In recent months, I’ve received numerous calls and emails about the content of advertising, A-frame signs, and lawn signs. Some have to do with advertising development proposals in the city that have not been approved, but provide an occupancy date or sell units; others relate to A-frame signs on city property or the content of private lawn signs; and others are about an election postcard on abortion that contained graphic images and a partisan attack.
Below are some examples of ads or activity that have prompted questions from residents, an outline of city jurisdiction in each area, and what you can do if you have concerns.
Example #1: Recently, a number of businesses and residents in Ward 2 received one or more postcards advertising a proposed 28-storey development at Martha & Lakeshore. Various versions of the ad have appeared in local and regional newspapers, on Facebook, in radio ads, and on signs in the downtown area. Some of advertisements invited folks to a VIP sales event, to put a deposit down on a unit. Some of the postcards spoke of a “24-storey” building; some a “28-storey building” A sales sheet was offering units up to the 19th floor. One postcard said “Occupancy Date 2019”. Some of the ads spoke of prices starting at $250,000; others said prices started in the mid $300,000s.
None of the advertisements have said the project has not received approval. In fact, the project is not supported by city staff, council or the majority of residents, and is the subject of an Ontario Municipal Board hearing in March 2016.
The ads have left the impression with a number of residents that the project is approved (it isn’t), or about to be (the OMB hearing is in March 2016), leading to contact with my office for clarification. Residents have also asked if it is legal to advertise a project that isn’t approved. From the information I have received, the apparent answer is yes.
Over the summer, my office also received a number of complaints from residents about a postcard delivered to their homes with graphic images of fetuses, and a partisan attack against one of the federal political parties related to abortion. Residents contacted the phone number on the card to complain; they contacted Canada Post to ask why they delivered the card, and they contacted police.
Canada Post said they did not deliver the postcards, but that they must have been hand delivered to homes. The police reviewed the postcards and said that, as disturbing as the images were, they did not violate the Criminal Code provisions on defamatory libel or hate propaganda.
The city has no jurisdiction over the content of advertisements, but there are still ways to make your concerns about advertising known via Advertising Standards Canada, the Better Business Bureau and other organizations detailed below.
ASC is a national not-for-profit advertising self-regulatory body. They have developed the Canadian Code of Advertising Standards to foster truth, fairness and accuracy in advertising. The Code sets the criteria for acceptable advertising in Canada. ASC also fields complaints regarding advertising that fails to meet the code.
The section on Accuracy and Clarity states that messages will be interpreted for accuracy based on the how the audience receives or perceives the content, and the general impression conveyed by the advertisement. Advertisements must not contain inaccurate, deceptive or otherwise misleading claims, either direct or implied. Further, advertisements must not omit relevant information in a manner that, in the result, is deceptive. The code requires that both in principle and practice, all advertising claims and representations must be supportable.
The section on Unacceptable Depictions and Portrayals states that, among other criteria, ads should not “offend the standards of public decency.”
You can read summaries of previous complaints, whether they were referred by ASC to the independent volunteer Standards Councils for further review, and whether the Council felt these complaints violated the Code. A summary of complaints and how they were resolved is published yearly in the Annual Ad Complaints Report.
In 2014, ASC reviewed 444 complaints alleging misleading or inaccurate advertising. Ultimately, the Standards Councils upheld 28 complaints about 24 advertisements. These involved advertisements that: omitted relevant information, did not clearly state all pertinent details of an offer, and contained unsubstantiated claims.
Of the 355 complaints reviewed under Clause 14 (unacceptable depictions and portrayals), Councils adjudicated and upheld 42 complaints about seven advertisements. These included advertisements that the Standards Councils found demeaned women and advertisements that offended standards of public decency. The balance did not meet the threshold to raise issues under this clause.
Some specific examples of code violations are below, including a decision against the abortion postcards.
Advertiser Action – Q3 2011
Clause 1: Accuracy and Clarity
|Industry:||Real estate services|
|Description:||An advertisement for a proposed new development contained an illustration of a tall condominium tower, and invited readers to “pre-register.”|
|Complaint:||The complainant alleged that the advertisement was misleading because rezoning to permit construction of the development had not yet been obtained from the municipality.|
|Decision:||To Council, the advertisement conveyed the impression that the condominium development had received all necessary approvals from the local municipality in order to commence construction of the condominium as pictured in the advertisement. In fact, at the time the advertisement appeared no application had yet been submitted to amend the applicable zoning by-law to permit a development of the size shown in the advertisement. Council, therefore, found that the advertisement was misleading and omitted relevant information. The advertiser agreed to appropriately amend the advertising and not run the amended version until after the zoning application was submitted.|
|Infraction:||Clauses 1(a) and (b).|
Advertiser Action – Q2 2013
Clause 1: Accuracy and Clarity
|Description:||A claim was made in a flyer regarding certain density aspects of a development project.|
|Complaint:||Several residents of the affected community alleged that the advertisement misrepresented the density of the project.|
|Decision:||Council agreed with the complainants and found that the advertisement omitted relevant information. The advertiser is not identified in this case summary because the advertisement was retired before Council met to adjudicate this case.|
Upheld Complaints – Q2 2015
|Clause 14: Unacceptable Depictions and Portrayals
|Advertiser:||Canadian Centre for Bio-ethical Reform|
|Industry:||Non-commercial – Other|
|Media:||Direct Marketing – Other|
|Description:||The Canadian Centre for Bio-ethical Reform is the sponsor of a political advertisement ‒“No2Trudeau” – delivered door-to-door across Canada. Featured in the advertisement are graphic images of aborted foetuses.|
|Complaint:||The complainants alleged that these images are excessively graphic, shocking, and upsetting ‒ particularly to children.|
|Decision:||In 2014, ASC’s Standards Council reviewed and upheld consumer complaints about graphic photographs of aborted foetuses that appeared in an advertisement sponsored by a different advertiser. At that time, the Standards Council concluded that the advertisement with this imagery displayed obvious indifference to conduct or attitudes that offended the standards of public decency prevailing among a significant segment of the population, thereby contravening Clause 14 (Unacceptable Depictions and Portrayals) of the Code. At least one of these images is reproduced in the current advertising being distributed by the Canadian Centre for Bio-ethical Reform. As provided in the Code, ASC asked the Canadian Centre for Bio-ethical Reform to comply with the Standards Council’s 2014 decision by withdrawing the graphic images of aborted foetuses. Under the Code, ASC could not and did not address or comment on the political aspects of this advertisement. To date the advertiser has not responded to ASC’s request.|
|Infraction:||Clause 14 (d).|
Better Business Bureau
Another avenue to raise concerns about business advertising content, or the conduct of a business in general, is the Better Business Bureau. Complaints can be filed online, and in the case of advertising concerns, residents can ask the BBB to contact the business to request modification of an ad for accuracy.
My Take: Any advertisement for a development that fails to say the project isn’t approved, that provides an occupancy date on a project not approved, and/or has different height and pricing information in different ads, in my view fails to meet the Canadian Code of Advertising Standards with respect to accuracy and clarity. I support the finding of the Standards Councils with regard to the abortion postcard. There are ways to convey a message without resorting to such tactics.
Sale of units for unapproved development:
Example #3: Residents are aware that a development project downtown is selling units even though the project has not been approved and is the subject of an OMB hearing in March. Selling units prior to approvals being in place has happened on other occasions with other developments in the city. Residents have asked if it is legal to sell units in a building that isn’t approved. From the information we have received, the apparent answer is yes. The city has no jurisdiction over sale of units.
Sale of units is an area of contract regulation. In effect people are free to enter into any contracts they wish with each other; the key being that the contract should spell out that the project does not have approval and what happens to the purchaser’s deposit should it not proceed.
If residents have concerns over the content of real estate advertisements or the actions of realtors selling units, they can contact the Realtors Association of Hamilton-Burlington, which adheres to the Realtor Code developed by the Canadian Real Estate Association. Among other things, the Code states realtors have an obligation to discover facts pertaining to a property in order to avoid error or misrepresentation. The code further notes that advertising and promotion of properties shall accurately reflect the property and other details.
It is reasonable to expect that discovery of facts would include knowing, and communicating in the realtors’ advertisements for the property, whether approvals are in place (or not) for the property being sold.
For advertisements or other conduct that relate to development projects, a further avenue to register concerns is the Building Industry and Land Development Association. BILD also has a Code of Ethics for members, that among other things states members shall “avoid all conduct or practice detrimental to the land development and building industry, to the Association, to the good name or reputation of any of its members, or its customers.”
Contact the source:
Residents can also contact the people or organizations listed on any advertisement to express concerns directly to them.
Example #4: I have received numerous complaints over the years about the proliferation of A-frame style real estate signs popping up on weekends on city property on major roads and intersections. This past weekend there were one or more signs at almost every major intersection along Lakeshore Road. The city does have jurisdiction over signs.
In section 6.7.5, our bylaw says: that “identification and directional signs” for a model homes/sales office may be erected on the road allowance subject to several conditions, including size and placement not to obstruct pedestrian or vehicular movement.
In section 3.32, the bylaw further defines a model home/sales office identification and directional sign as: “a sign providing directions to a site or identification of a site, sales office, or model home, the location of which complies with the Zoning By-law.”
In section 3.34, the bylaw defines a “new development sign” as “a temporary sign which displays the name or corporate identification of a builder or developer, or provides directions to a new home development in progress and located within an approved registered plan of subdivision or condominium plan.”
Further, under section 6.7.4 businesses downtown are permitted to put one A-frame sign directly outside their place of business to advertise their products, but only during business hours.
Under section 4.2 (o), signs can also be erected displaying the name of a building or project to be built on a property where the sign is located so long as the sign does not exceed 6 m2. Such signs are approved by city staff with respect to setbacks from the property line and height requirements.
The intent of our bylaw is to “protect and enhance the aesthetic qualities and visual character of the city of Burlington” and further not to “create a distraction” for pedestrians or motorists. The bylaw is also intended to ensure that signs are appropriate in size, number and location to the type of activity or use to which they pertain.
From the feedback I have received, residents are concerned that the signs are too numerous, detract from the aesthetic and visual character of the city, and create a distraction. There seems to be no limit on the number of signs in a particular area or the duration a sign can be out (they tend to go out and stay out all weekend, irrespective of business hours).
Further, some of the recent signs that are supposed to provide model home/sales office identification and directional signage do not have directional information. Contrary to the new development temporary sign provisions, some signs advertise developments not approved. Some of these signs appear simply to be a general business advertisement promoting a product, in this case housing. We don’t allow our city property to be used for general business advertising. In another case, a sign on the site of a proposed future development appears to be larger than the size restriction of 6 m2.
My Take: I share residents concerns about signs on city property, and am following up with city staff to discuss whether our bylaw needs updating and clarification to ensure the intent of the bylaw is being followed.
Example #5: My office and city bylaw enforcement have received a couple of complaints regarding lawn signs on private property in the Delaware/Seneca neighbourhood related to some of the infill activity there and promoting respect for existing built character. There is a section in our bylaw that deals with temporary personal signs, but these signs do not meet that criteria. Section 3.54 in the sign bylaw defines a “temporary personal sign” as one that displays a personal announcement or congratulatory message and is located on residential property. Section 4.2(u) restricts temporary personal signs to a maximum of three days.
Our bylaw officer did review this signs in this area, and as long as the signs are on private property there is no regulation under our by-law prohibiting them and no specific regulation regarding how long the sign may be erected. These signs are treated in a similar fashion to the “Save Door to Door Delivery” signs related to Canada Post.
I support lawn signs and believe they can be an important way to draw attention to an issue and start a community dialogue. In fact, that is happening in this case. As soon as the signs went up, I was contacted by residents to talk further about infill development, character of the neighbourhood, property rights, the city’s design guidelines, and other matters. Prior to the signs going up, I had heard primarily from residents who were concerned about the infill activity; subsequent to the signs going up, I heard from a broader range of residents who are supportive of the infill (though the majority seems to remain concerned). The signs have had the effect of bringing a broader range of perspectives to the dialogue. The signs are getting people talking and sharing a diversity of perspectives. They are working.