Canadian Environmental Assessment Act Does Not Apply to Municipal Expressway Project

In an April 24, 2001 decision with important implications for both private and public infrastructure projects across Canada, the Federal Court Trial Division ruled that the $350 million Red Hill Creek Expressway project proposed by the former Region of Hamilton-Wentworth (now City of Hamilton) can be completed without undergoing a second environmental assessment under the Canadian Environmental Assessment Act (CEAA).

Madam Justice Eleanor R. Dawson agreed with the city’s argument that the CEAA does not apply to the project, which received approval after a 99-day hearing before a joint board comprised of members of the Ontario Municipal Board and the Ontario Environmental Assessment Board in the 1980s. She held that environmental assessment should not apply where a project proponent can demonstrate the project is no longer in the planning stages and the proponent has made “irrevocable commitments,” such as expropriation of lands, obtaining financing and an official plan amendment.

The court also held that referral of the municipal project to a review panel by the federal Environment Minister was not validly supported. Concerns about how the expressway would affect migratory bird habitat or public concerns about the need for the expressway did not support the use of federal environmental assessment legislation.

David Estrin and Andrew Lokan of Gowling Lafleur Henderson LLP’s Toronto office acted for the Region, now City of Hamilton. The respondent federal government was represented by Department of Justice lawyers Peter Vita, Q.C., Janice Rodgers and Anne-Marie Waters. Janet Minor and Richard Stewart represented the Attorney General of Ontario, who intervened on the constitutional issue. Paul Muldoon and Theresa McClenaghan of the Canadian Environmental Law Association represented the intervenor, Friends of the Valley.