Leah Casselman, President Ontario Public Service Employees Union (OPSEU)

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1 Submission Date: March 31, 2005 To: From: Cc: Re: Transportation Committee, City of Ottawa Leah Casselman, President Ontario Public Service Employees Union (OPSEU) Mayor Bob Chiarelli Jerrald Bellomo, City Solicitor OC Transpo s ban of OPSEU s transit advertisement supporting public services in Ontario On behalf of the members of the Ontario Public Service Employees Union, I would like to thank the Chair and members of the Transportation Committee for agreeing to review the recent decision by OC Transpo and City of Ottawa staff to ban OPSEU s public service advertisements from City transit shelters. This submission summarizes the events surrounding the City s rejection of our ads and the serious policy and legal issues raised by the ban. It also outlines the steps that we are calling on the Committee and City Council to take, both to immediately reverse the ban on our ads and to make the necessary changes to city policy to ensure that such incidents cannot happen in the future. Overview: Censorship at OC Transpo OPSEU has recently launched a public service advertising campaign in 16 Ontario communities. The campaign has two objectives. It is designed to increase public awareness of the value and importance of Ontario s public services in the lives of individuals and communities across the province. Second, it aims to focus attention on the urgent need to rebuild our public services after eight years of cutbacks under the previous Conservative government. This campaign was launched on March 14, to coincide with the spring session of the provincial legislature and the crucial period in the run-up to the next provincial budget. Our ads have been approved by several leading advertising and media companies, based on prevailing industry standards, and are now running in municipally owned transit shelters in 11 other Ontario cities. The ads also appear on billboards in a total of 16 communities. In February, as part of this campaign, OPSEU made arrangements to purchase advertising space on several OC Transpo bus shelters. On March 2, 2005, however, we were informed by our advertising agency that senior staff at OC Transpo and the City of Ottawa had rejected these advertisements. Since then, OC Transpo and the City have refused OPSEU s appeals to reverse this decision. Ontario Public Service Employees Union page 1

2 This arbitrary action amounts to political censorship and is an unwarranted and unconstitutional infringement of OPSEU members right to free speech under the Canadian Charter of Rights and Freedoms. We are also deeply concerned that this decision may reflect an underlying political bias in the application of the City s policy. Whether or not this is the case, banning our ads from the City s transit system has significantly limited OPSEU members ability to draw attention to an important public policy issue. It has also undercut the right of Ottawa citizens to hear from Ontario Public Service workers on the risks of continuing cuts to the public services on which our communities depend. Recommendations This incident has raised important issues and troubling questions about freedom of speech in the City of Ottawa. It has also had a direct and continuing impact on our ability to reach the people of Ottawa with our message in a timely manner. OPSEU therefore calls on the Transportation Committee and City Council to take the following immediate steps: 1) The Committee and Council should direct city staff to reverse the ban on OPSEU s ads immediately and allow us to place the ads in city transit shelters without further delay. 2) The Committee and Council should make all necessary changes to city policy and procedures to ensure that such acts of political censorship cannot happen in the future. 3) To ensure a timely end to the City s ongoing infringement of OPSEU s constitutionally protected right to free speech, the Committee should refer recommendation 1) to Council for immediate approval at its meeting of April 13. We trust that you will take the actions necessary both to allow our campaign to proceed and to prevent any such violations in the future. However, should the City choose not to reverse the ban on our ads immediately, we may have no alternative but to seek an immediate remedy through legal action. OPSEU s Advertising Campaign OPSEU represents more than 100,000 public sector workers in Ontario, including 40,000 workers employed in the Ontario Public Service (OPS). Approximately 7,000 OPSEU members live and work in the Ottawa area. Among the hundreds of vital services they perform, OPSEU members in the OPS run our court system, guard accused and convicted criminals, keep our roads safe, help people with disabilities, inspect water plants, register our family members births and deaths, collect retail and corporate taxes, protect our archaeological heritage, test for SARS or HIV/AIDS at our provincial health laboratories, answer our 911 calls, protect our environment and defend our human rights. OPSEU members know first-hand how important public services are to Ontario communities. They have also seen the devastating results of 10 years of provincial cutbacks. Our members feel that they have both a right and an obligation to speak out on issues that affect the future of the services we provide. Ontario Public Service Employees Union page 2

3 We are not alone in our concern. Public services matter to people in Ontario. They were a central issue in the 2003 provincial election. In fact, Dalton McGuinty and the Liberals won a majority government based largely on their clear commitment to rebuild public services. Unfortunately, one and a half years later, instead of delivering on that promise, the Liberal government has announced plans to cut another 6,000 jobs from the Ontario Public Service. These cuts are on top of the more than 20,000 OPS jobs cut by the previous Conservative government. OPSEU s transit shelter ads are designed to speak plainly and directly about this urgent public policy issue. The text of these ads (see attached) reads as follows: Lives depend on our public services. It s time Dalton McGuinty lived up to his promises. No more cuts Rebuild our public services. These are straightforward propositions that we believe are clearly supported by the facts: Lives do depend on Ontario s public services To save those services, we do need to stop the cuts and rebuild public services Dalton McGuinty and the Liberals did promise to rebuild public services. 18 months later, that promise has not been fulfilled. The content of these ads falls well within the bounds of normal discussion on matters of public policy. The ads do not call for support of, or opposition to, any individual political candidate or party. Instead our campaign has been launched to help focus public opinion during the current legislative session. The campaign also coincides with collective bargaining in the Ontario Public Service, where maintaining and rebuilding public services are a central issue. The City of Ottawa Ad Ban As noted above, the OPSEU ads have been reviewed by a number of advertising and media firms, as part of their normal procedures. In each case, the ads were found to be consistent with current industry standards prohibiting unethical, discriminatory, offensive or disparaging content. (For one example, see the Canadian Code of Advertising Standards at Our ads have been accepted for, and are now displayed on, municipally owned transit shelters in the following Ontario communities: Hamilton, Kingston, London, Mississauga, Oshawa, Peterborough, Sault Ste. Marie, Sudbury, Thunder Bay, Toronto and Windsor. We were therefore shocked to hear that OC Transpo and the City had banned the ads from the City s transit shelters. The City has neither the political mandate nor the legal right to take such action. Since March 2, our concerns have only deepened, as we have learned more about the inconsistent and arbitrary way that city staff have applied the City s advertising policy. For example: Initially, city staff informed the media company that leases advertising space in the transit shelters in question that OPSEU s ads had been rejected based on a specific section of the City s advertising policy. This section prohibits material that tends to disparage a candidate, party or cause. City staff also initially suggested Ontario Public Service Employees Union page 3

4 that changing the sentence It s time Dalton McGuinty lived up to his promises to We hope that Dalton McGuinty lives up to his promises would be sufficient to address their concerns. In a subsequent conversation, the City s Director of Transportation Services stated that the decision to ban the OPSEU ad was based on a separate paragraph of the City s advertising policy prohibiting material calling for the advocacy of, or opposition to, a political point of view, policy or action. The director stated that no changes to the ad copy would address the City s concerns, and that the City believed that accepting the ad could be seen as an endorsement of its content even though the ad prominently displays OPSEU s logo. Finally, we were informed that city staff have unilateral authority to reject our ad, and that there is no process for appealing their decision. We have since been informed that the City has not always been so scrupulous in rejecting advertising on public policy issues even when the content is much more explicitly political. In 1998, during the Conservative government of Premier Mike Harris, the Ottawa and District Labour Council was able place 150 ads on city buses supporting the Ottawa Day of Action protest. These ads featured photos of a mass political demonstration and contained the slogan Bye Bye Mike Harris. The selective banning of ads when one political party is in office, but not another, cannot help but raise questions about potential political bias. The apparently arbitrary, inconsistent and selective enforcement of this policy demonstrates why the City should get out of the censorship business particularly when it comes to important issues of public policy. Except for maintaining basic standards against unethical, discriminatory, offensive or hurtful material, we believe that the citizens of Ottawa neither want nor expect their municipal officials to interfere with the right of organizations like OPSEU to communicate with them on issues that are of interest to the public. Legal Issues Under Canada s Charter of Rights and Freedoms s. 2 (b), the Ontario Public Service Employees Union and its membership have the right to freedom of expression. The City of Ottawa and OC Transpo are government entities with the responsibility to respect and uphold that right. OPSEU s right to free speech is being infringed by the application of current City of Ottawa policy to limit or curtail the content of OPSEU s proposed advertisement. Under the Charter, a right may be limited only if the limit is demonstrably justifiable. There is no such justification in the current case. OPSEU s proposed message is not libelous or offensive to community values. Furthermore, as noted above, the limitation on speech is being applied selectively, as OC Transpo has, on at least one other occasion, allowed an equally political advertisement. This limitation on OPSEU s freedom of speech is adversely affecting OPSEU and its members now. OPSEU has a material interest in bringing its issues to public attention during the current sitting of the legislature prior to the introduction of the provincial budget, and during OPSEU s current, ongoing contract negotiations with the McGuinty government on behalf of OPSEU members in the Ontario Public Service. The City of Ottawa policy is limiting OPSEU s ability to do so. OPSEU s Charter right to freedom of Ontario Public Service Employees Union page 4

5 expression is being prejudiced currently and on an ongoing basis by the City s policy. This prejudice cannot be quantified and cannot be fully remedied later by any damage or cost award. The only meaningful solution is for the OPSEU advertisement to be permitted now. If the Transportation Committee does not recommend that OPSEU s message be allowed right away, or if City Council fails to approve the running of the OPSEU messaging at the earliest opportunity, OPSEU intends to seek an immediate judicial remedy (on an interim basis if necessary). Conclusion Given the serious issues raised by this incident, OPSEU calls on the Transportation Committee and City Council to: 1) direct city staff to reverse the ban on OPSEU s ads immediately, and allow us to place the ads in city transit shelters without further delay 2) make the necessary changes to city policy and procedures to ensure that this kind of political censorship cannot happen in the future, and 3) refer recommendation 1) to Council for immediate approval at its meeting of April 13, to ensure a timely end to the City s ongoing infringement of OPSEU s constitutionally protected right to free speech. After considering this matter, we trust that you will come down on the side of free speech in the City of Ottawa and agree to both recommendations. However, as we have noted above, if the Committee and Council choose not to reverse the ban on OPSEU s advertisements immediately, we may have no alternative but to pursue legal action. Respectfully submitted: Leah Casselman President Ontario Public Service Employees Union page 5