How much protection from lawsuits can a government write into legislation governing its own project?
The Supreme Court of Canada is scheduled to examine that question on October 15 in Ontario Place Protectors v. Ontario. The appeal concerns legislation facilitating the redevelopment of Ontario Place, including provisions restricting claims against the Crown.
There is no Supreme Court decision yet. The hearing concerns the constitutionality of the legislation, not a judicial determination of whether the redevelopment is good public policy.
What the legislation changes
The Rebuilding Ontario Place Act, 2023 exempts the redevelopment from specified environmental, heritage and municipal noise requirements. It also extinguishes certain causes of action and related remedies against the Crown and its agents.
A crucial qualification is that applications for judicial review remain available.
Ontario Place Protectors argues that the legislation nevertheless interferes with superior courts’ constitutionally protected jurisdiction under section 96 of the Constitution Act, 1867. Its challenge also raises public-trust arguments. The application judge dismissed the challenge, and the Ontario Court of Appeal dismissed the appeal.
Why preserving judicial review matters
The case should not be described as legislation eliminating every route to court. The judicial-review provision makes the issue more precise: whether the restrictions that remain still cross a constitutional boundary.
For litigators, the distinction between a cause of action, an available remedy and judicial review is consequential. Preserving one procedural route does not mean every claim or form of relief survives.
The eventual reasons will therefore require careful attention to what the Court says about each restriction, rather than a broad conclusion that governments either can or cannot protect themselves from litigation.
The implications extend beyond the waterfront
Project-specific legislation can alter the legal landscape in which a development proceeds. Counsel assessing a challenge must identify which ordinary requirements have been displaced, which claims remain available and which constitutional arguments arise independently.
For public-interest litigants, that analysis affects the formulation of proceedings and the relief sought. For government counsel, it concerns how legislation can advance policy objectives while respecting constitutional limits.
The appeal may clarify those boundaries, but its scope will depend on the Court’s reasoning.
What practitioners should watch
The central questions include how the Court characterizes the protected jurisdiction at issue, the significance of the judicial-review exception and the relationship between substantive exemptions and restrictions on remedies.
A hearing does not resolve those questions. Nor should the number or identity of interveners be treated as a prediction of the result.
The constitutional issue is how far a legislature can narrow accountability while leaving a route to judicial review open.
Related coverage: Toronto Bike-Lane Advocates Plan Supreme Court Leave Application · Hamilton Encampment Charter Challenge Gets a New Hearing After Ontario Appeal.
Sources: Supreme Court case record · Supreme Court hearing schedule · Rebuilding Ontario Place Act .