Metrolinx pauses tree cutting; Court of Appeal considers Haudenosaunee Development Institute appeal

By Amanda Jerome

Law360 Canada (February 13, 2023, 3:23 PM EST) -- Metrolinx’s move to cut down trees in front of Osgoode Hall for the development of the Ontario Line has been paused, as the Court of Appeal for Ontario reviews an appeal brought by the Haudenosaunee Development Institute (HDI).

“There’s a treaty right to use of a big swath of what is now Ontario, and it’s called the 1701 Treaty,” Tim Gilbert, of Gilbert’s LLP and counsel for HDI, told Law360 Canada.

“Metrolinx had specifically said, ‘we need to meet and talk about the trees at Osgoode Hall,’ ” Gilbert explained, noting that a meeting with HDI was set for Feb. 3.

However, on Feb. 2, he added, Metrolinx “advised that the tree cutting was going to commence on February 4, so virtually, no need for a meeting, we’re going ahead with a tree cutting. No engagement.”

“That’s that the record as far as it relates to Haudenosaunee engagement or consultation. We say it didn’t happen and needs to happen before the trees are cut,” he stressed.

The HDI appeal comes after Justice Charles Hackland of the Superior Court of Justice dismissed a motion for an injunction brought by the Law Society of Ontario (LSO), which would prohibit “Metrolinx from taking further actions on the historic grounds of Osgoode Hall until administrative proceeding under section 33(1) of the Ontario Heritage Act has been determined by the applicable administrative bodies.”

In December 2022, the LSO’s board of directors stood firm against expropriation of Osgoode Hall’s grounds, passing a motion to protect the “seat of justice” and lawyers all over the province advocated to safeguard the trees.

At the hearing on Feb. 10, Sarit Batner, of McCarthy Tétrault and counsel for Metrolinx, argued that “it’s not about the trees!”

“This is about the law society not wanting a subway station on its land,” she added, noting that Metrolinx was able to cut down the trees for development of the Ontario Line as the land had been legally expropriated with provincial approval.

Ultimately, Justice Hackland accepted “the respondent Metrolinx's position of the Ontario Heritage Act’s unavailability to assist the law society’s case.”

“I also feel that the balance of convenience is against enjoining the continuation of work on the Ontario Line,” he added in a ruling from the bench.

After Metrolinx presented its rebuttal to the LSO’s argument for an injunction, Justice Hackland heard an application to intervene from the Grange Community Association and a separate injunction request from the HDI.

At the hearing, Gilbert argued that the Haudenosaunee did not want the trees cut down and argued that the consultation process, which is owed as a treaty right, had not been followed.

However, Justice Hackland quickly dismissed both the application to intervene and HDI’s request.

Gilbert told Law360 Canada that HDI’s appeal is “from the refusal of Justice Hackland to grant an interim injunction until the hearing of a main application for an injunction.”

“The short story,” he explained, is that the law society had “an existing injunction in place until midnight on Friday” and HDI had also commenced an “application for an injunction and was seeking interim relief.”

“The issue was if the injunction that the law society had obtained dissolved at midnight, then we were seeking to have an interim in place until the matter could be heard on the full record,” he added, noting that Justice Hackland dealt “briefly” with HDI’s request for interim relief and wouldn’t grant it “on the balance of convenience.”

After Justice Hackland’s decision was issued, HDI advised Metrolinx’s lawyers that they were “seeking an interim injunction from the Court of Appeal, and that we filed a notice of appeal of the decision not to grant us interim relief,” Gilbert explained, noting that by Saturday morning the Court of Appeal was dealing with the request and ordered the tree cutting to stop immediately.

According to Gilbert, Metrolinx objected on jurisdictional grounds, arguing that the appeal should lie with the Divisional Court. He noted that Metrolinx plans to bring a motion to quash the appeal.

The court determined that the matters needed to be heard by a full panel at a hearing scheduled for Feb. 14 at 10 a.m.

On Feb. 13, a Metrolinx spokesperson confirmed that “earlier last week HDI filed an injunction, which was dismissed by Justice Hackland at the same time he dismissed the Law Society of Ontario’s case. Saturday morning, HDI appealed the decision and the Ontario Court of Appeal ordered tree cutting to be stopped pending a hearing on Tuesday.”  

“This is yet another delay as we work to build the transit system Ontarians need and deserve. The Ontario Line will see almost 400,000 passengers every day, reduce crowding on existing subway lines and put nearly 50,000 more jobs within a short walk of transit,” Metrolinx added.

This ongoing litigation comes after months of push back from legal and community organizations, all raising concerns about Metrolinx’s plans to develop on Osgoode Hall’s grounds.

After Justice Hackland issued his decision, LSO treasurer Jacqueline Horvat extended “sincere thanks to the court for its consideration and hearing the law society’s application so expeditiously.”

“We are disappointed with the outcome of the hearing and saddened for the irreparable impacts on this heritage site. We owe our deepest gratitude to the dozens of community groups and citizens for standing with the law society of Ontario and its members — who have been the stewards of Osgoode Hall and its grounds for more than 200 years. We are heartened by their unwavering support and the shared value we hold for this very special place,” she added.

LSO CEO Diana Miles noted that “the law society supports improving mass transit, and while we are deeply disappointed with the outcome of the hearing, we remain committed to collaboration with all parties to lessen the impacts on Osgoode Hall and its grounds, as we move ahead with Ontario Line development.” 

Anita Szigeti, a local lawyer who has been advocating for protection of the trees since the beginning, told Law360 Canada that she was “deeply disappointed” that the LSO’s injunction was denied.

“The law society made compelling arguments. There was real merit to delaying the destruction of the heritage-designated Osgoode grove, in order to explore further whether Campbell House could be another suitable alternative to what Metrolinx was proposing,” she added, referring to another heritage property across the street from Osgoode Hall.

Szigeti also noted that “these two Heritage properties are not of equal value to the City of Toronto.”

“One is the beating heart of the administration of justice in Ontario — the other is the former private residence of one of the chief justices,” she explained.

According to Szigeti, “when the injunction was not maintained beyond midnight on Friday, demolition began on the Osgoode grounds at the crack of dawn on Saturday.”

“The gates to Osgoode were locked from the inside, Metrolinx’ signage was plastered on the iron gates, and tree branches began to fall. If this travesty is not stopped, as I hope the new application by the First Nation that resulted in a further interim injunction on Sunday, might accomplish, the historic grounds of Osgoode will be permanently scarred and disfigured,” she stressed.

Szigeti emphasized that “Osgoode is a stunning jewel” in the “heart of downtown Toronto” and its “200-year-old trees are among the only greenspace in the vicinity.”

“Its grounds welcomed the public all day every day including for weddings and special occasions. Most of all, this is the province's top court and the most important institution for the administration of justice,” she added, noting it “deserves the heritage protection it had already received.”

“The damage now being done to it is devastating for justice system participants, the environment, and for the local community. There is not reason enough to deface and destroy it for the sake of expediency or to save money on a project we all expect is going to be derailed by many other things over its course,” she emphasized.

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