Ontario developer launches constitutional challenge of law returning Greenbelt lands

The owner of one of the 15 properties removed from — then returned to — the Greenbelt has launched a constitutional challenge of a law that reversed Premier Doug Ford’s plan to open up the protected land for development.

Lawyers for Minotar Holdings Inc. filed the application Thursday in Ontario’s Divisional Court, arguing that the way the law is written violates “the constitutional principle of the rule of law.”

The Greenbelt Statute Law Amendment Act is the legislation fulfilling Ford’s promise to restore Greenbelt protections to 15 parcels of land. His government had removed them last year, but scathing auditor general and integrity commissioner reports found the process unfairly favoured certain developers and Ford was forced to reverse course.

Municipal Affairs and Housing Minister Paul Calandra has boasted that the law also enhances protection of the Greenbelt “to an unprecedented degree” by requiring any future boundary changes to be done through legislation rather than regulation. 

The original Greenbelt Act and subsequent changes have set and amended the protected area’s boundaries through regulation, a process that allows for judicial review of the government’s actions, Minotar lawyer Paul Fruitman said.

This government’s change actually immunizes it from judicial oversight, he charges.

“They’ve taken this step to try to prevent any review of what they’ve done with the Greenbelt,” Paul Fruitman said in an interview. “What makes it, in my view, in my submission, quite egregious is that it’s being done to save their political fortunes.”

Minotar wants the court to judicially review how its land has been treated. The developers have long held that their property in Markham, Ont., was incorrectly included in the Greenbelt in the first place when the protected swath of land was established in 2005.

But while there is language in the Greenbelt Statute Law Amendment Act saying the right for judicial review is preserved, Fruitman said statutes can’t be judicially reviewed. Regulations can be, he said.

“They have to, as a matter of law, preserve that right, but what they’ve done here is made that right illusive because by putting it in legislation as opposed to regulation, you can’t say, ‘I want to judicially review the statute.'”

Minotar sued the province in 2017 for $120 million over the land’s inclusion in the Greenbelt.

When the government set about removing land from the Greenbelt last year for the purpose of housing development, civil servants identified the Minotar property as one candidate. A political staffer serving at the time as chief of staff to the then-housing minister identified the other 14, reports from the auditor general and integrity commissioner have found.

Minotar and the government agreed late last year that removing 37 acres of their 210-acre property from the Greenbelt would settle the lawsuit, which had been set to go to trial in the spring of this year.

But then the legislation from this year returning all of the 15 parcels of land to the Greenbelt prevented affected developers from seeking remedies for the reversal — Minotar says it spent $400,000 on pre-development work before the reversal was announced — and contains a clause retroactively voiding their settlement.

“The province is ripping up a contract, effectively, in order to save itself politically,” Fruitman said. 

A spokesperson for the housing minister did not respond to a request for comment.