Case: Cycle Toronto v. Ontario (Attorney General), 2026 ONCA 582
Keywords: bike lanes; Charter analyses; s. 7; Reducing Gridlock, Saving You Time Act, 2024, S.O. 2024, c. 25
Synopsis:
The City of Toronto installs bike lanes on some roads pursuant to the City’s bylaw-making authority. The Ontario Legislature later passes the Reducing Gridlock, Saving You Time Act, 2024, S.O. 2024, c. 25, adding s. 195.6 to the Highway Traffic Act, R.S.O. 1990, c. H.8. This requires the Minister to remove the bike lanes from three major Toronto streets (i.e., Bloor Street, University Ave., and Yonge Street). (See para. 9).
The Respondents bring an application for a declaration that s. 195.6 of the Highway Traffic Act violates s. 7 of the Charter. (See para. 10). The Legislature then repeals and replaces s. 195.6 such that the Minister is directed to “reconfigure” the bike lanes and granting the Lieutenant Governor in Council the power to make regulations concerning their removal. (See paras. 10-11). The Application Judge (Schabas J.) concludes s. 195.6 engages the right to life and security of the person in s. 7 of the Charter; that the law makes cycling more dangerous. (See para. 14). Citing expert evidence, the Application Judge also finds removing the lanes would worsen traffic congestion, contrary to the stated objective of the Reducing Gridlock, Saving You Time Act. Ultimately, the Application Judge concludes s. 195.6 violates s. 7 of the Charter in a manner which cannot be “saved under s. 1” of the Charter. (See para. 15).
The Court of Appeal (Fairburn A.C.J.O., Huscroft and Zarnett JJ.A.) disagrees, cycles through all the arguments. For the Court, “[t]he bottom line is this: there is no constitutional obligation to regulate the use of roads in any particular manner – no constitutional obligation to build bicycle lanes or to retain any that have been built. The legislature is free to legislate to remove a bicycle lane from a road – indeed, it may remove a road entirely – without implicating the Charter, and in particular, without implicating anyone’s rights under s. 7 of the Charter.” (See para. 7).
Importance:
The Court of Appeal pointedly directed Canadian judges to apply their brakes and ‘stay in their respective lane’ – though, after this decision, that is significantly less likely to be a bike lane if one is travelling on Bloor Street, University Ave., or Yonge Street.
The Court of Appeal started off in a high gear, writing “[s]omething has gone wrong”. (See para. 4). The approach taken by the Application Judge here “subverts” the fundamental principle that “a legislature cannot bind its successors” and is “free to undo legislation by amending or repealing it as they see fit”. (See para. 5). The Court added that “government is not constitutionally obligated to make policy decisions that accord with policy advice it receives from its advisors, nor is the legislature obligated to legislate in accordance with that advice – let alone the advice of academic experts”. (See para. 6).
What then is the right way to approach this “straightforward application of orthodox s. 7 principles”? (See para. 3). At paras. 20-22, the Court of Appeal outlined the following principles to guide courts executing their role on Charter challenges:
- avoid approaching judicial review under the Charter in a “technical or mechanical fashion” (see para. 20);
- recall that the Charter is part of a larger democratic constitutional order and must be interpreted and applied in that context (see para. 20);
- understand that, since Canada has “a Constitution similar in Principle to that of the United Kingdom”, courts play no role in the policy development process, no role in the choices made by the government in proposing legislation, and no role in the legislature’s decision to pass a law (see para. 21; see Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, at paras. 27-31; The Honourable Malcolm Rowe, Chris Puskas and Allyse Cruise, “The Separation of Powers in Canada” (2024) 1 S.C.L.R. (3d) 323.); and
- resist the temptation “to comment on matters of policy” because it is “illegitimate for courts to involve themselves in matters of legislative policy. Policy is for politics” (see para. 22).
In this case, the Court of Appeal found the Application Judge weighed in on policy and political considerations which were not “relevant to the task”. (See paras. 23-24). For the Court, “judicial independence is a two-way street: the government and legislature must obviously respect the independence of the courts, but courts must respect the roles and responsibilities of the other branches of government”. (See para. 26).
As to the specific s. 7 concerns raised here, the Court of Appeal observed that the scope of s. 7 (e.g., whether it applies beyond matters involving the administration of justice) has not been definitively resolved in Canada. (See para. 27; Drover v. Canada (Attorney General), 2025 ONCA 468, leave to appeal granted June 18, 2026).
However, for the Court of Appeal, “as long as the prior legislation was not mandated by the Charter, undoing it by amendment or repealing it altogether is necessarily Charter-compliant, regardless of how beneficial or important the prior legislation may be thought to have been”. (See para. 33). In other words, “[a]mendment or repeal of legislation may breach the Charter only if the breach can be established independent of the prior state of the law.” (See para. 33).
In this case, the Court of Appeal determined “[t]here is no Charter right to bicycle lanes – neither specifically nor as inference from any of the rights specifically enumerated in the Charter. The existence of bicycle lanes depends on legislation alone. Thus, their removal does not effect a deprivation within the meaning of s. 7, and the application judge erred in concluding otherwise.” (See para. 43). Accordingly, any resulting “deprivation of life or security of the person” from the removal of the lanes “would be in accordance with the principles of fundamental justice”. (See para. 44).
Of further interest, the Court of Appeal discussed the nature of “arbitrariness” and “gross disproportionality” for the purpose of s. 7 analyses at paras. 48-57 and 58-68. For the Court, legislation is “arbitrary” if the legislature “has taken steps that do not rationally contribute to achieving its goal at all – not even in a small way.” (See para. 53). While the Court does not discuss a clear example that would rise to the level of “arbitrary”, it does make clear that “[l]aw is not arbitrary simply because it is not designed to the satisfaction of expert critics.” (See paras. 57, 67-68). In this case, the legislation was not arbitrary because it was “easily established” that there is a “rational connection between the…purpose of reducing traffic congestion and the decision to increase the number of lanes for motor vehicles”. (See para. 68).
The Court of Appeal similarly found that gross disproportionality “establishes an extremely high standard”, emphasizing the small likelihood that a Canadian legislature would ever act “for no reason” or to legislate “so poorly that the law they create is devoid of reason”. (See paras. 72-73). In the circumstances here, the Court found the removal of bike lanes does not meet this high standard. (See paras. 76-68).
Not mentioned/referred to: bike tyres herein deflated; may be re-inflated by the S.C.C.? And, juridical parameters of s. 7, important enough for the Supreme Court to steer the s. 7 handlebars in the right direction?
Counsel for the Appellants: Josh Hunter, Cara Zwibel, and Elizabeth Guilbault (Constitutional Law Branch, Toronto)
Counsel for the Respondents: Andrew Lewis, Greta Hoaken, Braxton Murphy, Catherine Dunne, (Paliare Roland, Toronto); Lindsay Beck and Bronwyn Roe (Ecojustice, Toronto)
Counsel for the Intervener, Canadian Constitution Foundation: George Avraam, Jennifer Bernardo and Ryan Carroll (Baker McKenzie, Toronto)
Counsel for the Intervener Canadian Public Health Association: Nikolas De Stefano (Addario Law Group LLP, Toronto)
Counsel for the Intervener Greenpeace Canada: Louis Century, Amy Chen, and Umaiyahl Nageswaran (Goldblatt Partners LLP)
Counsel for the Intervener For Our Kids – Toronto: Vilko Zbogar (Zbogar Advocate, Toronto), Meaghan Daniel (Daniel & Co. Toronto), and Vibhu Sharma (Wright Business Law, Toronto)
Counsel for the Intervener David Asper Centre for Constitutional Rights: Megan Savard (Savards, Toronto) and Cheryl Milne (David Asper Centre for Constitutional Rights, Toronto)