Ontario Place Protectors launches appeal with Ontario’s highest court

A group is filing an appeal for its legal challenge to the redevelopment of Ontario Place. The original case was heard this summer and the case was dismissed by a judge at the Superior Court of Ontario. The appeal would be heard by the Ontario Court of Appeal, the province’s highest court.

Ontario Place Protectors filed one of two public interest court challenges questioning the government’s ability to enable the private redevelopment of Ontario Place to proceed without an environmental assessment. The group also challenged the site’s exemption from the Ontario Heritage Act and the City of Toronto’s noise bylaws. While a judge at Ontario’s Superior Court of Justice decided against Ontario Place Protectors this summer, the group has now filed an appeal to this decision.

In August 2021, Austrian company Therme Group and North American entertainment giant Live Nation were selected to redevelop large sections of Ontario Place, a legacy waterfront property in downtown Toronto. Therme plans to create a privately-run indoor water recreational facility with a 8.4-acre footprint—the size of six football fields, or roughly the size of the Roger’s Centre (formerly SkyDome). Live Nation plans to double the capacity of the existing Budweiser Stage, making it into a four-season concert venue. The provincial plans also involve the relocation of the Ontario Science Centre to a half-sized facility at Ontario Place.

In November 2023, grassroots organization Ontario Place for All submitted a court challenge that questioned the lack of environmental assessment for the Therme development. Beyond just examining risks to flora and fauna, an environmental assessment is an integrated review that also looks at the economic and social impacts of a project, including its heritage aspects, as well as possible mitigative measures.

The Ministry of Infrastructure had exempted the Therme proposal from undergoing such a study on the basis that the project was not a “public” undertaking, but a private one. (Ontario is the only Canadian jurisdiction in which environmental assessments are not required for private projects.) In its court challenge, Ontario Place for All argued that the exemption was not justified, given that the land is publicly owned, and the government is providing and funding significant infrastructure to enable it.

The Province effectively evaded this court challenge. Shortly after it was filed, the Province and City agreed to the New Deal for Toronto. In return for uploading the costs of the Gardiner Expressway and the Don Valley Parkway to the Province, the City of Toronto dropped its opposition to plans for Ontario Place. In the ensuing legislation, the Rebuilding Ontario Place Act (ROPA), part of Bill 154, the Province gave the Therme and LiveNation developments a blanket exemption from the Environmental Assessment and Heritage Acts. Because of this exemption, the Ontario Place for All challenge was dismissed.

In late June of 2024, the government dramatically—and unexpectedly—accelerated development of Ontario Place. On Friday, June 21, the Province closed the Ontario Science Centre on the flimsy, now-debunked premise that an engineer’s roof report required the closure. The next day, they started demolition of the structures on Ontario Place’s West Island—the first steps towards preparing the land for Therme’s project.

The demolition at Ontario Place was temporary stayed pending the hearing of another court challenge, this one led by advocacy group Ontario Place Protectors. Ontario Place Protectors’ case contended that the Rebuilding Ontario Place Act is unconstitutional in immunizing the Province from civil liability related to their work at Ontario Place. It also contended that, in declaring Ontario Place to be exempt from the Environmental Assessment Act, the Ontario Heritage Act, and the City of Toronto’s noise bylaws, the Province has violated the doctrine of public trust—the principle that the site ultimately belongs to the people of Ontario, and is held in trust by the Government of Ontario.

Ultimately, the judge upheld the Rebuilding Ontario Place Act, agreeing with the government’s lawyer that the buildings and land at Ontario Place are under the Minister of Infrastructure’s control, and that the government has a right to make, amend, and repeal laws, including exempting itself from its own laws. Demolition resumed shortly after and is currently ongoing.

In its appeal, Ontario Place Protectors will argue that the broad exemptions to Ontario’s statutes and associated regulations granted by the Rebuilding Ontario Place Act are unprecedented. “No one appears to have properly considered the full extent of the limits placed on Superior Court’s powers to grant remedies under ROPA,” writes the applicant. They also argue that allowing the legislation to stand sets a dangerous precedent: “There is also now nothing precluding the Crown in Ontario, or in any other Province, or the Federal Crown, from eliminating the Superior Court’s jurisdiction (at minimum) from all further development it wishes to undertake. Development projects may also only be the commencement of the use of these powers.”

The appeal was filed with the court on September 12, 2024. The appeal would fall to a court that would include the Chief Justice of the Superior Court of Justice, Associate Chief Justice of the Superior Court of Justice, and 14 Justices of appeal. A date has not yet been set for the appeal to be heard.

Ontario Place Protectors’ factum for the appeal is embedded below, in full:

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