In a decision issued July 26, Ontario Superior Court Justice Lisa Brownstone ruled that s. 17(2) of the Rebuilding Ontario Place Act (ROPA), which removes the ability to claim compensation or a remedy against the government as a result of the Act, did not violate s. 92 of the Constitution Act, 1867 (Ontario Place Protectors v. HMK in Right of Ontario, 2024 ONSC 4194).
“The inherent jurisdiction of superior courts does not equate to limitless jurisdiction,” she wrote. “The legislature has broad authority to enact legislation, repeal legislation, create significant immunity from litigation for various actors and extinguish causes of action.”
The court’s findings come as the result of a legal challenge by a group called Ontario Place Protectors (OPP), who argued s. 17(2) was an impermissible removal of both authority from the courts and access to justice for citizens.
But Justice Brownstone found that s. 17(2) does not preclude an application for judicial review.
“[The Act] does not remove general access to the courts or grant immunity to the Crown at large. Rather, it extinguishes specific causes of action and grants immunity in a single context,” she wrote. “Given that there is no evidence that the applicant has or could have a legal cause of action or claim for compensation or other remedy, the analysis is necessarily general and abstract.”
The Ontario government first announced plans to develop the long-dormant Ontario Place site in July 2021 but was hit with public opposition as well as a number of lawsuits. In June, an Ontario Superior Court justice dismissed an application by another citizens’ group, Ontario Place for All, for an environmental assessment of the site (Ontario Place for All Inc. v. Ontario Ministry of Infrastructure, 2024 ONSC 3327).
The Rebuilding Ontario Place Act gives the provincial government special powers to speed up the redevelopment of Ontario Place by providing exemptions from the Environmental Assessment Act, the Heritage Act and City of Toronto noise bylaws. But Justice Brownstone rejected the OPP’s arguments that those exemptions were a breach of public trust.
“The public trust doctrine has… been rejected by the Federal Court and Federal Court of Appeal when raised directly,” she wrote. “The applicant concedes that the doctrine of public trust is not a constitutional doctrine, written or unwritten. Therefore, even if the doctrine exists in Canadian law, it provides no basis for striking down legislation.”
A declaration “in the air” that the provisions breach the public trust, without any remedy of striking them down, serves no purpose, Justice Brownstone wrote.
“Even if there were a doctrine of public trust, which is far from certain, and even if the doctrine were to apply to Ontario Place, which is even less certain, there is nothing to be served by a declaration that the provisions in question are a breach of public trust,” she wrote. “The court does not provide declarations that are of merely academic importance and [have] no utility.”
After the ruling was released, the OPP put out a statement that said “many observers” found it to be “surprising and disturbing” and “does not appear to address the precedent set by Ontario’s actions.”
Their lawyer, Eric Gillespie of Gillespie Law, said the public may not be aware of how far the legislation has gone and what it means for the future.
“The overarching issue is this — if you can essentially eliminate all laws for Ontario Place there is now nothing preventing the government from doing this for anything, including new expressways, airports, eliminating the Greenbelt or any other government project,” he said.
“One would think” almost every resident of Ontario should be very concerned about that prospect, said Gillespie.
“The difficulty many people will likely have with this ruling is that the government could not possibly have gone further than eliminating all remedies under all Ontario statutes,” he said.
Keesha Seaton, a spokesperson for the Ministry of the Attorney General, said the government was pleased with the decision and eager to move forward with the Ontario Place development.
“As this matter is in the appeal period, it would be inappropriate to comment further,” she said.
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