The fate of a legal challenge threatening to stall the Ford government’s Ontario Place redevelopment plan could be decided within a few weeks after lawyers argued over its potential dismissal on Monday.
Whether an activist group’s legal challenge will continue is set to be decided by three Divisional Court justices after a lone judge passed them the responsibility about a month and a half ago. In a March 27 decision, Justice Nancy Backhouse wrote that given the “significant public law interest and concern” around the government’s attempt to quash an activist group’s legal challenge, three judges should determine whether or not it proceeds, rather than just her.
Ontario Place For All wants a court to require the provincial government to complete a full environmental assessment of Ontario Place’s west island, where Therme is set to build its private spa and waterpark. If successful, the activist group’s court challenge could delay the project for months, or more.
Within weeks of Ontario Place For All (OP4A) applying for a judicial review, Progressive Conservative MPPs passed a law to exempt the Toronto waterfront site’s west island from the Environmental Assessment Act. Weeks later, Premier Doug Ford’s PC government filed a court motion to quash Ontario Place For All’s challenge — which the former’s lawyers argued made the latter’s case “moot.”
Justice Backhouse presided over lawyers from both sides’ arguments over whether the case should proceed on March 19 before ultimately ruling to pass a decision to a panel on March 27.
Backhouse’s decision was seen as a small win for Ontario Place For All’s case, as it was allowed to continue. In it, the judge acknowledged the government’s argument that “the will of the legislature must prevail, even if expressed retroactively” may ultimately succeed.
However, Backhouse also 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.”
West island worries
Since 2019, the year the Ford government officially launched its call-for-proposals for the redevelopment of Ontario Place, Ontario Place For All has advocated for its publicly accessible spaces to remain as such.
On July 30, 2021, Ford announced his government chose Therme as its main partner in its redevelopment of Ontario Place. Its selection — and details of its involvement, such as the up-to-95-year term of its lease, and the inclusion of a new taxpayer-funded parking facility at the site — have repeatedly bubbled up as a controversy at Queen’s Park in the years since.
The Ford government-launched environmental assessment of Ontario Place was undertaken from early 2022 until late last year, with the Ministry of Infrastructure publishing its final report on Nov. 16. The west island, where Therme intends to build its spa and waterpark, was exempted from this assessment.
Ontario Place For All also filed its court challenge on Nov. 16.
The Ford government introduced the Rebuilding Ontario Place Act within a bill it introduced on Nov. 27. It fast-tracked the bill’s passage, with PC MPPs using their majority to vote it into law on Dec. 5.
A day earlier, the Ford government secured another related win, with Canada Environment Minister Steven Guilbeault opting not to initiate a federal environmental impact assessment of Ontario Place, which Ontario Place For All had also requested.
Through work it completed to inform Guilbeault’s decision, the Impact Assessment Agency of Canada concluded Therme’s project “is likely to cause” adverse effects to wildlife and habitats on the west island, but that they could be mitigated.
The Divisional Court’s hearing over whether to quash Ontario Place For All’s challenge was held in downtown Toronto on Monday. Afterwards, Norm Di Pasquale, the group’s co-chair, said he felt its lawyers “argued very well why this case is so clearly in the public interest and why the Ontario government should follow their own laws.”
“We look forward to hearing (the judges’) decision,” Di Pasquale added.
Infrastructure Minister Kinga Surma’s office hadn’t responded to The Trillium’s request for comment about the proceeding before publication of this story.
Provincial government-contracted site-servicing work to prepare for the larger redevelopment project has been underway at Ontario Place for several months.
Last Thursday, Infrastructure Ontario announced it was accepting bids on a contract to construct a new Ontario Science Centre facility at Ontario Place. The Ford government announced its intention to relocate the science centre to Ontario Place in April 2023.
Ontario's auditor general is currently working on an audit of the Ontario Place redevelopment.
