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Has Metrolinx become a law unto itself?

Has Metrolinx become a law unto itself?

by Mark Winfield

Mark Winfield

Although Metrolinx has recently backed down on its proposal to build a railway yard in the Don Valley, the project, along with the cutting down of large numbers of mature trees at Moss Park and around Osgoode Hall in downtown Toronto to make way for the proposed Ontario transit line, has drawn renewed attention to the role, mandate and activities of the provincial transit agency.

The transit authority was originally created in 2006 with a mandate to coordinate transportation planning in the Greater Toronto Area. It later took over GO Transit’s operations. Metrolinx’s authority was significantly expanded via the Building Transit Faster Act (BTFA), adopted at the height of the COVID-19 pandemic in July 2020.

A key feature of Metrolinx’s institutional structure is that the agency has been never subject to any form of independent regulatory oversight. There is no regulatory agency to whom Metrolinx has to explain or justify its plans or activities, or which holds any power of decision over what it ultimately does. This applies at all levels of Metrolinx’s operations, from broad strategic initiatives like to the Ontario line, down through the details route selection and facility location, to the direct impacts of its construction work, like the removal of the trees in Moss Park and around Osgoode Hall.

The intention behind this design was to facilitate and coordinate the construction of transit projects throughout the region. In practice, it has turned out to suffer from more than a few problems, as the events of the past few weeks have highlighted.

A sign is pictured near Osgoode Hall as Metrolinx begins the removal of centuries-old trees in February. Photo credit: CBC

The results are problematic at many levels. As the Law Society, Haudenosaunee Development Institute, residents and friends of Moss Park, the Thorncliffe Park community and many others have discovered the arrangement has left no independent body to whom complaints or concerns over the impacts Metrolinx’s activities can be addressed. Should anyone have the temerity to actually protest against Metrolinx in a way that the agency sees as getting in the way of removing obstructions (e.g. trees), under the Building Transit Faster Act it can ask the Minister of Transportation to impose administrative monetary penalties against them of up to $50,000 per day. Would-be protestors can also be prosecuted under the Act.

In the past, as a public agency, province’s environmental assessment legislation might have provided some degree of transparency in Metrolinx’s planning and decision-making processes. However, transit projects are exempted from the normal environmental assessment process and are reviewed under a separate procedure led by the proponent (i.e. Metrolinx). That process removes the authority of the Minister of the Environment, Conservation and Parks to approve or refuse transit projects, and makes it clear that the ministry will have no role in monitoring of the effects of project construction.

At a higher level, Metrolinx is effectively left answerable only to the office of the Minister of Transportation, who does have the power to issue directives to the agency. But that process is completely non-transparent. It is also at high risk of political abuse, either to drive poorly conceived and politically motivated projects forward, or even, as has been suggested to be the case over the past few weeks, to micromanage Metrolinx’s interactions with affected communities for political or other purposes. Canada’s Transportation Safety Board, for its part, recently came to the realization that there is no effective independent safety oversight of Metrolinx’s rail operations.

All of this suggests that Metrolinx’s regulatory and governance arrangements are in need of serious review. The same can be said for the province’s overall approach to transit planning, which has become deeply politicized. The Eglinton LRT project has run billions over budget, and Metrolinx itself admits that there is no clear plan for its completion. The situation can hardly inspire confidence in the execution of the even more complex and disruptive Ontario line project, for which the tree-cutting in central Toronto was only the beginning.

What is needed is some form of effective independent and transparent regulatory oversight of the province’s transit planning and development process. Such an arrangement could provide a defense against the politization of decision-making, by requiring that there be demonstrable transportation, planning, economic, and environmental rationales for projects before they proceed.  A framework is also needed for the independent adjudication and resolution of conflicts over the impacts of transit construction on the affected communities.

Transit infrastructure in the GTA needs to be expanded. But that needs happen in a way that makes economic and environmental sense, and minimizes and mitigates conflicts with the affected communities. The current process is failing to deliver on all of these fronts.

The article flows from Mark Winfield's participation in a SSHRC Partnership Development Grant project with partners at UQAM, UofT, UC Davis, and the University of Vermont on the Joint Clean Climate Transportation Research Partnership (JCCTRP). EUC MES/JD student Athaven Nithianantha provided research assistance in the development of this article.