CITATION: Lachance v. Solicitor General of Ontario, 2024 ONSC 975
DIVISIONAL COURT FILE NO.: DC-22-2731
DATE: 20240214
ONTARIO SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Stewart, Myers, and Leiper JJ
BETWEEN:
VICTOR LACHANCE and KIRK ALBERT
Applicants
– and –
SOLICITOR GENERAL OF ONTARIO and ATTORNEY GENERAL OF ONTARIO
Respondents
Stéphane Émard-Chabot, for the Applicants
Susan Keenan and Shayna Levine-Poch, for the Respondents
HEARD at Ottawa (by Videoconference): February 8, 2024
REASONS FOR JUDGMENT
FL Myers J.:
Background
[1] The applicants ask the court to review and quash the decision of the Solicitor General of Ontario to build a new correctional facility complex in Kemptville.
[2] The applicants have also named as a party respondent in this proceeding the Attorney General of Ontario, the chief law officer of the government. The applicants do not seek any specific relief against the Attorney General.
[3] The Solicitor General announced her decision to build a correctional facility in Kemptville on August 27, 2020. The applicants started this application to challenge the decision almost two years later on August 16, 2022.
[4] Under s. 5 (1) of the Judicial Review Procedure Act, RSO 1990 c J.2 applications to review government decisions must be brought within 30 days of the decision being made. That date can be extended under s. 5 (2) of the statute if the court finds that application has merit and"no substantial prejudice or hardship will result to any person affected by reason of the delay".
[5] The respondents brought a motion last year to ask the court to dismiss this lawsuit because it was started far too late.
[6] By order dated April 28, 2023, reported at 2023 ONSC 2640, R. Smith J. ordered the respondents' motion to dismiss the application for delay to be heard by the panel hearing the application.
[7] The hearing before this panel commenced on February 8, 2024. The panel had before it all of the parties' evidence and submissions on both the motion to dismiss and the main application.
[8] After inviting submissions on the manner of proceeding with the hearings of the motion and the application, it was decided that the motion would proceed first. Counsel for the parties made full submissions on the issues of the delay and whether the application should be dismissed on that basis alone. After hearing those submissions, the panel advised that it would reserve its decision.
[9] As there was insufficient time to hear submissions on the application, the hearing of submissions was adjourned to February 16, 2024. .
[10] The panel has now had an opportunity to consider the issues raised on the motion to dismiss the application and has reached the conclusion that the motion should succeed for reasons set out in this below. As a result, the application is dismissed and will not be proceeding to a hearing.
The Timing of the Lawsuit
[11] On August 16, 2022, the applicants commenced this judicial review proceeding to have the court declare that the decision of the Solicitor General to build a new correctional facility in Kemptville was illegal. They ask the court to prohibit the Solicitor General from building the proposed correctional facility in Kemptville.
[12] The applicants have raised two specific grounds to assert that the Solicitor General made the decision to build the correctional facility unlawfully. Both issues rely on alleged breaches by the Solicitor General of her statutory duties under the Planning Act, RSO 1990, c P.13.
[13] The Notice of Application sets out the grounds upon which the applicants challenge the Solicitor General's decision to build the correctional facility in Kemptville. Paragraph 3 of the Notice of Application provides as follows::
- The application is brought under sections 2 and 6 of the Judicial Review Procedure Act, RSO 1990, c. J.1 on the grounds that the decision to build the [facility] on agriculturally designated prime farmland constitutes a violation of the Minister's obligations set out in sections 3(5) and 6(2) of the Planning Act, RSO 1990, c. P.13 and are therefore illegal and ultra vires.
[14] Subsection 3 (5) of the Planning Act requires a minister who exercises authority affecting a planning matter to be consistent with the provincial planning policy issued under the statute and to conform with the provincial plans then in effect.
[15] Subsection 6 (2) of the Planning Act requires ministries of the provincial government that propose to authorize an undertaking (like building a correctional facility) to consult in advance with any municipality that will be directly affected and to have regard to any established municipal planning policies.
[16] In this judicial review proceeding, the applicants submit that the decision to build the correctional facility on the chosen site in Kemptville is illegal because it is not consistent with the provincial planning policy then in effect. The applicants also say that the Solicitor General did not consult with the Municipality of North Grenville in advance, nor did she have regard to the relevant municipal planning policies as required.
[17] The grounds advanced to review the decision involve a decision made at a particular time.
[18] The applicants say that before deciding to build the correctional facility, the Solicitor General had to consider and conform to the provincial planning policy that was then in effect. She also had to consult with the municipality before deciding to proceed and have regard to municipal planning policies then in effect.
[19] In para. 8 of their Notice of Application the applicants say that they are unsure of the precise timing of the Solicitor General's decision-making process. But they acknowledge that the Solicitor General published a press release announcing the decision to build the correctional facility in Kemptville on August 27, 2020.
[20] Shortly after the announcement, the applicants sprang into action to organize community opposition to the correctional facility being located in their town.
[21] The applicants rely on the August 27, 2020 date as the decision date for their application. For example, in para. 39 of the Notice of Application, they wrote:
- All the information available to date from the Province and the Municipality indicate that no consultation took place prior to the announcement on August 27, 2020. This constitutes the third violation of the Minister's obligations under the Planning Act, rendering the Decision illegal and ultra vires.
[22] The applicants then waited until August 16, 2022 to start this judicial review proceeding, almost two full years from the Minister's announcement of the decision on August 27, 2020..
The Limitation Period
[23] The 30-day time limit to apply for judicial review under s. 5 (1) of the JRPA was added to the legislation effective July 8, 2020. Prior to that time however, case law had recognized that the court could exercise a discretionary authority to dismiss proceedings for delay. Case law established there was a presumptive six-month time limit on bringing applications for judicial review. See, for example, Taylor v. Pivotal Integrated HR Solutions, 2020 ONSC 6108, at para. 35.
[24] The purpose of the time limit is clear enough. The common law has long required that judicial review of government decisions be sought expeditiously. De Pelham v. Human Rights Tribunal of Ontario, 2011 ONSC 7006, at para. 14.
[25] Governmental and tribunal decisions often involve real time issues. Peoples' lives are affected. Unlike most civil actions that tend to involve historical issues for which damages or other remedies are claimed, an application for judicial review can affect and delay implementation of government action. Expenses may be incurred by government or individuals while waiting for judicial review proceedings. There is an institutional interest in ensuring timeliness and finality to governmental decisions. Taylor v. Pivotal Integrated HR Solutions, 2020 ONSC 6108, at para. 45.
[26] The court will consider an applicant's reasons for any delay although s. 5 (2) of the JRPA mentions only the apparent merit of a proceeding and any prejudice caused by delay. The decision to extend the time for a claim is ultimately one that requires the court to exercise judgment or discretion. I agree with Matheson J,. writing for a panel of this court, in Unifor and its Local 303 v Scepter Canada Inc., 2022 ONSC 5683:
[18] Therefore s. 5(2) does not foreclose a consideration of the length of the delay, and any explanation offered for the delay, in the exercise of the court's discretion. The impact of these facts may vary depending on the case and will now be considered in the context of a 30-day time limit.
[27] To the extent that s. 5 (2) of the JRPA requires the court to consider whether there are apparent grounds for relief raised in the applicants' material, I assume this is so for the purposes of the motion. I have no hesitation finding that there is a prima facie case raised in the applicants' material.
The Applicants' Efforts to Challenge the Solicitor General's Decision
[28] As they started to organize their community opposition to the proposed correctional facility, the applicants spoke to the mayor and other municipal officials early on. On October 9, 2020, the mayor and deputy mayor told the Mr. Lachance that the Solicitor General's announcement came as a complete surprise to them and that the municipality had not been consulted prior to the announcement.[^1]
[29] The applicants therefore knew everything they needed to know by October 9, 2020 to bring an application based on a claim under s. 6 (2) of the Planning Act. They acknowledged that the lack of consultation was known within three months of the Solicitor General's announcement.
[30] However, the appellants say they could not have known at that stage whether the Solicitor General properly considered the government's own provincial policy statement or the municipal planning policies as required by ss. 3 (5) and 6 (2) of the Planning Act unless the Solicitor General told them so.
[31] They submit that despite their repeated efforts to obtain documentary disclosure from the Solicitor General, even today they remain unsure of the Solicitor General's land use planning rationale for the decision to build the correctional facility in Kemptville.
[32] The applicants' evidence is that after the Solicitor General announced the project, officials from her ministry repeatedly invited inquiries from members of the public. They promised transparency and consultations with the public and the grass roots groups formed by the applicants. Ultimately however, the applicants say the Solicitor General stonewalled their efforts to obtain the documents they needed to assess the lawfulness of her decision-making process. They say they could not launch this application for judicial review without the information they required.
[33] Persons connected with the applicants brought numerous applications for documents under freedom of information legislation. Some documents were obtained in early 2022. There are ongoing appeals from the government's responses to some of those requests.
[34] The applicants also sought production from the respondents of a wide swath of documents. By order dated December 18, 2023, reported at 2023 ONSC 7143, Ryan Bell J. found that the applicants were entitled only to documents concerning the Solicitor General's land use planning considerations under the Planning Act.
[35] Ryan Bell J. found that those documents had already been produced by the respondents in their Record of Proceedings delivered in this proceeding.
[36] Ryan Bell J. found that the applicants' broader requests for documents related to unreviewable core government policy issues or were just requests for discovery of documents. She held that there is no broad right to documentary discovery in a judicial review proceeding under the JRPA.
[37] I agree with the finding of Ryan Bell J. that by bringing this application for judicial review the applicants became entitled to receive all documents concerning their claims. Ryan Bell J. adopted the words of Sharpe JA in Payne v. Ontario Human Rights Commission at para. 161:
An applicant for judicial review has the right to have a full and accurate record of what went on before the tribunal put before the court. This is an aspect of the superior court's inherent powers of judicial review. A superior court may insist upon the production of an adequate record of the proceedings before the tribunal being reviewed.
[38] When met by a reluctant decision-maker, the applicants always had the ability to obtain the documents that they needed to advance their claim. They just had to initiate this application.
[39] A desire for documentary production in advance, by itself, is not a basis to extend the limitation period under s. 5 (2) of the JRPA.
[40] But the applicants submit that without the documents, they could not assess whether they had grounds to bring this application for judicial review. I do not agree.
[41] The applicants knew that the Municipality of North Grenville told them it was not consulted prior to the decision being announced by October, 2020. They made repeated requests for information that were not answered. Had the Solicitor General fulfilled her obligations to consider the provincial and municipal policy statements under the Planning Act, she readily could have provided proof to the applicants if she had been so minded.
[42] The absence of information from the Solicitor General, coupled with her officials' promises of transparency, would have provided an ample basis for the applicants to make a prima facie assertion that the Solicitor General did not fulfill her statutory obligations. This remains the principal basis for the applicants' assertions in this application even now two years later. Only the Solicitor General knows what she considered in advance of making the decision. The applicants had a basis to seek judicial review as soon as the Solicitor General declined to provide them with evidence or an explanation of how she complied with her statutory obligations.
[43] The applicants submit that they did not want to be met with an argument that their application was premature. But there was no ongoing proceeding to challenge the Solicitor General decision or some other appeal process that required completion before this proceeding could be brought.
[44] The application could not have been premature in relation to the consultation issue under s. 6 (2) of the Planning Act. Moreover, the existence of the short limitation period under s. 5 (1) of the JRPA and the Solicitor General's unilateral ability to establish her compliance were ready answers to an assertion of prematurity.
[45] In any event, the applicants concede that they also knew by early 2022 that the Solicitor General was not giving them documents sought under freedom of information legislation to show that she had complied with the provincial or municipal planning policy under the Planning Act.
[46] In fact, the applicants' planning expert wrote to the Minister of Agriculture, Food and Rural Affairs on December 13, 2021 asserting that the site of the proposed correctional facility was "prime agricultural land""heritage farmland", and that it "sits within a floodplain". She asserted on behalf of the applicants that the loss of this publicly owned agricultural land "runs counter to your ministry's obligations..."
[47] Moreover, the applicants' theory that they were entitled to full production before they commenced this proceeding is flawed. There is no basis for it in law or precedent. As discussed by Ryan Bell J., simply starting an application for judicial review requires the decision-maker to produce a proper and complete record of the proceedings on which it made its decision.
[48] While bringing proceedings without grounds solely to try to obtain production of documents might have been premature or abusive, that was not the applicants' situation.
[49] Here, the applicants knew about their consultation issue right away. There was no reason for them to wait to see if they could find other grounds on which to base a proceeding. In any event, they had their further grounds by December, 2021 at the latest as their expert articulated a claim that the government had violated its obligations.
[50] It is clear from the applicants' affidavits and their factum that they did not sue on a timely basis because they chose to try to concentrate their resources on other avenues of political relief. They chose to retain experts, to try to grow public support for their organizations, and to lobby politicians at other levels of government or ministries of the provincial government.
[51] The applicants' documents show that they understood legal avenues could be pursued while they advanced other avenues of relief.
[52] In early 2022, despite knowing of all their causes of action or grounds of complaint, they chose to focus their efforts on participating in the upcoming provincial elections in the summer of 2022. They had apparently received some encouragement from then-opposition members of the Legislature.
[53] This is not a criticism of the applicants' resort to the political process. They made choices that suited their goals and capacity. Their notes show that they thought early-on about retaining lawyers and proceeding legally in parallel with their other efforts. They chose not to pursue the legal route.
[54] The applicants expressly viewed the legal route as a last resort. This is understandable. While the applicants knew at an early date that the Municipality of North Grenville said it had not been consulted, it also told them that the proposed facility was a legally zoned use of the proposed site.
[55] The Municipality of North Grenville is decidedly not here asserting any rights to help the applicants fight the proposed development project. Rather, the municipality wrote a letter supporting the lawfulness of the proposed development from its planning perspective.
[56] The law respects peoples' choices. Wauzhushk Onigum Nation v. Minister of Finance (Ontario), 2019 ONSC 3491 at paras. 177 to 179. But a choice to pursue other avenues to achieve one's goals is not one that promotes the goals of certainty and finality that lie behind the limitation period in s. 5 of the JRPA.
PREJUDICE
[57] Finally, the respondents' evidence is that the government committed $3 - $4 million to the proposed development project during the two years that the applicants delayed commencing this proceeding. They have now had to hold up the procurement process for another 1.5 years as this litigation has proceeded through motions to this hearing.
[58] The respondents have also closed the purchase of the land upon which the proposed correctional facility complex is to be constructed. The ministry has spent its money while the applicants delayed commencing this proceeding.
[59] I am not convinced that funds moving on government ledgers from the Ministry of the Solicitor General to the crown corporation that previously owned title to the land is actual prejudice to the government respondents. I understand that the Solicitor General's budgetary allocation was decreased by the sale price. The crown corporation vendor probably also has an independent reporting structure. Those may be important accounting principles to promote government fiscal accountability. But the bottom line appears to be that two branches of the government traded assets of equal value. If the sale is set aside, then the Ministry of the Solicitor General will perhaps have wasted the costs of the transaction.
[60] The respondents point to closer to $1 million spent on consultants and for due diligence around the land. It also incurred about $1 million for water main upgrades to the site. While the applicants' pursued their chosen paths, people in government ministries and crown corporation(s) spent their time at public expense, working on the project for two years.
[61] The Solicitor General also says that the search for land for this project has been especially difficult. It certainly took years and the project has gone through various iterations. The respondents rely on somewhat speculative evidence that finding a new site will be even harder and more expensive now.
[62] M. Émard-Chabot submits that in the context of a massive proposed project, valued at around $200 million, the loss of a few million here or there is not really substantial prejudice. He points to the fact that the Solicitor General may have walked away from a similar amount in August, 2020 when it abandoned its previously planned site and decided to move the correctional facility project to Kemptville. He also submits that it is unfair for the Solicitor General to walk away from a few million dollars when it decides to change policy, but that she can then rely on roughly the same amount to prevent the applicants from reviewing the lawfulness of her decision.
[63] I reject the notion that wasting $2 or $3 million in public funds is not substantial prejudice. Even if it is a small percentage of a planned investment in a mega-project, every dollar of public funds must be treated with prudent stewardship. Losses of public funds in the millions of dollars may be a rounding error on the books. But to those who taxes paid that money or to others' who could have used programs funded by that money, its loss must be viewed as substantial prejudice.
[64] Similarly, there is no equivalence between the government's cost benefit analysis in making policy decisions and the applicants' entitlement to challenge government action at a time of their choosing. The elected representatives are accountable to the voters for the cost of government's policy decisions. The Solicitor General can be called upon by the electorate to explain the costs of the decision to switch development projects in August, 2020. The applicants, by contrast, are advancing their own interests, accountable to no one, and free to make their strategic choices as they see fit. Holding the applicants to an assessment of the time they took to challenge the Solicitor General's decision so as to avoid millions of dollars being wasted while they engaged in public meetings, information campaigns, freedom of information appeals, election sign dispute proceedings, and lobbying politicians, is not a proper comparator to any cost incurred by the Solicitor General in the decision-making processes.
[65] A judicial review proceeding delayed for two years incurs a presumption of prejudice under the applicable case law discussed above. The applicants have tried to minimize the cost evidence. But they do not deny that the relevant people invested two years of efforts in their jobs, at public expense, while foregoing any search for other sites, that would not have happened had the applicants proceeded with this application on a timely basis rather than as a last resort.
[66] It is also telling that the applicants seek relief prohibiting altogether the development of the correctional facility project in Kemptville. If they succeeded in this judicial review application on Planning Act grounds, it is likely that the court would quash the decision and remit it back to the Solicitor General to reconsider while taking all proper planning steps required by law. There is no apparent basis under the two specific Planning Act issues raised by the applicants for the court to prohibit the project from ever being built provided planning decisions are all made lawfully.
[67] This lays bare the applicants' rationale for treating these proceedings as the last resort. The litigation does not get the applicants what they want – which is to stop the project.
[68] I find that the respondents have suffered substantial prejudice from the applicants' delay in bringing this proceeding. The government invested two years of time and funds on the project while the applicant's chose to pursue relief elsewhere. Even accepting that the application could have prima facie merit, allowing this application to proceed so late in the day would undermine the purpose of requiring timely judicial review proceedings at common law and now in the JRPA.
[69] In all the circumstances, I would not exercise the discretion to extend the time limit for the commencement of this proceeding. Therefore, the application is dismissed.
[70] The parties agreed that there would be no costs to either side on the motion to dismiss and the application.
"FL Myers J."
I agree: "Stewart J."
I agree: "Leiper J."
Date: February 14, 2024
CITATION: Lachance v. Solicitor General of Ontario, 2024 ONSC 975
DIVISIONAL COURT FILE NO.: DC-22-2731
DATE: 20240214
ONTARIO SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Stewart, Myers, and Leiper JJ
BETWEEN:
VICTOR LACHANCE and KIRK ALBERT
Applicants
– and –
SOLICITOR GENERAL OF ONTARIO and GENERAL OF ONTARIO
Respondents
REASONS FOR JUDGMENT
FL Myers J
Released: February 14, 2024
[^1]: See, for example, para. 5 of the affidavit of Mr. Lachance affirmed December 15, 2020. I understand that the government denies this allegation. It submits that there was adequate consultation in advance of the decision being taken. For the purposes of this decision, as will become apparent below, the focus is on the timing of the applicants' considerations.