Improper Signage Violation: Failure to Obtain Permit, Among Other Issues

Question: What should I do if I receive a charge for displaying improper signage?

Answer:   It is crucial to understand that you may have available defences, such as demonstrating due diligence or a mistake of fact regarding your signage permit.  Denali Paralegal Services can assist you in navigating these complexities efficiently, ensuring that you receive the support needed to address your specific situation.

Understanding the Charge and Available Defences

Most municipalities across Canada regulate signage through specific bylaws.  These bylaws typically establish requirements for the size, placement, duration, and type of signage, that may be erected or displayed within the municipality.  Failure to comply with such regulations may result in charges for improper or unauthorized signage.  While the requirements may vary significantly between municipalities, almost all jurisdictions impose some form of permit regime.  Understanding the nature of the charge and the available defences is essential for individuals or businesses who find themselves facing a charge for an improper signage violation.

Municipal Authority

In Ontario, and other provinces will have similar legislation, the Municipal Act, 2001, S.O. 2001, c. 25, prescribes the authority for municipalities to enact bylaws that restrict signage based upon zoning, aesthetics, public safety, and other policy considerations.  Typically, a bylaw will require that certain types of signs, especially mobile, illuminated, or commercial advertising, be authorized by a permit issued by the municipality.  Operating a sign without such a permit may constitute an offence, even if a sign is located on private property.

It is important to note that obtaining approval from another government body, such as the Ministry of Transportation for highway signage, may fail to satisfy municipal requirements whereas signage located within municipal boundaries is often subject to both municipal and provincial regulations, and compliance with one fails to automatically exempt compliance with the other.

Involves Strict Liability

Charges related to improper signage, such as displaying a sign without a permit, are typically classified as strict liability offences.  A strict liability offence is one where the prosecution without a requirement to prove that the accused intended to commit the offence.  Instead, the act itself, such as displaying a sign without the required permit, is sufficient to establish the charge; however, with strict liability offences, the accused may avoid a conviction by establishing one of the following two defences:

• The Due Diligence Defence:
  By demonstrating that all reasonable steps were taken to comply with the bylaw and to avoid the offence; or
• The Mistake of Fact Defence:
  By showing that the accused had a reasonable but mistaken belief in a set of facts that, if true, would have rendered the act innocent.

The burden is on the defendant to prove these defences on a balance of probabilities.

Example

An illustrative case on this subject is City of Hamilton v. Ellis, 2010 ONCJ 217, where the accused was charged with displaying a mobile sign without a municipal permit.  The accused argued several defences, including that the sign was grandfathered under a previous bylaw, and that a Ministry of Transportation permit obtained years earlier sufficed.  The court ruled against the defendant for the following reasons:

1. The sign was erected without a permit and therefore without compliance to the municipal bylaw in effect at the time (see paragraphs 68 to 75);
2. The Ministry of Transportation permit explicitly required the holder to obtain all other necessary approvals, including municipal permits (see paragraphs 91 to 94); and
3. The offence was a continuing offence, meaning that each day the sign was displayed without a permit constituted a new infraction (see paragraphs 50 to 66).

While this case was specific to the City of Hamilton, the legal reasoning may be relevant in understanding how similar offences could be treated in other municipalities.  The ruling provides insight into how courts interpret signage bylaws, assess due diligence, and evaluate the ongoing nature of bylaw infractions.

For a more detailed explanation of continuing offences, including how daily breaches can reset limitation periods, see: Ongoing Offences

Building a Defence

A person charged with a signage offence may wish to consider several of the following when preparing a defence:

• Whether the signage qualifies for an exemption or grandfathering provision under the applicable bylaw;
• Whether all reasonable steps to confirm compliance with the law, including checking with municipal authorities;
• Whether there was a reasonable and honest belief that all necessary approvals were obtained and supported by documentary evidence;
• Whether the charge was laid within the applicable limitation period, recognizing that continuing offences may restart the limitation clock each day; and
• Whether the actions of the accused person constitute as passive non-compliance or an isolated act, which may affect how the court interprets the offence.

It is essential to review the wording of the applicable bylaw in the relevant municipality, as specific provisions, definitions, and exemptions, may differ.  The timing of the sign being displayed, the type and placement of the sign, and the nature of the land use zoning, may all impact the validity of the charge and the availability of a defence.

Conclusion

Improper signage charges may appear straightforward, but the underlying legal issues often involve complex considerations of municipal law, regulatory offence principles, and evidentiary burden.  Although most municipalities require a permit for commercial or mobile signage, the presence of exemptions and defences mean that charges may be inconclusive.  Defendants should carefully assess the facts, consider whether reasonable steps were taken to comply, and review any available documentation or prior approvals.

Each case must be evaluated on its own merits, with attention paid to the specific wording and enforcement practices of the relevant municipal bylaw.