Case: Ontario (Natural Resources and Forestry) v. South Bruce Peninsula (Town), 2021 ONCA 332 (CanLII)

Keywords: piping plover; Leave to appeal; s. 10(1), Endangered Species Act, 2007, S.O. 2007, c. 6; s. 139(1), Provincial Offences Act, R. S. O. 1990, c. P. 33

Synopsis:

The Town of South Bruce Peninsula maintains Sauble Beach, which is both a tourist destination and the seasonal nesting home of the piper plover. The piper plover is a migratory bird designated as endangered by the Endangered Species Act, 2007, S.O. 2007, c. 6. (“ESA”).

The Town has obligations under the ESA to protect the piper plover, but it is also required to maintain the beach for the safety of its users. The Town works closely with the Ministry of Natural Resources and Forestry (“MNRF”) to balance these interests. However, in 2017, the Town rakes Sauble Beach before the annual arrival of the piping plovers and following their departure. Before doing so, the Town advises MNRF of its plans for maintenance; MNRF raises no objections. (See para. 3).

MNRF alleges the nature and extent of the Town’s maintenance damages the plover habitat, contrary to s. 10(1)(a) of the ESA. The Town is charged and convicted. The convictions are upheld by an “Appeal Judge” sitting on the Ontario Court of Justice. (See para. 5).

The Town seeks Leave to appeal this decision to the Court of Appeal, pursuant to s. 139(1) of the Provincial Offences Act, R. S. O. 1990, c. P. 33 (“POA”). The Court of Appeal is satisfied that Leave should be granted. (See paras. 11-13).

Importance:

The Court of Appeal described the threshold for granting Leave pursuant to s. 139 of the POA as “high” and noted that Leave is “only available on special grounds upon a question of law alone.” (See para. 7).

In addition to these requirements, the Court of Appeal referred to s. 139(2) of the POA, which further specifies that Leave should not be granted unless “it is essential in the public interest or for the due administration of justice that leave be granted”. (See para. 7).

In this case, the Town raised two issues:

  1. the Appeal Judge (and the Justice of the Peace below) erred in their interpretation of s. 10(1) of the ESA, particularly with respect to what constitutes ‘damage’ to a species’ habitat and the evidence required to prove it; and
  2. the Appeal Judge (and the Justice of the Peace) erred in applying the test in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182 governing the admissibility of expert evidence in the context of a regulatory offence. (See para. 6).

With respect to the first issue, the Court of Appeal found that, even if the Appeal Judge is ultimately found to have been correct, “the questions raised by the Town are serious and their resolution will make the legislation more determinate and thus capable of providing greater guidance to those subject to it.” (See para. 11). For the Court of Appeal, the broad application of the ESA makes its interpretation “a matter of public interest”. Further, the Court of Appeal observed that this section had not previously been addressed by the Court of Appeal. (See para. 11).

With respect to the second issue, despite noting the “considerable attention” received from the Court of Appeal on the application of White Burgess, the Court found that “guidance from this court on such a fundamental question of law related to the administration justice is appropriate…” (See para. 12).

Counsel for the Moving Party: Jonathan Lisus and James Renihan (Lax O’Sullivan Lisus Gottlieb, Toronto)

Counsel for the Responding Party: Nicholas Adamson and Madeline Ritchie (Ministry of the Environment and Climate Change, Toronto)

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