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| Afolabi O. Lucas |
This proposed legislation aims to amend the Greenbelt Act, 2005, and return lands that were previously removed from the Greenbelt back to it. Notably, the lands removed from the Greenbelt last November, including that designated as Part 1 on a plan entitled Plan of the Boundary of the 2022 Protected Countryside Additions dated Dec. 12, 2022. The initial justification for removing these lands from the Greenbelt was that these lands were earmarked for development to improve the housing deficit in the province. The premier recently announced the reversed course to return the lands to the Greenbelt. Returning the lands to the Greenbelt means the owners will no longer be permitted to build on them.
Amidst an ongoing RCMP investigation in the background, the proposed amendments in Bill 136 also provide a limitation of liabilities for the provincial government on the enactment of the amendment. These amendments aim to shield the provincial government from legal repercussions by including a “No remedy” clause, among other things. The limitations on causes of action have a retrospective effect and specifically state that no proceeding that is directly or indirectly based on or related to anything referred to in the legislation may be brought or maintained against any person.
One noteworthy aspect of this legislative move involves the specific mention of a legal dispute involving one of the Greenbelt landowners affected by this amendment. This company, Minotar Property, has been in a legal dispute with the provincial government since 2017, in which it claims that the land it owns should never have been put in the Greenbelt. In an uncommon move, Bill 136 specifically names this case and states: “The agreement dated November 3, 2022 between Minotar Holdings Inc. and His Majesty the King in Right of Ontario as represented by the Minister of Municipal Affairs and Housing respecting the settlement of the Superior Court of Justice proceeding commenced at Newmarket and identified as Court File number CV-17-131956-00 is terminated on the day the Greenbelt Statute Law Amendment Act, 2023 receives Royal Assent.”
Essentially, if passed, Bill 136 states that no cause of action arises as a direct or indirect result of anything done or not done in accordance with the Act with regard to the termination of the settlement agreement in this specific lawsuit. In the Ontario Integrity Commissioner's Report, dated Aug. 30, 2023, it is noted that the inclusion of the Minotar property was suggested by Ministry officials, which was the subject of litigation for several years at that point. This inclusion was described in the report as “entirely unique”.
Bill 136 carries distinctive features, including its retrospective effect on limitations of liability, encompassing both past and future liabilities. The inclusion of a specific lawsuit in provincial legislation is uncommon, highlighting the legislation’s purpose to insulate all parties involved in the government’s policy reversal.
Following its second reading on Nov. 2, 2023, Bill 136 now resides in the hands of the Standing Committee on Heritage, Infrastructure and Cultural Policy. With indications pointing towards its likely passage, the unique features of this bill are poised to become subjects of careful judicial scrutiny and interpretation.
Afolabi O. Lucas is an associate with Cohen Highley in its multiresidential department and specializes in land development, municipal and planning law. He can be reached at alucas@cohenhighley.com.
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