DATE: 20030716

DOCKET: M30104 (M29782)

COURT OF APPEAL FOR ONTARIO

O’CONNOR A.C.J.O. (in Chambers)

B E T W E E N:

2016596 ONTARIO INC.

Robert V. Wright for the moving party, Wildlands

Applicant/Respondent

League

Dennis Brown for the respondent, Her Majesty the Queen in Right of Ontario

• and -

Brent Lokash and Gordon Acton

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO as represented by THE MINISTER OF NATURAL RESOURCES

for the respondent, 2016596 Ontario Inc.

Respondent/Moving Party

Heard: July 10, 2003

O’CONNOR A.C.J.O.:

[1] This is a motion by Wildlands League (“Wildlands”) for leave to intervene as a friend of the court on a leave to appeal motion brought by Her Majesty the Queen in Right of Ontario as represented by the Minister of Natural Resources (“MNR”), and if the MNR is granted leave to appeal, on the appeal.

[2] The motion is brought under Rule 13.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which provides:

13.02 Any person may, with leave of a judge or at the invitation of the presiding judge or master, and without becoming a party to the proceeding, intervene as a friend of the court for the purpose of rendering assistance to the court by way of argument.

[3] On the leave application in which the proposed intervener seeks to participate, the MNR requests leave to appeal the order of Stortini J., dated April 4, 2003, which was issued in an application for judicial review brought by the respondent on this motion and on the leave motion, 2016596 Ontario Inc. (“the company”). The company owns approximately 46 000 acres of land immediately to the east of Lake Superior Provincial Park (“Park”) for the purpose of harvesting timber. It requested, among other things, a declaration that it is entitled to use the Sand River Road (“Road”), which runs through a portion of the Park. The company’s position before Stortini J. was that it is entitled to use the Road in order to transport crew and equipment to its forestry operations pursuant to the terms of the Lake Superior Provincial Park Management Plan, 1995.

[4] Stortini J. granted the company’s application and declared that it is entitled to use the Road as a forest access road to travel to and from its lands east of the park. Stortini J. further declared that the terms and conditions of the use of the Road are set out in the 1995 Lake Superior Provincial Park Management Plan, under the heading “Sand River Road”.

[5] The MNR supports Wildlands’ motion for leave to intervene as a friend of the court on the motion for leave to appeal Stortini J.’s order, and if leave is granted, on the appeal. The company opposes the intervention motion.

[6] The test to be applied on motions such as this is set out by Dubin C.J.O. in Peel (Regional Municipality) v. Great Atlantic and Pacific Canada Ltd. (1990), 1990 6886 (ON CA), 74 O.R. (2d) 164 (C.A.) at p. 167:

Although much has been written as to the proper matters to be considered in determining whether an application for intervention should be granted, in the end, in my opinion, the matters to be considered are the nature of the case, the issues which arise and the likelihood of the applicant being able to make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties.

[7] The considerations that apply in deciding whether to grant leave to appeal were recently noted by Weiler J.A. in Iness v. Canadian Housing and Mortgage Corporation (2002), 2002 15707 (ON CA), 62 O.R. (3d) 255 (C.A.). She stated at p. 258 that matters considered in granting leave include:

(a) whether the Divisional Court exercised appellate jurisdiction (in which case the applicant for leave is seeking a second appeal) or whether the Divisional Court was sitting as a court of original jurisdiction; (b) whether the appeal involves the interpretation of a statute or regulation including its constitutionality; (c) the interpretation, clarification or propounding of some general rule or principle of law; and (d) whether the interpretation of the law or agreement in issue is of significance only to the parties or whether a question of general interest to the public or a broad segment of the public would be settled for the future.

[8] In its factum on the leave motion, the company argues that the MNR has failed to provide any evidence of the public importance of the proposed appeal and has failed to even address the issue in its factum on the leave motion.

[9] Wildlands submits that it will assist the court in deciding the leave motion by demonstrating that the issues on the motion engage the public interest. Wildlands further argues that if it is granted leave to intervene, it will submit that the reopening, reconstruction and use of the Road without regard to the public environmental screening process of an Environmental Study Report of the undertaking will undermine ecological and recreational park values and set a very poor precedent that threatens the integrity of the provincial park network in Ontario.

[10] In order to understand Wildlands’ proposed submissions, it is necessary to briefly discuss the legislative context. Currently, Declaration Order MNR-59/2 exempts most MNR park programs from formal environmental assessment under the Environmental Assessment Act, R.S.O. 1990, c. E-18. The Declaration Order is subject to a number of terms and conditions, including a condition that provincial park programs be “planned, implemented and managed” according to specified guidelines and policies. MNR submits on the leave motion that these policies include Policy 11.03.01, which requires that all major undertakings in provincial parks, including Lake Superior Provincial Park, be screened for impacts. MNR further contends that the proposed use of the Road would be a major undertaking and thus an Environmental Study Report is required under Policy 11.03.01. Such a Report considers environmental impacts of the project and requires the MNR to evaluate alternatives to the project. Policy 11.03.01 also requires public consultation at the project planning level. MNR raises as one of the seven issues on the proposed appeal, “Did the Court below err in allowing access to the Sand River Road despite the need for an environmental review pursuant to a Declaration Order made under the Environmental Assessment Act?”

[11] Wildlands concedes that there may be some overlap in its submissions with the position of the MNR, but it contends that it will nonetheless provide assistance on the merits of the case regarding the public interest in the conditions to the Declaration Order and the need for an Environmental Study Report in particular. According to Wildlands, the government does not cover the field in representing the public interest, which is demonstrated by the fact that the MNR consults the public when it engages in an Environmental Study Report.

[12] In support of its motion to intervene, Wildlands filed the affidavit of Evan Ferrari, sworn July 8, 2003. Wildlands also seeks leave to file this affidavit on the motion for leave to appeal and if leave is granted, on the appeal. Mr. Ferrari is the Director, Parks and Protected Areas, at Wildlands. In his affidavit, he describes Wildlands’ work and provides his opinion as to why “reopening, reconstructing and using the Sand River Road is likely to cause harm to the Park’s ecological well-being.”

[13] In resisting the intervention motion, counsel for the company argues that Wildlands is not advancing any new legal argument and that the MNR represents the public interest. Counsel for the company also argues that the affidavit of Mr. Ferrari should not form part of the record on the leave motion or, if leave is granted, on the appeal.

[14] I am satisfied that Wildlands can present a useful perspective that will contribute to the resolution of the leave motion, and if leave is granted, to the appeal, without causing injustice to the immediate parties. Wildlands has a longstanding interest and expertise in environmental issues concerning protected areas in the Great Lakes Region and was involved in the evolution of the Lake Superior Provincial Park Management Plan that is the subject of these proceedings. The MNR has raised the issue whether Stortini J. erred in allowing access to the Road despite the need for an environmental review under the Declaration Order, and Wildlands can offer further submissions on the relevance and significance of such a review both on the leave motion, and if leave is granted, on the appeal.

[15] I agree with the respondent company, however, that I should not make an order allowing Wildlands to add to the record on the leave to appeal motion, or if leave is granted, on the appeal. Adding to the record may work an injustice to the respondent company. In any event, the decision whether to admit this evidence is for the court hearing the leave motion, and if leave is granted, the appeal.

[16] I thus grant Wildlands leave to intervene as a friend of the court on the following conditions:

1. That it takes the record as it is and will not be permitted to introduce further material;

2. That it will not seek costs on the leave motion, or if leave is granted, on the appeal. Costs may, in the discretion of the panel, be awarded against it on the leave motion, and if leave is granted, on the appeal.

3. That it will deliver its factum on the leave motion, which will not duplicate the argument of the moving party, and is not to exceed 10 pages, on or before July 24, 2003.

4. If leave to appeal is granted, then the panel hearing the leave motion will allocate time for Wildlands’ oral submissions on the appeal.

[17] The respondent company may, if it wishes, file a reply factum to the intervener factum of Wildlands. Such factum must be filed on or before July 31, 2003 and must not exceed 7 pages.

[18] In its materials on the motion to intervene, the moving party included an endorsement of Caputo J., dated June 13, 2003, in which he declared that paragraph two of Stortini J.’s order from which leave is to appeal is being sought, “does not require the Applicant [the company] to comply with Ministry of Natural Resources (the MNR) Policy #11.03.01 or any other policy or guidelines of the MNR related to Declaration Order MNR-59/2 passed pursuant to the Environmental Assessment Act.” Caputo J. indicated that written reasons are to follow.

[19] The MNR has not included Caputo J.’s order in its Motion Record on the leave motion. I am of the view that the panel hearing the leave motion should have before it a copy of Caputo J.’s order and any reasons for it in a Supplementary Motion Record filed by the MNR. As Caputo J.’s order appears to be an interpretation of Stortini J.’s order, the MNR does not need to file a separate motion for leave to appeal Caputo J.’s order.

[20] There will be no costs of this motion.

RELEASED: “DOC” “JUL 16 2003”

“D. O’Connor A.C.J.O.”