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Torts - Public Trust Doctrine [Uncertain]. 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 confirms that no cause-of-action for breach of 'public trust' has yet been established in our law:(3) The appellants have not established that a public trust doctrine exists in Canadian law or that it would apply in any event
[46] The appellant argues that ROPA breaches the public trust. To succeed in this argument, it must first establish that a public trust doctrine exists. Although the concept of a public trust is not unknown, no Canadian court has ever declared a statute to be in breach of the public trust.
[47] The difficulties with the appellant’s submission are many. The appellant did not offer a definition of the public trust doctrine in its factum or in oral argument. The appellant acknowledges that the Supreme Court did not determine issues related to the public trust in British Columbia v. Canada Forest Products Ltd., 2004 SCC 38, [2004] 2 S.C.R. 74 (“Canfor”). Nevertheless, it asserts that public trust principles form part of Canadian law.
[48] According to the appellant, public trust principles have been applied by American and Indian courts. The intervener cites American decisions as well as decisions of Indian, Pakistani, and Kenyan courts to the same effect. There is no way for this court to assess the state of the law in the various jurisdictions based simply on these decisions, nor is it clear why decisions from these jurisdictions are relevant to the development of Canadian law in any event.
[49] Both the appellant and the intervener assert that the public trust concept is immanent in the law – rooted in the common law – but offer little in support of this assertion. They say that the Supreme Court’s decision in Canfor left the door open to the application of the public trust doctrine, but that case concerned a claim for environmental compensation by the Crown against a private actor, not a claim against the Crown. Although Binnie J. observed that “[t]he notion that there are public rights in the environment ... has deep roots in the common law”, he stated clearly that those rights “reside in the Crown”: Canfor, at para. 74. The same is true of the state’s parens patriae jurisdiction.
[50] Canfor does no more than acknowledge that although there is no legal barrier to the Crown suing for environmental damage to public lands, there are important and novel policy questions that would have to be addressed. These include the Crown’s potential liability for inactivity in the face of threats to the environment, as well as “the existence or non-existence of enforceable fiduciary duties owed to the public by the Crown in that regard”. The Supreme Court concluded that Canfor was not a proper case for it to consider these issues.
[51] Canfor may not have precluded the development of a public trust doctrine, but it cannot be said to have encouraged the idea. In any event, the court appears to have presumed that the doctrine was limited to environmental matters – not buildings or cultural works.
[52] Developments since Canfor offer no support for a Canadian public trust doctrine. Indeed, two attempts to establish the doctrine have been struck out at the Federal Court of Appeal. In Burns Bog Conservation Society v. Canada, 2014 FCA 170, 464 N.R. 187, the court struck a claim seeking an order compelling the Crown to protect a peat bog and an injunction halting development based on a public trust or fiduciary duty. In La Rose v. Canada, 2023 FCA 241, 488 D.L.R. (4th) 340, the court struck out a statement of claim seeking remedies for Canada’s failure to address climate change. Justice Rennie stated clearly that the Attorney General’s capacity to represent the public interest, as described in Canfor, is not a substantive, enforceable obligation owed to the public at large. The public trust doctrine provides a conceptual explanation of the Crown’s capacity to sue on behalf of the public, but “it is an entirely different proposition to say that the Crown can be compelled to fulfill some form of a parens patriae jurisdiction which would be defined by the court”: La Rose, at para. 60. He went on to note the “host of conceptual problems” a trust-like obligation on the Crown would entail: at para. 61.
[53] The most that can be said for the appellant’s position, then, is that a public trust doctrine – a doctrine of an unspecified nature and application – might one day be adopted into Canadian law. The appellant thinks that this is a normatively desirable outcome that should occur but offers no basis that would permit this court to accede to its submission.
[54] The intervener appears to put this issue on a quasi-constitutional plane, asserting that the public trust is a “fundamental norm of justice” rooted in the same values that underpin s. 7 of the Charter. According to the intervener, the right to a healthy environment exists in the constitution and the public trust is a means by which the public can require the government to comply with its fundamental responsibilities to protect natural resources, the environment, and cultural heritage. Finally, the intervener asserts that recognition of the public trust is consistent with Canada’s international obligations.
[55] These submissions fail to address a number of fundamental problems with the public trust concept. Is a public trust similar to a traditional trust? Does the doctrine depend on Crown ownership or does Crown ownership displace it? How and when does a public trust arise? Can it apply to “cultural heritage” or buildings, as opposed to natural resources or the environment? If Ontario Place is subject to a public trust, did the trust arise when it was built, or at some later date when it developed cultural value or significance? Neither the appellant nor the intervener could answer any of these basic questions.
[56] Finally, I note that the appellant seeks a declaration not that the Crown is in breach of the public trust but that various provisions of ROPA are – specifically, ss. 9, 10, 11, and 17. Even assuming that a public trust doctrine exists, I do not see how democratically enacted legislation could be said to breach it, nor do I see the point of a declaration given that the doctrine has no constitutional force, as the appellant concedes.
[57] In summary, the appellant has not established that a public trust doctrine exists in Canadian law or that it would apply to ROPA if it did. There is no basis to issue the requested declaration. . La Rose v. Canada
In La Rose v. Canada (Fed CA, 2023) the Federal Court of Appeal considered a political plaintiffs' appeal from a trial court's striking of pleadings, here where aboriginal and youths sued the government for causing - and failing to mitigate - climate change.
In these quotes the court considers the speculative 'public trust doctrine', here in the context of refraining from striking pleadings only because of novelty:VI. Public trust doctrine
[53] In their statement of claim, the youth appellants assert that Canada has breached its duty to preserve and protect inherently public resources—bodies of water, the air, and the permafrost—so that current and future generations may access, use, and enjoy these resources. They describe Canada’s obligations in this regard as originating from a “public trust doctrine” (youth appellants’ statement of claim at para. 239).
[54] Manson J. concluded that this claim had no reasonable prospect of success as “there [was] no legal foundation to suggest that the public trust doctrine, as described by the [youth appellants], discloses a reasonable cause of action” (La Rose Reasons at para. 87). Manson J. also noted that “the public trust doctrine is a concept that Canadian Courts have consistently failed to recognize” and stated that this doctrine “does not exist in Canadian law” (La Rose Reasons at para. 93).
[55] The youth appellants argue that the doctrine’s lack of prior recognition by Canadian courts does not necessarily indicate that their public trust claims were doomed to fail. Further, they say that the Supreme Court in Canfor expressly left open the possibility that a public trust doctrine could be advanced, and that an extension of the common law in these circumstances would accord with a principled and incremental legal development of the law (Paradis Honey Ltd. v. Canada (Attorney General), 2015 FCA 89, [2016] 1 F.C.R. 446 at paras. 116-117, leave to appeal to SCC refused, 36471 (29 October 2015) [Paradis Honey]).
[56] The contours of the public trust doctrine as pleaded by the appellant are imprecise and fluid; the doctrine is described as a trust-like duty, an aspect of the Crown’s parens patriae jurisdiction, a fiduciary obligation and an unwritten constitutional principle. The doctrine is said to impose specific, enforceable obligations on Canada to preserve and protect public resources such as the air, the atmosphere, navigable waters and territorial seas. The doctrine would require Canada to exercise continuous supervision and control over these resources, to protect the public rights to their use and enjoyment and to ensure their integrity for future generations. The youth appellants say that Canada owes these obligations to its citizens, who, as beneficiaries, can enforce the doctrine where Canada has not lived up to its responsibilities.
[57] I disagree that Manson J. erred as alleged by the youth appellants. The motions judge understood the jurisprudence with respect to both motions to strike and the public trust doctrine and applied it correctly.
[58] Manson J.’s conclusion was shaped not by the novelty of the public trust claims (La Rose Reasons at paras. 81-84), but by his analysis of two decisions dealing with public rights vested in the Crown, Canfor and Burns Bog (La Rose Reasons at paras. 88-92). Measuring the youth appellants’ public trust claims against the existing case law, Manson J. identified the claims as resting on an entirely non-existent cause of action and accordingly determined that the claims had no reasonable prospect of success (La Rose Reasons at paras. 92-94, citing Atlantic Lottery at para. 19). I agree with the judge’s reasons.
[59] Canfor establishes that the Crown may bring a tort action as a “representative of the public to enforce the public interest in an unspoiled environment” (Canfor at para. 64). Binnie J. determined that although the Crown was limited to suing in its capacity as a private party as landowner of the damaged forests, the Attorney General may have standing to bring an action on behalf of the general public in a proper case based on the parens patriae responsibilities of the Crown (Canfor at paras. 76 and 81). Binnie J. stated in obiter that this standing would raise important policy questions relating to “the Crown’s potential liability for inactivity in the face of threats to the environment” and “the limits to the role and function and remedies available to governments taking action on account of activity harmful to public enjoyment of public resources”, but did not comment on the merits of these questions (Canfor at paras. 81-82).
[60] The Attorney General’s presumptive standing to appear and act in the public interest, as established in Canfor, cannot be equated to a substantive, enforceable obligation owed to the public at large. The public trust doctrine provides an affirmative basis for the Crown to act; it is an entirely different proposition to say that the Crown can be compelled to fulfill some form of a parens patriae jurisdiction which would be defined by the court.
[61] There are also a host of conceptual problems in imposing a fiduciary or trust-like obligation on the Crown, most notably the difficulty of reconciling the obligations of a trustee or fiduciary to act solely in the best interests of an identified person or group with the principles of Westminster parliamentary democracy. Parliament and Cabinet must act in what they consider to be the best interests of Canada as a whole (Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, [2011] 2 S.C.R. 261 at paras. 44 and 50), and in accordance with the Constitution Act, 1867, which places most lands under provincial responsibility. This Court in Burns Bog interpreted Canfor to leave open the possibility that the public trust doctrine could apply, but confirmed that it would not apply where the Crown did not own the land in question (Burns Bog at paras. 44, 46-47). The youth appellants’ claim is not targeted to land owned by Canada.
[62] Accepting that a public trust doctrine may some day be recognized in Canadian courts, I agree with the motions judge that “[Canfor and Burns Bog] do not approach the breadth of the rights and actionable interests that the [youth appellants] claim could exist at common law” (La Rose Reasons at para. 92). Neither Canfor nor Burns Bog support a claim that Canada has an affirmative, trust-like duty to protect public resources in the way that the youth appellants desire, no matter how sound their objectives or how genuine their motives. The principles that inform when trust-like duties may be imposed on the Crown are narrow. The public trust claim was therefore properly struck.
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X. A note on precedent
[119] The law cannot remain stagnant. That said, courts must be cautious in spurring its development: too quick and the law becomes unpredictable and capricious, too slow and justice falls behind and loses its relevancy. Doctrines of law that are now well-established were, at their inception, the targets of motions to strike. Witness, for example, the history of the tort of conspiracy (Frame v. Smith, [1987] 2 S.C.R. 99, 1987 CanLII 74 (SCC); Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959, 74 D.L.R. (4th) 321 [Hunt]); negligent misrepresentation (Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd., [1963] 2 All E.R. 575, [1964] AC 465); the concept of neighbourhood and the duty of care (Donoghue v. Stevenson, [1932] All E.R. Rep. 1, 1932 CanLII 536 (FOREP)); and the defence of non-infringing alternatives (Merck & Co., Inc. v. Apotex Inc., 2012 FC 454, 106 C.P.R. (4th) 325).
[120] Therefore, the fact that a pleading raises a novel point of law, with few jurisprudential antecedents, cannot justify striking it out. Neither the length and complexity of the issues nor the potential for the defendant to raise a strong defence should prevent the plaintiff from having its case tried. It is, in the language of the Supreme Court, “[o]nly if the action is certain to fail because it contains a radical defect” that the claim should be struck out (Hunt at 960). To the contrary, as the history of the common law demonstrates, it may be essential that a novel, but as-yet unprecedented argument proceed to an in-depth analysis. It is only in this way that the common law can evolve to respond to the challenges of modern society.
[121] A motion to strike is a valuable tool in ensuring that litigation is efficient and fair, and that the common law remains within reasonable bounds—but it must be used with care (Imperial Tobacco at paras. 20-21). As Stratas J.A. noted in Paradis Honey at para. 116, the common law is not a “petrified forest”; it is “in a continual state of responsible, incremental evolution”. This incrementalism provides a sensible pathway for development of the law, based on reason and doctrine, not simply a sense for what is “appropriate and right” (Paradis Honey at para. 117).
[122] The careful line that courts must tow as described by Stratas J.A. is exemplified by the appellants’ section 91, public trust and section 15 claims. As discussed, there is not a glimmer of support for the appellants’ argument in the extensive jurisprudence with respect to the general power. In fact, the appellants’ argument fundamentally recasts it into something unrecognizable; it becomes a threshold or standard which all legislation must cross. Similarly, the public trust doctrine bears no resemblance to its jurisprudential antecedents. The parens patriae responsibility of the Attorney General to act to preserve public resources is modified to be an affirmation obligation enforceable by the citizenry.
[123] The appellants’ section 15 claims have no jurisprudential root and they are conceptually outside the scope of section 15, at least as it has been understood to date. Section 15 has evolved from a search for substantive discrimination at its inception (Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, 1989 CanLII 2), to a comparator group analysis (Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, 1999 CanLII 675) only to return to a search for substantive discrimination (Withler). Subject to what I say below, not once in the jurisprudential journey has the question of whether intergenerational equity falls within the scope of section 15 arisen. To the contrary, the jurisprudence points away from broad societal reconciliation seeking equity between generations towards a focus on substantive discrimination arising from a particular legislative context. The appellants’ section 7 claims, in contrast, even if construed as positive rights claims, still rest on doctrine, albeit relatively unexplored doctrine and have a reasonable prospect of success.
[124] The dissenting reasons in Sharma sought to employ section 15 to remedy the intergenerational cycle of imprisonment in Indigenous populations. However, while the harms in Sharma to Indigenous populations were prospective, they were also retrospective and current: the over-representation of Indigenous women in prison brought about by historical disadvantage, often leads to their children falling into that same criminal justice system (Sharma at paras. 233-235). Here, in contrast, the section 15 breach alleged by the appellants is prospective. The environmental consequences will be dire if action is not taken now, but unlike in Sharma, there is no present harm to which the section 15 challenge can anchor itself.
[125] That said, the youth appellants do claim a form of present harm: that the impending climate crisis causes psychological distress. This distress is no doubt real, ongoing, and burdensome. However, such distress finds its better home under a section 7 challenge as a threat to the security of the appellants’ persons. This distinction between present but self-perpetuating harm and harm that lies in wait (even if causing current psychological distress) may one day be irrelevant, and both may be able to sustain a cause of action under section 15—but that is not the current state of the law.
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