913719 Ontario Ltd. v. Mississauga (City)

913719 Ontario Ltd. v. Mississauga (City) Collection Decisions of the Court of Appeal Date 1998-07-21 Docket numbers C25283 Judges Morden, John Wilson; Brooke, John Watson; Charron, Louise Vivianne Subject Civil Decision Content DATE: 19980721 DOCKET: C25283 COURT OF APPEAL FOR ONTARIO RE: 913719 ONTARIO LIMITED, carrying on business as ADULTS ONLY VIDEO (Applicant/Appellant) v. THE CORPORATION OF THE CITY OF MISSISSAUGA (Respondent) BEFORE: MORDEN A.C.J.O., BROOKE and CHARRON JJ.A. COUNSEL: E. Marshall Green and Esther Armchuk-Ball for the appellant G.H. Rust-D'Eye and Barnet H. Kussner for the respondent HEARD: June 26, 1998 ENDORSEMENT [1] The appellant has not persuaded us that the judge of first instance erred in his disposition of the application to quash the by-law. We shall, very briefly, address each of the appellant's submissions. 1. Statutory Authority for the By-law [2] The appellant submitted that s. 225 of the Municipal Act, R.S.O. 1990, c.M.45, under which the by-law was purportedly passed, permitted the municipality to create from "adult entertainment parlours" (the term in the statute) a class which it called "adult video stores" but that did not permit what it submitted is the sub-classification in this case for licensing purposes. [3] This submission involves treating a video store that provides any adult videos, no matter how small a part of the whole, as an adult video store. We disagree. We think that it was open to the municipality to define, as a class of adult entertainment parlours, video stores whose principal business is to provide adult videos. We do not think that there is any valid reason for treating this as a sub-class of general video stores which provide, incidentally, some adult videos. [4] On the argument before us, the respondent brought to our attention the addition to the licensing powers in the Municipal Act enacted by S.O. 1996, c.1 Schedule M, s. 22. It submits that if s. 225 did not give the requisite authority for the by-law it is now clearly provided for in this amendment. The amendment came into force on January 30, 1996 after the judge had heard the parties' submissions and before he gave his judgment. He did not refer to it in his reasons. In view of our conclusion set forth above, it is not necessary to consider this submission. 2. Unfair Discrimination [5] The appellant's argument on this issue is the same as that relating to lack of statutory authority. The appellant submitted that it is unfairly discriminatory to create a sub-category of video store to which the by-law will apply. We do not think that there is any discrimination of a vitiating nature. The video store whose principal business is to provide adult videos singles itself out as a class of adult entertainment parlour. By singling itself out in this manner, by its choice of business, it becomes subject to the operation of the by-law which is clearly authorized by the statute. 3. Vagueness [6] In our view, the by-law is sufficiently clear to enable every reasonably intelligent retailer to understand it in order to comply with it. We do not think that a retailer would have any real difficulty understanding that where his or her principal business is to provide adult videos that the business is subject to the terms of the by-law. [7] We think that the definition of "adult videotape" together with the definition of "specified sexual activities" and "specified body parts" is sufficiently clear. The subsidiary definition of "adult videotape" which turns on the classification of a videotape by the Ontario Film Review Board "in the absence of evidence to the contrary" is also sufficiently clear. The "evidence to the contrary" would take its meaning from the main definition of "adult videotape". 4. Improper Sub-delegation [8] The submission under this heading is based on the vagueness argument. The appellant submits that the by-law is so vague that the ultimate effect is to delegate, improperly, the decision- making power to the enforcement officer. In view of our conclusion respecting the vagueness argument, this argument too must fail. 5. Lack of Good Faith [9] In our view the evidence falls considerably short of supporting a finding in favour of the appellant on this ground. 6. Intrusion into Federal Authority [10] The appellant abandoned this ground of challenge. 7. Violation of s. 2(b) of the Charter [11] Section 2(b) of the Charter should be given a wide interpretation and, accordingly, we think that the activities of the appellant fall within the scope of its protection. [12] The question is whether there has been an infringement of the section. The onus is on the appellant to establish its complaint that the exercise of its freedom of expression under conditions different from those of other persons exercising the same freedom of expression constitutes an infringement of its s. 2(b) Charter right. We do not think that it has shown on a balance of probabilities that these different conditions inhibit it from exercising its freedom of expression. The appellant conceded that s. 225(3) of the Municipal Act, which authorizes the defining of areas in which adult entertainment parlours, or any classes thereof, may or may not operate, is constitutional. No infringement has been made out. It is not necessary to consider s. 1 of the Charter. 8. The Cross-Appeal [13] The municipality served a notice of cross-appeal in which it sought an order setting aside the conclusion of the judge of first instance that the by-law was discriminatory with respect to the licensing fee imposed under it. The matter was not addressed in its factum. Before us the municipality submitted that by virtue of s. 257.2(3) of the Municipal Act, enacted in the 1996 legislation referred to above, the question of the validity of the licence fees is now "moot". Having regard to this, the cross- appeal should be dismissed. 9. Disposition [14] The appeal is dismissed with costs. The cross-appeal is dismissed without costs.