An update on the Bloor Street court challenge from lawyer Albert Koehl, on behalf of the Safe Cycling Coalition
A loss in the courts – but nonetheless a step forward for cyclists
On October 29, 2008 the Ontario Superior Court of Justice rejected an
application for judicial review brought by William Ashley China Ltd. to declare that the City of Toronto’s decision to proceed with the Bloor St. Transformation Project was illegal. The ruling was a defeat for cycling advocates --- who intervened in the case --- but not a loss for the movement to make Toronto safe for cyclists.
The project is a $25 million redevelopment of Bloor between Avenue Rd. and Church St. undertaken jointly by the City and the local Business Improvement Area. The project will widen sidewalks, add trees, and remove 43 parking spaces -- but it squanders an important opportunity to reduce motor vehicle traffic (in fact volume and speed may actually increase) and to provide for bike lanes, even though this is one of the busiest --- and most dangerous --- cycling routes in Toronto.
A group of well-known cycling advocates created the Safe Cycling Coalition (the “Coalition”) and applied to the court for “intervenor” status, which was granted in mid-September of this year -- a first for Ontario cycling advocates.
The immediate issue in the case, heard on October 9, 2008 by a panel of
Divisional Court judges, was whether the City of Toronto had acted unlawfully in determining that there were no environmental assessment requirements under the Municipal Class Environmental Assessment (MCEA) for the project.
The City asserted, and the Court accepted, that the project had been properly
classified as Schedule A/A+ under the MCEA. This is the least onerous schedule and does not require the City to study alternatives, such as reducing motor vehicle traffic to accommodate bike lanes, or to consult with the public. This schedule generally applies to routine projects that are limited in scope.
The court ultimately decided that the City’s conduct was legal – specifically that the classification decision made by the City was “reasonable”. The Court also concluded that Ashley had waited too long to bring its application, especially given that it had been involved in the planning stages of the project for almost a decade.
Interestingly, the only evidence suggesting that the City classified the project at all came from the City’s Manager of Transportation Services who was not even involved during the relevant time frame. His assertion, made in an affidavit, was not contradicted in any other evidence. No affidavit was filed by the original City official who had simply concluded in 2001 that there were “no EA implications”. The City could not produce any document to show that a specific classification decision had ever been made. (Evidence on such court applications is generally made by affidavit, which are subject to cross-examination. As an intervenor the Coalition did not have the right to cross-examine the affiants or to present its own evidence.)
Arguably, Ashley was hamstrung by its choice of action. For it to challenge the City’s conduct it needed a decision to challenge, namely, the classification of the project under Schedule A/A+. And yet, the evidence was equally consistent with a conclusion that no classification had ever been made – except long after the fact when the City’s conduct came under scrutiny. Had Ashley proceeded under municipal law and challenged the by-law itself, it might have more forcefully argued that the City had made no classification decision at all, rendering the by-law illegal
The opportunity to intervene in the case was simply too good to pass up. Normally the biggest obstacle to bringing an action is that the loser may be ordered to pay the legal costs of the winner (although public interest litigants like the Coalition are less likely to suffer an adverse costs award, especially where they face a government body). When Ashley decided to bring the case itself, the Coalition could intervene with a minimal risk of a costs award. Ashley was ultimately ordered to pay $50,000 in legal costs to the City – in addition to its own legal fees. (The City agreed in advance not to seek costs against the Coalition.)
Despite the disappointing outcome, many positives can be taken from the case:
- Classification decisions under the MCEA have never been challenged in court, even though various versions of the MCEA have existed for 20 years. The complexity of the MCEA is generally an effective deterrent – indeed the case made clear that both City officials and the provincial ministry of environment (which is supposed to oversee the MCEA) were confused about the law and their own obligations. Now the public --- or at least cyclists --- understand the system and are ready to take the City to task for questionable or illegal planning decisions. The Court accepted that MCEA classifications of projects are indeed reviewable by a court (under a legal remedy known as certiorari).
- The Coalition brought to the case (both in court and in the media) the perspective of long-ignored but lawful public road users, namely cyclists. The Coalition also highlighted the importance of the province’s environmental assessment regime as a planning tool as well as the requirements of Ontario’s planning regime that has, since 2005, required that municipal planning decisions consider the safety of cyclists.
- By intervening, the Coalition also helped ensure that it would be part of any deal worked out between the City and Ashley to resolve this litigation. The case was obviously not resolved before trial, although the Coalition was invited to a meeting with senior City bureaucrats to discuss cyclists’ concerns.
- The case allowed the Coalition to add court actions to the toolbox of cycling advocates. Lobbying of councillors, public education, protests, parades … and now court actions. When cycling advocates had written to the City outlining their concerns about the Project in the spring and early summer of 2008, City officials did not even bother to respond. Now the threat of legal action will be credible and motivate government attention.
- Politicians are faced with many competing priorities and the attention they give to any particular item will often be determined by the price they have to pay for ignoring it – the greater that price, the more likely we are to get their attention, and action. This case got the attention of the City.
In many respects, however, the successes derived from the action will very much depend on how the decision is used. We can simply say it was a good experience and move on. This would be unfortunate. There is much to be learned – and much to be applied from that knowledge to future strategies. Thus, the conclusion of this court action has not necessarily been written.
Ultimately, if Toronto and other cities are to deal with the urgent problems of air pollution (and the high associated death toll) and global warming in a timely manner, then we need transformative, even revolutionary, change to our transportation system. And this will mean using all of the advocacy tools in our toolbox. Court actions are now one of them.
The Safe Cycling Coalition is comprised of Angela Bischoff, Martin Reis, Margaret Hastings-James, Hamish Wilson, and Kristen Courtney.
Albert Koehl is an environmental lawyer that represented the Coalition.