law - Third-Party Signs and Variance Notification Process

Purpose :

This report responds to the July 22, 1998 request of Etobicoke Community Council for the Deputy Chief Building Official, Etobicoke District, regarding:

(i)the feasibility of an outright ban on third party signs in Etobicoke District; and

(ii)whether the public should be notified as part of the sign variance application procedure.

Funding Sources, Financial Implications and Impact Statement:

None.

Recommendations:

It is recommended that:

1)Etobicoke Community Council not consider, at this time, any amendment to the Sign By-law which would provide for an outright ban on third-party signs in the Etobicoke District; and

2)Etobicoke Community Council not amend the sign variance procedures respecting a public notification process for sign variance applications.

Council Reference/Background/History:

At its meeting held Wednesday, July 22, 1998 the Etobicoke Community Council received a deputation from Mr. C. Williams, Aird & Berlis, Solicitors for Urban Outdoor Trans Ad, appealing a decision of the Sign Variance Advisory Committee refusing the subject variance.

Etobicoke Community Council :

(1)supported the recommendation of the Sign Variance Advisory Committee and staff refusing an application by Urban Outdoor Trans Ad for a variance to the Sign By-law to permit the installation of a Standard Outdoor Advertising (third party) ground sign on a railway right-of-way at 2182 Islington Avenue; and

(2)requested the Deputy Chief Building Official, Etobicoke District, to submit a report to the Etobicoke Community Council with respect to:

(i)the feasibility of an out-right ban on third-party signs in the Etobicoke District; and

(ii)whether the public should be notified as part of the sign variance application procedure.

Comments and/or Discussion and/or Justification:

1.0Outright Ban on Third-Party Signs:

Etobicoke Community Council has requested a report on the feasibility of an outright ban on third-party signs in Etobicoke. It is my opinion that the appropriate direction for Community Council relates to the possible contravention of the Canadian Charter of Rights and Freedoms of a municipal by-law which would prevent signs from being used for advertising purposes within the municipality. The Charter generally applies to the regulation of signs in the following manner:

1.1The Constitution of Canada, which was amended in 1982 to provide for the addition of the Canadian Charter of Rights and Freedoms, is a supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is to the extent of the inconsistency, of no force or effect.

1.2The freedom of thought, belief, opinion and expression, including the freedom of the press and other media of communication, is guaranteed to every person. All legislation including municipal by-laws must respect this provision.

1.3The Charter also states that the provisions of the Charter are subject to reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. This means that legislation infringing on the Charter may be legitimate provided that it can justify the infringement.

1.4The Supreme Court of Canada has set out points to consider in determining whether an infringement of a protected right of freedom is acceptable:

1.4.1The Government legislative objective must be of sufficient importance to warrant overriding a constitutionally protected right or freedom;

1.4.2The legislative means chosen to achieve that sufficiently important objective must be reasonable and demonstrably justified and must relate to the concerns that are pressing and substantial in a free and democratic society; and

1.4.3The means chosen to achieve the objective must be proportionate to the objective and that it must be rationally connected to the objective, it must impair as little as possible the right of freedom in question, and the more severe the effect of the limits are the more important the objective must be.

Any challenge to the Sign By-law on the basis that the by-law infringes upon the constitutional right of freedom of expression would be put to the test noted above.

In determining whether the municipality's objectives of regulating or prohibiting signage is sufficiently important, the following municipal objectives have passed the test of the Courts:

a)To designate land use by restricting the form and content of signage within various zones to ensure the orderly development of commercial, residential, institutional and related uses;

b)To prevent damage to public property and preserve aesthetic value;

c)A concern for visual aesthetics, light and litter;

d)A concern for traffic and safety hazards.

The most difficult part in applying the test noted above is to justify the degree to which regulations or prohibition is occurring with respect to the objective that a person's right to freedom of expression must be impaired as little as possible.

Outright prohibition of any form of signage will be very difficult to justify as the Courts are reluctant to find outright prohibition is the least restrictive means of accomplishing a municipal objective.

Recent Supreme Court findings in Burlington and Stoney Creek, relating to mobile signs, support this opinion. The Stoney Creek Sign By-law which prohibited mobile signs lost on this argument, whereas the City of Burlington Sign By-law was upheld due to a finding of reasonable and clearly stated municipal objectives as the basis for the regulations.

Urban Planning and Development Services Department recognizes the harmonization of the former municipal sign regulations as a high priority initiative. The development of a Sign By-law for the City of Toronto will include the recognition of the applicable constitutional rights and freedoms and will provide the opportunity for full review and comment by the public, industry representatives and elected officials.

2)Public Notification:

Section 210, Article 146(e) of the Municipal Act requires that the City provide two weeks notice and conduct a public meeting respecting the passing of a by-law governing signs. There is no requirement, in this regard, for a minor variance to the sign regulations being considered by the City.

The former City of Etobicoke Council appointed members from the general public to act as their representatives on the Sign Variance Advisory Committee to decide on minor sign variance applications. In the performance of this duty, all members act as representatives of the public. In addition, in deliberating on applications, the Sign Variance Advisory Committee requests and receives staff input and recommendations with respect to each variance application. Both the Sign Variance Advisory Committee and staff are to consider each variance in respect of the intent and purpose of the sign regulations. In the past, staff have also made recommendations based on consideration of the effect of signs on any adjacent residential uses. This practice will continue.

In considering a public notification, as part of the sign variance application process, assessment of the benefits received versus the direct costs and additional staff /Committee workload imposed by the notification process should be made. Currently, with budgeted staff reductions, significant organizational change ongoing within the Department, and no automated public notification system in place, in my opinion, the public notification process should not be considered at this time.

Conclusions:

The Sign By-law regulation of third-party signs is generally satisfactory as it stands since it is not prohibiting these signs. Community Council will have an opportunity to review and comment on the proposed new sign regulations soon to be undertaken by the staff.

The introduction of public notification as part of the sign variance procedure is not recommended at this time but could be introduced once automated systems are in place and the benefits of the process are established as cost effective.

Contact Name:

Bruce Ashton, P.Eng.Tel: (416) 394-8006

Fax: (416) 394-8209

Bruce Ashton, P.Eng.

Director of Building & Deputy Chief Building Official

West District

Urban Planning and Development Services