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Court protects freedom of speech in land development dispute

September 13, 2013

Court of Appeal upholds freedom to lawful and peaceful expression

In Detlor v. City of Brantford, the Ontario Court of Appeal has struck out portions of two by-laws that breached freedom of expression.


The Haudenosaunee Development Institute (HDI) was created by the Haudenosaunee to regulate development on unsurrendered lands in the Haldimand Tract. The HDI asked that developers obtain its approval and pay fees to it before proceeding with their projects.

The HDI and its supporters took direct action against developers who did not comply with these demands regarding certain parcels of land within the City of Brantford. In response, in May 2008, the City of Brantford passed two by-laws which prohibited interferences with development and construction on private property in Brantford, and prohibited the imposition of unauthorized fees and other conditions on development in the City.

The City also sought an interlocutory injunction to restrain the HDI and its supporters from engaging in the activities prohibited in those bylaws. At the hearing for the injunction, the HDI and two other individuals applied unsuccessfully to quash the two by-laws on administrative and constitutional grounds. The trial judge granted the injunction, finding that the bylaws were in compliance with the open meeting requirement in s. 239 of the Municipal Act, 2001, were not passed in bad faith, and did not violate s. 91(24) of the Constitution Act, 1867, or s. 2(b) or s. 15 of the Canadian Charter of Rights and Freedoms.

The Court of Appeal’s Decision

HDI appealed that decision, and the Court of Appeal allowed the appeal in part. While the Court agreed with the trial judge that the by-laws did not violate s. 15 of the Charter, it held that certain aspects of the two by-laws breached the appellants’ freedom of expression. As a result, the blanket prohibitions in the by-laws on the posting of signs on or around designated streets, as well as the sending of invites or requests were struck out.

Whether the Haudenosaunee had a claim over land within the City of Brantford was not at issue in this appeal. However, the decision served to protect the appellants’ freedom to lawfully and peacefully express themselves in advancing their rights.


Jessica Orkin

Practice Areas

Aboriginal Law, Appeals & Judicial Review, Constitutional Law