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Ontario Infrastructure and Lands Corporation Act, 2011 (OILCA). Ontario Place for All Inc. v. Ontario (Ministry of Infrastructure)
In Ontario Place for All Inc. v. Ontario (Ministry of Infrastructure) (Div Court, 2024) a single judge of the Divisional Court considered a JR by a citizen's group of the province's "decision not to include the redevelopment of Ontario Place’s West Island in the Category C Public Work Class Environmental Assessment of the Ontario Place Redevelopment Project pursuant to the Environmental Assessment Act".
These quotes set out some specific 'Ontario Place' legal history, including that of the Rebuilding Ontario Place Act, 2023 ('ROPA') statute:[3] In its amended notice of application, OP4A alleged the following:The Government of Ontario plans to destroy the Ontario Place West Island by cutting down 840 trees, levelling a globally recognized cultural heritage landscape, and filling in portions of the lakefront, all so a massive glass waterfront Spa can be built which will benefit a foreign-owned corporation. The respondents intend to redevelop the West Island without including these activities in the environmental assessment conducted respecting the other components of the Ontario Place Redevelopment Project, based on the false assertion that it is a private undertaking, not a public undertaking. In making this false assertion, they are keeping secret the contractual arrangements that would disclose the true nature of the West Island Redevelopment project. [4] Among other relief, in its amended notice of application OP4A claims the following relief:“1(e) An order of mandamus requiring the respondents to conduct a Category C Public Work Class Environmental Assessment pursuant to the EAA of the entire Ontario Place Redevelopment Project that includes the redevelopment of Ontario Place's West Island; and
1(f) A declaration that the respondents' failure to include the redevelopment of Ontario Place's West Island in the Category C Public Work Class Environmental Assessment of the Ontario Place Redevelopment is contrary to section 3 of the EAA and is therefore unlawful.” [5] One week after the OP4A’s judicial review application was served on Ontario, in what OP4A characterizes as “a transparent effort to avoid the destruction of the West Island being scrutinized by this court”, the Government of Ontario tabled the Rebuilding Ontario Place Act, 2023 (“ROPA”) which received royal assent on December 6, 2023 and brought this motion to quash the application. Ontario submits that ROPA and regulations passed thereunder exempt the redevelopment of the West Island at Ontario Place from the EAA which makes it plain and obvious that OP4A’s application cannot succeed. Alternatively, it submits that the application should be quashed because it has become moot as a result of the passage of ROPA.
The Ontario Place West Island Redevelopment
[6] The application for judicial review relates to the proposed redevelopment of the Provincial Heritage Property, Ontario Place. Ontario Place is a 63 hectare property (28 hectare land, 35 hectare water) at 955 Lake Shore Boulevard West, Toronto, on the shore of Lake Ontario, which was initially opened in 1971. The Ontario Place lands are undergoing redevelopment.
[7] OP4A states that the respondent the Ministry of Infrastructure (“MOI”), is the owner of the majority of Ontario Place. A sliver of Ontario Place is owned by the City of Toronto but will be vested in the Crown on a date to be prescribed by regulation. OP4A states: that the respondent, Infrastructure Ontario (“IO”), is an agency of the Government of Ontario under the purview of the MOI; IO is responsible for facilitating and directing the redevelopment of Ontario Place mandated by the MOI and more generally the Government of Ontario; and the respondent Ministry of Tourism, Culture and Sport has also been involved in the redevelopment of Ontario Place undertaken by the Government of Ontario in its role of protecting provincial heritage properties.
....
[16] Ontario conducted a Category C Public Work Class Environmental Assessment on certain components of the Ontario Place Redevelopment Project (the “Current EA”). OP4A alleges that Ontario wrongfully failed to include the West Island Redevelopment on the false assertion that the redevelopment of the West Island is a private undertaking. Ontario does not assert on this motion that the West Island redevelopment is a private undertaking not covered by the EAA but relies on the exemption of the Ontario Place Redevelopment Project by the passage of ROPA.
Rebuilding Ontario Place Act, 2023 (ROPA)
[17] Section 9 of ROPA contains various provisions that define the scope of the Ontario Place carve-out from the application of the EAA. Subsections 9(1) and 9(2) exempt from the EAA any “undertakings” carried out at the Ontario Place site. These provisions state:9 (1) The following are exempt from the Environmental Assessment Act:
1. Any undertaking carried out at the site described in subsection (2).
[...]
(2) The site mentioned in subsection (1) is comprised of,
(a) the land identified by the Property Identification Numbers set out in Schedule 3; and
(b) prescribed land, if any, that is part of the land identified by the Property Identification Numbers set out in Schedule 1.
(3) An exemption in subsection (1) does not apply in respect of,
(a) an undertaking for which a notice of completion has been issued on or before July 4, 2023 under the Public Work Class Environmental Assessment; or
(b) such other undertakings as may be prescribed.
(4) Any change to an undertaking described in clause (3) (a) is exempt from the Environmental Assessment Act. [18] OP4A does not contest that the land to which ROPA applies includes the West Island. However, it submits that the West Island Redevelopment is exempt from the application of ss. 9(1) and (2) pursuant to s. 9(3) of ROPA.
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