CITATION: St. Lawrence Neighbourhood Association v. Ontario (Minister of Government and Consumer Services), 2021 ONSC 1087

DIVISIONAL COURT FILE NO.: 039/21

DATE: 20210210

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: ST. LAWRENCE NEIGHBOURHOOD ASSOCIATION, Applicant

AND:

ONTARIO )MINISTER OF GOVERNMENT AND CONSUMER SERVICES) et al., Respondents

BEFORE: D.L. Corbett J.

HEARD: By videoconference on February 8, 2021

COUNSEL: Lianne Armstrong and Brandon Duewel, for the Applicant

Marina Sampson, Meredith Bacal and Henry Machum, for Infrastructure Ontario

Darrel Kloeze, Joanna Chan and Mariam Gagi, for Ontario

Rodney Gill and Jared Wehrle, for City of Toronto

ENDORSEMENT

[1] This endorsement sets out my directions following a case management teleconference held February 8, 2021.

[2] Toronto has commenced a proceeding in this court against Ontario and is now an applicant rather than a respondent. The two proceedings – one brought by Toronto and the other by St. Lawrence Neighbourhood Association, are scheduled to be heard together by a panel of this court on February 26, 2021.

[3] Toronto and Ontario disagree about whether Ontario is required to deliver a “record of decision” in Toronto’s case. Toronto says that, by legislation, the Minister is “responsible for” disposition of Crown property, and that destruction of four heritage buildings pursuant to this statutory grant of authority leads to a conclusion that a statutory power of decision has been exercised, within the meaning of the Statutory Powers Procedures Act (“SPPA”).

[4] Ontario says that decisions made respecting the demolition of the buildings are akin to business decisions made by a private person in respect to their own property and are not caught by the concept of “statutory power of decision” in the SPPA of the Judicial Review Procedure Act.

[5] The schedule directed by this court did not include a deadline for production of a record of decision. It did include a deadline for production by Ontario of its application materials and a schedule for cross-examinations. Toronto fears that Ontario will adduce no evidence about who made the decision to demolish the buildings without complying with the Heritage Act and the Subdivision Agreement, and so there will be no record before the court about the decision impugned in this application. Toronto referred to the decision of Myers J. in Tesla Motors Canada ULC v. Ontario (Ministry of Transportation), 2018 ONSC 5062, as a case where Ontario failed to disclose information about an impugned decision while, at the same time, asserting that the decision reflected a core policy choice protected from judicial review.

[6] The applicants’ cases rest on the position that Ontario has breached the Heritage Act and the Subdivision Agreement. It is for the applicants to establish this case. To the point of the case management conference, Ontario had not adduced its record in defence of the application. If Ontario relies upon a statutory power of decision to exempt Ontario from meeting its obligations under the Heritage Act or the Subdivision Agreement, it may well be that a statutory power of decision will emerge as an element of the case. If Ontario does not raise such a defence, and the demolition decision is nothing more than an operational choice made under a statutory grant of authority and responsibility, then it may well be that no statutory power of decision is engaged.

[7] In my view this issue should be left for the panel to decide on the record as it exists at the time the cases are heard. It will be open to the panel, for example, to conclude that no statutory power of decision is engaged, and to draw whatever inferences are available and appropriate on the evidence before it regarding the decision-making process in this case. It will be open to the panel, for example, to adjourn the hearing and order further disclosure, and/or provision of a record of decision, if, in the view of the panel, that is the appropriate thing to do.

[8] The City expressed concern that Ontario is trying to position the case as a private law dispute to argue that the matter should be before the Superior Court (where the St. Lawrence Neighbourhood Association case started and from whence it was transferred to this court). That, too, is a matter to be addressed with the panel, which could transfer the cases or parts of them back to the Superior Court, if that was thought appropriate, on such terms as are just. The goal here, of course, is to get to the bottom of these cases on the merits, in quick order, given the interim order made by this court to preserve the court’s ability to do justice to the case.

[9]

[10] If there are any further procedural issues that arise before the hearing, the parties may seek further directions from me, or they may bring them before the panel hearing the cases on the 26^th^ of February.

D.L. Corbett J.

Date: February 10, 2021