Government lawyers seek to dismiss Kemptville jail court challenge over time-limit technicality

Opponents of the province’s plan for a 235-bed jail in Kemptville are hoping to overcome a legal hurdle in their bid for a judicial review of the government’s controversial decision to build the facility in their community.

In a Divisional Court hearing this week, lawyers for Ontario’s Solicitor General asked a judge to quash the bid for a judicial review, citing a time-limit technicality and arguing the government had already invested too much time and taxpayer money on the land purchase and construction design to abandon plans for the proposed Eastern Ontario Correctional Complex.

Kemptville’s selection as the preferred site for the future jail caught many in the community by surprise — including municipal officials — when it was announced by the Ford government in August 2020.

The jail is expected to be completed in 2027 and the ministry has previously stated the facility will serve to alleviate pressure on the aging and overcrowded Ottawa-Carleton Detention Centre.

Article content

Article content

Stéphane Émard-Chabot, lawyer for the grassroots opposition groups, said the province “ignored” provincial policy concerning permitted uses of farmland, “failed to consider” the municipality of North Grenville’s official plan — which designates the 180-acre farmland as agricultural — and didn’t meet its obligations for community consultations before announcing the project.

In a media release before Tuesday’s hearing, Émard-Chabot said he would ask the judge “to reject the province’s desperate motion to dismiss the case so that a tribunal can do its work to determine the legality of bypassing legislative obligations to irreparably destroy increasingly scarce farmland for a prison.”

In seeking to dismiss the case, the province is attempting to “bypass” a process “that would determine the legality of the EOCC site selection,” Émard-Chabot said.

Article content

“The province is claiming undue hardship by arguing that my clients took too much time to file their judicial review application and that the government has already spent considerable funds on the project. My clients are ordinary citizens who volunteered much of their time to try to get the Ford government to explain its site selection process and prove that it followed that process, only to be met with roadblocks and even outright hostility,” he continued.

Susan Keenan, counsel of the Solicitor General, argued in court the application came “excessively late” in the proceedings, with legislation now stipulating that any application for judicial review must be filed within 30 days of a decision.

Émard-Chabot countered that point by saying the decision was made “behind closed doors” and evolved over a number of years without a clear public understanding or consultation.

Article content

“Although we’re using the public announcement of the project on Aug. 27, 2020, as the decision moment, this in fact is a process that evolved over a number of years,” Émard-Chabot said.

Justice Robert J. Smith acknowledged the difficulty in establishing the timeline in the “unusual” case.

“The decision is sort of an evolving (process),” the judge said. “There’s a press release, there’s a decision made, it’s announced … It’s not like a hearing before a labour board or (court), where there’s a full hearing and a decision and the divisional court would consider it 30 days from a clear decision…

“This is a different situation. This is not a review of a tribunal decision, it’s an announcement of a minister’s decision.”

Article content

Émard-Chabot cited numerous redacted documents obtained by opposition groups led by Kemptville residents Kirk Albert and Victor Lachance, who enlisted the Sicotte Guibault firm and launched their application for a judicial review in August 2022.

He argued the applicants were not provided with information they had requested concerning the selection of Kemptville as the preferred site.

“They had exactly four pages of records at their disposal … four slides from public presentations,” Émard-Chabot said. “All those provide are a handful of bullet points justifying the choice of Kemptville … Without that record, there wasn’t a cogent opportunity to challenge the government’s decision.”

Keenan said the province would be on the hook for millions of dollars in “sunk costs” — or money the province could not recoup — if the project was abandoned.

Article content

The government has paid more than one million in “holding costs” to retain the property for two years, Keenan said, and has already spent more than one million in “due diligence” expenses.

“Infrastructure Ontario was hired by the ministry to do all this site-selection work and they bill for their time,” Keenan said, citing a $1.8-million bill during the delayed selection period.

Keenan countered the suggestion the province could recoup its costs by selling the property at market rates and finding a new site.

“You could maybe sell the property, but there are definitely millions of dollars at stake,” she said.

Smith said he would reserve his decision and would get back to the parties “as soon as possible.”

[email protected]