Premier Doug Ford’s government will again try to clear one of the last foreseeable hurdles to its Ontario Place redevelopment in court next month.
In just under five weeks, a three-judge panel will listen to arguments to decide whether or not an activist group’s legal challenge that could slow down the Ford government’s plan will continue.
Next month’s hearing in Ontario’s Divisional Court will effectively serve as a do-over of one that a single judge presided over a few weeks ago, but chose not to rule on.
Lawyers representing the government and Ontario Place For All first argued before Justice Nancy Backhouse over whether or not the challenge by the group seeking to disrupt the redevelopment should continue on March 19. Just over a week later, Backhouse released what was seen as a surprise ruling — and win — in favour of Ontario Place For All by prolonging the case by passing the responsibility of a decision on to a panel of judges.
Backhouse wrote in her March 27 ruling that “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.”
A panel of three Divisional Court judges is now set to hear arguments over whether the case should be quashed — as the government wishes — on May 13.
Ontario Place For All, an activist group, filed a court application on Nov. 9 trying to require the provincial government to conduct an environmental assessment of Ontario Place’s west island.
The west island of the manmade site on Toronto’s waterfront is where Therme is set to build a private spa and waterpark, which its lease of the land with the Ford government will allow it to operate for up to 95 years.
The provincial government exempted the west island from the environmental assessment of Ontario Place that it completed last year.
On Nov. 27, the Ford government introduced legislation to exempt Ontario Place’s west island from typical environmental assessment requirements. The Progressive Conservatives fast-tracked the bill, passing its Rebuilding Ontario Place Act into law in less than two weeks.
A couple of weeks later, the government filed a motion in court to quash the activist group’s challenge, citing the newly passed law.
In one of its filings to the court before the March 19 hearing, Infrastructure Ontario argued the challenge should be considered “moot” as it “cannot succeed” because of the Rebuilding Ontario Place Act’s law changes. Through her March 27 ruling, Backhouse suggested she rejected this idea.
“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,” Backhouse wrote.
“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.”
Currently, early work in preparation of the construction of the overall redevelopment project is ongoing at Ontario Place.
If successful, Ontario Place For All’s court challenge could lead to a stalling of the redevelopment while additional environmental assessment work is completed.
Ontario’s auditor general’s office is continuing to work away at a special audit of the redevelopment plans as well.
