COURT OF APPEAL FOR ONTARIO
George, Favreau and Gomery JJ.A.
BETWEEN
The Corporation of the Municipality of Marmora and Lake
Applicant (Appellant)
and
His Majesty the King in Right of Ontario
Respondent (Respondent)
M. Kathleen Kinch and Jenna Khoury-Hanna, for the appellant
Michael J. Sims and Shayna Levine-Poch, for the respondent
Heard: December 18, 2024
On appeal from the order of Justice Adriana Doyle of the Superior Court of Justice, dated April 18, 2024, with reasons reported at 2024 ONSC 2254.
REASONS FOR DECISION
1The Corporation of the Municipality of Marmora and Lake (the “Municipality”) appealed the dismissal of its application for declaratory orders. After hearing the Municipality’s oral submissions, we dismissed the appeal with costs, with reasons to follow. These are our reasons.
Background
2In October 2022, the Municipality was charged with two contraventions of the Endangered Species Act, 2007, S.O. 2007, c. 6 (the “ESA”). The contraventions concern road maintenance activities by the Municipality that allegedly affected the mottled duskywing butterfly, a species designated as endangered under the ESA. The second largest population of these butterflies in Ontario lives near host plants clustered along eight kilometers of highway in a part of the Municipality known as Riverside Pines. The charges against the Municipality allege that, on June 5 and 7, 2021, the Municipality killed, harmed, or harassed the butterflies and damaged or destroyed their habitat by removing vegetation by the side of the highway and parking vehicles on the host plants during a road resurfacing project. Although the Municipality could have sought a permit under s. 17(1) of the ESA to allow these activities despite their impact on the butterflies and their habitat, it did not do so.
3In response to the charges, the Municipality began this application in the Superior Court. The prosecution of the ESA charges in the Ontario Court of Justice has been adjourned pending its adjudication and this appeal.
4In the application and before this court, the Municipality contends that, if it is required to comply with the ESA, it cannot fulfill its mandatory road and related infrastructure maintenance obligations under the Municipal Act, 2001, S.O. 2001, c. 25 (the “Municipal Act”) and shield itself from liability for accidents attributed to maintenance failures. Among the list of proposed orders set out in the first three pages of its notice of application, the Municipality seeks a declaration that it is within every Ontario municipality’s sole jurisdiction to determine what is reasonable in performing their statutory maintenance and repair duties to keep highways or bridges in an acceptable state of repair under the Municipal Act, and a declaration that, where a municipality makes such a determination, it is not required to obtain a permit, comply with an order or be subject to the offence provisions or other enforcement provisions of the ESA and its regulations.
5The application judge dismissed the application. She found that the issues raised by the Municipality are not ripe for declaratory relief. She rejected the respondent’s argument that the issues raised by the Municipality were entirely hypothetical, speculative, or academic, but found that the live issues raised in the application could and should be adjudicated in the Ontario Court of Justice in the context of the ESA contraventions against the Municipality.
Arguments on appeal
6On the appeal, the Municipality contends that the application judge erred:
(1) in finding that the issues raised in the application were not ripe for adjudication;
(2) in making inconsistent findings with respect to the ongoing ESA prosecution;
(3) in failing to address the Municipality’s argument that it has “jurisdictional independence” to determine reasonable standards for road maintenance; and
(4) in failing to grant a temporary order dispensing the Municipality from compliance with the ESA until it has time to seek a permit.
7These arguments are unfounded.
(1) The application judge did not err in finding that the issues raised were not ripe for adjudication
8A court has the “broadest judicial discretion” in deciding whether to grant declaratory relief and may refuse to do so even if the case for declaratory relief has been made out: Halton (Regional Municipality) v. Canadian National Railway Company, 2024 ONCA 174, 171 O.R. (3d) 41, at para. 89. This court will defer to a judge’s exercise of discretion absent a clearly identifiable legal error, a material misapprehension of the relevant evidence, or a result that is indefensible on the relevant law and facts: Popack v. Lipszyc, 2016 ONCA 135, 129 O.R. (3d) 321, at para. 25.
9The application judge correctly held that the broad declaratory relief sought by the Municipality should not be granted unless the issues raised were justiciable. As she noted, “courts will assume jurisdiction of a matter only when it becomes ‘ripe’ for judicial determination, in the sense that there is a live controversy, with a sufficient factual foundation, and no other prior, procedural avenues”: Lorne M. Sossin (now Sossin J.A.), Boundaries of Judicial Review: The Law of Justiciability in Canada, 2nd ed. (Toronto: Carswell, 2012), at p. 28.
10After canvassing the evidence, relevant caselaw, and the statutory framework at length, the application judge found that the subject matter of the proposed declaratory orders was not ripe for adjudication. The Municipality had not attempted to obtain a permit from the Ministry of Environment, Conservation and Parks (the “Ministry”) as contemplated under the ESA. Through a permit, it could have sought to maintain the highways, as required under the Municipal Act, notwithstanding the protection given to the butterflies as an endangered species. According to the respondent’s expert, who had assisted other municipalities in obtaining ESA permits, a permit could be obtained within a week (although she admitted it could take much longer) and the Municipality could apply for a multi-year permit covering various activities. The expert also testified that an ESA permit had been granted to another municipality for roadwork affecting the mottled duskywing butterfly (albeit in different circumstances), and that she knew of no case where a permit has been refused. This evidence contradicted the Municipality’s bald assertion that it would be unable to obtain a permit.
11As a result, the application judge could not find that the Municipality’s dual obligations under the Municipal Act and the ESA were unmanageable or unattainable. As the Municipality conceded in its arguments before this court, two statutory provisions from the same legislative body are presumed not to conflict.
12The Municipality argued that it would be too onerous for it to seek a permit given its limited budget and resources, and that it might not have time to obtain a permit if it had to do emergency roadwork. The application judge recognized that the Municipality’s concerns were sincere but found that they were untested, given the Municipality’s failure to engage with the respondent and the respondent’s evidence about the permit process. She noted that, under an ESA regulation, a party may be exempted from the permit process if there is an emergency that poses an imminent risk to health and safety: General, O. Reg. 242/08, s. 8(1).
13The Municipality argues that the application judge’s conclusion is inconsistent with this court’s reasons in Schaeffer v. Wood, 2011 ONCA 716, 107 O.R. (3d) 721, (rev’d in part on other grounds, 2013 SCC 71, [2013] 3 S.C.R. 1053). We disagree.
14In Schaeffer, the applicants were the families of two individuals who had died during interactions with the Ontario police officers. They sought a declaratory judgment that police officers involved were not entitled to obtain legal assistance in preparing their notes about the incidents. In both cases, the Director of the Special Investigations Unit that investigated the incidents concluded that there were no reasonable grounds to conclude that an officer had committed a criminal offence, in part because the officers’ notes were neither independent nor contemporaneous and hence not reliable as a tool to determine what probably happened.
15The application judge in Schaeffer dismissed the application on the grounds that the applicants lacked standing to sue for declaratory relief and that the issues raised were moot and not justiciable. This court granted the appeal. On the justiciability issue, it concluded that the application judge erred in finding that past policy debates about the role of the Special Investigations Unit precluded declaratory relief, since a regulation governing its investigations had been put into place. Sharpe J.A. held that the issue that the applicants sought to raise was not moot, and that the applicants were simply asking “for the court's interpretation of what the legislation does, and does not, allow in the context of a specific factual record emerging from two SIU investigations”: Schaeffer, at para. 42.
16The application judge reviewed this court’s decision in Schaeffer at length. She ultimately found it was distinguishable because it involved a “purely interpretive question”, where this case “involves more factual considerations, including the effectiveness of maintenance techniques and their relative impacts, the timing of such maintenance activities, the scope of road maintenance, etc.” She concluded that it would not be an economical and efficient investment of judicial resources to resolve the issues raised by the Municipality on the application.
17We see no error in the application judge’s analysis. We agree that the declaratory relief sought by the Municipality here is far broader and more complex than the orders sought in Schaeffer, and that the evidentiary record is inadequate for the determination of the issues raised in the application. The applicants in Schaeffer furthermore had no other venue to adjudicate the issues before the court. Here, the issues raised by the Municipality may be resolved in the prosecution before the Ontario Court of Justice or through the permit process.
18The Municipality did not identify any reversible error by the application judge on the justiciability issue. Her conclusion that the issues were not ripe for adjudication was not based on a legal error or a material misapprehension of the evidence nor is it unreasonable. It was open to the application judge to find, on the record before her, that the Municipality could not establish that its ESA obligations are irreconcilable with its obligations under the Municipal Act. As the Municipality’s lawyer acknowledged in argument before us, her client did not know what position the Ministry would have taken had a permit been sought. She argued that the Ministry would not give due consideration to the Municipality’s road maintenance obligations during the permit application process. This is entirely speculative.
(2) The application judge did not err in finding that the Municipality was impermissibly attempting to circumvent the Ontario Court of Justice’s authority
19The second ground concerns the application judge’s finding that, by bringing the application, the Municipality was attempting to circumvent a quasi-criminal proceeding by obtaining rulings on issues before the Ontario Court of Justice in the ESA prosecution. The Municipality contends that this conclusion was unfounded because a determination by the Ontario Court of Justice on the ESA charges will not address all the interpretive questions it raises in the application; in particular, it will not rule on what is “reasonable” under the Municipal Act. The ESA charges could even be stayed or dismissed on bases unconnected to the conflicting statutory schemes.
20We do not agree that the application judge erred. She acknowledged that the prosecution will not address all conflicts that the Municipality alleges could arise from its concurrent obligations under the Municipal Act and the ESA. As she noted, however, the only live, non-hypothetical dispute between the parties involves whether the Municipality contravened the ESA as charged. In defending to the ESA charges, the Municipality may rely on the same arguments it seeks to raise in the application regarding the appropriate interpretation of the ESA, based on a full evidentiary record not before the application judge. We agree with the application judge that “the issue of what the municipality could and should have done and whether it should be found culpable under the quasi-criminal procedure can be determined in [the Ontario Court of Justice] where the true dispute lies.”
21In oral argument before this court, the Municipality relied on Law Society of Upper Canada v. Canada (Attorney General) (1996), 1996 CanLII 7981 (ON SC), 28 O.R. (3d) 460 (Gen. Div.). In that case, two lawyers filed a complaint under the Competition Act, R.S.C. 1985, c. C-34, that the Law Society’s mandatory insurance scheme contravened certain provisions of the Competition Act. In response, the Law Society applied to the Ontario Court (General Division) for a declaration that the Competition Act did not apply to it. McCombs J. rejected the lawyers’ argument that the application was premature because the Director of Investigations and Research has not yet identified which conduct, if any, represented a potential violation of the Competition Act.
22It is by no means clear that the decision in Law Society of Upper Canadaremains good law, given the Supreme Court of Canada’s direction that courts should exercise great restraint in intervening before an administrative tribunal’s process is completed: see Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission), 2012 SCC 10, [2012] 1 S.C.R. 364, at paras. 35-36. In any event, the situation in Law Society of Upper Canada differs from the one at bar because the Ontario Court of Justice indisputably has jurisdiction over the prosecution of the ESA charges pending against the Municipality.
23For these reasons, the Municipality’s second ground of appeal fails.
(3) The application judge did not err in failing to address the Municipality’s jurisdictional argument
24The Municipality contends that the application judge was obliged to address its argument that it alone has the jurisdictional competence to determine whether its road maintenance efforts are “reasonable” as that term is defined in the Municipal Act. We again disagree.
25A judge is not obliged to address every argument raised by a litigant: Welton v. United Lands Corporation Limited, 2020 ONCA 322, 64 C.C.E.L. (4th) 265, at para. 60; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 18. The application judge’s conclusion that the issues raised were not ripe for adjudication was sufficient to dispose of the application. The Municipality provided no authority to support its argument with respect to an exclusive jurisdictional competence that would relieve it from compliance with the ESA or immunity from a judicial determination that it has failed to meet the standard of care under s. 44 of the Municipal Act based on its own assessment of what it is reasonably required to do to maintain roadways and infrastructure for which it is responsible.
(4) The Municipality is not entitled to a temporary order
26The Municipality contended that, even if the application judge otherwise rejected its arguments, she should have granted temporary declaratory relief relieving it from compliance with ESA obligations so that it could conduct any required road maintenance while its application for a permit is pending. The Municipality says that this court should grant similar relief, even if it otherwise dismisses the appeal.
27The Municipality has not applied for a permit, and it is therefore impossible for this court to grant an order premised on the existence of an application. It is both perplexing and disingenuous that the Municipality has delayed applying for a permit for so long and now seeks this relief from the court without any evidentiary foundation justifying the need for temporary relief. There is no evidence suggesting that, if the Municipality applied for a permit now, it would not obtain reasonable accommodation for its road maintenance obligations or that it would not receive a permit within a reasonable time frame.
Disposition
28The appeal is accordingly dismissed, with all-inclusive costs to the respondent of $12,000, the amount that the parties agreed would be awarded to the successful party on the appeal.
“J. George J.A.”
“L. Favreau J.A.”
“S. Gomery J.A.”