submitted by CAPP & JOG
The site selected by the Ministry of the Solicitor General is Class 2 agricultural land according to the Canadian Land Inventory and the Province’s own soil classification confirming the site’s agricultural value. In addition, the approx. 180 acres in question have always been farmland, either under the custodianship of the former Kemptville Agricultural College or – until last March – the Agricultural Research Institute of Ontario, they have yielded various crops for decades, and they include a number of farm buildings.
Provincial and local planning policies explicitly protect agricultural resources. Development to accommodate population growth or other non-agricultural uses is strictly limited by these binding policies. Respecting this legal protection has grown even more urgent as recent data indicates the permanent loss of some 300 acres of prime agricultural land each day in Ontario.
How is the selection of this site potentially illegal?
Under an old principle called “Crown immunity”, the provincial government is not bound by most laws passed by the Legislative Assembly. Unless a statute specifically provides that the Crown has an obligation to respect its provisions, the provincial government is free to disregard the statute in question.
Court decisions have confirmed that the Province is not bound by the Planning Act. The government can therefore bypass a number of regulations that other property owners must respect such as zoning, site plan control, and the payment of development charges.
However, the Planning Act sets out three specific obligations which all Ministers are legally bound to respect:
- All ministerial decisions must be “consistent with” the Provincial Policy Statement 2020. This province-wide planning regulation, approved by Cabinet, provides strict protections for prime agricultural lands throughout Ontario. The decision to take approx. 180 acres of Class 2 farmland to build a correctional facility is not consistent with the safeguards set out in the Policy Statement. See section 3(5) of the Planning Act.
- All ministerial decisions must “have regard for” local planning policies. The North Grenville Official Plan specifically designates the selected site as “Agricultural”, a designation used for “prime agricultural land”. The local Official Plan also sets out strict safeguards to protect prime farmland from development. A specific policy for the selected site recognizes the historical vocation of the land as an educational and research resource. The Official Plan does not contemplate the construction of facilities like correctional institutions on farmland, at this location or elsewhere in the municipality. A decision that completely disregards the North Grenville Official Plan cannot be said to “have regard for” local planning policies. See section 6(2) of the Planning Act.
- The Planning Act also provides that ministers “shall consult with” municipalities affected by their decisions. All the information available to date, from the Province and the Municipality indicates that no consultation took place prior to the announcement on August 27, 2020. See section 6(2) of the Planning Act.
By violating these explicit obligations, the Minister overstepped the authority conferred by the Legislature. The decision to build on the proposed site is therefore illegal.
What is an Application for Judicial Review?
Judicial review (JR) is the process used by the Courts to make sure that anyone who is exercising a power conferred by a statute or regulation is not abusing those powers. It is a judicial check on administrative powers and those empowered to exercise those powers. Abuses of power subject to review by the Courts can take various forms: overstepping the authority conferred, not respecting specific obligations set out in the statute, and even acting in a way that runs counter to basic procedural fairness.
In Ontario, JR proceedings are brought under section 2 of the Judicial Review Procedure Act which allows the Divisional Court to review “any decision made in the exercise of any statutory power of decision” to ensure the powers were properly exercised.
The Crown’s obligations under the Planning Act have essentially never been the subject of judicial consideration as, in the past, the Province has respected local and provincial planning regulations when undertaking projects of this kind.
