Fight to save Osgoode Hall grounds will take ‘strong leadership’

By Tony Poland, LegalMatters Staff • Even if Metrolinx wins the right to cut down trees on the venerable Osgoode Hall property, the fight to find an alternative site for a new subway station will continue, vows the Toronto Lawyers’ Association (TLA).

“The sound we are hearing is Law Society of Ontario (LSO) benchers of the past rolling over in their graves because of what has been going on with this transit project,” says TLA past president Michael White, who is a member of the association’s Osgoode Station subgroup. “During its long history, the LSO has worked diligently when the Osgoode grounds have been threatened and, in all instances, steps have been taken to preserve and protect it.

“If I were to guess, I would suspect Metrolinx wants to cut those trees down as quickly as possible because it would be seen as a symbolic victory,” he tells LegalMattersCanada.ca. “But this goes far beyond the tree issue. A significant part of this is the justice issue and the impact on Ontario’s justice system, of which there seems to have been very little consideration.”

Ontario Line will cut through downtown core

Metrolinx is building a $10.9-billion Ontario Line that will start at Exhibition Place and cut through the downtown core before ending at the Ontario Science Centre. It is slated to open in 2030.

Since learning about plans to construct a subway station at Osgoode Hall, concerned lawyers’ groups have been working behind the scenes to find a solution to avoid tearing up this heritage property. 

On Feb. 9, the LSO lost its bid to extend an interim injunction to halt the removal of trees on the property. However, on Feb. 14, Ontario’s highest court agreed to extend the injunction while awaiting more information following an appeal filed by the Haudenosaunee Development Institute (HDI).

“Now at least, there’s a stay of execution,” HDI lawyer Tim Gilbert told the Star. The organization represents development and land matters affecting Haudenosaunee rights and interests.

“Our hope is that if Metrolinx is allowed to cut down the trees, it will just strengthen the Law Society’s resolve to fight,” he says. “That they will see that for the affront that it is. It is going to take strong leadership from the benchers to continue this battle.

‘In a privileged position to stand up and take on Metrolinx’

“The TLA and the Federation of Ontario Law Associations (FOLA) have reached out to the Law Society and the City of Toronto offering to do everything we can,” White added. “But at the end of the day, the city and the LSO are in a privileged position to stand up and take on Metrolinx because of their position as the municipal authority and the landowner.”

The six-acre Osgoode Hall site was acquired by the Law Society in 1828. The property has been described as “an oasis” in the heart of the city and construction of a subway station would further erode what little greenspace remains in the downtown core.

“It is a city jewel and should be treasured as such. There are a significant number of people who are dismayed and shocked at what has transpired,” says White. “It is not just a green space. We are also talking about the home of our courts. There has been little to no consideration given to how this lengthy period of construction will impact the Ontario Court of Appeal and the Ontario Superior Court of Justice. There is going to be a construction zone literally right outside of their windows.” 

He stresses this is not a ‘not in my backyard’ (NIMBY) argument.  Rather it is a matter of protecting a federal heritage property. 

“We agree that improving public transportation is a worthy undertaking,” says White. “And we recognize Metrolinx is faced with a difficult challenge. But this has not been done in good faith. 

Independent review was offered

He explains that the LSO was assured that Metrolinx would wait for the city to undertake an independent review of the proposed Osgoode Hall project before moving ahead. 

“However, we know that Metrolinx started cutting trees before they even read the report that was prepared on behalf of the city by an independent infrastructure firm,” says White. “That firm recently confirmed to me that they had requested information from Metrolinx in November in order to complete their evaluation of Osgoode and other alternative sites and that Metrolinx failed to provide them with the information needed to complete their assessment. 

• TLA vows to ‘make it difficult’ to develop Osgoode Hall grounds
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“If the Law Society is intent on acting in the best interests of the Ontario public, which includes protecting a heritage site and protecting access to justice, they should press the issue of this broken legal contract.”

The city can also pursue the same argument, he says.

“The mayor’s office wrote to me in December and the mayor was clear that before any trees could be removed by Metrolinx, the city would need to see an independent review of the Osgoode site,” says White. “That review was completed but the authors of the report said they cannot give a reasoned opinion until Metrolinx provided information and Metrolinx never cooperated.

‘Certain degree of timidness to take on the province and Metrolinx’

“We certainly sympathize with the city and the Law Society. But there’s been a certain degree of timidness to take on the province and Metrolinx,” he adds. “Now is not the time to be timid because there are still steps that can be taken to deal with the position we find ourselves in. It is time to stand up and push back and explore all available options.” 

What is also perplexing is that the Osgoode Hall building was designated a National Historic Site of Canada in 1979, says White.

“Does it sound right to you that the federal government can designate Osgoode a heritage site but the province can expropriate the land and essentially ruin the site?” he asks. “Hopefully it is possible to engage the federal government on the potential impact of setting a precedent where a province can expropriate land that has been designated a national heritage site.

White says if Metrolinx was able to convince the province that there were no viable alternatives to the Osgoode site, “one can certainly appreciate why they would have gotten ministerial approval to expropriate the land.”

A viable alternative site is available

“But we now know that there is at least one other site that seems to meet the technical requirements for the construction of the station,” he says. “Campbell House, which is nearby on the northwest corner of Queen St. and University Ave., is reportedly willing and able to accommodate the project.

“We are saying if there is a viable alternative that isn’t going to disrupt a designated federal heritage site, then that should be explored.”

Metrolinx has done its best “to mischaracterize this as an issue of NIMBY and trees,” says White. 

“What the TLA is saying is this is not just about trees or trying to stop the important construction of a subway line,” he says. “There is the issue of broken contracts, the issue of a federal heritage site designation and we also know that there are possible grounds for a judicial review because the provincial minister who approved the expropriation of the land may have done so in the belief that there was no viable alternative. 

“The city and the Law Society could certainly pursue these legal avenues,” he adds.  “We also need people to push the federal government to take action the same way they did on the Greenbelt north of Toronto recently. People should be speaking to their Members of Parliament to get them involved.”

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