Cyclists seek injunction as Ontario bike lane removal work could start this month
Ontario won't begin removing bike lanes in Toronto until March 20 at the earliest — but a group of cyclists is applying for an injunction to prevent the work until their legal challenge against the plan has its day in court.
The group, led by Cycle Toronto, launched a legal challenge against the province's plan to remove bike lanes on Bloor Street, Yonge Street and University Avenue in Toronto.
The challenge will be heard in April, but the group wants to ensure that infrastructure isn't removed between late March and the April hearing. A hearing for the injunction that could do that is happening Tuesday at the Ontario Superior Court of Justice in downtown Toronto.
The group's lawyers say lawyers from the province informed them no steps to remove the bike lanes would come before March 20, something a spokesperson for the ministry of transportation confirmed. The March 20 date was first reported in The Trillium.
"This won't help address traffic, and we know it'll make our roads more dangerous for people and make it so that fewer people will choose to ride a bike," said Michael Longfield, executive director of Cycle Toronto.
The province fast-tracked Bill 212 in the fall, arguing that the bike lane removals are needed to reduce congestion in Toronto. Transportation Minister Prabmeet Sarkaria said the city's approach to installing bike lanes was "failed" and described the bike lane removal as "freeing up some of Toronto's most important roads," in a January news release.
WATCH | Do only 1.2%of Torontonians really commute by bike? StatsCan data says no:
Do only 1.2% of Torontonians really commute by bike? StatsCan data says no
4 months ago
Duration 2:54
Research from cities around the world suggests that adding bike lanes to streets doesn't actually add to congestion, though adding more roads for motor vehicles does.
Bruce Ryder, a professor at York University's Osgoode Hall Law School, said the applicants have a strong case for an interim injunction on the grounds of the initial application's argument that people's safety could be put at risk.
"The balance of convenience in terms of the status quo favours them," said Ryder, who's not involved in the challenge.
"In other words, it's better to leave the bike lanes in place for the time being until the case is fully argued," he said.
Full legal challenge to be heard in April
The legal challenge that will be heard in April states that the government's reasoning for removing bike lanes is arbitrary, alleging Premier Doug Ford and Minister Sarkaria have not shown evidence to support their characterizations of the lanes.
It also argues the removal is a violation of section seven of the Charter and Rights of Freedoms, saying the removal deprives cyclists of life and security of the person.
The city has said ripping up the lanes would cost about $48 million — a figure Ford has publicly disputed — while increasing driver travel time during construction and having a minimal impact once completed.
Sarkaria has frequently said 1.2 per cent of people in Toronto commute by bike, though census data shows that number is higher in several areas where bike lanes actually exist.
Though in Etobicoke-Lakeshore, where the debate around bike lanes has been perhaps most intense, statistics line up with Sarkaria's messaging.
"Removing these bike lanes makes sense for our community and it cannot be done soon enough," the area's former MPP Christine Hogarth said in a January news release. Hogarth was defeated by Liberal Lee Fairclough in the February election.
Legal experts say challenge has merits
When it comes to the legal challenge that will be heard in earnest in April, some in the legal field feel Cycle Toronto's arguments have merits.
David Schneiderman, a professor of law at the University of Toronto who's not involved in the legal challenge, said the challenge's argument has some merits when it comes to the argument that the decision to remove bike lanes is not being done with sufficient evidence that it will reduce congestion.
WATCH | Toronto's mayor critical of bike lane removal:
Mayor Chow calls Ontario's plan to remove bike lanes 'arbitrary'
4 months ago
Duration 1:26
The Ontario government is planning to remove three sections of bike lanes in Toronto. At a news conference on Friday, Mayor Olivia Chow emphasized there have been several studies done in recent years that support the existing bike lanes.
"That would be of interest to a judge, and a judge would say, 'show me the money,'" Schneiderman said. "[Courts] don't like governments behaving arbitrarily without any evidence just because they don't like something or someone."
Ryder, from Osgoode Hall, said while the interim injunction has a good chance, the hearing for the challenge itself will be more difficult.
"It will be the claimant's burden to establish that the government is putting their lives at risk. And it will also be the claimant's burden to establish that they're not doing so for a good reason or a sufficiently strong reason," he said.
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'It's not just for provinces or the federal government to use in the case of a popularity contest. It's not about that. It shouldn't be.' In this case the question could be 'how popular are cyclists' in Toronto, Schneiderman said. He explains that while the notwithstanding clause is available to the government to override charter rights, voters could punish governments that curtail them. 'It's not a really popular thing. People like their rights. People like the fact that they have rights, and they don't like governments to be seen to be trampling on them.' Reid said there's another reason the government might be hesitant to invoking the notwithstanding clause. 'I would be surprised if they reached for the notwithstanding clause, for no other reason than they might fear that it actually pollutes this issue, and instead of allowing them to repeat their arguments around bike lanes and enjoy the cut and thrust of the usual suspects who oppose the Ford government on bike lanes, that it might transform the issue, sort of alchemize it into something else that's got less public appeal and might cut more against their grain,' Reid said. He added that they've 'been burned' by using it in the past since its use itself becomes a polarizing issue that may invite questions about other rights being curbed.
