A court challenge that could impact Premier Doug Ford's closely watched Ontario Place redevelopment plans has survived an initial attempt by the government to have it thrown out.
On Wednesday, a divisional court justice ruled that a three-judge panel should take over the case given its "context of significant public law interest." Justice Nancy Backhouse's decision came just over a week after she heard arguments by lawyers representing the provincial government and an activist group opposing plans to allow Therme to build a spa and waterpark at Ontario Place over whether the case should be thrown out.
Ontario Place For All, the activist group, filed a court application on Nov. 9 attempting to require the provincial government to conduct an environmental assessment of Ontario Place's west island. An environmental assessment of Ontario Place that the province completed last year did not include the west island — where Therme's part of the redevelopment project is planned.
A couple of weeks later, Ford and Toronto Mayor Olivia Chow announced their "New Deal for Toronto," through which the mayor agreed to backing down from opposing the province's redevelopment plan. The City of Toronto had control over a small part of the land required in the redevelopment. Chow had promised to oppose the Ford government's plans while running in Toronto's 2023 mayoral byelection.
After Ford and Chow announced their agreement, Finance Minister Peter Bethlenfalvy tabled Bill 154, the New Deal for Toronto Act. It included a new law — the Rebuilding Ontario Place Act — to allow the provincial government to exempt parts of Ontario Place from requirements under the Environmental Assessment Act.
Bill 154 was fast-tracked to passage by Ford's PCs, being voted into law just before the legislature rose for its winter break from sitting. A few weeks later, the provincial government filed an application to the divisional court asking it to quash Ontario Place For All's challenge, citing environmental assessment exemptions allowed under the Rebuilding Ontario Place Act.
On March 19, Backhouse heard arguments from government lawyers about why the case should be dismissed, and from Ontario Place For All's lawyers about why it should continue.
As Backhouse's decision on Wednesday notes, the government argued that the activist group's challenge should "become moot as a result of the passage of" the Rebuilding Ontario Place Act, which its lawyers described as being "moot and obvious."
Lawyers for Ontario Place For All, meanwhile, argued that, because of pre-existing environmental assessment requirements, "the core issue is whether it was unlawful for Ontario to have excluded the West Island Redevelopment from the (2023-completed) EA in the first place," Backhouse's decision explained.
Instead of ruling whether to quash the court challenge or not, Backhouse effectively deferred it to a panel of three justices.
The judge also included what reads as pointed criticism of the Ford government in the conclusion of her ruling. "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," Backhouse wrote.
"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," added the judge.
Ontario Place For All's court challenge represents one of the final significant foreseeable challenges to the Ford government's plans to redevelop Ontario Place.
In early December, the federal government turned down a request from the activist group to conduct its own environmental impact assessment. Through the work the Impact Assessment Agency of Canada conducted leading to federal Environment Minister Steven Guilbeault's decision, it found that Therme's spa and waterpark project would be "likely to cause" adverse effects to wildlife and habitats on the west island of Ontario Place. These, however, could be mitigated, the federal impact assessment agency also found.
