Limits to Provincial Immunity from Judicial Scrutiny: Ontario Place Protectors Case Headed to the Supreme Court

The Supreme Court of Canada has been back in session since January 13, 2026, with hearings currently scheduled through May 20, 2026. The Court has already heard one notable administrative law matter this term, Democracy Watch v. Attorney General of Canada, and several significant civil appeals are expected to proceed as the year unfolds, including Facebook Inc. v. Privacy Commissioner of Canada (Federal).

Among the most consequential cases on the Court’s upcoming docket is a constitutional challenge arising from the redevelopment of Ontario Place.

Supreme Court Grants Leave in Ontario Place Protectors

On January 8, 2026, the Supreme Court granted leave to appeal in Ontario Place Protectors v. His Majesty the King in Right of Ontario and Attorney General of Ontario. A hearing date has not yet been set.

The appeal centres on the redevelopment of Ontario Place, a prominent urban waterfront park in Toronto that has generated significant public debate. To facilitate the project, the Ontario legislature enacted the Rebuilding Ontario Place Act, 2023, S.O. 2023, c. 25, Sched. 2 (“ROPA”).

ROPA exempts Ontario Place from the application of several existing statutes, including the Environmental Assessment Act and the Ontario Heritage Act, and removes the City of Toronto’s authority to regulate noise emissions from the redevelopment site.

Constitutional Challenge and Lower Court Decisions

Ontario Place Protectors, a coalition opposing the redevelopment, brought an application before the Ontario Superior Court of Justice challenging the constitutionality of ROPA. The applicants argued that the legislation impermissibly insulated state action from judicial scrutiny, contrary to section 96 of the Constitution Act, 1867, and that the statutory exemptions breached an alleged public trust obligation owed by the Crown.

The application judge denied public interest standing and concluded that the constitutional challenge would fail in any event, noting that ROPA preserved the availability of judicial review.

In March 2025, the Court of Appeal for Ontario dismissed the appeal. While the Court of Appeal held that the application judge erred in denying public interest standing, it ultimately agreed that the constitutional challenge could not succeed.

The Court emphasized that, although legislatures cannot remove the courts’ power of judicial reviewm as affirmed in Crevier v. Attorney General of Québec and Canada (Minister of Citizenship and Immigration) v. Vavilov, ROPA did not immunize either the substance of the law or the procedures governing litigation from judicial scrutiny. Nor did it impair the core jurisdiction of superior courts.

The Court of Appeal also rejected the public trust argument, finding that no such doctrine has been established in Canadian law. Even if it were to exist, the Court noted, it would apply to Crown action rather than to legislation itself and would not be violated by the provisions of ROPA. The Court further observed that the judiciary is not an alternative forum for resolving political disputes.

Looking Ahead: Why This Case Matters

The Ontario Place Protectors appeal raises fundamental questions about democratic accountability, the separation of powers, and the constitutional limits on legislative authority in Canada.

More broadly, the case reflects a growing trend among provincial governments, including Ontario, Québec, and Alberta, of shielding government action from legal scrutiny by pre-emptively overriding existing statutes or, in some instances, invoking the notwithstanding clause to limit Charter review.

The Supreme Court’s decision will provide important guidance on:

• the extent to which governments may insulate their actions from the courts’ inherent supervisory jurisdiction; and
• the ability of members of the public to challenge government policy and legislation through the courts.

The outcome is likely to have lasting implications for constitutional litigation, administrative law, and public interest standing across Canada.

How Our Lawyers Can Help

If you are involved in a constitutional or administrative law challenge, the Litigation Group at Perley-Robertson, Hill & McDougall LLP/s.r.l. can assist. Our lawyers regularly act in complex disputes involving constitutional principles, public law, and judicial review.

We provide strategic, practical advice from the earliest stages of a claim, helping clients assess risk, navigate procedural requirements, and determine the most effective path forward. With extensive experience before all levels of court in Ontario, our team is well equipped to protect your interests and guide you through even the most challenging litigation matters.