Law Society of Ontario v. Metrolinx, 2023 ONSC 1169

COURT FILE NO.: CV-23-694198

DATE: 2023/02/16

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Law Society of Ontario, Applicant

AND

Metrolinx, Respondent

BEFORE: The Honourable Justice Charles T. Hackland

COUNSEL: Linda R. Rothstein, Michael Fenrick, and Mannu Chowdhury, for the Applicant, Law Society of Ontario

Sarit Batner, Byron Shaw, Sam Rogers, and Bonnie Greenaway, for the Respondent Metrolinx

HEARD: February 9 and 10, 2023, by videoconference

Reasons for Decision (interlocutory Injunction)

1The Applicant Law Society of Ontario (LSO) brings this application for an interlocutory injunction against the Respondent Metrolinx. The matter was argued before the court on February 9^th and 10^th. Due to the urgency of the matter, I rendered a decision following argument in which I dismissed the application, with reasons to follow. These are those reasons.

Background

2This proceeding arises out of the pending construction of the new Ontario Line which is a priority transit project under the Building Transit Faster Act, 2020, S.O. 2020, c. 12, the purpose of which is to expedite the delivery of transit projects that are of provincial significance. The Ontario Line is a critical infrastructure project that intends to alleviate the congestion of the current transit system. It will be a 15.6 km subway line, running from Exhibition Place, through the heart of downtown Toronto, and ending at the Ontario Science Centre. Fifteen new subway stations will be constructed on the Ontario Line and the Osgoode Station, situated on the Osgoode Hall site, will be one of them.

3The Osgoode Hall site is divided between 3 owners. A portion of the land was recently expropriated from the LSO to facilitate the construction of Osgoode Station. Metrolinx owns the land on the south-west corner of the property, the proposed site of the new Osgoode subway station. The LSO owns and occupies the eastern portion of the historic building: the facilities from which the Law Society benchers and administrative staff carry out their functions in the governance of the legal profession in Ontario. The Government of Ontario owns the central and western portions of the structure: the Osgoode Hall Courthouse, which is home to Ontario’s appellate courts and other judicial and administrative offices, and a historic Law Library.

4The Osgoode Hall station entrance (known as a “headhouse”) will be constructed on the land owned by Metrolinx. The construction will involve the removal of 11 trees currently on the site. These trees will be replaced once the construction is completed.

5The excavation of the subway in the area will be done using a “keyhole” method of underground excavation and once completed, the headhouse will be constructed to cover the keyhole, which will serve as an entrance to the train platform’s underground.

6The Osgoode Hall site is a landmark heritage location of great importance, not only to the legal profession but as a symbol of the rule of law in this province. The historic East Wing of the building was built by 1832, with the Centre and West Wings being added between 1844 and 1846. In 1979, the Osgoode Hall site was designated under the Historic Sites and Monuments Act, R.S.C. 1985, c. H-4 as a National Heritage Site of Canada. In 1990, the City of Toronto passed a bylaw designating features comprising the LSO’s property on the Osgoode Hall site to be of historical and architectural value or interest.

7The proposed Osgoode Hall station does not directly impact the historic building occupied by the LSO and the Osgoode Hall Courthouse. It will, however, affect the grounds surrounding Osgoode Hall. These grounds are an important aspect of this historic site. The LSO has provided an expert’s report from Christopher Borgal who explains the entire site is of great heritage significance. He also makes the point that the entire Osgoode Hall site must be viewed as an indivisible site so far as maintaining the integrity of its heritage features.

The Minister’s Consent

8On February 19, 2021, Metrolinx submitted a Request for Consent to build a station entrance at the Osgoode Hall site. The Minister of Heritage, Sport, Tourism and Culture Industries provided consent on March 18, 2021. The consent acknowledges, among other things, that there will be the permanent removal of mature trees from the southwest corner of the property. The LSO was aware of the Minister’s approval in early 2021. They sought the Minister’s re-consideration of her approval but were ultimately unsuccessful. No application for judicial review of the Minister’s decision was brought by the LSO.

The Expropriation

9On November 23, 2021, Metrolinx applied to the Ministry of Transportation (MTO) to expropriate the land for the planned Osgoode Station. The LSO opposed the expropriation. On January 6, 2022, the LSO sent an email to MTO regarding its heritage concerns, including the impact of the construction on the trees situated on the property. On April 25, 2022, the MTO advised the LSO that it had investigated its concerns and concluded that the proposed expropriation was necessary. Metrolinx sent the Notices of Expropriation to the LSO on August 16, 2022.

10The LSO did not bring an application for judicial review of the expropriation decision and on November 30, 2022, Metrolinx took possession of the expropriated land.

The Parsons Review

11At a meeting on August 9, 2022, between Metrolinx, the LSO, and other stakeholders, the City of Toronto proposed to commission a third party review of the Osgoode Station site. Metrolinx agreed to await the delivery of the Report prior to starting work on the Osgoode Hall site. The review was anticipated to take 3 months and be available in November. Unfortunately, it was not released until February 1, 2023. This delay has imposed tight time constraints on this project, given the site is required to be ready to hand over to the construction consortium by May 1, 2023.

12The Parsons Review determined the Osgoode Hall site was the most suitable option for the placement of this subway station. In arriving at this conclusion, the Review also considered the significant heritage impact of the project. The Parsons Review examined 10 other possible locations for the station and concluded that the Osgoode Hall site “would appear to be the most suitable option for the design of the station” as “none of the other location options reviewed here have proven themselves as being suitable for the development of a station design that meets the full set of criteria”.

Consultations

13Since 2018, 17 engagement meetings occurred between Metrolinx and the LSO. Affidavits filed by Mr. Hodge, a senior executive with Metrolinx, and Diana Miles, CEO of the LSO, describe the meetings and communications between the two parties.

14It can be seen from the affidavit materials that the LSO’s consistent position has been that the proposed Osgoode Hall station should be constructed at another location in the area so as not to degrade the heritage features of the Osgoode Hall site.

15The affidavit materials also show that, among the 10 different subway entrance locations originally considered, Metrolinx has consistently favoured the Osgoode Hall site. This position has been made clear to the LSO and has been accompanied by detailed disclosure of the strategic and engineering reasons for their choice.

16I see no bad faith in these discussions and consultations. I see valid differences of opinion. In her affidavit, Ms. Miles characterizes Metrolinx’s position on whether other possible sites would be considered as “opaque” or misleading. I disagree with her characterization. The intention of Metrolinx to proceed with the Osgoode Station project is established on the information before the court and in the well-articulated reasons for doing so in Mr. Hodge’s affidavits.

17There is a compelling public interest in providing a modern subway system in Toronto so that people can get to and from their places of work quickly and safely and access health care facilities and other vital services. Equally, there is an important public interest in protecting our heritage sites, particularly one as important as Osgoode Hall.

18Difficult choices often have to be made. It was acknowledged in argument by counsel on both sides, and I agree, that it is not the court’s function to determine which site should be chosen for the subway entrance. The court can be asked to consider if reasonable consultation and lawful steps have been taken in the planning of this public transportation project and from this court’s perspective, they have.

Test for an Interlocutory Injunction

19The test for an interlocutory injunction is well known and is set out in RJR-MacDonald Inc. v. Canada (Attorney-General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, at p. 348. The moving party must demonstrate that:

a. there is a serious issue to be tried;

b. irreparable harm will result if the relief is not granted; and

c. the balance of convenience favours the moving party.

20Further, the test is not to be rigidly applied, it is to be considered as a whole. Strength in one part of the test can make up for a weakness in another. The court is to consider, in light of the three parts of the test, whether injunctive relief is appropriate.

21The LSO points out there is a fairly low bar for finding that there is a ‘serious issue to be tried’. I observe that the purpose of an interlocutory injunction is normally to maintain a status quo between the parties until the proceeding can be adjudicated on the merits, on a full record. The higher prima facie test is reserved for mandatory injunctive relief and for situations where injunctive relief will likely be determinative of the matter on the merits. It may seem unusual that such a low bar for the ‘serious issue’ test would be utilized in the present case. This case involves massive public expenditures in a crucially important public works project, involving time sensitive issues. These considerations are live issues that will be considered in the balance of convenience and irreparable harm analysis.

22Also, a word about trees. As counsel have explained, the immediate issue here is whether the court should enjoin Metrolinx from starting the preliminary steps to enable the main construction to begin on the Osgoode Hall station site by May 1, 2023, as currently planned. The preliminary steps involve the removal of 11 mature trees from the Metrolinx property on the Osgoode Hall site. If the Osgoode Hall site remains the chosen site for the Osgoode Hall station, these trees will need to be removed. Also, it is Metrolinx’s evidence that even if the construction were moved to the Campbell House site across the street (on the west side of University Avenue), the Metrolinx property would still need to be cleared of trees and utilized as a “laydown” or staging area to facilitate the construction.

23For context, what the LSO seeks to achieve by obtaining an interlocutory injunction is time for further investigation and consideration of alternative sites for the Osgoode Station. Given the observations in the Parsons Review, it would seem the Campbell House property is the only potentially viable candidate for further consideration. LSO relies on certain observations in the Parsons Review to this effect.

24However, Metrolinx says it had previously eliminated the Campbell House site, and had advised the LSO of this, for reasons set out in paragraph 50 of Mr. Hodge’s affidavit, which I reproduce here:

50. As […] explained in [the] February 3 letter, the Campbell House is not a

suitable site. There are a number of reasons the Campbell House site was ruled out as the location for the headhouse, including:

(a) It is estimated that 19 trees need to be taken down for keyhole excavation

and laydown, with 12 of the trees being located at the Osgoode Hall site.

These are the same trees that will be impacted if the headhouse

remains at Osgoode Hall;

(b) It would require more pedestrian street crossings, in turn increasing traffic

congestion at intersections and safety risks to pedestrians;

(c) It has poor connectivity to the TTC Network. The City of Toronto

confirmed it had no interest in pursuing this option;

(d) The Campbell House is a heritage site and building upon it would have

heritage impacts that would last for over 8 years or permanently;

(e) The change in site would cause a delay of the Ontario Line by

approximately 21 months. This delay will increase the costs of the Ontario

Line by hundreds of millions of dollars, since, as described in paragraph

62 below, two multi-billion dollar fixed price contracts have already been

awarded which are premised on the current Osgoode Hall site. The

estimated magnitude of order of costs that it would take to relocate the

headhouse to the Campbell House site, including redesign costs, additional

capital costs, and delay claim costs is $1,315,400,000. The resulting

schedule delay is estimated to be 21 months delay (12 months for redesign

and approvals + 9 months longer construction duration as compared to

Osgoode site).

51. For all of these reasons, the Campbell House is not a feasible site, and in any event would result in cutting down mature trees at Osgoode Hall anyways.

Serious Issue to be Tried

Section 33(1) of the Ontario Heritage Act (OHA)

25The LSO seeks an interlocutory injunction preventing Metrolinx from taking any further actions on the Osgoode Hall site “until the Applicant’s administrative proceeding under s. 33(1) of the Ontario Heritage Act has been determined by the applicable administrative bodies”.

26The administrative proceeding consists of a letter from LSO counsel, said to be an Application under s. 33(1) of the Ontario Heritage Act, R.S.O. 1990, c. O. 18 (the “OHA”), requesting Toronto City Council to intervene to stop Metrolinx from using its expropriated land in a manner that adversely alters the heritage attributes of the LSO’s property. I take it that “adversely alters” refers to constructing a subway station on the Osgoode Hall site.

27It is clear from the express words of s. 33(1) of the OHA that the section applies to owners of designated heritage properties who seek to alter their property in a way that is likely to affect the property’s heritage attributes. Such owners must seek municipal council’s approval. The LSO does not own the property in question and is not proposing to alter it. Metrolinx, a provincial Crown corporation, owns the property and it is Metrolinx’s proposed use of its property which is complained of by the LSO. Section 33(1) of the OHA provides:

Alteration of property

33 (1) No owner of property designated under section 29 shall alter the property or permit the alteration of the property if the alteration is likely to affect the property’s heritage attributes, as set out in the description of the property’s heritage attributes in the by-law that was required to be registered under clause 29 (12) (b) or subsection 29 (19), as the case may be, unless the owner applies to the council of the municipality in which the property is situate and receives consent in writing to the alteration. 2019, c. 9, Sched. 11, s. 11.

28I agree with Metrolinx’s submission that s. 33 does not affect the rights of the owner of a neighbouring property. On its plain wording, the section places an onus on an owner of heritage property to obtain municipal approval for any alterations affecting the property’s heritage attributes. It does not impose obligations on neighboring property owners. Further, in the event that City Council were to take up the matter, their available remedies are set out in s. 33(6) of the OHA, which provides:

Decision of council

(6) The council, after consultation with its municipal heritage committee, if one is established, and within the time period determined under subsection (7),

(a) shall,

(i) consent to the application,

(ii) consent to the application on terms and conditions, or

(iii) refuse the application; […]

29It can be seen that s. 33(6) does not purport to regulate another landowner’s use of their property. It simply allows City Council to refuse or to consent, or to consent on terms, to the Applicant’s, here the LSO’s, request to alter or permit the alteration of heritage attributes of their property.

30Furthermore, s. 33 is contained in Part IV of the OHA, which governs property not owned by the provincial Crown or “prescribed public bodies”, such as Metrolinx. The provincial Crown and prescribed public bodies are governed by Part III.1 of the OHA. Section 26.1 of the OHA states that Part IV does not apply to properties owned by prescribed public bodies. Metrolinx argues, correctly in my view, that by reason of Part III.1 of the OHA, the legislature has established a specific limitation on [City] Council’s ability to designate and regulate property that is owned by the Crown.

31I accept Metrolinx’s submission that the provision the LSO relies on, s. 33 of the OHA, has no application to Metrolinx’s property or to the subway project that is being proposed.

32It is important to remember that the issue of the impact to the grounds and to LSO’s neighbouring property, the land now owned by Metrolinx, was considered by the Minister of Heritage under the regime for Crown property in Part III.1 of the OHA and subsequently again by the Minister of Transportation in connection with the expropriation. It is difficult to accept an interpretation of s. 33 that would require essentially the same issues to be scrutinized yet again by City Council.

33The LSO acknowledges they are advocating for what would be a “novel application of s. 33(1)” if it were to apply to restrict the activities of a neighbouring landowner in a heritage site, particularly a Crown corporation such as Metrolinx. LSO observes in its factum:

63. There is no dispute that the Act has two parallel schemes: one for prescribed public bodies (such as Metrolinx) and another for ordinary property owners (such as the Law Society). Section 33(1) falls in the latter part of the legislative scheme. However, given the unique constellation of factors in this case, Section 33(1) can still apply to Metrolinx. Specifically, the Law Society, which is the property owner and not a prescribed body, is applying to the Council in its section 33(1) application. Metrolinx is engaged in that application because the Law Society submits Metrolinx’s proposed conduct will adversely affect the heritage attributes of a single indivisible heritage site, including the property remaining under the Law Society’s ownership.

34While the concept of a single indivisible heritage site may be a useful analytical concept in the management and preservation of heritage properties, it is not a concept found in the OHA and is inconsistent with the provisions of that legislation. The OHA is based on individual ownership of heritage property and provides a separate process for approvals for prescribed public bodies, such as Metrolinx. There is no basis in the OHA for according City Council the right to control or restrict the use of heritage properties owned by public bodies. That power rests with the Minister of Heritage and these required approvals have been obtained by Metrolinx.

35Having found that LSO’s application to City Council under s. 33 of the OHA cannot succeed in obtaining any relief that would preclude Metrolinx from proceeding with the construction of the subway on the Metrolinx property on the Osgoode Hall site, it follows that the LSO has not established there is a serious issue to be tried and the application for an interlocutory injunction is accordingly dismissed.

36In the event this matter goes further, I will briefly state my conclusions on the issue of balance of convenience and irreparable harm. However, given the urgency of releasing this endorsement and an endorsement required in another injunction proceeding involving Metrolinx and the Osgoode Hall Station construction, which was argued immediately after this matter, I will not comment on several other issues raised by Metrolinx in opposition to the requested injunction, such as: (1) abuse of process-collateral attack, (2) delay, (3) Crown immunity applicable to Metrolinx, and (4) unavailability of a stand-alone injunction.

Balance of Convenience and Irreparable Harm

37I choose to consider the issues of balance of convenience and irreparable harm together. I find that these considerations also do not warrant the granting of an interlocutory injunction, for the following reasons:

• The proposed injunction is for an indefinite and potentially lengthy duration while City Council considers whether and to what extent it wishes to become involved in a project over which it has no jurisdiction, thus delaying and undermining a major public transportation project.

• The harms to the Osgoode Hall site can be significantly mitigated: (a) 11 mature trees will be removed, but will be replaced by new plantings at the conclusion of construction; (b) there will be a permanent redesign of the cast iron fence which will be temporarily removed and then placed along the new boundaries of the Osgood Hall site; (c) there will be an alteration in the view scape, removing a number of trees and replacing them with the Osgoode Station entrance (headhouse) in one corner of what is a historic landmark site; and (d) there will be a permanent alteration of one corner of this historic site but with no interference with the historic building or large parts of the balance of the green space. This will be balanced with a modern underground subway resulting in an improved quality of life for thousands of commuters.

• Renewed consultations will prolong and repeat a process that has already taken place and will almost certainly prevent Metrolinx from being able to make the site available by May 1 to the project consortium to commence construction, thus potentially triggering major financial penalties.

• There is strong evidence that the only potentially viable alternate site is Campbell House, which Metrolinx views as an inferior site and is sufficiently close to the Metrolinx property on the Osgoode Hall site that the latter site will be needed for the construction as a staging area and possible venue for the keyhole excavation, with the same need for tree removal.

38In summary, for the above reasons, the court is not persuaded that the balance of convenience favours granting an interlocutory injunction.

Disposition

39The LSO’s application for an interlocutory injunction is dismissed. If Metrolinx wishes to seek costs of this application, it shall provide a concise written submission within 30 days of the release of these reasons and the LSO may respond within 30 days of receiving Metrolinx’s submission.