Court gives St. Clair streetcar green light
Feb. 22, 2006. 05:27 AM
VANESSA LU
CITY HALL BUREAU CHIEF

The troubled St. Clair streetcar project is back on track — again.

A Divisional Court panel yesterday gave the City of Toronto and the Toronto Transit Commission the go-ahead to build the 6.7-kilometre dedicated streetcar line along St. Clair Ave. W.

In a 19-page decision, the three-member panel ruled that the city has the legal authority to build the right-of-way that would physically separate the tracks in the centre two lanes of the street with a 15-centimetre raised curb.

"It is not for this court to inquire into the issue whether the project is good planning or bad planning or somewhere in between," said the ruling. "Those are political decisions made by elected members of city council. The court's duty is confined to ensuring that the process was carried out according to rule of law."

The grassroots organization Save Our St. Clair (SOS) has spearheaded the fight to block the $65 million transit expansion project.

Last October, a three-member Divisional Court panel sided with SOS, ruling the city violated the Planning Act with the project — putting the brakes on construction that had been set to begin.

Shortly after the loss, city lawyers complained that one of the judges — Justice Ted Matlow — was biased against the city because of a long-running battle over a development project in his neighbourhood.

After hearing the city's argument, the two other judges on the original panel, Justices Susan Greer and Ellen Macdonald, ruled that while they didn't believe their decision was tainted, it should be thrown out because of the perception of possible bias. That paved the way for a second hearing in January before the new panel.

The main issue is whether the project complies with the city's official plan — and which official plan.

Although the city adopted a new official plan in 2002, portions of it have been tied up in appeals before the Ontario Municipal Board.

SOS's lawyer Eric Gillespie argued that the streetcar project did not meet the conditions under the official plan dating from 1994.

However, because of the delays between the Divisional Court hearings, the OMB approved on Jan. 25 the city's transportation policies, ensuring that the streetcar project now complies with the new official plan.

"The court appears to be saying that the project can proceed," Gillespie said. "But the official plan is only partially approved."

He also questioned the panel's decision to ignore a long-held planning principle that states rules in place when an applicant begins a project apply even if rules change. "It does raise concerns if the goalposts can be moved for a whole community," he said.

SOS's Margaret Smith said, "We are disappointed at this outcome, but not yet convinced that this fight is over."

Her group has 15 days to decide whether to appeal.

Councillor Joe Mihevc said the city is eager to get construction under way.

"The only impediment right now is old man winter," he said, noting the city would have to pay an expensive premium to begin work immediately.

Negotiations with contractors are expected over the next few months, with work not likely to begin until May. Track has been sitting in the middle of St. Clair Ave. since the summer, and only buses are running between Yonge and Bathurst stations.

Estimates suggest the legal delays have cost the city $2.7 million — $1.9 million in inflationary costs plus $800,000 in legal bills.

Elizabeth Cinello, a spokesperson for the St. Clair Right-of-Way Initiative for Public Transit, which supports the project, was delighted with the ruling.

"We're really excited. We celebrate the decision," she said.