Ruling says blight on bucolic landscape outweighs minimal impairment on freedom of expression
A ban on trailer ads that blights pristine rural vistas in the Municipal District of Foothills may infringe Charter rights but is a permissible restriction, says a decision by Alberta's top court.
The Court of Appeal for Alberta last week upheld a lower court ruling that a ban on trailer ads in Foothills impairs a constitutionally protected form of freedom of expression but met the test for being an acceptable restriction.
In a unanimous decision, a three-member court of appeal panel said Alberta Court of Queen’s Bench Justice Nick Devlin did not err when he found the municipality was entitled to pass its bylaw banning the advertising form, in a judgment released in September 2020.
“The prohibition in the consolidated land use bylaw seeks to improve the visual aesthetic of the municipality and does so by placing a restriction on the use of one type of medium for outdoor signage without creating any limits on the content of signs,” ruled Madam Justice Barbara Lea Veldhuis, writing for the three-judge panel.
“We agree with the respondent that freedom of expression protects the messages on signs, which the appellants are permitted to erect subject to obtaining the necessary approvals, but it does not protect the parking of trailers, the strapping of vinyl to steel, or the ability to make money.”
Emily Shilletto, an associate with Dentons Canada in Calgary, who acted along with partner Sean Fairhurst on behalf of Foothills municipality says the appeal court agreed that the infringement was a reasonable restraint on freedom o expression. “The prohibition is rationally connected to the objective, and the prohibition is minimal in impairing the particular freedom of expression in this instance.”
She adds that there is no restriction on the content of these ads, and plenty of other options for displaying these ads are still available to those who want to erect them.
Fairhurst notes that "in the context of outdoor advertising, the decision adds to the growing body of jurisprudence from which municipalities and advertisers alike can draw guidance." In this case, the decision affirms that Foothills County Council got the balancing act right. They successfully balance the objective of limiting visual pollution and the individual and commercial constituents' freedom of expression - not easy but they did it."
“Citizens have a right not to be visually ‘shouted at’ by signs at every turn,” Justice Devlin wrote in the original decision. “Controlling the time, place and volume (in all its meanings) of advertising is a core quality-of-life issue.”
He added the municipal was within its rights to consider the effect of the signage on the overall well-being of its citizens, and what impact it had on the bucolic landscape heading into the Rockies.
“A vista of blue skies over golden Prairies, rolling into foothills beneath the front range of the Rocky Mountains, grace the highways of southern Alberta,” Justice Devlin wrote, pointing out that “a brace of disused semi-trailers, adorned with large vinyl advertising banner,” disfigures that landscape.
“I find that the limit on the right to freedom of expression is not disproportionate to the benefit that the bylaw secures for Foothills and its residents. The limit is justified in a free and democratic society.”
He added that “protection of the community’s visual environment is a pressing and substantial objective sufficient to justify a limit on individual rights of expression.”
He noted the signs in question are large. “They compare in overall size to traditional highway billboards. Their visual impact is very real indeed, that is the very premise upon which they operate.”
Justice Devlin also wrote that the original management of Spot Ads, the company that owned the trailer ads, “openly acknowledged that vehicle signs are aesthetically challenged.” The company’s former managing partner wrote a letter that “[w]e would agree with you that our trailer billboards do not look good.”
The current owners of Spot Ads refuted this statement, saying their trailers are neat, in good condition, and no more or less attractive than other forms of signage. But Justice Devlin said, “it is sufficient to observe” the former managing partner acknowledged “signs attached to repurposed semi-trailers are qualitatively different from purpose-built advertising signage.”
The appellants had argued that Justice Devlin erred by differentiating between billboard signage and the ads placed on stationary trailers in high visibility areas along highways. But the appeal court panel disagreed.
“There is no question that there are actual physical differences between vehicle signage and billboard signage or other purpose-build signage,” the appeal court panel ruled. “Whether those differences are material was for the chambers judge to decide on the evidence.”
The panel added: “The appellants have not demonstrated a palpable and overriding error in the chambers judge’s conclusion that vehicle signage is less aesthetically pleasing than purpose-built signage, they are merely asking this court to substitute the chambers judge’s conclusion for their own.”
Foothills municipality passed a bylaw in 2019, explicitly banning vehicle signs, after receiving complaints about them being a visual blight. Justice Devlin said the municipality finds “their presence is dissonant, distracting and degrading to the rural aesthetics that are a social and economic cornerstone of their community.”
The bylaw defines “vehicle signs” as a sign “that is mounted, affixed or painted onto an operational or non-operational vehicle.” The list includes, but is not limited to, trailers with or without wheels, sea containers, wagons, motor vehicles, tractors, recreational vehicles, mobile billboards, or any similar mode of transportation that is left or placed at a location visible from a highway.
Justice Devlin had also rejected arguments that the bylaw was arbitrary because the municipality was inconsistent with its approach by allowing derelict trailers on properties, but not ones with signs on them.
“Trailers with and without signs are not equivalent. A disused trailer is a lump of metal. A trailer with a sign on it is a shout-out to passers-by; its object is to catch the eye and garner attention,” Justice Devlin wrote.
The appeal court also noted that the bylaw prohibition on vehicle signs is not a total ban. “There is no question that there are several other signage options available to the appellants or others who want to express political, religious, commercial or any other type of views outside on rural property: billboards, fascia signs attached to buildings, free standing signs, roof signs, and even portable signs.”
Additionally, the appeal court wrote, “there is an exception for certain types of vehicle signage – those on registered and operational motor vehicles or trailers used on a regular basis for the normal operation of the business, which contains advertising for the business for which the vehicle is being used.
Finally, the panel noted that vehicle signage is permitted on roads that do not constitute a “highway” under the consolidated land-use bylaws.
Shilletto at Dentons says that the decision applies directly to the particulars of the case, it will provide judicial guidance to municipalities who have similar bylaws or want to pass them.
She adds that the protesters against vaccine mandates, and those taking part in recent truck convoys, argue that their rights to free speech are being violated. "But this decision highlights that Section 1 of the Charter can place restrictions on those rights if they are reasonable and provide a balance to the rights of others."
The rights cited in the Charter “aren’t blanket rights,” she says. “There can be checks and balances placed on those rights in certain circumstances through Section 1.”
Shilletto's colleague Fairhurst said this decision serves to remind us of the existence and importance of Section 1. Individual rights are not sacrosanct, they are violable and subject to reasonable limits."
He adds that the "very purpose of Section 1 of the Charter is to effect a balance between an individual's rights and the interests of society."
