Court File and Parties

Court File No.: CV-24-00725966-0000
Date: 2025-03-11
Court: Superior Court of Justice – Ontario

Applicant: Minotar Holdings Inc.
Respondent: His Majesty the King in Right of Ontario as represented by the Minister of Municipal Affairs and Housing

Before: Robert Chalmers

Counsel:
J. Lisus and P. Fruitman, for the Applicant
S. Z. Green and H. Evans, for the Respondent

Heard: 2025-02-12 – in person

Endorsement

Overview

[1] The Applicant, Minotar Holdings Inc. (Minotar), seeks a declaration that certain sections of the Greenbelt Statute Law Amendment Act, 2023 (the Amendment Act) and the Greenbelt Act, 2005 S.O. 2005, c. 1 (the Greenbelt Act) violate section 96 of the Constitution Act, 1867.

[2] The Applicant argues that the amended Greenbelt Act is unconstitutional because it legislates a judicial outcome and thereby deprives the Superior Court of its jurisdiction to adjudicate disputes. The Applicant states that the Legislature may change the law even retroactively, but it cannot prevent the court from applying the law. The Respondent argues that the Legislature may validly extinguish agreements and civil causes of action if clear and explicit statutory language is used. Here the Legislature made specific reference to the Applicant’s rights and therefore met this requirement.

[3] For the reasons set out below, I am of the view that the Amendment Act and Greenbelt Act do not violate the Constitution Act, 1867. I dismiss the Application.

Factual Background

[4] In January 2003, Minotar purchased 210 acres in Markham, Ontario (the Lands). The Lands include 60 acres of flat tableland with no natural features (the Featureless Lands).

[5] In 2005, the government enacted the Greenbelt Act to protect certain greenspace, farmland, wetlands, and other natural landscapes in Southern Ontario (the Greenbelt Area). The purposes of the legislation include protecting natural systems, controlling urbanization, promoting recreation and tourism, and supporting agriculture: Greenbelt Act, s. 5.

[6] Before the Greenbelt Act was enacted, the Minister of Municipal Affairs and Housing (MMAH) undertook a review of the land that was to be included in the Greenbelt Area. The MMAH included 20 acres of Minotar’s Lands in the Greenbelt Area. Approximately 190 acres including the 60 acres of the Featureless Lands were not included. The City of Markham (later the Town of Markham) intended the Featureless Lands for residential development.

[7] In November 2006, Minotar learned that approximately 145 acres of the Lands including the 60 acres of Featureless Lands had been included in the Greenbelt Area as part of the Natural Heritage System (NHS). MMAH representatives advised Minotar that the Featureless Lands had been mapped into the Greenbelt Area and the NHS in error, and that the error would be corrected during the statutory 10-year review.

[8] In February 2015, MMAH began its first 10-year review. Both the City of Markham and York Region made submissions that the Featureless Lands did not have the natural features that were to be protected by the Greenbelt Act and expressed concern about their inclusion in the Greenbelt Area. Although Ministry officials recommended the removal of the Featureless Lands from the Greenbelt Area, the MMAH did not remove the Featureless Lands from the Greenbelt Area or from the NHS designation.

[9] On July 25, 2017, Minotar caused the Statement of Claim in action number CV-17-131956-00 to be issued (the Action). Minotar brought action against the MMAH. It sought damages and a declaration that the Featureless Lands were wrongfully included in the Greenbelt Area. The trial of the action was scheduled for May 2023. Following a judicial pre-trial conference in late October 2022, the MMAH offered to settle the Action by removing 37 acres (the Development Land) of the Featureless Lands from the Greenbelt Area.

[10] Minotar and the MMAH entered into Minutes of Settlement on November 3, 2022 (the Minutes). The Minutes required the removal of the Development Land from the Greenbelt Area following public consultation and the adoption of a regulation. Minotar agreed that once the regulation was adopted, it would agree to a dismissal of the Action. Section 7 of the Minutes provides that MMAH could, in the exercise of its discretion, commence the process to return some or all of the Development Land to the Greenbelt Area. However, section 7 also provides that if the MMAH took those steps, Minotar was not prevented from taking any steps available to it, including the revival of the Action.

[11] On November 4, 2022, the Minister announced that the MMAH was proposing to remove 15 parcels of land including the Minotar Development Land from the Greenbelt Area. On December 14, 2022, Ontario Regulation 567/22 was filed removing Minotar’s Development Land from the Greenbelt Area. Minotar began preparing the Development Land for development as a residential subdivision. Minotar states that it incurred approximately $500,000 in soft costs to get the Development Land ready for development.

[12] In the summer of 2023, it was learned that 14 of the 15 parcels of land removed from the Greenbelt Area were owned by two developers who had a personal relationship with the Minister’s chief of staff, Ryan Amato. On August 9, 2023, the Auditor General reported on the parcels of land that had been removed from the Greenbelt Area and noted that Minotar’s Development Land was the only parcel that had been recommended for removal from the Greenbelt Area following a merits-based review. On August 20, 2023, the Integrity Commissioner reported that the Minotar Development Lands were “entirely unique since the [MMAH] had been very familiar with the property for years”.

[13] On September 5, 2023, Premier Ford announced that there would be a comprehensive review of the Greenbelt Area. On September 21, 2023, Premier Ford stated that he would undo the removal of the 15 parcels from the Greenbelt Area by regulation. On September 25, 2023, it was announced in the Legislature that all 15 parcels would be returned to the Greenbelt Area and that the decision would be codified by legislation.

[14] On October 16, 2023, the government tabled Bill 136, and launched the public consultation process. The submissions were due November 30, 2023. Minotar made its submission on November 15, 2023, seeking an amendment to exclude the Development Lands from the Greenbelt Area. On December 5, 2023, Bill 136 was put forward for Royal Assent. Following a period of debate, Bill 136 was voted on and passed by the Legislature. The Amendment Act received Royal Assent and came in force on December 6, 2023.

[15] Pursuant to the amendments, the Development Land was included in the Greenbelt Area under sections 2(1)3 and 14.1, which provide as follows:

Designation of area

2(1) The following areas of land are designated as the Greenbelt Area: […]

3. The area of land designated as Parts 1 to 36, both inclusive, on a plan entitled “Plan of the Boundary of the Protected Countryside” dated February 23, 2005 and filed on that date with the Office of the Surveyor General of Ontario, the area of land designated as Parts 1 to 5, both inclusive, on a plan entitled “Plan of the Boundary of the 2017 Protected Countryside Additions” dated May 4, 2017 and filed on that date with the Office of the Surveyor General of Ontario and the area of land designated as Part 1 on a plan entitled “Plan of the Boundary of the 2022 Protected Countryside Additions” dated December 12, 2022 and filed on that date with the Office of the Surveyor General of Ontario, but not the area of land designated as Parts 1 to 34, both inclusive, on a plan entitled “Plan of the Boundary of the 2017 Protected Countryside Removals” dated May 4, 2017 and filed on that date with the Office of the Surveyor General of Ontario. […]

Statutory amendment to Plan

14.1 The Greenbelt Plan is deemed to provide that,

(a) the lands designated as Parts 1 to 20, both inclusive, on a plan entitled “Plan of the Boundary of the 2022 Protected Countryside Removals” dated December 12, 2022 and filed on that date with the Office of the Surveyor General of Ontario are designated as Protected Countryside;

(b) the lands referred to in clause (a) that were, on December 13, 2022, part of the Natural Heritage System of the Greenbelt Plan are identified as part of the Natural Heritage System of the Greenbelt Plan; […]

[16] The amended Greenbelt Act also removed certain causes of action. The amended Greenbelt Act provides as follows:

Limitations on Remedies

19(1) No cause of action arises as a direct or indirect result of,

(e) anything done or not done in accordance with this Act, the regulations made under it, the Greenbelt Plan or a plan referred to in clause (d), including, for greater certainty, any review or reconsideration of the Greenbelt Area and the Greenbelt Plan, or any purported failure to review or reconsider the Greenbelt Area and the Greenbelt Plan, including in relation to the land that is identified as “Featureless Lands” in the Statement of Claim filed in the Superior Court of Justice proceeding commenced at Newmarket and identified as Court File number CV-17-131956-00; or

(f) any representation or other conduct by current or former employees, officers or agents of the Crown in right of Ontario or current or former members of the Executive Council that is related, directly or indirectly, to,

(v) the addition of land that is identified as “Featureless Lands” in the Statement of Claim filed in the Superior Court of Justice proceeding commenced at Newmarket and identified as Court File number CV-17- 131956-00 to the Greenbelt Area under Ontario Regulation 59/05 made under this Act and the designation of that land as Protected Countryside by the Greenbelt Plan, any review or reconsideration of that addition and designation or any purported failure to review or reconsider that addition and designation, or

(vi) the settlement of the Superior Court of Justice proceeding commenced at Newmarket and identified as Court File number CV-17-131956-00, including the disclosure of any information relating to that settlement, regardless of whether such information is privileged or confidential, or any purported breach of that settlement.

No Remedy

19(2) No costs, compensation or damages, including for loss of revenues or loss of profit, are owing or payable to any person and no remedy, including but not limited to a remedy in contract, restitution, tort, misfeasance, bad faith, trust or fiduciary obligation, any equitable remedy or any remedy under any statute, is available to any person in connection with anything referred to in subsection (1).

Proceedings barred

(3) No proceeding that is directly or indirectly based on or related to anything referred to in subsection (1) may be brought or maintained against any person.

Application

(4) Subsection (3) does not apply with respect to an application for judicial review, but does apply with respect to any other court, administrative or arbitral proceeding claiming any remedy or relief, including specific performance, injunction, declaratory relief or the enforcement of a judgment, order or award made outside Ontario.

Retrospective effect

(5) Subsections (1), (2) and (3) apply regardless of whether a cause of action on which a proceeding is purportedly based arose before, on or after the day section 4 of Schedule 2 to the Greenbelt Statute Law Amendment Act, 2023 comes into force.

No costs award

(6) No costs shall be awarded against any person in respect of a proceeding that cannot be brought or maintained under subsection (3).

Termination of settlement agreement

19.1 The agreement dated November 3, 2022 between Minotar Holdings Inc. and His Majesty the King in Right of Ontario as represented by the Minister of Municipal Affairs and Housing respecting the settlement of the Superior Court of Justice proceeding commenced at Newmarket and identified as Court File number CV-17-131956-00 is terminated on the day the Greenbelt Statute Law Amendment Act, 2023 receives Royal Assent.

[17] After the Amendment Act was enacted, Minotar brought an application for judicial review to the Divisional Court. Minotar was seeking to quash the return of the Development Lands into the Greenbelt Area. The application was heard on July 9, 2024. The panel indicated that there may be a lack of jurisdiction because the re-insertion of the Development Land was by legislation and not regulation. Minotar abandoned the application without prejudice to bringing an application in the Superior Court for a declaration that the legislation was unconstitutional.

[18] Minotar caused the Notice of Application to be issued on August 19, 2024.

The Issue

[19] Based on the relief sought in the Notice of Application, the only sole issue to be addressed in this Application is whether sections 2(1)3, 14.1(a) and (b), 19(1)(b)(ii), (c), (e), (f) and 19.1 of the Greenbelt Act (the Impugned Provisions) violate section 96 of the Constitution Act, 1867.

Analysis

Position of the Applicant

[20] The Applicant argues that the Impugned Provisions of the amended Greenbelt Act are not constitutional, because those sections infringe on the inherent jurisdiction of provincial superior courts to adjudicate disputes and provide justice. The Applicant argues that the amendments to the Greenbelt Act go “too far” in determining the outcome of a matter that is before the court.

[21] The Applicant argues that the Development Land does not contain high concentrations of significant natural features that would justify it being included in the Greenbelt Area. The Applicant submits that it complied with the statute to be excluded from the Greenbelt Area and that it was unfairly included with the other 14 parcels of land that were owned by developers who had a personal relationship with Mr. Amato. The Applicant states that the Development Land was included in the Greenbelt Area by mistake and remains in the Greenbelt Area because of “bloody mindedness” and political interference.

[22] The Applicant submits that the law is developing to recognize that legislation that purports to determine the outcome in litigation infringes on the core jurisdiction of provincial superior courts and is therefore unconstitutional. The Applicant primarily relies on three recent decisions: Ontario Place Protectors v. His Majesty the King in Right of Ontario, 2024 ONSC 4194 ("Ontario Place"), 5185603 Manitoba Ltd. et al. v. Government of Manitoba et al., 2023 MBCA 47 ("518 Manitoba"), and Kitsilano Coalition for Children & Family Safety Society v. British Columbia, 2024 BCCA 423 ("Kitsilano"). The Applicant argues that the amended Greenbelt Act assumes the judiciary’s constitutional role by “driving the result in pending or anticipated litigation”: Kitsilano, at para. 38.

[23] The Applicant argues that the amended Greenbelt Act bars any adjudication of Minotar’s rights, directs the outcome of any litigation, and provides for only an illusory right of judicial review. The Applicant further argues that in taking away any meaningful right of the courts to decide the dispute, the Impugned Provisions infringe on the core jurisdiction of the superior courts.

Position of the Respondent

[24] The Respondent states that the provincial Legislature has authority to pass laws with respect to land use planning pursuant to its authority over property and civil rights in the province as set out in section 92(13) of the Constitution Act, 1867. The Respondent also states that property and economic rights are not protected by the Charter. The Respondent argues that there is nothing in the Constitution that prevents the Legislature from designating the Development Land as part of the Greenbelt Area.

[25] The Respondent also argues that it is the role of the Legislature to define the substantive and procedural law that courts are to interpret and apply. If the law is within the division of provincial powers and does not infringe the Charter, it is not up to the judiciary to second guess the law or only apply the law of which it approves.

[26] The Respondent states that the Legislature may validly extinguish agreements or civil causes of action if “clear and explicit statutory language” is used. The Respondent argues that sections 19 and 19.1 of the amended Greenbelt Act use clear language. The legislation specifically states that the causes of action with respect to the inclusion of the Development Land in the Greenbelt Area and any cause of action arising out of the Minutes, are extinguished.

The Designation of the Development Lands in the Greenbelt Area

[27] Section 2(1)3 and s. 14.1(a) and (b) set out the boundaries of the Greenbelt Area. The boundaries include the Development Lands.

[28] Section 92(13) of the Constitution Act, 1867 gives the provincial Legislature the power to make laws in relation to “property and civil rights in the province”. Section 92(16) gives the Legislature power to make laws with respect to matters of a local or private nature. Land use planning falls within these provincial heads of power: Quebec (Attorney General) v. Canadian Owners and Pilots Association, 2010 SCC 39, para. 22.

[29] Before the amendment to the Greenbelt Act, the designation of lands in the Greenbelt Area had been delegated to a regulation-making authority. The decision of the delegated authority was subject to judicial review. The Applicant argues that the amended Greenbelt Act designates the Development Lands as part of the Greenbelt Area. The designation is codified by statute and not by regulation or Order-in-Council and as a result, judicial review is not available.

[30] The fact that the designation of land was once made by a delegated authority does not mean that the delegated power is forever entrenched. The designation of the Development Land as part of the Greenbelt Area falls within the provincial division of powers set out in section 92 of the Constitution Act, 1867. The Legislature determined the boundaries of the Greenbelt Area by legislation instead of delegating the determination to an administrative decision-maker. In my view, there is nothing improper or unconstitutional in the Legislature designating the boundaries of the Greenbelt Area.

[31] If the Legislature makes the designation, there is no administrative decision to review. The fact that a decision of the Legislature results in no administrative decision that can be reviewed does not make the legislation unconstitutional. The Respondent argues that it can “hardly be unconstitutional for the Legislature to make a legal determination for itself rather than delegating that determination to an administrative decision-maker”. I agree.

[32] There continues to be a right of judicial review of any delegated decisions that are to be made pursuant to the amended Greenbelt Act. I am satisfied that the amended Greenbelt Act does not infringe on the superior court’s power of judicial review. Although there is no review of the provisions of the statute itself including the designation of the Development Lands as part of the Greenbelt Area, there continues to be a right of judicial review for any delegated decision permitted under the Act.

Are Sections 19 and 19.1 of the Greenbelt Act Contrary to s. 96 of the Constitution Act, 1867?

Legal Principles

[33] Provincial superior courts are courts of inherent jurisdiction. Section 96 of the Constitution Act, 1867 grants the federal government the power of appointment. The “federal power of appointment establishes the primary and specially-entrenched place of the superior courts of the country in the function of interpreting and applying law”: Reference re Amendments to the Residential Tenancies Act (N.S.), para. 26.

[34] The core jurisdiction of the superior courts is to “review the legality and constitutional validity of laws, enforcement of its orders, control over its own process, and its residual jurisdiction as a court of original general jurisdiction”: Reference re Code of Civil Procedure (Que.) art. 35, 2021 SCC 27, para. 68. The judiciary is to interpret and apply the procedural and substantive law to the cases brought before it.

[35] The inherent jurisdiction of superior courts does not equate to limitless jurisdiction: Ontario Place, at para. 27. The Legislature has the broad authority to establish, amend or repeal causes of action and may establish procedural requirements: Poorkid Investments Inc. v. Ontario (Solicitor General), 2023 ONCA 172, para. 48. Within the boundaries of the Constitution, Legislatures can pass any law as they see fit. The judiciary is not to second-guess the law reform undertaken by Legislatures: British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, paras. 50-54.

[36] The Legislature may extinguish a specific cause of action or enact immunity clauses and has done so in a number of statutes: Ontario Place, at para. 41. A provincial Legislature may divest a person of property rights and deny compensation to an individual who may have a claim against the government. However, in doing so, the Legislature must use clear and specific language.

[37] In Wells v. Newfoundland, para. 41, the Supreme Court stated:

While the legislature may have the extraordinary power of passing a law to specifically deny compensation to an aggrieved individual with whom it has broken an agreement, clear and explicit statutory language would be required to extinguish rights previously conferred on that party: at para. 41.

[38] In Authorson v. Canada (Attorney General), 2003 SCC 39, para. 14, the Supreme Court stated:

The governmental expropriation of property without compensation is discouraged by our common law tradition, but it is allowed when Parliament uses clear and unambiguous language to do so: at para. 14.

[39] In Clitheroe v. Hydro One Inc., 2010 ONCA 458, para. 1, aff’g, leave to appeal to the SCC denied, the Court of Appeal for Ontario affirmed the Superior Court’s holding that:

[the Legislature] can do as it pleases in terms of divesting a person of rights, either prospectively or retrospectively, subject only to the safeguards guaranteed to that person under the Charter and provided also that if a government takes away a person's vested property rights, it can do so only in legislation expressed in the clearest and most unambiguous terms: at para. 31.

Discussion

[40] Section 19 of the amended Greenbelt Act specifically removes any cause of action with respect to the inclusion of the Featureless Lands into the Greenbelt Area. Section 19.1 terminates the Minutes. The Applicant argues that the amendments “go too far” in encroaching on the superior court’s adjudicative functions. In support of its position, the Applicant primarily relies on three cases: Ontario Place, 5185603 Manitoba, and Kitsilano.

(i) Ontario Place

[41] In Ontario Place the superior court considered whether the Rebuilding Ontario Place Act, 2023, S.O. 2023, c. 25, Sch. 2 (ROPA) violated section 96 of the Constitution Act, 1867. The ROPA extinguished causes of action, removed remedies and barred proceedings in respect of various activities undertaken in accordance with the Act. The applicant argued that the ROPA was so sweeping that it went “too far” in removing the court’s adjudicative function.

[42] The court held that the ROPA did not remove general access to the courts or grant immunity to the Crown at large. The court noted that the Legislature had decided that it wished to develop Ontario Place without exposing itself to causes of action. The court held the Legislature is free to enact immunity clauses and has done so not uncommonly: Ontario Place, at para. 41.

[43] The court also held that in addition to immunizing itself from liability, the Legislature “is free to extinguish existing causes of action, even individual vested property rights if it uses clear and explicit statutory language”: Ontario Place, at paras. 42 and 43. The court found that clear and explicit language was used in the ROPA. Although the court stated that “perhaps there are circumstances in which such a provision goes too far”, the circumstances did not exist in that case. The court found that the ROPA did not violate s. 96 of the Constitution Act, 1867.

[44] I am satisfied that the amended Greenbelt Act does not “go too far”. The amendments remove certain causes of action. The legislation specifically refers to the Featureless Lands as referenced in the Action. The legislation also makes specific reference to the Minutes the parties executed in settlement of the Action. As noted in Ontario Place, the Legislature may extinguish causes of action and grant immunity, as long as “clear and explicit statutory language” is used. I am satisfied that the Legislature used clear and explicit language in removing the causes of action with respect to the inclusion of the Featureless Land in the Greenbelt Area and with respect to the Minutes.

(ii) 518 Manitoba

[45] In 518 Manitoba, the plaintiff leased commercial space to the First Nations of Southern Manitoba Child and Family Services Authority. The government of Manitoba was involved in the negotiation of the lease. After ten years, the government sought to bring the lease to an end. Government officials met with the plaintiffs and presented them with a written agreement to terminate the lease, failing which the government would enact legislation terminating the lease without compensation. The plaintiffs refused to terminate the lease.

[46] The plaintiffs filed a Statement of Claim advancing claims for misfeasance in public office, interference with economic relations and defamation. The defendants brought a motion to strike the Statement of Claim. The claim was struck with respect to the claim for malfeasance in public office and interference with economic relations. The plaintiff appealed. Before the appeal was heard, the government enacted legislation which provided that the plaintiff’s action was dismissed without costs.

[47] The motions judge held that the government had unfettered authority to pass legislation affecting existing rights. The appeal court raised a new issue; whether the section that dismissed a proceeding that was before the court could be considered an infringement of a judicial function.

[48] The Manitoba Court of Appeal set out the “well understood principle of parliamentary supremacy” that a legislature “may validly pass a law which extinguishes its obligations with an individual if it is clear in its language”: 518 Manitoba at para. 39. However, the court stated that the caselaw confirmed that while Legislatures may enact legislation which interferes with a pending action, the court must continue to have the opportunity to substantially adjudicate the rights of litigants and ultimately decide whether to dismiss the case. The court held that while the Legislature may pass legislation with respect to the substantive rights that are at issue in the proceedings, the legislature cannot interfere with the judicial process.

[49] The Manitoba Court of Appeal found that the section that dismissed the plaintiff’s action without costs, may be a violation of section 96, and directed a new hearing. The court stated as follows:

[t]he Court, by this legislation, is prevented from performing its adjudicative role in relation to this pending action – it cannot assess the evidence in the claim, not determine its weight, nor determine if the other provisions of the BITSA Act apply to the plaintiffs’ claim … legislatures are constitutionally restricted from exercising their powers in a way that infringes upon the principle of the independence of the judiciary or the judicial role: at paras. 57 and 61.

[50] Here, the Greenbelt Act was amended to provide that there is no cause of action with respect to “anything done or not done in accordance with the Act […] including in relation to the land that is identified as ‘Featureless Lands’ in the Statement of Claim filed in the Superior Court of Justice proceeding commenced at Newmarket and identified as Court File number CV-17-131956-00.” The amended Greenbelt Act goes on to state that there is no cause of action arising out of the “settlement of the Superior Court of Justice proceeding commenced at Newmarket and identified as Court File number CV-17-131956-00.”

[51] There is no section in the amended Greenbelt Act that purports to dismiss any proceeding brought by Minotar. Instead, the legislation removes certain causes of action. It will be ultimately up to the court to determine whether a claim should be dismissed because it advances causes of action that were removed by the Legislature.

[52] I am of the view that amended Greenbelt Act does not remove the superior court’s adjudicative function. As noted in 518 Manitoba, and the other s.96 caselaw, the Legislature can extinguish causes of action and may enact legislation that interferes with a pending action so long as clear and specific language is used. This is what the amended Greenbelt Act does. It removes causes of action with respect to including the Featureless Lands into the Greenbelt Area and with respect to the Minutes. The amended Greenbelt Act does not specifically provide that any proceeding brought by Minotar is dismissed.

(iii) Kitsilano

[53] In Kitsilano, the City of Vancouver planned to build a housing development. The development required the subject land to be rezoned to permit the use. The rezoning required a public hearing to be conducted. The memorandum that dealt with the funding for the development was not included in the package made available to the public ahead of the hearing. Following the hearing, the city gave approval in principle to the rezoning. The Kitsilano Coalition for Children & Family Safety Society filed a petition for judicial review. The City filed its response to the petition denying that it made an unreasonable decision or breached its obligations for procedural fairness.

[54] The Province was concerned that the rezoning would be delayed by the pending judicial review application. Before the petition was heard, the government introduced legislation that provided that the public hearings were “conclusively deemed to have been validly held.”

[55] The Court of Appeal held that the act of deeming a particular set of facts to be true is a function of the court. The court stated that the Legislature was not formulating a new statutory provision, but instead was bypassing the original legislation by a fiction. In other words, what the Legislature was doing in this case was applying a set of facts to existing legislation and deeming the result. The court held that this is an adjudicative function and is not permitted by the Legislature.

[56] The Court of Appeal noted that the Legislature could “restrict, limit, change or repeal provisions of the Vancouver Charter, by legislation”: Kitsilano, at para. 68. However, the Legislature did not change the law by legislation. Instead, the statute made a direction that notwithstanding what the law might be, a particular state of affairs is deemed to exist. The court found that deeming the truth of certain facts instead of amending the legislation interfered with the court’s adjudicative function. The court stated as follows:

[69] Just as a court of law must speak through judgments and orders, a legislature must speak by means of legislation. If a legislature wishes to amend the law, it must surely do so by means of legislation. Section 7 does not, in my respectful view, purport to amend any law. Consequently, there is no law — no new legislation — that the courts must then apply in exercising their adjudicative function.

[57] Here, the Ontario Legislature did what the British Columbia Court of Appeal said a Legislature must do. It amended the existing legislation. It did not purport to apply a set of facts to existing legislation and then deem the result. As noted by the British Columbia Court of Appeal in Barbour v. The University of British Columbia, 2010 BCCA 63, para. 32:

We consider it is clear in Canada that the Legislature may enact legislation that has the effect of retroactively altering the law applicable to a dispute. “While a Legislature may not interfere with the Court’s adjudicative role, it may amend the law which the court is required to apply in its adjudication. The difference between amending the law and interfering with the adjudicative function is fundamental to the proper roles of the legislature and courts in our parliamentary democracy”: at para. 32.

[58] I am satisfied that the amended Greenbelt Act does not affect the core adjudicative function of the court to review a set of facts and apply those facts to the law. The amended Greenbelt Act does not deem a result. The court continues to have the jurisdiction to consider whether the causes of action that are raised by the Applicant are permitted following the amendment of the Greenbelt Act.

Conclusion

[59] I am satisfied that the amended Greenbelt Act does not encroach on the core jurisdiction of superior courts.

[60] The Legislature has the authority to pass laws that establish substantive and procedural rights. It is the court’s function to apply the facts of a particular case to the laws as passed by the Legislature. If the legislation falls within the province’s authority under section 92 of the Constitution Act, 1867 and does not infringe the Charter, it is not up to the court to perform an analysis of whether a particular law is, or is not, unfair. This is not the function of the judicial branch of government in a constitutional democracy.

[61] The Applicant argues that the amended Greenbelt Act infringes on the core jurisdictional powers of a s. 96 court and as a result, goes “too far”. I disagree. The Legislature removed causes of action with respect to the inclusion of the Development Lands into the Greenbelt Area and removed any cause of action with respect to the Minutes. The amendments do not specifically state that a proceeding brought by the Applicant is dismissed or deem a certain finding based on the application of the facts to the existing law.

[62] In Wells and Authorson, the Supreme Court held that a Legislature may deny compensation to an aggrieved individual with whom it has broken an agreement or expropriated property if “clear and explicit” and “unambiguous” language is used. As stated by Justice Brownstone in Ontario Place, “a legislature is free to extinguish existing causes of action, even individual vested property rights if it uses clear and explicit statutory language”.

[63] I am satisfied that in removing causes of action in the amended Greenbelt Act, the Legislature used clear, specific, and unambiguous language. The legislation made specific reference to the Featureless Lands as defined in the Action, and to the Minutes executed by the parties in settling the Action. Counsel for the Respondent argues that this is as clear and unambiguous as the legislation could be. I agree.

Disposition

[64] For the reasons set out above, I am satisfied that the amended Greenbelt Act does not infringe on the core jurisdiction of s. 96 superior courts. I dismiss the Application.

[65] The Respondent is successful on this Application and is presumptively entitled to its costs. Following the hearing, the Respondent filed a cost outline which provides that if the Application is dismissed, the Respondent will seek its costs in the amount of $50,000 inclusive of taxes and disbursements. The Applicant delivered a Bill of Costs following the hearing, which provides that if successful, the Applicant would have sought its partial indemnity costs in the all-inclusive amount of $117,151.25.

[66] I award costs to the Respondent fixed in the all-inclusive amount of $50,000. I am satisfied that an award of costs in this amount is proportionate, fair, and within the reasonable expectation of the Applicant to pay: Boucher v. Public Accountants Council for the Province of Ontario, para. 38.

Robert Chalmers

Date: March 11, 2025