Ford's Greenbelt flip-flop could spell legal trouble for taxpayers, lawyers say

The Ontario government's sudden reversal on opening up parts of the Greenbelt for development could now put it and taxpayers in legal jeopardy for potential damages, some legal experts say.

Last month, Premier Doug Ford apologized to Ontarians and walked back the government's decision to remove 2,995 hectares of protected land from the Greenbelt to pave the way for housing development. The stunning flip-flop came after public outcry and separate inquiries from both the province's integrity commissioner and auditor general revealed major flaws with the process.

While critics of the plan cheered the reversal, lawyer Tim Gilbert said it's unlikely developers will forgive so easily.

"I don't think apologies go far enough. I think developers are interested in making money and building homes. That's what they're there to do," said Gilbert, managing partner at Gilbert's Law.

CBC Toronto spoke to several legal experts about the potential for civil liability, which comes as the RCMP launches a criminal probe into the matter. 

In general, legal experts say governments are not held liable for decisions they make about land use. But some say developers that own the lands being put back under protection could sue the province to attempt to recoup money spent developing plans and investing in the required infrastructure. Others say those who bought land at a premium could also seek damages.

The protected agricultural land soared in value to about $8.3 billion after last November's initial Greenbelt opening announcement, Ontario's auditor general found in his report.

For instance, in 2017, Flato Developments spent $15 million on just over 41 hectares of farmland outside of Markham, Ont. Property. Corporate records show the company then sold about 29.5 hectares of that land to yet another development company, Torca UMV Inc., in April 2022 for $62 million. 

About 4.5 hectares of that land was removed from the Greenbelt. Once the Ford government formalizes its reversal in legislation, nearly 15 per cent of the land will become once more undevelopable — and much less valuable.

Ford sidestepped questions last month about what the legal ramifications of the reversal might be, but Gilbert said he can see the government justify not paying anything by leaning into the fact that not much development has happened yet.

Still, Trevor Farrow, dean of York University's Osgoode Hall Law School, said developers could try to hold the provincial government liable for money spent on architects, designers and other experts hired to map out prospective builds.

"There's nothing normal about this situation at all."

Housing Minister Paul Calandra has stated that forthcoming legislation will include a provision to codify the boundaries of the Greenbelt and a provision to prevent developers from seeking compensation. 

He argued despite the land being removed from the Greenbelt, no zoning had been changed and therefore the circumstances surrounding development never changed.