COURT FILE NO.: 329/05

DATE: 20060221

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

CUNNINGHAM a.c.j.s.c., o’DRISCOLL AND SWINTON JJ.

B E T W E E N:

SOS – SAVE OUR ST. CLAIR INC.

Applicant

• and -

CITY OF TORONTO AND TORONTO TRANSIT COMMISSION

Respondents

E.K. Gillespie, for the Applicant

G. Rempe, for the Respondent City of Toronto

J.W. Harbell and P.G. Duffy, for the Respondent Toronto Transit Commission

HEARD at Toronto: January 31, 2006 and February 1, 2006

THE COURT:

I. Nature of Proceedings

1On August 22, 2005, SOS – Save Our St. Clair Inc. (“SOS”) launched an application for judicial review seeking:

(a) a declaration that the decision of the City of Toronto (“the City”) to proceed with construction of a dedicated streetcar right-of-way (“ROW”) on St. Clair Avenue West from Yonge Street to Gunns Road loop (“the Project”) is in breach of s. 24 of the Planning Act, R.S.O. 1990, c. P. 13, and

(b) a declaration that the City failed to complete a Class Environmental Assessment (“EA”) as required by the Environmental Assessment Act, R.S.O. 1990, c. E. 18 (“the EAA”).

2The Project was to be undertaken and funded by both the City and the Toronto Transit Commission (“TTC”). When the application first came before the Court on August 25, 2005, Lax J. added the TTC as a respondent.

II. Background

3The Applicant, SOS, as described by counsel for the City, is a group which was incorporated to oppose any alternative considered through the EA process which could result in a dedicated or reserved ROW for streetcars along St. Clair Avenue West. Prior to its incorporation, SOS functioned as an unincorporated body. Its members, particularly Margaret Smith and Jeff Gillan, have been involved in the EA process as individuals and as members of SWRC (“St. Clair West Revitalization Committee”) and Corso Italia BIA, respectively.

4On February 4, 2003, City Council approved the undertaking of an environmental assessment for the possible establishment of a transit right-of-way as part of a scheduled replacement of the streetcar tracks along St. Clair West. The environmental assessment was to be in accordance with the Municipal Engineers Association’s Municipal Class Environmental Assessment under Part II.1 of the EAA (the “Class EA”).

5The City and its co-proponent, the TTC, commissioned the required environmental assessment study in February 2003 regarding the establishment of the St. Clair ROW. As part of the process, nine alternative solutions for the St. Clair West streetcar tracks were identified and assessed. The public was consulted extensively throughout the EA process. The preferred solution was identified as a designated right-of-way for streetcars that would physically separate the tracks in the centre two lanes of the street from the roadway by way of a six inch raised and rolled curb. The ROW would be used for streetcars, although emergency vehicles would also be able to access it.

6The study results were reported on September 13, 2004 to a special joint meeting of the City’s Planning and Transportation Committee, Works Committee and the TTC. Representatives of SOS and others participated in the committee proceedings and made submissions. The Committee amended the staff report and voted 22 to 1 to send the Environmental Study Report (“ESR”) to City Council.

7City Council approved the amendments and granted authorization to finalize the ESR on October 1, 2004. Council also directed the City and the TTC to create two community consultation groups and requested that the Toronto Parking Authority allocate up to six million dollars for necessary replacement parking. In November 2004, the City and the TTC issued a Notice of Study Completion.

8On January 5, 2005, SOS made a submission to the Minister of the Environment requesting a Part II (“bump up”) order pursuant to s. 16(1) of the EAA. According to that subsection, the Minister may order a proponent to comply with Part II of the EAA – that is, “complete a full environmental assessment” before proceeding with an undertaking to which a class environmental assessment would otherwise apply. The SOS submission was 79 pages in length and raised issues relating to parking, deliveries, congestion and business impacts.

9The SOS submission to the Minister did not raise any allegation that the Project did not conform with the Planning Act. The SOS made that allegation for the first time in these judicial review proceedings. Indeed, the SOS submissions to the Minister state: “We support the new City of Toronto Official Plan vision of vibrant neighbourhoods, attractive tree-lined streets, a strong economy, excellent urban design and high quality public transit”. The SOS submission also confirmed that SOS had participated in the public consultation process.

10The City responded to the Minister’s request for further information. On June 3, 2005, the Minister refused the request for a Part II order, rejecting an allegation that the ESR did not comply with the EAA. She permitted the City and the TTC to implement the Project as documented in the ESR, although as a condition of her authorization, the Minister required the establishment of a third community consultation group.

11In her letter to the City Clerk and the Chair of the TTC, the Minister said, in part:

Between December 29, 2004 and January 5, 2005, I received four requests from members of the public that the City of Toronto (City) and the Toronto Transit Commission (TTC) be required to prepare an individual environmental assessment for the proposed St. Clair Avenue West Transit Improvements (Project).

I am taking this opportunity to inform you that, based on a review of the Project documentation, the ministry review of the Part II Order requests, and the provisions of the Municipal Engineers Association Municipal Class Environmental Assessment (Class EA), I have decided that an individual environmental assessment is not required. Based on my review of the matters raised in the Part II Order requests, I note that there are concerns regarding this Project which do warrant additional public consultation and participation in the detail design and construction phases than may normally be carried out for projects of this type. To address this, I am, as part of my decision, imposing several conditions on the Project…

The Minister set out two pages of conditions to be followed by the parties and then said:

With this decision having been made, the City and TTC may now proceed with the Project, subject to the conditions I have imposed and any other permits or approvals required. The City and TTC must implement the Project in the manner it was developed and designed, as set out in the ESR and inclusive of all mitigating measures and environmental and other provisions therein.

Lastly, I would like to ensure that the City and TTC understands that failure to comply with the Environmental Assessment Act, the provisions of the Class EA, and the conditions I have imposed on this Project, and failure to implement the Project in the manner described in the ESR, are contraventions of the Environmental Assessment Act and may result in prosecution under section 38 of the Act. I am confident that the City and TTC recognizes the importance and value of the Environmental Assessment Act and will ensure that its requirements and those of the Class EA are satisfied.

12Construction of the Project was to proceed in two phases over two years, starting in mid-September 2005 from Yonge Street to Bathurst Street (Phase I) and continuing in 2006 for the portion from Bathurst west to the Gunns Road loop. However, in August 2005, this application for judicial review was launched, as a result of which the Project was halted following a hearing before another panel of this Court in October, 2005.

III. The Planning Issues

13In this application for judicial review, the Applicant seeks a declaration that the Respondents are in breach of s. 24(1) of the Planning Act, which reads in part:

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.

(3) Despite subsections (1) and (2), the council of a municipality may take into consideration the undertaking of a public work that does not conform with the official plan and for that purpose the council may apply for any approval that may be required for the work, carry out any investigations, obtain any reports or take other preliminary steps incidental to and reasonably necessary for the undertaking of the work, but nothing in this subsection authorizes the actual undertaking of any public work that does not conform with an official plan.

14The Applicant argues that the Project did not comply with the applicable Official Plan – Metroplan – at the time that it was approved. Therefore, it seeks a declaration that the City is in breach of s. 24(1) of the Planning Act.

15To understand this argument, it is necessary to consider three Official Plans. The first is the Official Plan of the Municipality of Metropolitan Toronto (the “Metroplan”), which was approved in 1994. The Metroplan is the “upper tier” of the official plan regime that was in effect in Toronto prior to the amalgamation of six municipalities to create the new City of Toronto on January 1, 1998. In addition, there were “lower tier” or “Area Municipality” plans, including the plan of the former City of Toronto, which was created in 1994.

16In April 1998, the City Council of the newly amalgamated City of Toronto directed the creation of a new Official Plan to guide the City’s future growth and development. Over the next three years, there was a comprehensive process of public consultation. The process included a review of the City’s transportation policies, in which the public was specifically informed that St. Clair West was a part of a “surface transit priority network” that could include dedicated lanes for streetcars and the limiting or removing of on street parking during part or all of the day.

17The New Official Plan (“New OP”) was adopted by City Council in November 2002, and the existing plans covering the new City of Toronto were repealed upon the coming into force of the New OP. On March 17, 2003, the New OP was approved by the Minister of Municipal Affairs and Housing (“MMAH”).

18Portions of the New OP were appealed to the Ontario Municipal Board (“OMB”). However, the Plan’s transportation policies, as they relate to St. Clair West, are not at issue in those appeals.

19On January 25, 2006, the OMB held a hearing on the transportation policies in the New OP and issued the following order:

THE BOARD ORDERS that the Official Plan for the City of Toronto is approved in part, as set out in Attachment 2 to this Order, except as such portions of the Plan relate to the remaining site and area specific appeals before the Board.

THE BOARD FURTHER ORDERS THAT the transportation policies, maps and schedules contained within the former municipal official plans within the City of Toronto are repealed.

20In its reasons, the OMB said,

None of the transportation policies, maps or schedules for which approval is sought remain the subject of general appeals before the Board and, based on the evidence provided by Mr. McPhail, this panel finds that approval of these portions of the Official Plan is supported on the basis of good planning. As well, the Board is satisfied that approval of these policies, maps and schedules would be timely and in the public interest in terms of supporting on-going transportation planning within the City.

IV. The Issues

21All the parties support replacement of the St. Clair streetcar tracks, but they are in dispute over whether the new tracks should constitute a fully dedicated ROW or a shared ROW permitting public vehicular traffic in addition to the streetcars.

22The Applicant challenges the decision to approve the St. Clair ROW (a dedicated right-of-way) on two grounds: (a) the City has failed to complete the required environmental assessment, and (b) the City is in breach of s. 24(1) of the Planning Act.

23We are the second panel of the Divisional Court hearing this application for judicial review. An earlier panel heard the application in October, 2005 and issued a decision on October 11, 2005 in which they held that the application should be granted and the City’s decision on the Project should be set aside. In their endorsement, they stated that because of urgency, they were issuing their decision, but that the formal reasons for the decision would follow (see 2005 ONSC 36271).

24Subsequently, and before the formal reasons were issued, the City brought a motion seeking the recusal of one member of the panel on the grounds of reasonable apprehension of bias, and asking that the decision be set aside and a new panel constituted to hear the application. Two panel members concluded there was a perception of bias in the earlier proceeding. They decided that the panel should be struck, because they were of the view that to proceed would be a breach of the principles of natural justice. Therefore, they held that the earlier decision made by them was null and void (see 2005 ONSCDC 40558). SOS sought leave to appeal that decision from the Court of Appeal, but leave was denied on January 10, 2006.

25Therefore, this panel was constituted to re-hear the application for judicial review. Since the first panel gave its decision, there has been an important development: the OMB has given its decision on January 25, 2006 ordering the transportation policies of the New OP into effect.

V. Has the City failed to complete the required environmental assessment?

26This application has many similarities to the decision of Friends of Eden Mills v. Eramosa (Twp.) (1998), 1998 ONSCDC 17742, 111 O.A.C. 81 (Div. Ct.) where a local citizens’ group applied for judicial review of a class environmental assessment conducted by a municipality that had also been the subject of an unsuccessful “bump up” request to the Minister. In Friends of Eden Mills, the Court held that an applicant cannot use the judicial review process to indirectly call into question “the expertise and experience of the Ministry of the Environment” in refusing a “bump up” request.

27Here, the Minister refused SOS’s request for a Part II Environmental Assessment. Notwithstanding SOS’s protestations to the contrary, SOS in this application is now inviting the Court to indirectly call into question the expertise and experience of the Minister. The Minister’s order of June 3, 2005 approving the Project is not the subject of this application. We decline the invitation to review the issues raised by SOS in respect of the Class EA process and in respect to the environmental issues, as they are a collateral attack on the Minister’s decision.

28In Ofner Essex Resources v. Ontario (Minister of Environment and Energy) (1996), 18 C.E.L.R. (N.S.) 317 at 318, a single judge of the Divisional Court said:

The Courts will not review decisions of Ministers of the Crown unless it were demonstrated that they were made in bad faith or that the Minister clearly failed to comply with the statutory conditions.

29We would refuse to grant judicial review on this ground.

VI. Is the City in breach of s. 24(1) of the Planning Act?

30Section 24(1), quoted above, states that where an official plan is in effect, no public work shall be undertaken that does not conform therewith. However, s. 24(3) permits a municipality to take preliminary steps where the proposed public work does not conform with the official plan.

31When the application for judicial review was launched, the Respondents took the position that the St. Clair ROW was in conformity with both the New OP and Metroplan. Given the OMB decision of January 25, 2006, they now argue that most importantly, the project is in conformity with the New OP, which is now in effect. In contrast, the Applicant argues that the governing plan is Metroplan, and there has been no compliance with it. In the alternative, the Applicant argues that the Project is not in conformity with the New OP.

32Section 16 of the Planning Act states that an official plan is to contain “goals, objectives and policies”. As stated in Bele Himmell Investments Ltd. v. City of Mississauga (1982), 13 O.M.B.R. 17 (Ont. Div. Ct.) at para. 22, “Official Plans set out the present policy of the community concerning its future physical, social and economic development”. An official plan is not a statute and should not be treated as such; rather, an official plan is to be given “a broad and liberal interpretation with a view to furthering its policy objectives” (at p.27).

33The first issue to determine is the standard of review. The question whether or not the impugned “public work” conforms with the operative official plan is a mixed question of law and fact. Counsel for the Applicant argued that the standard of review of the City’s decision is reasonableness, while the Respondents argued that it is patent unreasonableness.

34In Nanaimo (City) v. Rascal Trucking Ltd., 2000 SCC 13, [2000] 1 S.C.R. 342, 355, Major J. (for the seven judge court) said (at para. 29):

Here, s. 936 requires the municipal council to apply principles of statutory interpretation in order to answer the legal question of the scope of its authority. On such questions, municipalities do not possess any greater institutional competence or expertise than the courts so as to warrant a heightened degree of deference on review. The test on jurisdiction and questions of law is correctness.

However, the Court went on to state that the standard of review for intra vires decisions is patent unreasonableness (at para. 37).

35In this case, the decision of City Council that a particular project is in conformity with the policies in its Official Plan is entitled to some deference, as that decision requires the application of a policy to a given set of facts. However, the question of whether a particular Official Plan is in effect for purposes of s. 24(1) of the Planning Act is not within the expertise of the City Council, and this determination is subject to review on a standard of correctness for the reasons set out in Nanaimo above.

36When this application for judicial review was first brought, there was an important issue as to which Official Plan governed. Since the earlier hearing, the OMB has issued its decision approving the transportation policies in the New OP, ordering that those policies take effect and the earlier transportation policies be repealed. Section 24(1) of the Planning Act requires that a public work be in conformity with the Official Plan when it is undertaken. The language of the subsection suggests that the plan to be considered is the one in effect at the time that the project is undertaken, since s. 24(3) permits preliminary work on the public work before the plan comes into effect. In this case, therefore, conformity is to determined by considering the transportation policies of the New OP, which are now in effect.

37The Applicant argued that the plan to be considered is the plan that was in effect when the Project was approved – here, that would be Metroplan. It relied on the principle in Clergy Properties Ltd. v. City of Mississauga (1996), 34 O.M.B.R. 277 at 281, a principle that was developed by the OMB to deal with changes to official plans that have occurred after a party has made an application based on an existing official plan. The Clergy principle is explained in James Dick Construction Ltd. v. Caledon (Town) (2003), 47 O.M.B.R. 87 at 89:

Simply stated, the Clergy principle says that every applicant is entitled to have their application evaluated on the basis of the laws and policies as they existed on the date that the application was made. Normally laws and policies are not applied retrospectively. As many Board decisions have said – notably the Clergy decision itself – this is regarded as fair.

I say “normally” because there is a well-established line of cases that provides some variance from this rule. In Dumart, the Board cited another related practice which is that any policies that were passed after the application date, but before a final decision is made on the application, could be considered by the Board or other decision- making authority in making the final decision.

The Board explained that while the old policies would normally apply, the new policies could be applied in “exceptional circumstances”.

38In our view, the Clergy principle is not applicable here, as this is not a case where an application has been filed by a party who then finds that the ground rules have been changed since the application was filed. In contrast to the parties in the cases applying the Clergy principle, the individuals behind SOS have filed no application. They are part of the public concerned about and affected by a policy decision taken by City Council and the TTC. They have had the opportunity to participate in two significant public processes leading up to the decision to create a St. Clair West ROW – the New OP process and the environmental assessment process – and throughout that process, the “ground rules” have not changed.

39It has been clear since November 2002 what policy direction the City of Toronto intended to take in its future transportation planning, as outlined below in further detail. SOS members fully participated in the environmental assessment process for this Project, which was clearly based on the application of the policies in the New OP. At p. ES-1 of the ESR, the first sentence states, “The City of Toronto Official Plan designates St. Clair Avenue West as both a ‘Surface Priority Segment’ and an ‘Avenue’ within the City’s urban structure”. There is further reference to the Official Plan on that page as well as p. 6-1, which refers to a figure entitled “Toronto Official Plan Transit Priority Network”. That figure is identical to Map 5 in the New OP.

40Thus, there is no unfairness to the Applicant if conformity under s. 24(1) of the Planning Act is determined in accordance with the New OP. Priority for surface transit has been an issue within the New Official Plan process, and the proposal for a dedicated streetcar lane on St. Clair West in accordance with that Plan has been under discussion throughout the EA process.

41Moreover, there was no impropriety by the City when it relied on the New OP during the EA process, even though final approval had not yet been given by the OMB. As this Court has said in Friends of Eden Mills Inc., supra, it would be “unduly technical” to require a municipality to rely on a prior official plan when it had adopted a new one which was awaiting approval. However, the Court noted that it would be a different matter if a third party were involved (at para. 9) - presumably as in the Clergy principle cases discussed above.

42Therefore, the issue for this Court to determine is whether the Project conforms with the transportation policies of the New OP. The Applicant argues that it does not do so for two reasons: first, because only part of the St. Clair West Project is marked on Map 4 dealing with high density transit, and second, because the Project should not proceed until an Avenues study is done in accordance with another part of the New OP that has not yet been approved by the OMB.

43The starting point, in determining conformity, is to consider the transportation policies found in Policy 2.2.3 of the New OP. That policy reads in part:

The City’s transportation network will be maintained and developed to support the growth management objectives of this Plan by:

(f) implementing transit services in exclusive rights-of-way in the corridors identified on Map 4 as priorities are established, funding becomes available and the Environmental Assessment review processes are completed;

(h) increasing transit priority throughout the City by giving buses and streetcars priority at signalized intersections and by introducing other priority measures on selected bus and streetcar routes, including those identified on Map 5, such as:

(i) reserved or dedicated lanes for buses and streetcars; and

(ii) limiting or removing on-street parking during part or all of the day.

44Map 4 is entitled “Higher Order Transit Corridors”. St. Clair is highlighted from the Spadina line subway stop near Bathurst west to Runnymede Avenue. Map 5 is entitled “Surface Transit Priority Network”, and St. Clair is highlighted from Yonge Street west to Runnymede Avenue.

45The Applicant argued that Map 4 applies, because the Project creates an “exclusive right-of-way” within Policy 2.2.3(f), and the designation of St. Clair on that map does not include the stretch from the Spadina subway stop east to Yonge Street. Moreover, it is argued that the map shows the Spadina and Queen’s Quay/Harbourfront streetcar lines as part of the existing “subway and LRT lines”, and that means the St. Clair line should also be treated as a higher order transit corridor.

46In our view, the Project falls within Policy 2.2.3(h), which deals with increasing transit priority by giving buses and streetcars priority, for example, by way of reserved or dedicated lanes. That is what is proposed here for St. Clair West – a dedicated lane for the streetcars, with some limited access for emergency vehicles and other vehicles in exceptional circumstances.

47In interpreting the New OP, “non-policy text is provided to give context and background and assist in understanding the intent of the policies” (New OP, Policy 5.6.3). In Chapter Two, where the transportation policies are found, the text states that the policies are designed to address three prime areas of concern (at p.12):

• the need to maintain the existing transportation system in a state of good repair;

• the need to make better use of the transportation capacity we already have, particularly by giving priority to streetcars and buses on City roads; and

• the need to protect for the incremental expansion of the rapid transit system as demand justifies and funding becomes available.

48The Respondents submitted that the reference to “exclusive rights-of-way” in Policy 2.2.3(f) and “higher order transit corridors” in Map 4 refers to the rapid transit system and does not include a right-of-way like the one proposed on St. Clair West. They relied on the evidence of Dr. Richard Soberman, an expert in transportation engineering, who concluded that the St. Clair Project is not “rapid transit” as that term is generally understood in the industry, because the streetcars will not operate in a right-of-way fully segregated from traffic. He came to this conclusion based on the following characteristics of the planned right-of-way:

• Operations will be delayed at street intersections due to interaction with and interference from other vehicles;

• Short station spacing;

• Shared use of intersection space and traffic signals for both cross traffic and parallel traffic (turning movements);

• Use by police and emergency vehicles;

• Use by other automotive vehicles when and if necessary;

• Turnaround facilities on public roadways; and

• Lower operating speed than subways, commuter rail or the Scarborough LRT.

49While the Applicant argued that the use of the term “exclusive traffic lanes” in the ESR shows that the Project contemplates an exclusive right-of-way within Policy 2.2.3(f) of the New OP, a fair reading of the ESR leads to the conclusion that the contemplated Project falls squarely within Policy 2.2.3(h), as it deals with dedicated streetcar lanes and parking restrictions to give priority to streetcars. This is not a rapid transit project in which the streetcars will be operating completely separately from the traffic.

50Moreover, the fact that the existing Spadina and Queen’s Quay/Harbourfront lines are shown as part of the subway and LRT on both Maps 4 and 5 of the New OP does not determine either that this Project is rapid transit, or that it will create an exclusive right-of-way as contemplated by Policy 2.2.3(f). Nor is it determinative that there was an official plan amendment prior to the construction of the Spadina line, as there is no evidence before us as to what the proposed project for Spadina was at the time of the amendment.

51The Applicant here urges a narrow and technical interpretation of the New OP. If a broad and liberal interpretation is given, in conformity with the case law cited earlier in these reasons, it is clear that this Project is in conformity with the current Policy 2.2.3(h) and Map 5, as it is a surface priority project identified on Map 5.

52In the alternative, the Applicant argued that no effect can be given to the transportation policies in the New OP, since Policy 5.6.1 states that the Plan is to be “read as a whole to understand its comprehensive and integrative intent as a policy framework for priority setting and decision making”. In particular, the Applicant argued that the decision on the Project must await the approval of the whole Official Plan, because the Plan includes an Avenues Policy. That Policy contemplates development and growth along a number of corridors identified in the Plan in accordance with Avenue studies. St. Clair West is one of these Avenues, and the City has agreed to undertake such a study. The Applicant argued that there can be no change to transit in the area until the Avenue study is completed for St. Clair West.

53While the New OP is meant to be a comprehensive document, the OMB has approved the transportation policies and determined that it is in the public interest that they be applied, even if the rest of the New OP has not yet been approved. Therefore, the City and the TTC can rely on the new transportation policies to show that the Project is in conformity with the Official Plan.

54In any event, the Applicant’s contention that an Avenue study must be completed before the construction of the Project is inconsistent with the language of the New OP, which permits development of land adjacent to the street prior to an Avenue study and recognizes that not all Avenues can be studied at once. To interpret the New OP in a manner that requires the City and the TTC to await the completion of Avenue studies for each Avenue in Toronto before constructing transit improvements would render the transit policies of the New OP unworkable.

55It is not for this Court to inquire into the issue whether the Project is good planning or bad planning or somewhere in between. Those are political decisions made by elected members of City Council. The Court’s duty is confined to ensuring that the process was carried out according to the rule of law. In our view, the Project is in conformity with the New OP, and therefore, the City is not in breach of s. 24(1) of the Planning Act if the construction proceeds.

VII. Result

56For these reasons, the application for judicial review is dismissed. If the parties are unable to agree on costs, the Respondents shall make written submissions within 21 days of the release of this decision, with the Applicant to file responding submissions within 14 days thereafter.

Cunningham A.C.J.S.C.

O’Driscoll J.

Swinton J.

Released:

COURT FILE NO.: 329/05

DATE: 20060221

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

cunningham a.c.j.s.c., o’driscoll and swinton jj.