Ecojustice and Environmental Defense are seeking judicial review of Ontario Minister of Municipal Affairs and Housing Steve Clark’s decision to overturn Hamilton City Council’s urban boundary freeze and impose an urban boundary expansion onto prime agricultural lands.
Environmental Defense lawyer Phil Potham is a very skilled planning lawyer. His experience and reputation override my skepticism that a judicial review will be successful.
Nonetheless, I will outline some of my skepticism, acknowledging again that Potham and the team of lawyers he is part of can win this case.
Municipalities are creatures of the province. The province can do nearly anything it sees fit to them.
The Legislative Assembly intended to give the Minister of Municipal Affairs and Housing significant powers and latitude in the Planning Act.
Yes, I acknowledge the Legislative Assembly is effectively useless, that the Party bosses (all parties) hold all the power, and that backbench government MPPs serve merely as trained puppets.
The Courts are loath to be seen as interfering in political decision-making. The Courts seek to uphold the separation of powers between the judicial, executive, and legislative branches of government.
Creatures of the Province
The recent Toronto ward boundaries court cases, involving the infamous decision by Premier Doug Ford to decrease the number of wards in Toronto to 25 during the 2018 municipal election, are informative.
In these cases, both the Ontario Court of Appeal and the Supreme Court of Canada held the province could change ward boundaries in the middle of the election, and there were no Charter protections for municipalities or municipal candidates.
There are two key differences between that court case and this judicial review.
The Hamilton urban boundary case is not a Charter challenge. The Toronto ward boundary case was.
The Hamilton decision is administrative. The ward boundaries were changed by legislation.
From the Ontario Court of Appeal decision, Toronto (City) v. Ontario (Attorney General), 2019 ONCA 732:
“ As explained below, none of the arguments advanced by the City of Toronto can succeed. Although it is framed as a matter of protecting freedom of expression in the context of a municipal election, in reality the applicants’ complaint concerns the timing of the legislature’s decision to change the composition of City [page709] Council — a change that is undeniably within the legitimate authority of the legislature. The applicants’ complaint has been clothed in the language of s. 2(b) of the Charter to invite judicial intervention in what is essentially a political matter. There is no legitimate basis for the court to accept this invitation.” [emphasis added]
Judicial Review, Reasonable, and Deference.
The Supreme Court of Canada provides an excellent summary explaining the “reasonableness” standard of judicial review.
“A ‘reasonable’ decision is based on a logical chain of reasoning. It has to make sense in light of the law and the facts.”
“There can be more than one ‘reasonable’ outcome. Courts have to accept any decision that’s ‘reasonable.’ They have to accept it even if they would have decided something different themselves.”
In addition to the usual “reasonableness” standard of review, the Courts traditionally give deference to the Cabinet when exercising its political discretion.
This is to say; there is a tremendous legal burden upon the environmental appellants.
The Arguments and Remedy Sought
In a 44-paragraph application for judicial review, lawyers for the environmental groups argue Ontario’s Minister of Municipal Affairs Steve Clark failed to comply with sections of the Planning Act when he overturned Hamilton’s urban boundary freeze.
On November 4, 2022, Minister Clark imposed a new Official Plan upon the City of Hamilton. The provincial order expands the city’s urban boundary by 2,200 hectares.
“Unreasonable in light of” Section 1.1 of the Planning Act
The environmental appellants argue the Minister’s order is “unreasonable” and does not comply with the opening section of the Planning Act that states:
“1.1 The purposes of this Act are,
(a) to promote sustainable economic development in a healthy natural environment within the policy and by the means provided under this Act;
(b) to provide for a land use planning system led by provincial policy;
(c) to integrate matters of provincial interest in provincial and municipal planning decisions;
(d) to provide for planning processes that are fair by making them open, accessible, timely and efficient;
(e) to encourage co-operation and co-ordination among various interests;
(f) to recognize the decision-making authority and accountability of municipal councils in planning. 1994, c. 23, s. 4.”
The appellants argue the Minister’s decision “failed to consider the purposes of the Act enumerated in s. 1.1” which include the promotion of “sustainable economic development in a healthy natural environment” and recognition of “the decision-making authority and accountability of municipal councils in planning.”
“The Minister unreasonably failed to consider these purposes and values as constraints on his decision-making under the Act, and failed to explain in a transparent, justifiable, or intelligible matter how the decision to impose amendments on the City’s Official Plans was consistent with those values and purposes,” reads the judicial review application.
Minister unreasonably ignored the requirements of section 2 of the Act?
They argue the Minister must explain his reasons for his decision “furthered or at least did not conflict with” the provincial interests listed in Section 2 of the Planning Act.
This section lists 19 provincial interests to balance in planning decisions.
(a) the protection of ecological systems, including natural areas, features and functions;
(b) the protection of the agricultural resources of the Province;
(f) the adequate provision and efficient use of communication, transportation, sewage and water services and waste management systems;
(j) the adequate provision of a full range of housing, including affordable housing;
(p) the appropriate location of growth and development;
(q) the promotion of development that is designed to be sustainable, to support public transit and to be oriented to pedestrians;
(s) the mitigation of greenhouse gas emissions and adaptation to a changing climate.
The Minister unreasonably ignored the requirements of s. 3(5) of the Act?
Similar to the arguments for Section 2 of the Planning Act, the appellants argue the Minister failed to consider the entirety of the Provincial Policy Statement and the Growth Plan, “A Place to Grow, 2020.”
“The Minister unreasonably failed to consider the objectives of the PPS and Growth Plan or the specific policies thereunder as constraints on his decisionmaking under the Act and failed to explain in a transparent, justifiable, or intelligible matter how the decision was consistent with or conformed to the plain language and intent of the applicable plans and policies,” they write.
Argument Hamilton’s Boundary Freeze Meets Provincial Requirements
The appellants will argue that Hamilton’s urban boundary freeze growth plan, with an 80 percent intensification target, meets the provincial land needs assessment requirement to 2051.
They argue the Minister overturning Hamilton’s local plan is “unreasonable” because the Hamilton plan complies with the Provincial Policy Statement and Growth Plan.
Minister Non-Compliant With Environmental Bill of Rights?
The appellants will argue the Minister unreasonably failed to consider Ontario’s Environmental Bill of Rights, especially Section 11, which states:
“11The minister shall take every reasonable step to ensure that the ministry statement of environmental values is considered whenever decisions that might significantly affect the environment are made in the ministry.”
Generally speaking, administrative decision-makers are expected to provide written reasons for their decisions.
The appellants’ application includes this as grounds for quashing the Minister’s decision.
“The Minister provided no public reasons for his decision to impose significant amendments on the City’s Official Plans.”
The Supreme Court of Canada website’s judicial review brief notes, “there are some cases where decision-makers don’t have to give reasons. But people need to understand the decisions that apply to them.”
[For emphasis, the SCC brief is not a legal document. It serves “to help the public better understand Court decisions. I cite it for convenience and its use of plain language]
2018’s Christian Heritage Party of Canada et al. v. City of Hamilton was decided against the City of Hamilton for lack of reasons.
The appellants ask the Court for:
(a) A declaration that the Minister’s amendments to the Official Plans were unlawful;
(b) An order quashing the Minister’s amendments to the Official Plans and remitting the matter back to the Minister for redetermination;
(c) Guidance from the Court requiring the Minister to consider the policy statements referenced in subsection 3(5) of the Act when exercising the powers as approval authority under section 17(34) of the Act.
Joey’s Concluding Thoughts
This will be a novel case. We’ll have to see what happens.
The courts do not substitute their judgement for the decision maker in judicial review, which is why the remedy sought is for the Court to provide “guidance” to the Minister.
Even if environmental applicants are successful, Premier Doug Ford and Minister Clark will be able to impose their will and force the expansion of Hamilton’s urban boundary.
Let’s presume the Divisional Court rules in favour of the environmental applicants, and the Court’s guidance goes as far as stating the boundary expansion is not allowed under present legislation, the Conservative government can simply change the Planning Act.