Bill 212, the Reducing Gridlock, Saving You Time Act, received royal assent on Nov. 25 and allows for the removal of several bicycle lanes in the City of Toronto and gives the provincial cabinet the power to remove other bicycle lanes. It also requires municipalities, in certain circumstances, to obtain approval from the Minister of Transportation before constructing new bike lanes.
This has led to significant opposition from the cycling community and the City of Toronto itself, but one aspect of the legislation is garnering concern from members of the personal injury bar — language that puts limitations on the right to sue by individuals who may be injured or killed because of the removal of bike lanes.
Specifically, the bill says that no cause of action can be brought against current and former cabinet ministers, employees of the Crown, and any current or former employee, officer or director of an independent contractor “for any act done in good faith in the exercise or performance, or intended exercise or performance, of the person’s powers, duties or functions under this Act or for any alleged neglect, default or other omission in the exercise or performance in good faith” of their powers, duties or functions.
For her part, lawyer Lindsay Charles said the way she reads the bill is that “if they take the bike lanes out, people can’t sue because there are no bike lanes.”
“If you’re seeing something like this, where they’re directly writing in a bill that you can’t be suing a province for us removing these lanes, it’s kind of concerning that they’re taking away an area of damages that someone could claim,” said Charles, who practises with McLeish Orlando Lawyers LLP in Toronto. “People still have recourse against the liable party that hit them, for example, but what it’s taking away is this additional area of damages.”
Steve Rastin, Gluckstein LLP
“What if the government passes a law that says if your property gets ruined because a chemical treatment plant is leeching toxins into the soil, you can’t sue us for environmental contamination?” he said. “If you start exempting yourself from the basic things that you should be doing as a state, you’re stepping away from the whole concept of it being subject to the law like everybody else.”
And although Anandi Naipaul of Hamilton’s Ross & McBride LLP said the legislation “isn’t as tragic as people might have initially thought,” she does share Rastin’s slippery slope concerns.
“What they’ve included in this legislation prevents someone from suing for their injuries or their family member’s death if the injury or death is as a result of the removal of a bike lane — and that’s actually very narrow when you stop and think about it; it would involve a limited number of scenarios because most motor vehicle accident lawsuits are caused by a driver’s action,” she said. “But it’s always a tragedy when the government is trying to shield themselves from any type of liability, and whenever I see an attempt like this where there is a specific clause saying you cannot sue under some circumstances, I think that is really overreaching.”
Naipaul said the Ford government may have learned lessons from its experience with 2019’s Crown Liability and Proceedings Act in narrowing the effect of the law. That law gave broad immunity to the Crown, or officers, employees and agents of the Crown, for actions involving provincial legislation, regulations and policy decisions — and parts of it were declared unconstitutional last year.
“This particular Conservative government has a history of trying to shield itself from lawsuits, and it should be concerning to everyone this government’s trying to do that once again,” she said. “But in comparison, it is likely not going to have the reach that some of the other attempts would.”
And taking away bike lanes was not the only aspect of Bill 212 that led to public concern — it also exempts the province’s Highway 413 project from the Environmental Assessment Act. The highway, which would link Mississauga to York Region, has been one of the focal points of Premier Doug Ford’s transit agenda.
And that move has led to calls for the federal government to launch its own assessment of the project, with advocacy organization Environmental Defence saying there is no alternative but for Ottawa to designate it for study under the federal Impact Assessment Act (IAA).
“With the outright cancellation of that assessment, that last remaining potential excuse for federal inaction has been removed,” the organization said in a statement. “[Federal Environment and Climate Change Minister] Steven Guilbeault and his colleagues in the federal government caucus now have to act directly. That means a fresh, independent federal impact assessment and denial of any and all Species at Risk Act and navigable waters permits associated with the 413 proposal for the foreseeable future.”
Government of Ontario representatives did not respond to requests for comment for this article.
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