Ontario's legal regulator says removing trees on expropriated area for subway damages heritage site
An Ontario Superior Court judge has ruled that Metrolinx, the builders of Toronto’s new subway, the Ontario Line, must spare almost a dozen 200-year-old trees at Osgoode Hall until at least midnight on Friday, Feb. 10.
Following a Saturday hearing at the Ontario Superior Court of Justice, judge William Chalmers granted an interim injunction restraining Metrolinx from cutting down any trees at the Osgoode site.
“I am of the view that it is just and convenient to grant an interim injunction which restrains Metrolinx from cutting down any more trees at the Osgoode site,” Justice Chalmers wrote in his decision, released Sunday.
The Law Society of Ontario, which had applied for the injunction, said it is pleased with the outcome of the proceedings. Spokesperson Wynna Brown said in an email: “We extend our thanks to the courts and community and look forward to the next steps in the process.”
“What we are asking this court to do is very narrow,” said lawyer Michael Fenrick, representing the law society at the injunction hearing Saturday. “We are asking this court to grant a stay with respect to any further work on the site between now and Friday of this week when this matter can be heard and decided on the proper record.”
He added that the society has commitments from its expert heritage architect that a report looking at alternatives to cutting the trees can be completed by Tuesday, allowing the process “to unfold in a more meaningful way on a complete record.”
Even though the LSO had indicated it filed an injunction Friday to stop the trees being cut down on the weekend, Metrolinx had already cut down one tree early Saturday before the provincial transport agency agreed to “temporarily pause work” until the outcome of the hearing.
In an updated statement issued Sunday, Metrolinx said it looks forward to “resolving this matter quickly.
“Metrolinx has been engaging with communities on this project for over two years. We met with the Law Society of Ontario 17 times prior to the start of work to avoid unnecessary delays that will cause significant financial consequences to taxpayers and commuters.”
The online hearing on Saturday was delayed because of several “Zoom bombing” outbursts, to the point where Metrolinx lawyer Sarit Batner said, “something has to give with the porn and obscenities.” The online hearing was eventually moved to a Zoom webinar link to prevent interruptions.
The dispute over the trees at Osgoode Hall - which is home to the LSO and the Ontario Court of Appeal - began last spring when the possibility that the trees would be cut down was revealed. Since then, lawyers, professors and judges have voiced concerns over the Metrolinx plans, with critics saying that the transport agency was short-circuiting the process to which it had agreed.
Fenrick argued Saturday that Osgoode Hall “can’t be viewed other than as an indivisible site,” even though it has multiple owners, including Metrolinx, through expropriation. “We’re dealing here with a very unique situation in which we have multiple ownership of a heritage site.”
He added that taking down trees in one parcel of land in a “unique urban green space” will impact the character of the entire Osgoode Hall property.
“What happens on one part of the land is inevitably going to impact what happens to the balance of the property and its heritage attributes.”
The society has also applied to Toronto’s city council under s. 33 of the Ontario Heritage Act, which says no property owner can alter the property if it is likely to affect the property’s heritage attributes. The LSO also argues that it has the right to restrict Metrolinx’s use of its property because both are owners of an indivisible heritage site.
Justice Chalmers wrote in his reasons for judgment that he “has some concerns” about whether the indivisible heritage site argument will prevail. He noted that Metrolinx argues it is a public body and is not governed by this section but by a different part of the act that it has complied with.
However, Justice Chalmers added, “I am of the view that the LSO should be given an opportunity to advance its argument that s. 33 of the act applies to an indivisible heritage site with multiple owners.”
The judge also wrote that the LSO should have the opportunity to consider a report from Parsons Corp., a U.S.-based infrastructure engineering firm, just released on Saturday. It says that Metrolinx’s preferred location for the entrance spot is the most appropriate but that the Campbell House site across University Ave. could be an alternative.
However, Justice Chalmers wrote: “At this time, I am not prepared to find that the unique argument advanced by the LSO is not a serious issue to be tried. This conclusion is not, of course, binding on the judge who ultimately hears the injunction motion, on a more complete record.”
Fenrick also argued that the threat of “irreparable harm” by removing mature trees is an essential reason for granting the temporary injunction and holding a full hearing. “What is done can’t be undone.”
However, Metrolinx lawyer Batner said the outcry against the transport agency over the issue of the trees has become “a bit of a smear campaign, which is very unfair to Metrolinx.”
For the better part of five years, she said, the agency has done all the necessary outreach and consultations in the “very challenging” context of expropriation. She added that it is “very much a divisible property - in fact, it was divided.” Metrolinx asked for and received all the necessary approvals, including expropriation.
“Obviously, trees matter, obviously heritage matters,” Batner said. Still, there are many other interests, including minimizing disruptions during construction, costs and timing, safety, pedestrian use and traffic flow. She said that penalties for not completing work as scheduled could also be imposed, perhaps costing millions.
Batner added that the time for the LSO to have brought up these concerns was two years ago, especially since Metrolinx had made it clear long ago that it would likely remove trees. “This is not the time, when the subway is being installed, and land has already been expropriated.”
Metrolinx said in a blog post on Friday that “this was not a decision Metrolinx made lightly, and it was only made after the agency explored multiple other options to ensure the site was the best option moving forward.”
The northeast corner of Queen Street West and University Avenue is key to the project, “as there is no other space here where a connection to [the existing} Line 1 can be built,” the Metrolinx blog says.
A “keyhole” – or construction shaft – needs to be built to allow for the excavation and construction of what will ultimately be a large underground complex. Some transit advocates have suggested moving this construction from the intersection’s northeast corner to the middle of University Avenue. However, this option “was ruled out due to the potential impacts” on the existing Line 1 subway service.
“Excavating immediately overtop of the existing subway tunnels under University Avenue would mean shutting down Line 1 subway service for several years and drastically impacting traffic on one of the city’s major roadways, which connects to several major hospitals,” the Metrolink blog says. Numerous power, gas, and telecommunications lines under the street would need to be avoided, which ruled out this option.
Metrolinx says it is also working to protect as many mature trees as possible and to develop plans for beautifying and restoring the space after construction with new vegetation and landscaping.
“Metrolinx only removes trees that are absolutely necessary to accommodate construction, and the agency will plant three or more trees for every one tree removed for the Ontario Line project.”
The Parsons Report examined ten areas near the University-Queen intersection, including Osgoode Hall, Osgoode Plaza, the Canada Life Building, the Bank of Canada Building, the Four Seasons Centre and Campbell House.
It says Osgoode Hall “would appear to be the most suitable option” for the station “as it provides sufficient at-ground pedestrian and traffic flow at the critical westbound streetcar stop, with a workable design for both the keyhole excavation site and the vertical circulation needed to connect the existing Line 1 concourse level with that of the Ontario Line.” It did suggest, however, that Metrolinx look into a design for the Campbell House site because it is a “potentially feasible alternate location.”
The Ford government unveiled the almost 16-kilometre,15-stop Ontario Line in 2019, expanding on the city’s initial Relief Line proposal. When completed, the Line will connect with 40 other transit routes, including GO train lines, TTC subway and streetcar stops, and a new east-west light rail line currently being built.
Metrolinx has pegged the project’s total cost at almost $11 billion, and it is scheduled to be in operation by 2030.
