PCs broke the law when beefing up MZO powers last summer, court rules

By Alan S. Hale September 9, 2021

Municipal Affairs Minister Steve Clark violated Ontario’s Environmental Bill of Rights by failing to properly consult on Planning Act changes in Bill 197, last July’s omnibus economic recovery bill that beefed up the power of Ministerial Zoning Orders, a judge ruled this month.

The legislation, known as the COVID-19 Economic Recovery Act, was fast-tracked through the house under the auspices of helping the province bounce back from the first wave of the pandemic by easing regulations on developers. Among other things, it “enhanced” MZO powers by allowing the minister to override municipal land site plans and require inclusionary zoning.

By not posting that proposed change to the Environmental Registry and seeking public comment in advance, Clark “acted unreasonably and unlawfully,” Superior Court Justice Katherine Swinton wrote in her September 3 ruling.

The legal challenge was brought forward by a fleet of environmental groups, including Greenpeace, Earthroots Coalition, Ontario Nature and the Canadian Environmental Law Association.

“I am heartened to see the court uphold the rights of people to participate in government decision-making affecting the environment,” said Earthroots chair and Ontario’s former environmental watchdog Gord Miller.

“Such blatant disrespect for the law by our own government must not be taken lightly,” added Ontario Nature director Anne Bell.

The remedies in the case are minor. The court has simply made a “declaration” that Clark failed to post the MZO changes in accordance with the EBR. Nonetheless, the province still pushed back against the reprimand in its filings, stating such a declaration would have “no practical effect.”  

In response to the ruling, Minister Clark struck a defiant tone, telling Queen’s Park Today in a statement that enhanced MZOs reduce red tape and can be used to accelerate the development of essential projects.

“In the face of a rapidly changing pandemic with Ontarians at risk, we were forced to act quickly,” he said of Bill 197. “We will not let red tape put Ontarians’ health and safety at risk.”

Clark said he’s made a “clear commitment to take the public’s input into consideration whenever an enhanced MZO is used” and noted the MZO change was posted to the Environmental Registry last December, after it had already been enacted, and comments were received then.

Justice Swinton had also noted the after-the-fact consultation in her ruling, deeming it “not an equivalent process.”

The court was also asked to rule on whether the PCs broke the law by failing to consult on other aspects of Bill 197, in particular a rewrite of the Environmental Assessment Act that critics say will allow some development projects to dodge reviews.

That lack of consultation was not illegal, per the judge, because the legislation included a “statutory exception” allowing that section of the bill to retroactively bypass the Environmental Registry posting requirement.

Auditor general Bonnie Lysyk had previously warned the government that dodging consultations was in violation of the EBR.

The opposition pounced on the ruling, holding it up as another example of the PCs enacting legislation without worrying about its legality or constitutionality, particularly when it benefits property developers.

“Not that we needed any further proof, but we now have confirmation from the courts that Mr. Ford broke the law yet again with this assault on the environment. It looks like Mr. Ford will do anything his buddies want — no matter what it costs the rest of us, or how legal it is,” said NDP Environment critic Sandy Shaw.

“He should repeal his environmental changes, stop signing Ministerial Zoning Orders for his buddies.”

“Ford has not only broken the law but has also made it clear that he will put his pro-sprawl, pro-developer agenda above all else,” added Green Party Leader Mike Schreiner.

“This court decision is another episode in Ford’s anti-environmental saga at Queen’s Park.”

This story has been updated to clarify that Minister Clark was not ordered to make a declaration of wrongdoing. The court made that declaration on its own. We regret the error.