In an all-day hearing on Friday, July 19, advocacy group Ontario Place Protectors challenged the fast-tracking of work at Ontario Place before Ontario’s Superior Court of Justice. A decision on the challenge by Justice Lisa Brownstone is expected in the coming week, with the Province agreeing to continue the halt on demolition work until the decision is rendered. Justice Brownstone also indicated that she will consider Ontario Place Protectors’ request that the stay on demolition continue for an additional five days following her decision, so as to allow time for either party to file an appeal.
Ontario Place Protectors’ case contends that the Rebuilding Ontario Place Act, part of Act 154, the New Deal for Toronto Act, 2023, is unconstitutional in immunizing the Province from civil and criminal liability related to their work at Ontario Place. It also contends that, in declaring Ontario Place to be exempt from the Environmental Assessment Act, the Ontario Heritage Act, and the City of Toronto’s noise bylaws, the Province has violated the doctrine of public trust—the principle that the site ultimately belongs to the people of Ontario, and is held in trust by the Government of Ontario.
The constitutional challenge focused on two issues: the first contended that ROPA limits the power of the court itself to perform judicial review, a process by which courts make sure the decisions of administrative bodies are fair, reasonable, and lawful. The second argued that ROPA infringes the right of the public to bring suits agains the Province.
While immunity clauses are not uncommon, Ontario Place Protectors argues that the one in ROPA is particularly extreme. The clause states that “no costs, compensation or damages, including for loss of revenues or loss of profit, are owing or payable to any person and no remedy, including but not limited to a remedy in contract, restitution, tort, misfeasance, bad faith, trust or fiduciary obligation, any equitable remedy or any remedy under any statute, is available to any person in connection with anything [resulting directly or indirectly from anything done at Ontario Place under the authority of ROPA].” Lawyer Eric Gillespie argued that the scale of exemptions is “unprecedented” and that the Act essentially allows the Province a “blank cheque” in terms of accountability for its actions. Quoting a precedent case, Gillespie said, “Complete government immunity has become intolerable.”
The third issue focused on the doctrine of public trust—a doctrine that Gillespie argued has been established in Canadian law. The principle is that Ontario Place belongs to Ontarians, rather than to the Ontario government, and development at the site should comply with existing laws such as the Environmental Assessment Act, Ontario Heritage Act, and municipal noise bylaws. However, the doctrine of public trust has never been upheld in relation to a particular case. Gillespie contended that this is because previous cases were too broad in the kind of public trust they asked for (things like the protection of Canada’s permafrost, or its air), whereas in this case, the property is a discrete parcel that is also a Crown holding whose high value is demonstrated by national and international recognition of its significant cultural landscape and architecture. In other words, if there was ever going to be a case where the doctrine of public trust was applied, this would be it. If Judge Brownstone chooses to accept this part of the Ontario Place Protectors’ argument, it would make this a landmark court decision.
The government’s lawyer responded to the challenge by arguing that broad immunity clauses exist elsewhere, for instance, in the way that members of a union are barred from bringing individual cases to court, but must do so through their union. They challenged the standing of the applicant—that is, the group’s right to bring this issue to the court in the first place. They also asserted that the buildings and land at Ontario Place are under the Minister of Infrastructure’s control, and that the government has a right to make, amend, and appeal laws, including exempting itself from laws such as the Environmental Assessment Act and the Ontario Heritage Act.
The hearing took place at the Toronto Courthouse at 361 University Avenue, in a building designed by Marani, Morris, and Allan, with landscape by Michael Hough—the same landscape architect who worked on the historic landscapes at Ontario Place.
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