Lovell v. Ontario (Ministry of Natural Resources and Forestry), 2022 ONSC 4825
DIVISIONAL COURT FILE NO.: DC 20-003-JR
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Matheson, Kurz, and O’Brien JJ
BETWEEN:
JOHN LOVELL, WAYNE WILLIAM KURIAN, SUSAN MAUREEN KURIAN, LOGAN WALTER KRUGER, KATHLEEN S. KRUGER, JOANNE ELLEN DUNFORD, ANN LOVELL, ANN SHIRLEY DOWNEY, ROBERT TOLLEFSON, MARGARET TOLLEFSON, on their own behalf and on behalf of the Kendall Inlet Cottagers Coalition
Applicants
– and –
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS REPRESENTED BY THE MINISTER OF NATURAL RESOURCES AND FORESTRY and EVAN MICHAUD and SARA MICHAUD
Respondents
Richard Handlon, Jessica Hearsey, Cheryl Siran, for the Applicants
Andrea Huckins, for HMQR
Kevin Williams and Mathew Norlund for Evan and Sara Michaud.
HEARD at Thunder Bay (by video conference): June 21, 2022
KURZ J.
REASONS FOR DECISION
Overview
1This is an application for judicial review of a work permit (the “permit”), issued on February 21, 2020 by the Respondent, Ontario Ministry of Natural Resources and Forestry ("MNRF"), to the Respondents, Evan and Sara Michaud (the "Michauds"). The permit entitled the Michauds to construct a dock, walkway and parking lot on their property located at Kendall Inlet, Clearwater Bay, Lake of the Woods (the “Property”).
2The Applicants are owners or occupiers of cottages located in Kendall Inlet. They argue that the decision by the MNRF to issue the permit to the Michauds was unreasonable and that it was issued in a manner that violated their rights to procedural fairness. They seek to have the permit quashed. They further request that the permit issue be remitted back to the MNRF for reconsideration, and that the Michauds be enjoined from using the dock and parking lot on the Property until the new permitting process they seek is completed.
3For the reasons that follow, this application is dismissed. The decision was reasonable and there was no breach of the procedural fairness rights of the Applicants.
Background
4The Michauds purchased the Property on September 14, 2018. The Property is the site of the long-closed former Kennrica Gold Mine. The Michauds’ purchase included the entirety of what remains of Mining Claim K. 5484 which includes both the land, and land covered with water, of part of Kendall Inlet.
5The Michauds also own two cottages further up Lake of the Woods from the Property.
6The Applicants are cottage owners mainly, but not exclusively located in Kendall Inlet. Two of the applicants, Wayne William Kurian and Susan Maureen Kurian (the “Kurians”) jointly own a cottage property that abuts the Property.
7The Applicants formed a group called the “Kendall Inlet Cottagers Association” and opposed the Michaud’s permit application.
8The Property falls within the Clearwater Bay Restricted Area Order (“RAO”). That designation was made by the MNRF under s. 13(1) of the Public Lands Act, R.S.O, 1990, c. P.43 (the “PLA”). Section 13(1) of the PLA authorizes the designation of “any area in territory without municipal organization as a restricted area”. It also authorizes the issuance of “permits for the erection of buildings or structures or the making of improvements on lands in any such area on such terms and conditions in any case as the Minister considers proper.” Absent such a permit, no structure may be erected, or improvement done on any lands within the RAO: PLA s. 13(2).
9Under PLA s. 12.1(1), MNRF may establish policies and guidelines for land use planning. Under this provision, MNRF created the Clearwater Bay Development Guidelines (the “Guidelines”).
10Further, under the Planning Act, R.S.O. 1990 c. P.13, s. 3(1), the Minister of Municipal Affairs “may from time to time issue policy statements that have been approved by the Lieutenant Governor in Council on matters relating to municipal planning that in the opinion of the Minister are of provincial interest.” Under the Planning Act s. 3(5)(a), any decision by a Minister “shall be consistent with the policy statements issued under subsection (1) that are in effect on the date of the decision.”
11The relevant Planning Act policy statement in effect at the time of the permit application was Provincial Policy Statement 2014 (”PPS”), which includes the following terms:
3.2.1 Development on, abutting or adjacent to lands affected by mine hazards; oil, gas and salt hazards; or former mineral mining operations, mineral aggregate operations or petroleum resource operations may be permitted only if rehabilitation or other measures to address and mitigate known or suspected hazards are under way or have been completed.
3.2.2 Sites with contaminants in land or water shall be assessed and remediated as necessary prior to any activity on the site associated with the proposed use such that there will be no adverse effects.
12The Michauds submitted a permit application to the MNRF on November 2, 2018 (the “permit application”). They sought the construction of a dock, walkway, and “future completion” of a boathouse on the Property. They later abandoned the plan to build a boathouse.
13Under s. 7 of the Guidelines, shoreline work permit applications “require neighbour’s comments from the abutting property owners regarding the proposal or proof that the applicant has notified the neighbours and the neighbours have had an opportunity to comment”.
14On November 22, 2018, MNRF wrote to the two sets of owners/occupiers whose properties abut the Property: the Kurians, as well as Brian Peters and Brenda Hildebrand. MNRF enclosed the Michauds’ proposed plan and a comment form. It requested any comments by November 28, 2018. Mr. Peters and Ms. Hildebrand do not appear to have responded. They are not Applicants in this proceeding.
15The Kurians and their fellow Applicants responded to the permit application with letters of objection between November 22 and 28, 2018. They opposed the proposed development, sought further information regarding it and sought further time to respond. They soon retained a lawyer and a planner to assist in their opposition.
16On November 22, 2018, MNRF responded to the Applicants. It provided them with additional information regarding the permit application, along with an aerial photo, showing the area of the proposal. MNRF extended the time to respond the permit application to December 28, 2018.
17On December 17, 2018, counsel for the Applicants wrote to MNRF. He requested a copy of the complete permit application. On December 18, 2018, MNRF declined that request, citing the application of the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31 (“FIPPA”) to the Michaud’s personal information. MNRF also advised that it had sought input regarding the permit application from the Ministries of Energy, Northern Development and Mines (“MENDM”) and Environment, Conservation and Parks (“Environment”). MENDM became closely involved in considering the suitability of the Michaud’s permit application while Environment had a lesser level of involvement.
18The Applicants do not dispute MNRF’s view of the application of FIPPA to the documents they sought. However, the application record does disclose that the Applicants received further documentation regarding the permit through a freedom of information request.
19On December 20, 2018, a planning consultant retained by the Applicants, Anthony Usher, provided MNRF with his letter of opinion. MNRF subsequently extended its deadline for response to January 11, 2019. Nonetheless, it accepted a further letter of opinion from Mr. Usher, dated January 16, 2019. In essence, Mr. Usher’s opinion was that the Michaud’s proposed work plan was not compliant with the relevant policy and legislative requirements for the RAO.
20On January 3, 2019, Mark Stewart, Senior Manager, Mine Rehabilitation and Compliance, at MENDM, wrote to Charlotte Caron, MNRF Lands and Waters Tests Specialist. Ms. Caron had taken the lead on the Michaud’s application for MNRF. Mr. Stewart stated that “[b]ased on current information, the tailings [left over from the former mine] appear to be in a relatively stable state. Further assessment would be required to determine if site conditions have changed.” In accordance with his ministry’s policy, he recommended further assessment and remediation as necessary. The assessment was to be “presented in a geotechnical report that has been prepared by ‘qualified professionals’ as per the Mining Act.”
21On June 3, 2019, MENDM issued its request for a bid, seeking an expert environmental investigation and report. It retained TBT Engineering (“TBT”) to perform the work. On December 19, 2019, TBT issued its “Findings Report” (the “TBT report”). The next day, TBT issued a letter, setting out its recommendations (the TBT recommendations letter”).
22The TBT report referred to suspected tailings from the former mine, which “appears physically stable and vegetated and is laterally separated from the proposed new parking lot and dock by a minimum of 45 m[eters].” It raised no concern with regard to surface water inorganic results. However, the report did refer to some concerns regarding sediment samples in the water. The results were described as “mixed” with regard to acid base accounting with the furthest one, at the proposed dock, raising no concern while two others were uncertain. For certain inorganic minerals, there were “exceedances” which matched the tailing samples. The report cited a “potential issue” with regard to dissolved arsenic. In a test of “shake flask extraction” of 38 dissolved minerals in three sediment samples, arsenic was the only one that exceeded Provincial Water Quality Objectives. Where the objective called for .005 mg/L, the samples were .0099, .0053 and .013. Arsenic did not exceed Provincial Water Quality Objectives in samples of surface water dissolved metals or surface water inorganic results.
23The TBT recommendations letter, dated December 20, 2019, offered six recommendations. They included additional samples, avoiding disturbance of on-shore and sediment tails, preservation of certain portions of the Property, identification of areas with suspect metals contamination, and consideration of the completion of further risk assessments.
24On December 20, 2019, Rob Purdon, Mine Rehabilitation Project Manager at MENDM forwarded the TBT report to MNRF, stating:
Based on the results of the characterization study, ENDM has concluded that the tailings do not extend past the vegetated areas of the shore of Kendall Inlet and that there are no apparent impacts attributable to the tailings in the surface waters of the bay. Therefore, the tailings appear to be both physically and chemically stable. Consequently, construction of the proposed dock is not anticipated to encounter tailings. [Emphasis added.]
25Referring to the issue of “exceedances of provincial standards cited in the TBT report, Mr. Purdon wrote:
There are, however, elevated metals in the sediments in the bay in non-tailings areas. It appears that these may be naturally occurring due to the relatively small volume and limited extent of the tailings in addition to the apparent physical stability of the material. [Emphasis added.]
26Mr. Purdon offered the three following recommendations to MNRF:
Care should be taken during construction of the dock to avoid unnecessary disturbance/dispersion of sediments.
Measures to reduce prop wash and wave action due to boat traffic in Kendall Inlet such as a “no wake” speed limit should be implemented.
No development should occur within the footprint of the tailings area outlined on the [attached] Sampling Locations Map.
27On January 14, 2020, three employees of MNRF (Brian Kilgour, Charlotte Caron, Abby Anderson), two employees of Environment and four employees of MENDM (including Rob Purdon and Marc Stewart) spoke about the permit application. The notes of Abby Anderson of MNRF show that their discussion included comments regarding the following concerns:
While MENDM preferred a safe rate of boating speed in Kendall Inlet, MNRF was unable to implement such a speed limit. Ms. Caron explained that incapability in a subsequent email to Mr. Purdon;
They considered a number of ecological factors regarding the safety of the permit application in regard to the Property but did not find that those factors would adversely affect the permit application. Their comments included the following points:
i. They spoke of tailings in the subject area being “chemically and geophysically stable currently”;
ii. construction within the red area identified on the photographic map of the subject area attached to the TBT report (i.e., a surface area at or near the shore) could interfere with tailing stability. However, it is to be noted that no construction was planned for that area;
iii. MENDM felt that it lacked regulatory tools to stop the Michauds from building, under any legislation; even regarding the recommendation to not build directly on the tailings;
iv. There was no exceedance of environmental standards;
v. The identification of the extent of the tails was “as expected”;
vi. The previous mine “was a small mine that only operated for 10 months”;
vii. Any chemicals are stabilized by vegetation and cattails; cattails have an affinity for uptake of metals/chemicals;
viii. The Michaud’s dock construction would be no different or more severe than docks that had already been constructed in Kendall Inlet;
ix. The presence of the former mine in Kendall Inlet is not unique – there is “lots of mine developments in the area”;
x. The note of the conversation referred to a “[s]trong sense of NIMBY[not in my back yard]ism” by the Michauds’ neighbours. MENDM staff observed that the Michaud’s neighbours had taken offence when the Michauds posted a “no trespassing” sign on Property. The neighbours had previously been using Property for cutting firewood, storing boats, and dumping yard/construction waste. They complained that that they did not wish to see a dock from their dock.
28Later that day, Ms. Caron wrote to Mr. Purdon. She explained that any speed limit on Lake of the Woods would have to be set federally under the Canada Shipping Act, 2001, S.C. 2001, c. 26. She referred to a Universal Shoreline Restriction that limits speeds to 10 km. per hour within 30 meters of shore unless another speed limit is posted. In response, Mr. Purdon opined and acknowledged that “the Universal Shoreline restriction would accomplish the same level of protection intended by my recommendation…” He agreed that “awareness of this rule should serve to reduce prop wash and wave action, reducing risks of sediment mobilization.”
29On February 10, 2020, the TBT report was released to the Applicants. The TBT recommendation letter was released to them on February 28, 2020.
30On February 14, 2020, the Applicant’s lawyer wrote to Ms. Caron, stating that the TBT report had been received only four days earlier. Counsel sought a further 60 day delay.
31On February 18, 2020, the Applicant, John Lovell, wrote to Mr. Purdon with questions and concerns about the TBT report, “in advance of a call”. The following day, Marc J. Stewart, Associate Senior Manager of MENDM’s Mine Rehabilitation Section, responded. He wrote that the TBT report had been released to MNRF, and “the parties who had expressed an interest”. He added that the TBT report’s “recommendations required under Task 4 were submitted to MNRF under separate cover”. Expressing his confidence in TBT’s work, he stated that MENDM had considered the TBT recommendations “in the context of the findings of the study”, and made the five following comments and recommendations to MNRF regarding the permit application:
The tailings were successfully characterized by the work and the tailings areas is appropriately identified on Map 1 (Appendix A).
The tailings appear to be both physically and geochemically stable.
Metal concentrations in sediments outside the extent of the tailings area appear to be naturally elevated.
Measures should be taken to avoid disturbing the sediments in the bay.
Developments within the footprint of the tailings area which could disturb vegetation should be avoided.
32On February 20, 2020, an MNRF employee filled out the Ministry’s “Class Environmental Assessment Decision Making Documentation” form. The seven-page document contained a checklist of environmental and other factors for MNRF officials to consider in making permit decisions. Among the findings set out in the form were that:
The project is compatible with land use/resource management;
The ESA [Endangered Species Act] and its reg[ulation]s, including species and habitat protection have been considered and it is unlikely there is a contravention.
The project would have “nil” net effect on:
i. lands subject to natural (flooding, erosion) or human-made (dams, mine workings, landfills) hazards ;
ii. access to trails or inaccessible areas;
iii. obstruction of air, land or water navigation;
iv. other resource projects;
v. noise levels;
vi. air quality;
vii. water quality or quality;
viii. public health or safety.
Low negative impact on traffic patterns for neighbours;
The project is in keeping with approved legislation, policy and procedures.
33On February 21, 2020, Abby Anderson, District Supervisor for MNRF completed that Ministry’s PAT+ [Planning Approval Tracker] Application Summary report (the “PAT+ report”). The PAT+ report summarized the review and recommendation of other MNRF officers who worked on the permit application.
34The PAT+ report included a February 20, 2020 summary by Ms. Caron, which set out the five main concerns expressed by the Applicants to MNRF and her response to them. She opined that:
there is no environmental reason to deny the permit;
the proposed dock size and location is in accord with the applicable guideline;
considering the use of the other cottages in the area, she did not accept the submission that the project was a commercial one;
the absence of a principal residence on the Property does not violate the RAO, and
the boathouse request had been withdrawn.
Ms. Caron recommended that the permit be issued but that clean cobble be piled around the drilled posts to reduce the movement of sediment from drilling, in accord with the MENDM recommendation of Mr. Stewart.
35In explaining her rationale for recommending that the permit application be accepted, Ms. Anderson stated in the PAT+ report that the application is consistent with the Guidelines. She also acknowledged the concerns raised by the Applicants. She pointed to her reliance on the conclusions of the MENDM report, stating: “no concerns with proposed construction site, or stability of tailings”.
36On February 21, 2020 the permit was issued to the Michauds. The permit granted them the right to construct the parking lot, deck and walkway, upon the following conditions, which reflect the comments and recommendations of TBT, Mr. Purdon and Mr. Stewart of MENDM:
The permittee must use materials, construction practices, mitigative techniques and monitoring of all activities in order to prevent the harmful alteration, disruption or destruction of fish habitat or the impairment of water quality.
No material such as rocks, aquatic vegetation, and logs shall be disturbed or removed below the high water mark except with the written approval of the District Manager.
Cribs will be designed and fill material selected to prevent the loss of crib fill material into the water.
No in water work April 1 - June 20.
Proponent shall ensure that no waste materials (e.g., oil, sawdust, lumber, etc.) resulting from work activities enter the water or are left on the ice.
Clean cobble to be placed around base of pipes to reduce drilled sediment from dispersing.
37Later on February 21, 2020, MNRF emailed the Applicants to inform them that the permit had been issued.
38Minor amendments were made to the permit to allow for the angle on the walkway to the dock to be changed and the construction of shed. The Applicants were not consulted on those amendments.
39This judicial review application was commenced on March 17, 2020.
40The work which was the subject of the permit was completed by March 29, 2020. The evidence does not show that the conditions of the permit were violated in that construction.
41On April 17, 2020, the Applicants moved for an interim injunction, staying the permit, any further work authorized by it, and from “using the development work in any way, pending the hearing and final determination of this proceeding and any appeals therefrom.” On April 29, 2020, Fregeau J. dismissed the motion: 2020 ONSC 2614. He found that none of the three arms of the test for an interim injunction set out in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 S.C.R. 311, had been met.
Jurisdiction
42This court has the jurisdiction to hear this application for an order in the nature of certiorari as well as a declaration, pursuant to s. 2(1) of the Judicial Review Procedure Act, R.S.O. 1990,c. J.1. The decision in question to issue the permit was made by an officer of MNRF pursuant to s. 5(1) of the PLA.
Standard of Review
43The parties agree that the issues in this application, save for procedural fairness, are subject to the standard of reasonableness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 (“Vavilov”), at para. 10.
44A reasonableness analysis is concerned with the decision-making process and its outcomes: Vavilov, at paras. 82 and 87. A reasonableness analysis looks to the rationale for the decision and the outcome to which it led: Vavilov, at para. 83. “[A] reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker.” A reviewing court must defer to such a decision: Vavilov, at para. 85. The reviewing court must ask “whether the decision bears the hallmarks of reasonableness—justification, transparency and intelligibility—and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision”: Vavilov, at para. 99.
45A reasonableness analysis examines both the reasoning process that led to the outcome and the outcome itself. In doing so, the reviewing court must not engage in a disguised correctness determination. It may not create its own yardstick and then use it to measure what the administrator did: Vavilov at para. 83. The court must be attentive to and respectful of the specialized knowledge of the administrator; here MNRF: Vavilov at para. 91. Where there are no reasons the record before the decision maker may shed light on the reasoning process: Vavilov at para. 91and 97.
46The Applicants bear the burden of demonstrating unreasonableness, including that any shortcomings or flaws “are sufficiently central or significant to render the decision unreasonable” (Vavilov, at para. 100).
47With regard to procedural fairness, the Applicants assert that the test is one of correctness. However it is described, the question before us is whether the decision is procedurally fair or it is not. The issue of procedural fairness is context-dependent and is determined with reference to the five factors set out in Baker v. Canada (Minister of Citizenship and Immigration, 1999 699 (SCC), [1999] 2 S.C.R. 817, at paras. 23-27: Vavilov, at para. 77. This court should look at the Baker factors to determine what hallmarks of fairness are required in the circumstances, and to determine whether they are met on the facts: Lockyear v Wawanesa Mutual Insurance Co., at para. 27, citing London (City of) v. Ayerswood Development Corp., 2002 3225 (ON CA), 167 OAC 120, [2002] OJ No 4859 (QL), 34 MPLR (3d) 1, 119 ACWS (3d) 664 at para. 10. The issue of procedural fairness by the decision maker here is analysed within the context of the Baker factors below.
Preliminary Issues
48Counsel for MNRF has raised two preliminary issues. The first is the argument that the Applicants lack standing to bring this application. The second is that the two affidavits of John Lovell on behalf of the Applicants contain inadmissible hearsay and opinion evidence.
Standing
49MNRF argues that the Applicants have failed to demonstrate that they have the necessary direct interest in the granting of the permit to be entitled to private interest standing in this application. Rather, the Applicants have no greater interest than any member of the public in the granting of the permit. MNRF continues, asserting that the only affidavit evidence of the Applicants’ alleged direct interest in the subject matter of this application are the two affidavits of John Lovell. Mr. Lovell’s affidavits speak only to a generalized concern with the view from his property, water safety, and environmental damage arising from the construction allowed by the permit.
50None of the other Applicants, particularly the Kurians, whose cottage abuts the Property, have offered any evidence of their direct interest in the subject of the permit. The only evidence from the Kurians before the court is in an undated letter, sent to MNRF after November 28, 2018, voicing “strong opposition” to the granting of the permit. The only reference to a direct impact in that letter is the following generalized statement:
Since we are owners of abutting property, we are most directly impacted by the proposed development which we believe is wholly inappropriate and would be damaging to our interests and property.
51There is no issue that the Kurians are abutting property owners and were therefore give rights to participate in the permit process.
52In Alberta Liquor Store Association v. Alberta (Gaming and Liquor Commission), 2006 ABQB 904, 406 A.R. 104, at para. 13, Slatter J. of the Alberta Court of Queens Bench offered a helpful summary of the law regarding private interest standing, distinguishing between those with a genuine interest in the subject matter of an administrative decision and the “busybody”. He wrote:
The general policy of the court is not to decide issues in the absence of the parties whose rights are most directly affected by the court’s decision. The Court will not adjudicate rights in the absence of those whose rights are at stake … If those who are most directly affected by the administrative decision are content to live with it, the court is disinclined to allow more vigilant inter-meddlers to bring applications for judicial review. If, on the other hand, those most directly impacted or “aggrieved” are inclined to challenge the administrative decision, it is they who should be allowed to carry the proceedings, and not the curious busybody.
[Citations omitted.]
53The Applicants point to a number of cases in which private interest standing was granted to neighbours opposing a development in their neighbourhood. One example is Berjawi v. Ottawa (City), 2011 ONSC 236, 79 M.P.L.R. (4th) 280, where the court granted standing to a group of neighbours opposing a building permit for a battered woman’s group home. Another is Specter v. Nova Scotia (Fisheries and Aquaculture), 2011 NSSC 333, 307 N.S.R. (2d) 142. There, the Supreme Court of Nova Scotia granted standing to two persons who owned a property that fronts on a harbour where three aquaculture (fish farm) licences had been issued. Those licences were amended to allow the fish farms to be moved close to the home of the property owners.1
54That being said, MNRF points out that each of those cases involved statutes that directly granted rights to appeal the decision in question, a statutory right absent in this case.
55The Applicants also point out that they participated in the injunction hearing before Fregeau J., cited above, without any complaint by the Respondents regarding their standing. Just recently, in January 2022, they participated in a motion by MNRF to strike two of their affidavits from the record, without any reference to standing: 2022 ONSC 423. Further, they point out that Ms. Caron referred in a memo to their “interest” in the permit application.
56Based on the evidence before the court, the abutting property owners, the Kurians, have a direct interest in the subject matter of this application. This application will not be dismissed for want of standing by the Kurians’ fellow Applicants.
57In light of that finding, it is not necessary to consider the Applicants’ alternative claim to public interest standing. However, we note that they did not apply for such standing in their judicial review application.
Affidavit Evidence
58MNRF objects to some of the content of the two affidavits of John Lovell, relied upon by the Applicants. It states that the two affidavits are filled with impermissible evidence, particularly John Lovell’s hearsay, speculation and personal opinions regarding the TPT report, the Michaud’s commercial intentions, and the MRNFs obligations in the permit application process. The MNRF factum contains a chart of the portions of the two Lovell affidavits to which it objects. It asks that those portions of the affidavits be struck out or given no weight.
59The three affidavits before this court (including one by the Respondent, Evan Michaud) were prepared for the injunction motion before Fregeau J. Those affidavits contain a mix of admissible and inadmissible evidence, including what would amount to expert opinions (from lay people) and speculation. Much of that evidence did not form part of the documentation relied upon by MNRF when it issued the permit.
60In keeping with the principles set out in Keeprite Workers' Independent Union v. Keeprite Products Ltd. (1980), 1980 1877 (ON CA), 29 O.R. (2d) 513 (C.A.), this court will consider any admissible evidence in the three affidavits that speaks to the background and context of this application as well as any issues regarding an alleged breach of natural justice. Nothing in any of the three affidavits speaks to any of the other Keeprite factors. This court gives no weight to any affidavit evidence of the parties not in keeping with the factors cited above.
Issues
61This application raises the following issues:
i. Was the decision of MNRF to issue the permit to the Michauds a reasonable one?
ii. Did MNRF breach the rights of the Applicants to procedural fairness?
iii. If the answer to either of the two previous questions is yes, what is the appropriate remedy?
Issue No 1: Was the decision of MNRF to issue the permit to the Michauds a reasonable one?
Applicants’ Arguments
62The Applicants argue that the permit was not granted reasonably. They argue as follows:
That the potential hazards attendant in the permit application were not considered or remediated by MNRF or the Michauds in accord with the Guidelines and the PPC.
That the further investigation and remediation was warranted before granting the permit. Absent a proper investigation and remediation, the decision to issue the permit was unreasonable.
That the Michaud’s intent was to construct a dock for a commercial rather than private purpose. MNRF acted unreasonably by accepting the word of the Michauds as to their intended use of the dock. Failing to find that the dock had a commercial purpose was unreasonable, as was the failure to apply a more stringent set of criteria to the permit application than MNRF utilized.
That the Application lacked proper documentation, including a survey, as required by s. 7 of the Guidelines. Instead, all that the Applicants received was a “sketch” made by or on behalf of the Michauds, which failed to conform to the requirements for the permit application.
Respondents’ Arguments
63In response, MNRF argues that its decision was reasonable. It argues as follows:
It sought the expertise of two fellow Ministries before making its decision, MENDM and Environment. It relied on their recommendations.
The recommendations of MENDM were informed by the expert report of TBT Engineering, which MNRF considered as well. MENDM advised, based on the TPT report, that any tailings remaining on the Property “were both physically and chemically stable”.
Any concerns regarding the tailings were addressed in the conditions attached to the permit.
Concerns regarding the amelioration of “prop wash” were considered and found unnecessary in light of the already applicable Universal Shoreline Restriction that limits speeds to 10 km/ hr, in Kendall Inlet;
The granting of the permit did not violate ss. 3.2.1 and 3.2.2 of the PPS. That is because MNRF, relying on the findings and recommendations of MENDM, TBT Engineering, and Environment, found that the project would cause no adverse effects if sufficient mitigation and remediation conditions were attached to any building permit. The MNRF then included conditions in the permit which served to mitigate and remediate any known potential hazards on the Property.
The Applicants have failed to establish the alleged commercial use of the dock, save Mr. Lovell’s own speculation. On the other hand, the Michauds have been consistent in explaining their non-commercial intentions regarding the dock.
Regarding the Guidelines, they do not mandate a survey, they mandate a sketch. But in any event, the record of decision relied upon by MNRF shows that the Michauds did file a survey. The fact that it was not supplied to the Applicants did not violate the Guidelines. Further, the opinions of Mr. Lovell about the manner in which the Guidelines are to be applied should be given no weight when MNRF found the permit application to be complete and in order.
While no written reasons were given by MNRF for the granting the permit, its record of decision shows a clear, logical and fact-based decision process. That record of decision includes the Class Environmental Assessment Decision Making Documentation, the PAT+ report, the TBT report, the TBT recommendation letter, and records of the consideration given to the permit and recommendations of three government ministries.
64The Michauds’ submissions only speak to the issue of commercial use. They strongly assert that their interest in the dock is private rather than commercial, relating to the large size of their extended family. They have no plan to use their cottages for profit. Their use is no different than that of the other cottagers on the lake. They assert that the Applicants fail to offer proof to the contrary. Instead, they rely on mere speculation.
Analysis
65This court accepts the arguments of MNRF set out above regarding the reasonableness of its decision. The record of MNRF’s decision documents demonstrates careful attention to the issues before it. MNRF brought in two other ministries for assistance and advice. One of those ministries, MENDM, engaged an expert to consider the environmental and other technical issues raised by the Applicants. MENDM’s recommendations to MNRF reflected its own analysis; one informed by that of its expert, as well as the expert’s recommendations.
66MNRF also convened members of all three relevant ministries to discuss the relevant issues and engage in a reasoned analysis of them in light of the Applicants’ objections. The representatives of the three ministries did so, based on the applicable evidence as well as the obligations imposed by the relevant statutes, the Guidelines and the PPS. The conditions that MNRF attached to the permit reasonably reflected the opinions and advice that it received from MENDM, its expert, and Environment.
67Neither the terms of the Guidelines nor the PPS were violated by the Ministry in granting the permit.
68Further, MNRN had before it and considered the correspondence of the Applicants, which only raised broad and vague concerns regarding the impact of the permit requested by the Michauds. MNRF also accepted and considered two reports from the Applicants’ planners, not to mention the correspondence of their counsel. Further, Mr. Lovell engaged in at least one detailed conversation with Rob Purdon of MENDM, in which he set out his concerns.
69The Applicants failed to establish that the Michauds intended to operate a commercial enterprise through its dock. The documents cited above demonstrate that MNRF considered their concerns and found that they were unproven.
70Not only was the MNRF’s reasoning, which included all of the steps set out above, reasonable, it showed careful steps taken to reach the permitting decision. This was an application for a work permit to build a dock in cottage country. It was granted under conditions that met the relevant legal framework but cautiously ensured the project’s environmental propriety.
71I note that MNRF allowed two minor amendments to the permit, regarding the angle at which the walkway meets the dock and the construction of a shed. Nothing by way of evidence or argument demonstrates any impropriety or unreasonableness in the granting of these minor amendments or that they have any problematic impact.
Issue No 2: Did MNRF breach the rights of the Applicants to procedural fairness?
72The Applicants argue that they were denied procedural fairness in the permitting process. They point to the following:
That the MNRF failed to give reasons for the building permit;
That the applicants were not provided with all of the materials relied upon by MNRF in deciding to issue the permit;
That as a result of the MNRF’s lack of disclosure, they submit that they were unable to provide a fully informed opinion about the permit application to MNRF;
That they were not granted all of the extensions that they requested to supply further materials;
That the above minor amendments were allowed without notice to them.
73Regarding an absence of reasons, the Applicants rely, by analogy on the decision of the Supreme Court of Canada in Congrégation des témoins de Jéhovah de St‑Jérôme‑Lafontaine v. Lafontaine (Village), 2004 SCC 48, [2004] 2 S.C.R. 650. There, a Jehovah’s Witness congregation was denied, without reasons, a zoning change to build a house of worship on land it had purchased. The Supreme Court of Canada ruled that, considering various factors, including the Charter freedom of religion rights of the congregation members, reasons should have been provided and thus the congregant’s right to procedural fairness was violated. The Applicants argue that the duty of MNRF to offer reasons for its grant of a building permit for the Michaud’s dock is analogous to the duty of the Village of Lafontaine to offer reasons for its failure to grant a religious congregation a zoning variation.
74The Applicants cite the court’s treatment of Lafontaine in the following excerpt of Vavilov:
136 Where the duty of procedural fairness or the legislative scheme mandates that reasons be given to the affected party but none have been given, this failure will generally require the decision to be set aside and the matter remitted to the decision maker: see, e.g., Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine, at para. 35. Also, where reasons are provided but they fail to provide a transparent and intelligible justification as explained above, the decision will be unreasonable. In many cases, however, neither the duty of procedural fairness nor the statutory scheme will require that formal reasons be given at all: Baker, at para. 43.
This court will have more to say about that last sentence below.
75In the absence of a written reasons by MNRF, the Applicants argue that greater scrutiny must be placed on a review of the evidentiary record.
MNRF’s Arguments
76In response, MNRF asserts that it has met or exceeded any duty of procedural fairness that it may have owed to the Applicants. It offers the following arguments in support of that claim:
No reasons are required within the context of this case, a simple application for a work permit to build a dock;
The MNRF record of decision makes it clear that both the MNRF Class Environmental Assessment Decision Making Documentation” form and its PAT+ form clearly set out a rationale for its decision to grant the permit;
The Applicants have failed to demonstrate that they were entitled to review the entire contents of the permit application in providing their comments. MNRF pointed to its obligation under FIPPA, which the Applicants have not contradicted.
The requirement of Part 7 of the Guidelines that work permit applications for a dock are to include “comments from the abutting property owners regarding the proposal, or proof that the applicant has notified the neighbours and the neighbours have had an opportunity to comment” was fulfilled. That occurred when the Ministry sent the proposed work plans and comment forms to the two sets of abutting neighbours, the Kurians as well as Brian Peters and Brenda Hildebrand. As set out in the MNRF factum:
There are no requirements under the PLA or the Guidelines requiring the Ministry to engage in any consultation processes with the general public on a work permit application, let alone requiring the Ministry to provide an opportunity for a consultant, hired by members of the public, to provide a critique or peer review of a report relied upon by ENDM. The Ministry was not required to wait for the Applicants to hire an expert and at no time assured the Applicants that they would wait to receive such a report prior to issuing the Permit.
- The record fails to support the claim that the Ministry denied the Applicants the opportunity to be heard. Instead, MNRF states that the record demonstrates “extensive efforts to consider the views that the Applicants advanced”.
Analysis
77In Baker v. Canada (Minister of Citizenship & Immigration), cited above, the Supreme Court of Canada offered a non-exclusive list of five factors that must be considered in determining the procedural fairness of an administrative process:
The nature of the decision being made and the process followed in making it;
The nature of the statutory scheme and the terms of the statute pursuant to which the body operates;
The importance of the decision to the individual or individuals affected;
The legitimate expectations of the person challenging the decision; and
The choices of procedure made by the agency itself.
78Dealing with those factors in order:
- The nature of the decision being made and the process followed in making it
79This was a building permit application. It was not heard by an adjudicative body. No formal reasons were required. While the Applicants fault MNRF for the failure to provide reasons for granting a permit application, such reasons were not necessary in the circumstances. The issue of whether reasons should have been granted speaks to both reasonableness and procedural fairness. In Vavilov, at para. 77, the majority of the Supreme Court stated:
It is well established that, as a matter of procedural fairness, reasons are not required for all administrative decisions. The duty of procedural fairness in administrative law is "eminently variable", inherently flexible and context-specific…
80Further, and to repeat, at para. 136 of Vavilov, where the Applicants cited Lafontaine, the majority of the Supreme Court of Canada stated:
In many cases, however, neither the duty of procedural fairness nor the statutory scheme will require that formal reasons be given at all...
81All of this points to an absence of a legal requirement that MNRF provide written reasons for granting the permit to the Michauds.
- The nature of the statutory scheme and the terms of the statute pursuant to which the body operates
82The statutory scheme of the legislation, the Guidelines and the PPS does not set out the right of the Applicants to further participate in the permit granting process. As set out above, the only right to participate is found in the Guidelines. It is a narrow right to notice and comment for the abutting neighbours and/or the right of neighbours to comment. Further, the right of the Applicants to personal information from the Michauds is limited by FIPPA.
- The importance of the decision to the individual or individuals affected
83The Applicants submit that the decision is important. They attempt to elevate that importance beyond the sorts of issues that do arise when other property owners in an area would prefer that there not be changes that could affect them or be seen by them as undesirable. On the other hand, the permit is important to the Michauds, to make use of their Property.
- The legitimate expectations of the person challenging the decision
84While the Applicants appear to expect that they have the same rights as the Michauds to participate in the permit granting process, they have not proven the basis of that entitlement. Their have not shown that their submitted expectations arise out of any legitimate expectation in the relevant legislation, Guidelines or the PPS. Nonetheless, the Applicants actually had a great deal more input into the permitting process here than one would normally expect when an application is made for a permit to build a private dock in cottage country.
- The choices of procedure made by the agency itself
85The MNRF followed its procedure for the permit application. It allowed a great deal of participation by the Applicants, including notice, document disclosure, extensions of time to respond, and consideration of the two planning reports tendered by the Applicants.
86The fact that MNRF did not involve the Applicants in the process of granting minor amendments to the permit does not amount to a breach of procedural fairness. Those changes were minor and the MNRF was aware of the Applicants’ broad and general opposition to the building of a dock and walkway.
Duty of Fairness met by MNRF
87In sum, based on the foregoing factors, the MNRF provided the required procedural fairness in this permit process.
Conclusion
88The decisions by MNRF to grant a building permit to the Michauds for the building of a dock and walkway, upon certain conditions, and the minor amendments to the permit to allow a change in the angle of the walkway and the constructions of a shed were all reasonable ones. The process by which MNRF arrived at its decision was procedurally fair to the Applicants. Therefore, this application is dismissed.
89The parties have been unable to agree on costs. Each has filed its own costs outline in the event they were successful. The MNRF and the Michauds are the successful parties, MNRF seeks $24,595. The Michauds seek $12,450. The Applicants would have sought $22,910 in the event of success, an amount roughly equivalent to the costs claim of MNRF, which carried the bulk of this appeal.
90In the exercise of my discretion regarding costs, having regard for all of the relevant circumstances, I find that it would be fair, reasonable, proportionate and within the reasonable expectations of the Applicants that they pay costs of $23,000 to MNRF and $10,000 to the Michauds, all inclusive.
Kurz J.
I agree _______________________________
Matheson J.
I agree _______________________________
O’Brien J.
Released: August 26, 2022
CITATION: Lovell v. Ontario (Ministry of Natural Resources and Forestry), 2022 ONSC 4825
DIVISIONAL COURT FILE NO.: DC 20-003-JR
DATE: 20220826
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Matheson, Kurz, and O’Brien JJ
BETWEEN:
JOHN LOVELL, WAYNE WILLIAM KURIAN, SUSAN MAUREEN KURIAN, LOGAN WALTER KRUGER, KATHLEEN S. KRUGER, JOANNE ELLEN DUNFORD, ANN LOVELL, ANN SHIRLEY DOWNEY, ROBERT TOLLEFSON, MARGARET TOLLEFSON, on their own behalf and on behalf of the Kendall Inlet Cottagers Coalition
Applicants
– and –
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS REPRESENTED BY THE MINISTER OF NATURAL RESOURCES AND FORESTRY and EVAN MICHAUD and SARA MICHAUD
Respondents
REASONS FOR decision
Released: August 26, 2022
Footnotes
- See also Alberta Liquor Store Association v. Alberta (Gaming & Liquor Commission), 2006 ABQB 94, 406 A.R. 104, Ogden Martin Systems of Nova Scotia Ltd. v. Nova Scotia (Minister of Environment), 1995 NSCA 209, 146 N.S.R. (2d) 372, Saanich Inlet Preservation Society v. Cowichan Valley (Regional District) (1983), 1983 382 (BC CA), 44 B.C.L.R. 121 (C.A.), and Woodman v. Capital Regional District (1999), 6 M.P.L.R. (3d) 128 (B.C.S.C.).