Provincial legal regulator says Metrolinx agreed to await the findings of an independent review
Metrolinx has advised the Law Society of Ontario it will begin construction for a new Ontario Line subway station on the grounds of Osgoode Hall Dec. 5, which will include the removal of trees from the southwest quadrant of the property, at the corner of Queen Street and University Avenue.
The Law Society of Ontario, whose operations are located at Osgoode Hall, says Metrolinx is taking this step despite having committed to support a third-party independent review of alternative station designs, overseen by the City of Toronto, which has yet to be concluded.
“It is the Law Society’s position that tree removal or any other invasive work should not proceed until City Council receives and responds to the study and the community is fully consulted,” says Wynna Brown, LSO’s director of external relations and communications.
On Friday, the Federation of Ontario Law Associations, which represents 46 county and district law associations in Ontario, sent a letter to Mayor John Tory voicing its “grave concerns” about Metrolinx’s plans, and urging the City of Toronto to take action. The excavation and tree-removal will have “devastating and irreversible impacts… that will take a lifetime to repair,” said the letter. Proceeding with work before the City receives and responds to the independent review is “premature, and in our view, disrespectful and heavy-handed,” FOLA said.
“It would appear that Metrolinx is trying to short-circuit the very process it agreed to, because once the mature trees are gone, it will be too late for any change in course,” FOLA chair Douglas Judson told Law Times. “They’re racing to start the project before further political resistance finds its feet to stop them. It’s important that people understand that both the building and the grounds have a heritage designation.”
“Law Society is the custodian of this historic property and greenspace, and they are not supportive of what Metrolinx is doing,” he says. “That should tell people something.”
In the public notice it sent to the LSO on Nov. 17, Metrolinx said that from Dec. 5 to 9, it will remove five trees to make room for a 41-metre-by-28-metre test pit that it will use to conduct an archaeological assessment of the Osgoode Hall Property. The notice said “all other trees on the property will be retained and protected as part of this work,” and that the tree-removal had been approved by the City.
When the news broke on Tuesday, Osgoode Hall law professors, lawyers, and many others took to Twitter to express outrage at Metrolinx’s plans to tamper with a rare green space in downtown Toronto, which has been maintained for more than 200 years.
Osgoode Hall Law School professor Bruce Ryder Tweeted: “Osgoode profs should chain ourselves to the trees.”
Ryder told Law Times: “I was shocked that they were making the announcement before the consultant study has been released or completed… The grounds of Osgoode Hall, to me, are a very important part of the history of the city and we don't have many spaces like it that are still green.”
Ryder has been on the Osgoode Hall Law School’s faculty since 1987, and is an expert in contemporary constitutional issues including federalism, equality rights, freedom of expression, Aboriginal rights, and Quebec secession. While he says expanding transit is an important objective, it does not justify steamrolling over other important interests, and the decision must be made with adequate public consultation.
“I, of course, understand the objectives and the need for this subway line. What’s disturbing is when the importance of the objective is used to create a false sense of urgency, or false necessity. And I think we've seen that from this government on a number of files.”
Professor Patricia McMahon, who teaches and researches in civil procedure, law and equity, and legal history at Osgoode, says that one of the important features of process is how it serves as “a way to level the playing field” so that interested stakeholders are given notice and an opportunity to respond. McMahon says she was shocked when she heard Metrolinx planned to move ahead despite having agreed to await an independent third-party review.
“That’s not what we expect from public agencies. We expect everyone to abide by decisions to follow public processes, especially when the participants agree to do so. That’s the way the rule of law works.”
“I hope Metrolinx does the right thing and agrees to wait until the review is complete before taking down the trees,” she says. “Hopefully, there will be a meaningful community discussion to figure out how best to accommodate needs for public transit and trees. Public transit and trees shouldn’t be a zero-sum proposition.”
Judson adds that the construction could undermine the functioning of the courts located at the Osgoode property.
“Osgoode Hall is Ontario’s judicial centre,” he says. “We set out in our June 1 letter the level of disruption that Metrolinx intends to inflict on it. Fifty truck per day. Removal of 96,000-squared meters of material. Back-up beepers. Pile driving right outside the Court of Appeal windows. None of this is conducive to ensuring public confidence in the administration of justice.”
Judson also shared on Twitter a letter from the Sir William Campbell Foundation, addressed to Ontario Line sponsor Malcolm MacKay. The foundation operates Campbell House, which is located across University Avenue from Osgoode Hall on the north-west corner of the intersection. Noting that the decision to commence construction “would fly in the face of Metrolinx’s prior commitment to the city and to the community that it would support the City’s third-party independent review,” the foundation is requesting that Metrolinx pause the removal of trees slated for Dec. 5 until City Council has received and responded to the review. Campbell House also asks that Metrolinx organize a community meeting to discuss the matter.
A spokesperson from Metrolinx told Law Times that its technical teams considered six locations other than the Osgoode Hall property, but concluded that “this is the option that provides the most benefits.”
“The northeast corner of University Avenue and Queen St. W is the only location that can accommodate the construction of Osgoode station,” the spokesperson says. “Land is required for the construction laydown and digging of a shaft that will allow for underground excavation and construction of this new large underground complex, while leaving room to ensure existing pedestrian, bicycle, transit and vehicle traffic continues to flow.”
Metrolinx must ensure there is enough space for passengers, to adhere to fire codes, accessibility standards, and to facilitate the transfer to streetcars on street level, the spokesperson says.
Though Law Times asked, the spokesperson did not say whether Metrolinx committed to the third-party review nor what its current status is.
The spokesperson noted that Osgoode Station will be within a 10-minute walk from more than 16,500 residents, and connect to more than 110,500 jobs in the area. The company expects the station will serve nearly 12,000 passengers at peak hours.
“Metrolinx will make sure to take every reasonable effort to lessen short-term impacts at Osgoode Hall and then work with partners to restore and beautify the grounds,” the spokesperson says.
“We will continue working through these issues with the City, Law Society of Ontario and other stakeholders in the coming months and years as the project advances. Another community meeting will be held in the coming weeks to provide the very latest plans for the Ontario Line Osgoode Station.”