Toronto
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Justices Matlow, greer, e. macdonald
B E T W E E N:
sos – sAVE our st. clair inc.
Applicant
- and -
CITY OF TORONTO and TORONTO TRANSIT COMMISSION
Respondents
Eric K, Gillespie, for the Applicant
Graham Rempe, for the Respondent, City of Toronto
James W. Harbell and Patrick G. Duffy, for the Respondent, Toronto Transit Commission
HEARD: October 6 and 7, 2005
1This application is for judicial review of the decision of the respondent, City of Toronto (“City”), “to proceed with the construction of a dedicated Streetcar Right of Way on St. Clair Avenue West from Yonge Street to Old Weston Road in the City of Toronto (the “St. Clair ROW”), in contravention of section 24 of the Planning Act, R.S.O. 1990, c. P. 13 and without completing a Class Environmental Assessment as required pursuant to the Environmental Act, R.S.O. 1990, c. E 18” and for a declaration that the City is in breach of the provisions of both Acts and for other relief.
2Section 24 (1) of the Planning Act reads as follows:
24 (1) Despite any other general or special Act, where an official plan is in effect, no public work shall be undertaken and, except as provided in subsections (2) and (4), no by-law shall be passed for any purpose that does not conform therewith.
3Although this application was brought only against the City, it was agreed by all counsel that the subject project was undertaken jointly by the City and the respondent, Toronto Transit Commission (“TTC”) and, for that reason, the latter was added by order as a respondent. Although service of notice of this application was made on the Attorney General as required, counsel for the Attorney appeared on an earlier return of the application and informed the Court that he had no interest in the outcome and did not wish to participate further in this proceeding.
4As well, it was agreed by all counsel that the decision attacked by this application was one made in the exercise of a statutory power and that judicial review was the appropriate remedy to test the legality of the decision which is the subject of this application.
5And, further, we were advised by all counsel that the project is presently already in progress but that it had been determined that no related work that would have to be reversed if this application were to succeed is scheduled to occur before October 12, 2005. Although counsel for both respondents undertook on behalf of their respective clients that no such work would take place until our decision were released even if it were delayed beyond October 12, 2005, counsel for the respondents let us know that time had become a significant factor and that their clients would welcome our decision as soon as reasonably possible so they would know whether or how to proceed.
6Accordingly, in order to help avoid the incurring of construction costs that would be wasted and to otherwise minimize the impact of our decision on the respondents, we have determined, after careful consideration, that we should release our decision today. For obvious reasons, it has not been possible for us to prepare the formal reasons for our decision so that they too can be released today but we will proceed to complete them as quickly as we reasonably can. It is important, therefore, that we record now for clarity that nothing in this endorsement is to be regarded as part of our formal reasons. The entirety of our reasons will follow in due course.
7We are aware of the widespread interest in the outcome of this application and the strong public attention it has attracted. It is therefore particularly important that, in the absence of formal reasons today, we further record our recognition that our function has been solely to determine this application in accordance with the law and that it is not our function to impose any policy views on issues which properly fall to be decided by others.
8We are all of the view that this application should succeed and, accordingly, judgment is to issue granting this application and setting aside the decision of the City to proceed with the project. Our decision does not affect the rights of the respondents to proceed with work not specifically in pursuance of the project such as the repair or reconstruction of the present surface streetcar line on St. Clair Avenue West. We will address all remaining issues, including costs, in our formal reasons.
9No submissions were made with respect to the applicant’s claim for an injunction restraining the respondents from proceeding with the project. We assume, therefore, that the respondents will respect our judgment and stop the project immediately without the necessity of our issuing an injunction. However, if it becomes necessary for us to consider granting an injunction, we will reconvene to hear further submissions.
MATLOW J.
GREER J.
E. MACDONALD J.
Released: October 11, 2005
COURT FILE NO.: 329/05
Toronto
DATE: 20051011
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
justices matlow, greer, e. macdonald
B E T W E E N:
SOS – SAVE OUR ST. CLAIR INC. v CITY OF TORONTO and TORONTO TRANSIT COMMISSION
ENDORSEMENT
BY THE COURT:.
Released: October 11, 2005.