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Constitution - Superior Courts (s.96) (3). Ontario Place Protectors v. Ontario
In Ontario Place Protectors v. Ontario (Ont CA, 2025) the Ontario Court of Appeal dismissed an appeal, this from a dismissal of an earlier application challenging the ROPA (Rebuilding Ontario Place Act, 2023) legislation under s.96 ['Judicature'] Constitution Act, 1867 grounds.
Here the court considers limitations placed on ROPA to civil litigation:[2] The appellant brought an application challenging the constitutionality of ROPA, arguing that it insulates state action from judicial scrutiny and so violates s. 96 of the Constitution Act, 1867. Additionally, the appellant argued that the exemptions from the Environmental Assessment Act, Heritage Act, and municipal noise regulations constitute a breach of public trust. The application judge denied the appellant public interest standing to pursue its application, and in the alternative ruled that its challenge to ROPA failed in any event.
[3] Although I conclude that the application judge erred in denying the appellant public interest standing, I agree that the constitutional challenge to ROPA fails. ROPA does not contravene s. 96 of the Constitution Act, 1867. As this court has explained, s. 96 immunizes neither the substantive content of the law nor the procedure governing litigation: Poorkid Investments Inc. v. Ontario (Solicitor General), 2023 ONCA 172, 479 D.L.R. (4th) 469. The establishment, amendment, or repeal of causes of action does not affect the superior courts’ core jurisdiction and so does not infringe s. 96. ....
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The legislation
[8] The focus of the application is s. 17 of ROPA. Section 17(1) of ROPA eliminates causes of action against the Crown and related entities; s. 17(2) precludes the award of costs, compensation, damages, and other remedies; s. 17(3) prohibits proceedings from being brought; and s. 17(4) preserves applications for judicial review. I set out s. 17 in full:Extinguishment of causes of action
17(1) No cause of action arises against the Crown, the Corporation, any current or former member of the Executive Council or any current or former employee, officer or agent of or advisor to the Crown or the Corporation as a direct or indirect result of,
(a) the enactment, amendment or repeal of any provision of this Act;
(b) the making, amendment or revocation of any provision of a regulation, order, directive, notice, report or other instrument under this Act;
(c) anything done or not done in accordance with this Act, or a regulation, order, directive, notice, report or other instrument under this Act;
(d) any modification, revocation, cessation or termination of rights in real property, contractual rights or other rights resulting from anything referred to in clauses (a) to (c); or
(e) any representation or other conduct that is related, directly or indirectly, to the actual or potential transfer of vested real property or any part thereof, whether the representation or other conduct occurred before or after section 2 of Schedule 2 to the New Deal for Toronto Act, 2023 came into force.
No remedy
(2) Except as otherwise provided under section 4, in an order under section 13 or in a regulation under clause 19(c), if any, no costs, compensation or damages, including for loss of revenues or loss of profit, are owing or payable to any person and no remedy, including but not limited to a remedy in contract, restitution, tort, misfeasance, bad faith, trust or fiduciary obligation, any equitable remedy or any remedy under any statute, is available to any person in connection with anything referred to in subsection (1) against any person referred to in that subsection.
Proceedings barred
(3) No proceeding that is directly or indirectly based on or related to anything referred to in subsection (1) may be brought or maintained against any person referred to in that subsection.
Application
(4) Subsection (3) does not apply with respect to an application for judicial review, but does apply with respect to any other court, administrative or arbitral proceeding claiming any remedy or relief, including specific performance, injunction, declaratory relief or the enforcement of a judgment, order or award made outside Ontario. [Emphasis added.]
Retrospective effect
(5) Subsections (1) to (3) apply regardless of whether the cause of action on which a proceeding is purportedly based arose before, on or after the day this subsection came into force.
No costs awarded
(6) No costs shall be awarded against any person in respect of a proceeding that cannot be brought or maintained under subsection (3).
Aboriginal or treaty rights
(7) This section does not apply to a cause of action that arises from any aboriginal or treaty right that is recognized and affirmed by section 35 of the Constitution Act, 1982.
No expropriation or injurious affection
(8) Nothing referred to in subsection (1) constitutes an expropriation or injurious affection for the purposes of the Expropriations Act or otherwise at law.
Proceedings by Crown not prevented
(9) This section does not apply with respect to proceedings brought by the Crown. ....
(2) Section 17 of ROPA does not violate s. 96 of the Constitution Act, 1867
The core jurisdiction of the superior courts
[29] The legal principles governing s. 96 of the Constitution Act, 1867 were discussed at length in Poorkid and it suffices to summarize them here.
[30] Section 96 establishes that the authority to appoint superior court judges belongs exclusively to the federal government. This authority has generated a body of doctrine designed to protect the special status of the superior courts by ensuring that their decision-making authority is not usurped, whether by transferring their core powers to inferior courts and administrative tribunals or removing them altogether.
[31] The “core jurisdiction” of the superior courts has always been understood as a narrow concept that includes “only critically important jurisdictions which are essential to the existence of a superior court of inherent jurisdiction”: Reference re Amendments to the Residential Tenancies Act (N.S.), 1996 CanLII 259 (SCC), [1996] 1 S.C.R. 186, at para. 56. The Supreme Court re-emphasized the narrow character of the superior courts’ core jurisdiction in Reference re Code of Civil Procedure (Que.), art. 35, 2021 SCC 27, [2021] 2 S.C.R. 291. The majority explained that the core jurisdiction is concerned with the essential business of a superior court: “review of the legality and constitutional validity of laws, enforcement of its orders, control over its own process, and its residual jurisdiction as a court of original general jurisdiction”: at para. 68.
[32] The appellant argues that ROPA violates the core jurisdiction of the superior courts in two distinct ways: first, by denying judicial review remedies, and second, by removing the superior courts’ ability to grant any remedies under any statute, effectively establishing absolute Crown immunity from liability. I will address each of these arguments in turn.
ROPA does not remove judicial review remedies
[33] Neither Parliament nor provincial legislatures can remove the court’s ability to conduct judicial review, as the Supreme Court explained in Crevier v. A.G. (Québec) et al., 1981 CanLII 30 (SCC), [1981] 2 S.C.R. 220, at pp. 236-37, and affirmed in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 24. But ROPA does not do so. The continued availability of judicial review is clear from a plain reading of its provisions.
[34] Section 17(3) of ROPA precludes various proceedings from being brought, but s. 17(4) exempts an “application for judicial review” from its operation. An “application for judicial review” is a concept established in the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (the “JRPA”). That Act, which standardizes the procedure governing judicial review of administrative action, permits a single application to be brought for relief in the nature of the prerogative writs – mandamus, prohibition, and certiorari, the forms of relief historically available to control the exercise of public authority. In addition, declarations and injunctions may be granted on an application for judicial review where the exercise of a “statutory power of decision” is concerned: JRPA, s. 2(1).
[35] The appellant argues that s. 17(4) of ROPA fails to preserve judicial review because it does not exclude s. 17(2), which precludes all remedies against the Crown arising out of any action taken in connection with ROPA. The appellant says that all remedies otherwise available under the JRPA are ousted, along with any other statutory remedies. According to the appellant, where the Legislature intended to preserve a remedy, it did so specifically, as for example with causes of action arising from aboriginal and treaty rights: ROPA, s. 17(7). The Legislature did not specifically preserve judicial review remedies and so must be taken to have ousted them.
[36] There is no merit to this argument.
[37] Section 17(4) preserves judicial review remedies because s. 17(2) expressly states that it does. Section 17(2) does not extinguish all remedies; it extinguishes remedies “[e]xcept as otherwise provided under section [17(4)]”. Section 17(4) states that the broad preclusion of proceedings under s. 17(3) “does not apply with respect to an application for judicial review”, without itself referring to s. 17(2). Thus, s. 17(4) exempts judicial review proceedings from the otherwise complete bar on proceedings, and in conjunction with the terms of s. 17(2) exempts judicial review remedies from the otherwise complete bar on remedies. In this way, ROPA preserves applications for judicial review and the remedies contemplated by the JRPA.
ROPA does not remove the core jurisdiction of the courts
[38] The appellant accepts that it is open to the Legislature to exclude some remedies and damages but argues that s. 17(2) is different in kind – “completely unprecedented” – because it excludes all remedies and liabilities under every Ontario statute and regulation. The appellant submits that a line must be drawn between constitutionally permissible and impermissible exclusions of remedies and liabilities. Wherever the line is to be drawn, ROPA is necessarily on the wrong side of it because it removes all remedies and liabilities. The result, according to the appellant, is complete governmental immunity, something that the Supreme Court described as “intolerable” in Just v. British Columbia, 1989 CanLII 16 (SCC), [1989] 2 S.C.R. 1228, at p. 1239. Finally, the appellant argues that Power holds that Crown immunity is not absolute and that damages must be available under s. 24(1) of the Charter. Section 17(2) eliminates all damages and so directly offends that proposition.
[39] These arguments must be rejected.
[40] The fundamental error underlying the appellant’s position arises out of a confusion between amending or abolishing a cause of action, which the Legislature is free to do, and interfering in the adjudication of an action or the exercise of the court’s inherent powers, which the constitution prohibits.
[41] This point was made plain in Poorkid. That case concerned legislation that established a screening mechanism that made it more difficult to sue the Crown in respect of misfeasance in public office or bad faith in the exercise of public duties or functions. Although that screening mechanism was a procedural provision rather than an immunity from suit, Poorkid made clear that s. 96 of the Constitution Act, 1867 “immunizes neither the substantive content of the law nor the procedure governing litigation against legislative reform”: at para. 48. The Legislature is free to establish, amend, or repeal causes of action in addition to establishing procedural requirements governing litigation unless doing so usurps the core jurisdiction of the superior courts – and that occurs only if the superior courts are prevented from serving as courts of inherent general jurisdiction: Poorkid, at para. 45.
[42] ROPA does not prevent the superior courts from serving as courts of general jurisdiction. It does not usurp their core adjudicative function. It does not transfer or remove any of their core functions. It simply immunizes the Crown against liability in respect of the Ontario Place redevelopment and removes the redevelopment from legislation to which it would otherwise be subject. This is neither exceptional nor constitutionally objectionable. Section 96 does not preclude the Legislature from extinguishing a cause of action, whether legislative or common law, against the Crown or a private individual, nor does it preclude the establishment of a more comprehensive immunity.
[43] Nor does the Supreme Court’s decision in Just preclude comprehensive Crown immunity. The Supreme Court’s comment about Crown immunity from tortious liability having become “intolerable” referred to the reason for the passage of legislation establishing Crown liability. The court made similar comments in Nelson (City) v. Marchi, 2021 SCC 41, [2021] 3 S.C.R. 55, at para. 38, describing complete Crown immunity as “untenable”. These comments cannot be read out of context. Neither Just nor Marchi limits the Legislature’s authority to establish immunities.
[44] Finally, the Supreme Court’s decision in Power is irrelevant to this case. Power is not a s. 96 case. Power concerns the limited circumstances in which the state may be liable for damages under s. 24(1) of the Charter for enacting legislation that violates the Charter. Section 17(2) of ROPA does not purport to immunize the Ontario government from liability for acts in breach of the constitution and could not do so in any event.
[45] In summary, ROPA immunizes the Crown from liability in respect of the Ontario Place redevelopment by extinguishing statutory and common law causes of action while preserving the availability of judicial review proceedings and remedies. It does not interfere with the core jurisdiction of the superior courts and does not violate s. 96 of the Constitution Act, 1867.
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