Intervenor: vol. 26, no. 2 - 3, April - August 2001

Cela In The Courts - Update on the Red Hill Expressway Case

For a number of years, CELA has been representing Friends of the Valley (Friends), a group dedicated to protecting the Red Hill Valley in the City of Hamilton and opposing the construction of an expressway through the valley. CELA intervened on the behalf of Friends in a judicial review hearing at the Federal Court in November of 2000. In that case, the City of Hamilton (formerly the Regional Municipality of Hamilton Wentworth) challenged the application of the Canadian Environmental Assessment Act (CEAA) to the proposed expressway. The hearing was heard in November of 2000 with a decision released in April of this year. For the most part, the Federal Court of Canada agreed with the City that the federal law was not applicable to the project.

Following this decision, the federal government appealed the decision on two grounds. The first issue focused on whether the Court erred in holding that the project was exempt because the Act itself exempted projects where construction commenced before June of 1984. The issue here pertains to the interpretation of the term "construction" in the context of the relevant sections of the CEAA. The second issue relates to the conclusion of the court that there have been "irrevocable" acts undertaken by City so as to preclude the Act.

Since the appeal was launched, CELA on behalf of Friends of sought, and succeeded in attaining intervention status. Other interveners at this time include the Hamilton Chamber of Commerce and the Province of Ontario.

The appeal is scheduled to be heard in Ottawa at the Federal Court of Appeal on November 13 and 14, 2001.

Paul Muldoon is a lawyer at CELA