Premier Doug Ford’s government lost yet another court case this week. It has become a bit of a trend.
Since taking office in 2018, Ontario’s Progressive Conservative government has fought and failed in a succession of high-profile lawsuits. Most of the cases have involved legal challenges against new policies or legislation.
The most recent courtroom loss: an Ontario Divisional Court ruling that the government violated the province’s Environmental Bill of Rights with a piece of COVID-19 recovery legislation.
Why is the government losing court cases with such frequency?
One theory comes from Michael Bryant, executive director of the Canadian Civil Liberties Association, a former attorney general of Ontario in Dalton McGuinty’s Liberal government.
Bryant says public interest groups nationwide are showing a greater willingness to defy Canada’s tendency to not be litigious.
“It’s a legitimate means to access our constitution, to go to the courts, and we’re doing it more than ever,” Bryant said in an interview.
He also believes the Ford government is giving groups in Ontario plenty of ammunition for court battles by bringing forward “a lot of unconstitutional legislation, and I don’t mean that flippantly.”
Bryant says aligning legislation with the Charter of Rights and Freedoms “is less important to this government.”
Ford’s Attorney General Doug Downey declined a CBC News request for an interview to respond to the claims, but in a statement his press secretary said the Ontario government is involved in thousands of lawsuits each year.
“Cherry picking 14 cases out of these many thousands may seem convenient for opposition members, but it shows how little they understand about the actual business of governing on behalf of Ontarians,” said Natasha Krstajic in the statement.
CBC News has compiled the following list of cases the Ford government has lost in court (along with one major case the government has won, currently under appeal at the Supreme Court of Canada).
1. Carbon pricing
Arguably the highest profile loss for the Ford government was a case launched by the government itself: Ontario’s Charter challenge of the federal Liberals’ carbon pricing program. Ford campaigned on a promise to fight what he called the carbon tax, and budgeted $30 million in taxpayer funds for the court battle.
Ontario lost at every judicial level. In March, the Supreme Court brought an end to the legal challenges by ruling 6-3 that the Trudeau government’s carbon pricing regime is constitutional.
2. Election finance rules
In June, an Ontario Superior Court judge struck down new restrictions on election campaign spending by what the province calls “third parties” (interest groups that are not political parties, such as unions or corporate-funded lobbies). Within days of the ruling, Ford recalled the Legislature for an emergency sitting to push through a bill overriding the court’s decision through the use of the Charter’s notwithstanding clause.
3. Ministerial Zoning Orders
In a decision released on Sept. 8, a three-judge panel of Ontario’s Superior Court found the government acted “unreasonably and unlawfully” by failing to consult the public in advance of enacting Bill 197, the COVID-19 Economic Recovery Act.
The legislation changes the rules for Ministerial Zoning Orders, which are used to to fast-track land development projects. The judges said the minister of municipal affairs was bound by the Environmental Bill of Rights to consult Ontarians before making the changes.
“There’s a theme here, clearly,” said Gurratan Singh, the NDP attorney general critic, in an interview this week. “Doug Ford will do whatever it takes to keep his big developer friends or big business friends happy, despite the cost it is to the public or despite how legal it is.”
4. Cap and trade
In a similar finding in October 2019, an Ontario Divisional Court panel found the Ford government broke the law when it scrapped the previous Liberal government’s cap-and-trade system without first conducting public consultation. The decision was effectively moot because the ruling did not force the province to reinstate the program, which used financial incentives to force companies to reduce carbon emissions. The case was brought by the environmental group Greenpeace.
5. Gas pump stickers
The Ontario Superior Court struck down the Ford government’s policy that forced gas stations to post stickers vilifying the federal Liberal government’s carbon tax.
In a September 2020 ruling, Justice Edward M. Morgan said the government cannot legislate a requirement that private retailers post material designed to campaign against a political party or another level of government.
6. Cabinet mandate letters
The Ford government is pursuing a three-year legal battle to keep secret the premier’s mandate letters to his cabinet ministers. The letters lay out a checklist of expectations for each of minister, and the government first refused in August 2018 to release them in response to a request by CBC News.
In an adjudication decision in 2019, Ontario’s Information and Privacy Commissioner ordered the government to release the documents. The government then asked Ontario’s Divisional Court to overturn the decision, but lost that case too in 2020, and was ordered to pay the CBC $17,000 in legal costs.
The government then took the matter to the Ontario Court of Appeal. The case was heard in August and it’s not yet known when the judges will render their decision.
7. Student fees opt-out
The government’s Student Choice Initiative, announced in January 2019, would have allowed post-secondary students to opt out of paying fees for services deemed “non-essential,” such as funding for student unions and campus newspapers.
Successive court rulings went against the government, most recently in August by the province’s top court. The measure targeting fees for student associations was “a profound interference in university autonomy,” said the decision by a three-judge panel of the Ontario Court of Appeal.
The court also ordered the government to pay $20,000 in legal costs to the Canadian Federation of Students.
8. Failing to consult with First Nation
In a ruling released Sept. 1, an Ontario Superior Court judge found that the province failed in its constitutional duty to consult with the Ginoogaming First Nation before issuing a mineral exploration permit in its traditional territory.
The judge granted an injunction against mining activities in Wiisinin Zaahgi’igan, an area considered sacred by the people of Ginoogaming, located about 300 kilometres northeast of Thunder Bay. The injunction is temporary, with the judge ordering the First Nation and the province to conduct meaningful consultation and report back in January 2022.
9. Shielding government from negligence suits
The government lost its appeal of a $30-million class action award related to Ontario jails’ use of administrative segregation, a form of solitary confinement The Ford government fought the case in part by invoking new legislation it had introduced in 2019 that aimed to give the province broader immunity from negligence lawsuits. However, in its March 2021 decision, the Ontario Court of Appeal ruled that the operations of government cannot be shielded from liability claims.
10. Heritage building demolition
In January 2021, a community group won a court injunction that stopped the provincial government from demolishing a group of heritage buildings at the former Dominion Foundry complex in Toronto’s West Donlands to clear the way for a new housing development. In August, a the city if Toronto reached a deal with the province to preserve two of the buildings considered to have the greatest heritage value.
11. OHIP coverage for snowbirds
The Superior Court of Justice ordered the government in September 2020 to reinstate the Out of Country Travellers’ Program, which provided partial coverage for medical expenses incurred outside Canada, through the Ontario Health Insurance Plan (OHIP). The Ford government cancelled the program in early 2020, but the court ruled the move violates the Canada Health Act.
12. Wind farm cancellation
In May 2020, an Ontario Superior Court panel of judges overturned the Ford government’s cancellation of the Nation Rise wind energy project near Cornwall. The judges said the move by then-minister of the environment Jeff Yurek to revoke approvals for the project was “unreasonable” and “procedurally unfair.”
13. Tesla electric vehicle rebates
In July 2018, just days after taking office, the Ford government scrapped an incentive program offering rebates of up to $14,000 for purchases of electric cars. There was a two-month grace period for those who had ordered cars from dealers but the incentive ended immediately for anyone who ordered their vehicle directly from the manufacturer. That specifically hit Tesla buyers.
An Ontario Superior Court judge ruled that the government’s action was arbitrary and had singled out Tesla for harm.
14. Pay equity for midwives
Ontario’s midwives had waged a long-running legal battle over pay equity. The Human Rights Tribunal of Ontario ordered the province in early 2020 to provide midwives a back-pay increase of 20 per cent for the years 2011 to 2015. The Ford government took the case to a higher court to try to get the order overturned. In a June 2020 ruling, the Ontario Divisional Court upheld the pay equity award.
Ford’s biggest court victory
The Ontario Court of Appeal ruled in September 2019 that Ford’s government had the “legitimate authority” to cut the size of Toronto city council a few months before the 2018 municipal election.
The City of Toronto took the case to the Supreme Court of Canada. During the hearing in March, lawyers for the city argued that the Ford government “trampled” on democracy with the move, while lawyers for the province argued the ensuing election was free and fair. The court has yet to indicate when it will render its judgment.
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