Superior Court of Justice — Ontario

Court File No.: CV-24-00732896-0000
Date: 2025-03-14

Between:
Cycle Toronto, Eva Stanger-Ross and Narada Kiondo, Applicants
and
Attorney General of Ontario and Minister of Transportation, Respondents

Before: Regional Senior Justice S. E. Firestone

Counsel:
A. Lewis, G. Hoaken, B. Murphy, C. Dunne, L. Beck and B. Roe, for the Applicants
P. Ryan, C. Zwibel and E. Guilbault, for the Respondents

Heard: March 11, 2025

Endorsement

Introduction

[1] The applicants, Cycle Toronto, Eva Stanger-Ross (“Stanger-Ross”) and Narada Kiondo (“Kiondo”) bring this motion for an interlocutory injunction prohibiting the respondents Attorney General of Ontario and Minister of Transportation (collectively referred to as “Ontario”) from implementing s. 195.6 of the Highway Traffic Act (the “Target Bike Lane Removal Provision”) pending the adjudication and determination of the applicants’ constitutional challenge to this provision.

[2] The applicants assert that the Target Bike Lane Removal Provision unjustifiably infringes the rights of Toronto cyclists and other road users under section 7 of the Canadian Charter of Rights and Freedoms by exposing them to a heightened risk of serious injury or death. The Target Bike Lane Removal Provision requires the Minister of Transportation to remove bicycle lanes and related infrastructure currently on Bloor Street, Yonge Street, and University Avenue in the City of Toronto.

[3] Ontario opposes the motion and submits that the applicants’ Charter claim is not a serious issue to be tried. In addition to failing this requirement for obtaining an interlocutory injunction, Ontario submits that the applicants have not demonstrated any irreparable harm that would flow from a refusal to grant such relief, nor have they shown that the balance of convenience favours it.

The Parties

[4] Cycle Toronto is a not-for-profit cycling advocacy organization and registered charity based in Toronto, Ontario. It is operated by full-time management staff and is governed by a volunteer board of directors. Its mission is to advocate for cycling as an essential mode of transportation in Toronto and to reduce traffic collisions involving cyclists. Cycle Toronto represents approximately 1,850 dues-paying members and is led by executive director Michael Longfield, a Toronto resident who rides a bike as his primary mode of transportation and uses the Target Bike Lanes for his commute to work, errands, shopping and social events.

[5] Stanger-Ross is a student at the University of Toronto who attends classes at the St. George campus and relies on the Target Bike Lanes, particularly the protected bike lanes on Bloor Street West, to cycle between her home and school.

[6] Kiondo is a Toronto resident and bike delivery person who uses the Target Bike Lanes daily to do his job as well as for his personal life.

[7] Ontario is responsible for the enactment and implementation of the Target Bike Lane Removal Provision.

Factual and Procedural Background

[8] On October 21, 2024, the Ontario government introduced the Reducing Gridlock, Saving Your Time Act, 2024 into the Ontario legislature (“Bill 212”). Schedule 4 of Bill 212 (the “Bike Lane Bill”) proposed a new Part XII.1 of the Highway Traffic Act that would require municipalities to seek approval from the Minister of Transportation before constructing new bicycle lanes in certain circumstances.

[9] On October 31, 2024, Ontario announced its intention to pass a regulation under the Bike Lane Bill that would require the removal of three existing bike lanes on each of Bloor Street, Yonge Street, and University Avenue in the City of Toronto.

[10] On November 21, 2024, Ontario introduced an amended version of Bill 212 with changes to the Bike Lane Bill. The amendments introduced the Target Bike Lane Removal Provision requiring the Minister of Transportation to remove the Target Bike Lanes, and ss. 195-10-195.14 which bar all claims against the Government of Ontario, its municipalities, or contractors connected to the removal of the Target Bike Lanes arising from any collisions, injuries, or deaths that occur as a result of removing the Target Bike Lanes or any other bicycle lanes.

[11] On November 25, 2024, the Ontario legislature held its third reading of Bill 212 and passed it into law. It received Royal Assent on the same day.

[12] On December 10, 2024, the applicants commenced the underlying application asserting that the Target Bike Lane Removal Provision unjustifiably infringes section 7 of the Charter. They do not frame their challenge as a “positive rights” claim to the establishment of segregated bike lane infrastructure. Rather, they argue that implementation of the Target Bike Lane Removal Provision constitutes government action which will likely imperil the health of cyclists and increase their risk of personal injury or death, thus engaging the right to life and security of person under section 7 of the Charter.

[13] After the underlying application was filed, the respondents, through their counsel, undertook not to make any physical changes to or otherwise alter the Target Bike Lanes before March 20, 2025.

[14] On January 8, 2025, the parties attended Civil Practice Court before Koehnen J. to schedule the hearing of the application on the merits. That hearing was scheduled for April 16, 2025. A motion for an interlocutory injunction prohibiting the dismantling of the targeted bicycle lanes for the 27-day period between March 20, 2025, and April 16, 2025, was scheduled for March 11, 2025. This is the motion being decided here.

Preliminary Issues

(a) Legal Capacity and Standing

[15] To have the legal capacity to commence or continue an application, a party must be a natural person, a corporation, or a body that has been given such capacity by statute: Ontario Health Coalition and Advocacy Centre for the Elderly v. His Majesty the King in Right of Ontario, 2025 ONSC 415, para. 33.

[16] Cycle Toronto is incorporated in Ontario and is a juridical person. Stanger-Ross and Kiondo are natural persons. The applicants are capable of commencing this application.

[17] I am satisfied that Cycle Toronto should be granted public interest standing and that Stanger-Ross and Kiondo should be granted private interest standing. Ontario does not oppose either request.

[18] Public interest standing allows individuals or organizations to bring cases of public interest before the courts even though they may not be directly involved in the matter. It is most often granted in constitutional challenges. In order to obtain public interest standing the party must demonstrate that the case raises a serious justiciable issue; the party bringing the application has a genuine interest in the matter; and that the proposed application is a reasonable and effective means of bringing the case to court: Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, para. 2; reaffirmed in British Columbia (Attorney General) v. Council of Canadians with Disabilities, 2022 SCC 27, paras. 29-31.

[19] The decision to grant or deny public interest standing is discretionary and the test is applied flexibly and purposively. Each factor is to be weighed in light of the underlying purposes that justify limiting standing, which include efficient allocation of scarce judicial resources and screening out “busybody” litigants; and ensuring that courts have the benefit of hearing the contending points of view of those most directly affected by the issues. Courts must also consider the purposes that justify granting standing, such as access to justice and the principles of legality: Downtown Eastside, at para. 1; Canadians with Disabilities, at paras. 29-31. Also see paras. 37-41, 56-59.

[20] A serious issue will arise when the question raised is “far from frivolous”. Courts should assess a claim in a “preliminary manner” to determine whether “some aspects of the statement of claim could be said to raise a serious issue as to the validity of the legislation”: Downtown Eastside, at para. 42, citing Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236. Once it becomes clear that the statement of claim reveals at least one serious issue, it will usually be unnecessary to minutely examine every pleaded claim to access standing: Downtown Eastside, at para. 42.

[21] At this preliminary stage, based on the record I am satisfied that Cycle Toronto has raised a serious justiciable issue.

[22] Regarding the second factor, a party will have a “genuine interest” if it has “a real stake in the proceedings or is engaged with the issues they raise”: Downtown Eastside, at para. 43. Cycle Toronto has a genuine interest in the matter. Through its approximately 1,850 dues-paying members it is directly engaged with the issues raised in this application. Its specific mandate includes advocating for safe street cycling and safety-related issues and the infrastructure necessary to achieve that goal including Bike Lanes.

[23] Regarding the third factor, I find that Cycle Toronto’s application is a reasonable and effective means of bringing this case to court. The issues raised will be presented to the application judge in a sufficiently concrete and well-developed factual setting. Cycle Toronto is in the best position to bring this matter forward and to represent the interests and views of other affected cyclists. It has the means to present the evidence and argument required to assist the court in reaching a just determination of the issues raised.

[24] Private interest standing requires that a party have a personal and direct interest in the issue being litigated and must themselves be specifically affected by the issue: Caroll v. Toronto-Dominion Bank, 2021 ONCA 38, para. 33.

[25] Stanger-Ross and Kiondo will be directly affected by the removal of the Targeted Bike Lanes given their regular use of them. They have a personal and direct interest in the issues raised in this application.

(b) Crown Immunity from Injunctive Relief

[26] Section 22(1) of the Crown Liability and Proceedings Act, 2019, S.O. 2019, c. 7, Sched. 17 and its federal and provincial equivalents codify the common law rule that injunctive relief is generally not available against the Crown.

[27] Notwithstanding these immunity provisions, interlocutory injunctive relief may be available against the Crown where a party seeks such relief to assert or protect constitutional rights and where the court is exercising its jurisdiction under section 24(1) of the Charter to stay the enforcement of a regulation whose vires is challenged: see Robert J. Sharpe, Injunctions and Specific Performance (Toronto: Thomson Reuters, 2020) at § 3:27.30 and § 3:25; Karen Horsman, Gareth Morley, Government Liability: Law and Practice (Toronto: Thomson Reuters, 2020) at § 12:25; Thibault v. Attorney General of Ontario, 2024 ONSC 3168, para. 30.

The Test for Interlocutory Injunctions

[28] Section 101 of the Courts of Justice Act, R.S.O. c. C.43, provides that an interlocutory injunction or mandatory order may be granted where it appears to a judge of the court to be just or convenient to do so.

[29] The test to be considered for granting an interlocutory injunction was originally set forth in Metropolitan Stores Ltd. v. Manitoba Food & Commercial Workers, Local 832, [1987] 1 S.C.R. 110 and later adopted in RJR-MacDonald v. Canada (Attorney General), [1994] 1 S.C.R. 311. In RJR, the Supreme Court of Canada confirmed a three-part test for courts to apply when considering an injunction in both private party litigation and Charter cases where the interim relief sought involves the execution or enforceability of legislation. On the motion, the judge is required to determine:

(a) Whether there is a serious issue to be tried;
(b) Whether irreparable harm will be suffered by the moving party if the injunction is not granted; and
(c) Whether the balance of convenience favors granting or refusing the injunction.

[30] The RJR criteria are not watertight compartments and are not to be rigidly applied. Strength in one part of the test can make up for weakness in another. The court is to consider, in light of the three parts of the test, whether injunctive relief is appropriate: Kerber v. Alberta, 2025 ABKB 98.

[31] The parties agree that on this motion the court is to apply the three-part test set out in RJR-MacDonald.

(a) Serious Issue to be Tried

[32] The threshold under this first branch of the injunction test is low and should be made based on a limited and preliminary review of the merits of the case. Given the complex nature of most constitutional rights, a motions court will rarely have the time to engage in the requisite extensive analysis of the merits of the applicant’s claim. Once satisfied that the application is neither frivolous nor vexatious, the motions judge should proceed to consider the second and third stages of the test even if of the opinion that the applicant is unlikely to succeed on the merits: RJR-MacDonald, at paras. 53-55; Muslim Association of Canada v. Attorney General of Canada, 2022 ONSC 7284, para. 14.

[33] There are two exceptions to the general rule that a motions judge should not engage in an extensive review of the merits. The first is when the result of the interlocutory motion will in effect amount to a final determination of the action: RJR-MacDonald, at para. 56. The second is when a question of constitutionality to be tried presents itself as a simple question of law alone which can be settled by a motions judge: RJR-MacDonald, at para. 60. These exceptions, however, will be exceedingly rare: where neither of these exceptions apply, and where the court is satisfied that the case on the merits is not frivolous or vexatious, a motion judge must, as a general rule, move on to the second and third stages: RJR-MacDonald, at para. 83; see also Manitoba (A.G.) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110.

[34] The first exception does not apply because the result on this motion will not in effect amount to a final determination of the application. However, as I discuss further below, Ontario argues that the second exception applies because the applicants’ Charter claim raises a pure question of law which can be dismissed based on a more detailed analysis on the merits.

[35] The applicants argue there is a serious issue as to whether the Target Bike Lane Removal Provision infringes s. 7 Charter rights of Toronto cyclists by depriving them of their rights to life and security of the person. The provision, they submit, constitutes government action that puts cyclists at a heightened risk of physical harm (engaging security of the person) and death (engaging life). They further submit that these deprivations are not in accordance with the principles of fundamental justice against arbitrariness and overbreadth because the Target Bike Lane Provision is disconnected from and goes beyond its own objective to reduce traffic congestion. They also submit that the Target Bike Lane Provision is grossly disproportionate, as the seriousness of the deprivation is totally out of sync with the objective of the measure.

[36] The applicants reiterate that the serious issue to be tried threshold is low, particularly in complicated Charter cases where determining the legal rights of the parties at an interlocutory stage is especially difficult. They submit that the merits of their claim are clearly neither frivolous nor vexatious, especially given the expert opinion they provide which, if accepted, provides some evidence that protected bike lanes reduce collisions and that their removal will render cyclists more vulnerable.

[37] Ontario, on the other hand, submits that the applicants raise a pure question of law that can and should be dismissed at the first stage of RJR-MacDonald based on a more thorough review of the merits. Even if every fact alleged by the applicants is assumed to be true, there is, they argue, no need to proceed with the second and third branches of the injunction test because the legal claim on its face is without merit and this can be determined as a pure question of law.

[38] Ontario submits that the applicants’ claim can be dismissed on purely legal grounds because s. 7 of the Charter is only engaged where state action deprives a natural person of life, liberty or security of the person. If there is no state-imposed deprivation, the s. 7 analysis stops there. Ontario submits that the impugned provision does not deprive anyone of anything. Rather, it simply mandates certain physical changes to transit infrastructure, which is merely a benefit provided by government and not guaranteed as of right. Without any constitutional obligation to provide such a benefit in the first place, altering or even withdrawing it completely cannot be characterized as a “deprivation” under section 7.

[39] As support for this distinction, Ontario raises examples where courts have rejected the notion that a prior legislative state of affairs or status quo establishes a “constitutional baseline” which must be maintained: ETFO et al. v. Her Majesty the Queen, 2019 ONSC 1308, paras. 133-147; Flora v. Ontario Health Insurance Plan, 2008 ONCA 538, para. 108; Barbra Schlifer Commemorative Clinic v. Canada, 2014 ONSC 5140, para. 25. As Ontario submits, the Target Bike Lanes were voluntarily enacted, and unless there was constitutional obligation to provide this infrastructure in the first place, Ontario has jurisdiction to amend or repeal as it sees fit.

[40] The applicants argue that their Charter claim is not one that can be determined as a pure question of law. They submit it is immaterial to the s. 7 analysis whether the government prohibits cyclists from using the Target Bike Lanes or whether it deprives them of the ability to use them via positive action. This is not, they argue, a veiled assertion of a positive right, but rather a challenge to the government’s decision to suddenly and without justification remove an existing risk-reduction mechanism. They also distinguish the present application from the “constitutional baseline” decisions referenced by Ontario, as this is not a case where one level of government revoked certain benefits or programs it previously had on offer. Rather, the province is interfering with decisions made by another level of government, in this case the municipality of Toronto, which installed the Target Bike Lanes with the specific aim of reducing risk.

[41] I do not accept Ontario’s submissions. I am not satisfied that this is one of those “exceedingly rare” cases where the constitutionality of the challenged statute can and should in effect be determined at this preliminary stage.

[42] As discussed above, the applicants submit that their Charter challenge fits within the traditional negative rights framework insofar as they seek protection from government interference exposing them to greater risk of harm. While a court taking a more fulsome look at the merits may ultimately find otherwise, I agree for now that this is at least a plausible framing of their argument. As such, their claim cannot be dismissed at this stage based purely on legal principles. Even if the theory of the applicants’ case might be characterized as novel, at this preliminary stage it cannot be said it is vexatious or frivolous. Whether or not this is truly a “positive” rights claim, and if it is, whether this would be completely dispositive of the matter, will require a much more thorough analysis unavailable at this stage. This is especially so in light of developing jurisprudence on the proper framing of s. 7 claims: see Mathur v. Ontario, 2024 ONCA 762.

[43] In summary, there is a live issue as to whether, in the Charter context, removal of the target bike lanes constitutes state action capable of depriving Charter rights. If it is, determining whether their removal is sufficiently causally connected to the alleged harm such that it engages s. 7 will require an even deeper assessment of the record and evidence put forward by the parties. The same thorough analysis will be required to determine whether the Target Bike Lane Provision is inconsistent with, overshoots, or is grossly disproportionate to its legislative objective to reduce traffic congestion.

[44] The interests of justice and procedural fairness require that the determination of the constitutional question raised be determined on a full record at the hearing of the application and not on this interlocutory motion. This is especially so given the conflicting arguments and complex legal issues to be determined in the context of the evolutive nature of Charter rights in general. At the hearing of the application on the merits all of the evidence on a complete record can be considered. The applicants have met the low threshold of establishing that there is a serious issue to be tried.

(b) Irreparable Harm

[45] Under the second branch of the test, the moving parties must establish that they will suffer irreparable harm that cannot be quantified in monetary terms or cured because one party cannot be compensated in damages. The court is to consider the nature of the harm rather than its magnitude: RJR-MacDonald, at para. 64.

[46] R.J. Sharpe writes that “courts should avoid taking a narrow view of irreparable harm…[i]n the context of preliminary relief, the test is a relative and flexible one”: Injunctions and Specific Performance, at paras. 2.411, 2:450. Courts have recognized that “a risk of personal injury or assault” is sufficient to show irreparable harm: Black et al. v. City of Toronto, citing Toronto Standard Condominium Corp. No. 2395 v. Wong, [2016] O.J. No. 6742, 2016 ONSC 8000 (S.C.J.), at para. 32.

[47] While the jurisprudence does not require absolute certainty in establishing that irreparable harm would occur, the evidence must go far beyond speculation and satisfy the balance of probabilities: Muslim Association of Canada v. Attorney General of Canada, 2022 ONSC 7284, para. 17.

[48] The applicants argue that the increased risk of injury and death to cyclists if the injunction is not granted constitutes irreparable harm. They submit the harm is more than speculative and is supported by the expert evidence presented which demonstrates that cyclists are put at greater risk without bike lanes. They reference studies conducted by the City on the Bloor Street Bike Lane which shows a 56% reduced collision rate. In any event at this preliminary stage wading too deeply into competing studies is unnecessary, and the totality of the evidence presented is sufficient for the purposes of the RJR-MacDonald test. The court only needs to be satisfied of increased risk. Proving irreparable harm does not require absolute certainty.

[49] It is further argued that the harm is unavoidable. First, while some residents may decline to cycle once the bike lanes are removed, hundreds of thousands will not. This is especially true for residents for whom cycling is an integral and necessary part of their lives and livelihood. The applicants tender evidence from Dr. Saxe for her opinion that there are no viable alternatives to the Target Bike Lanes that avoid major streets. Toronto’s City Manager explained that there are no viable alternatives to the Target Bike Lanes. Secondary routes, namely neighborhood streets, are infeasible. Even if ministerial approval were obtained to install cycling infrastructure on secondary streets, it would not be a safer alternative.

[50] It is also argued that the notion that cyclists can simply avoid the harm by choosing not to cycle or use alternative modes of transportation is illusory. The applicants analogize the decision in Canada (Attorney General) v. Bedford, 2013 SCC 72, where the Supreme Court rejected the argument that there could be no section 7 rights because a choice was made to engage in sex work. In any event, cycling on central thoroughfares is not simply a matter of choice. The applicants further submit that the harm which will be sustained cannot be cured or compensated for in damages. Courts have recognized that risk of personal injury is sufficient to establish irreparable harm. And in the present application, an additional barrier to damages is imposed by the Injured Cyclists Claims Bar which prevents such harm from being compensated for in damages. While Charter damages could still theoretically be available, the law on applying such damages is underdeveloped and far from certain: Muslim Association of Canada v. Attorney General of Canada, 2022 ONSC 7284, para. 23.

[51] The applicants rely on Ontario’s productions which they say support their own expert, Dr. Linda Rothman, in her conclusions that removal of the bike lane will increase the risk of harm and cause injury or death. During oral argument, they presented excerpts from internal documents from the Ministry of Transportation, including various emails, internal reports, briefing notes, and an engineering report procured by Ontario to assess the safety impact of bike lane removals. The excerpts tend to show that various concerns were expressed about the potential increase in collisions stemming from removal of the Target Bike Lanes.

[52] Ontario noted that these documents were produced by Ontario days before the hearing in accordance with the parties’ production schedule for the underlying application hearing, not for the present motion and objected to their admissibility on this basis.

[53] I accept that these documents were not produced for the present motion. However, this motion is an intermediate step in the same proceeding and there is obvious issue overlap. The documents are relevant to the issues to be determined on this interlocutory injunction. That being said, I am guarded about drawing any drastic conclusions based on this evidence at this stage given concerns raised by Ontario about the timing of this production and its limited opportunity to fully respond or provide additional context for these excerpts.

[54] In any event, Ontario argues that evidence suggesting an increased risk of danger to Toronto cyclists is entirely speculative. Both Dr. Rothman’s opinion and internal Ministry of Transportation documents are based on secondary material and high-level commentary on potential consequences that do not bear directly on the bike lanes at issue.

[55] Ontario highlights shortcomings and contradictions in the evidence presented by the applicants. Specifically, they submit that some of the research relied on by Dr. Rothman showed that some installations of separated bike lane in Toronto resulted in an increased number of collisions due to higher volumes of cyclists, suggesting that removal of the Target Bike Lanes would actually cause a decline in accidents. The record filed establishes that 96-97% of trips in Toronto are made by modes of transport other than cycling. It would not cause irreparable harm for cyclists to be diverted to other routes or modes of transport.

[56] The respondents highlight that the applicants have not filed any evidence about the volume of cyclists expected to ride on the roads during the time period for which the injunction is sought. They rely on data indicating high volume from warmer months, where ridership is more common than it is this time of year.

[57] There is no evidence or provided any reason to believe the Minister would be unable to reverse the infrastructure changes at issue if the underlying application were successful on the merits. How can the harm be irreparable if the lanes once removed can be put back. Their removal is not permanent. They submit that any financial cost to re-constructing the lanes after they have been dismantled would be borne by the Minister, not the applicants.

[58] Under this branch of the injunction test it is only the harm to the applicants that is considered. Based on the whole of the record, I am satisfied that on balance the applicants have established that they will suffer harm that cannot be quantified in monetary terms or cannot be cured or compensated. Proof of irreparable harm does not require absolute certainty.

[59] On the whole of the evidence presented the applicants have established that there is a likelihood that cyclists will be exposed to greater risk of personal injury if the Target Bike Lanes are removed even for a short period of time. This is more than speculative. Absolute certainty is not required. The evidence in support of this greater risk of injury includes the report of the Chief Coroner for Ontario which acknowledges that cyclists are among the most vulnerable road users, as well as the City of Toronto’s findings and Dr. Linda Rothman, an injury prevention epidemiologist.

[60] Ontario argues that any potential harm caused by removal of the Target Bike Lanes is entirely avoidable and therefore cannot be irreparable. Cyclists are free to use alternative routes or other modes of transportation. In other words, even if it is accepted that there is an increased risk, Ontario submits that it is not sufficiently causally connected to Ontario’s decision to remove the lanes, but instead a result of the choices to continue to cycle on those routes when safer alternatives and other modes of transportation are available.

[61] There is evidence in the record to suggest that for delivery persons—bike couriers—riding on Toronto’s central roads is an occupational necessity. In any event I am not satisfied that though other available means of transportation may be available, that this alone leads to the conclusion that the irreparable harm test cannot be satisfied. However, as I discuss below, I do find that Ontario’s arguments with respect to choice carry some weight at the balance of convenience stage.

[62] Finally, the right to pursue compensation has been removed by the injured cyclists Claims Bar which prevents any applicant from seeking damages in relation to injuries resulting from removal of the Target Bike Lanes. Any harm sustained from removal of the Target Bike Lanes cannot be compensated for in damages.

(c) Balance of Convenience

[63] Under the balance of convenience, I am to consider which of the parties will suffer the greater harm from the granting or refusing injunctive relief.

[64] This element of the test takes on special significance where the moving party seeks suspension of a law or regulation. In Harper v. Canada (Attorney General), 2000 SCC 57, para. 9, the Supreme Court stated that in assessing the balance of convenience, the court must proceed on the assumption that the law is directed toward the public good and serves a valid public purpose. This assumption weighs heavily in the balance, and courts will not lightly order that laws that Parliament or a legislature has duly enacted for the public good are inoperable in advance of complete constitutional review. It follows that only in clear cases will interlocutory injunctions against the enforcement of a law on the grounds of alleged unconstitutionality succeed: Harper, at para. 9.

[65] In order to overcome the assumed benefit to the public interest arising from the continued application of the legislation, the applicant who relies on the public interest must demonstrate that the suspension of the legislation would itself provide a public benefit: RJR-MacDonald, at para. 85.

[66] The applicants acknowledge the presumption and importance to the public interest served by legislation. However, they note that government does not have a monopoly on the public interest. They submit that at this stage, public interest can include both concerns of society generally, namely that the presumption that legislation serves the public good, as well as the particular interests of identifiable groups such as Toronto area cyclists. When the specific irreparable harm is weighed against the presumption that enforcing validly passed legislation is in the public interest, the applicants argue that the balance of convenience favors them.

[67] Specifically, the applicants highlight that there are only 27 days between the undertaking date and the hearing on the merits. They submit that the limited duration of the injunction requested is an important factor favoring the granting of the injunction pending the merits hearing.

[68] The applicants also note that Ontario has not filed a responding record and there is therefore nothing before the court demonstrating that the injunctive relief requested will pose any inconvenience to the government at all.

[69] In contrast, if injunctive relief is not granted and the applicants are successful on the merits, they submit it will be significantly harder to put themselves back in the same position they were in prior to the removal of the Target Bike Lanes. While constitutional remedies can be expansive, striking down legislation is a less onerous and a more common remedy than ordering the government to undertake the physical work. Restoring dismantled bike lanes will require time and public funds and will result in continued harm to the applicants.

[70] The applicants argue that the injured cycling bar cuts against the presumption that the public is served by validly passed legislation insofar as it bars workers and the public at large from collecting damages from the Crown for their injuries. Such a broad exemption to Crown’s responsibility weakens the presumption by increasing threat to the public. In contrast, preventing removal promotes the public interest.

[71] They further note that, all else being equal, preserving the status quo is a relevant consideration at the balance of convenience stage. They submit that if the court concludes that the balance of convenience on both sides weighs equally, the applicants’ efforts to preserve the status quo can tip the balance in their favor.

[72] Ontario submits that the Supreme Court has made clear that the public interest is a special factor which must be considered at the balance of convenience stage, where there is a presumption that the impugned law is directed to the public good and serves a valid purpose. Suspending the operation of the impugned provision will cause irreparable harm to the public interest, and this need not be proven through evidence from the government but rather should be assumed by the court. Ontario adds that in every Supreme Court case in the Charter era where a party has sought to suspend legislation pending the hearing of an appeal, the Court has denied the injunction on the basis of public interest.

[73] Reference is specifically made by Ontario to paragraph 9 in Harper where the court states in part:

The assumption of the public interest in enforcing the law weighs heavily in the balance. Courts will not lightly order that laws that Parliament or a legislature has duly enacted for the public good are inoperable in advance of complete constitutional review, which is always a complex and difficult matter. It follows that only in clear cases will interlocutory injunctions against the enforcement of a law on grounds of alleged unconstitutionality succeed.

[74] Ontario submits that at the second stage of the injunction test it is only irreparable harm alleged by the applicants that is considered. However, at the third stage any such harm is to be weighed against harm to the public interest. Such harm need not be proven through evidence from the government but rather should be assumed by the court due to the inherent public interest function.

[75] Ontario argues that the declared purpose of the legislation is to benefit the public interest by reducing congestion in Toronto. It is this broad purpose which is to be weighed against the harms alleged by the applicants, which amount to a mere inconvenience for a short period of time affecting an unknown subset of 3% of trips in Toronto that occur by bicycle.

[76] Ontario further argues that in order to suspend the operation of duly enacted legislation on an interlocutory motion which is presumed to be in the public interest, the applicant must demonstrate a public interest transcending their own interests, weighing in favor of the injunction being granted.

[77] The applicants seek to suspend the operation of validly passed legislation. Under the balance of convenience test special considerations apply. For the purpose of this motion the enactment of the Target Bike Lane Removal Provision is presumed to be in the public interest and serve a valid purpose. There is no requirement to prove that this law will produce a public good. This is not altered by the fact that Ontario elected not to file a responding record on this motion. Ontario is under no obligation to provide evidence to establish this assumption: Harper, paras. 5 and 9.

[78] The courts’ role on this interlocutory motion is not to second-guess the wisdom of the policy or to question whether it really serves the public interest. It is assumed to do so. Ontario is entrusted with a mandate to determine how bike lanes are to co-exist with vehicular traffic. The applicants must convince the court that granting the interlocutory injunction will do more for the public interest by protecting rights: Harper, para. 9; RJR-MacDonald, para. 68. The assumption of the public interest in enforcing the law weighs heavily in the balance. Only in “clear cases” will interlocutory injunctions against the enforcement of a law on the ground of unconstitutionality succeed: Harper, at para. 9.

[79] Based on the evidentiary record filed, and recognizing the special considerations that apply when seeking injunctive relief against government action rendering duly enacted legislation inoperable, the applicants have not met the heavy burden of establishing that an injunction preventing the removal of the Target Bike Lanes even for a short period of time will do more for the public interest when considering the legislation’s stated purpose.

[80] The applicants have not provided a compelling overall public interest rationale to override this presumption. Toronto is a densely populated city with competing demands for road space. The Government of Ontario has expanded its jurisdiction to decide how this space should be allocated. The evidence suggests that cycling trips represent 3-4% of all trips made within the City of Toronto, and an even smaller share make regular use of the Target Bike Lanes. The evidence also suggests that if the lanes are removed, the volume of cyclists using these roads will decrease significantly such that the raw total of cyclist collisions will be largely unaffected.

[81] Notwithstanding any increase in risk for those who continue to ride on the affected roads, Ontario is correct to point out that for the vast majority of these cyclists, doing so is a choice. This is not a case where the applicants have no viable alternative means of transportation, and this decreases the effect of any inconvenience incurred by the applicants or the public interest they represent.

[82] The short duration for which the injunction is sought might limit the inconvenience to Ontario if it were granted. But the same is true for the applicants. The increased risk of harm they allege will only last a short window until the merits of their Charter claims are considered.

[83] Given the assumption that the suspension of validly passed law causes irreparable harm, this displaces the applicants’ submission that “all else being equal” on the balance of convenience, the status quo should prevail. I find that the balance tips in favour of Ontario.

Disposition

[84] I dismiss the motion for an interlocutory injunction prohibiting the dismantling of the Target Bike Lanes for the interim period between March 20, 2025, and April 16, 2025. This is without prejudice to a request for further interlocutory or permanent injunctive relief beyond this time period. Such request is to be made to the application judge.

[85] Costs of this motion are reserved to the application judge.

S. E. Firestone
Released: March 14, 2025