David Donnelly on Anti-SLAPP Bill 52 Controversy
Bill 52, the Protection of Public Participation Act, was debated at Queen's Park again this week. Bill 52 is designed to prevent SLAPP suits (Strategic Litigation Against Public Participation), where deep-pocketed corporations bring frivolous lawsuits against grassroots critics (often citizen’s groups and environmental groups) in order to intimidate and silence them. MPP Jagmeet Singh (Bramalea-Gore-Malton) began the debate, commenting:
“It’s my pleasure to continue debate on this important piece of legislation. What I discussed earlier was how important this bill was in terms of protecting public participation. It’s, again, a hallmark of our society that people need to be able to participate in discourse, particularly on matters that impact their communities, so it should go without saying that people should be encouraged, not discouraged, from participating in issues that affect where they live and how they live. This law will address that.” (http://ow.ly/KUkeW)
Although Bill 52 has wide support across all political parties, controversy has arisen over whether the Bill should protect all alleged SLAPP suit victims currently before the Courts.
If enacted as written, the anti-SLAPP “freeze” provision (reproduced below) applies only to potential SLAPP suits started on or after December 1, 2014. The previous version of this Bill, which died in the House when the June 2014 election was called, would have applied to ongoing litigation.
David Donnelly was asked for his take on this issue by Brian Platt of QP Briefing. While David`s preference is for Bill 52 to apply to ongoing lawsuits, the opposing view can be justified too:
“It’s not a black-and-white issue, because if you brought a lawsuit under one set of assumptions, I think you can make the claim that you should be able to see the action through under the law of the day, but any disappointment we feel over the retroactivity change is more than made up for in the euphoria that this bill is finally going to start protecting people.”
Read Platt’s March 26, 2015 article “Concerns of favouritism raised after retroactive provision scrubbed from nuisance-lawsuit bill” at http://www.qpbriefing.com/2015/03/25/concerns-of-favouritism-raised-after-retroactive-provision-scrubbed-from-nuisance-lawsuit-bill/. (Subscription service)
Want to learn more about anti-SLAPP legislation? Read Donnelly Law’s summary of Bill 52.
Donnelly Law Comments on Ontario's Municipal Class Environmental Assessments
On January 23, 2015, Donnelly Law submitted comments to the Ministry of the Environment and Climate Change (“MOECC”) suggesting how to improve the environmental assessment process for municipal infrastructure works, known as the Municipal Class Environmental Assessment (“MCEA”). The MCEA is a critical document that establishes a planning and approval process for a wide range of municipal infrastructure works e.g. road widenings, bridge replacements, water and sewage works, etc. In summary, Donnelly Law’s recommendations are:
- Require all Class EAs to consider climate change. From the evaluation of preferred alternatives to the later detailed design, climate change impacts, mitigation and adaptation should be required;
- Require municipalities to publish their rationale for the choice of Class EA process (known as the project schedule) that dictates, among other thing, how rigorous the EA, and if public consultation should occur at all;
- Require municipalities to post the entire Class EA Project File online prior to the comment period. Why should members of the public need to wait to receive a copy, pay the municipality for a copy, or have to spend hours at the library to view the EA documents, which have likely been provided to the municipality in electronic format?
- Remove the unfounded MCEA restriction on bump-up requests to the Minister. The MCEA states there is no ability for the public to request a bump-up on “minor” Class EAs i.e. Schedule A/A+. In our opinion, this is contrary to the Environmental Assessment Act. Why does this matter? Reading the MCEA may prevent an individual from requesting a more stringent EA e.g. where they believe a municipality has misclassified proposed infrastructure works;
- Give more weight to identified and proposed cultural heritage resources in the selection of preferred alternatives. In our experience, heritage resources e.g. First Nation burial sites, pioneer homes, etc. are not given enough weight in the selection of preferred alternatives. New road works should fit into a designated/proposed heritage area, not detract from it; and
- Protect recognized planning areas and natural heritage features e.g. Oak Ridges Moraine or Niagara Escarpment, by simultaneously requiring the completion of technical work specific to the planning area, as anticipated to be done with the Clean Water Act.
These comments were submitted to the MOECC through the Environmental Registry to put the MOECC on notice that the Class EA process requires more than the changes recommended by the Municipal Engineers Association, which do not address the changes the Class EA process requires.
Anti-SLAPP Bill Reintroduced in Legislature
On December 1, 2014, Minister Madeleine Meilleur reintroduced legislation to protect public participation and freedom of expression from SLAPP lawsuits, Strategic Litigation Against Public Participation. Bill 52, the Protection of Public Participation Act, is an important bill designed to prevent SLAPP suits, where deep-pocketed corporations and developers bring frivolous lawsuits against grassroots critics (often citizen’s groups and environmental groups) in order to intimidate and silence them. Ontario’s previous Attorney General, the Honourable John Gerretsen, introduced a nearly identical bill in June 2013. On introducing Bill 52 to the Legislative Assembly, Minister Meilleur stated “As members will recall, the proposed Protection of Public Participation Act seeks to balance the protection of public participation and freedom of expression and the protection of reputation and economic interests.”
Bill 52 is designed to stop potential SLAPP suits dead in their tracks. The key section is the “freeze” provision in section 137.4, which gives the target of a potential SLAPP suit the power to automatically stop related proceedings e.g. a development application before the Ontario Municipal Board:
"If the responding party has begun a proceeding before a tribunal, within the meaning of the Statutory Powers Procedure Act, and the moving party believes that the proceeding relates to the same matter of public interest that the moving party alleges is the basis of the proceeding that is the subject of his or her motion under section 137.1, the moving party may file with the tribunal a copy of the notice of the motion that was filed with the court and, on its filing, the tribunal proceeding is deemed to have been stayed by the tribunal." [Emphasis added]
This means the alleged SLAPP suit must be resolved before the administrative tribunal proceeding is resumed, thereby delaying the issuance of approvals to a developer using SLAPPs to prevent people from speaking out. This section of the Bill should discourage potential SLAPP suits. While the party that filed the potential SLAPP suit can ask the Court by way of motion to lift the freeze on the administrative tribunal proceeding so it can proceed, this motion requires extra time and money, and removing the freeze is not guaranteed (subsection 137.4(4)).
If the Court finds a law suit is indeed a SLAPP suit, the court can order the costs of the SLAPP suit victim e.g. lawyer’s fees be covered by the other party under section 137.1 of the bill, as follows:
Costs on dismissal
(7) If a judge dismisses a proceeding under this section, the moving party is entitled to costs on the motion and in the proceeding on a full indemnity basis, unless the judge determines that such an award is not appropriate in the circumstances.
Costs if motion to dismiss denied
(8) If a judge does not dismiss a proceeding under this section, the responding party is not entitled to costs on the motion, unless the judge determines that such an award is appropriate in the circumstances.
Damages
(9) If, in dismissing a proceeding under this section, the judge finds that the responding party brought the proceeding in bad faith or for an improper purpose, the judge may award the moving party such damages as the judge considers appropriate.
If passed as currently drafted, Bill 52 will apply to potential SLAPP suits started on or after December 1, 2014.
Background
Four years ago, the Ontario government empanelled the anti-SLAPP Advisory Committee to advise it on how to address SLAPP suits. The Advisory Committee produced a report to the Attorney General that is reflected in Bill 52. If Bill 52 is enacted, Ontario will join Quebec, the only other province with anti-SLAPP legislation.
Since then, over 60 municipalities, academics, the Ontario Bar Association, Environmental Defence and over 150 other environmental organizations have expressed support for anti-SLAPP legislation.
Read the Environmental Defence Blog here.
View the Attorney General's Press Release here.
Greenbelting Halifax: One Step Closer to Reality
On November 17, 2014, Halifax Regional Municipality (“HRM”) issued a Request for Proposal (“RFP”) for a qualified firm to “go beyond the conventional parks planning approach” to develop HRM’s Greenbelting and Open Spaces Priorities Plan. Donnelly Law will review the Greenbelting RFP to ensure HRM Staff is ambitious with its plan to protect and connect HRM’s natural heritage, cultural landscapes, open spaces, and agricultural lands. Our HRM Alliance, a group of organizations from the Halifax area, envisions a Greenbelt that establishes a permanent development boundary around Halifax to control sprawl, reduce servicing and infrastructure costs, connect green spaces and provide public access to the coastline. Over the past several years, David Donnelly and Donnelly Law have been supporting the terrific work of Our HRM Alliance and the Halifax Ecology Action Centre (“EAC”) in advocating for the establishment of a Greenbelt for Halifax.
As part of the Greenbelt planning exercise, David Donnelly and Bruce Lourie (President, Ivey Foundation) were invited to deliver the 2011 Carmichael Lecture, the premier civic discussion of policy and urban design for Halifax. David has also presented at Our HRM Alliance workshops, sharing his experience on establishing Ontario’s Greenbelt Plan, which will mark its 10th Anniversary next year.
Private Member’s Bill to Repeal the Niagara Escarpment Planning and Development Act Defeated on Second Reading
On October 21, 2014, MPP Jack MacLaren (Carleton-Mississippi Mills) introduced Bill 32, the Bob Mackie Act¸ 2014, into the Ontario Legislature. The purpose of Bill 32 is to repeal Ontario’s Niagara Escarpment Planning and Development Act (“NEPDA”). The NEPDA was passed in 1973 by the Progressive Conservative government of Premier Bill Davis. The Niagara Escarpment Plan (“NEP”) was approved by Premier Frank Miller’s (Progressive Conservative) Cabinet on June 12, 1985. The NEPDA and NEP “provide for the maintenance of the Niagara Escarpment and land in its vicinity substantially as a natural environment, and to ensure only such development occurs as compatible with that natural environment.” (s. 1, NEPDA) The NEP regulates a range of development, from residential housing to aggregate extraction to recreational uses. Ontario’s Niagara Escarpment is a UNESCO World Biosphere Reserve, significant landform and working countryside recognized as a significant landscape provincially and internationally.
The NEP is subject to a formal review in 2015. The Niagara Escarpment Commission and Ministry of Natural Resources have begun their preparations for the formal review. The 2015 NEP Review will be coordinated with the provincial review of the Greenbelt Plan, Oak Ridges Moraine Conservation Plan and the Growth Plan for the Greater Golden Horseshoe Review.
Bill 32 is named after Mr. Bob Mackie (now deceased), a past governor of the Ontario Landowners Association and president of the Niagara Landowners Association.
On November 6, 2014, MPP MacLaren (Progressive Conservative) moved second reading of Bill 32, Bill Mackie Act, 2014, repeal the Niagara Escarpment Planning and Act Development the Ontario Legislature. Bill 32 was defeated on second reading by a vote of one for and 44 against, including Conservative MPPs.
David Donnelly Comments on Development in Midhurst
Development plan divides Simcoe County village
RACHEL MENDLESON / TORONTO STAR
In a rural village in Simcoe County, concerned residents have turned the municipal election into a referendum on growth, and to some extent, the province’s efforts to limit sprawl in the fertile farmland north of the protected Greenbelt.
[...]
However, according to environmental lawyer David Donnelly, who has been involved in a number of land-use battles in Simcoe County, the special rule is “one of the most extreme examples in Ontario of ministerial discretion being used (to) bypass planning laws designed to limit urban sprawl.”
“The Midhurst special rule is like hitting the jackpot in a lottery, when the government only sold one ticket,” he said.
Read the recent article in the Toronto Star found here
Halton Region Passes Unanimous Resolution to Legislate Against SLAPP Suits
In a unanimous 20-0 vote, Halton Region Councillors voted to send a message to Premier Kathleen Wynne, asking that she re-introduce Bill 83, An Act to Amend the Courts of Justice Act and the Statutory Powers Procedure Act in order to protect expression on matters of public interest. The Resolution reads in part: "THEREFORE BE IT RESOLVED THAT the Council of the Regional Municipality of Halton advise the newly elected Premier of the Province of Ontario, the Honourable Kathleen Wynne, and its local members of Provincial Legislative Assembly of its support for the protection of Public Participation Act, 2014 and request that Bill 83 be re-introduced forthwith in the Legislature"
The Resolution was most likely adopted in response to two recent events: Members of the Rural Burlington Greenbelt Coalition (and Donnelly Law clients) were SLAPPed with a $100,000 defamation lawsuit for speaking out against continued dumping of large amounts of fill, contrary to Burlington’s by-laws; and Burlington Council recently also unanimously adopted a Resolution asking Queen’s Park to make anti-SLAPP legislation a priority for the new session.
Read the recent article in the Hamilton Spectator found here.
Halifax Regional Municipality 5-year Regional Plan Approved by Council
For Donnelly Law’s client the Ecology Action Centre (“EAC”), the regional plan’s commitment to a Greenbelt and Public Open Spaces Priorities Plan is considered a major achievement for Halifax. “I feel much more hopeful about the future of this city as we emerge from this process. […] it is great to see planning and a regional plan be taken seriously inside and outside of City Hall” said Mark Butler of the EAC.
Greenbelting – legislation that protects large tracts of land from development– was featured by environmental lawyer David Donnelly and Ivey Foundation President Bruce Lourie in their keynote address at the 13th Annual Carmichael Lecture in Halifax, on March 6th, 2011. Since then, the two have been an integral part of HRM’s RP+5 by providing on-going expertise and advice to the EAC, HRM Alliance, and the Region.
“It was a long time in the works, but we’re very pleased it has passed. We think the plan is significantly strengthened from seven and a half years ago” said Raymond Plourde of the EAC.
While there is still a long way to go in terms of development, the settlement between the Region, City, and stakeholders is a significant step forward. As Mayor Mike Savage put it, “I don’t think you should ever let perfect be the enemy of better. And this is much better”.
David Donnelly, Margaret Atwood and Midhurst Ratepayers’ Association to Premier Wynne: Stop the Midhurst Development
On Sunday June 22, 2014, David Donnelly joined Margaret Atwood and the Midhurst Ratepayers’ Association (“MRA”) in asking Premier Wynne to close the Midhurst development loophole. David spoke at the “Celebration of Rural Living”, along with Margaret Atwood, Shirley Boxen (Food and Water First), and Sandy Buxton (MRA), emceed by Dale Goldhawk. Listen to David’s remarks here.
Midhurst, a small village in the Township of Springwater (north of Barrie), is home to about 3,500 people. In January 2013, the Province added a new provision to the regulation implementing the Places to Grow Act, making room for an additional 25,000 people on prime agricultural land, upstream of the Minesing Wetlands, a Ramsar Wetland of International Importance.
Learn more about the proposed development here.
Ontario Court of Appeal Rejects Appeal, City of Burlington Can Enforce Fill By-law and Protect the Environment
Burlington Airpark Inc. (“Airpark”) is the owner and operator of the Burlington Executive Airport, an aerodrome, located in the City of Burlington within the Protected Countryside Area of the Greenbelt Plan and adjacent to the Niagara Escarpment Plan Area. For over five (5) years, Airpark has been bringing substantial quantities of fill onto their property to build up their runway.
In the spring of 2013, the City of Burlington issued an order to Airpark to comply with fill by-law 6-2003. The City of Burlington by-law 6-2003 states:
"No person shall place or dump fill on or alter the grade of any lands in the City without having first obtained a Site Alteration Permit. A person applying for a Permit must certify that the fill contains no contaminants within the meaning of the Environmental Protection Act. An applicant for a permit must submit a Control Plan, certified by an Ontario professional engineer. The City may also require random testing of any fill before it is placed on the site or removed on it."
The City of Burlington had concerns with the amount of fill deposited, adverse drainage effects from the imposition of gradient and slope changes, and possibility for contamination by pollutants entering area groundwater.
Airpark refused to comply with City of Burlington by-law 6-2003 arguing that they fell under federal jurisdiction and thus were not obligated to comply with municipal by-laws.
In the fall of 2013 the City of Burlington filed an application with the Ontario Superior Court of Justice requesting:
a)An order determining Burlington’s rights under the Municipal Act 2001, SO 2001c. and the Constitution act, 1867 to enforce by-laws relating to fill operations at an aerodrome operated by the respondent;
b)A declaration that Burlington’s by-law 6-2003 is valid and binding upon the respondent in respect to its activities at the airport; and
c)An order requiring the respondent to comply with the by-law forthwith.
The Ontario Superior Court held that municipal by-laws regarding fill do not intrude onto Parliament’s core jurisdiction over aeronautics and are thus applicable. In Justice Murray’s November 13, 2013 decision he states at paragraph 19:
"There is little doubt that the runway construction must comply with the federal specifications relating to slopes, surfaces of runways, runway shoulders and the slopes and strength or runway shoulders. However, requiring Airpark to use clean fill regulated by the municipality for the benefit of other residents in the municipality will not be permanently reflected in the structure of the finished product in the sense meant by Justice Beetz. The by-law is not an attempt by the municipality to regulate slopes or surfaces of runways, runway shoulders or the slopes and strength of runway shoulders. While regulating the quality of fill may have an impact on the manner of carrying out a decision to build airport facilities in accordance with federal specifications, such regulations will not have any direct effect upon the operational qualities or suitability of the finished product which will be used for purposes of aeronautics."
On June 11, 2014 the Superior Court of Justice heard argument regarding the appeal from Burlington Airpark Inc. of the decision of Justice Murray of the Superior Court of Justice. Donnelly Law attended the hearing.
The Superior Court decision in the Burlington Airpark Inc. matter was rendered on November 13, 2013 by Justice Murray. In his decision, Justice Murray states that compliance with the Burlington by-law will not impair federal aeronautics power or create an operational conflict between the provisions of the by-laws and federal aeronautics power. The appeal raised the question whether the City of Burlington fill by-law is a significant and serious intrusion into Parliament’s core jurisdiction over aeronautics.
Burlington Airpark Inc.’s lawyer, Mr. Peter Wells, presented his case addressing the following main points:
1.Justice Murray failed to properly apply inter-jurisdictional immunity;
2.Making the City of Burlington By-law applicable to the Airpark would effectively prevent or control the airport construction which is outside of the jurisdiction of the municipality.
Mr. Wells then argued a motion for leave to adduce additional evidence. This evidence was deemed to be irrelevant to the issue before the Court and was dismissed.
Once Mr. Wells completed his submission to the Court, the court recessed for 10 minutes. Upon returning, Counsel for the City of Burlington, Mr. Ian Blue, was informed that the Court did not need to hear oral submission from him but merely wanted to ask him one question. Justice Simmons asked Mr. Blue what the intention of the by-law was. Mr. Blue answered that the intention of the City of Burlington has always been the monitoring of fill on the site with respect to contamination. The City of Burlington has not nor is it interested in regulating the slopes grade or other aspects of the construction of the Airpark runway.
The Court recessed for another 10 minutes and returned with its final decision. The decision was rendered orally by Justice McPherson who first thanked counsel for their helpful and well written facta. Justice McPherson rendered an oral decision stating that the Court did not agree with Mr. Well’s argument and would uphold the decision of Justice Murray dismissing the appeal.
Anishnawbe Health Toronto: Report reveals large number of Aboriginal Torontonians die prematurely
Anishnawbe Health Toronto (“AHT”) has released a watershed study, Early Death Among Members of Toronto’s Aboriginal Community: Walking in Their Shoes. The study shows that a large number of Aboriginal individuals in Toronto are dying prematurely – meaning they are passing away long before would be expected for the non-Aboriginal Torontonian. The study documents AHT’s clinical observations at AHT and three other Aboriginal health and social service centres. The study asks, “How much earlier?” The average person in Toronto has a life expectancy of 75 years. The report found the average Aboriginal person who attended one of the health and social service clinics studied has an average lifespan of 37 years, and 34 years for Aboriginal men or about half the life expectancy of a non-Aboriginal male Torontonian. This report was presented to Toronto City Council several weeks ago. AHT is a community health centre that operates to improve the health and well-being of Aboriginal people in Toronto, providing access to traditional Aboriginal and modern health services. Donnelly Law is proud to be part of the AHT Project Team working on AHT’s new facility in Toronto’s West Don Lands.
On March 31, 2014 the Government of Ontario and AHT announced the transfer of land in the West Don Lands from the Province to AHT to build a dynamic, world-class Aboriginal community health and cultural centres after the Pan Am and Parapan Games. This ends AHT’s long journey, assisted by David Donnelly, to find land for its new facility.
Please find the Government of Ontario’s press release about the land transfer here: http://news.ontario.ca/moi/en/2014/03/supporting-urban-aboriginal-health-culture-and-economic-growth.html
Read more on AHT’s Report here: http://knlive.ctvnews.ca/life-expectancy-for-aboriginal-users-of-community-health-clinics-in-toronto-is-37-report-1.1781398
Significant Changes for Aboriginal Interests in Ontario's Provincial Policy Statement, 2014
On February 24, 2014, the Ontario Government released the Provincial Policy Statement, 2014 (“PPS 2014”), not previously updated since 2005. The PPS 2014 is Ontario’s foundational land use planning policy: all decisions affecting land use planning decisions in Ontario “shall be consistent” with the PPS. Now, for the first time, the PPS includes references to Aboriginal people. This is a watershed inclusion that removes persistent flouting of the constitutional duty to consult with Aboriginal communities in the Planning Act. Donnelly Law had litigated and advocated on behalf of its former client, the Huron-Wendat Nation, for this inclusion regarding two critical issues: notice and consultation with Aboriginal communities, and protection of significant Aboriginal cultural heritage sites.
The key highlight from the PPS 2014 is the Province finally requires consultation with Aboriginal communities in Ontario in section 4.3:
“This Provincial Policy Statement shall be implemented in a manner that is consistent with the recognition and affirmation of existing Aboriginal and treaty rights in section 35 of the Constitution Act, 1982.”
The Planning Act itself does not formally require consultation with Aboriginal communities. This single sentence means that planning authorities and the Ontario Municipal Board will be required as of April 30, 2014 to implement the PPS in a manner consistent with Canada’s Constitution. In other words, there is finally a mandatory requirement to consult and accommodate Aboriginal interests in land use planning decisions. This is consistent with David Donnelly’s (then at Gilberts LLP) submissions to the Province concerning environmental assessment, dating back to the 2003 private prosecution known as Milroy. (Read this decision here.)
The second highlight for Aboriginal rights in the 2014 PPS is section 2.6.5:
“Planning authorities shall consider the interests of Aboriginal communities in conserving cultural heritage and archaeological resources.”
The 2014 PPS adopts Donnelly Law’s 2010 and 2012 key recommendations for consultation with Aboriginal communities and will lead to more sites protected. Donnelly Law made submissions to the Ministry of Municipal Affairs and Housing (“MMAH”) in 2012 that the Province’s draft proposed section 2.6.5 be strengthened from the then merely supportive language of “should consider” to the mandatory “shall consider”. This is a critical change. As reported by Justice Linden in the Report of the Ipperwash Inquiry, approximately 2,000 significant Aboriginal sites were destroyed by development in Southern Ontario between 1951 and 1991. The PPS 2014 should help ensure this unbelievable level of destruction is not repeated.
Other key highlights on Aboriginal Rights in the PPS 2014:
- The PPS 2014 recognizes for the first time the importance of consulting with Aboriginal communities. (See Part IV, Vision for Ontario’s Land Use Planning System: The Province recognizes the importance of consulting with Aboriginal communities on planning matters that may affect their rights and interests.)
- The PPS 2014 supports coordination of planning matters with Aboriginal communities. (See Section 1.2, Coordination: 1.2.2 Planning authorities are encouraged to coordinate planning matters with Aboriginal communities.)
- The PPS 2014 recognizes that built heritage resources and cultural heritage landscapes include Aboriginal resources and landscapes. (See section 6.0, Definition. “Built heritage resource”: Built heritage resource: means a building, structure, monument, installation or any manufactured remnant that contributes to a property’s cultural heritage value or interest as identified by a community, including an Aboriginal community; and “Cultural heritage landscape”: Cultural heritage landscape: means a defined geographical area that may have been modified by human activity and is identified as having cultural heritage value or interest by a community, including an Aboriginal community.)
In the past, municipalities did not have to undertake any Aboriginal consultation because the Province had not “expressly or impliedly” delegated procedural aspects of the duty to consult, beyond the arguably unconstitutional notice provisions in three regulations under the Planning Act. Those regulations require only consultation with Aboriginal communities within one kilometre of a proposed development site – regardless of cultural affiliation. (See s. 5(9)(19) of O. Reg. 545-06.)
David Donnelly and Donnelly Law has been advocating for changes to Ontario’s planning policies and law to recognize Aboriginal interests and rights for over a decade. This work focused two key outcomes, described below.
1. Proper Notice and Consultation
There was no requirement in the Planning Act for consultation with Aboriginal communities, even if land use planning decisions may impact on Aboriginal rights, unless an Aboriginal community lived within one kilometre of the proposed development.
This situation is similar to past environmental assessment policy that was challenged by David Donnelly, then at Gilbert’s LLP, in the Milroy Prosecution. In this private prosecution against Ontario Realty Corporation (“ORC”), the predecessor to Infrastructure Ontario, the Ontario Court of Justice found ORC guilty of failing to conduct a proper environmental assessment before disposing of property with ancestral Wendat sites, since ORC did not consult with Aboriginal people. As a result of this litigation, the Ministry of the Environment changed the procedure on its Municipal Class Environmental Assessments to require consultation with Aboriginal communities. Further, in the proposed Seaton development, the subject lands of the environmental assessment, underwent an extensive consultation processes with impacted First Nations as a result of the Milroy decision.
While policy under the environmental assessment process has changed, until the new 2014 PPS, the Province made no move to incorporate Aboriginal consultation into planning matters. Donnelly Law challenged the constitutionality of Planning Act regulations that only require notice to First Nations within one kilometre of the proposed development project in an appeal of the York Region Official Plan. York Region agreed to and undertook Aboriginal consultation to develop an Archaeological Management Plan and procedure for ensuring notice is received by potentially affected Aboriginal communities, regardless of proximity from a development proposal. (Read our motion materials.)
2. Protection of Significant Aboriginal Cultural Heritage Sites and Landscapes
Thousands of Aboriginal heritage sites have been destroyed in Ontario due to development since the 1950s.
In 2005, David Donnelly represented the Founding First Nations Circle (“FFNC”) at the Ipperwash Inquiry, bringing submissions to Justine Linden for legal reform to protect Aboriginal cultural sites from destruction. The FFNC sought involvement for First Nation descendants to be involved in challenging decisions to remove Aboriginal cultural heritage sites.
A recent example of the difficulty in protecting significant Aboriginal heritage sites is the Skandatut village site in Vaughan, Ontario. In Vaughan, a private land developer tried several times to excavate the Skandatut site to make way for a new sub-division, without the consent or knowledge of the Huron-Wendat Nation. Huron-Wendat Nation counsel in Ontario David Donnelly (Donnelly Law) prepared an injunction and proceeded to Ontario Court asking for a stop-work order for Skandatut and other Aboriginal cultural heritage sites. The Ontario Minister of Culture intervened and exercised his discretion under the Ontario Heritage Act to issue his own Stop Work Order to temporarily preserve Skandatut. The Minister also ordered mediation between the landowner, City of Vaughan and Huron-Wendat Nation. After years of effort, mediation and court action, a settlement was reached by the City of Vaughan, the landowner and the Huron-Wendat Nation. The Skandatut site comprises the archaeological remains of a large and heavily fortified, late sixteenth-century ancestral Huron-Wendat village. It represents the most recent in a series of related major Huron-Wendat villages located along the Humber River valley north of Woodbridge in the City of Vaughan. In its time, Skandatut was at the centre of trade and diplomacy in the Great Lakes Region, its location and size made it the “capital” of central Ontario. It housed upwards of 1,500 to 2,000 Huron-Wendat members in 40 to 50 longhouses. Most importantly, Skandatut overlooks the former location of its burial grounds, the Thonnakonah Ossuary (formerly known as the Kleinburg Ossuary), located 500 metres west, that at one time contained the remains of 561 individuals who lived and died at Skandatut.
Advocacy regarding the Provincial Policy Statement
Donnelly Law is pleased parts of its submissions on the PPS in both 2010 and 2012 have been included in the PPS 2014:
- Explicit reference to s. 35 of the Constitution Act, 1982;
- Explicit reference to Aboriginal interests in cultural heritage and archeology in section 2.6; and
- Reference to Aboriginal interests and communities in the definitions for built heritage resources and cultural heritage landscapes.
Donnelly Law on the Recent Oak Ridges Moraine Victory
On January 27, 2014, the Ontario Municipal Board (“OMB”) denied a planning application submitted by Mr. Peter Eliopoulos to allow a massive outdoor wedding/banquet facility in King Township in the Countryside Area of the Oak Ridges Moraine Conservation Plan (the “ORMCP”). The decision was featured in the Toronto Star, with David Donnelly saying: “Putting large-scale, car-dependent commercial activities in some of the most beautiful and natural country in southern Ontario would have been a big mistake,” said lawyer David Donnelly, who represented local residents at the OMB hearing. “If you believe that King Township is horse country and not paintball country, then this is a big decision for the Oak Ridges Moraine.”
The parking lot alone would host up to 600 people plus staff, making it the largest parking lot in King Township. The banquet and wedding proposal included three garden areas with tent-like structures (solid floors and three solid sides). The outdoor event/banquet facility would be operated by a business that runs several other event venues with package deals for weddings and bar mitzvahs.
The property, at 3550 18th Sideroad, King Township, has been the subject of controversy for years. Over many years, a long canal and pond were bulldozed on the site, in contravention of the Township’s Site Alteration By-law, creating a “water feature” that extends over one kilometre-long and is estimated to have the same capacity as 14 Olympic size swimming pools! The property was downgraded from Prime Agricultural to Rural in 2013.
King Township Council voted unanimously on August 26, 2013 to oppose the application. The Stewards of the Moraine (the "Stewards") was also opposed to the application, and received party status at the OMB.
The Oak Ridges Moraine, one of Ontario’s most significant landforms, is protected by the ecologically-based ORMCP. The Stewards is pleased by the decision of the OMB that halted in its tracks an inappropriate development that could have set a dangerous precedent for more inappropriate development on the Moraine, just a few short months before Ontario begins its mandatory review of the ORMCP.
The OMB hearing focused only on whether the outdoor banquet facility was permitted by the ORMCP i.e. is the outdoor banquet facility a “major recreational use”? The ORMCP defines major recreational use as “recreational uses that require large-scale modification of terrain, vegetation or both and usually also require large-scale buildings or structures, including but not limited to the following: golf courses, serviced playing fields, serviced campgrounds, and ski hills.”
The OMB heard three days of expert planning evidence from three planners, including Mr. Robert Lehman, a highly respected planner with more than 40 years’ experience, on behalf of the Stewards. The planners focused on one key question: can a wedding be considered a major recreational use?
The Applicant’s professional planner, Mr. Jim Dyment, MCIP, RPP, testified in his evidence that a wedding is a “recreational activity”. Under cross-examination by the Stewards’ lawyer, Mr. David Donnelly, Mr. Dyment stated that a wide variety of activities could be construed as “recreation”, including dating, courting, playing cards, sitting in quiet meditation or even attending a book club can be considered “recreation” per the definition in section 6 of the Provincial Policy Statement, 2005. The planners for King Township and the Stewards held a different opinion: the proposed use was predominantly commercial and not recreational. Mr. Gerrit de Boer, a lay witness for the Stewards, shared this opinion and was quoted in the OMB Eliopoulos decision at paragraphs 19 to 21:
"A wedding is a celebration of life where two people commit to each other by taking vows. It is not recreational. And I would have never gone out with my wife if her father thought going out on a date was a major recreational event."
The OMB summed up Mr. Boer’s evidence as follows:
"It was Mr. de Boer's contention that the proposal represented a commercial venture of a type that would not be allowed under the ORMCP. While Mr. de Boer was not an expert witness on land use planning, or even weddings, the Board found his observations interesting.
The OMB agreed with Mr. de Boer, the Stewards and King Township: “the proposed banquet/wedding/event facility is not a recreational use as anticipated by the Province in the ORMCP” (Eliopoulos Decision at paragraph 31).
While this may seem like an academic debate over a simple definition, approval of the Eliopoulos outdoor banquet facility could have had profound consequences for the Oak Ridges Moraine. If this outdoor banquet facility were approved under the guise of being “recreational”, it could open the door to a whole suite of development applications that the ORMCP did not anticipate in the Countryside Area. To the Stewards’ very great surprise, some in King Township consider the definition of “major recreational use” to be very broad. The Applicant’s planner, Mr. James Dyment, seemed to argue that paintball, go-carts, laser tag and other borderline outdoor recreational pursuits could be permitted in the ORMCP Area as major recreational uses.
This is not what the drafters of the ORMCP had in mind when they put the intent of the Oak Ridges Moraine Conservation Act, 2001 into regulation i.e. the ORMCP, to protect farmland, headwaters and foster growth in suitable areas.
The clear intent of the ORMCP is to limit uses and the intensity of uses in the ORMCP Area. Any exceptions to the list should only be granted in very narrow and clearly analogous cases e.g. downhill vs. cross-country skiing. The purposes of the ORMCP include protecting the ecological and hydrological integrity of the Oak Ridges Moraine Area, ensuring the Area is maintained as a continuous natural landform and environment for the benefit of present and future generations, and providing for continued development within existing urban settlement areas. The Eliopoulos OMB decision reinforces the strict conservation mandate of the ORMCP.
This case is also a cautionary tale, decided before the ORMCP 2015 review kicks into high gear. On December 6, 2013, after the hearing, the Stewards wrote to King Township, commenting on the current Official Plan review as follows:
Given the different views on “recreation” and “major recreational use”, it would be prudent for the Township to bring greater specificity to recreational policies in the ORMCP Area through its Official Plan Review. To ensure the Township remains an “idyllic community of communities” over time, the Township should define permissible recreational uses and strengthen its recreational policies, keeping in mind subsection 8(2) of the Act, which allows the Township to be more restrictive than the ORMCP in its Official Plan.
The Oak Ridges Moraine Conservation Act, 2001 subsection 8(2) allows municipalities to adopt stricter policies for environmental protection of the Moraine.
The ORMCP 2015 Review will provide an opportunity to reconsider what types of development should be permitted on the Oak Ridges Moraine. In so doing, Moraine advocates must ensure their voices are heard, loud and clear. The Stewards hopes this victory before the OMB is the start of a successful ORMCP Review.
A Green Evening: Environmental Defence Gala in City Nights
Environmental Defence’s Annual Gala was a smashing success, raising money and awareness for Environmental Defence’s great work on curbing urban sprawl to getting toxins out of our environment. This year’s Gala marked David’s 25th anniversary of working for Environmental Defence, first as Executive Director, and now as legal counsel for over ten years.
Check out photo #10 on the Toronto Star’s City Nights website to see David celebrating with Mr. Robert Davies (President and Chair, Environmental Defence’s Board of Directors) and Ms Stephanie Kohls (Director of Communications, Environmental Defence). To learn more about Environmental Defence, visit www.environmentaldefence.ca.
OMB Victory on the Oak Ridges Moraine in the Toronto Star
Environmentalists cheer Oak Ridges Moraine decision
Rachel Mendelson
The Toronto Star
February 11, 2014
“Putting large-scale, car-dependent commercial activities in some of the most beautiful and natural country in southern Ontario would have been a big mistake,” said lawyer David Donnelly, who represented local residents at the OMB hearing. “If you believe that King Township is horse country and not paintball country, then this is a big decision for the Oak Ridges Moraine.”
Read the Toronto Star article on this victory achieved by Donnelly Law’s client the Stewards of the Moraine Inc., here.
Victory for the Oak Ridges Moraine and the Environment
On January 27, 2014, the Ontario Municipal Board (the "OMB") issued its most recent decision involving lands in the protected Oak Ridges Moraine Plan Area in King Township (Case Number PL130137). The hearing involved an Official Plan Amendment and zoning by-law application to rezone land in the Oak Ridges Moraine Countryside Area , to permit an outdoor banqueting facility, a children's camp and related accessory uses. Donnelly Law represented the Stewards of the Moraine Inc. (the "Stewards"), a party opposed to this application. The OMB decision considers whether the proposal to use three garden areas, with tent-like structures at each garden, as an outdoor banquet facility is a "major recreational use" according to the Oak Ridges Moraine Conservation Plan (the "ORMCP") and consistent with the definition of recreation in the Provincial Policy Statement (the "PPS").
Member Sylvia Sutherland dismissed the appeal. The OMB agreed with the Stewards' planner, Mr. Robert Lehman, that the "proposed banquet/wedding/event facility is not a recreational use as anticipated by the Province in the ORMCP." (Paragraph 31) The Board also referred to the evidence of a lay witness for the Stewards, a member with a large family and a lot of experience at weddings, noting his observations on the application were "interesting", including the following testimony:
"A wedding is a celebration of life where two people commit to each other by taking vows. It is not recreational. And I would never have gone out with my wife if her father thought going out on a date was a major recreational event[.]" (Paragraph 19)
You can read the decision here: 2014 01 28 OMB Decision - Eliopoulos .
You can read more about the case from YorkRegion.com.
David Donnelly on CBC Radio: Aggregate Pits in Ontario's North
On Friday, December 13, 2013, David Donnelly was interviewed by CBC Thunder Bay. Residents and property owners outside Thunder Bay are asking Taranis Construction to reduce its operating hours and noise at a new gravel pit.
"In the north it seems to be open season on putting these pits in where in many cases either don't belong, or the operators should be more responsive to local concerns,?" said David Donnelly, legal counsel for the Toronto-based Environmental Defence group.
Click here to listen to David's interview with CBC Thunder Bay on action residents could take, including calling the local Ministry of the Environment office. Listen to an interview with a local resident and read more about this situation from the residents' point of view here.
Greenbelt Watch: Oak Ridges Moraine Hearing
Donnelly Law's next hearing is set to begin November 25, 2013 in King Township. Here is a bit of background, published in Environmental Defence's Greenbelt Watch newsletter. The Ontario Municipal Board is set to hear an important case regarding whether to allow future development on the Oak Ridges Moraine, beginning November 23, 2013. The hearing will take place in King Township, the site of a proposed 600-person outdoor banquet/event facility, bed and breakfast, and children’s camp for 200 campers. The proposal was unanimously rejected by King Township Council in August 2013. The Township will now appear alongside the Stewards of the Moraine Inc. (the “Stewards”), a local residents group, in opposition to the project. STORM is a participant in the hearing. The site, at Highway 400 and Lloydtown-Aurora Road, is designated Countryside Area in the Oak Ridges Moraine Conservation Plan (“ORMCP”). The site has been a source of controversy for years, ever since the land was altered without any permits beginning in 2002. Topsoil was removed and a series of hills bulldozed into place, creating a “water feature”, with a pond and approximately one kilometre long.
The Township of King and the Stewards will argue the banquet facility is commercial development, not a “major recreational” facility as defined in the ORMCP. The Stewards are also concerned with road safety from the projected increase in traffic, and noise from the dance floors of three wedding receptions late on summer evenings. David Donnelly (Donnelly Law), counsel to the Stewards, comments “The connection between the children’s camp and banquet facility has not been established. How can a children’s camp be entitled to a liquor licence?”
David Donnelly on Social Impacts of Quarry
'Social impacts' must be considered when quarry application filed Bill Jackson
Cambridge Times
October 24, 2013
North Dumfries council should do more to protect residents from the adverse effects of quarrying. That was the main message from environmental lawyer David Donnelly at a public presentation Tuesday on behalf of the Concerned Residents of North Dumfries (CRAND).
The group was started by eight residents who filed an appeal with the Ontario Municipal Board (OMB) in October, 2012, following council’s approval of an application by Preston Sand and Gravel for the Henning Pit, situated at the corner of Cedar Creek Road and Dumfries Road.
[…]
The OMB set aside 15 days for a hearing in January. Donnelly said Preston Sand and Gravel will be paying for a lawyer and experts on behalf of township council. “Who’s paying for the residents?” he asked rhetorically. “You?”
There are currently 33 active pits in North Dumfries producing 4.4 million tonnes of aggregate per year, Donnelly said, and within two years, with several other applications recently approved or in the process of being approved, quarries within the township could be producing up to seven million tonnes of aggregate per year, “transforming the rural farming community to an industrial landscape.”
Click here to read the entire article.
Stewards of the Moraine in the Toronto Star
King residents oppose banquet facility on Oak Ridges Moraine
Rachel Mendelson
The Toronto Star
August 25, 2013
"A controversial proposal to build a banquet facility on prime agricultural land on the Oak Ridges Moraine could test the limits of the protections in place for southern Ontario’s so-called “rain barrel.”"
Read the Toronto Star article on this proposal, opposed by Donnelly Law's client the Stewards of the Moraine Inc., here.