Reviewing Ontario’s Greenbelt Statute Law Amendment Act, 2023
In late 2022, the Government of Ontario enacted a new regulation to the Greenbelt Act, 2005, which made certain changes to the area of land comprising Ontario’s Greenbelt. The regulation resulted in the removal of 15 sites of land comprising approximately 7,400 acres from the Greenbelt and the addition of approximately 9,400 acres of land into the Greenbelt in other areas of Ontario. While the provincial government’s changes to the Greenbelt Area were described as being part of an effort to address Ontario’s housing crisis, they have also raised new legal questions amongst followers of the province’s handling of the Greenbelt.
The Greenbelt Statute Law Amendment Act
Following the Ontario Government’s decision in late 2022 to open and amend the Greenbelt, the Greenbelt Statute Law Amendment Act (the “new Act”) was passed in order to restore the parcels of land that were removed from the Greenbelt and Oak Ridges Moraine areas and provide enhanced protections. This reversal came after the Auditor General and Integrity Commissioner found that certain developers were unfairly favoured during the process of selecting the parcels of land that were removed from the Greenbelt areas. Among other things, the new Act amends the Greenbelt Act, 2005 to re-designate those previously-removed parcels of land as part of the Greenbelt Area.
Provincial Liability
One of the biggest takeaways from the new Act are the broad and extensive provisions protecting the Ontario government from liability. In effect, these provisions appear to leave developers and those who had their properties selected for housing development with limited recourse to take any legal action in relation to these changes. Notably, one of the provisions of the new Act includes an amendment to the Greenbelt Act, 2005 which provides for the termination of a specific settlement agreement between the provincial government and Minotar Holdings Inc. in connection with a lawsuit involving both launched in 2017.
Future Changes to the Greenbelt Area Description
Additionally, the new Act includes amendments to the Greenbelt Act, 2005, which change the way that the Greenbelt Area is established and described moving forward. By consequence of these amendments, any future changes to the Greenbelt boundaries must be done through legislation passed by the provincial legislature rather than by regulation. In theory, this change could make it more difficult for future governments to alter the defined greenbelt area. Some have argued that this change allows for a more transparent and democratic process when considering any alterations to the Greenbelt Area in the future. However, it has also been argued that this change may allow the provincial government to shield itself from judicial scrutiny since the original Greenbelt Act provided that any changes to the Greenbelt could be done by regulation: a process that allows for judicial review.
Ongoing Challenges
While the enactment of the new Act attempts to address some of the controversy that arose from the Province’s changes to the Greenbelt Area in late 2022, the new Act has stirred controversy of its own.
Since its enactment, at least one constitutional challenge had been launched against the Province and the new Act by Minotar Holdings Inc. (“Minotar”), which argued that the new Act violates the constitutional principle of the rule of law. Minotar’s claim followed a previous action launched by the company in 2017 in which it asserted that certain lands owned by it should have never been included in the Greenbelt Area to begin with. The lands at issue were subsequently removed from the Greenbelt as part of the Province’s changes to the Greenbelt Area in late 2022. However, following the Provincial Government’s reversal of its late 2022 decision to open up the Greenbelt by way of the new Act, the Minotar’s lands were re-designated as falling within the Greenbelt Area. As noted, the new Act also specifically provided for the termination of a Settlement Agreement reached by Minotar and the Province in connection with the company’s previous lawsuit.
The new Act’s broad liability immunity provisions, which aim to protect the Provincial Government against judicial scrutiny, have also been met with concern. Members of the Ontario Bar Association have argued that these provisions effectively limit causes of actions and remedies against the Province and serve to “undermine[] critical foundations that Ontarians count on like the rule of law in the use of legislation to overcome powers that are properly overseen by the courts.”[1]
Looking Ahead
The Provincial Government’s passage of the new Act served as a clear acknowledgement of criticisms against its decision-making process in changing the boundaries of the Greenbelt Area in late 2022. While the Greenbelt Statute Law Amendment Act was given Royal Assent on December 6th, 2023, it will be important for developers and municipalities to monitor the status and progress of the new Act, including any new and ongoing challenges against it.
Written by Carly Slaughter & Alex Cockburn
Originally posted on Municipal Matters