COURT FILE AND PARTIES

Court File No.: CV-24-00732896

Date: July 30, 2025

Superior Court of Justice – Ontario

Re: Cycle Toronto, Eva Stanger-Ross, and Narada Kiondo, Applicants

And: Attorney General of Ontario and Minister of Transportation, Respondents

Before: Schabas J.

Counsel:

• Andrew Lewis, Greta Hoaken, Braxton Murphy, Catherine Dunne, Lindsay Beck and Bronwyn Roe, for the Applicants
• Josh Hunter, Cara Zwibel and Elizabeth Guilbault, for the Respondents
• Nikolas De Stefano and Cori Singer, for the Intervener, The Canadian Public Health Association (written submissions only)
• Louis Century and Amy Chen, for the Intervener, Greenpeace Canada (written submissions only)
• Vilko Zbogar and Meaghan Daniel, for the Intervener, For Our Kids Toronto (written submissions only)

Heard: April 16, 2025

REASONS FOR JUDGMENT

Contents

• Overview
• Background
• Development of the City's cycling infrastructure
• The target bike lanes
• The introduction of Bill 212
• The Committee hearings, ERO process and public responses to Bill 212
• The City of Toronto's response to Bill 212
• Amendment and passage of Bill 212 – the target bike lanes provision and the claims bar
• Ontario's advice contradicts the government's position
• The expert evidence: safety
• The expert evidence: congestion
• Bias
• The rest of the evidence
• Issues
• The application is not moot
• A live controversy remains
• The court should decide the case in any event
• Does the Charter apply: the positive rights argument
• The floodgates argument
• Section 7
• Right to life and security of the person
• The "choice" argument and lack of alternate routes
• The principles of fundamental justice
• Arbitrariness
• Gross disproportionality
• Section 1
• Remedy
• Costs

OVERVIEW

[1] On November 25, 2025, the Ontario Government (the "government" or the "Respondent") enacted Bill 212, titled the Reducing Gridlock, Saving You Time Act, 2024, S.O. 2024, c. 25. When first introduced on October 21, 2024, the Bill contained amendments to the Highway Traffic Act, R.S.O. 1990, c. H.8 ("HTA"), which require municipalities to seek approval from the Minister of Transportation before constructing bicycle lanes where doing so would remove a lane of motor vehicle traffic.

[2] After receiving First and Second Reading, and having been considered by the Standing Committee on Heritage, Infrastructure and Cultural Policy, on November 21, 2024 the Bill was amended to include two new provisions: s. 195.6 of the HTA, requiring the "removal" of existing bicycle lanes on Bloor Street, University Avenue and Yonge Street, in Toronto, "and restore the lanes for use by motor vehicle traffic" (the "target bike lanes" and the "target bike lanes provision"); and ss. 195.10- 195.14 of the HTA, barring all claims against the government, including claims for damages arising from collisions, injuries or deaths that occur as a result of removing the target bike lanes.

[3] The Applicants, who are individual users of the target bike lanes and an organization advocating for people who use bicycles as a means of transportation in Toronto, seek a declaration that s. 195.6 of the HTA violates s. 7 of the Canadian Charter of Rights and Freedoms, Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11 (the "Charter").

[4] The Applicants submit that the legislation requiring the removal of the target bike lanes, which are "protected" bike lanes, physically separated from lanes for motor vehicles, infringes the right to life and security of the person in s. 7 of the Charter, by putting cyclists at greater risk of injury and death. They argue that restoring lanes for motor vehicles will not achieve the stated objective of the provision, which is to alleviate traffic congestion. Accordingly, the infringement on their rights is arbitrary and grossly disproportionate, and therefore not in accordance with the principles of fundamental justice.

[5] The Respondent submits that the position of the Applicants, if accepted, would create a constitutional right to bicycle lanes and raises the spectre that all highway traffic decisions would be subject to Charter scrutiny. The government argues that it is entitled to make decisions regarding the provision and maintenance of transportation infrastructure without interference by the courts. It submits that removing the target bike lanes and restoring a lane for cars will address the serious problem of traffic congestion in Toronto.

[6] The application was commenced in early January 2025. The parties attended Civil Practice Court on January 8, 2025, at which time a schedule was fixed for the exchange of evidence and a full-day hearing was scheduled for April 16, 2025, the first available date on which the court could accommodate the matter. However, despite strong urging from the court, the Respondent would not agree to take no steps to dismantle the bike lanes beyond March 20, 2025, or in advance of the hearing of the full application on April 16, 2025. As a result, a motion for an interlocutory injunction was heard on March 11, 2025 by Regional Senior Justice Firestone.

[7] The motion for the interlocutory injunction dismissed in an Endorsement released on March 14, 2025: Cycle Toronto et al. v. Attorney General of Ontario et al., 2025 ONSC 1650. However, Firestone RSJ recognized that he had a limited record before him and specifically made his order "without prejudice to a request for further interlocutory or permanent injunctive relief beyond this time period." He stated that "[s]uch request is to be made to the application judge."

[8] I heard the application, based on the full evidentiary record, on April 16, 2025. At the conclusion of that hearing, I indicated that I would be reserving my judgment and received submissions on whether to suspend the operation of the target bike lanes provision while the matter was under reserve. On April 22, 2025, I granted an injunction which prevented the Respondent from removing the bike lanes pending my decision: Cycle Toronto et al. v. Attorney General of Ontario et al., 2025 ONSC 2424. A motion for leave to appeal that decision was dismissed by the Divisional Court on July 7, 2025: Attorney General of Ontario v. Cycle Toronto, 2025 ONSC 3837.

[9] As I was completing my Reasons for Judgment in early July, I received a letter from counsel for the Respondent dated July 3, 2025, informing me that s. 195.6 of the HTA had been repealed and replaced on June 5, 2025: Plan to Protect Ontario Act (Budget Measures) 2025, S.O. 2025, c 10 – Bill 24, Schedule 9. Instead of requiring the "removal" of the target bike lanes, s. 195.6 is now worded to require the Minister to "restore a lane for motor vehicle traffic…by reconfiguring the bicycle lanes." Section 195.18(2) of the HTA was also changed to provide the Lieutenant Governor in Council the power to make regulations "requiring the Minister to remove a bicycle lane", as opposed to "reconfigure" found in the earlier version of the law. As a result of these changes, the Respondent took the position that the application had become moot.

[10] I invited written submissions on the issue and convened a case conference on July 9, 2025, to address the matter orally. No satisfactory explanation was provided for the delay in advising me of the changes to the law. However, counsel for the Respondent stated that the government would continue to respect the injunction pending the release of my Reasons on the application.

[11] For the reasons that follow, I have concluded that the matter is not moot. The new provisions make no meaningful change to the law or the dispute between the parties. The government still intends to remove the target bike lanes and proposes to do so using s. 195.6 of the HTA. The changes are an ineffective attempt by the government to avoid having the constitutional issue decided in this proceeding. As I elaborate below, the dispute between the parties remains a live one, is not moot, and ought to be decided on this application.

[12] I conclude that the Applicants succeed on this application. The Applicants have established that removal of the target bike lanes will put people at increased risk of harm and death which engages the right to life and security of the person. The evidence is clear that restoring a lane of motor vehicle traffic, where it will involve the removal of the protected, or separated, nature of the target bike lanes, will create greater risk to cyclists and to other users of the roads. The inclusion of 195.10-195.14 of the HTA anticipates this effect as it immunizes the government from lawsuits for injuries people may suffer as a result of the removal of the target bike lanes.

[13] The Applicants have also met their burden of proving that the restoring of a lane of motor vehicle traffic, and its consequent impact on cyclists and road safety, is arbitrary and grossly disproportionate, and therefore not in accordance with the principles of fundamental justice.

[14] The advice provided to the government, both before and after Bill 212 was passed, was that the removal of the target bike lanes to restore a lane of motor vehicle traffic will not achieve the asserted goal of the legislation, as it will not reduce congestion. The extensive evidence presented by the Applicants confirms this advice. This includes, among other things, expert evidence, reports from the City of Toronto, and evidence of the impact of bicycle lanes in Toronto and elsewhere, which establishes that bicycle lanes, and in particular separated or protected bicycle lanes, reduce motor vehicle traffic congestion by providing an alternative method of transportation that is safer for all users of the roads. The evidence shows that restoring lanes for cars will not result in less congestion, as it will induce more people to use cars and therefore any reduction in driving time will be short-lived, if at all, and will lead to more congestion. This makes the law arbitrary.

[15] The legislation also imposes a high and grossly disproportionate cost on section 7 rights holders. The negative effects of the impugned provision – injuries and death that will result from the restoration of a lane of motor vehicle traffic and the removal of the protected bike lanes – are completely out of sync with the aim of reducing traffic congestion, even with this objective taken at face value. As the Interveners point out, the impugned provision will also have a serious and disproportionate impact on children and on low-income individuals who must ride bicycles as an economical means of transportation, or for their work.

[16] In contrast, the evidence presented by the Respondent consists of weak anecdotal evidence and expert opinion which is unsupported, unpersuasive and contrary to the consensus view of experts, including the expert evidence, data and studies presented by the Applicants. The government's expert evidence does not address the key issue of whether restoring a lane of motor vehicle traffic will in fact alleviate congestion.

[17] Contrary to the submissions of the Respondent, the Applicants do not seek a declaration that they have a positive constitutional right to bike lanes on public roads. The Applicants do not request or seek a court order that the government take affirmative steps to build more bike lanes. Nor do they challenge the provision requiring provincial approval for new bike lanes that involve removing a lane of motor vehicle traffic, which remains in the law passed on June 5, 2025.

[18] While this application arises from the factual context of bicycle lanes, legally the case is about the validity of a law passed by the government. The government has the right to make decisions about roads and traffic infrastructure, but where the government takes action that puts people at risk, and does so arbitrarily, its actions may be restrained by the Charter. Where the government acts rationally, in that its actions will further its desired objective, s. 7 may not be breached. But where, as here, the increased risk of harm results from action that will not further the government's objective of reducing congestion, the government action is arbitrary and breaches s. 7 of the Charter.

[19] This decision does not open the floodgates to Charter challenges of traffic decisions. Most road and traffic decisions are well-grounded in data and safety concerns, as one would expect, and are unlikely to be challenged as arbitrary. In any event, fear of opening the floodgates to such challenges is not in law a basis for denying individuals their Charter rights. Rights claims are not denied because others may make a similar claim or because it is administratively inconvenient to comply with the Charter.

[20] Accordingly, I find that s. 195.6 of the HTA, in the form passed in 2024, is inconsistent with s. 7 of the Charter and not saved by s. 1 of the Charter. As to the new version of s. 195.6 passed on June 5, 2025, I find that any "reconfiguring" which has the effect of removing the physical separation of the target bike lanes from motor vehicle traffic for the purpose of reducing congestion is also a breach of the Charter. It follows, as well, that any regulation permitting the removal of the target bike lanes for that purpose would also breach the Charter.

BACKGROUND

Development of the City's cycling infrastructure

[21] For many years Toronto has been expanding its network of bicycle lanes on city streets. In 2016, City Council adopted a Ten Year Cycling Network Plan which was updated in 2019. This Plan was adopted together with Toronto's commitment to "Vision Zero", an international initiative focused on creating streetscapes that are safe for pedestrians and cyclists. The City's expressed goal for "Vision Zero" is to eliminate traffic-related fatalities and serious injuries. It mandates a "complete streets" approach to road design to ensure the safety of all road users, especially vulnerable users – pedestrians and cyclists.

[22] The Ten Year Cycling Network Plan contemplated building approximately 525 centreline kilometres of new infrastructure, including "280 centreline kms of bicycle lanes or cycle tracks on Fast, Busy Streets." The motivation for the Plan was described in a City Report released in May 2024 as follows:

A successful city requires a transportation system that is safe for people of all ages and abilities. Research and experience across North America have shown that when cities do not provide safe and comfortable alternatives to driving, the majority of residents travel by motor vehicle. In growing cities like Toronto, where hundreds of new developments are being constructed every year, if every new resident added another car on the street network, the traffic congestion across all parts of the city would be unmanageable. Travel mode choice is a crucial aspect of creating healthy, livable cities, and requires investing in new transit, bikeway and pedestrian projects.

[23] The May 2024 Report outlined the large investment in expanding the City's cycling network. It identified several factors which bike lanes address, including safety and connectivity, and stated that the lack of safe cycling infrastructure is an important unmet mobility need which has a disproportionate impact on low income and other historically disadvantaged communities. As the Report stated, "[m]any people in Toronto rely on cycling as an essential mode of travel, including in areas of the city currently underserved by safe cycling and pedestrian infrastructure." It continued:

The safer and more connected the city-wide cycling network becomes, the more people will choose to travel by bicycle. There are also people who rely on cycling out of necessity, not as a choice. Cycling offers an affordable alternative compared to motor vehicle travel and can improve access to social services and employment opportunities. Having access to a bicycle can also provide additional employment options, demonstrated by the growing population of food delivery cyclists in Toronto. For people who rely on cycling for utility, school, and employment, the quality, maintenance, and coverage of the cycling network is essential.

[24] The May 2024 Report noted that a successful city "gives people choices of how they get around." It observed:

Some people may need to travel by car, for some or all of their trips. People who rely on motor vehicle travel also benefit from bikeways when enough other people choose to leave their car at home. Investing in convenient alternatives to driving, such as bikeways and public transit, is a necessary component of a successful traffic congestion management strategy. The greatest opportunities for mode shift away from personal vehicle travel are for short trips under 5 km. About half of car trips made by Toronto residents are under 5 km in length. The more people that walk, cycle, or take transit, the fewer cars there are competing for the limited roadway space.

[25] In addition to constructing bicycle lanes and other cycle routes, the City has invested in a Bike Share program. The results of these investments have seen a large increase in cycle usage in Toronto, especially in the central area of the City where bicycle infrastructure has been installed and where the target bike lanes are, largely, located. There has also been a reduction in traffic accidents involving cyclists.

The target bike lanes

[26] The Bloor Street bike lanes began as a pilot project in 2016. The City observed economic benefits to businesses from an increase in customers and improved safety. The project was made permanent in 2017, and now extends 14 kms from the Bloor Viaduct in the east (where it connects with bike lanes on Danforth Avenue that extend east to Victoria Park Avenue which are not part of the target bike lanes) to Resurrection Road in Etobicoke in Toronto's west end.

[27] The University Avenue bike lanes were installed as a temporary project in 2020 as part of the City's ActiveTO pandemic response plan, and now extend 1.6 kms from College Street to Wellington Street West. During argument on April 16, 2025, it was explained that the University Avenue bike lanes targeted did not include the bike lanes installed on Avenue Road and Queen's Park Crescent which connect to the University Avenue bike lanes at College Street. However, the changes to the law passed on June 5, 2025 now include the requirement that a lane of traffic for motor vehicles be restored on Avenue Road, which is defined to include Queen's Park Crescent East and Queen's Park Crescent West.

[28] Like many portions of the Bloor lanes, the City has constructed raised cycle tracks on the west side of University Avenue and installed cement dividers as part of larger road reconstruction.

[29] The University Avenue bike lanes, which pass several hospitals, received strong support from the medical community. As the CEO of Sinai Health wrote in May 2020:

In June 2017, Sinai Health sent a bicycle survey to all staff to gather data on the cycling needs of employees. We found that 63% of staff said they cycle to work, and 64% of staff live within 10 km of the hospital. This highlighted our strong cycling culture. It wasn't surprising that 80% surveyed said there is inadequate bike parking and they would like to see protected bike lanes. …

With this letter we fully support Doctors for Safe Cycling and Cycle Toronto's call for dedicated bike lanes along University Avenue, to help ensure the safety of our essential frontline workers traveling in and out of the downtown core.

[30] The Yonge Street bike lanes were also installed as a temporary ActiveTO project in 2021. After seeing cycling volumes increase by between 57% and 180%, the City made the lanes permanent in 2023. The Yonge Street bike lanes extend 3.2 kms from Bloor Street to Davisville Avenue, and there is a short, painted bike lane between Front Street and Queen's Quay.

[31] Most of the length of the target bike lanes are protected, or physically separated from lanes of motor vehicle traffic by curbs or other barriers.

[32] The cost to the City of installing the target bike lanes was approximately $27 million.

The introduction of Bill 212

[33] On September 19, 2024, it was reported that the Ontario government was "considering bringing forward legislation that could prohibit the installation of bike lanes when lanes for motor vehicles are removed as a result." This was confirmed on October 13, 2024, in an opinion piece written by the Minister of Transportation published in the Toronto Star. That op-ed asserted that "Toronto is stuck in traffic and bike lanes aren't helping." The Minister wrote that "we need bike lanes – where they make sense", asserting that bike lanes should be limited to side streets rather than "being added to major thoroughfares like Avenue Road and Bloor Street West." In his view, bike lanes such as the one on Yonge Street were adding to the costs of congestion.

[34] On October 21, 2024, Bill 212, the Reducing Gridlock, Saving You Time Act, was introduced in the Legislature. Schedule 4 of Bill 212 proposed amending the HTA by adding, among other things, s. 195.3 which would require municipalities to seek approval from the Minister of Transportation before constructing bike lanes that would reduce the number of lanes available for motor vehicle traffic. In the summary of the Bill posted on the Environmental Registry of Ontario ("ERO"), the Government stated that "approval will be based on a set of specified criteria, to be set out in guidance and/or regulation." The government has yet to provide any such criteria.

[35] As introduced on October 21, 2024, Bill 212 did not contain any provision to remove existing bike lanes. However, the following day, October 22, 2024, the Premier identified the target bike lanes as lanes he wanted to see removed. The Premier said that the "three that stand out is Bloor Street, Yonge Street and hospital row." He said that the government would "work with the City and hopefully they can put them on secondary roads." When asked if the government wanted any criteria to be met before removing them, he said "no", and "they're coming out." According to news reports, the Premier stated that the government "will remove and replace existing bike lanes on primary roads that are bringing traffic in our cities to a standstill."

[36] Bill 212 received Second Reading in its original form on October 23, 2024. On October 24, 2024 the Premier wrote on X (formerly Twitter): "We're bringing back sanity to bike lane decisions to get drivers moving again. The 1.2 per cent of people who commute by bike shouldn't be clogging primary roads for the over 70 per cent of people who drive. It's just common sense."

[37] The Applicants made a request under the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, for any records or documents supporting the 1.2% figure used by the Premier and later repeated by the Minister of Transportation. In December 2024 the response from the Ministry of Transportation was that no records were found that were responsive to the request.

[38] In fact, the Ministry of Transportation had quite different information at the time which it released on December 18, 2024. The Ministry's Transportation Tomorrow Survey found that in 2022 4.4% of all trips within the City were taken by bicycle or other micromobility. This compared to just under 60% for automobiles, including passengers and taxi/rideshare trips. The percentage of trips by bicycle or other micromobility rose to 9.3% for trips to downtown Toronto. This can be compared to 28.4% who used automobiles for trips to downtown Toronto in 2022. For trips between Bloor West wards and downtown, the cycling figure was 15%.

[39] On October 31, 2024, the government updated its ERO posting respecting Bill 212 to state that there would be "an addendum… that would require the province to remove sections of the Bloor Street, Yonge Street and University Avenue bike lanes…and return them to a lane of traffic for motor vehicles."

The Committee hearings, ERO process and public responses to Bill 212

[40] On November 18, 2024, the Standing Committee on Heritage, Infrastructure and Cultural Policy held public hearings on Bill 212. The Minister addressed the Committee, largely about the economic effects of gridlock and the government's plans to build new highways north of Toronto. He spoke about bike lanes briefly, stating that the government will "establish a process with a clear set of criteria" for reviewing requests to remove lanes of motor vehicle traffic, and said that the province will ask municipalities for data in order to "apply informed decision-making to the construction of bike lanes based on real statistics and listening to commuters." To date, no criteria have been published or promulgated.

[41] The Minister also said that if the Bill passed "we will put an end to problematic bike lanes once and for all, including those on Yonge Street, Bloor Street and University Avenue." The Minister did not cite any data to explain what made the target bike lanes "problematic." He asserted, however, that "we have seen a significant increase in congestion" along those streets and said that the bike lanes should be moved to secondary roads.

[42] In response to a question from a Committee member raising concerns about road safety, the Minister stated that "everything the Ministry of Transportation does, whether it be through legislative measures, is to improve safety on our roads."

[43] The Committee heard from several members of the public and received comments from several organizations with expertise on traffic and congestion issues, none of whom supported the bike lane portion of Bill 212.

[44] Several organizations made written submissions on Bill 212 which were included in the Applicants' Record. The Association of Municipalities of Ontario ("AMO") stated, in part, that "bicycle lanes are an essential element of urban transportation planning and road safety. They offer a healthy mode of transportation that can remove cars off the road – combatting congestion and climate change – while also protecting the safety of both bike riders and drivers."

[45] The Ontario Traffic Council addressed the claim that bike lanes should be moved to secondary roads, stating:

While the thought of designing future cycling facilities off main thoroughfares may seem like a solution to traffic gridlock, knowledgeable and experienced engineers and planners would suggest there is no data to support this concept. Reducing the availability of dedicated cycling facilities will limit transportation options and only add cars to our roads, which contributes to municipal traffic problems rather than resolving them. Conversely, every cyclist on the road is one less vehicle contributing to the congestion issues that Ontarians are facing across the province.

[46] The Ontario Professional Planners Institute commented:

A bike lane reduces conflict and results in cars and trucks flowing easier on the road, and cyclists are kept safe in their own lane. Without bike lanes, cars need to slow down for cyclists, slowing the flow of traffic and increasing the likelihood of conflict.

[47] One hundred and twenty physicians and researchers from the University of Toronto signed an open letter to the Premier which stated, in part:

…the vast majority of traffic-related fatalities – pedestrian and cyclist especially – are preventable. Research from many jurisdictions, including Toronto, shows that protected bicycle lanes reduce the risk of motor vehicle trauma for pedestrians and cyclists. A recent position statement from the Canadian Paediatric Society strongly endorses protected bike lanes as a way to protect children, the most vulnerable road users. … Bicycle lanes benefit all road users, and it is much preferable to prevent motor vehicle trauma than to try to treat it.

[48] The Ontario Society of Professional Engineers commented:

As engineers dedicated to fostering safe and efficient transportation systems, we recognize the persistent issues of gridlock and traffic congestion in Toronto and surrounding areas. However, limiting bike lane installation does not address these challenges and instead disregards the growing demand for sustainable and safe transportation options.

[49] The Toronto Parking Authority, which operates Bike Share Toronto, commented:

Bike Share riders rely on safe cycling infrastructure to navigate the City. Since the installation of cycling infrastructure on Bloor Street West, ridership in this community grew by 78%. In fact, ridership at specific Bike Share stations, including Bloor St W / Old Mill Trail, grew by 94% after the implementation of new cycling infrastructure along the corridor.

Within Toronto's financial district, Bike Share has become such a popular mode of transportation – seeing 1,000 riders per day – that the station now requires staff to manage and coral the flow of bikes. At Toronto's Hospital Row near University Avenue and Gerrard Street, Bike Share serves 500+ riders per day, including critical members of the medical community such as doctors, nurses, researchers, patients and visitors.

[50] According to a report from the City Manager, use of the City's Bike Share program almost doubled from 2.9 million rides in 2020 to 5.7 million trips in 2023.

[51] The ERO's summary of comments on Bill 212 noted the concern that bike lanes have little to no consequential effects on congestion and driving times and do more to fight congestion than contribute to it, and that removal of dedicated cycling infrastructure will impact safety for all road users. The consultation process also identified studies and data that support the conclusion that the removal of the target bike lanes and restoration of a lane for motor vehicles will not lead to a reduction in vehicle congestion.

The City of Toronto's response to Bill 212

[52] The Mayor of Toronto objected to Bill 212, noting that it "seeks to overturn the decisions of our locally elected Toronto City Council." On November 13, 2024, City Council received a report from the City Manager titled "Respecting Local Democracy and Cities – Supplemental Report: Impact of Bill 212 Bike Lanes Framework" (the "November 13, 2024 Report").

[53] The November 13, 2024 Report identified a number of impacts that would result from the removal of the target bike lanes. This included reduced safety for cyclists, increased collision risk for drivers, and "minimal improvements in travel time once lanes are removed." The Report estimated a cost of $48 million to remove the recently constructed bike lanes, in addition to the $27 million spent by the City to build them, noting that their removal will be complex and "negatively impact driver travel time and businesses during construction."

[54] The City Manager observed that over the past ten years, 28 people have been killed and 380 people seriously injured while cycling, and that 68% of these collisions took place on streets without safe cycling accommodation. However, serious injuries and fatalities for people cycling has "generally been decreasing" as ridership has increased. The City Manager noted that "independent peer-reviewed research has shown that the introduction of separated bikeways reduces the risk of cycling injury (about 9 times lower risk than a major street with parked cars and no cycling infrastructure)." As the Report also observed, "bike lanes also increase the feeling of comfort and safety for all road users", including pedestrians who no longer have to fear bikes and electric bikes using sidewalks.

[55] On the issue of congestion, the City Manager wrote that "[r]esearch and experience from across North America and around the world have shown that a connected and safe cycling network is a key part of mitigating traffic congestion in a growing city, while improving safety and mobility." The Report continued:

People who rely on motor vehicle travel also benefit from bikeways when enough other people choose to leave their car at home. It is well-documented that small reductions in the number of vehicles on a road can produce large improvements in traffic flow. Investing in convenient alternatives to driving, such as bikeways and public transit, is a necessary component of a successful traffic congestion management strategy. Those travelling by car also benefit from bikeways due to the increased safety and comfort when people cycling are not operating in mixed traffic.

[56] The City Manager observed that the expanded network of bike lanes has provided "thousands of residents with improved access to jobs, schools, health care, services, and activities." The Report noted that there are limited options for where bike lanes can be put in Toronto, making it "challenging to implement new bikeways without some changes to motor vehicle lanes", and that "before a motor vehicle lane is considered for removal, staff review the potential for parallel routes that provide network connectivity to key destinations and various design options to minimize the impact on motor vehicles."

[57] The Report continued:

When a motor vehicle lane is considered for removal, traffic analysis is completed and staff work to mitigate impacts in the design, such as managing traffic capacity at intersections through the inclusion of turn lanes. The experience in Toronto has been that while travel times for people driving are sometimes found to increase immediately following the installation of bike lanes that impact motor vehicle lanes, once further adjustments are made to optimize operations, the long-term impacts to travel time for drivers are generally minor.

When cities do not provide safe and comfortable alternatives to driving, the majority of residents have little option but to travel by motor vehicle. In growing cities like Toronto, if every new resident added another car on the street network, the traffic congestion across all parts of the city would be unmanageable. In dense urban areas, widening roadways to accommodate additional cars is not a viable option, land values motivate redevelopment of parking lots to higher-value uses, and many people are already living in or moving to Toronto without a car. Many households in Toronto do not own a car - 28% city-wide and 55% in the downtown. Travel mode choice is a crucial aspect of creating a livable city. Investing in new transit and bikeway projects is key to supporting urban life and economic vitality.

[58] Turning to the impact of removing the target bike lanes, the City Manager identified the benefits of having bike lanes on main streets:

Secondary roads parallel to main streets, such as neighbourhood streets, play an important role in Toronto's cycling network, but without bikeways on main streets, the network would be disconnected and lack connectivity to key destinations. Main streets, such as Bloor Street, Yonge Street, and University Avenue, are vibrant corridors full of activity, retail, essential services, community destinations, and employment hubs.

Main streets extend beyond neighbourhoods, cross major barriers, such as highways, railways, and rivers, and they provide access to the destinations that people are trying to reach. Main streets are often more direct than neighbourhood alternatives, making them desirable for their shorter distances and travel times. Bloor Street, Yonge Street, and University Avenue also have the benefit of the subway system below them, providing another alternative to motor vehicle travel on the corridors.

[59] The November 13, 2024 Report also addressed the lack of alternative routes to the target bike lanes, stating:

For many sections of Bloor Street, Yonge Street, and University Avenue, there are no feasible parallel alternates for cycling routes that wouldn't also result in the conversion of a motor vehicle travel lane. Particularly for Bloor Street, the alternatives are either discontinuous and circuitous requiring new traffic signals to cross main streets; would require converting the local streets to one-way for motor vehicles; would require significant parking removal; would require road reconstruction and utility and tree relocation to build bikeways in the boulevard; and in some cases would require new bridge structures involving significant cost, property, and engineering challenges to cross barriers like rail lines, ravines, and waterways.

Amendment and passage of Bill 212 – the target bike lanes provision and the claims bar

[60] On November 21, 2024, after the Committee hearings and after the ERO comment period had closed, the government introduced an amended Bill 212 containing s. 195.6 requiring the Minister to remove the target bike lanes:

Subject to any prescribed exemptions or modifications, the Minister shall remove the bicycle lanes located on Bloor Street, University Avenue and Yonge Street, in the City of Toronto, and any related features, and restore the lanes for use by motor vehicle traffic.

[61] The amended Bill also introduced ss. 195.10 - 195.14 which bar any claims against the government, its municipalities or contractors for damages arising from collisions, injuries or deaths that occur as a result of removing the target bike lanes.

[62] As has become relevant, also added to the Bill was s. 195.18(2) (c), which provided the Lieutenant Governor in Council with the power to make regulations relating to s. 195.6, including "requiring the Minister to reconfigure a bicycle lane."

[63] Bill 212 received Third Reading and Royal Assent on November 25, 2024. In the Legislature on that day, the Minister of Transportation stated, among other things:

… Let's make it safer. That is why we are saying it doesn't make sense to rip up some of our busiest roads in the entire city to accommodate a very few percentage of people that use their bikes. It is better for them to use secondary roads, which is also safer for them as well.

[64] The Minister connected traffic congestion in the City directly to the target bike lanes, stating, "We have seen first hand challenges on Bloor Street, on Yonge Street, on University Avenue, and the congestion that these bike lanes cause."

Ontario's advice contradicts the government's position

[65] The evidence presented on this application establishes that the statements of the Minister and the Premier are not supported by any data or internal analysis or advice. As noted earlier, the assertion that only 1.2% of trips are made by bicycle is inconsistent with the data the government had at the time that figure was used. The same may be said about the claims that the target bike lanes "aren't helping" or are "clogging our roads" and must be removed to reduce congestion. There is no internal Ontario government document supporting those statements or which suggests that removing the target bike lanes and restoring a lane for cars will materially improve congestion or not increase the risk to safety.

[66] To the contrary, records produced by the government in this litigation show that the internal advice prior to passing Bill 212 was that protected bike lanes can have a positive impact on congestion and that removing them would do little, if anything, to alleviate gridlock, and may worsen congestion.

[67] An August 29, 2024 briefing note to the Ministry of Transportation advised that the Canadian Automobile Association recommended the use of cycling infrastructure as a congestion management measure, noting that bike lanes increase active transportation mode share, reduce demand on vehicle lanes, can move 10 times more people than a car lane, and that adding a protected bike lane reduces collisions and injuries by 30 to 50%.

[68] A September 9, 2024 submission to an internal committee signed by the Minister of Transportation advised that the proposal (then internal) to remove bike lanes "may not reduce congestion." The Minister's note referred to research in Vancouver, New York and Washington which suggests that "reducing road capacity by introducing bike lanes can encourage biking and discourage car use" and thereby alleviate congestion. On the same day, a Cabinet Office Committee briefing note stated that "current data and research does not confirm that removing bike lanes that occupy a lane of traffic would significantly alleviate congestion."

[69] A Ministry of Transportation briefing dated October 28, 2024 (one week after introducing Bill 212) stated: "MTO does not hold any data on the performance of the identified three bike lanes to support a decision for removal, nor to assess the potential impacts of removal, including with respect to impacts on travel times and safety impacts to cyclists, motorists, pedestrians, etc." The briefing note continued:

Removing cycling infrastructure may not have the desired goal of reducing congestion. In the absence of dedicated cycling infrastructure, cyclists could continue to use key routes in affected municipalities, particularly in the absence of alternatives, which may not be in place until a later date. Cycling studies in North American and other large jurisdictions show bike lanes can have a positive impact on congestion and on safety of road users.

[70] The internal advice to the government before passing Bill 212 was confirmed following its enactment. An engineering firm retained by the government to move forward with the removal of the target bike lanes and restoration of lanes for motor vehicles, CIMA, provided a report on January 10, 2025, in which it stated:

… While removing the bike lanes and replacing them with traffic lanes may increase the vehicle capacity along the immediate length of the roadway, the actual alleviation of congestion may be negligible or short-lived due to other confounding factors or induced demand.

[71] "Induced demand" was described by CIMA as "a concept widely accepted, and repeatedly proven, in the transportation industry." Induced demand, CIMA explained:

suggests that while congestion will temporarily improve on roads where capacity is increased, congestion will return as more drivers are attracted to the expanded facilities. This concept holds especially true on roads in dense urban areas, where latent traffic demand will rapidly exhaust added capacity. The removal of bike lanes may also result in people currently cycling deciding to instead drive, which would accelerate the return of traffic congestion. Drivers who started taking alternate routes in response to the installation of the bike lanes might also be attracted back following the removal of the bike lanes. This concept, while not proven in the context of bike lane removal, is widely known in traffic engineering.

[72] CIMA noted that while adding a lane of motor vehicle traffic "may give the appearance of congestion reduction over a short distance…over a longer corridor, the benefits of an additional traffic lane could be negated due to other bottlenecks" such as on-street parking, transit stops, bridges, and delays at intersections. CIMA observed that it is "well documented that installing cycling facilities increases bicycle usage", and cited studies to support this statement.

[73] CIMA also addressed safety concerns, noting that research findings support the conclusion that bike lanes have a positive impact on safety "with a reduction in total collisions… between 35% and 50.2%." This is borne out by the experience on Bloor Street which saw a 44% reduction during the pilot project. In summary, CIMA stated:

Removing cycling facilities will have several negative impacts on road user safety as demonstrated through the risk assessment. Both quantitative and qualitative safety measures demonstrate that cycling facilities, especially protected bike lanes, improve cyclist safety by providing a physical barrier from vehicle lanes and increasing driver awareness of cyclists. Cycling facilities also have a traffic calming effect on roadways, reducing vehicle speeds along with collision frequency and severity; the associated safety benefit extends beyond cyclists to all road users. Based on the range of CMFs [Collision Modification Factors] identified from literature and the CMF Clearinghouse for installing protected bike lanes, the resulting range of CMFs for removing protected bike lanes would be 1.54 to 2.01 for total collisions which suggests more than 54% increase in the total number of collisions (i.e. for all road users, not just those involving cyclists).

[74] Like the internal advice before Bill 212 was passed, the CIMA report was only produced by the government when required in this court application.

The expert evidence: safety

[75] The Applicants filed an expert report from Dr. Linda Rothman, an Associate Professor at the School of Occupational and Public Health at Toronto Metropolitan University. Dr. Rothman is an injury prevention epidemiologist with expertise in road safety. Her opinion is that "cycle track installation has a protective effect on collision incidents and injury severity."

[76] Dr. Rothman summarized the quantitative research, stating that "literature reviews consistently show that cycle tracks are related to a reduction in the incidence and the risk of cycling collisions." She cited American studies showing dramatically lower rates of injury where there were protected bike lanes. Studies in Toronto, Montreal and Vancouver had similar findings. Dr. Rothman also noted that the number of cycling injuries is underreported by police.

[77] Dr. Rothman's research showed that the target bike lanes saw reductions in collisions despite "great increases in volumes" of cyclists. She also warned of the "bait and switch effect" caused by the removal of bike lane infrastructure which, studies have shown, "could actually increase the burden of injury from pre-installation." As she summarized:

…it is my expectation that the removal of these major cycle track corridors in Toronto are likely to have several consequences related to injury including:

1. Some commuters and recreational riders are likely to continue to ride on these routes without the protective infrastructure.

2. Gig cyclist delivery workers are likely to continue to ride on these routes without the protective infrastructure.

3. Some people are likely to stop cycling on these routes and switch to cars, increasing congestion and putting cyclists who continue to ride and pedestrians at greater risk.

These effects all acting synchronously, would likely lead to increases in collisions and fatalities.

[78] The government's evidence does not contradict or credibly challenge the Applicants' evidence. The Respondent's primary response to Dr. Rothman came from Barry Raftery, a mechanical engineer who specializes in accident reconstruction. He did not challenge Dr. Rothman's epidemiological evidence or the literature; instead, he relied on his own observations to reach conclusions that are not reflected in studies, or data.

[79] Mr. Raftery simply asserted that, in his view, the studies relied on by Dr. Rothman "do not fully support her conclusion." Rather, he relied on his "observation that collisions involving bicycles and motor vehicles often occur as a result of a number of factors." The first factor he listed was that "two modes of transportation travelling at very different speeds are sharing the same road." However, protected bike lanes reduce, if not eliminate, road-sharing between cyclists and motor vehicles.

[80] The Respondent's other expert witness, Dr. Murtaza Haider, also asserted that other factors can play a role in safety. Dr. Haider said that "I do not directly offer an opinion on safety" but then went on to observe that "many studies emphasize bike lanes' safety benefits." He noted that lane and intersection design can play a major role, and that "bike lanes that abruptly end or force cyclists to merge with motor vehicle traffic at intersections can increase collision risks." This will, however, be the case if the target bike lanes are removed.

[81] In short, the expert evidence is clear, compelling, and essentially uncontradicted, that the removal of the target bike lanes will lead to more collisions and injuries involving cyclists – just as the government was told before and after it enacted Bill 212.

The expert evidence: congestion

[82] The Applicants' expert evidence on the impact of bicycle lanes on traffic congestion came from Dr. Shoshanna Saxe, a Canada Research Chair in Sustainable Infrastructure and Associate Professor at the University of Toronto. Transportation infrastructure, including cycling, is a core focus of her research and expertise. She has published many papers on quantitative assessments of cycling infrastructure and works in Canada and abroad.

[83] Dr. Saxe stated that "investing in cycling infrastructure is one of the most powerful tools available to reduce congestion." She noted that "when there are safe cycle routes that connect to a network of other safe cycle routes people take up biking in large numbers." In short, as safe alternative modes of travel are developed, people drive less and use other modes of transportation, thereby reducing motor vehicle congestion. As Dr. Saxe said, "in other words, when it's safe, people bike."

[84] Dr. Saxe discussed the well-accepted concept of induced demand which applies to the use of bicycles as well as to the use of motor vehicles. Put simply, if you build it, they will come. More cycle lanes means more people will ride bicycles. More roads, or more lanes of motor vehicle traffic, means more people will drive. As Dr. Saxe summarized the research, "adding new lanes of traffic induces new driving such that congestion returns to previous levels and worse, but now with more people stuck in traffic."

[85] Dr. Saxe pointed out that many factors can affect congestion when a bicycle lane is installed. Much can depend on population density, road design, including design of intersections, reductions in speed limits, the impact of deliveries, the presence of on-street restaurant patios ("Café TO"), and the impact of construction which often causes lane closures. Dr. Saxe stated that "the conflation of these multiple factors makes it difficult to isolate the impacts of cycle tracks on motor vehicles." She noted that "[i]t is not possible to separate the impact of the cycle tracks from the impact of easing pandemic restrictions more than to say that the changes in travel speed on Bloor St. were similar to the rest of the City." She made a similar observation for University Avenue.

[86] Of most relevance is Dr. Saxe's opinion about what will happen if the target bike lanes are removed and replaced with lanes for motor vehicles. She stated:

Removing the cycle tracks would make motor vehicle traffic worse, an effect that would amplify over time. Travel speeds will slow, trip times will get longer, emergency response will likely be worse and gridlock becomes a possibility.

[87] Dr. Saxe observed that removal of the bike lanes will cause fewer people to cycle and more people to drive. In the short term, even before their removal, fewer people will shift to cycling when the removal of the infrastructure is imminent. Construction, which may last years, will slow traffic and drive people into cars as cycling becomes unsafe. While there may be slight decreases in travel time for a short period after new lanes are introduced, Dr. Saxe noted that over time, as more people drive, "we should expect traffic to get worse." As research has shown around the world, "increasing urban road capacity leads to increased congestion and slows traffic." Over the medium to long term, she said, "traffic will be much worse":

Population growth and increased trip distances are already putting huge pressure on Toronto's and southern Ontario's transport system. Due to the large amount of space cars take up and the consistent low occupancy of cars (usually carrying only one person), they are an incredibly inefficient use of space. People make travel choices based on the infrastructure available to them - the more driving is incentivized (e.g., by making alternative modes like biking dangerous) the more people will drive. Combine this with a growing population and a perfect storm of traffic and congestion will have been created.

[88] Consistent with the City Manager's Report, Dr. Saxe's view was that "there are no viable alternatives to Bloor Street and Yonge Street Cycle Tracks", and only a partial alternative for University Avenue which depends on maintaining Bloor Street. As she put it, "there are no alternatives to Yonge, Bloor and University cycle tracks that don't also require biking/cycle tracks on major roads." Alternative routes will not be taken, she said, because they will add significant time. Even if used, alternative routes will require cyclists to ride in mixed, more dangerous, traffic. Businesses, such as those on Bloor and Yonge, which have seen an increase in customers due to ease of access by bicycle, will also suffer.

[89] The government response to Dr. Saxe came from Dr. Murtaza Haider, a professor of real estate management and data science at Toronto Metropolitan University. Dr. Haider has a Ph.D. in Civil Engineering and a Master's degree in transportation engineering from the University of Toronto.

[90] Dr. Haider was asked to look at "the impact of introducing bicycle lanes into the curb lanes of urban arterials in Toronto on motorized travel." His conclusion was that "introducing bicycle lanes and initiatives such as on-street cafes has undoubtedly increased travel times and worsened congestion." However, Dr. Haider used pandemic and non-pandemic data, comparing 2022 figures when, as he noted, traffic was still affected by the pandemic, with later figures. At the same time, Dr. Haider took issue with the data relied on by the City, asserting that it compares travel times pre-pandemic with travel times during the pandemic.

[91] Dr. Haider acknowledged that there has been a "notable rise" in bike ridership but asserted that implementing bicycle lanes has not produced a "modal shift" from cars to bicycles. He said that the increase in bicycle use "must be viewed against the trade-offs" to those who use vehicles, which has remained relatively constant.

[92] Dr. Haider focused on congestion during "peak hours" and appeared to simply blame the existence of bicycle lanes. While he referred to other "initiatives", he made little reference to other reasons for congestion, such as lane closures for street patios, construction, the adoption of reduced speed limits, and adjustment of traffic signals at intersections.

[93] On the other hand, Dr. Haider agreed that "the effectiveness of bike lanes depends on whether they are part of a comprehensive and continuous cycling network", warning that "fragmented or isolated bike lanes that force cyclists to merge back into regular traffic can negate safety improvements and discourage cycling adoption." As he stated, "bike lane development should be part of a holistic urban planning approach rather than implemented as a standalone infrastructure." How removing certain key bike lanes in a network developed by the City is consistent with this observation was not explained by him.

[94] Dr. Haider did not address the issue of whether removing the target bike lanes and restoring a lane for cars would relieve congestion. This is a surprising omission. It is reasonable to infer that Dr. Haider does not disagree with the government's internal advice or the weight of the evidence that removing the target bike lanes and restoring a lane for motor vehicles will not reduce congestion. Even without drawing that inference, the Court is left with uncontradicted evidence that removing the target bike lanes to restore a lanes for motor vehicles will not alleviate congestion.

Bias

[95] Counsel for the government argues that the Applicants' experts are advocates for the cycling cause and are therefore biased, which undermines the persuasive value of their evidence.

[96] As I observed in Black v. City of Toronto, 2020 ONSC 6398 at para. 31, in public interest litigation experts have often been involved in advocacy on the issues before the Court; that is what often contributes to their expertise. It is important for courts to have different perspectives and, as I put it, "[c]ourts are not naïve and can, where necessary, discount or ignore testimony of experts if and when it becomes advocacy as opposed to evidence."

[97] More recently, the Court of Appeal observed in Ontario (Natural Resources and Forestry) v. South Bruce Peninsula (Town), 2022 ONCA 315 at para. 77, that "perfectly impeccable impartiality or independence is rarely possible and is not the standard." The Court of Appeal cited Cromwell J. in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182 at para. 49, that "it will likely be quite rare" that an expert's evidence is excluded for failing to meet the threshold for independence and impartiality.

[98] In this case there is no support for claims of bias, and no basis to find that the Applicants' experts did not fulfill their obligation to provide independent and impartial evidence. Dr. Rothman is an epidemiologist whose evidence was rooted in data and research literature. She acknowledged shortcomings in the data where appropriate. Respecting Dr. Saxe, on one hand the Respondent argues that she is an advocate but, on the other hand, notes that fewer than 10% of her articles deal with cycling. Her evidence was also rooted in data and the consensus views of other experts.

[99] The Respondent criticizes Dr. Saxe for being "one-sided" in discussing the benefits, but not the costs, of bike lanes. But Dr. Haider does the opposite. He cited the Toronto Board of Trade's position contained in a report released in February 2025 - the only organization to have come forward, belatedly, to support the removal of the bike lanes – to emphasize the costs of congestion. But Dr. Haider failed to point out that the expert reports commissioned by the Board of Trade, like the government's advice, do not support removing the bike lanes. None of the studies commissioned by the Board of Trade support moving bike lanes off arterial roads.

[100] Dr. Haider appeared to take issue with the well-accepted concept of induced demand, and discussed at length an issue that appears to be beyond his expertise and which is of little, if any, relevance, namely, that congestion he says is caused by the bike lanes results in emissions which harm cyclists who are exposed to them. But restoring lanes for motor vehicles will result in more cars and even more harmful emissions.

The rest of the evidence

[101] The Applicants presented evidence from the head of Cycle Toronto, the individual Applicants, and others regarding their experiences cycling in Toronto, including examples of the hazards of cycling in mixed traffic and the safer situation provided by protected bike lanes.

[102] The Respondent also filed non-expert evidence from City residents giving their impressions of the bike lanes and asserting that they have caused congestion. Among other things, they complain of what they believe to be poorly designed intersections, narrow parking places and hazards created by the bike lanes. One affiant provided videos showing traffic backed up on Yonge Street, noting that it is especially busy during rush hour. Another affiant described opposition to the bike lanes on Bloor Street West in Etobicoke, including hearsay complaints by some businesses.

[103] One affiant for the Respondent was a retired Fire Captain, previously employed by Toronto Fire Services, who offered his view that the bike lanes cause congestion and increase safety risks. He asserted that the bike lanes on a portion of Bloor Street West will have "a detrimental impact on emergency response times" but cited no data in support of his viewpoint. This witness's asserted opinion, however, conflicts with public statements from the Toronto Fire Chief who a few months earlier, in October 2024, told a public meeting regarding the Bloor West lanes that the fire department had "not seen an increase in response times." To the contrary, he said, "response times have been improving." Presumably, if there was data contradicting the Fire Chief, the government would have access to it and would have presented it, instead of an unsupported non-expert opinion.

[104] The government's evidence is anecdotal and of little assistance. The affiants are not experts and have not analyzed the causes of congestion. While their feelings may be genuine, their impressions do not constitute evidence of a link between bike lanes and traffic congestion. Undoubtedly, there are people who support the view that the target bike lanes should be removed, and others who oppose their removal. But Charter litigation is not a popularity contest based on attitudes or impressions or unattributed hearsay. Cases should be decided on well-grounded evidence, not on anecdotal opinions.

ISSUES

[105] This application addresses the following legal issues:

(a) Whether, in light of the changes to the law enacted on June 5, 2025, the application is moot;

(b) the application of the Charter, in particular whether the Applicants are asserting a positive rights claim;

(c) whether s. 195.6 of the HTA infringes the right to life and security of the person under s. 7 of the Charter and, if so, whether the infringement is arbitrary and grossly disproportionate and therefore not in accordance with the principles of fundamental justice;

(d) whether s. 195.6 of the HTA is saved under s. 1 of the Charter; and

(e) the appropriate remedy.

THE APPLICATION IS NOT MOOT

[106] As noted in the Overview, s. 195.6 of the HTA repealed and replaced in the government's budget legislation which was passed and received Royal Assent on June 5, 2025. The relevant changes are as follows:

Original Legislation (Royal Assent November 25, 2024)

195.6 Subject to any prescribed exemptions or modifications, the Minister shall remove the bicycle lanes located on Bloor Street, University Avenue and Yonge Street, in the City of Toronto, and any related features, and restore the lanes for use by motor vehicle traffic.

195.18(2) The Lieutenant Governor in Council may make regulations, (c) modifying the requirement to remove bicycle lanes described in section 195.6, including requiring the Minister to reconfigure a bicycle lane or part of a lane and any related features or adjacent infrastructure for use by motor vehicle traffic;

Current Legislation (Royal Assent June 5, 2025)

195.6 Subject to any prescribed exemptions or modifications, the Minister shall restore a lane for motor vehicle traffic on Bloor Street, University Avenue, Avenue Road, and Yonge Street, in the City of Toronto, by reconfiguring the bicycle lanes, or parts of bicycle lanes, located on those streets, and any related features or adjacent infrastructure.

195.18(2) The Lieutenant Governor in Council may make regulations, (c) modifying the requirement described in section 195.6, including requiring the Minister to remove a bicycle lane or part of a lane and any related features or adjacent infrastructure;

[107] A comparison of the provisions demonstrates that the government has inverted the statutory and regulatory powers in the new provisions. The Respondent submits that as the Minister is no longer required by statute to remove the bike lanes, but instead has the duty to "reconfigure" them, the issue raised by the application is moot, and any court challenge is premature. I disagree, for the reasons I explain below.

[108] The leading case on mootness is Borowski v. Canada, [1989] 1 S.C.R. 342. The Supreme Court noted at page 353 that "[t]he doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question" [emphasis added]. The rule is not rigid and in appropriate cases the court may continue to hear and/or decide a case. As the Supreme Court stated:

The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. Accordingly if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot. The general policy or practice is enforced in moot cases unless the court exercises its discretion to depart from its policy or practice.

[109] The Supreme Court confirmed a two-step approach to addressing mootness concerns:

First it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic. Second, if the response to the first question is affirmative, it is necessary to decide if the court should exercise its discretion to hear the case.

[110] Should the court determine that the first step is met and the case is moot, the party seeking to nevertheless have the court decide the issue "bears the onus of convincing the court to make an exception to the general rule": Payne v. Wilson, at para. 18.

A live controversy remains

[111] In most cases where mootness is raised, the facts are clear that the live controversy no longer exists because the law has been repealed, struck down, or amended in such a way as to remove the primary issue in dispute.

[112] In Borowski, the applicant had challenged a provision of the Criminal Code prohibiting abortion except in limited circumstances. However, before the Supreme Court decided the case, it declared the law of no force and effect in another case (R. v. Morgentaler, [1988] 1 SCR 30), making the constitutional challenge brought in Borowski moot as there was no longer a live controversy arising from the law which affected, or potentially affected, the rights of the parties.

[113] The issues on appeal in Payne were rendered moot after the Legislature repealed the prohibition on selling shares of Ontario Hydro to the public, which was the crux of the dispute in that case. This was also the case in Harjee v. Ontario, 2023 ONCA 716, and in Ontario Place for All Inc. v. Ontario Ministry of Infrastructure, 2024 ONSC 3327, in which the law was simply repealed.

[114] Here, s. 195.6 has been repealed, but has been replaced by a section with the same effect, still mandating the restoration of a lane of motor vehicle traffic, but with a slight tweaking of the language to "reconfigure" as opposed to "remove" the bike lanes. This is a distinction without a difference. The government can still "remove" the bike lanes by promulgating regulations under s. 195.18(2).

[115] Indeed, the government intends to do so. When the new provisions were introduced on May 15, 2025, the Minister of Transportation stated four times in the Legislature that the government was going to "rip out those bike lanes", asserting, contrary to the evidence on this application and contrary to the advice received by the government, that "those bike lanes…have caused gridlock all across the City of Toronto": Hansard, 1st Session of 44th Parliament, Thursday 15 May 2025 at p. 774.

[116] Further, the requirement to "restore a lane of motor vehicle traffic" by "reconfiguring" the target bike lanes will inevitably require removal of at least some, if not many, portions of the physical separation of bike lanes from vehicular traffic. One can see from photographs in the record that it will be impossible to maintain physically separated bike lanes on many parts of the target bike lanes. The government also retains the immunity provisions in ss. 195.10 – 195.14, anticipating injuries and lawsuits from the removal of the protected lanes. The safety and security of the person concerns remain and the controversy continues to exist between the parties.

[117] The government's assertion that the Applicants' complaint has become "hypothetical" or "premature" because the safety and security of the person concerns depend on the passing of a regulation to remove, rather than reconfigure, the target bike lanes, is disingenuous. The mere inversion of words in the statute gives the government the same power to achieve its desired end, which, taking the Minister at his word, is to "rip out those bike lanes."

[118] The second part of s. 7 of the Charter involves consideration of the principles of fundamental justice. This issue is not avoided by the changes either. The stated purpose of the law is to reduce congestion, and the question remains whether restoring a lane of motor vehicle traffic will do so. As I find below, and as the government was advised, restoring a lane for motor vehicles will not reduce congestion, making the law arbitrary and not in accordance with the principles of fundamental justice.

[119] No compelling explanation was provided for the change in the wording of ss. 195.6 and 195.18(2). Counsel asserted that because the province and the City are in negotiations over the bike lanes, the statutory duty to remove them was removed. But the power to remove remains under the new law simply by promulgating a regulation, and the province had the power under the previous law to relieve the Minister of the obligation to remove the lanes by passing a regulation to "reconfigure" them. Indeed, as s. 195.6 is "[s]ubject to any prescribed exemptions or modifications", counsel for the Respondent stated in argument that there has always been the power, through regulation, to reduce the obligation to remove the lanes. This supports the inference which the Applicants ask be drawn, that the changes to the law are simply a "sleight of hand" or "cynical maneuver" to support a mootness argument and leave the controversy for another day before another court.

[120] The government did not take the position that the matter was moot in its motion for leave to appeal the injunction before the Divisional Court. It also recognizes that the controversy will continue under the current legislation. Counsel for the Respondent acknowledged that should the government pass a regulation authorizing the removal of any of the target bike lanes, it can be challenged by way of judicial review, and conceded that much, if not all, of the same evidence that has been presented by the Applicants would likely be presented again.

[121] However, decisions to "reconfigure" the bike lanes can be taken by the Minister and implemented without any notice to the Applicants. The shovels can go in the ground to "rip" them out before the Applicants can get to court. In this way, the changes may be seen as a step taken by the government to evade judicial scrutiny of its intended actions.

[122] This highlights what is really in issue between the parties. The Applicants do not say that the government cannot "reconfigure" bike lanes but submit that any reconfiguration that removes their physically separated character for the purpose of restoring motor vehicle lanes is a breach of the Charter. The evidence has been directed towards this issue, which remains under the new legislation and remains the expressed intention of the government.

[123] Accordingly, the case is not moot. However, even if it is moot, the Applicants have satisfied me that there are compelling reasons to decide the application.

The court should decide the case in any event

[124] In Borowski, the Supreme Court identified three factors relevant to whether a court should exercise its discretion to decide a case that is moot: (1) whether a sufficient adversarial context continues to exist to ensure that "the issues are well and fully argued"; (2) a concern for judicial economy and the use of scarce judicial resources, which may make a decision appropriate where it will "have some practical effect on the rights of the parties", where the issue might otherwise "evade review", and where there is a public interest in resolving a matter; and (3) whether the court is appropriately exercising its adjudicative law-making function.

[125] In my view, each factor supports exercising discretion to decide the case.

[126] First, there is a robust adversarial context in this matter. The matters were "well and fully argued" on an extensive record and thorough legal submissions were presented. Submissions have also now been received on the effect of the changes to the law enacted on June 5, 2025: Doucet-Boudreau v NS (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, at para 19.

[127] Second, judicial economy strongly favours deciding the application. Judicial resources are scarce in Ontario. Cases face long delays in being heard. Judicial resources do not just include court time, however, as judges must take many cases under reserve and write reasoned, sometimes lengthy, decisions.

[128] In this case, significant judicial resources have been spent. This case was argued for a full day on an extensive evidentiary record in April. Prior to that, a half-day was spent, unnecessarily due to government intransigence, on an injunction motion before Firestone RSJ.

[129] I reserved on this matter on April 16, 2025, noting that it raised complex issues that required careful consideration. Although the government introduced the new legislation on May 15, 2025, and passed it on June 5, 2025, the court was not informed of the changes until July 3, 2025, when I received the letter from the government's lawyer informing me of the change and that its position was that the matter had become moot. No satisfactory explanation was provided for the delay in informing the court of the changes, or of the government's position. All counsel could say was that he had no instructions to raise it and that there was internal debate over the meaning of the changes and what position to take. I was told that once instructions were obtained counsel proceeded as quickly as possible to advise the court.

[130] The judicial efficiency issue ultimately turns on whether releasing a decision will have "some practical effect on the rights of the parties" or might otherwise "evade review", or whether there is a public interest favouring its release.

[131] Here, all three elements apply. The government acknowledges that the same issues are likely to arise in a subsequent case; indeed, that seems inevitable given the limited "reconfiguring" that is possible, the mandatory requirement to restore lanes of motor vehicle traffic, and the Minister's repeated statements that he will "rip out those bike lanes." It would be judicially inefficient to simply throw this case out when it is ready to be decided, only to have it promptly relitigated before another judge or judges of this Court.

[132] The Applicants, and the government, will benefit from the guidance they will receive from a judicial decision addressing the Charter issues on the full record presented in this case. This case may be contrasted with the situation in Harjee, where the regulation in issue had been revoked and not replaced, and there was no need for "additional guidance" as the Court of Appeal had addressed the underlying issues in another recent decision, as had other courts across the country. Here, guidance from the court will "have some practical effect" on the dispute by informing the parties of their rights.

[133] There is also the concern, having regard to the government's stated position that it will "rip out those bike lanes", that the protected bike lanes may be removed under the guise of "reconfiguring" without passing a regulation and therefore without notice to the Applicants, and thereby evade effective judicial review.

[134] Finally, there is a public interest in resolving this issue. Although this ground for deciding a case that has become moot is "ill-defined", determination of this issue affects many people, not just the parties. Uncertainty over the future of the target bike lanes can even affect their use in the interim. As one of the experts pointed out, people may be less likely to change their commuting habits and use a bicycle if the lanes are about to be removed, or "reconfigured" to be less safe.

[135] Turning to the third factor identified in Borowski, by deciding this case the court is staying in its lane of exercising its adjudicative function, based on real facts and laws that continue to be in dispute. The changes to the law are minor and do not mean the court would simply be providing "a legal opinion…in the absence of legislation or other governmental action": Borowski at page 365. There is nothing hypothetical about the current situation – the government wishes to "rip out" the bike lanes to restore lanes for cars for the stated purpose of reducing congestion. The impugned law permits this, in both its previous and current form.

DOES THE CHARTER APPLY: THE POSITIVE RIGHTS ARGUMENT

[136] This case arises in the factual context of a dispute between the Applicants and the government about bicycle lanes. The legal context involves the application of the Charter. For some, the connection between bicycle lanes and the Charter may be surprising. However, where government takes action, whether legislative or in some other way, its actions must comply with the Charter. As s. 32 of the Charter states:

This Charter applies…

(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.

[137] The Charter forms part of the Constitution Act, 1982, which provides, in s. 52, as follows:

The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

[138] In this case the Applicants have invoked s. 7 of the Charter which provides a broad right to "life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice." As was recently confirmed by a majority decision of the Ontario Court of Appeal, s. 7 is not limited to an individual's interactions with the administration of justice: Drover v. Canada at paras. 143 – 185. As Gomery J.A. explained, at para. 178:

Laws that restrict the life, liberty and security interests protected by the Charter must be substantively consistent with the principles of fundamental justice. This includes requirements that a law that restricts an individual's Charter rights must not be substantively overbroad, arbitrary, grossly disproportionate, or vague: see Bedford, at paras. 110-123.

[139] What is less clear is whether and how the Charter may apply to government inaction or, put another, way, whether the Charter can require governments to act to vindicate Charter rights. Further, where governments have taken steps to enhance safety, can they reverse those steps without engaging the Charter?

[140] The Supreme Court has directed courts to apply the Charter broadly, to give it a large and liberal interpretation. In Hunter v. Southam Inc., [1984] 2 SCR 145 at 156, as the Court of Appeal recently reminded us in Drover v. Canada (Attorney General), 2025 ONCA 468 at para. 146, Dickson J. expressly adopted the approach taken in Minister of Home Affairs v. Fisher, [1980] A.C. 319 (P.C., Bermuda), at p. 328, that called for "a generous interpretation avoiding what has been called 'the austerity of tabulated legalism,' suitable to give individuals the full measure of the fundamental rights and freedoms referred to."

[141] When laws or policies developed by governments infringe rights protected by the Charter, "the courts cannot shy away from considering them": Chaoulli v. Quebec (Attorney General), 2005 SCC 35 at para. 89, a case dealing with access to health care. Similarly, in Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44 at para. 105, involving the issue of illegal drug use and addiction and the provision of regulated injection sites, the Court reiterated that, while it is for governments to make laws and policy, "those actions are subject to Charter scrutiny."

[142] In Gosselin v. Quebec (Attorney General), 2002 SCC 84 at paras. 81-83, the Supreme Court of Canada discussed whether s. 7 could apply to impose positive obligations on the government. The Court noted that s. 7 of the Charter "speaks to the right not to be deprived of life, liberty and security of the person." The majority was unwilling to recognize or apply a positive rights approach, in that case to impose a positive state obligation to guarantee adequate living standards. However, the Court left open the possibility that there may be "special circumstances" in which a positive obligation to sustain s. 7 rights could arise.

[143] Positive obligations have been imposed on governments in other circumstances. The decision in United States v. Burns, 2001 SCC 7, requires the federal government to seek assurances from foreign states that individuals will not be executed before making an extradition order. Other examples are found in New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46, and R. v. Rowbotham at para. 156.

[144] In PHS, the government was ordered to grant an exemption under the Controlled Drugs and Substances Act, S.C. 1996, c. 19, to permit access to injection sites for addicts in order to avoid an infringement of s. 7 of the Charter. However, PHS, like Canada (Attorney General) v. Bedford, 2013 SCC 72, which dealt with harm to sex workers caused by the prohibition on bawdy houses, dealt with state action, or legislation, which blocked claimants from taking steps to reduce risk of harm.

[145] More recently, in Toronto (City) v. Ontario (Attorney General), 2021 SCC 34 at para. 152, Abella J., dissenting, remarked that "the distinction between positive and negative rights is an unhelpful lens for adjudicating Charter claims" as rights and freedoms "have both positive and negative dimensions." The majority said essentially the same thing at paragraph 20 of the judgment.

[146] The Respondent seeks to characterize this case as a positive rights case similar to the situation which arose in Barbra Schlifer Commemorative Clinic v. Canada (Attorney General), 2014 ONSC 5140. There, the government had created a risk-reduction mechanism involving control of firearms but had modified the law such that the risk reduction, while still present, was "not as much as before." E. M. Morgan J. stated that the government cannot be held to a "constitutional baseline" such that it cannot make legitimate policy choices in revising or amending legislation. Similarly, Sharpe J. (as he then was), stated in Dunmore v. Ontario (Attorney General) (1997), 37 O.R. (3d) 287, at p. 301 O.R. that "it cannot be the case that once [government] has acted in a manner that enhances or encourages the exercise of a Charter right, it deprives itself of the right to change policies and repeal the protective scheme."

[147] Dunmore was a case involving freedom of association in which the applicants sought to impose a positive duty on the province to create a legislative scheme conducive to collective bargaining for agricultural workers – clearly a positive rights claim.

[148] In Schlifer, Morgan J. held that any harm results from "non-state action – i.e., violence perpetrated by persons with firearms." Consequently, he treated the claim as obliging the state "to maximize life, liberty and security of the person and not just to refrain from depriving persons of those rights." Morgan J. found that s. 7 was not infringed because the applicants were unable to establish a causal link between the repeal of the registry and an increase in violence or death by firearms.

[149] However, those decisions do not mean that changes in policy or the repeal of a law are immune from Charter scrutiny; in particular, whether such government action which infringes the right to life, liberty and security of the person is arbitrary, overly broad or grossly disproportionate.

[150] Recently, in Mathur v. Ontario, 2024 ONCA 762, lv. to appeal denied, the Court of Appeal held that the application judge erred in treating a challenge to the downgrading of Ontario's climate change goals as a positive rights claim. That case, which is ongoing, involves a claim under s. 7 of the Charter that the reduction in the government's target to reduce greenhouse gasses and combat climate change infringes the rights to life and security of the person. In discussing the issue of positive rights, the Court of Appeal observed at para. 40, citing Chaoulli, that "while the Charter does not confer a freestanding positive right under s. 7 of the Charter to insist on government action… 'where the government puts in place a scheme' where it undertakes legislated actions 'that scheme must comply with the Charter.'" In Mathur, therefore, the Court of Appeal did not see the matter as a positive rights claim, but as a case challenging "the constitutional compliance of the government measures taken under the scheme."

[151] In this case, the Applicants are not asserting positive rights. The Applicants have been careful to limit their challenge to a specific provision of legislation that requires the government to take steps which affect the Applicants' rights. As was the case in Bedford, there is no assertion that the government has a positive obligation to provide something. There is no demand for new bike lanes. Rather, the Applicants ask the Court to strike down legislation – which is clearly government action – which will put people at risk by removing a safety feature on roads, something which only the government controls. There is a direct causal link to the state action which distinguishes this case from the situation in Schlifer.

[152] As in Mathur, the government's actions are taken in the context of a legislated scheme of road and traffic management, namely the City's creation of a network of bicycle lanes in accordance with regulations and directives such as the provincial Ontario Traffic Manual and the province's Statement of Environmental Values. The City has installed a network of bike lanes to encourage and expand the use of alternative means of travel in order to reduce congestion caused by motor vehicles and which will enhance safety. Aside from seeking to remove the target bike lanes and imposing the requirement that certain new bike lanes will require provincial approval based on guidelines or regulations (yet to be announced), the government is not tampering with the City's approach. The Minister professes to support bike lanes, just not on certain streets.

[153] Nor is the concern about governments establishing a benefit and being held to it as a constitutional "baseline" compelling. Section 7 of the Charter, among other things, provides a restriction on government when its actions arbitrarily cause harm to people. There is no exception permitting arbitrary action because the government may have previously taken steps to reduce harm. Put another way, governments may take steps that may put people in harm's way by removing something, but they can only do so if the actions are in furtherance of legitimate policy decisions as opposed to being arbitrary, overly broad, or grossly disproportionate to the government objectives. In Schlifer there was evidence that the government had consulted widely and, based on "a wide array of social science, statistical and expert evidence", had made a legitimate policy decision that could not be described as arbitrary or grossly disproportionate: at para. 79. That is not the case here.

The floodgates argument

[154] The Respondent submits that granting the application would make traffic issues, such as "stop signs, speed bumps, and speed limits questions of constitutional law, not highway engineering." Section 7, they argue, "was not intended to constitutionalize the myriad of factors that contribute to highway safety."

[155] The spectre of opening the "floodgates" to Charter challenges of road and traffic design must be treated skeptically. Early in the Charter jurisprudence, the Supreme Court warned against giving effect to "utilitarian" considerations, noting that "the guarantees of the Charter would be illusory if they could be ignored because it was administratively convenient to do so": Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177. As discussed below relating to the principles of fundamental justice, the Supreme Court explained similarly in Bedford that arbitrariness, overbreadth and gross disproportionality are not measured by "the percentage of the population that is negatively impacted": Bedford at para 123.

[156] In any event, the floodgates concern is speculative, based on circumstances that rarely arise. Road design and traffic engineering decisions are, as one would expect, decisions that are based on data and "highway engineering" advice. The Ministry of Transportation's multi-volume Ontario Traffic Manual is an example of principles which guide road and traffic design. In short, it is safe to conclude that most traffic and road design decisions are not made arbitrarily nor do they increase the risk of harm.

[157] In this case, however, there is no evidence that the government based its decision on data, manuals or expert "highway engineering", or that its decision would "contribute to highway safety." Rather, the evidence is to the contrary. The matter of removing the target bike lanes first arose in a statement by the Premier on October 22, 2024, after the Bill had been introduced. The Bill was passed in the face of internal advice and public representations, including from organizations with highway engineering expertise, that the removal of the target bike lanes would make those roads less safe and would not reduce congestion. Moreover, after passing Bill 212 the government retained CIMA, a highway engineering firm, which gave the government the same advice, that the removal of the bike lanes would lead to more collisions and injuries and that any "alleviation of congestion may be negligible or short-lived."

[158] There may be circumstances in which traffic decisions are taken which increase risk, but such decisions cannot be immune from Charter scrutiny. In R. v Michaud, 2015 ONCA 585, for example, a provision of the HTA requiring trucks to be equipped with speed limiters violated s. 7 because there was evidence that accelerating out of dangerous situations was sometimes required and could not be done because of speed limiters, thereby raising safety concerns. However, the Court of Appeal upheld the provision under s. 1 of the Charter as the speed limiter enhanced safety in the vast majority of cases and the speed limit chosen was found to be reasonable. By contrast, here the expert evidence shows that the impugned provision will substantially increase the number of collisions for all road users and will not achieve the objective of reducing congestion.

[159] The unusual facts of this case, therefore, rebut the floodgates argument, to the extent the argument is valid at all.

SECTION 7

[160] Section 7 of the Charter states:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[161] In order to demonstrate a violation of s. 7, the Applicants must first show that the law interferes with, or deprives them of, their life, liberty or security of the person. Once they have established that s. 7 is engaged, they must then show that the deprivation in question is not in accordance with the principles of fundamental justice: Carter v. Canada (Attorney General), 2015 SCC 5, at para. 55.

Right to life and security of the person

[162] The right to life is engaged where a law or state action creates an increased risk of death, either directly or indirectly: Carter, at para. 62. The right to security of the person encompasses "a notion of personal autonomy" and "control over one's bodily integrity." It is engaged when the law or state action negatively impacts or interferes with "an individual's physical or psychological integrity, including any state action that causes physical or serious psychological suffering": Carter, at para. 64. Like the right to life, the right to security of the person arises when state action increases the risks faced by an individual with respect to their physical or psychological well-being: Bedford, at paras. 58-60.

[163] As the Supreme Court recently stated in Canadian Council for Refugees v. Canada (Citizenship and Immigration), 2023 SCC 17 at para. 56, citing Bedford and Carter:

To establish a violation of s. 7 of the Charter, challengers must first show that the impugned legislation deprives them of life, liberty or security of the person. This analysis asks whether the legislation "engage[s]" those interests, in the sense that it causes a limitation or negative impact on, an infringement of, or an interference with them…. A risk of such a deprivation suffices. [citations omitted]

[164] The Court confirmed earlier holdings that the test for infringement is not a high one. The claimant "must show a causal link between state action and the violation of the right or freedom." Quoting from Bedford at para. 60 of Canadian Council for Refugees, the Court stated "that 'a sufficient causal connection' must be established, which does not require that the impugned state action 'be the only or the dominant cause of the prejudice suffered by the claimant'."

[165] The evidence on this application, including the advice to the government and information it had when it decided to enact the target bike lane provision, clearly establishes that removing the target bike lanes and replacing them with lanes for cars will make those roads less safe, for cyclists and for other users of the roads, resulting in an increased likelihood of collisions, injuries and death.

[166] Even before introducing Bill 212, the government was told by the Canadian Automobile Association that adding a protected bike lane "reduces collisions and injuries by 30 - 50%." This was echoed by the government's consultant, CIMA, engaged after Bill 212 was passed, which predicted that removing the target bike lanes will result in at least a 54% increase in collisions for all road users.

[167] This information is supported by the long-standing finding of the Chief Coroner in a report released in 2012 that segregated bike lanes could reduce cyclist deaths by 35%. Indeed, the City reported a 56% reduction in collision rates on a segment of the Bloor Street lanes despite a 90% increase in cycling volumes.

[168] The individual Applicants and the Executive Director of Cycle Toronto described the safety benefits to them of using protected bike lanes and the dangers of riding in mixed traffic, including the injuries they have suffered.

[169] There is also the compelling expert evidence of Dr. Rothman, whose conclusions are strongly supported by many studies that protected bike lanes are much safer than cyclists riding in mixed traffic, and that the removal of the target bike lanes and creation of more car lanes will lead to increases in collisions, injuries and fatalities. The government's evidence from an accident reconstruction expert, Mr. Raftery, provides no persuasive challenge to Dr. Rothman's evidence.

[170] Finally, the Bill itself recognizes that removal of the target bike lanes and restoring car lanes will cause accidents and injuries, as the government added ss. 195.10 – 195.14 to the Bill at the same time as s. 195.6 in order to insulate it from lawsuits arising from injuries and deaths that will flow from the removal of the protected bike lanes and restoration of lanes for motor vehicles.

The "choice" argument and lack of alternate routes

[171] The Respondent nevertheless asserts that cycling is a choice. It argues that the increased risk is assumed voluntarily by cyclists who may choose to continue to use the main streets after the target lanes are removed, and the risk is therefore not caused by state action. The Respondent submits that cyclists have alternatives, citing public transit and the "subway lines that run underneath each of the affected roads", though not, interestingly, using motor vehicles which would, of course, cause more congestion.

[172] This submission has no merit. The choice to ride a bicycle is not unconstrained. The evidence establishes that cycling in Toronto is often driven by reasons of reliability and affordability. For many, such as couriers, their livelihood depends on using bicycles.

[173] In Bedford, a similar argument was made that people choose to be sex workers and therefore bring the risks associated with it on themselves. The Supreme Court, however, observed that causation "does not require that the impugned government action or law be the only or the dominant cause of the prejudice suffered by the claimant, and is satisfied by a reasonable inference, drawn on a balance of probabilities": Bedford, at para. 76. In rejecting the government's "choice" argument in Bedford, the Supreme Court stated at para. 87:

The causal question is whether the impugned laws make this lawful activity more dangerous. An analogy could be drawn to a law preventing a cyclist from wearing a helmet. That the cyclist chooses to ride her bike does not diminish the causal role of the law in making that activity riskier. [Emphasis added]

[174] As to the argument that bike lanes on side streets provide adequate alternative routes, this is an assertion by counsel for the Respondent unsupported by any evidence from the government that there are feasible or practical alternative routes which would be used by cyclists instead of staying on the main streets. To the contrary, internal documents produced in this application demonstrate that the government itself was aware that it was "unable to assume that cyclists would move to secondary roads, even if encouraged", that such movement was "unknown/unlikely", and that this was simply an issue of "messaging" for the government.

[175] More significant, however, as the burden is on the Applicants, is the evidence that reasonable alternative routes do not exist and that riding on secondary roads in mixed traffic increases the risk of accidents and injuries.

[176] The City Manager stated that "for many sections" of the target bike lanes "there are no feasible alternatives." As the November 13, 2024 Report observed, while secondary roads are important to Toronto's cycling network, "without bikeways on main streets, the network would be disconnected and lack connectivity to key destinations", noting that these main streets are "full of activity, retail, essential services, community destinations, and employment hubs" and "are often more direct than neighbourhood alternatives, making them desirable for their shorter distances and travel times."

[177] The CIMA report raised similar concerns about alternative routes, as well as lack of connectivity and safety. It noted the "limited options for a direct and parallel route that provides access to key destinations" and that as a result "cyclists may continue to travel in mixed traffic or on sidewalks, which can lead to elevated risk of conflicts with other road users."

[178] The Applicants' evidence highlights the impracticality of alternative routes, as well as the increased risks associated with them. Dr. Saxe observed that "there are no viable alternatives to the Bloor Street and Yonge Street cycle tracks" and that while there is a "partial and less safe alternative" to the west of University Avenue it is only feasible if the Bloor Street track is maintained, and there is no feasible alternative to the east. A study cited by Dr. Saxe shows that 75% of people who bike will not take a route that is more than 10% longer than the shortest route. As she stated, alternative routes will not be taken because they will add significant travel times, and will result in cyclists riding in mixed, more dangerous, traffic.

[179] The link between the state action and the infringement, therefore, is real, not speculative, nor vitiated by a "choice." The infringement of the Applicants' right to life and security of the person is clearly established.

The principles of fundamental justice

[180] The Supreme Court stated in Carter, at para. 71, that "[s]ection 7 does not promise that the state will never interfere with a person's life, liberty or security of the person — laws do this all the time — but rather that the state will not do so in a way that violates the principles of fundamental justice."

[181] It has been well-recognized since the early days of the Charter that the principles of fundamental justice do not just address procedural rights but have substantive meaning, addressing basic values underpinning our constitutional order: Re BC Motor Vehicle Act, [1985] 2 S.C.R. 486; Bedford, at para. 96; Drover v. Canada, at para. 185. Three central principles have emerged: "laws that impinge on life, liberty or security of the person must not be arbitrary, overbroad, or have consequences that are grossly disproportionate to their object": Carter at para. 72. As the Court continued at para. 81 of Carter:

…the principles of fundamental justice are derived from the essential elements of our system of justice, which is itself founded on a belief in the dignity and worth of every human person. To deprive a person of constitutional rights arbitrarily or in a way that is overbroad or grossly disproportionate diminishes that worth and dignity. If a law operates in this way, it asks the rights claimant to "serve as a scapegoat" (Rodriguez, at p. 621, per McLachlin J.). It imposes a deprivation via a process that is "fundamentally unfair" to the rights claimant (Charkaoui, at para. 22).

[182] In Bedford, the Supreme Court summarized the issue this way, at para. 105:

The overarching lesson that emerges from the case law is that laws run afoul of our basic values when the means by which the state seeks to attain its objective is fundamentally flawed, in the sense of being arbitrary, overbroad, or having effects that are grossly disproportionate to the legislative goal. To deprive citizens of life, liberty, or security of the person by laws that violate these norms is not in accordance with the principles of fundamental justice.

[183] Determining whether a law is not in accordance with the principles of fundamental justice, then, involves considering the objective, or purpose, of the law, against its effects, to determine whether the law "is inadequately connected to its objective or in some sense goes too far in seeking to attain it": Hamish Stewart, Fundamental Justice: Section 7 of the Canadian Charter of Rights and Freedoms (2012), at p. 151, quoted in Bedford at para. 107.

Arbitrariness

[184] An arbitrary law, the Supreme Court instructs, exists "where there is no rational connection between the object of the law and the limit it imposes on life, liberty or security of the person." Put another way, "an arbitrary law is one that is not capable of fulfilling its objectives. It exacts a constitutional price in terms of rights, without furthering the public good that is said to be the object of the law": Carter, at para. 83.

[185] Under the Charter, arbitrary laws that violate s. 7 have been struck down in a range of contexts. In R. v. Morgentaler, [1988] 1 S.C.R. 30, the Supreme Court struck down Criminal Code provisions that required abortions to be approved by a therapeutic abortion committee of an accredited or approved hospital and that the procedure be carried out in a hospital. The Court found that those requirements did not contribute to the objective of protecting women's health, which was the purpose of the provisions. In fact, the evidence showed that the provisions caused delays that were detrimental to women's health. As summarized in Bedford at para. 98:

Thus, the law violated basic values because the effect of the law actually contravened the objective of the law. Beetz J. called this "manifest unfairness" (Morgentaler, at p. 120), but later cases interpreted this as an "arbitrariness" analysis (see Chaoulli v. Quebec (Attorney General), 2005 SCC 35, [2005] 1 S.C.R. 791, at para. 133, per McLachlin C.J. and Major J.).

[186] Other examples of arbitrary laws which violate s. 7 are found in cases such as Chaoulli (prohibiting private health insurance in order to protect the public health care system), PHS (refusal to exempt safe injection sites from drug possession laws), and R. v. Smith, 2015 SCC 34, at paras. 25-28 (prohibiting patients from using potentially useful medical marijuana derivatives).

[187] Considering whether a law is arbitrary does not involve balancing competing interests, nor is it a numbers game influenced by how many or how few people are affected. As the Court stated with respect to all three principles – arbitrariness, overbreadth and gross disproportionality – "none…measure the percentage of the population that is negatively impacted": Bedford, at para 123. Here, the Respondent has emphasized that more people drive cars than use bicycles, implying, if not specifically asserting, that people who drive cars take precedence over other users of our roads simply because there are more of them. Bedford makes clear that under s. 7 this is irrelevant.

[188] In this case, the ostensible purpose of the impugned provision is to reduce congestion in Toronto. Bill 212 is titled the Reducing Gridlock, Saving You Time Act, 2024. The preamble "recognizes that accidents and lane closures can worsen traffic congestion." The Premier and the Minister of Transportation very specifically stated that a purpose of the Bill was to get bike lanes off main streets in order to relieve congestion. The Minister said safety was an objective as well.

[189] The evidence presented by the Applicants, however, establishes that removing the target bike lanes and restoring lanes for motor vehicles will not alleviate congestion or save time, but will actually worsen congestion. The government was aware of this before enacting Bill 212. To the extent the objective of the Bill is to make roads safer, removal of the protected bike lanes will result in more accidents and injuries than occurred before their installation, which the government also knew before the Bill was enacted.

[190] As reviewed above, the government was also told that bike lanes have a positive impact fighting congestion. A Ministry briefing note in August 2024 described the benefits of bike lanes in reducing congestion and in making roads safer, citing the Canadian Automobile Association. A Cabinet Office Committee briefing note signed by the Minister of Transportation in September 2024 stated that "current data and research does not confirm that removing bike lanes that occupy a lane of traffic would significantly alleviate congestion." A Ministry of Transportation briefing note dated October 28, 2024, stated that it did not have data "to support a decision for removal" and went on to state that removal "may not have the desired goal of reducing congestion", observing that "cycling studies in North American and other large jurisdictions show bike lanes can have a positive impact on congestion and on safety of road users."

[191] At the Committee hearings and through the ERO consultation process, several well-informed organizations spoke against the removal of the bike lanes, confirming the then-undisclosed internal advice that the government had received. These organizations included the Association of Municipalities of Ontario, the Ontario Traffic Council, the Ontario Professional Planners Institute and the Ontario Society of Professional Engineers. No individual or organization spoke in favour of removing the target bike lanes, nor was any evidence presented to suggest that their removal would reduce congestion.

[192] The advice to the government from CIMA in January 2025 was no different, observing that any "alleviation of congestion may be negligible or short-lived due to other confounding factors or induced demand."

[193] Dr. Saxe's evidence is compelling and supported by studies and the application of the well-accepted phenomenon of induced demand. She recognized the possibility of a short-term benefit but states that over time, removing the cycle lanes will make motor vehicle traffic "much worse." It is simply not the case, as counsel for the government asserted in argument, that "four lanes are better than two." Increasing the number of lanes available to motor vehicles may allow more cars to travel on a road, but it will encourage, or induce, more people to use motor vehicles (i.e., induced demand) and cause more cars to be stuck in traffic, not less.

[194] The Respondent's evidence, from Dr. Haider, does not address the impact of the removal of the bike lanes and restoration of a lane for motor vehicles. As noted above, this is a surprising, but telling, omission. The Respondent's anecdotal evidence is entirely unpersuasive.

[195] The arbitrariness of s. 195.6 of the HTA is also seen in the City's response to Bill 212 contained in the City Manager's November 13, 2024 Report, citing research and well-accepted planning principles. As that Report stated: "Research and experience from across North America and around the world have shown that a connected and safe cycling network is a key part of mitigating traffic congestion in a growing city, while improving safety and mobility." The Report noted that the expansion of the cycling network has provided "thousands of residents with improved access to jobs, schools, health care, services, and activities", and specifically noted the importance of having bike lanes on main streets. This may be contrasted with the unsupported assertions of the Premier and the Minister which are contrary to the internal advice provided to them.

[196] The arbitrariness of the law is reinforced by the government's stated position that it is not against bike lanes but is only opposed to having them on main thoroughfares. Again, this is based on the unsupported assertions that bike lanes on main streets cause congestion and that it is safer to put them on side streets. The evidence on this application refutes both statements. Yet the Minister recently asserted in the Legislature that the bike lanes "have caused gridlock all across the city of Toronto."

[197] There is also uncontradicted evidence that there are very limited alternatives to the target bike lanes, and their removal on main streets will not move cyclists onto side streets. No explanation was provided as to why only the bike lanes on Yonge, University and Bloor were targeted, and not those on other main streets. In argument, counsel for the government said these streets have subways under them, which provide an alternative method of transportation. But there is no evidence that this had any influence on why the target lanes were selected; if that were the case, the government ought to have included the bike lanes extending east from the Bloor Viaduct for several kilometres along Danforth Avenue. The current s. 195.6 now includes Avenue Road, which does not have a subway running below it north of Bloor Street.

[198] As I have also noted, no credible explanation has been provided for the rewording of s. 195.6 in the Budget Bill passed on June 5, 2025. The government's position, however, is that the target bike lanes will be "ripped out."

[199] Removing the target bike lanes will impair the network of bike lanes developed by the City of Toronto, of which the target bike lanes are an integral part. It is also clear that removing or "reconfiguring" the bike lanes to make room for lanes for motor vehicles will increase the risk of accidents and impair the City's objective of reducing congestion through an efficient network of bike lanes.

[200] In Bedford, the Supreme Court stated at para. 119 that establishing "no connection" between the purpose of the law and its effects can be met in at least two ways: (1) by showing "that the effect actually undermines the objective and is therefore 'inconsistent' with the objective" (as in Morgentaler); or (2) that "there is simply no connection on the facts between the effect and the objective, and the effect is therefore 'unnecessary'" (as in Chaoulli).

[201] Here, the Applicants have met their burden of demonstrating no connection exists between the purpose of the impugned provision and its effects. The evidence shows that restoring motor vehicle lanes will not achieve the stated objectives of relieving congestion and making roads safer. Rather, the evidence establishes that removing the bike lanes and creating new lanes for cars will make congestion worse and the roads less safe. The law is therefore arbitrary and infringes s. 7 of the Charter.

Gross disproportionality

[202] In Bedford at para. 120, the Supreme Court stated that "the rule against gross disproportionality only applies in extreme cases where the seriousness of the deprivation is totally out of sync with the objective of the measure." The Court gave the example of a law which imposed a life sentence for spitting on the sidewalk and referred to its "draconian impact."

[203] Gross disproportionality considers the negative effects of the law on the individual, balancing them against the purpose of the law. The emphasis is on the impact of the law on the person or persons whose right to life, liberty or security of the person is infringed. Unlike the test under s. 1 of the Charter, which balances salutary and deleterious effects of a law, "gross disproportionality is not concerned with the number of people who experience grossly disproportionate effects; a disproportionate effect on one person is sufficient to violate the norm": Bedford at para. 122.

[204] In PHS, the refusal to grant the Insite clinic an exemption from the Controlled Drugs and Substances Act had the effect of denying health services to drug users which, the evidence showed, would result in an increase in death and disease for injection drug users. This was held to be grossly disproportionate to the public safety objectives of the drug possession laws. As McLachlin C.J.C. stated at para. 133:

Insite saves lives. Its benefits have been proven. There has been no discernable negative impact on the public safety and health objectives of Canada during its eight years of operation. The effect of denying the services of Insite to the population it serves is grossly disproportionate to any benefit that Canada might derive from presenting a uniform stance on the possession of narcotics.

[205] In this case, the evidence is clear that restoring lanes of motor vehicle traffic by removing the bike lanes, or reconfiguring them so that they are no longer physically separated from cars, will lead to more accidents, injuries and deaths. The government has recognized this, adding the immunity provisions at the same time as the target bike lanes provision. People who cycle as their means of transportation are vulnerable, and more so when riding in mixed traffic. It is reasonable to conclude that people who cycle will be injured and killed when lanes for motor vehicles are installed and protected bike lanes are removed. That impact is grossly disproportionate to the asserted benefit, taken at face value, of saving some drivers of cars a few minutes of travel time.

[206] The concern about disproportionality is also highlighted by the Interveners. For example, the Canadian Public Health Association observes:

Because of Ontario's actions, cyclists will be forced to choose between cycling at an increased risk of bodily harm and death or being excluded from major public roadways. There are serious equity implications to Ontario's decision: the perverse impacts will disproportionately fall on low-income and disabled individuals, increasing health inequities already experienced by these groups. Cycling has important public health benefits. Protected bike lanes ensure that they are available to all, regardless of age or physical and cognitive ability.

[207] The Intervener For Our Kids discusses the disproportionate impact of removing the target bike lanes on children. It highlights the benefits to children of making streets safer through the use of bike lanes, which will encourage bicycle use and all of the physical and environmental benefits which follow, arguing that their removal is contrary to the "best interests of the child." There is no indication the government considered this issue at all. As the Intervener's factum states: "While the legislature is at liberty to make policy that may be ineffective, it is constitutionally not at liberty to put children's lives at risk in pursuit of folly."

[208] Accordingly, the negative impact of the target bike lane provision on the rights of cyclists, and others, is grossly disproportionate to its objective and breaches the principles of fundamental justice.

SECTION 1

[209] Section 1 of the Charter states:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

[210] In order to find that a law is a reasonable limit, the burden is on the government to meet the test set out in R. v. Oakes, [1986] 1 SCR 103. This requires that the law be in furtherance of a pressing and substantial objective, that there be a rational connection between the effect of the law and the objective, and that the law be designed in a way that minimally impairs Charter rights including having regard to alternative measures. If those tests are satisfied, then the court must weigh the salutary and deleterious impacts of the law or, as put in Bedford at para. 126, "weigh the negative impact of the law on people's rights against the beneficial impact of the law in terms of achieving its goal for the greater public good."

[211] The Supreme Court has observed that laws which violate s. 7 are unlikely to be justified under s. 1; however, the proportionality test in s. 1 must be considered: Re BC Motor Vehicle Act, at p. 518; Bedford, at paras. 124-129.

[212] Here, the Respondent has met the first branch of the test. Bill 212, and the target bike lane provision, were passed with the objective of reducing congestion. This is a valid, pressing and substantial objective. However, as concluded above, there is no connection between the target bike lanes provision and the objective of the Bill. The evidence is that restoring lanes for motor vehicles will not reduce congestion or further the objective of the legislation. Therefore, the law fails the rational connection test and is not a reasonable limit on rights under s. 1.

[213] Nor does the law minimally impair the rights of cyclists; under the guise of reducing congestion the law puts people in harm's way. The government has led no evidence to rebut the Applicants' compelling position, supported by evidence, that removing the protected bike lanes will cause cyclists to ride in more dangerous mixed traffic as there are no practical or safe alternate routes for cyclists to use instead of the target bike lanes, and that cyclists will be injured, and worse, if the protected target bike lanes are removed.

[214] Finally, given the evidence that the benefit, if any, of removing the bike lanes will be negligible and short-lived, it cannot be said that the benefits of the law outweigh its negative impacts.

[215] Accordingly, s. 195.6 of the HTA is not saved by s. 1 of the Charter.

REMEDY

[216] In light of the conclusion that the target bike lane provision violates s. 7 of the Charter and is not saved by s. 1 of the Charter, I find that s. 195.6 of the Highway Traffic Act in the form enacted in 2024 to be inconsistent with the Charter, and I would have declared it to be of no force and effect, had it not been repealed.

[217] The constitutionality of the current provision was not, technically, challenged in this application, as it was enacted after the case was argued. However, the findings in these Reasons have application to the continuing controversy between the parties and the government's proposed action. Further, even if the matter is moot, I have exercised my discretion to decide the matter because, among other reasons, this decision can have some "practical effect on the rights of the parties."

[218] In R. v Appulonappa, 2015 SCC 59, at paras. 83-85, the Supreme Court read down a repealed section of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, in a manner that provided guidance for the application of that section in other cases. Although not specifically stated, the Supreme Court's decision provided guidance going forward. Similarly, here, the reasons for finding the earlier version of s. 195.6 of the HTA unconstitutional provide guidance for the application of the virtually identical section now in effect. This reasoning results in the conclusion that any steps taken to "reconfigure" the target bike lanes that removes their protected character for the purpose of installing a lane for motor vehicles in order to reduce congestion, would be in breach of s. 7 of the Charter and not be saved by s. 1.

COSTS

[219] Costs usually follow the event and are paid by the unsuccessful party to the successful party. There is no reason to depart from that general principle here.

[220] The Applicants were represented by counsel on a pro bono basis. However, as the Court of Appeal recognized in 1465778 Ontario Inc. v. 1122077 Ontario Ltd. at para. 35, cost awards to pro bono counsel "promotes access to justice by enabling and encouraging more lawyers to volunteer to work pro bono in deserving cases." This is especially applicable where, as here, the case raises important matters of public interest. On this basis, the Applicants are entitled to their costs.

[221] The government has now changed the law and taken the position that the case is moot. In such circumstances, the case law suggests that the government should pay costs, as it has effectively conceded that the law required changes: Regional Municipality of York v. Ontario (Minister of the Environment, Conservation and Parks), 2023 ONSC 5708 at paras. 30-35; Broomer v. Ontario (Attorney General) at para. 11. Accordingly, had I found that the matter was moot, I would also have awarded costs of the application to the Applicants.

[222] The Applicants shall therefore have their costs of the application on a partial indemnity basis fixed in the amount of $200,000.00, inclusive of HST and disbursements. This is approximately what is sought in the Applicants' Costs Outline and is precisely what the Respondent would have sought if it had been successful. It is, accordingly, an amount that the Respondent ought reasonably to have expected to pay in costs.

[223] The amount awarded includes costs of the original interim injunction motion heard by Firestone R.S.J. on March 11, 2025, which were reserved to me as the judge hearing the application: Cycle Toronto et al. v. Attorney General of Ontario et al., 2025 ONSC 1650 at para. 85. As I noted in my reasons granting an injunction following the argument of the full application, the government took no steps to remove the target bike lanes prior to April 16, 2025, making the earlier motion an unnecessary use of court time caused by the government's intransigence: Cycle Toronto et al. v. Attorney General of Ontario et al., 2025 ONSC 2424 at para. 37. The Applicants should therefore have their costs of that motion as well.

Paul B. Schabas J.

Date: July 30, 2025