Ecojustice, Environmental Defence take Ontario to court over changes to Hamilton’s official plan

By Amanda Jerome

Law360 Canada (January 11, 2023, 1:39 PM EST) -- Environmental groups are taking the Ontario government to court over its “unilaterally imposed changes to Hamilton’s official plan.” Laura Bowman, a lawyer with Ecojustice, said the “long-term” goal of this litigation is to “ensure that ministerial decision- making under the Planning Act has some accountability built into it.”

“Changes to Hamilton’s official plan are the latest in a series of moves by the provincial government to push sprawl development into farmland, woodland and wetlands. These changes were announced while the province introduced Bill 23, which strips conservation authorities and municipalities of their powers. Soon after, the Ontario government announced that it would also open parts of the Greenbelt for destruction,” a press release, issued by Ecojustice, explained.

According to the release, issued Jan. 9, Ecojustice, on behalf of Environmental Defence, served the provincial government with a notice of application for a judicial review of Steve Clark, minister of municipal affairs and housing’s changes to the official plan — a “land-use planning document that guides and shapes development by identifying where and under what circumstances specific types of land uses can be located.”

Laura Bowman, Ecojustice

Laura Bowman, Ecojustice

The plan, the release noted, is used to “ensure that future planning development appropriately balances social, economic and environmental interests of the community.”

The people and City Council of Hamilton had “approved an official plan that prevented urban sprawl and encouraged sustainable development within the city’s existing boundary,” the release explained.

However, on Nov. 4, 2022, Ontario announced it was “changing Hamilton’s official plan by stripping out provisions designed to deliver housing in existing neighbourhoods, where it is desperately needed.”

“Instead,” the release noted, the province is “forcing a 2,200 hectare outward expansion of the city’s boundary into farmland and wild spaces.”

“Minister Clark’s gutting of Hamilton’s 2022 official plan would mandate the discredited sprawl-based approach to planning that caused our current housing and environmental crises — and which Ontario’s 21st-century planning laws are designed to fix,” said Phil Pothen, in-house counsel and Ontario environment program manager with Environmental Defence, in a statement.

In an interview with The Lawyer’s Daily, Bowman explained it was “important” for Ecojustice to take on this application because the government’s decision was “made, obviously, in a bigger context around planning changes in Ontario.”

“The Ford government has made some very, very extensive changes geared towards allowing development on lands that were previously protected all around the Greater Toronto and Hamilton Area,” Bowman said, noting that “this particular decision was one that was made in the context of a review under the Growth Plan of Hamilton’s Official Plan, wherein Hamilton went to considerable lengths to do an analysis of what housing needs can be accommodated within Hamilton’s existing urban area.”

This aspect is important, Bowman added, because “development within an existing urban area has a number of social and environmental benefits as well as financial benefits. Urban development can use existing infrastructure. It can be transit supportive. It has a number of climate benefits. It allows the preservation of agricultural land, wetlands and waterways and forests in the rural areas near the urban development and provincial planning policy recognized those benefits.”

Bowman stressed that the “provincial policy statement and the Growth Plan under the Planning Act require municipal decision- makers to go to considerable lengths to ensure that they’re not permitting sprawl into areas that could undermine some of those policy objectives.”

In particular, she noted, the Growth Plan “requires that any municipal decision-maker, including the minister, who wants to expand an urban boundary has to justify it with a land needs assessment, which tries to predict what housing will be needed in the next … 20 or 30 years.”

“Only if it can be shown that housing needs cannot be accommodated without expanding the urban boundary, then the Growth Plan allows that to happen,” she explained, noting that what happened in this instance was “Hamilton did that assessment, and they determined that they could accommodate all of their housing needs within their existing urban boundary, and they passed an official plan that did not expand the urban boundary.”

Clark, however, “indicated that he disagreed with them about the types of housing that he felt they should have predicted were going to be in demand in the future, and he unilaterally overturned their official plan decision,” Bowman stressed, noting that this decision was “posted on the environmental registry, but without any details about the proposed amendments or even that the minister was proposing amendments.”

In this way, Bowman explained, “there wasn’t any chance for either Hamilton, or any members of the public, to provide the minister with any kind of information about his proposed amendments.”

According to Bowman, Clark went “well beyond any of the proposals that Hamilton had considered.”

“One of the proposals Hamilton considered involved an expansion of about 1,300 hectares of land and the minister’s department had previously indicated that they considered that to meet all of the housing needs for Hamilton,” she explained, noting, however, that Clark “doubled the size of that proposal in his decision” and “didn’t give any reasons.”

“In addition to not consulting the public, there were no real formal reasons given on the environmental registry. We have no indication that the minister’s decision was supported by any land needs assessment analysis as required by the Growth Plan and we have some reason to suspect that no such analysis may have taken place at all, which makes it non-compliant with the Growth Plan,” Bowman noted, emphasizing that Minister Clark did not “follow the consultative process in the Places to Grow Act, which required him to have some discussions with Hamilton about his proposed amendments.”

Victoria Podbielski, a spokesperson for Clark, said “official plans are among the most important tools municipalities and the province use in partnership to prepare for future growth and housing needs.”

“It is expected that the City of Hamilton’s population will grow to more than 800,000 people by 2051. That is why, after careful consideration, the minister took the necessary action to accommodate this growth and allow for more desperately needed housing to be built,” she added, noting that “as this matter is before the courts it would be inappropriate to comment further.”

Bowman noted that there are “policies in the Planning Act that the minister is required to ensure his decision is consistent with, which are not mentioned in the decision.”

It “appears” that because Minister Clark has “some authority in the Planning Act to amend official plans, he felt that he could simply do whatever he wanted, without regard to the constraints in the statute which required him to consider these anti-sprawl policies, which he himself and the provincial cabinet had endorsed as recently as 2020,” Bowman stressed.

She said this move makes it seem as if the government is trying to “approve sprawl development through the backdoor, without any accountability around their decision-making,” which is “why this was a particularly important decision to challenge.”

Bowman said the “long-term” goal with this litigation is to “ensure that ministerial decision-making under the Planning Act, has some accountability built into it.”

“We don’t dispute that the minister has some discretion to amend official plans, but the minister has to follow the process in the Act and has to abide by the policies that his own government has approved,” she said, noting that “what we’ve seen over and over again in Ontario are example after example of this particular minister making decisions that are offside the rules under the Planning Act, to interfere with municipal decision-making.”

“This government seems to believe that it can simply act with impunity. But the fact that it has statutory power means that that statutory power is essentially unfettered, and that doesn't track with modern administrative law, it doesn't track with the requirements in the Planning Act, and we would like to see some more responsible decision-making happening,” she emphasized.

Bowman highlighted that in two previous cases brought by Ecojustice, the “government tried to retroactively exempt itself after the fact.”

“They seem to be quite willing to use their legislative powers to undermine judicial review,” she said, drawing attention to Ecojustice’s work on Bill 197 and the Lower Duffins Creek MZO.

“I think this is an attack, more broadly, on the right of the public to seek judicial review of public decision-making and I anticipate that we may see something similar happen again here,” she added.

Bowman noted that “what we have seen in the planning law area in particular is just utter chaos.”

“The Planning Act is constantly being amended,” she explained, noting that even this “predates the current government.”

“It seems to be a very contested area of the law without any kind of a public interest equilibrium ever being reached. The result is chaos for all stakeholders, chaos for the environment,” she said, stressing that it’s a “very unhealthy situation” and she hopes that “in the future, level heads prevail and try and make reasonable compromises to protect the environment and ensure that we are building the kind of communities we want to build without it constantly being contested ground.”

If you have any information, story ideas or news tips for The Lawyer’s Daily please contact Amanda Jerome at or 416-524-2152.