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From lawyer Albert Koehl, on behalf of the Safe Cycling Coalition:

A loss in the courts – but nonetheless a step forward for cyclists

On October 29, 2008 the Ontario Superior Court of Justice rejected an
application for judicial review brought by William Ashley China Ltd. to declare that the City of Toronto’s decision to proceed with the Bloor St. Transformation Project was illegal. The ruling was a defeat for cycling advocates — who intervened in the case — but not a loss for the movement to make Toronto safe for cyclists.

The project is a $25 million redevelopment of Bloor between Avenue Rd. and Church St. undertaken jointly by the City and the local Business Improvement Area. The project will widen sidewalks, add trees, and remove 43 parking spaces — but it squanders an important opportunity to reduce motor vehicle traffic (in fact volume and speed may actually increase) and to provide for bike lanes, even though this is one of the busiest — and most dangerous — cycling routes in Toronto.

A group of well-known cycling advocates created the Safe Cycling Coalition (the “Coalition”) and applied to the court for “intervenor” status, which was granted in mid-September of this year — a first for Ontario cycling advocates.

The immediate issue in the case, heard on October 9, 2008 by a panel of
Divisional Court judges, was whether the City of Toronto had acted unlawfully in determining that there were no environmental assessment requirements under the Municipal Class Environmental Assessment (MCEA) for the project.

The City asserted, and the Court accepted, that the project had been properly
classified as Schedule A/A+ under the MCEA. This is the least onerous schedule and does not require the City to study alternatives, such as reducing motor vehicle traffic to accommodate bike lanes, or to consult with the public. This schedule generally applies to routine projects that are limited in scope.

The court ultimately decided that the City’s conduct was legal – specifically that the classification decision made by the City was “reasonable”. The Court also concluded that Ashley had waited too long to bring its application, especially given that it had been involved in the planning stages of the project for almost a decade.

Interestingly, the only evidence suggesting that the City classified the project at all came from the City’s Manager of Transportation Services who was not even involved during the relevant time frame. His assertion, made in an affidavit, was not contradicted in any other evidence. No affidavit was filed by the original City official who had simply concluded in 2001 that there were “no EA implications”. The City could not produce any document to show that a specific classification decision had ever been made. (Evidence on such court applications is generally made by affidavit, which are subject to cross-examination. As an intervenor the Coalition did not have the right to cross-examine the affiants or to present its own evidence.)

Arguably, Ashley was hamstrung by its choice of action. For it to challenge the City’s conduct it needed a decision to challenge, namely, the classification of the project under Schedule A/A+. And yet, the evidence was equally consistent with a conclusion that no classification had ever been made – except long after the fact when the City’s conduct came under scrutiny. Had Ashley proceeded under municipal law and challenged the by-law itself, it might have more forcefully argued that the City had made no classification decision at all, rendering the by-law illegal

The opportunity to intervene in the case was simply too good to pass up. Normally the biggest obstacle to bringing an action is that the loser may be ordered to pay the legal costs of the winner (although public interest litigants like the Coalition are less likely to suffer an adverse costs award, especially where they face a government body). When Ashley decided to bring the case itself, the Coalition could intervene with a minimal risk of a costs award. Ashley was ultimately ordered to pay $50,000 in legal costs to the City – in addition to its own legal fees. (The City agreed in advance not to seek costs against the Coalition.)

Despite the disappointing outcome, many positives can be taken from the case:

• Classification decisions under the MCEA have never been challenged in court, even though various versions of the MCEA have existed for 20 years. The complexity of the MCEA is generally an effective deterrent – indeed the case made clear that both City officials and the provincial ministry of environment (which is supposed to oversee the MCEA) were confused about the law and their own obligations. Now the public — or at least cyclists — understand the system and are ready to take the City to task for questionable or illegal planning decisions. The Court accepted that MCEA classifications of projects are indeed reviewable by a court (under a legal remedy known as certiorari).
• The Coalition brought to the case (both in court and in the media) the perspective of long-ignored but lawful public road users, namely cyclists. The Coalition also highlighted the importance of the province’s environmental assessment regime as a planning tool as well as the requirements of Ontario’s planning regime that has, since 2005, required that municipal planning decisions consider the safety of cyclists.
• By intervening, the Coalition also helped ensure that it would be part of any deal worked out between the City and Ashley to resolve this litigation. The case was obviously not resolved before trial, although the Coalition was invited to a meeting with senior City bureaucrats to discuss cyclists’ concerns.
• The case allowed the Coalition to add court actions to the toolbox of cycling advocates. Lobbying of councillors, public education, protests, parades … and now court actions. When cycling advocates had written to the City outlining their concerns about the Project in the spring and early summer of 2008, City officials did not even bother to respond. Now the threat of legal action will be credible and motivate government attention.
• Politicians are faced with many competing priorities and the attention they give to any particular item will often be determined by the price they have to pay for ignoring it – the greater that price, the more likely we are to get their attention, and action. This case got the attention of the City.

In many respects, however, the successes derived from the action will very much depend on how the decision is used. We can simply say it was a good experience and move on. This would be unfortunate. There is much to be learned – and much to be applied from that knowledge to future strategies. Thus, the conclusion of this court action has not necessarily been written.

Ultimately, if Toronto and other cities are to deal with the urgent problems of air pollution (and the high associated death toll) and global warming in a timely manner, then we need transformative, even revolutionary, change to our transportation system. And this will mean using all of the advocacy tools in our toolbox. Court actions are now one of them.

The Safe Cycling Coalition is comprised of Angela Bischoff, Martin Reis, Margaret Hastings-James, Hamish Wilson, and Kristen Courtney.

Albert Koehl is an environmental lawyer that represented the Coalition.

Thanks to Martin Reis at I Bike T.O. for this. Keeners may want to read up on Status of Municipal Road Projects Under the Class Environmental Assessment.

From the Globe and Mail:
The city of Toronto scored a "great victory" yesterday, according to Councillor Kyle Rae, when a three-judge panel of the Ontario Divisional Court dismissed an application to halt long-planned improvements to Bloor Street, the city’s most expensive shopping mall.

This means that there will be no bike lane in the redesigned stretch of Yorkville after the current plan is implemented. It also means that there possibly will be no bikelane in Yorkville for the next 50 years or so until the stretch is redesigned again. 

Ben and Hamish were at the YIMBY festival; which was good for outreach and talking.

A high point was hamish talking with Ms. Dale Duncan of Councillor Vaughan’s office about the Annex area Bloor Re-Visioning, which doesn’t see bike safety as a concern between Ave. Rd. and Bathurst.

Ms. Duncan was of the firm opinion that this report was not going up to any Council as the Sept. Gleaner article had Mr. Vaughan saying that it was in that article, and that she was continuing to look into the exact status of all of this and the opportunities for further inputs.

I expressed the concern that if there was any sort of agreement in principle, that would be just like the problems in Bloor/Yorkville where we pesky cyclists were consistently told it was a done deal already agreed to years ago, go away despite the Marshall Macklin Monaghan report of 1992 saying the best east-west route for bike lanes was this wider portion of Bloor from Spadina east.

The overall tenor of the plan as defended by Mr. Vaughan and Gordon Brown of the Annex RA, is that bikes don’t belong on Bloor. This is from the ending paragraphs:

   Improving the pedestrian realm in this case trumps the needs of cyclists, agreed Vaughan, especially since Bloor Street becomes so narrow through the corridor in question.
   "First you get the pedestrian realm right and then with the leftover space, you deal with the argument between bikes and cars" said Vaughan.
   "I’m not going to thin sidewalks to put cycling paths in at the expense of the needs and the health of the local community. It doesn’t make sense. If you have trouble getting through Bloor St. on your bicycle, do what they do in Kensington Market and walk."

Meanwhile, in the Oct 9 eye mag, Chris Bilton’s article has this paragraph on urban futures - "Councillor Adam Vaughan explains that we need to look at creating infrastructure that will be able to deal with climate change. This requires first admitting that climate change is already happening, and then looking at ways to retrofit infrastructure with an eye toward environmental impacts."

Presumably the cost of this Annex Re-vision study from the Office of Urbanism, with the use of the Marshall  Macklin Monaghan group (who I guess didn’t raise their earlier study) could have painted the lines that provide us with our bike lanes at $25,000/km, perhaps from the Annex to High Park.

I gave Ms. Duncan a copy of a small flyer I’d done up to raise these concerns with Bloor Annex cyclists. As part of my Friday evening fun I did some bike-to-bike distribution from Bedford Road to Bathurst and went through 350 of these flyers, and I’d printed up another big stack to go through over the weekend - but I’ve paused this distribution given what Ms. Duncan said, and her interest in chasing down these further details of more participation and an overall interest in cycling issues.
Given all of this,  I think it is worthwhile to continue to press Councillor Vaughan about bike safety and this inferior and costly study, but it most likely is not as urgent as it was earlier in October. His email address is as above eg. Councillor_Vaughan@toronto.ca - and you might want to keep a copy of whatever you send for helping to provide a liability trail.

While Mr. Vaughan was at the YIMBY, as was Councillor Perks and Giambrone, I wasn’t able to interact with him as I did the latter (though that talk was more Waterfront Transport Follies WTF vs. biking).

Now that Mr. Vaughan’s office is no longer swamped by excessive devilopment proposals eg. from 70 from last year’s YIMBY to zilch now, let’s hope that he can focus on such things as bike safety for residents, and this may well include finally providing the missing link of the Harbord bike lane, which disappears between Spadina and Borden St. in large measure thanks to Mr. Wright of Wright Real Estate.

Everyone with half a brain already knows that work needs to be done to get more bikes on the road, and that bike lanes are a great way to do so.  A key to having more cyclists on the road is making people more comfortable while biking.  A new study has shown that people are most comfortable biking in bike lanes:

Dill recruited 164 bicyclists to carry GPS recorders on their bike trips for seven days. Altogether, they took 1,777 trips between April and November of 2007.
Dill then used the GPS information to track their trips and determine whether they were taking the shortest routes or intentionally choosing longer ones.
Remarkably, the results showed that although only 8 percent of city streets are equipped with any kind of bike infrastructure, 51 percent of trips were taken on them. To Dill, this means that most riders are seeking out such routes, even if they are not the shortest.

Hey fellow cyclists,

Join the Safe Cycling Coalition in court on Thur. as we join forces with unlikely bed-fellows — Bloor St. merchants — to take on the City regarding the Bloor St. reconstruction project between Ave. Rd. and Church St.

Shocking, really, that the word "bicycle" didn’t even make it into the $25 million dollar project report.

We’re intervening in this case against the city for their alleged violation of the provincial Environmental Assessment Act.

Cyclists are encouraged to witness the hearing — let’s fill the room and let them know cyclists are watching.

In what is likely the first intervention of its kind in Ontario legal history, a coalition of cycling advocates, the Safe Cycling
Coalition, has sought and (yesterday) been granted the right to intervene in an Ontario court case.

The case, first brought to the Ontario Superior Court  in August by certain downtown merchants, alleges that the City of Toronto violated the province’s Environmental Assessment Act when it proceeded with the Bloor St. Transformation Project — along Yorkville’s so-called Mink Mile — and failed to properly consult the public or to study alternatives.

“This is about one of Toronto’s most valuable public spaces — a $25 million ‘transformation’ of that space warrants public consultation,” explains Margaret Hastings-James, a Bloor Street bike-commuter who began to advocate for bike lanes when hit, and nearly crushed, by a truck in 2002.  “The huge volume of pedestrian and cyclist traffic in this area demands an allotment of dedicated and safe space.”

The intervening citizen advocate group asserts that proper classification of the project would have  allowed cyclists the opportunity to highlight provincial laws that direct municipalities to ensure the safety of all roadway. Cycling advocates have long pushed city politicians for a bike lane on Bloor St. — one of the city’s most heavily used, and most dangerous, cycling routes.

“The Bloor St. Transformation Project does have some positive features for pedestrian traffic,” said Angela Bischoff, lead contact for the Coalition. “Unfortunately the City has again forgotten cyclists. Motor vehicles will get about 15 meters in width of  the public roadway, and cyclists will get zero. That’s not fair, and it’s certainly not safe.” According to a 2007 Toronto Public Health report, 440 people die in Toronto each year from the effects of traffic pollution.  The same report
indicated that the death toll could be reduced dramatically by investing in cleaner options such as mass transit and better cycling infrastructure.

“The battle for safer cycling conditions in Toronto has now reached a new phase,” said Albert Koehl, a lawyer representing the group. “The urgency of problems like global warming and air pollution means we can no longer tolerate old-school approaches to fixing our inefficient and dirty transportation system. Bicycles are zero-emission vehicles that deserve a
safe space on our roads.”

In August 2008 William Ashley China Ltd. filed an action in the Ontario Superior Court of Justice (Divisional Court) for a declaration that the city’s decision to proceed with the Bloor St. Transformation Project was illegal. On Sept. 9, 2008 the Safe Cycling Coalition applied to the Court for  an order allowing it to intervene. The application was granted on Sept. 15.

The members of the Coalition include cycling advocates with over five decades of combined cycling advocacy experience. They include Angela Bischoff, Margaret Hastings-James, Hamish Wilson, Martin Reis, and Kristen Courtney.

The hearing of the case (William Ashley China Ltd. v. City of Toronto) is scheduled for Oct. 9, 2008.

Photo by allaboutgeorge

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Amongst the considerable hazards of biking on Bloor, especially in the Yorkville area, there remains the automobile/bike conflicts.

Just seen at the Northeast corner of Bloor and Sherbourne is a poster telling a cyclist who was hit by a right-turn vehicle there on August 19th at about 8:45 am that it was a Grey Ford AEDV 372 .

Maybe this was a hit and run, maybe it was reported to the police, maybe the cyclist wasn’t able to catch the serial number, maybe the City will remove this poster because it’s on a streetpole.

Let’s hope the cyclist is ok; and sometimes these  conflicts are preventable - by both parties.

Image from Richard Masoner

 This new bike lane is to be inaugurated on Sun. Aug. 24. It’s currently 6 km. but plans are for another 4 km. It runs through the downtown core along a busy street, du boulevard De Maisonneuve. It will be named after recently deceased Mtl. bicycle activist Claire-Morissette. Imagine this along Bloor in Toronto…

Photo of books in the Tooker Gomberg Memorial Library by Yvonne Bambrick.

800+ books of Tooker’s collection from the 1960’s onwards are being made available to the public. Topics include transportation, health, cities, waste, food, nuclear, peace, nature, politics, fiction, kids, development, energy, globalization, advocacy and much more.

Visit the library any time during office hours and sign out Tooker’s books. Read the classics by Jane Jacobs, Ivan Illich, Abby Hoffman, Henry David Thoreau, Gandhi, E.F. Schumacher, and many more.

Special thanks to the Centre for Social Innovation for their donation of space, and to the Tooker Gomberg Greenspiration Fund.

Photo of last night’s blackout anniversary critical mass by Martin Reis.

The rebuild of Bloor St. in Yorkville is in the mainstream news today with some of the merchants of Bloor seeking a judicial review of the project in Divisional Court by lawyer Clayton Ruby. One major point of contention is the lack of an EA, the same point that has been raised with the ECO office by Takethetooker and Bells on Bloor in late July, and vexed about earlier by Hamish. There’s a compilation of the coverage on Spacing .

• While Barber’s column is brutal, and brutally funny, its effect is negate the complaint about the lack of an EA, which is wrong.
• The SUN article has some excellent quotes by Mr. Ruby on the lack of planning and "EA-vasion."

A lawsuit is being launched by Clayton Ruby ’s firm to get the construction on Bloor halted for consultation and an EA, as the reconstruction is doing a lot of harm to some of the merchants.

This may be the ticket to ride to a bike-friendly, even Copenhagenized "Bluer" St. 

If the City is forced to re-open it or have an EA,they may have to put in bike lanes.

The Toronto Bike Buses Group has a new blog up.  Keep an eye on it for ride details, schedules and so forth.

The Bloor Transformation Project and its problems are getting extra media coverage today. One was the CBC the other was in the Star (front page of print).

Two clarifications though: we bike groups aren’t hiring a lawyer, though:
1) we’re lucky to have ecojustice lawyer Albert Koehl guiding us and organizing a couple of bike rides
2) the Star article says the project costs $20M; it’s actually $25M. Of that the merchants are paying back $20M, though this arrangement was zipped through council without public comment/scrutiny.

photo from gbalogh

Exciting news from I Bike T.O.:

Meet Todd and Christine, two people who are trying to introduce the idea of a "Bike Bus" commute on Bloor street. A bike bus is where a small group of cyclists ride together in a tight pack and take over a lane for thier own visibility and safety. Motorists are forced to use the other lane to pass, and to not share the lane with any of the cyclists in the pack. This provides opportunity for social interaction for the riders, improved safety, more comfortable ride, an easier environment for less experienced riders, and a bit of a fun time overall.

Wanted: Leaders/sweeps and lots of participants

This meeting is at Futures bakery patio (Bloor & Brunswick) 8pm on Tuesday.

Location: Futures bakery patio
Nearest Intersection: Bloor & Brunswick
Start: Aug 5 2008 - 8:00pm
End: Aug 5 2008 - 9:00pm
Contact: Christine
Email: bikebustoronto@gmail.com

photo "Carrupt" by justbadpot

Draw a picture of what Bloor Street would look like with more bikes, bells and a bike lane! The best drawings will win BIG prizes and will be printed in Dandy Horse Magazine (Toronto Cyclists Union)

Contest closes Aug. 31 Drop off your drawings at these bike shops: Sweet Petes (1204 St. W., M6H 1N2) Curbside Bikes (412 Bloor St. W., M5S 1X5) Mailed entries will be accepted until Sept. 5. For more info, http://www.bellsonbloor.ca