Executive Summary: Key Legal and Evidentiary Issues

• Public law dispute over a municipality’s authority to recognize a “Tamil Genocide” and construct the Tamil Genocide Monument (TGM) in a city park within its statutory and constitutional powers.
• Standing and public interest standing were central, with the court finding the Applicants lacked standing to pursue alleged Building Code Act and Planning Act violations.
• The Applicants’ Building Code claim failed because the monument, on the pleadings, could not reasonably be characterized as a “building” within the statutory definition.
• Planning Act arguments were defeated by statutory provisions deeming compliance once municipal decisions are final, leaving no viable basis to allege ongoing illegality in the planning process.
• Procedural attack on the Applicants’ pleadings under Rules 21 and 25 succeeded, as the Code and Planning Act claims were found to be unsustainable, duplicative, and prejudicial to the efficient resolution of the case.
• Constitutional and Charter claims (division of powers and ss. 2(b), 2(d) and 15) remain live, but the court struck all non-constitutional claims regarding the Code and Planning Act without leave to amend, significantly narrowing the litigation.

Background and parties

The litigation arises from a challenge to the City of Brampton’s decision to host and construct the Tamil Genocide Monument (TGM) in Chinguacousy Park, a city-owned park. The individual applicant, Dr. Neville Hewage, is a former professor and Director of Research at the International Centre for Interdisciplinary Research in Law at Laurentian University, with a background in human rights and civil liberties. The organizational applicant, the Sri Lanka Canada Association of Brampton (SLCAB), is a community group working on ethnic harmony and the welfare of people of Sri Lankan heritage in Brampton. The Respondent is the Corporation of the City of Brampton, the municipal owner of the park and decision-maker for the monument. The National Council of Canadian Tamils (NCCT), a community organization associated with the monument project, was granted intervenor status despite the Applicants’ opposition.

Facts relating to the monument and municipal decisions

On June 8, 2022, Brampton City Council approved the installation of the Tamil Genocide Monument at Chinguacousy Park. The site is municipal land under the City’s control. Later, at a council meeting on November 1, 2023, the City passed a motion allowing the NCCT to lead the monument project, with assistance from related community groups. Construction of the monument began in August 2024, after the NCCT and the City finalized a site agreement in September 2024. A formal opening ceremony took place on May 10, 2025, by which time the structure—said to be approximately 2,000 square feet in area—was complete. The Applicants took the position that the TGM’s location displaced a previously contemplated skating rink and that the City’s decisions around the monument were improper both constitutionally and under specialized land-use and building legislation.

Procedural history of the application

The Applicants commenced their application in April 2024 and amended it in May 2024. The original application advanced three principal grounds: that the City’s recognition of a Tamil Genocide improperly intruded on the federal Crown prerogative over foreign relations and the division of powers under the Constitution Act, 1867; that the City’s recognition of a Tamil Genocide and decision to construct the TGM were contrary to section 8 of the Municipal Act, 2001, which defines and limits municipal powers; and that these decisions infringed the Applicants’ rights to freedom of expression, freedom of association, and equality under sections 2(b), 2(d), and 15 of the Charter. Once the application was settled, a timetable was established. The City served its Responding Record in July 2024, including material about its work on a site agreement; the Applicants then filed a Supplementary Application Record and a factum in October 2024, and the City responded with its factum in November 2024. By then, most of the written record on the original grounds had been exchanged. In December 2024, the NCCT moved to intervene and, in January 2025, was granted leave by Bloom J. The NCCT’s materials highlighted that neither party had yet filed the final site agreement, partly because it post-dated the City’s Responding Record. When the City later filed that agreement, the Applicants responded with a Second Supplementary Motion Record containing a new affidavit from Dr. Hewage. This affidavit raised fresh complaints about the Ontario Building Code (the “Code”) and the Planning Act that had not been pleaded in the original application. The City successfully moved to strike that Second Supplementary Application Record; the court found that the Applicants had impermissibly expanded and split their case by introducing new Code and Planning Act allegations in reply, causing unfair prejudice. The Applicants were given leave to amend their application, on a tight timeline, if they wished to properly plead those new issues.

Amended pleadings and the new motion to strike

After leave to amend, the Applicants filed an Amended Application that expressly included alleged violations of the Code and the Planning Act, as well as references to the Clean Water Act, 2006 and various planning and hydrological concerns. They also formally served a notice of constitutional question as directed. The matter then came back before Lemay J. on case management. The City indicated that it would bring a further motion under Rules 21 and 25 of the Rules of Civil Procedure to strike out the new Code and Planning Act aspects of the Amended Application, and to challenge the Applicants’ standing to bring those claims. That motion is the subject of this particular decision. On the motion, the Applicants also reiterated an allegation that the NCCT is a “terrorist organization” under an order of the Sri Lankan government and that the City’s agreement with NCCT breached a UN Security Council Resolution, but the judge declined to make or entertain such findings on the record before him and treated those points as part of the broader constitutional and foreign-relations issues, not as matters relevant to the procedural motion.

Legal framework for striking pleadings and standing

The judge began by reviewing the relevant standards under Rules 21 and 25. Rule 21.01(1)(b) allows the court to strike a pleading that discloses no reasonable cause of action, without considering evidence and applying the “plain and obvious” test—whether the claim has no reasonable prospect of success when the pleaded facts are taken as true and the pleading is read generously. Rule 25.11 permits the court to strike all or part of a pleading that may prejudice or delay a fair trial, is scandalous, frivolous, or vexatious, or constitutes an abuse of process. The court emphasized that even under Rule 25.11, striking is reserved for clear cases where it is plain and obvious that the claim cannot succeed, and that the court considers factors such as relevance, materiality of facts, and whether the pleading is argumentative or designed to harass. The decision also canvassed the law on public interest standing. Citing Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, the judge reiterated that three interrelated considerations govern: whether the case raises a serious justiciable issue; whether the applicant has a real stake or genuine interest in the outcome; and whether the proposed proceeding is a reasonable and effective way to bring the issues before the court. These factors must be weighed cumulatively.

Abuse of process and multiplicity of procedural motions

The first issue was whether the City’s decision to bring a second procedural motion—after having already succeeded in striking the Second Supplementary Application Record—was itself an abuse of process. The Applicants argued that the City should have raised all objections at the earlier motion and that leave to amend implicitly validated the Code and Planning Act claims. The judge rejected this, explaining that the earlier motion dealt only with inadmissible reply evidence that went beyond the then-existing pleadings. Leave to amend simply gave the Applicants the chance to properly plead new causes of action; it did not pre-empt or pre-approve the legal viability of any amendment. Once the new pleading was filed, the City was entitled to challenge its sufficiency, the Applicants’ standing, and the sustainability of the newly asserted claims. As a result, a second procedural motion was not abusive.

Separation of constitutional issues from Code and Planning Act issues

The Applicants next contended that the Code and Planning Act issues were so interwoven with their constitutional arguments (including the foreign-relations division-of-powers question and the alleged Charter breaches) that they could not be severed or dealt with at a preliminary stage. They maintained that if the constitutional challenge succeeded, the approval of the TGM’s construction would be unconstitutional, making the planning and building questions integral. The court accepted that the constitutional issues are clearly justiciable and remain live, but held that this did not make the Code and Planning Act arguments indispensable to their determination. The judge concluded that the constitutional questions (division of powers and Charter rights) could proceed independently, and that the Code and Planning Act claims were discrete statutory issues that could and should be resolved early, especially given their lack of merit.

Public interest standing for Code and Planning Act issues

Turning to standing, the judge accepted that the Applicants had standing to pursue the constitutional issues but found that they lacked public interest standing for the Code and Planning Act complaints. On the first standing factor—serious justiciable issue—the court ultimately held, based on its merits analysis, that the Code and Planning Act claims were unsustainable and therefore did not present serious justiciable questions. On the second factor—genuine interest—the court observed that neither Dr. Hewage nor the SLCAB had any demonstrated expertise or specialized involvement in building standards or land-use planning. Their concerns were framed essentially as those of ordinary residents dissatisfied with the City’s land-use choice in Chinguacousy Park, rather than as rights-bearers raising a distinct legal interest. The court cautioned that if any small group of residents could challenge every municipal land-use decision in court, it would undermine and second-guess decisions entrusted to elected councils. Finally, on the third factor—whether the application was a reasonable and effective way to bring these issues to court—the judge noted that Planning Act disputes, in particular, are normally channeled first through the Ontario Land Tribunal, and that this form of application was not the proper vehicle for the planning challenges, especially when the other standing factors did not favour public interest status. Overall, the court concluded that the Applicants did not meet the test for public interest standing on the Code and Planning Act aspects.

Analysis of the Building Code arguments

On the merits of the Building Code claim, the Applicants alleged that the City and the NCCT breached sections 8(1) and 8(2) of the Building Code Act, which require that no person construct or demolish a “building” without a permit and set out the Chief Building Official’s obligations regarding permit issuance. It was common ground that no building permit had been issued for the TGM. The City raised three key responses: that the TGM was not a “building” under the statutory definition; that the allegations were insufficiently particularized; and that any challenge to a permit decision was out of time. The court focused primarily on the definition of “building” under the Code, which requires, among other things, a structure occupying more than ten square metres consisting of a wall, roof and floor or a structural system serving those functions, or other categories like certain plumbing structures, sewage systems, or designated structures. On the face of the pleadings and the limited record, there were no material facts that would permit a conclusion that the TGM fell within any part of this definition, especially the core “wall, roof and floor” branch. The Applicants did not plead concrete features that would transform the monument—essentially a commemorative structure—into a regulated building. Citing authority that not every structure is a “building” for Code purposes, the court held as a matter of law that the Code did not apply to the TGM on the facts as pleaded. Because the monument could not plausibly be characterized as a building under the statutory definition, the Code claim was doomed to fail and was struck under both Rule 21 and Rule 25. The court found it unnecessary to pursue the particularization and limitation arguments further, given this fundamental defect.

Analysis of the Planning Act and Clean Water Act arguments

The Planning Act argument was broader and less specific. The Applicants asserted that the City’s Official Plan (the “Brampton Plan”) and regional planning instruments required proper evaluation of development in significant groundwater or hydrological areas, including assessments under the Clean Water Act, 2006 or equivalent watershed studies. They alleged that Chinguacousy Park is such a hydrological area, that no proper Clean Water Act assessment had been done, and that this failure meant the TGM approval contravened Part III of the Planning Act and the Brampton Plan. They also invoked section 41 of the Planning Act, which governs “site plan control” areas and requires that development in those areas receive approval of plans and drawings by an authorized municipal official or, after appeal, by the Ontario Land Tribunal. Even assuming, in the Applicants’ favour, that the TGM site lay in a designated site plan control area, the court held that the argument could not succeed for two reasons. First, any site plan approval or related development approval would, by definition, emanate from the City or its authorized delegate. This made it conceptually impossible to claim that the “City” as a whole had unlawfully approved its own decision under section 41 in the manner alleged. Second, and more decisively, the judge relied on section 63 of the Planning Act (extended by section 66), which provides that when the Minister, a municipal council, a planning board or the Tribunal exercises authority under the Act—including granting approvals, exemptions, or consents—the statutory requirements for exercising that authority are “deemed” to have been complied with once the decision is final. This legislative deeming provision effectively cures procedural defects after the fact. Accordingly, even if the Applicants’ allegations of non-compliance with Official Plan or Clean Water Act–related processes were accepted as true, section 63 meant that, once the City’s decisions around the TGM had become final, the Act treated the requirements as satisfied. There was therefore no viable cause of action for ongoing non-compliance. In light of this complete statutory answer, the Planning Act pleadings were struck under both Rule 21 and Rule 25, notwithstanding the Applicants’ argument that they were advancing an “innovative” claim. The judge held that innovation cannot save a claim where the statute itself definitively forecloses it.

Refusal of leave to amend and concerns about litigation strategy

The court then considered whether to allow the Applicants one more opportunity to amend their Code and Planning Act pleadings. While Ontario law generally favours granting leave to amend so that matters can be decided on their merits, the judge emphasized that leave is properly denied where the pleadings suffer from radical defects that cannot be cured, or where there is no reason to believe an amendment could salvage the claim. Three overarching reasons led the court to refuse further amendments. First, the Applicants lacked public interest standing on these issues, so it was not in the interests of justice to prolong that branch of litigation. Second, the court was concerned that the Applicants’ approach resembled a fishing expedition: they had made broad, generalized allegations and moved aggressively to question City officials in the hope of finding a factual foundation, suggesting that the Code and Planning Act issues were being leveraged to complicate the proceeding rather than to raise clear, focused legal questions. Third, on the substance, the judge saw no realistic path to a viable amendment. For the Code, there were no pleaded material facts, and no obvious facts available, that could plausibly bring the TGM within the statutory definition of a “building.” Any re-draft would lead back to the same legal dead end. For the Planning Act, the deeming effect of section 63 meant that even well-particularized allegations of procedural non-compliance could not result in a successful claim, once the decisions were final. On this basis, the court struck all Code and Planning Act claims without leave to amend.

Ongoing constitutional issues and the role of declaratory relief

Although the non-constitutional claims were removed, the court confirmed that the division-of-powers and Charter questions remain alive and will continue to be case-managed. The judge set future case management dates and made clear that the litigation will focus going forward on whether the City’s recognition of a Tamil Genocide and its involvement with the TGM intrude on federal foreign-relations powers or infringe the Applicants’ fundamental freedoms and equality rights. The Applicants had framed part of their requested relief as “declaratory” and “non-coercive,” suggesting that they sought only a court declaration rather than orders directly compelling the City. The judge was not persuaded that this characterization changed the legal analysis. In practice, the Applicants had also indicated, including in affidavit material, that a declaration could be used to press the City to remove the monument or otherwise take action, and that it would be for the City to “find an appropriate remedy.” The court therefore treated the declaratory framing as neutral in assessing whether the Code and Planning Act claims should stand.

Outcome, successful party, and monetary consequences

In this motion decision, the Respondent, the Corporation of the City of Brampton, is the successful party. The court grants the City’s motion, strikes all portions of the Amended Application that relate to alleged violations of the Building Code Act and the Planning Act, and denies the Applicants leave to amend those statutory claims. The constitutional and Charter issues remain to be decided at a later stage. As to money, the judgment does not fix any specific amount of damages, costs, or other monetary relief. Instead, the judge sets a timetable for written costs submissions and makes clear that if no submissions are received on time, there will be no order as to costs. On the face of this decision, therefore, no definite monetary award has been ordered in favour of the City of Brampton, and the exact amount of any costs—if ultimately awarded—cannot be determined from this judgment.