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Ontario court dismisses legal challenge to CN Intermodal facility in Milton

Ontario court dismisses legal challenge to CN Intermodal facility in Milton

Reading a news release from the Region of Halton regarding a court decision on the CN intermodal hub, one might be led to believe that the Region had achieved some success in its attempt to block the facility. In fact, the Ontario Superior Court of Justice pretty much demolished legal arguments presented by the Region that it could use local planning bylaws to block the project. The document showed that Halton had hoped to use local zoning bylaws to prevent the construction of the project; but the court ruled that CN might have to comply with some local bylaws as long as they didn’t serve to block the project altogether.

Wrote the Region: “The Court decision flatly rejected CN’s claim that as a federally regulated rail project, it was immune from over 60 provincial and local laws designed to protect people and the environment from adverse and harmful impacts that would be caused by the facility.”

Wrote the judge: “The applicants do not have the right to prevent CN from proceeding with the intermodal hub… They cannot require CN to apply for permits that will subject CN to an unconstrained discretionary administrative process as to whether and where it can locate its intermodal facility… Cooperative federalism may require tolerance and cooperation where people may not wish to be tolerant or to cooperate. But that is our uniquely Canadian system of division of powers under the constitution… The application is dismissed.”

The region’s legal position was seriously undercut by the province which submitted a brief that essentially sided with CN, writing: “Ontario regrets that the federal government did not place greater weight on the concerns expressed by local residents in making its decision to approve the Development. However, given that the federal government has done so, Ontario accepts that it is a clear matter of constitutional law that provincial and municipal law cannot block the Development’s construction or operation.”

The Region’s news release went on to say, “while the decision did not grant the Halton Municipalities request for an immediate injunction, it did leave open the door for future activity by the Halton Municipalities to continue to enforce their laws in the public interest.” In fact the court ruling flatly rejected any injunction against the project, immediate or otherwise.

The release says the region will continue to pursue the matter in federal courts.

The project was approved after it underwent a review under the Canadian Environmental Assessment Act as well as a  Joint Review Panel by the federal Minister of the Environment and Climate Change and the Canadian Transportation Agency. 325 conditions were attached to the Development to mitigate some of its significant adverse environmental and health effects. In its brief the province wrote, “Ontario expects the Development to comply with the conditions and that enforcement measures will be taken against it under federal laws in the event of non-compliance.”

CN first floated the idea of the intermodal yard in 2001 when Milton’s population was 31,000, in the intervening years the town has increased population by more than 100,000, most of the expansion taking place in a southerly direction towards where the proposed hub is to be  located.

The full court ruling can be accessed here.

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