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Statutes and Regulations - Temporal Application (4). 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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