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Report to Rapport au:

Transit Commission Commission du transport en commun 20 May 2015 / 20 mai 2015

Submitted on May 7, 2015 Soumis le 7 mai 2015

Submitted by Soumis par: Kent Kirkpatrick, City Manager / Directeur municipal

Contact Person Personne ressource: John Manconi, General Manager / Directeur général, Transit Services / Services du transport en commun 613-842-3636 ext./poste 2111, [email protected]

Ward: CITY WIDE / À L'ÉCHELLE DE LA File Number: ACS2015-CMR-OCM-0011 VILLE SUBJECT: REVIEW OF OC TRANSPO ADVERTISING STANDARDS

OBJET: EXAMEN DES NORMES DE PUBLICITÉ D’OC TRANSPO

REPORT RECOMMENDATION

That the Transit Commission receive this report for information.

RECOMMANDATION DU RAPPORT

Que la Commission du transport en commun prenne connaissance de ce rapport.

BACKGROUND

At its meeting of October 16, 2013, the Transit Commission passed the following motion directing staff to review the OC Transpo Advertising Standards: 2

Be It Resolved That the General Manager of Transit Services together with the City Clerk and Solicitor review the Advertising Standards for OC Transpo to ensure they comply with recent case law, and to recommend any required amendments, particularly regarding the internal review process, the dispute resolution procedure, and other administrative processes contained in the Standards.

Staff of Transit Services and Legal Services have reviewed relevant court decisions, the Canadian Code of Advertising Standards, and the practices of other transit agencies. Based on the review, and as outlined in this report, no amendments to the Advertising Standards are required or recommended at this time.

The OC Transpo Advertising Standards form part of the contracting processes used when people or organizations wish to purchase advertising space on OC Transpo buses, shelters, and benches or at stations. All processes for advertising on OC Transpo are administered by three contractors: Pattison Outdoor Advertising for buses and stations, Clear Channel Outdoor Advertising for shelters and Creative Outdoor Advertising for benches.

The OC Transpo Advertising Standards (attached as Document 1) were last amended by Council in 2009 in order to bring them up to date with the Canadian Code of Advertising Standards and a 2009 Supreme Court of decision addressing advertising on public transit systems. The following changes were made at that time:

1. To specifically provide that the City is guided by the general principles of the Canadian Code of Advertising Standards in determining the acceptance of advertising; 2. In keeping with the Canadian Code of Advertising Standards, a more detailed prohibition on advertising containing personal discrimination was added in section 3; 3. The prohibition in section 4 against ads advocating a political point of view was repealed, in keeping with an earlier decision by City Council on April 13, 2005. Likewise, the prohibition against religious advertising was also removed from section 5. Instead, these two sections were combined and simplified to allow advertising of any kind, including that of a political or religious nature, provided that it conforms to accepted advertising standards, including the Canadian Code of Advertising Standards. The requirement that political advertising indicate that the ad is paid for by a party or candidate was kept, however, so as to avoid the impression that the City is supporting a given party or candidate; 3

4. A new section 7 was added, taken from the Canadian Code of Advertising Standards. It contains "safeguards" which protect against unacceptable depictions or portrayals in advertisements; 5. Section 9 was clarified to reflect that the City's contractors shall deal with potential advertisers directly and that advertising matters will be referred to staff only if there is a disagreement that cannot be resolved between advertisers and the contractors; and, 6. In addition, the implementation of the key considerations in the decision-making, noted below, assist in ensuring that considerations arising from the Canadian Charter of Rights and Freedoms are included in the approval process for potential religious advertising as well as any other advertising.

Key Factors for Consideration in Approval of Ads

Based on the Canadian Code of Advertising Standards as well as relevant case law related to the Canadian Charter of Rights and Freedoms, the following Key Factors were implemented in 2009, to be taken into consideration in the approval process for advertising undertaken by the City's contractors and by City staff to assist in evaluating ads that might be perceived as being offensive or otherwise unacceptable:

 Is the proposed advertisement consistent with Council's goals of providing a safe and welcoming transit system, and of increasing use of transit for travel in Ottawa?  Is the proposed advertising offensive in the sense that it is intended to be insulting or disgusting or meant to give offence or cause insult to what the prevailing sense of what is decent or moral? Is the ad likely to be offensive to a contemporary Canadian community, rather than to a few individuals? Would a refusal of the ads be reasonable based on all relevant factors, including past advertisements, feedback from the public, and the nature of the transit-using population including its religious and cultural make-up?

DISCUSSION

Relevant Case Law

A review of recent court decisions shows that the 2009 Supreme Court of Canada decision in the matter Greater Transportation Authority v. Canadian Federation of Students et al, remains the leading case in the area of justifiable limits on freedom of expression in relation to advertising on government property. That case was 4 considered, reviewed, and significantly informed the 2009 amendments to the OC Transpo Advertising Standards. (The Transportation Authority was the former legal name of TransLink, the transit agency for Metro Vancouver. TransLink is now legally the South Coast Transportation Authority.)

The Supreme Court of Canada, in this case and in previous cases, has confirmed that commercial expression such as advertising benefits from the protection of freedom of expression found in Subsection 2(b) of the Canadian Charter of Rights and Freedoms (the Charter), which addresses the freedoms of thought, belief, opinion and expression. As noted in the staff report in 2009, the City’s actions are subject to scrutiny by the courts with respect to any infringements that these actions cause to Charter rights and freedoms. Pursuant to Section 1 of the Charter, a government’s actions which are found to limit or restrict a freedom guaranteed by the Charter are only acceptable (or “saved”) if such limits are reasonable, prescribed by law, and demonstrably justified in a free and democratic society. Further tests have been developed by the Supreme Court to see if a government’s infringement of a fundamental freedom is justified: the governmental action must have a sufficiently important objective so as to justify the infringement, and, the infringement must be proportional to this objective. In order to be proportional, the infringement must be rationally connected to the objective, must have as minimal impact as possible on the right or freedom, and the consequences of the infringement must not outweigh its benefits. It should be noted that expressive activities which promote violence or discrimination, are obscene, or which are abusive or involve damage to the public property, for example, are not covered by the Charter and thus would not benefit from its protection.

The 2009 Greater Vancouver Transportation Authority case found that transit authorities’ complete ban on political advertising was an unjustifiable infringement on the freedom of expression as the complete ban was not rationally connected to the purpose of providing a safe public transit system, nor was it proportional or minimally impairing. In that case, the Supreme Court made it clear that expressions such as advertisements could be justifiably restricted by a public transit authority in narrow circumstances, such as where the ads are offensive or discriminatory, or where they advocate violence, such that the objective of providing a safe public transit service is undermined. The Court also specifically noted that the Canadian Code of Advertising Standards could be used as a guide to assist in establishing reasonable limits on advertisements.

Since 2009, a number of court decisions have considered the Supreme Court of Canada’s decision in the Greater Vancouver Transportation Authority. A number of 5 cases addressing the occupation of public property for reasons of protesting have applied the principles of the 2009 case. No significant cases involving advertising on public transit authority proprieties have arisen, and the 2009 Supreme Court case remains the leading case in this area.

Review of Other Public Transit Authorities

OC Transpo’s advertising program and existing advertising policy are a reflection of its suitability and consistency with comparable agencies. In completing this review, OC Transpo staff canvassed the advertising policy or approach by the following transit authorities: BC Transit, TransLink, Edmonton, Calgary, Toronto (TTC) and Boston (MBTA).

This review found similarities across all transit authorities in terms of what is deemed appropriate advertising content:

 Advertising must comply with all applicable laws and standards, including the Canadian Charter of Rights and Freedoms and the Canadian Code of Advertising Standards. Boston’s MBTA is required to comply with equivalent American laws and standards;  Prohibition of ads which feature a tobacco company or tobacco brand promotions, including sponsorship or promotion of cultural or sporting events on facilities, shelters or benches;  Permitting political and/or religious advertising so long as it indicates the group, party or candidate who is paying for the advertising; and,  Prohibiting any ads that disparage a public transit system or transit in general.

In a review of other transit agencies it was clear that no single best practice exists, while all have similar approaches in complying with existing laws and national standards.

BC Transit:

BC Transit, a provincial agency, provides transit services to numerous communities across British Columbia, including small towns and larger urban centres. BC Transit is responsible for determining the appropriateness of advertising in these service areas. BC Transit's advertising policy relies almost exclusively on the Canadian Code of Advertising Standards. The policy, however, does elaborate in one specific area as it relates to the advertising of alcohol. In these cases, the policy requires that a 6 designated portion of the advertisement must include a visible statement around social responsibility in relation to alcohol consumption.

TransLink:

As an independent transportation authority, TransLink is not a part of any one of the 21 municipalities that make up Metro Vancouver. As such, it is not a common practice to notify local or municipal officials of advertising campaigns, even relatively controversial ones. All municipalities in Metro Vancouver have their own advertising channels (bus shelters, bus benches, street panels, etc.) which are owned and run by private companies (CBS Outdoor or Pattison Outdoor). These private advertising companies can refuse any advertisement for any reason.

Similar to Ottawa, if an advertisement was determined to have potential to cause concern but met the Canadian Code of Advertising Standards, TransLink informs its executive and board. If such a campaign is believed to have a particular impact on a specific group or community, analysis of the issue and associated risk is provided to municipal officials. This process is very rare and TransLink staff advised that it has only been used once.

Edmonton Transit:

Advertising is managed by an external ad contractor. In instances where an ad is approved but considered to have the potential for controversy, staff provide information to councillors as appropriate and determined by staff on a case-by-case basis.

Calgary Transit:

A formal advertising policy is not in place. works with their contracted advertiser in instances where an ad is deemed contentious despite meeting the Canadian Code of Advertising Standards. Calgary Transit does not have a process to escalate communication to city councillors or other City officials around such ads or campaigns.

Toronto Transit Commission (TTC):

The TTC has a written policy which includes the most detailed process of the reviewed agencies. Similar to Ottawa, the advertising contractor forwards advertisements with the potential to cause concern to TTC staff for review. In the event that the advertisement is rejected, the advertiser may request a review of the staff decision through a working group composed of TTC board members and TTC staff. 7

The TTC also includes two specific mechanisms that trigger an automatic review of advertisements: (1) any advertisement that references public transit or the TTC and (2) any advertisement that receives at least five public complaints. In the first case, the review is conducted by staff. In the second case, it is reviewed by the above-noted working group of board members and staff.

MBTA (Boston):

The MBTA was consulted to provide a perspective that was not bound by Canadian law. While the legislative requirements are different, there were no additional perspectives that inform the Ottawa approach. Based upon materials received, there is no established process to escalate communications for controversial advertisements or campaigns. The current review process has multiple layers of review depending upon the concerns about appropriateness or potential for controversy. The advertising program is overseen by an MBTA-appointed advertising contractor. Final decision making authority rests with the general manager, who would provide written notification to the advertiser regarding the acceptance or refusal of an ad, including appropriate rationale.

Current Contracts

Pattison Outdoor Advertising signed a ten year contract with the City in 2013 for the provision of advertising on the interior and exterior of buses, in addition to at transit stations.

Clear Channel Outdoor is the current contractor for the marketing and installation of transit shelter advertising.

Creative Outdoor Advertising provides benches and waste bins along city streets in return for the right to advertise on the furniture.

As a safeguard in each of the contracts, the City has ensured that it retains final decision-making authority in the event of a dispute in which a mutual agreement cannot be reached with the contractor pertaining to the suitability of a proposed ad or campaign based on the OC Transpo Advertising Standards. Generally speaking, Ottawa is like other comparable Canadian cities and strives to limit restrictions so as to promote a wide variety of views and perspectives and comply with existing case law. As such, the refusal of ads has been small in number and directly attributable to failure by advertisers to comply with a component of the Code or the Advertising Standards. A further 8 element of the existing contracts provides for regular review between the contractors and staff on issues that have arisen.

Staff work with the advertiser in the small number of cases where concern is raised by the contractor. In these circumstances, the ad is provided to OC Transpo staff for consideration. In no cases does the contractor provide for consideration advertisements which contravene the Advertising Standards, City policy, or any other applicable laws. The cases where staff is consulted are those that may, in a reasonable assessment made by the contractor, draw significant attention, create controversy or raise questions. These can include new or controversial advocacy advertising, alcohol advertising, or advertising where the images may provoke a response.

In reviewing the ads, staff informs and escalates as appropriate with the General Manager and in turn to the Chair of the Transit Commission. If there were a circumstance where a specific Ward councillor were affected, they would also be informed. In very unusual and infrequent circumstances, this can include consultations with Legal Services or other affected departments.

Since January 1, 2013, the number of advertisements raised for some form of review by the contractor or staff has been 19. Three of the 19 reviews were prompted by a community complaint (all in 2013). In only one instance in these reviews was an ad removed by the advertiser. In four instances comments were provided to the contractor to suggest changes in wording or images with the advertiser. In each case the feedback resulted in changes approved by the advertiser. In these four instances, the concerns were: advertising alcohol; making reference to sexual violence against women; violent images; and safety due to ad placement. Including the previously- mentioned advertisement that was removed, there has only been one other instance of an advertisement on a political issue not running as a result of a contractor decision.

The other option that has been exercised by staff, specifically to address comments or complaints from residents, is asking the contractor to adjust placement of certain advertisements so that they are not in proximity to schools.

Despite these reviews in advance of the advertising being posted, when an ad is accepted, and if it does receive negative public attention, staff address the matter with the contractor, who then raises it with the advertiser. In some cases, OC Transpo has requested that placement locations be re-considered or that the length of the campaign be reduced. 9

Staff also encourage anyone expressing concern about any advertisement or its placement to pursue a complaint with Advertising Standards Canada (ASC), which administers the Canadian Code of Advertising Standards. The three contractors are very knowledgeable about advertisements that have been sanctioned or found non- compliant by the ASC.

Conclusion

The staff review confirms that there have been no changes in either law or best practice that would lead to a change in the existing policy and its application by staff. The advertising standards are rigorously adhered to by all three contractors and this is reflected in the very small numbers of complaints or request for staff review. Nothing in the existing policy or its application prevents the City or Council from addressing unique or unacceptable advertising that conforms to case law. For these reasons, no change in the policy or approach is being recommended.

RURAL IMPLICATIONS

The matters presented in this report apply to the parts of OC Transpo service in rural areas as well as in the urban parts of Ottawa.

CONSULTATION

No specific consultation has been carried out on this report.

ADVISORY COMMITTEE(S) COMMENTS

There are no accessibility implications associated with this report.

LEGAL IMPLICATIONS

There are no legal impediments to receiving this report for information. As noted above, a review of relevant case law in this area, including the leading Supreme Court of Canada Case and more recent case law, reveals that no additional changes are required to the Advertising Standards at this time.

RISK MANAGEMENT IMPLICATIONS

There are no risk implications.

FINANCIAL IMPLICATIONS

There are no financial implications associated with this report. 10

ACCESSIBILITY IMPACTS

This report does not have any accessibility impacts.

TERM OF COUNCIL PRIORITIES

This report does not have an impact on any of the 2010-2014 Term of Council Priorities.

SUPPORTING DOCUMENTATION

Document 1 - OC Transpo Advertising Standards

DISPOSITION

OC Transpo will continue to oversee its advertising program in accordance with existing departmental Advertising Standards, consulting with the City Clerk and Solicitor as required. 11

Document 1

OC TRANSPO ADVERTISING STANDARDS, 2009

1. The City is guided by the general principles embodied in the Canadian Code of Advertising Standards, in determining the acceptance of advertising.

2. The City will not accept advertising of questionable taste or which is irritating in its content or method of presentation.

3. Advertising must not condone any form of personal discrimination, including discrimination on a prohibited ground pursuant to the Canadian Human Rights Act and the Province of Ontario’s Human Rights Code.

4. Advertising, including advertising of a political or a religious nature, is permitted provided that it meets the requirements of these Standards and of generally accepted advertising standards, including the Canadian Code of Advertising Standards. . However, all political advertising will indicate that the advertisement is paid for by a party or candidate so as to avoid giving the impression that the City is supporting a given party or candidate.

5. The City encourages advertising that:

5.1. Recognizes the changing roles of men and women in today’s society and reflects this in the distribution of labour, the range of occupations shown and the assignment of roles in the workplace and in the home;

5.2. Portrays people as they are – of varying ages, appearances, ethnic and cultural heritages;

5.3. Portrays people as users, buyers and decision makers, and not as inappropriately dependent upon the product being advertised;

5.4. Uses models for other than solely attention getting purposes, avoiding particularly the display of lightly clothed models whose presence is not relevant to the product being advertised; and

5.5. Portrays positive body images of people, avoiding the use of extreme and inappropriate postures that inappropriately accentuate one part of the body, thereby fragmenting that part from the total person; 12

6. The City will only accept advertising that does not, in the opinion of the City representative, disparage any City service or promote a product by drawing a negative comparison with a City service, or discourages the use of public transit.

7. In keeping with the Canadian Code of Advertising Standards, in all cases, advertising shall not:

7.1. demean, denigrate, or disparage any identifiable person, group or persons, organization, profession, product or service, or attempt to bring them into any public contempt or ridicule;

7.2. undermine human dignity, or display obvious indifference to, or encourage, gratuitously and without merit, conduct or attitudes that offend the standards of public decency among a significant segment of a population; and,

7.3. appear in a realistic manner to exploit, condone or incite violence, nor appear to condone, encourage or exhibit obvious indifference to unlawful behaviour.

8. Although the City is guided by the Canadian Code of Advertising Standards, the City is the sole and final arbiter in all matters relating to advertising acceptance. The City may refuse, or order removal of any advertising material at any time in its absolute discretion.

9. The following process shall be applied in cases of disagreement between the Company and a potential advertiser:

9.1. Potential advertisers shall deal with the Proponent directly, and the Proponent shall interpret the policy. If there is disagreement between the Proponent and a potential advertiser on policy interpretation, the matter may be referred to City staff;

9.2. A contract must be signed with the Proponent before the matter will be considered by the City. In cases where the content of the ad is in dispute, the contract will be signed “subject to approval” by the City;

9.3. City staff charged with the responsibility of interpreting and implementing the City advertising policy may overrule decisions made by the Proponent.

10. Should a change in policy be requested or a question of policy interpretation be raised by potential advertisers, the City may become involved, at its discretion. The City continues to be the sole and final arbiter in all matters relating to City advertising acceptance. 13

11. Tobacco Advertisements are not acceptable. Any displays depicting the use of tobacco or consumption of tobacco shall be refused.

12. The Proponent agrees that advertising is to be accepted based on all current or future policies of acceptable advertising and the City shall not be held responsible for any loss of advertising business as a result of any changes it shall make in its policy regarding the acceptability of certain types of advertising or individual advertisements.

Advertisements of alcoholic products may be accepted so long as permitted by law whether Federal, Provincial or Municipal or the Liquor Licensing Board of Ontario. Notwithstanding the above, the City may at any time, by providing the Proponent with 90 days advance notice, alter its policy on the advertising of alcoholic products.