Developer asks for Greenbelt bill amendment; lawyers raise spectre of courts

Developer asks for Greenbelt bill amendment

Thestar.com
Nov. 23, 2023
Allison Jones

The owner of one of the 15 properties removed from the Greenbelt is asking the Ontario government to exclude its plot from a bill to return all that land to the protected area, with lawyers raising the prospect of a constitutional challenge if the legislation passes as is.

Minotar Holdings Inc. has long held that its 37-acre property in Markham, Ont., was incorrectly included in the Greenbelt in the first place when the protected swath of land was established in 2005. The company sued the province over it in 2017 for $120 million.

So 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 housing minister identified the other 14, reports from the auditor general and integrity commissioner have found.

Minotar and the government agreed that removing that property's Greenbelt designation would settle the lawsuit.

But then reports from the two legislative watchdogs found that the Greenbelt removals process unjustly favoured certain developers, and Premier Doug Ford announced that all the land would be put back.

New Housing Minister Paul Calandra introduced legislation to do that last month and, along with preventing affected developers from seeking remedies for the reversal, it also contains a clause retroactively voiding the settlement between the government and Minotar.

Lawyer Paul Fruitman said Minotar feels like the rug has been pulled out from under them.

"They're quite obviously perplexed by this," Fruitman said of his client in an interview.

Terminating a contract in this way sends a bad signal to other businesses in the province, he said.

"It's easy, I think, for people to not be incredibly sympathetic for developers all the time," Fruitman said. "They're not the most sympathetic, but this kind of thing where the province will just cancel agreements because it's politically expedient to do it ... It is kind of ironic that this is the government that's supposed to be open for business."

The Greenbelt reversal bill is soon heading to a legislative committee for consideration and Minotar's lawyers have formally asked for an amendment to remove that section.

"The Constitution Act does not allow the legislature to oust the legitimate role of the courts and the bill leaves open an ostensible path to further litigation via judicial review," the Minotar lawyers wrote in their submission.

Fruitman said it remains unclear if the opportunity to seek a judicial review, as provided for in the legislation, is an actual possibility or just "illusory."

"If the judicial review avenue proves to be hollow, and proves to be non existent, then there would be a constitutional challenge," he said.

A spokesperson for Calandra indicated the government is not considering an amendment to the clause that terminates Minotar's settlement with the province.

"We are following through on our commitment to fully restore these lands and provide enhanced protections to the Greenbelt moving forward," Alexandru Cioban wrote in a statement.

Minotar's lawyers said the property is devoid of any natural heritage features and the province has never provided a satisfactory explanation of why it was included in the Greenbelt.

"The best evidence was that the inclusion of the Minotar property was the result of a mapping mistake or inadvertent error," the lawyers wrote in their submission.

"The evidence also showed that Ministry of Municipal Affairs staff had proposed removing the majority of the Minotar property from the Greenbelt during the 10 year review process beginning in 2015, but that political interference caused staff to change course."