2016596 Ontario Inc. v. Ontario (Minister of Natural Resources)

2016596 Ontario Inc. v. Her Majesty the Queen in right of Ontario as represented by the Minister of Natural Resources; Wildlands League, Intervenor [Indexed as: 2016596 Ontario Inc. v. Ontario (Minister of Natural Resources)]

72 O.R. (3d) 360

[2004] O.J. No. 3922

Docket: C40486

Court of Appeal of Ontario,

Simmons, Armstrong JJ.A. and Lane J. (ad hoc)

September 28, 2004

*Application for leave to appeal to the Supreme Court of Canada was dismissed with costs April 7, 2005 (Major, Fish and Abella JJ.)

Administrative law -- Judicial review -- Standard of review -- Owner of lands lying immediately east of Lake Superior Provincial Park asking to use private road located in Park to access owner's lands -- Acting Park Superintendent denying access request based on his interpretation of 1995 Lake Superior Provincial Park Management Plan -- Standard of review of Acting Park Superintendent's decision being that of reasonableness or patent unreasonableness rather than correctness -- Decision not unreasonable -- Access decision not amounting to alteration or reinterpretation of 1995 Plan and not effective equivalent of closing access road -- Order-in- Council not required with respect to creation of management plan -- Owner not denied procedural fairness.

The applicant owned 46,000 acres of land lying immediately east of Lake Superior Provincial Park. The applicant's request to use a Park road ("the Sand River Road") to access the lands was denied by the Acting Park Superintendent. The Superintendent referred to the 1995 Lake Superior Provincial Park Management Plan (the "1995 Plan") and concluded that vehicle access on the Sand River Road was not permitted for access to and from private property. The applicant's application for judicial review of that decision was granted. The application judge found that the Park Superintendent's interpretation of the words contained in the 1995 Plan was incorrect as it was not clearly stated that the road was not to be used for access to private timber limits east of the Park. He also found that the applicant was denied procedural fairness. The Minister of Natural Resources appealed.

Held, the appeal should be allowed.

Per Simmons J.A. (Lane J. (ad hoc) concurring): The application judge erred in applying a standard of review of correctness. It was unnecessary to decide whether the applicable standard of review of the Acting Plan Superintendent's decision was reasonableness or patent unreasonableness, as the decision was reasonable. Section 10.3 of the 1995 Plan provides as follows: [page361]

The Sand River Road will continue to be available for use primarily as a forest access road by timber companies with allocations east of the Park. The road was constructed to serve as an internal haul road and to provide access to timber limits east of the park. Timber companies were provided with alternate sources of supply on public lands outside of the park to compensate for allocations lost within the park as approved in the 1979 Master Plan. Workers, vehicles and equipment may use the Sand River Road year-round. Timber may be hauled on the Sand River Road only after October 15 and before May 1.

On a plain reading of this section, it was not unreasonable to conclude that the reference in the third sentence to "alternate sources [of timber] on public lands outside of the park [that were provided] to compensate for allocations lost within the park" was included in order to define the "allocations" and "timber limits" referred to in the first two sentences. Past uses of the road by individuals and corporations to access private property could be seen as an incident of the use of the road to access public lands. Viewed in this context, because the applicant requested the right to use the Sand River Road solely for the purpose of accessing private property, the Acting Park Superintendent's interpretation of s. 10.3 and his decision to refuse the applicant's access request were not unreasonable.

The application judge erred in finding that either a public hearing or an Order-in-Council was required as a precondition to the access decision. The Provincial Parks Act, R.S.O. 1990, c. P.34 provides that the Minister "may prepare a management plan in respect of a provincial park"; it does not require an Order-in-Council. The access decision did not amount to an alteration or "re-interpretation" of the 1995 Plan, and it was not the effective equivalent of closing an access road within the meaning of the Road Access Act, R.S.O. 1990, c. R.34. Based on the Acting Park Superintendent's interpretation of the 1995 Plan, the applicant was not entitled to use the Sand River road, and the access decision did not amount to an alteration of the applicant's rights. In concluding that the applicant was denied procedural fairness, the application judge's analysis was flawed because of his finding that the Acting Park Superintendent's interpretation of the 1995 Plan was incorrect and his view that a n Order-in-Council was required with respect to the creation of a management plan. The applicant was not denied procedural fairness.

Per Armstrong J.A. (dissenting): The Acting Park Superintendent's interpretation of the 1995 Plan was not reasonable. The third sentence of s. 10.3 of the Plan created ambiguity which required the consideration of extrinsic evidence. The extrinsic evidence established that the Sand River Road had a long history of providing access to sources of timber in both public lands and private property. This evidence resolved the ambiguity created by the third sentence in s. 10.3.

APPEAL from an order of Stortini J., dated April 4, 2003, allowing an application for judicial review of a decision of an Acting Park Superintendent refusing a request to use a private road to access property.

Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193, 243 N.R. 22; Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 787 (SCC), [1998] 1 S.C.R. 1222, [1998] S.C.J. No. 77, apld Mount Sinai Hospital Center v. Quebec (Minister of Health and Social Services), [2001] 2 S.C.R. 281, 200 D.L.R. (4th) 193, 271 N.R. 104, 2001 SCC 41, distd Other cases referred to Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 219 Sask. R. 1, 211 D.L.R. (4th) 577, 286 N.R. 1, 272 W.A.C. 1, [2002] 7 W.W.R. 1, 30 M.P.L.R. (3d) 1, 2002 SCC 33, 10 C.C.L.T. (3d) 157 [page362] Statutes referred to Environmental Assessment Act, R.S.O. 1990, c. E.18 Provincial Parks Act, R.S.O. 1990, c. P.34, ss. 1 "management plan", 7, 8, 16, 21, 22 Road Access Act, R.S.O. 1990, c. R.34 Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 14, 14.05 R.R.O. 1990, Reg. 952, s. 19 Authorities referred to Blake, S., Administrative Law in Canada, 3rd ed. (Toronto: Butterworths Canada, 2001) Brown, D.J.M., and J.M. Evans, Judicial Review of Administrative Action in Canada (Toronto: Canvasback, 2003)

Dennis W. Brown, Q.C., and James Kendik, for appellant. Gordon P. Acton and Brenton Lokash, for respondent. Robert V. Wright and Justin S. Duncan, for intervenor Wildlands League.

SIMMONS J.A. (LANE J. concurring): --

Overview

[1] The appellant appeals from an order made on a judicial review application declaring that the respondent is entitled to use a private road located in a Provincial Park to access the respondent's lands.

[2] The respondent owns 46,000 acres of land (the "ACR lands") lying immediately east of Lake Superior Provincial Park (the "Park"). In October 2002, the Acting Park Superintendent denied the respondent's request to use a Park road (the "Sand River Road") to access the ACR lands. On a judicial review application, Stortini J. declared that the 1995 Lake Superior Provincial Park Management Plan (the "1995 Plan") "entitles [the respondent] to use the Sand River Road . . . in Lake Superior Provincial Park as a forest access road to travel to and from [the respondent's] lands east of the Park".

[3] Although the parties agreed, both here and in the court below, that the applicable standard for reviewing the decision to deny the respondent's request for access to the Sand River Road [page363] (the "access decision") is patent unreasonableness, on appeal, they disagreed concerning what standard of review the application judge actually applied. In my view, the underlying source of this dispute is the parties' differing positions concerning the applicable standard for reviewing the Acting Park Superintendent's interpretation of the 1995 Plan.

[4] For the reasons that follow, I conclude that the application judge erred by applying a standard of correctness when reviewing the Acting Park Superintendent's interpretation of the 1995 Plan and by finding that the respondent was denied procedural fairness in relation to its request. In addition, I conclude that, at its highest, the applicable standard for reviewing the Acting Park Superintendent's interpretation was reasonableness, and that his interpretation was not unreasonable. Accordingly, I would allow the appeal, set aside the application judge's order and dismiss the respondent's application for judicial review.

II. Background

(i) The respondent's requests for access to the Sand River Road

[5] In November 2002, the respondent purchased the ACR lands (formerly owned by the Algoma Central Railway) for timber harvesting purposes. Apart from the Algoma Central Railway line, which provides rail access to the ACR lands, the Sand River Road is the only access route extending to the ACR lands.

[6] The Sand River Road lies within the Park and extends from Highway 17 (which traverses the west side of the Park) to the boundary of the ACR lands. The first 1.9 kilometres of the Sand River Road provides public access from Highway 17 to a parking area near the Sand River Canoe Route. At the time the respondent purchased the ACR lands, Park officials maintained locked gates near both ends of the remaining 15.1 kilometres of the Sand River Road, preventing public access.

[7] In October 2002, the respondent's solicitor requested confirmation from Parks Ontario that, following the respondent's purchase of the ACR lands, the respondent would be entitled to use the Sand River Road to access the ACR lands in connection with its proposed timber harvesting operations.

[8] By letter dated October 7, 2002, the Acting Park Superintendent denied the respondent's request for access, saying:

After consulting the [1995 Plan], we have concluded that vehicle access on the Sand River Road is not permitted for access to and from private property. [page364]

[9] The 1995 Plan was prepared in accordance with the Provincial Parks Act, R.S.O. 1990, c. P.34 (the "Act"). Section 8 of the Act provides that "[t]he Minister may prepare a management plan in respect of any provincial park", while s. 1 defines "management plan" as "a program and policy, or any part thereof, prepared from time to time in respect of a provincial park".

[10] The 1995 Plan sets out the following policies for use of the Sand River Road:

10.0 Development Policies

10.3 Roads

The Sand River Road will continue to be available for use primarily as a forest access road by timber companies with allocations east of the park. The road was constructed to serve as an internal haul road and to provide access to timber limits east of the park. Timber companies were provided with alternate sources of supply on public lands outside of the park to compensate for allocations lost within the park as approved in the 1979 Master Plan. Workers, vehicles and equipment may use the Sand River Road year-round. Timber may be hauled on the Sand River Road only after October 15 and before May 1. [See Note 1 at the end of the document]

[11] Following receipt of the Acting Park Superintendent's decision, the respondent made additional requests to the appellant for access to the Sand River Road. On November 15, 2002, the respondent participated in a conference call with the Northeast Zone Park Manager (the "Zone Manager"). The Zone Manager confirmed the Acting Park Superintendent's decision, saying that "allocations" and "timber limits" in s. 10.3 of the 1995 Plan refer to timber on Crown lands and therefore exclude use of the Sand River Road to access private land. The Zone Manager also indicated that immediate use of the road was not possible in any event, as it would require an environmental assessment.

[12] On November 19, 2002, the respondent wrote directly to the appellant, requesting that access be provided. Despite various meetings and telephone conversations with the appellant and his representatives, as of late December 2002, the respondent had not obtained access to the Sand River Road.

[13] On January 6, 2003, the respondent issued an application for judicial review and requested leave to have the application heard before a single judge of the Superior Court because of urgency. In its application, the respondent claimed a declaration that it is entitled to use the Sand River Road as a forest access road pursuant to the terms of the 1995 Plan. In the alternative, the respondent claimed an injunction under the [page365] Road Access Act, R.S.O. 1990, c. R.34, restraining the appellant from placing any barrier or obstacle over the Sand River Road, which would impede the respondent's access to the ACR lands.

[14] In addition to relying on the wording of the 1995 Plan, the respondent claimed that, in the late 1970s, the appellant had given assurances that the Sand River Road could be used to access timber on the ACR lands and on Crown lands east of the ACR lands; and that between 1979 and 1988, various timber companies used the Sand River Road to access the ACR lands and Crown lands east of the ACR lands for timber harvesting purposes. Further, the respondent asserted that the language and intent of the 1995 Plan were a "carry over" from the provisions for use of the Sand River Road contained in the 1979 Lake Superior Provincial Park Master Plan (the "1979 Plan"), which provided, in part, as follows:

[A] forest access road will be constructed to cross the Park through Goodwillie Township to provide access for men and service vehicles only to timber limits east of the Park.

[15] On the return date of the application, the respondent amended its notice of application to add rule 14.05 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as the procedural basis for its claim for relief under the Road Access Act.

(ii) The application judge's reasons

[16] On April 4, 2003, the application judge granted the respondent's request for a declaration that it is entitled to use the Sand River Road as a forest access road under the 1995 Plan. In his reasons for decision, the application judge noted that the appellant has a broad discretion under s. 16 [See Note 2 at the end of the document] of the Act to open or close a road within a provincial park. However, he concluded that the Sand River Road had not been closed but, rather, that access to it had been restricted. The application judge noted as well that, under s. 21 of the Act, the Lieutenant Governor in Council may make regulations "prohibiting or regulating and controlling . . . vehicular . . . traffic in provincial parks", but found that no such regulations had been made.

[17] The application judge said that it was clear that the appellant was relying on its interpretation of the 1995 Plan "as the [page366] provenance of its decision to close the Sand River Road except for a limited use". He found that [the] main issue in the case was "the reasonableness and fairness of [the appellant's] decision to reinterpret the wording of the [1995 Plan] with regard to the Sand River Road in the absence of any attendant public hearing or Order-in-Council" and said that although the courts give discretionary decisions considerable respect and the standard of review is patent unreasonableness, there remained an issue of procedural fairness to be assessed in accordance with the criteria set out in Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193.

[18] The application judge found that the 1995 Plan and the 1979 Plan were created by Orders-in-Council, but said that in this case it was not clear who had made the decision to prohibit the respondent's use of the Sand River Road. In addition, he observed that, although the appellant claimed that it was not bound by the provisions of the Road Access Act"clearly [the appellant] did not respect the requirements of the Act" and "it is not unreasonable . . . to consider the spirit, if not the letter, of the Road Access Act which, prima facie, would prohibit the closing of an access road without a court order obtained on notice."

[19] The application judge also noted that until the Acting Park Superintendent notified the respondent "of the closing of the Sand River Road as an access way to timber rights on private property . . . [the respondent] had reason to believe that the said access confirmed by both the 1979 Plan and the 1995 Plan would continue until, at least, the review of the 1995 Plan by Order-in-Council in 2015". However, he found that there was no evidentiary basis for an estoppel based on detrimental reliance and said"the Court's decision is based on the interpretation of the 1995 Plan with regard to the use of the Sand River Road."

[20] The application judge held that under rule 14.05 of the Rules of Civil Procedure "the decision of the Court is governed by the interpretation of the particular words contained in the [1995 Plan] relating to the Sand River Road." He then gave reasons for his conclusion that the respondent is entitled to access to the Sand River Road as follows (at paras. 31-33):

In my view, the Park Superintendent's interpretation of the words contained in the 1995 Park Management Plan is incorrect. It is not clearly stated that the road is not to be used for access to private timber limits east of the Park.

Prior to the 1995 Plan the Sand River Road was used to haul timber from within the Park and from the A.C.R. lands east of the Park. As compensation for the extinguished timber rights within the Park, the timber licencees were given timber rights to Crown lands east of the Park. The 1995 Plan clearly [page367] prohibits the harvest of timber within the Park. It does not prohibit continued access to timber rights, on private (A.C.R.) lands to the east of the Park. In my view the respondent's interpretation of the particular text of the 1995 Park Management Plan in question is not supported by the particular words contained therein. The limitation sought to be imposed with the force of an Order-in-Council is not sufficiently, if at all, ascertained by the plain words of the text.

In view of the circumstances of the decision/interpretation, the unascertained decision maker, the timing, the lack of reasonable procedures and process, and the invalid interpretation of the Plan text, this court concludes that the interpretation in question is incorrect and does not meet the standard of fairness.

(Emphasis added)

III. Grounds of Appeal

[21] The appellant raises the following six grounds of appeal:

(i) did the application judge err in combining an application for judicial review with an application under Rule 14, and by concluding that the Crown did not "respect" the Road Access Act;

(ii) did the application judge misapprehend the evidence when he ignored the fact that the Sand River Road has been closed pursuant to s. 16 of the Act;

(iii) did the application judge err in applying a standard of correctness when the appropriate standard of review was patent unreasonableness;

(iv) did the application judge err by misapprehending the evidence and concluding that the respondent was denied procedural fairness;

(v) did the application judge err in interpreting government policy which was not within his jurisdiction; and

(vi) did the application judge 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, R.S.O. 1990, c. E.18?

IV. Analysis

[22] In my view, the third and fourth issues raised by the appellant are dispositive of the appeal and it is unnecessary that I consider the remaining grounds, either because they raise issues that are largely irrelevant to the disposition of the appeal, or because I do not reach them in determining the appeal. However, before [page368] turning to the third and fourth grounds of appeal, I will comment briefly on the first, second and fifth issues raised by the appellant, and on one additional issue.

[23] The first issue raised by the appellant is that the application judge err in combining an application for judicial review with an application under Rule 14 and by concluding that the Crown did not "respect" the Road Access Act. Since the trial judge did not make a declaration under the Road Access Act, I conclude that this issue does not raise a stand-alone ground of appeal. However, the trial judge's finding that the Crown did not respect the requirements of the Road Access Act appears to have influenced his findings (at para. 33) that there was a lack of "reasonable procedures and process" and that the access decision "does not meet the standard of fairness". I will therefore take account of this issue when considering the fourth ground of appeal.

[24] The second issue raised by the appellant is that the application judge misapprehended the evidence when he ignored the fact that the Sand River Road has been closed pursuant to s. 16 of the Act. However, even if that is true, neither the Acting Park Superintendent nor the Zone Manager relied on that factor in making the access decision. Since I have concluded that the appellant's interpretation of the 1995 Plan, and the resulting decision to deny the respondent's request for access to the Sand River Road were not unreasonable, it is unnecessary that I consider matters that did not contribute to the access decision.

[25] The fifth issue raised by the appellant is that the application judge erred in interpreting government policy, which was not within the application judge's jurisdiction. Although appearing to assert that the application judge did not have jurisdiction to review the Acting Park Superintendent's interpretation of the 1995 Plan, the appellant's submission is simply that the application judge did not have jurisdiction to issue a declaration concerning the meaning of the 1995 Plan. Because I would not grant the respondent's application, it is unnecessary that I dispose of this issue.

[26] Finally, I wish to comment on the application judge's observation that the decision maker in this matter is unascertained. Because the respondent commenced its application prior to receiving a response to its request that the Minister reverse the Acting Park Superintendent's decision, it may not be clear whether the access decision is that of the Acting Park Superintendent as confirmed by the Zone Manager, or that of the Minister. Both the Acting Park Superintendent and the Zone Manager [page369] have the authority under s. 7 of the Act [See Note 3 at the end of the document] to make the decision that the respondent requested. As the parties did not address this issue, I will treat the access decision as being made by the Acting Park Superintendent and confirmed by the Zone Manager. A decision by the Minister may be entitled to a higher level of deference than that of his designates. Accordingly, this is the position most favourable to the respondent.

[27] I will turn now to the third and fourth grounds of appeal.

(iii) Did the application judge err in applying a standard of correctness when the appropriate standard of review was patent unreasonableness?

[28] Both parties agree that the access decision was a discretionary decision and that, as the application judge correctly determined, patent unreasonableness is the applicable standard of review. However, the appellant contends that in reviewing the access decision, the application judge actually applied the standard of correctness. The respondent submits that the application judge applied the standard of patent unreasonableness.

(a) The standard of review applied by the application judge

[29] In my view, the dispute concerning which standard of review the application judge applied arises from the fact that the application judge's review of the access decision involved two steps. In the first step, the application judge applied the standard of correctness and determined that the Acting Park Superintendent's interpretation of the 1995 Plan was incorrect. In the second step, the application judge found that, in light of the Acting Park Superintendent's incorrect interpretation of the 1995 Plan and other factors, the access decision did not meet the standard of fairness.

[30] In reaching the conclusions that the application judge followed a two-step approach and that the application judge applied the standard of correctness to the first step, I rely on the following excerpts from the application judge's reasons (at paras. 10-11, 17, 31-33):

If the position taken by the Park Superintendent is based on an incorrect interpretation of the 1995 Plan, then, in effect, he has altered the Plan that declares itself reviewable in 2015, and "which may be subject to full public review at that time". [page370]

If the Superintendent is correct in his interpretation of the 1995 Plan, the applicant may be powerless to challenge the M.N.R.'s statutory authority to manage the Park.

If the decision maker is incorrect in its interpretation of the 1995 Park Management Plan, then the validity of the exercise of bureaucratic discretion/interpretation becomes an issue.

In my view, the Park Superintendent's interpretation of the words contained in the 1995 Park Management Plan is incorrect. It is not clearly stated that the road is not to be used for access to private timber limits east of the Park.

. . . In my view the respondent's interpretation of the particular text of the 1995 Park Management Plan in question is not supported by the particular words contained therein. The limitation sought to be imposed with the force of an Order-in-Council is not sufficiently, if at all, ascertained by the plain words of the text.

In view of the circumstances of the decision/interpretation, the unascertained decision maker, the timing, the lack of reasonable procedures and process, and the invalid interpretation of the Plan text, this court concludes that the interpretation in question is incorrect and does not meet the standard of fairness.

(Emphasis added)

[31] In the quoted excerpts, the application judge not only used "correctness" terminology, he relied on the fact that the 1995 Plan does not contain clear language expressly stipulating that the Sand River Road is not to be used to access private timber limits. Had the application judge been applying any standard of review other than correctness, he would have considered whether the 1995 Plan is reasonably capable of bearing the Acting Park Superintendent's interpretation. Clearly, the application judge's finding that the acting Park Superintendent's interpretation of the 1995 Plan is incorrect is but one component of his conclusion that the access decision does not meet the standard of fairness.

[32] Although the parties agreed that the applicable standard for reviewing the access decision is patent unreasonableness, neither party made submissions focussing directly on the standard of review applicable to the Acting Park Superintendent's interpretation of the 1995 Plan or how this standard should be determined. The appellant asserts simply that the application judge applied the wrong standard in reviewing the access decision, that the application judge had no jurisdiction to issue a declaration concerning the proper interpretation of the 1995 Plan, and that courts have consistently deferred to governments with respect to policy decisions.

[33] The respondent replies that the application judge's finding that the Acting Park Superintendent's interpretation of the 1995 [page371] Plan is incorrect does not mean that the application judge applied the wrong standard of review to the access decision; rather, the application judge's finding justified his conclusion that the access decision was patently unreasonable. Further, the Acting Park Superintendent's interpretation of the 1995 Plan formed the basis of the access decision and was therefore properly the subject matter of the judicial review application. Finally, because the 1995 Plan is a statutorily authorized document controlling the use of land through enforcement mechanisms, the 1995 Plan constitutes subordinate legislation. Accordingly, the Acting Park Superintendent erred in law by failing to apply standard principles of statutory interpretation, such as determining the provision's ordinary meaning and the intent of the draftsman.

[34] In my view, rather than resolving the issue, these submissions point out the need to determine the proper standard for reviewing the Acting Park Superintendent's interpretation of the 1995 Plan.

(b) The standard of review applicable to the Acting Park Superintendent's interpretation of the 1995 Plan

[35] As already noted, both parties agreed that the access decision was a discretionary decision and that the application judge correctly determined that patent unreasonableness was the applicable standard of review. However, interpreting the 1995 Plan was a component of the access decision that did not necessarily entail the exercise of discretion.

[36] In Baker v. Canada, supra, at paras. 54-56, L'Heureux-Dubé J. indicates that it is "inaccurate to speak of a rigid dichotomy of "discretionary" or "non-discretionary" decisions" and that "the "pragmatic and functional" approach recognizes that standards of review for errors of law are appropriately seen as a spectrum. In my view, rather than trying to place the Acting Park Superintendent's interpretation of the 1995 Plan into a particular category of decision, it is more appropriate to apply the functional and pragmatic approach set out in Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 787 (SCC), [1998] 1 S.C.R. 1222, [1998] S.C.J. No. 77, to determine the applicable standard for reviewing the Acting Park Superintendent's interpretation of the 1995 Plan.

[37] Applying the Pushpanathan factors to that issue, I conclude that considerable deference should be accorded to the Acting Park Superintendent's interpretation. As I have also concluded that the appellant's interpretation was not unreasonable, it is unnecessary that I finally determine whether the applicable standard is reasonableness or patent unreasonableness. [page372]

[38] My analysis of the Pushpanathan factors in relation to this issue is as follows:

1. Privative clause. There is no privative clause in the Act or the 1995 Plan; on the other hand, there is no clause expressly permitting appeals. On balance, this factor is essentially neutral.

2. Expertise. The Acting Park Superintendent and Zone Manager have specialized expertise with respect to provincial parks. They are in charge of the park and function as the designates of the Minister. The issue in question is the interpretation of a park management plan, a policy document specific to provincial parks and prepared by the Minister. The court has less expertise relative to the Acting Park Superintendent and Zone Manager. Moreover, the issue in question falls squarely within the competence of the Minister's designates. This factor favours considerable deference.

3. Purpose of the Act as a whole and the provision in particular. The purpose of the Act and the 1995 Plan is to preserve provincial parks for the benefit of the public. The Minister and his designates play a role in developing the park management plan, which is a policy document. The overall structure of the Acts affords the Minister and his designates control over the administration of provincial parks. Neither the Act nor the 1995 Plan includes a dispute resolution mechanism. Although the issue in question is specific to the respondent, it is polycentric in the sense that it involves a variety of interests, including the public at large, the timber harvesting industry and its offshoots, as well as the respondent. On balance, this factor favours considerable deference.

4. Nature of the problem. I do not accept the respondent's submission that the problem involves interpreting subordinate legislation, and that it is therefore a question of law, requiring that the Acting Park Superintendent be correct in his interpretation of the 1995 Plan. Rather, because the 1995 Plan is a statutorily authorized policy document, in my view, the issue involves interpreting quasi-legislation, i.e. directives, policy statements and guidelines that are not legally enforceable: see Sara Blake, Administrative Law in Canada, 3rd ed. (Toronto: Butterworths Canada, 2001) at p. 134; see also Brown and Evans, Judicial Review of Administrative Action in Canada (Toronto: Canvasback, 2003) at para. 3410. As the matter in issue [page373] involves interpreting policy rather than law, at a minimum, this factor favours deference.

In particular, I do not accept the respondent's submissions that the 1995 Plan controls the use of land through enforcement mechanisms, and that the Zone Manager's cross- examination demonstrates that persons have been prosecuted for violating the provisions of the 1995 Plan concerning use of the Sand River Road. There is no offence for violating a management plan. Section 22 of the Act makes it an offence to contravene the Act or the regulations. Although s. 19 of Reg. 952, R.R.O. 1990, provides that "[n]o person shall operate a vehicle within a provincial park except on a roadway or other place designated for the purpose" and although it is the 1995 Plan that designates a portion of the Sand River Road as being available for public use, the offence arises from violating the regulation and not from violating the 1995 Plan. Further, while the Act requires the Lieutenant Governor in Council's approval for the exercise of certain powers [See Note 4 at the end of the document], that approval is not required for the preparation of a management plan.

However, even if I am wrong, and the 1995 Plan is subordinate legislation the interpretation of which involves a question of law, this is but one factor favouring less deference. Given my analysis of the first three factors, this conclusion standing alone, would not be sufficient to support a finding that the applicable standard of review is correctness.

[39] I conclude that, at most, the application judge ought to have applied the standard of reasonableness in reviewing the Acting Park Superintendent's interpretation of the 1995 Plan.

[40] Before turning to the issue of whether the Acting Park Superintendent's interpretation of the 1995 Plan was reasonable, I note that in response to the appellant's submission that the application judge applied the wrong standard of review, the respondent advanced an alternative submission that this case should be treated as analogous to Mount Sinai Hospital Center v. Quebec (Minister of Health and Social Services), 2001 SCC 41, [2001] 2 S.C.R. 281, 200 D.L.R. (4th) 193, and that the access decision should be [page374] treated as a failure to implement the statutory decision contained in the 1995 Plan.

[41] This case is distinguishable from Mount Sinai because no promise was made to the respondent that it could use the Sand River Road. In Mount Sinai, the Minister in question had made promises directly to the party seeking judicial review. Further, as already noted, I do not consider that the 1995 Plan constitutes subordinate legislation. Finally, in my view, the provisions of the Provincial Parks Act indicating that the 1995 Plan is "a program and policy" [See Note 5 at the end of the document] and that "each provincial park is under the control and management of the Minister" and "under the charge of a district manager or a superintendent designated by the Minister" [See Note 6 at the end of the document] makes it clear that the statutory decision-making power lies with the Minister and his designates.

[42] I will turn next to the question of whether the Acting Park Superintendent's interpretation of the 1995 Plan and the resulting access decision were unreasonable.

[(c)] Was the Acting Park Superintendent's interpretation of the 1995 Plan unreasonable?

[43] The Acting Park Superintendent's interpretation of the 1995 Plan was predicated on the view that the words "allocations" and "timber limits" in s. 10.3 of the 1995 Plan refer to timber on Crown land and therefore exclude the use of the Sand River Road to access private lands. In my view, based on a plain reading of the section, either standing alone or in combination with the evidence presented concerning the history of the use of the road, the Acting Park Superintendent's interpretation of s. 10.3 and the resulting decision to refuse the respondent's request for access to the Sand River Road were not unreasonable.

[44] I repeat the relevant extract from s. 10.3 of the 1995 Plan for ease of reference:

The Sand River Road will continue to be available for use primarily as a forest access road by timber companies with allocations east of the Park. The road was constructed to serve as an internal haul road and to provide access to timber limits east of the park. Timber companies were provided with alternate sources of supply on public lands outside of the park to compensate for allocations lost within the park as approved in the 1979 Master Plan. Workers, vehicles and equipment may use the Sand River Road year- round. Timber may be hauled on the Sand River Road only after October 15 and before May 1.

(Emphasis added) [page375]

[45] On a plain reading of this extract, it is not unreasonable to conclude that the reference in the third sentence to "alternate sources [of timber] on public lands outside of the park [that were provided] to compensate for allocations lost within the park", was included in order to define the "allocations" and "timber limits" referred to in the first two sentences.

[46] Turning to the evidence that was presented concerning the history of the use of the road, it is clear that throughout much of the 1980s, use of the Sand River Road was not confined to permitting access to Crown timber limits east of the Park. [See Note 7 at the end of the document] Rather, the road was also used to access the ACR lands. However, a key distinction appears to be that the individuals and corporations using the road to access the ACR lands were also using it to access Crown timber limits east of the Park, or were licensees or contractors of such individuals and corporations. These uses of the road to access private property can accordingly be seen as an incident of use of the road to access public lands. Viewed in this context, because the respondent requested the right to use the Sand River Road solely for the purpose of accessing private property, the Acting Park Superintendent's interpretation of s. 10.3 and his decision to refuse the respondent's request for access to the Sand River Road are not unreaso nable.

[47] In reaching this conclusion, I note that the evidence proffered by the respondent concerning previous use of the Sand River Road was not entirely clear. In particular, it was not clear whether all of the previous users who used the Sand River Road to access private property also used it to access public lands; similarly, if there were previous users who used the Sand River to access private lands alone, it was not clear whether those users acquired their right through persons using it, at least in part, to access public lands. However, since this was the respondent's application, it had the onus of proof.

[48] However, even if some of the previous users of the Sand River Road used it solely to access private property and did not acquire their right through users accessing public lands, I would not conclude that the Acting Park Superintendent's interpretation of the 1995 Plan is unreasonable. The Zone Manager gave evidence in this proceeding. He said that the road had not been actively used by loggers in the preceding 16 years and that it was in no condition to be used for this purpose. Current use [page376] was limited to some Park officials and a trapper. In addition, the Zone Manager deposed that there are no records referencing any commitment made by the appellant to the respondent or any other person that the Sand River Road would be available for the purposes of servicing commercial timber harvesting on private land.

[49] On cross-examination, the Zone Manager testified that park management plans are drafted to enable permitted uses and that uses that are contrary to policy would not necessarily be reflected in a plan. He referred specifically to a document entitled "Ontario Provincial Parks: Planning and Management Policies", which contains the following statement:

No land disposition for the private use of individuals or corporations will be permitted in regulated parks. All forms of existing tenure issued by the Crown for private use--land use permits, licences of occupation, leases--will be phased out no later than January 1, 2010. . . .

[50] As for the basis of any prior authorization of the use of the Sand River Road to access private land, he said it would have been "the general nature of the operations of timber management". As I understand his answer, he conceded the possibility of ad hoc approvals for private use.

[51] In the result, although I acknowledge that a different interpretation of the 1995 Plan might also be reasonable, I am not persuaded that the Acting Park Superintendent's interpretation of the 1995 Plan was unreasonable. Moreover, in light of my conclusion, as well as the evidence concerning the extent to which the Sand River Road was being used at the time of the respondent's request, I am not persuaded that the access decision was unreasonable, let alone patently unreasonable.

(iv) Did the application judge err by misapprehending the evidence and concluding that the respondent was denied procedural fairness

[52] As already noted, the application judge stated his conclusion in the following terms (at para. 33):

In view of the circumstances of the decision/interpretation, the unascertained decision maker, the timing, the lack of reasonable procedures and process, and the invalid interpretation of the Plan text, this court concludes that the interpretation in question is incorrect and does not meet the standard of fairness.

[53] The application judge's comment that the "decision/ interpretation does not meet the standard of fairness" appears to relate either to the application judge's statement of the issue in this matter, to the application judge's concern that the appellant [page377] did not follow the procedures generally used for closing an access road, or to both.

[54] The application judge framed the issue before him as "the reasonableness and fairness of [the appellant's] decision to reinterpret the wording of the 1995 Park Management Plan . . . in the absence of any attendant public hearing or Order-in-Council". He also commented that it was "not unreasonable . . . to consider the spirit, if not the letter, of the Road Access Act which, prima facie, would prohibit the closing of an access road without a court order obtained on notice".

[55] I know of no basis for holding that either a public hearing or an Order-in-Council was required as a pre-condition to the access decision. The Provincial Parks Act provides that the Minister "may prepare a management plan in respect of a provincial park"; it does not require an Order-in-Council. On my view of the access decision, it did not amount to an alteration or "re-interpretation" of the 1995 Plan, and it was not the effective equivalent of closing an access road within the meaning of the Road Access Act. Based on the Acting Park Superintendent's interpretation of the 1995 Plan, the respondent was not entitled to use the Sand River Road, and the access decision did not amount to an alteration of the respondent's rights.

[56] The application judge reviewed the non-exhaustive criteria set out by the Supreme Court of Canada in Baker in concluding that the respondent was denied procedural fairness. His analysis was flawed because of his finding that the Acting Park Superintendent's interpretation of the 1995 Plan was incorrect and his view that an Order-in-Council is required with respect to the creation of a management plan. The respondent's submission that it was denied procedural fairness is predicated on the view that the Acting Park Superintendent's interpretation of the 1995 Plan was incorrect and amounted to a re-interpretation of or amendment to the 1995 Plan without public consultation. In light of my previous conclusions, I see no basis for holding that the respondent was denied procedural fairness.

Disposition

[57] Based on the foregoing reasons, I would allow the appeal, set aside the application judge's order and dismiss the respondent's application for judicial review. In addition, I would set aside the order for costs made by the application judge and direct that the respondent repay to the appellant any costs paid pursuant to that order. I would award costs of the application to the appellant on a partial indemnity basis fixed at $65,000 inclusive [page378] of disbursements and applicable GST. I would award costs of the appeal to the appellant on a partial indemnity basis fixed at $25,000 inclusive of disbursements and applicable GST.

[58] ARMSTRONG J.A. (dissenting): -- I have read the reasons for judgment of my colleague, Simmons J.A. I agree with her analysis of the appropriate standard of review. However, with respect, I do not agree that the Acting Park Superintendent's interpretation of the 1995 Plan was reasonable.

[59] I set out again s. 10.3 of the 1995 Plan related to the use of the Sand River Road:

The Sand River Road will continue to be available for use primarily as a forest access road by timber companies with allocations east of the Park. The road was constructed to serve as an internal haul road and to provide access to timber limits east of the park. Timber companies were provided with alternate sources of supply on public lands outside of the park to compensate for allocations lost within the park as approved in the 1979 Master Plan. Workers, vehicles and equipment may use the Sand River Road year- round. Timber may be hauled on the Sand River Road only after October 15 and before May 1.

[60] I read the first two sentences of s. 10.3 of the 1995 Plan as a clear and unambiguous declaration that timber companies, which have timber allocations east of the park, may continue to use the Sand River Road as they have in the past, for access to those timber limits. There is nothing in the language of the first two sentences which can be read as prohibiting the use of the road by companies who use it to access timber limits on private property.

[61] The problem arises with the third sentence of s. 10.3 of the 1995 Plan. It is difficult to ascertain why that sentence follows the clear and unambiguous language of the first two sentences. My colleague concludes that it is not unreasonable to find "that the reference in the third sentence to 'alternate sources [of timber] on public lands outside of the park [that were provided] to compensate for allocations lost within the park' was included in order to define the 'allocations' and 'timber limits' referred to in the first two sentences".

[62] If the drafter of the plan intended to restrict the use of the Sand River Road to timber companies seeking access to sources of timber on crown land, there was a much easier way to accomplish it. The drafter could simply have inserted the words "on crown land" in the first sentence of s. 10.3 after the word "allocations".

[63] In my view, what the third sentence really does is it creates ambiguity which must lead the court to consider the available extrinsic evidence. The extrinsic evidence establishes that [page379] the Sand River Road has a long history of providing access to sources of timber in both public lands and private property (particularly in the ACR lands).

[64] Trevor Isherwood, the former Director of the Timber Sales Branch of the Minister of Natural Resources, testified that he was one of two negotiators on behalf of the government concerning the long-term future use of the Sand River Road by the timber companies. These negotiations were carried out with representatives of the timber industry.

[65] The following paragraphs from the affidavit of Mr. Isherwood set forth his understanding of the results of those negotiations which are reflected in the 1995 Plan:

During these negotiations, McCormick and I provided the MNR's commitment that the Sand River Road would be available in the future for forest companies to access Crown land east of the Park and private land east of the Park for timber harvesting purposes. This commitment is set forth in the Lake Superior Provincial Park Management Plan, 1995 (the "1995 Plan") and reiterates the MNR's commitment on this issue set forth in the 1979 Lake Superior Provincial Park Master (Management) Plan.

I am advised by Brent Lokash, counsel for the Applicant, that the MNR, through Ontario Parks, has denied the Applicant use of the Sand River Road to access the ACR Lands on the basis that the 1995 Plan only provides for use of the Sand River Road to access Crown land and not to access private land (the "MNR Decision").

Mr. Lokash has advised me that the MNR contends that the provision in the 1995 Plan which states, that, the Sand River Road will continue to be available for use primarily as a forest access road by timber companies with allocations east of the park. The road was constructed to serve as an internal haul road and to provide access to timber limits east of the park . . ." excludes the use of the road to access private land since the terms "allocations" and "timber limits", as those terms are used by the MNR, means Crown timber.

During my term as Director, the terms "allocations" and "timber limits", were used within the MNR to refer to both Crown timber and private timber. I am not aware of any practice within the MNR during my term as Director to use the terms "allocations" and "timber limits" to refer only to Crown timber.

In respect of the MNR Decision, I also believe that it not only violates the MNR's commitment to allow long term use of the Sand River Road as I have described above, but it also frustrates the intent of the compensation scheme I have described above since it interrupts the supply of timber to the forestry industry operating in and around the Park.

(Emphasis in original)

[66] Mr. Isherwood was not cross-examined on his affidavit. In my view, this evidence and the other evidence of the historical use of the Sand River Road as a means of access to sources of timber on private property east of the park resolves the ambiguity created by [page380] the third sentence in s. 10.3 of the 1995 Plan. In the result, on the record before us, I conclude that the Assistant Park Superintendent's interpretation of s. 10.3 is patently unreasonable.

[67] Counsel for the appellant argued that the Declaration by the application judge concerning the use of the Sand River Road ignores the need for an environmental review. Whether there is a requirement for an environmental review appears to involve questions of mixed fact and law. In accordance with the judgment of the Supreme Court of Canada in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, 211 D.L.R. (4th) 577, I would defer to the decision of the application judge on this issue.

[68] In the result, I would dismiss the appeal.

Appeal allowed.

APPENDIX A

10.0 Development Policies

10.3 Roads

The Sand River Road will continue to be available for use primarily as a forest access road by timber companies with allocations east of the park. The road was constructed to serve as an internal haul road and to provide access to timber limits east of the park. Timber companies were provided with alternate sources of supply on public lands outside of the park to compensate for allocations lost within the park as approved in the 1979 Master Plan. Workers, vehicles and equipment may use the Sand River Road year-round. Timber may be hauled on the Sand River Road only after October 15 and before May 1.

It will be the responsibility of the timber companies to erect and maintain gates at both ends of the road to prohibit unauthorized vehicle access. Maintenance and rehabilitation of the Sand River Road between the gates will also be the responsibility of the timber companies.

The Sand River Road Forest Access Road passes through the Sand River Valley Natural Environment Zone (NE 4). The road corridor will have a maximum width of 90 metres (measured as 45 metres either side from the centre of the road) to provide aggregate for road maintenance. Road improvements and locations of borrow pits will be subject to approval by the Ministry in accordance with the Aggregate Resources Act and the aggregate resources plan for the park (refer to Aggregate Management, section 8.1 Lands and Waters).

Trappers accessing areas east of the park will also be allowed to use the Sand River Road under permit by the Park Superintendent until such time as trapping within the park is phased out, or when the road is no longer passable (refer to Commercial Trapping, section 8.3 Wildlife and Fisheries). [page381]

Additional access via the Sand River Road, beyond the gate, will be permitted as long as the road remains passable, only for emergency situations for train derailments, search and rescue, fires, major power failures on the Great Lakes power line and life threatening situations.

As with the rest of this plan, the use of these roads will be reviewed in 10 years.

Notes

Note 1: See Appendix A for the complete text of s. 10.3 of the 1995 Plan [see p. 380, post].

Note 2: Section 16 of the Act provides in part:

16(1) The district manager or superintendent in charge of a provincial park may open or close to travel any road or trail in the provincial park that is not under the control of the Ministry of Transportation ...

Note 3: Section 7(1) of the Act provides as follows:

7(1) Each provincial park is under the control and management of the Minister and shall be under the charge of a district manager or a superintendent designated by the Minister.

Note 4: For example, s. 6 of the Act provides:

6. The Minister, with the approval of the Lieutenant Governor in Council, may appoint committees to perform such advisory functions as are considered necessary or desirable...

Note 5: Section 8 and s. 1 of the Act.

Note 6: Section 7 of the Act.

Note 7: The appellant's position is that the portion of the road that connects to the ACR lands was not constructed in its current location until 1979 or 1980. The respondent's evidence does not expressly contradict that position.