913719 Ontario Ltd. v. Mississauga (City) (July 21, 1998)

                                                 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.