The Osgoode Hall Trees vs. the Ontario Line: Further Injunctive Relief Denied
In the recent decision of the Ontario Court of Appeal, Haudenosaunee Development Institute v. Metrolinx, 2023 ONCA 122, the Court considered whether an extension of an Order granting interim injunctive relief was appropriate, in the most recent skirmish in the battle over the removal of 11 trees near Osgoode Hall that has garnered a lot of recent media attention.
Facts and Previous Decisions
The subject of the Haudenosaunee Development Institute’s (“HDI”) initial application was the prevention of the removal of 11 trees on Metrolinx’s property next to Osgoode Hall. The Metrolinx property housing the trees had been expropriated for the purposes of Ontario Line subway construction. Metrolinx sought to remove the trees for the purposes of construction.
The Appellant’s initial application for an interlocutory injunction was heard on February 10, 2023 on an emergency basis by Justice Hackland. The written reasons were released on February 16, 2023. The application was heard in conjunction with Law Society of Ontario v. Metrolinx, 2023 ONSC 1169.
Briefly, the HDI and Metrolinx have entered into a series of engagement-related agreements. These agreements facilitate engagement of HDI in the project and, at least in part, allow for discussion of the impact of the project on the HDI’s rights and interests. There have been some disputes in relation to these agreements, which form the framework for Metrolinx’s consultation with HDI. The issue of adequate consultation appears to underlie the HDI’s arguments on these applications and motions.
At the initial application, Justice Hackland applied the test for injunctive relief as set out in RJR-MacDonald Inc. v. Canada (Attorney-General),1994 CanLII 117 (SCC),  1 S.C.R. 311, at p. 348:
- There is a serious issue to be tried;
- Irreparable harm will result if the relief is not granted; and
- The balance of convenience favours the moving party.
In applying the test, Justice Hackland found that there was no irreparable harm to HDI arising from the tree removal. The trees are “not special” and will be replaced upon completion of construction. The balance of convenience did not favour the HDI, as delay caused by the injunction could result in financial penalties to Metrolinx and taxpayers.
The HDI sought leave to appeal the Order of Justice Hackland to the Divisional Court and was granted interim relief on February 17, 2023 by Corbett J. of the Divisional Court pending the outcome of the Divisional Courts decision to grant leave to appeal.
The Divisional Court denied the HDI’s motion for leave to appeal on February 21, 2023.
The issue before the Court of Appeal was whether the interim relief granted by Corbett J. should be extended. The outcome, should the relief sought be granted, would be an interim injunction preventing Metrolinx from cutting down the 11 trees until the Court of Appeal rendered its decision on the motion for leave to appeal to the Court of Appeal.
The Court of Appeal considered whether the test for injunctive relief was met, and in doing so, considered when a party may appeal from a decision of the Divisional Court to deny leave to appeal.
Outcome and Reasoning
The motion was dismissed. The injunctive relief was not granted.
The Court of Appeal determined that the first part of the RJR test for injunctive relief, the requirement for a serious issue, was not met. This is because leave to appeal to the Court of Appeal is not available from a decision of the Divisional Court denying leave to appeal under the circumstances arising in this case.
There is a narrow exception to the rule that leave to appeal decisions at the Divisional Court cannot be appealed. The exception applies where the Divisional Court judge “mistakenly declined jurisdiction”, or where an essential statutory right is breached. The example mentioned by the Court of Appeal was where a decision is reached on the basis of submissions from one party without hearing from the other.
The HDI argued that the circumstances of this case should be included in the exception, given that it alleges its constitutional rights to consultation have been breached, and they are procedural in nature.
Ultimately, the Court of Appeal found a distinction between the allegations by the HDI which involve procedural breaches as between the parties, as opposed to the breaches which may give rise to the exception, which are procedural breaches made by the court in granting or denying leave to appeal.
Given that each prong of the RJR test must be met for injunctive relief to be granted, the court did not consider the other prongs of the test.
Substantively, this case is instructive with regard to application of the RJR test for injunctive relief and the interpretation of the narrow exception to the rule that leave to appeal decisions from the Divisional Court cannot be appealed.
At present, it appears that the issue of injunctive relief in this case is decided. However, there is reference to a further application for declaratory relief in the initial application, which may still be brought by the HDI.