Case In Point
Ontario Court Confirms that “Location Matters” in Charter Claims
Date: December 8, 2017
In Thain v. Pattison Outdoor Advertising LP, the Ontario Superior Court of Justice stayed an Ontario resident’s freedom of expression claim under the Canadian Charter of Rights and Freedoms (Charter), finding that the Court lacked jurisdiction over the subject matter of the litigation and that “[t]he interests of justice overwhelmingly favour Manitoba as the appropriate and most closely connected jurisdiction.”
In an area of law that is often portrayed as complex and unpredictable, Justice Beaudoin’s decision serves as a concise application of the test set out by Supreme Court of Canada in Club Resorts Ltd. v. Van Breda, which governs whether a court in Ontario should assume jurisdiction over a foreign defendant.
The plaintiff, who resided in Ontario, sought to run advertisements on Winnipeg Transit buses describing “the public funding of religious school in Ontario and Alberta [as] an international human rights embarrassment, a financial disaster and moral disgrace.” He wanted these advertisements to run on buses that followed routes close to the newly opened Canadian Museum for Human Rights.
Winnipeg Transit, which operates the public bus service in the City of Winnipeg, had contracted out the provision of bus advertisements to Pattison Outdoor Advertising LP (Pattison). The contract provided Pattison with the exclusive right to sell and place advertising materials on Winnipeg Transit buses. Any advertising was to be guided by the Canadian Code of Advertising Standards.
After entering into a contract with the plaintiff in Ontario, Pattison ultimately decided against placing the advertising on Winnipeg transit buses and fully refunded all monies that the plaintiff had paid. In response, the plaintiff commenced an action against Pattison for breach of contract and against both Pattison and the City of Winnipeg for a breach of his right to freedom of expression under the Charter.
First, Justice Beaudoin considered whether the court had jurisdiction simpliciter over the defendants. He found it did not given the City of Winnipeg’s location and operations in Manitoba. Justice Beaudoin rejected the plaintiff’s reliance on having allegedly suffered damages in Ontario, citing the Supreme Court of Canada’s concern that “place of damage” as a presumptive connecting factor would risk “sweeping into that jurisdiction claims that have only a limited relationship with the forum.”
Justice Beaudoin further rejected the plaintiff’s attempt to rely on his contract with Pattison as a connection to Ontario. He held that the more relevant contract was that between Pattison and the City of Winnipeg which was formed in Manitoba and governed by its laws.
The Court went on to consider forum non-conveniens and whether the action ought to be stayed in any event based on the finding that another jurisdiction would be a more appropriate forum. Justice Beaudoin held that it should, based on the key facts and issues in dispute which pointed to Manitoba as the appropriate forum.
An analysis of Charter rights is contextual and the Supreme Court had previously held that the specific location of proposed advertisements is important in determining whether freedom of expression rights have been breached. Justice Beaudoin accepted Pattison’s argument that this consideration also applied to the place in which an action is commenced, and cited authorities indicating that freedom of expression cases were decided in the province and location where the alleged breach took place. He held that the reasonableness of limits on the plaintiff’s freedom of expression in Manitoba would best be determined in that province.
Pattison was successfully represented by Hicks Morley’s Andrew J. McCreary.