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Infrastructure - Transit-Oriented Communities Act, 2020 (TOCA). New Sunlight Inc. v. Ontario (Minister of Infrastructure)
In New Sunlight Inc. v. Ontario (Minister of Infrastructure) (Ont Divisional Ct, 2025) the Divisional Court dismissed a JR "seeking to set aside two pieces of subordinate legislation issued by the Lieutenant Governor in Council", here respecting a Toronto transit expropriation and a designation under the Transit-Oriented Communities Act, 2020.
Here the court briefly sets out some fact history of this Toronto transit expropriation case:[3] The parties were negotiating an agreement whereby New Sunlight would convey lands at Toronto’s East Harbour required for a priority transit project to the Respondent (“Ontario”) in exchange for Ontario upzoning the remaining land, thereby permitting New Sunlight to develop the remaining land at a greater density.
[4] During these negotiations, and without notice to New Sunlight, Cabinet issued the First OIC designating the entirety of New Sunlight’s East Harbour properties as “transit-oriented community land” (“TOC land”) under the Transit-Oriented Communities Act, 2020, S.O. 2020, c.18, Sch 20. This designation allows for lands to be expropriated without a landowner having the right to a hearing of necessity, which is an inquiry into whether a proposed expropriation is “fair, sound, and reasonably necessary in the achievement of the objective of the expropriating authority”. New Sunlight commenced this application for judicial review seeking to have the First OIC quashed. Before the application could be heard and again, without notice to New Sunlight, Cabinet issued the Second OIC authorizing Ontario to expropriate the entirety of New Sunlight’s lands to complete development on various transit, housing, and community infrastructure projects.
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Factual Background
[13] New Sunlight is a commercial and residential real estate developer with several properties on Sunlight Park Road in Toronto’s East Harbour. It is an affiliate of Talisker Corporation, a developer of commercial and residential real estate.
[14] The Respondent Minister of Infrastructure is responsible for administering Ontario’s TOC Program. . New Sunlight Inc. v. Ontario (Minister of Infrastructure)
In New Sunlight Inc. v. Ontario (Minister of Infrastructure) (Ont Divisional Ct, 2025) the Divisional Court dismissed a JR "seeking to set aside two pieces of subordinate legislation issued by the Lieutenant Governor in Council", here respecting a Toronto transit expropriation and a designation under the Transit-Oriented Communities Act, 2020.
Here the court considers the Transit-Oriented Communities Act ('TOCA'):Transit-Oriented Communities Act (“TOCA”)
[9] Subsection 2(1) provides:2(1) The Lieutenant Governor in Council may, by order in council, designate land as transit-oriented community land if, in the opinion of the Lieutenant Governor in Council, it is or may be required to support a transit-oriented community project. [10] “Transit-oriented community project” is defined in s. 1 of the TOCA:“transit-oriented community project” means a development project of any nature or kind and for any usage in connection with the construction or operation of a station that is part of a priority transit project, and includes a development project located on transit corridor land within the meaning of the Building Transit Faster Act, 2020. [11] Subsection 3(1) of TOCA exempts land designated as TOC land by removing a landowner’s entitlement to a hearing of necessity under the EA:3(1) Subsections 6 (2) to (5), section 7 and subsections 8 (1) and (2) of the Expropriations Act do not apply to an expropriation of land, within the meaning of that Act, if,
(a) at least some part of the land is designated under subsection 2 (1) as transit-oriented community land; and .... ....
The Transit-Oriented Communities Program
[15] Ontario’s Transit-Oriented Communities Program (“TOC Program”) seeks to establish Transit Oriented Communities (“Communities”) across the Greater Toronto Area by building and improving transit infrastructure, then facilitating higher density mixed-use development around that infrastructure. The overall goal of the TOC Program is to build higher density, mixed use, and accessible communities that are connected by transit at the local and regional level. Ontario states that similar programs have been successfully implemented in major cities around the world.
[16] Ontario explains its TOC Program in the following way. Much of the land in the GTA is privately held. Accordingly, to deliver the TOC Program, Ontario must obtain privately held land to build the planned transit and supporting infrastructure. In order to ensure that the goals of the TOC Program are met, it must maintain an interest in how and when a higher density mixed use community will be developed after the transit and supporting infrastructure is constructed. Ontario’s approach to implementing the TOC Program is to negotiate “TOC Agreements” with building partners at proposed Community sites.
[17] Where there is one predominant landowner, a TOC Agreement is typically sought with that landowner. Where there is no single predominant landowner at a Community site, or where an Agreement cannot be reached with the predominant landowner, Ontario will purchase or expropriate all lands for the proposed Community and seek a TOC Agreement with a building partner pursuant to an open market offering process. Under a TOC Agreement, the predominant landowner typically agrees to transfer its lands to Ontario and commits to becoming a building partner and to developing the lands in alignment with the goals of the Community and TOC Program. In exchange, Ontario commits to returning the “left over” land in the Community following the construction of transit infrastructure, and to upzoning the lands surrounding the newly constructed infrastructure under s. 47 of the Planning Act, R.S.O. 1990, c. P.13.
[18] This provides a benefit to the landowner and/or building partner. In turn, TOC Agreements benefit Ontario by providing assurance that the Communities will be developed in alignment with the TOC Program’s goals and in a timely manner, thus justifying Ontario’s significant investment in the TOC Program and Community.
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[51] Section 2 of TOCA provides a broad grant of authority for Cabinet to designate land if it forms the opinion that the designation “is or may be required to support a transit-oriented community project.” Section 1 is also broad in defining a transit-oriented community project as a “development project of any nature or kind and for any usage in connection with the construction of or operation of a station that is part of a priority transit project.”
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Necessity is not part of the legal test
[66] I agree with Ontario that “necessity” is not a legal constraint on Cabinet’s discretion to designate land under s. 2 of TOCA. The legislature uses broad language to authorize designation of transit-oriented community land where it “is or may be required to support a transit-oriented community project” (emphasis added). Moreover, the Supreme Court stated in Auer that reasonableness review of subordinate legislation “does not involve assessing the policy merits of subordinate legislation to determine whether it is necessary, wise, or effective in practice.”[13]
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