COURT FILE NO.: 08/403
DATE: 20081029
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BROCKENSHIRE, J. WILSON and KARAKATSANIS JJ.
B E T W E E N:
WILLIAM ASHLEY CHINA LTD
Applicant
- and -
THE CORPORATION OF THE CITY OF TORONTO
Respondent
Clay Ruby and Gerald Chan for the Applicant, William Ashley China Ltd.
Darrel A Smith, Michele Wright, for the Respondent, for the Respondent, the City of Toronto
Albert Koehl, for the Interveners, Angela Bischoff and the Safe Cycling Coalition
HEARD at Toronto: October 9, 2008
KARAKATSANIS J.:
[1] This is an Application by William Ashley China Ltd for judicial review of the decision of the City of Toronto to classify the Bloor Street Transformation Project as a Schedule A/A+ Project under the Municipal Class Environmental Assessment (the MCEA) and orders for:
(1) a declaration under ss2(1) of the Judicial Review Procedure Act (JRPA) that such classification violates ss. 13(3)(a) of the Environmental Assessment Act (EAA); and
(2) an order of certiorari, quashing such classification.
[2] The purpose of the Project is to beautify Bloor Street between Church Street and Avenue Road, transforming it into “a pedestrian oriented world class shopping destination”. The Project calls for the resurfacing of the roadway and the widening and resurfacing of the sidewalks with granite, with boulevard works. The Project consists of interdependent components: widening sidewalks by 1.2 metres, and resurfacing them with granite; replacement and planting of 138 trees, some with planters; reconstruction of the road, maintaining four lanes; repositioning and reconstruction of two ‘lay-bys’ for pick up and drop off; minor changes to curb-radii at intersections to conform with current requirements; replacement of certain traffic signals and street lights; and the installation of decorative lighting. Existing on street parking will be eliminated.
[3] The classification complained of was made in 2001. A construction contract was signed on July 7, 2008 at a cost of $20,707,499.61 and work is currently underway. This Application was commenced August 11, 2008.
[4] The Project was first developed and proposed in 1999 by the Bloor-Yorkville Business Improvement Area (BIA), consisting of about 1800 members of property owners or tenants in the area. Some 638 owners or tenants in the area considered to be benefiting from the Project are also members of the Bloor Street Business Improvement Area, created through the enactment of a City of Toronto By-law in June 2006 for the sole purpose of financing the Project.
[5] Ashley is a member of both BIAs and Brian Stark of Ashley was on the Board of Management of the Bloor Yorkville BIA from 1985 to 2003, when the Project was being developed and consultants retained by the BIA. Both BIAs have regularly communicated with their members about this Project.
[6] The City is initially paying for the Project but it is to be reimbursed for its cost, with the exception of the cost of road reconstruction, by the Bloor Street BIA up to a maximum of $20,000,000.00 through annual levies over the course of 18 years.
[7] Construction of the Project began in July 2008. Phase 1 involves work east of Yonge Street, scheduled to be completed by December 31, 2008. Phase 2 consists of work west of Yonge Street, anticipated to be completed by December 31, 2009.
[8] On July 8 and 18, 2008, the City held consultation meetings about the Project for members of the Business Improvement Areas. The Safe Cycling Coalition made deputations to Council.
[9] In April and May 2008 upon inquiry from the Safe Cycling Coalition, the Ministry of the Environment advised that the City of Toronto had classified the Project as Schedule A/A+ under Municipal Class Environmental Assessment. Ashley wrote to the City who confirmed in early August 2008 that the city had classified the Project in 2001 as Schedule A undertaking, and that under the current MCEA it would be classified as a Schedule A+. The classification decision was an informal decision made by a city engineer, familiar with the MCEA, after meeting with the project architects one or two times and obtaining details of the Project. It was evidenced by a 2001 e-mail by the city engineer that “based on the scope of work that is being proposed there are no EA implications.”
[10] The City has advised that the Project is classified as a Schedule A/A+ because the entire Project is covered by categories 3 and 19 of the MCEA table, categories relating to reconstruction of sidewalks within existing rights of way and reconstruction of roads for the same purpose, use, capacity and at the same location.
Position of the Parties
[11] Ashley is concerned that the classification under Schedule A of the MCEA made in 2001, or under Schedule A+, which was added to the MCEA in 2007, avoids public consultation and an environmental study report, which would have involved consultation and studies to examine alternatives and the impact on retail businesses. Ashley submits that despite the broad scope and significant cost of the Project, the City incorrectly and unreasonably classified the Project as Schedule A /A+, a classification reserved for projects that “are limited in scale, having minimal adverse environmental effects and include municipal maintenance and operational activities.” Ashley submits that the process was flawed and the City never advised anyone of the classification decision. While it submits that it continues to support the Project, Ashley takes the position that a proper classification would ensure consultation and studies that would result in improvements to the Project. In oral arguments it raised on street parking as a specific example of an alternative that should be considered.
[12] The Interveners, Angela Bischoff and the Safe Cycling Coalition, support Ashley’s position and emphasize the importance of strict adherence to the required environmental procedure. The Interveners submit that faulty classification pre-empts public engagement and the evaluation of alternative solution and related matters, such as the province’s planning regime, including the promotion of sustainable transportation.
[13] The City's position is that this Project had been in the study and consultation stage for 10 years. Ashley was actively involved as a member of the organization that initiated, developed and proposed this Project. Ashley never raised any concerns about an environmental assessment, consultation or studies until this court Application. What Ashley did raise in the past year, according to the City of Toronto, was concern about trees blocking the visibility of the storefronts and a number of special requests that would economically benefit Ashley, including: a parking lay-by in front of Ashley; a right turn lane at Bay and Bloor; and that all construction work be conducted at night. The City takes the position that any equitable relief ought to be denied because i) of the late date of this Application which prejudices the public interest; and ii) Ashley is motivated by a collateral purpose, focused on its own financial interests and raised environmental concerns only after it did not gain the concessions it requested.
[14] The City’s position on the classification of the Project as A/A+ is that it correctly chose the Schedule that actually applies to the Project because the entire Project is covered by categories 3 and 19 of the MCEA table. It is the construction and improvement of sidewalks within the existing right of way, and the reconstruction of a road for the same purpose, use, capacity and at the same location. While this Project is large, there is no financial limit on projects that fit under the relevant categories of Schedules A/A+. The MCEA does not specify any necessary process for the classification decision. It is up to the City to choose the appropriate schedule, and if the Minister of the Environment disagrees, the Ministry can apply to this Court. This has not happened.
Issues
[15] The issues raised in this Application are as follows:
Are the remedies available? Did the City exercise a statutory power of decision?
What is the standard of review?
Is the decision of the City reasonable or correct?
Should this discretionary remedy be refused due to delay or collateral motives in bringing the application?
[16] For the reasons that follow, in our view the applicable standard of review is reasonableness and we conclude that the City’s classification decision was reasonable. In any event, we would not grant this discretionary remedy because it would prejudice the public interest to do so, given the lateness of this Application.
The Environmental Assessment Framework and the MCEA
[17] The Environmental Assessment Act, R.S.O. 1990, c. E.18 is designed for “the protection, conservation and wise management in Ontario of the environment” (s.2). It applies to undertakings by provincial and municipal governments, public bodies and as designated by regulation (s.3). Individual approval for specific undertakings is not required for certain classes of undertakings approved by the Minister of Environment as long as the undertaking proceeds in accordance with the approved class environmental assessment. This provides for a uniform and streamlined process for planning and implementing projects which are repetitive and similar. The Act requires the proponent of a project to comply with applicable class environmental assessment. Section 13(3)(a) provides: “No person shall proceed with an undertaking with respect to which an approved class environmental assessment applies…unless the person does so in accordance with the class environmental assessment.” The environment is defined to include “the social, economic and cultural conditions that influence the life of humans or a community” (s.1(1)(c)).
[18] The Municipal Class Environmental Assessments for municipal infrastructure projects were prepared by the Municipal Engineer Association on behalf of Ontario municipalities and were consolidated into the MCEA. The current MCEA was first approved under the EAA by Order-in-Council in 2000 and updated in 2007.
[19] The MCEA applies to municipal infrastructure projects and contains an appendix with separate classification tables for roads, water and wastewater projects. Schedules are generally differentiated by the magnitude of their anticipated environmental impact. The schedules identify projects as either Schedule A, A+, B or C. Schedule A and A+ projects are pre-approved and do not require an environmental assessment process. Schedules B and C provided for various processes including the identification of alternatives, consultation and studies. The classification of a project as either A or A+ therefore impacts upon the process to be followed and the participation of the affected parties and the community in the planning of the project.
[20] The A+ schedule was created in 2007 to add the requirement of public notice prior to implementation for some of the pre-approved Schedule A projects. Also, the threshold cost limits for projects in some of the schedules were increased. Given that there is no suggestion that the City failed to comply with the notice requirements of Schedule A+ and that the parties’ submissions are otherwise not impacted by the 2007 changes to the MCEA appendix, the differences between the previous and current appendix have no bearing on this Application.
[21] The various schedules are described generally in the MCEA (A.1.2.2.):
Schedule A projects are limited in scale, have minimal adverse environmental effects and include a number of municipal maintenance and operational activities. These projects are pre-approved and may proceed to implementation without following the full Class EA planning process. Schedule A projects generally include normal or emergency operation or maintenance activities.
Schedule A+, are also “pre-approved, however the public is to be advised prior to project implementation”.
Schedule B projects have the potential for some adverse environmental effects. …Schedule B projects generally include improvements and minor expansions to existing facilities.
Schedule C projects have the potential for significant environmental effects and …generally include the construction of new facilities and major expansions to existing facilities.
[22] The MCEA requires the municipality to fit the specific types of projects and activities within categories in the tables in Appendix 1 to determine the applicable schedule. There are 42 categories in the table for road projects. Each category specifies the resulting schedule that applies. The applicable schedule for some of the categories depends upon the cost limit of the project, in effect a measure of the scale of the project. The MCEA provides that, in determining the appropriate category under which to classify a project, the proponent is to deal with the project in its entirety. The term ‘project’ is defined in the MCEA glossary as all the interdependent components initiated to solve a single problem or opportunity: “If the components are interdependent, then they shall be dealt with as a single project. … Proposed works are separate projects if: they are initiated to solve distinctly different sets of problems”. The MCEA prohibits the “piecemealing” of a project into different parts and the classification of each part independently in order to reduce the municipality’s responsibilities:
A project … shall not be broken up, or piecemealed into smaller components. The schedules shall be viewed inclusively in order to ensure that the correct schedule is selected. The proponent shall review all applicable schedules to ensure the correct choice of Schedule. In case where components of a single project fall within more than one Schedule, the more rigorous Schedule shall apply. (APP.1A)
A Remedy is available
[23] It is not disputed that Ashley has standing to bring this Application. A declaration is available under s. 2 (1) of the JRPA if the City’s decision to classify the Project as a Schedule A/A+ project under the MCEA is an exercise of statutory power - “the power or right conferred by or under a statute to make a decision deciding or prescribing …the legal rights, powers, privileges, immunities, duties or liabilities of any person or party…” (s.1).
[24] The law is unsettled as to whether the classification of a project under the MCEA is the "exercise of a statutory power of decision". The MCEA makes it clear that selecting the incorrect Schedule “is breach of the EA approval under which this Class Ea was authorized and therefore places the proponent in contravention of the EA Act” (A.1.2.2).
[25] In Hollinger Farms No.1 Inc. v. Ontario (Minster of the Environment), the Divisional Court held that the classification decision by the Ontario Realty Corporation (ORC) under the Class EA relating to the sale of lands was an administrative act, not subject to judicial review. The ORC’s definition of the project under the Class EA applied was challenged. The court indicated, however, that the issue was moot given its view that the decision was reasonable.
[26] In South Etobicoke Residents & Ratepayers Association Inc. V. The Ontario Realty Corporation, 2004 34444 (ON SCDC), [2004] O.J. No. 72 (Div Ct.), aff’d (2005), 2005 19654 (ON CA), 75 O.R. (3rd) 641 (C.A.), both the Divisional Court and the Court of Appeal did not specifically address the issue of whether the ORC’s choice of classification under the Class EA was a statutory power of decision, but proceeded upon the basis that a declaration was available as a remedy on judicial review of the decision. The court found that the classification decision under the Class EA relating to the sale of lands was not unreasonable.
[27] It is not necessary for us to determine whether the City exercised a statutory power in classifying a project under the MCEA, given our view on the remaining issues.
[28] In any event, it is agreed by all parties that the remedy of certiorari is available to quash the decision of classification even if there is no statutory power of decision. See Marineau v. Matsqui Institution, 1979 184 (SCC), [1980] 1 S.C.R. 602 at 628.
The Standard of Review is reasonableness
[29] In Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] S.C.J. 9, at paras. 44-64, the Supreme Court of Canada reconsidered the standards of review and concluded that there are two standards of judicial review – correctness and reasonableness. First, the Courts should ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded to a particular category of question. Second, where the first inquiry proves unfruitful, Courts must pursue an analysis of the factors making it possible to identify a proper standard of review.
[30] There is no decision that deals directly with the standard of review applicable to a decision by a municipality to classify an undertaking under the MCEA.
[31] Under a Dunsmuir analysis, deference will apply in situations such as questions of fact, discretion and policy; questions where the legal issues cannot be easily separated from factual issues; where a tribunal is interpreting its own statute or statutes closely connected to its functions; and where a tribunal has developed a particular expertise in the application of the law in a specific statutory context. In such circumstances the appropriate standard of review is reasonableness. A standard of correctness should apply where a tribunal is determining true questions of jurisdiction, or issues of general law that are of central importance to the legal system as a whole and outside the specialized area of expertise of the decision-maker. Other questions of law may be compatible with the reasonableness standard. The presence or absence of a privative clause, the purpose of the tribunal as determined by interpretation of enabling legislation; and the expertise of the tribunal are contextual factors in the analysis. (Dunsmuir, paras. 50-55, 64).
[32] In South Etobicoke, at paras. 6, 8, 88-89, the Ontario Court of Appeal held that in reviewing the decision of the ORC to classify an undertaking under the class EA applicable to realty group activities, the applicable standard of review was reasonableness simpliciter. The ORC was selling lands which would then be developed as a crematorium, and determined that this was an undertaking within ‘category B’ of its Class EA, described as an undertaking “with some potential for adverse environmental effects”. The Divisional Court held that while there was no privative clause, the ORC had considerable expertise in matters related to the Class EA requirements, as it routinely carried out a large number of the undertakings governed by it. The wording of that part of the Class EA left broad room for discretion; it provided general guidelines but did not dictate specific outcomes in each case. The classification of the undertaking and the implementation of the applicable methodology fell squarely within the jurisdiction of the ORC. The court held it was entitled to considerable deference in terms of how it applied the Class EA based on those factors. See also Hollinger, at para. 69.
[33] Ashley submits that South Etobicoke should be distinguished from this case on the basis that the case preceded Dunsmuir; the Class EA differed from the MCEA; and the ORC decision related to a part of the Class EA that left broad room for discretion. Ashley submits that the standard of correctness is more appropriate in this case because the MCEA provides for a self-assessment process by the proponent of the undertaking who has an inherent self-interest in classifying the undertaking in the manner that demands the least expense, consultation and studies in order to minimize outside interference with its project. The language of the MCEA also specifically requires the proponent to make the ‘correct’ choice of schedule. Thus broad powers of review and a standard of correctness are consistent with the language of the MCEA. Moreover, they will best advance the purpose of the EA to appropriately protect or manage environmental concerns by acting as a check on the proponent, who has a self interest in adopting the least expensive and time-consuming process. The proponent’s expertise is off-set by that self interest. As well, Ashley submits that the lack of process or reasons for the City’s decision to classify does not allow the court to assess the expertise and should support a standard of correctness.
[34] This case is more analogous to the South Etobicoke case which involved a self-assessment under a Class EA than to the cases cited by the Applicant relating to the government’s decision of whether to disclose information under the Access to Information Act, R.S., 1985, c.A-1. A government’s interest in maintaining the confidentiality of internal communications is very different from a government’s operational mandate to develop and implement public infrastructure projects.
[35] As in the South Etobicoke case, there is no privative clause in the MCEA. However the City, like the ORC, has expertise in both the MCEA and the roadwork projects and routinely deals with the application of the Class EA to many construction projects. The description of the types of undertakings in the EA is general and permits of some overlap. The question involves matters of fact and engineering, where legal issues cannot be easily separated from factual one. Municipalities deal with the Class EA and road works on daily basis. Decisions are made informally by engineers in consultation with architects. City engineers familiar with the undertaking determine how the work involved in the construction project best fits within the categories in the MCEA.
[36] The language of the MCEA that requires the municipality to determine the ‘correct’ schedule is not itself persuasive that the EA framework contemplates a standard of review of correctness. The MCEA also provides specific consequences for non-compliance, including penalties, and permits the Minister of the Environment to challenge the municipality’s classification decision. The MCEA does not require a specific or formal process for the making of the decision or that reasons be given.
[37] As well, to suggest that a standard of correctness applies because they are decisions made without written reasons would open the flood gates to review of routine specialized decisions relating to municipal infrastructure projects.
[38] The classification decision is not a question of law that is of central importance to the legal system or outside a municipality’s specialized area of expertise.
[39] In Dunsmuir, the Supreme Court stated at para 53: “Where the question is one of fact, discretion or policy, deference will usually apply automatically….We believe that the same standard must apply to the review of questions where the legal and factual issues are intertwined with and cannot be readily separated.”
[40] In our view the decision by a municipality under the MCEA requires deference, recognizing that those working day-to-day in implementing administrative schemes in the context of a specific project have a considerable degree of expertise. The classification of a roadwork project under the MCEA is predominantly a question of fact, and any legal issues are intertwined with the factual issues. The standard of review is reasonableness.
The decision of the City is Reasonable
[41] In Dunsmuir, at para. 47-48, the majority of the Supreme Court of Canada held that the reasonableness standard is “concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” Deference imports respect for the decision-making process of adjudicative bodies with regard to both the facts and the law and requires of the courts “not submission but a respectful attention to the reasons offered or which could be afforded in support of a decision”.
[42] In this case the City’s position is that the Bloor Street Project is a single project with interdependent components for the single purpose of the beautification of Bloor Street. The City says the Project is comprised of two interdependent components: the resurfacing Bloor Street (while maintaining four lanes of traffic); and the widening and improving of the sidewalk. The promotional language is irrelevant as the MCEA requires the City to examine and characterize the nature of the actual work involved; furthermore where the categories have no financial limit, the cost is also irrelevant.
[43] The City maintains that sidewalk re-construction fits squarely under category 3, for the construction of sidewalks within existing rights of way; and the road reconstruction fits under category 19, for reconstruction of the road for the same purpose, use, capacity and in the same location. Additional features are part of the road and sidewalk reconstruction components, including associated street-scaping, adjusting curb radii to current requirements or repositioning of lay-bys, and replacing of existing traffic signals. These categories have no financial limits and are pre-approved Schedule A/A+.
[44] Ashley submits that the City’s decision to classify the Project as Schedule A/A+ was both unreasonable and incorrect. It submits that the decision was unreasonable because the City did not chart an appropriate analytical course for itself, with reasons that serve as a rational guide. It divided the single project and ‘piecemealed’ the Project in a manner prohibited by the MCEA. Ashley submits that the Class EA requires that the proponent first attempt to choose a category that captures the entire project. Only if no such category exists, may a proponent break down the single project into separate categories and then apply the most rigorous schedule that emerges from each of those classifications. Ashley submits that the entire Project fits within category 41, ‘all other road related works’- the ‘catch all’ category under the heading of ‘miscellaneous projects’. This category specifies that the applicable schedule is either schedule B or C, depending upon the cost limit of the project. Ashley submits that the City ignored critical facts and criteria and that neither category 3, nor category 19, nor both combined, capture the entire Project; tree planting, replacement of traffic lights, street lights, street-scaping and a change to curb radii and lay-bys do not fit within the sidewalk and road reconstruction categories. Ashley further submits that a proper classification would require the schedule C environmental assessment process.
i) The City’s approach in categorizing the interdependent components of the Project is reasonable.
[45] Although the general descriptions of the different schedules in the MCEA suggest that Schedule A/A+ projects are generally more modest in scale with limited environmental impact, the MCEA does not ask the municipality to determine which general definition best describes the project. It requires the municipality to determine the appropriate schedule by reference to the specific work contemplated and the specific categories set out in the tables in the appendix. The tables specifically designate even very costly projects to be Schedule A/A+ depending upon the nature of the work; it specifically contemplates that some very costly projects may nonetheless have limited environmental impact and should be pre-approved. Categories 3 and 19 in the table specifically cover sidewalk and roadwork, and these categories have no financial limit.
[46] The MCEA provides that, in determining the appropriate category under which to classify a project, the proponent is to deal with the project in its entirety. The MCEA prohibits the “piecemealing” of the project into different parts and the classification of each part independently in order to reduce its responsibilities under the EAA.
[47] The MCEA, however, contemplates that a single project may have separate interdependent components. It provides: “in cases where components of a single project fall within more than one Schedule, the more rigorous Schedule shall apply”. The MCEA sets out specific descriptions of common roadwork projects and contemplates and addresses the circumstance that a project may have different interconnected components with varying environmental impact. The rule against ‘piecemealing’ is designed to ensure that municipalities do not artificially break down the project to circumvent the cost limits. While the cost limits in the table clearly refer to the cost of the entire project, construction of sidewalks within existing rights of way and reconstruction of roads for the same purpose, use, capacity and in the same location are both categories that have no cost limits.
[48] The City’s decision to break down the Project into specific interdependent components that best fits the specific nature of the work is more consistent with the framework of the MCEA tables and consistent with the direction that the most rigorous schedule will apply to the entire project. The approach urged by Ashley would result in any multifaceted project being addressed as a miscellaneous project - ‘all other road related works’ - even where other categories are available for the specific work contemplated in each component. If the nature of the work in two interdependent components each are considered to have minimal environmental impact, it is reasonable to find that the combined components have minimal environmental impact. We find that the City’s approach of dividing the Project into specific interconnected components, rather than choosing the ‘catch all’ category, was satisfactory and substantial compliance with the MCEA was reasonable, and in our view correct.
ii) The sidewalk reconstruction
[49] Under the heading ‘general operation and maintenance of linear paved facilities and related facilities’, category 3 of the MCEA table reads:
Construction or operation of sidewalks or bicycle paths or bike lanes within existing rights-of-way. [No cost limit for project]
[50] Ashley further submits that even if the City is allowed to consider the components separately in this fashion, it ignored critical facts and criteria. Ashley maintains that category 3 is not appropriate for the sidewalk work because the widening of the sidewalks includes work on private property outside the City’s right of way. Ashley suggests that either category 20 or 21 would be an appropriate fit as ‘linear paved facilities’.
[51] The City maintains that the sidewalks are within the City’s right of way and that category 3 is the appropriate category for the sidewalk reconstruction. Although the contract permits the resurfacing of the sidewalks to extend to the private property in front of the retail stores with the agreement and at the expense of the private property owners (up to a maximum of 6.5% of the total granite re-surfacing), such work will be conducted upon private property rather than the public sidewalk and only on behalf of and at the expense of the property owner. There are no agreements relating to the private property at this time. The City submits the EA and the MCEA do not apply to this modest work on private property. Ashley suggests that because of the potential extension of the work to private property outside the City’s rights of way, either category 20 or 21 would be the correct fit as ‘linear paved facilities’. However, the City disagrees with the Ashley’s interpretation that sidewalks fit within the definition of linear paved facilities, which refers to road lanes; sidewalks are a ‘related facility’ and category 3 is the only category dealing specifically with sidewalks.
[52] In our view the City’s classification is reasonable for the reasons given and is supportable by the facts and the purpose and language of the EA and the MCEA.
iii) The road reconstruction
[53] Category 19 reads:
Reconstruction where the reconstructed road or other linear paved facilities (e.g. HOV lanes) will be for the same purpose, use, capacity and at the same location as the facility being reconstructed (e.g. no change in the number of lanes) [No cost limit for project]
[54] The City’s position is that the road reconstruction fits squarely within category 19 of the Appendix as it would be for the “same purpose, use, capacity and at the same location”. In this case the same number of lanes will be maintained although the lanes will be narrower in order to accommodate the widening of the sidewalk by 1.2 metres.
[55] Ashley submits that because the widening of the sidewalks will result in a narrower road and parking will not be available, category 19 is not appropriate because there will be a change in the purpose, use and location of the road, even if the number of lanes, or the road capacity, remains the same. Ashley suggests that the change in use makes category 20 the appropriate category requiring a classification of either Schedule B or C depending upon the cost limit of the Project.
[56] However, the City takes the position that the work fits within the very example used in the MCEA in category 19: i.e. “no change in the number of lanes”. The definition in the glossary of “road capacity” is “defined in terms of traveled lanes and specifically does not differentiate between various lane widths to accommodate differing volumes of traffic”. The MCEA glossary provides an example of the “same purpose, use, capacity and location”: “if the reconstructed cross section has the same number of lanes and is in essentially the same location. Works carried out within an existing road allowance such that no land acquisition is required are considered to be in the same location.” Finally the elimination of 43 parking spots and the expansion of the ‘no stopping’ rule is not a change in purpose, use and capacity of the road. Those matters are within the City of Toronto by-law powers under the City of Toronto Act, 2006 S.O.2006 c.11 Sched A, occur routinely and are not part of the EA process.
[57] For these reasons, we find the position of the City to be reasonable and supportable by both the facts and language of the MCEA.
iv) Other Features of the Project
[58] Finally, Ashley submits that the City’s characterization ignores other critical features of the Project, including the replacement of traffic lights, the new trees and planters, the change in curb radii and lay-bys, new street lights and decorative lighting.
[59] The City’s position is that ‘street-scaping’ has a separate category under category 11 only if not part of another project and that replacement of a traffic signal does not fall within category 13 which provides for the installation or reconstruction of traffic control devises, not replacement. In any event, that work has a cost of under $200,000 and therefore would be well below the $8.7 million threshold. Although Ashley submits that work on curb radii and lay-bys may be included in the structural changes defined as “localized operational improvement” and thus fit under category 12, and therefore subject to a project cost limit of $2.2 million for Schedule A, the City takes the position that the minor changes in curb radii in accordance with current city specifications and the re-positioning and reconstruction of lay-bys are minor matters subsumed in the reconstruction of the sidewalks and road. The City submits that all these additional minor items are well under the costs limit thresholds set out in the specific categories and do not affect the characterization of the principle nature of the work of sidewalk and road reconstruction.
[60] It is reasonable for the City to determine that minor features may well be part of the main components of the Project. For example, the explicit language in category 13 is that ‘street-scaping’ is a separate category only if not part of another project. The definition of localized operational improvement says it may include curb radii. It is not unreasonable for infrastructure projects to address necessary upgrades or improvements within the broad objectives of a project, as for example to replace traffic signals or adjust curb radii to meet current objectives. Not every detail of a project will necessarily address the main objective of the project; it may well be expedient to address some necessary upgrades or deficiencies while the primary work is to be done. For example, a costly sidewalk resurfacing project in a category without financial limit does not attract a different schedule because the curb radii are adjusted to follow the road or meet current requirements. A large costly road resurfacing project in a pre-approved category without financial limit need not change schedule because a single traffic light is also replaced. Therefore, although the costs thresholds clearly relate to the cost of the entire project where it is designed to meet one objective, it is reasonable for the City to add additional features to meet current requirements or to address minor maintenance or operational activities within the applicable cost thresholds.
v) Conclusion: The City’s classification of the Project as Schedule A/A+ is reasonable
[61] The general definition in the MCEA suggests Schedule A/A+ generally applies to projects that are limited in scale, have minimal adverse environmental effects and include a number of municipal maintenance and operational activities. This Project is costly and includes many high cost and high-end features, including enlarged granite sidewalks, planters and decorative lighting. Apart from its high-end finishings, and its significant costs, the Project is primarily the reconstruction of a sidewalk within the City’s right of way and the reconstruction of the roadway, maintaining the same number of lanes. While the Project may involve significant cost, it is none-the-less modest in terms of the nature of the change and its impact on the environment.
[62] We do not find that the City was unreasonable in its classification of the Project. We agree that this Project appeared to fit within Schedule A at the time, and to now fits within the new Schedule A+. Neither requires the formal environmental assessment being sought by Ashley. The project is in essence the re-construction of a road, and sidewalk work, within categories 3 and 19, as decided by the City. It is extensive and expensive work, on a main road in the city, lined by many first-class retail premises. However, explicit in the classification system is that the dollar value of the work is not a criterion for A/A+ projects.
This discretionary remedy ought to be refused for delay
[63] The City pointed out that the relief sought, especially certiorari, is discretionary, and can be refused for delay and improper purpose. See Hollinger, supra and David P. Jones and Anne S. de Villars"Principles of Administrative Law" 4th ed. (Thomson Carswell 2004) at pp. 597-99.
[64] The City suggests that Ashley is not concerned about the possible environmental impacts of the Project on the general public, or the many retailers in the affected area; its concern is to in one way or another improve its own financial position. There certainly is evidence pointing to that, in the requests for special treatment made by Ashley within the last year or so. This is quite different from the approach of the Interveners in this regard.
[65] However, the definition of ‘environment’ under the EAA is broad and includes the financial conditions. The impact on Ashley’s financial interests is part of the direct environmental impact of the undertaking itself. Accordingly, Ashley’s motivation may well not be a ‘collateral purpose’ for this Application. We would not refuse to order relief on this basis.
[66] Clearly, Ashley knew about this Project for years, and yet did not raise any environmental concerns until after a $25,000,000 contract was let, and construction started. If the Ashley request was now granted, this Project would have to halt for a considerable period of time, which likely would involve at least higher costs, if not the loss of the existing contract. The Bloor Street BIA will compensate the City to a maximum of $20,000,000. In the same way that the economic impact of the Project on Ashley is self-evident, the cost to the public in halting the Project at this late stage is also self-evident.
[67] Ashley submits that it brought this Application as soon as it learned of the classification decision, indirectly through the Ministry’s response to the Safe Cycling Coalition in May 2008 and then directly when the City responded to their letter on August 4, 2008. This Application was brought within weeks of the City’s confirmation of its classification of the Project. The City had never made public its classification of the Project.
[68] However there is no requirement under the MCEA to publish the classification. It is part of the routine preparation of every municipal infrastructure undertaking. Ashley was involved on the Board of the Bloor Yorkville BIA when the Project was first formulated, proposed and advocated to the city. While Ashley may not have been advised or aware of the classification under the MCEA, given Ashley’s involvement and the broad public knowledge of the Project, it would have been aware of the general level of discussions and consultations and the studies conducted. Ashley made no request throughout that process over the last 10 years for further or public consultations or studies. In these circumstances, we are satisfied that the refusal to grant a remedy would not be unfair to Ashley. On the other hand, given the stage of the Project and the delay and cost that would arise, it would prejudice the public interest. We would deny relief on this basis. .
DECISION:
[69] We therefore dismiss this Application. First, we conclude that the classification of the Project was reasonable. Second, Ashley has unduly delayed raising any concerns about the classification of the Project or the process followed. Granting the Application would not be in the public interest. The Project has been planned for over ten years and construction has begun.
[70] Given that counsel agreed that costs shall follow the event and agreed upon the amount of costs, we fix costs payable by the applicant to the respondent within thirty days as agreed by the parties.
BROCKENSHIRE J.
J. WILSON J.
KARAKATSANIS J.
DATE:
COURT FILE NO.: 08/403
DATE: 20081029
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BROCKENSHIRE, WILSON AND KARAKATSANIS JJ.
B E T W E E N:
WILLIAM ASHLEY CHINA LTD
Applicant
- and –
THE CORPORATION OF THE CITY OF TORONTO
Respondent
REASONS FOR JUDGMENT
KARAKATSANIS J.
Released: October 29, 2008