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Ontario Institutions - Rebuilding Ontario Place Act, 2023 (ROPA). Ontario Place for All Inc. v. Ontario Ministry of Infrastructure
In Ontario Place for All Inc. v. Ontario Ministry of Infrastructure (Div Court, 2024) the Divisional Court allowed a motion to quash a JR, here brought to challenge Ontario's limiting of environmental assessment to only a part of the Ontario Place redevelopment (in part, through the new ROPA, 2023 statute):[2] In its application for judicial review, Ontario Place for All alleges the respondent ministries and Infrastructure Ontario were required to include the redevelopment of the West Island in the environmental assessment. It says an environmental assessment is important because the West Island redevelopment project involves the construction of a “gigantic spa facility” with private entities including a foreign owned company called Therme. According to the applicant, the plan to redevelop the West Island will involve cutting down a substantial number of trees, levelling a cultural heritage landscape, and filling in portions of the lakefront.
[3] Before the start of this application, the respondents took the position that the West Island redevelopment was a private undertaking to which the Environmental Assessment Act, R.S.O. 1990, c. E.18 (“EAA”) did not apply. The applicant disputed this. The applicant alleged the relevant documents, including the lease and other contractual arrangements, once disclosed, would reveal that the West Island redevelopment is on behalf of the Ontario Government and falls within the EAA.
[4] However, new legislation, Rebuilding Ontario Place Act, 2023, S.O. 2023, c. 25, Sched. 2[1] (“ROPA”), was tabled a week after the notice of application was served and was quickly passed. The respondents submit ROPA exempts the West Island from the EAA and therefore nullifies the remedies sought in the application. The applicant acknowledges in its factum the government introduced and passed the legislation “to defeat this application for judicial review.” Because of ROPA, the respondents now bring a motion to quash the application for judicial review.[2]
[5] The question for the court is whether it is plain and obvious the application cannot succeed in the face of ROPA. The respondents also submit, in the alternative, that because of ROPA, the application is moot. For the following reasons, I conclude it is plain and obvious the application cannot succeed. I also find that the question of whether to issue a declaration is moot and that the court should not exercise its discretion to decide it. The court's rationale for this conclusion is spelled out in detail at para 6-18.
. 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. . 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" (EAA).
Here the court considers (but transfers the case to a full panel) the legitimacy of last-minute legislation to override this JR [Rebuilding Ontario Place Act, 2023 (ROPA)], attempting to retroactively exempt it from the EAA [see esp para 23]:Ontario’s Position
[22] Ontario makes the following submissions.
[23] The government of Ontario can enact new legislation retroactively repairing any potential non-compliance with a statute.[4] Barring a constitutional challenge, where the change in the law prevents the court from ordering the relief sought, it is plain and obvious that the claim or application cannot succeed.[5]
[24] ROPA exempts the redevelopment of the West Island from the application of the EAA. OP4A does not challenge the constitutionality of ROPA. ROPA is therefore presumed to be valid and is a complete answer to the issues raised by OP4A.[6] The court could not issue the order for mandamus sought by OP4A.
[25] Ontario argues that the request for declaratory relief is moot because s. 9 of ROPA unequivocally exempts the redevelopment of the West Island from the application of the EAA. Even if the redevelopment of Ontario Place’s West Island had previously required a Category C assessment, it argues that ROPA unambiguously provides that no such assessment is now required. In this context, the declaration sought would “serve no purpose[7] as it would have no practical effect on the right of any of the parties or any collateral consequences for the parties.[8]
[26] Both counsel for Ontario in their oral submissions submitted that if the court found that it was plain and obvious that the claim could not succeed, the court need not go on to consider the mootness issue. Both factums filed by Ontario acknowledge that a court may nonetheless elect to address a moot issue if the circumstances warrant but submit that the court should decline to exercise its discretion to hear this moot case.
Position of OP4A
[27] As noted above, OP4A does not concede that ROPA applies to make the West Island Redevelopment exempt from the EAA.
[28] In short, OP4A’s argument is that the West Island Redevelopment was always properly part of the undertaking to which the Current EA applied and the exemption from the EAA therefore does not apply pursuant to s. 9(3) of ROPA. The argument follows that this would not be a “change to an undertaking” and therefore exempt from the EAA under s.9(4) because at all times the undertaking was the entire Ontario Place Redevelopment Project. It argues that it is therefore clear that the application does have a chance of success and should not be quashed.
[29] OP4A argues Section 3 of the EAA is still in force and, despite Ontario’s assertion that the application is moot because ROPA exempts the West Island Redevelopment from the EAA, the core issue is whether it was unlawful for Ontario to have excluded the West Island Redevelopment from the Current EA in the first place. Ontario submits that the court should be alarmed by the legislature’s willingness to enact ROPA in the face of this judicial review application with the intent of circumventing the accountability it seeks. Consequently, even if only declaratory relief is available to OP4A, a declaration serves a purpose—to hold the government accountable.
Conclusion
[30] It is pleaded in this application that the West Island Redevelopment will destroy the naturalized ecosystem on the West Island, including the removal of every tree (approximately 840 trees, of which over 600 are mature trees), all vegetation, level the internationally recognized Michael Hough landscape, contour and fill the lagoons and small waterways on the West Island, destroy the existing approximately 36,000 square metres of aquatic habitat and add a 12+ acre extension of the footprint of the West Island through 36,000 square metres of lake-filling above water and 25,500 square metres of lake-filling below water.
[31] The purpose of the EAA is “the protection, conservation and wise management in Ontario of the environment”.[9] OP4A submits that the environmental process as set out in the EAA is a crucial commitment to protecting Ontario’s environment, and public consultation is an integral component of that process. It appears that Ontario’s view was that it did not need to comply with the EAA and that the project could be piecemealed contrary to its own process.
[32] The scope of the EAA’s application to a public redevelopment project is an important question of public interest, as it speaks to the scope of an environmental law which has the potential of encompassing broad environmental protection and directly affects the public’s interest in being appropriately consulted.
[33] Decisions on the merits, in Divisional Court, are to be made by a panel of three judges. Where a proceeding is vexatious or demonstrably without merit, a single judge may quash or dismiss it on motion-- a decision that is reviewable as of right before a panel. It may be that at the end of the day as argued by Ontario, the will of the legislature must prevail, even if expressed retroactively. However, it cannot be said that OP4A’s concerns about governance in defiance of environmental legislation are frivolous or unworthy of argument before a panel of the court, notwithstanding the passage of legislation which purports to retroactively sanitize the initial allegedly unlawful conduct. Where, as here, the questions are legal issues of first impression, in a context of significant public law interest and concern, the issue is more appropriately dealt with by a panel than by a single judge.
[34] Accordingly, I adjourn this matter to a full panel of the Divisional Court in accordance with s.21(4) of the Courts of Justice Act.
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