How the Doug Ford government's Greenbelt bill aims to quash $120M lawsuit

New legislation tabled by Premier Doug Ford's government to return land to Ontario's Greenbelt also seeks to shut down a developer's $120-million lawsuit that began before the Progressive Conservatives took office.

The government's bill, the Greenbelt Statute Law Amendment Act, would stop all landowners whose Greenbelt properties were selected for housing development from taking any future legal action against the province, cabinet ministers and government staff in response to Ford's U-turn.

But the bill also aims to quash a specific legal action that was launched in 2017: a lawsuit by Minotar Holdings Inc. claiming that land it owns in Markham should never have been put in the Greenbelt in the first place.

Last November, Ford'sgovernment removed 15 hectaresof Minotar'sland from the Greenbelt along with 14 other parcels across the protected area. Last month, facing growing backlash over the moves, the premierreversed course, meaningthe company will no longer be permitted to build on the property.

The new legislation not only prohibits Minotar from seeking damages from the government over Ford's reversal, it also explicitly bars it from taking any further action in the lawsuit it began six years ago.

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Municipal Affairs and Housing Minister Paul Calandra introduced legislation Monday to return land from Ontario's protected Greenbelt that his government had previously removed for housing.

A lawyer for the company says the Minotar property is being unjustly lumped together with the 14 other parcels, all of which werepicked for removal from the Greenbelt by a senior political staffer in Ford's government.

"Its removal from the Greenbelt was the result of a careful review by staff at the government, not the result of a political process," lawyer Jonathan Lisussaid in an interview.

Ontario's auditor general and integrity commissioner foundthe government'sprocess for choosing sites favoured certain developerswho haddirect access to the housing minister's chief of staff. Lisus says those concerns donot apply to the Minotar property.

The Minotar Holdings land islocated north of Major Mackenzie Drive between Kennedy Road and McCowanRoad. Itwas the only one of the 15 propertiesremoved from the Greenbelt last November that was recommended by provincial civil servants, according to the investigations by both the integrity commissioner and auditor general.

Their reports concluded that all other parcels were picked by Ryan Amato, chief of staff to the then-minister of municipal affairs and housing, Steve Clark.

The reports slammed the government for giving preferential treatment to well-connected developers. Theauditor estimated the moves boosted the value of the selected land by some $8.3 billion, and both Amato and Clark resigned in the wake of the scandal.

The integrity commissioner's report describes the Minotar property as "entirely unique" among the parcels selected for removal from the Greenbelt, and says ministry staff "had been very familiar" with it because of the ongoing lawsuit.

"When they received direction that the government wanted to proceed with removing specific sites, ministry officials proposed the government consider including this 37-acre site, which had been the subject of litigation for several years and had been scheduled for trial," says integrity commissioner J. David Wake in his report.

When the Ford government removed the Minotar site from the Greenbelt last November, the company agreed to settlethe lawsuit, and it was officially terminated by consent in March of this year.

'Raises serious issues about the rule of law'

Lisus says the government is now trying to use legislation to retroactively wipeout the settlement agreement that the company entered into ingood faith.

"The practice of trying to unwind good-faith agreements for political reasons is a problematic one, and that's what the government is doing with the Minotar lands," he said.

"I think that it raises serious issues about the rule of law, about fairness, about the reliability of government, and about the integrity of contracts and agreements with government."

Lisus says he hopes the government will remove the clauses in the bill that specifically target the Minotar lands. If those clauses pass, he and the company will "have to consider what steps we take."

Legal experts say the government is going to great lengths in its new legislation to shield itself from lawsuits over its Greenbelt flip-flop.

Trevor Farrow, Dean of Osgoode Hall Law School, describes the protections from liability in the bill as broad.

"It's really designed to essentially insulate all those involved in this government's change in direction," said Farrow in an interview."It not only applies going forward, it applies going backwards and that's the unusual thing about this."

The bill includes clauses prohibitinglegal action, compensation or damages related to "the Superior Court of Justice proceeding commenced at Newmarket and identified as Court File number CV-17-131956-00," which is the 2017 Minotar lawsuit.

Farrow, whose teaching and research focuses on civil law procedures, says it's uncommon for a particular lawsuit to be named in a piece of provincial legislation."I think that's another reason for why this is a relatively unusual, not the typical approach to things," he said.

Cherie Metcalf, associate dean of research in the faculty of law at Queen's University, takes a similar position. She says the provisions in the bill that would prevent anyone from launching lawsuits related to the Greenbelt reversal are "really quite broad."

"It covers really a wide range of possible claims that somebody could bring when their property is taken in and out of the Greenbelt, especially given the concerns that have been raised around the process itself," said Metcalf in an interview.

The law professors say it's common practice for governments to limit their liability from legal action over policy decisions. But those limitsstill typically allow for lawsuits claimingpublic officials acted in bad faith or abused their powers, known as misfeasance.

The Ford government's Greenbelt bill explicitly rules out damages for bad faith ormisfeasance in public office.

Municipal Affairs and Housing Minister Paul Calandradenies that the bill goes too far in shielding the government from lawsuits.

Liability protections 'similar' to original Greenbelt bill

"We followed the provisions in 2005 that protected the government, that provided enhanced immunity protections for the government, similar to what was done in 2005 when the original [Greenbelt] Act was brought forward," he told a news conference after introducing the bill.

"We are following through on our commitment to fully restore these lands and provide enhanced protections to the Greenbelt moving forward," added a spokesperson for Calandra in an email. "These proposed changes will not cost the taxpayers anything."

Minotar's lawsuit sought $120 million in damages from the province for alleged "negligence, negligent misrepresentation, and misfeasance in public office."

The lawsuit, filed in July 2017, claimed that24 hectaresof "valuable developable land" was "wrongfully and erroneously included in the Greenbelt Area."

The property is part of a larger parcel that Minotar purchased for $7.5 million in 2003, two years before the Liberal government of Dalton McGuinty created the Greenbelt.

The statement of claim filed by the company describes the property as "flat tableland containing no natural features" and says it would be worth $2 million per acre ($5 million per hectare) if it were not in the Greenbelt.

"The inclusion of land in the Greenbelt Area has a draconian effect," says the statement of claim. "The Greenbelt Area designation sterilizes the value of the land and is akin to expropriation as the land cannot be developed or put to any other productive use."

The company says the land was not included on the pre-2005 maps of the Greenbelt's proposed boundaries, but was included after the Greenbelt Act became law.

The lawsuit claims that provincial officials including former Liberal cabinet minister Greg Sorbara assured the company that the land had been added to the Greenbelt in error, and could be removed during the 10-year review of its boundaries in 2015.

The land remained in the Greenbelt even after the review.

Province denies developer's claim

In its response to the lawsuit, the province "specifically denies" that any officials advised the company that the land was included in the Greenbelt in error.

The province's statement of defence says ministry staff "concluded that there is significant environmental value"in the land because it includes provincially significant wetlands and headwaters of Robinson Creek.

Currently, Minotar and its partner Hal-Van 5.5 Investments Ltd. are developing an 840-unit housing project along Kennedy Road just to the west of the Greenbelt parcel, including townhouses, semi-detached and detached homes.

Since coming to office in 2018, the Ford government has introduced various changes to legislationall designed to make it harder to sue the province.

"It's a fairly drastic thing to not only change the landscape to move the goal posts, but then take away people's remedies when that happens," said Farrow, the Osgoode Hall dean.

"The worry that one would have if the government were to do that all the time is people will start to lose faith, to lose trust in a system that is typically predictable."