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The Supreme Court of Canada (“SCC”) has granted leave to appeal the Court of Appeal for Ontario’s (“ONCA”) decision in Ontario Place Protectors v Ontario, 2025 ONCA 183 [Ontario Place Protectors]. This case presents an opportunity for the SCC to clarify whether the public trust doctrine exists in Canadian law and the scope of the superior courts’ core jurisdiction in the context of Crown immunity.
Facts
Ontario Place and Its Redevelopment
In 1971, Ontario Place opened in Toronto’s Waterfront neighbourhood. It has a Cinesphere, IMAX cinema, and several pavilions. In 2023, the Ontario legislature passed the Rebuilding Ontario Place Act, 2023, SO 2023, c. 25, Sched. 2 [ROPA]. This legislation enabled the Ontario government to redevelop Ontario Place from its current layout to a new spa and waterpark. Notably, the ROPA includes several controversial provisions.
First, the ROPA exempts Ontario Place from all statutory oversight captured by the Environmental Assessment Act, RSO 1990, c. E.18, the Ontario Heritage Act, RSO 1990, c. O.18, and the City of Toronto’s authority to regulate noise (Ontario Place Protectors, para 1).
Second, the ROPA places significant limits on suing the government for its redevelopment of Ontario Place (Ontario Place Protectors, para 1). Specifically, s 17(1) eliminates any cause of action against the Crown and its entities, while s 17(2) precludes the award of costs, compensation, damages and other remedies arising from the redevelopment (Ontario Place Protectors, para 8). Section 17(3) prohibits proceedings from being brought against the Ontario government with respect to Ontario Place’s development, though s 17(4) preserves the right to apply for judicial review (Ontario Place Protectors, para 8).
The Dispute
The appellant, a group of concerned citizens known as the Ontario Place Protectors, initially brought an application for judicial review but subsequently discontinued it in favour of an application to the Ontario Superior Court of Justice (“ONSC”) challenging the constitutionality of the ROPA (Ontario Place Protectors, para 6). As demonstrated below, this application shed light on several important issues about the constitutionality of the ROPA and the process for challenging it.
Judicial History
The ONSC’s Decision
The application judge made three significant findings.
First, Brownstone J denied the applicant public interest standing. She concluded that there was no evidence that the applicant’s rights were at stake. By extension, the application would be granted only if the applicant had public interest standing (Ontario Place Protectors, para 11). Applying the public interest standing test, Brownstone J found that the applicant failed to demonstrate a “genuine interest in the matter” (Ontario Place Protectors, para 11). She further held that the application would ideally be initiated by a party seeking to establish a cause of action extinguished by the ROPA (Ontario Place Protectors, para 12).
Second, the application judge concluded that the ROPA does not infringe s 96 of the Constitution Act, 1867 [1867 Act]. Even though it extinguishes causes of action against the Crown and prevents the granting of remedies, Brownstone J concluded that the ROPA does not impact the core jurisdiction of the superior courts (Ontario Place Protectors, para 13).
Third, the application judge held that the public trust doctrine—the principle that the Crown holds some resources in trust for the public—was neither firmly settled law in Canada, nor was it capable of invalidating legislation (Ontario Place Protectors, para 14).
The applicants appealed this decision to the ONCA.
The Issues
The ONCA considered three issues on appeal:
- Did the application judge err in denying the appellant public interest standing?
- Does s 17 of the ROPA violate s 96 of the 1867 Act?
- Does s 17 of the ROPA breach the public trust?
The ONCA’s Decision
The ONCA addressed each issue in turn.
Issue #1: Did the application judge err in denying the appellant public interest standing?
Huscroft JA, writing for the ONCA, held that the application judge erred in denying the appellant public interest standing. Recognizing the public law context of the appeal, Huscroft JA concluded that a “more relaxed and flexible approach” to the public interest standing test is warranted to ensure that the exercise of public authority is not shielded from judicial scrutiny (Ontario Place Protectors, para 21). In particular, Huscroft JA identified two errors in Brownstone J’s application of the public interest standing test.
First, the “genuine interest” standard is not a high bar (Ontario Place Protectors, para 25). The appellant is a group of citizens deeply concerned about the redevelopment of Ontario Place. Even though the appellant did not have a claim impacted by the extinguishing provisions, the ROPA is “integral” to Ontario Place’s development, which the appellant had a genuine interest in (Ontario Place Protectors, para 25).
Second, the public interest standing test does not necessitate that the appellant pursue “better” means of bringing a challenge to the court, but instead identify “reasonable and effective means” of doing so (Ontario Place Protectors, para 26). Huscroft JA concluded that the application is a reasonable means of litigating the matter, especially given that the public interest standing’s purpose is to “liberalize the law” (Ontario Place Protectors, para 26).
Issue #2: Does s 17 of the ROPA violate s 96 of the 1867 Act?
Huscroft JA upheld the application judge’s finding that s 17 of the ROPA does not violate s 96 of the 1867 Act. This analysis follows in three parts: (1) assessing the core jurisdiction of the superior courts; (2) determining whether the ROPA removes judicial review remedies; and (3) examining whether the ROPA impacts the superior courts’ core jurisdiction.
First, Huscroft JA affirmed that the superior courts’ core jurisdiction is narrowly construed (Ontario Place Protectors, para 31). In this regard, the core jurisdiction is “…concerned with the essential business of the superior court” (Ontario Place Protectors, para 31). That essential business includes: the review of the legality and constitutionality of laws, enforcement of its orders, control over its own process, and its residual jurisdiction as a court of original general jurisdiction (Ontario Place Protectors, para 31).
Second, the ONCA held that the ROPA does not extinguish judicial review remedies. While s 17(3) precludes the commencement of several proceedings, s 17(4) exempts applications from judicial review (Ontario Place Protectors, para 34). Section 17(4) is designed not only to preserve applications for judicial review but also the remedies traditionally available in those proceedings (Ontario Place Protectors, para 37). Therefore, even though judicial review is part of the superior courts’ core jurisdiction, it is not engaged on these facts.
Third, Huscroft JA concluded that s 17(2) of the ROPA—though sweeping—ultimately concerns the amending or abolishing of causes of action rather than interfering in the adjudication of an action or the exercise of the superior courts’ core jurisdiction contrary to s 96 of the 1867 Act (Ontario Place Protectors, para 40). Put simply, the legislature can amend or repeal causes of action unless doing so “usurps the core jurisdiction of superior courts”, which happens only if those courts are prevented from serving as courts of inherent jurisdiction (Ontario Place Protectors, para 41). Thus, the ROPA immunizes the Crown from certain causes of action, rather than removing the superior courts' core adjudicative function.
Issue #3: Does s 17 of the ROPA breach the public trust?
The ONCA upheld Brownstone J’s finding that it is not only unclear whether the public trust doctrine exists under Canadian law, but also questionable whether it applies in these circumstances. Huscroft JA traces domestic and international case law, potentially opening the door to establishing the doctrine.
However, he ultimately concludes that international jurisprudence cited by the appellant recognizing the doctrine has no weight on the appeal and that the Canadian cases do not acknowledge the doctrine’s existence (Ontario Place Protectors, paras 48-50). Moreover, it remains uncertain whether the public trust doctrine would operate like a traditional trust and extend to cultural heritage sites and buildings, rather than being limited to natural resources and the environment (Ontario Place Protectors, para 55).
Analysis
I agree with the ONCA’s holdings on issues #1 and #3, but disagree with Huscroft JA’s reasoning under issue #2. My argument follows in two parts.
Part #1: Access to justice is part of the core jurisdiction of the superior courts
In Trial Lawyers Association of British Columbia v British Columbia (Attorney General), 2014 SCC 59 [Trial Lawyers Association #1], the SCC found that part of the superior courts’ core jurisdiction as guardians of the rule of law includes access to s 96 courts to resolve public and private law disputes between parties (Trial Lawyers Association #1, para 32). For context, in that case, British Columbia created a hearing system fee that increased with the length of a hearing, save for narrow exceptions for those unable to afford it.
To be fair, Huscroft JA’s technical holding in Ontario Place Protectors is that an interference with the adjudication of a legal action within a s 96 court’s inherent powers triggers the core jurisdiction, such as the hearing fee in Trial Lawyers Association #1. In Ontario Place Protectors, there is no legal action to begin, as the legislature has removed causes of action in the first place.
But, even if the legislature is only removing causes of action on paper, the real-world effect may be the same as blocking access to the courts. In other words, this legislative action functionally prevents the superior courts from resolving public and private law disputes. Therefore, the ROPA may impair the core jurisdiction of the superior courts, not in and of itself, but through its tangible effects on litigation.
Part #2: Judicial review is potentially sufficient to compensate for a lack of statutory or common law causes of action
If the Ontario government has effectively immunized itself from all statutory and common law causes of action arising from the Ontario Place redevelopment, then a necessary question follows: What role do the superior courts have left? As noted, Huscroft JA found that, on a proper reading, the ROPA does not preclude judicial review or its associated remedies.
In Reference re Code of Civil Procedure (Que.), art. 35, 2021 SCC 27 [Reference Re CCP], the SCC held that the core jurisdiction test exists to ensure that superior courts can serve their dual constitutional role as a unitary force and as guardians of the rule of law (Reference Re CCP, para 63). In my view, the ability of parties to seek judicial review of disputes arising from the Ontario Place redevelopment enables the superior courts to fulfill their roles as a unitary force and guardians of the rule of law.
After all, the Court of Appeal for British Columbia held in Trial Lawyers Association of British Columbia v BC (AG), 2022 BCCA 163 [Trial Lawyers Association #2] that the province’s superior court’s limited involvement in adjudicating personal injury cases through judicial review of an administrative decision maker’s adjudication process does not contravene s 96. In short, judicial review may preserve a superior court’s core jurisdiction.
By extension, the superior courts under the ROPA are not precluded from exercising their jurisdiction to grant judicial review of disputes concerning the redevelopment of Ontario Place. Accordingly, Trial Lawyers Association #2 serves as a reminder that judicial review can be a meaningful opportunity for the superior courts to fulfill their role as guardians of the rule of law, even when legislatures immunize the Crown from causes of action.
Finally, I recall that the “narrow” reading of the core jurisdiction—which seemingly guides Huscroft JA’s analysis—is often cited to ensure that the courts do not prevent the legislature from creating innovative and cost-effective dispute-resolution mechanisms through administrative decision-makers (Trial Lawyers Association #2, para 148). Immunizing a government from liability by removing the applicability of causes of action hardly seems an innovative solution to resolving disputes more efficiently. Rather, it appears to be an attempt to halt litigation altogether, except for judicial review. At a minimum, as a matter of policy, applying the narrow reading of core jurisdiction to the ROPA immunity provisions signals a potential fault line in the current s 96 framework. Focusing on whether legislation technically impairs the superior courts’ core jurisdiction, while minimizing its practical effects, obscures the real constitutional concern: the citizenry’s access to justice.