Court File and Parties
Court of Appeal for Ontario Date: 20210514 Docket: M52429
Miller J.A. (Motion Judge)
Between:
Her Majesty the Queen in Right of Ontario (Ministry of Natural Resources and Forestry) Respondent (Responding Party)
and
The Town of the South Bruce Peninsula Appellant (Moving Party)
Counsel: Jonathan C. Lisus and James Renihan, for the moving party Nicholas Adamson and Madeline Ritchie, for the responding party
Heard: May 4, 2021 by video conference
Endorsement
[1] The Town of South Bruce Peninsula, the moving party, is responsible for maintaining Sauble Beach, a popular tourist destination. The beach is also the seasonal nesting home of the piping plover, a migratory shorebird designated as endangered by the Endangered Species Act, 2007, S.O. 2007, c. 6 (the “ESA”). Section 10(1) of the ESA makes it an offence for any person “to damage or destroy the habitat” of over 175 species of plants and animals, including the piping plover. The section applies to habitats located on private or public land.
[2] In addition to its obligations under the ESA, the Town is required to maintain the beach for the safety of its users. Since 2007, when the piping plover returned to Sauble Beach after a 30-year absence, the Town has worked closely with the Ministry of Natural Resources and Forestry (“MNRF”) to assist in recovery efforts. The Town has sought to minimize the impact of its maintenance on the plovers, to take active steps to protect the few plovers’ nests (typically fewer than five) from predators and accidental interference from beach users, and to ensure that the natural features of the beach area remain suitable to piping plovers looking for a place to nest. All seemed satisfactory until 2017.
[3] In early April 2017, before the annual arrival of the piping plovers, the Town mechanically raked the beach. In late August 2017, after the piping plovers had left for the season, the Town advised MNRF of its plan for upcoming maintenance. MNRF raised no objections to what was proposed and the Town carried out its maintenance.
[4] Subsequently, the MNRF alleged that the nature and extent of the Town’s maintenance in April and August exceeded what had been proposed and had damaged plover habitat.
[5] The Town was charged and convicted of two counts of damaging piping plover habitat, contrary to s. 10(1)(a) of the ESA. The convictions were upheld on appeal by Morneau J. of the Ontario Court of Justice (the “Appeal Judge”).
[6] The Town seeks leave to appeal to this court pursuant to s. 139(1) of the Provincial Offences Act, R.S.O. 1990, c. P.33 (the “POA”). It raises two issues: (i) the Appeal Judge (and the Justice of the Peace below) erred in their interpretation of s. 10(1) of the ESA, particularly with respect to what constitutes ‘damage’ to a species’ habitat and the evidence required to prove it, and (ii) the Appeal Judge (and the Justice of the Peace) erred in applying the test in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182 governing the admissibility of expert evidence in the context of a regulatory offence.
[7] The threshold for granting leave to appeal pursuant to s. 139 of the POA is high. Section 139(1) provides that leave is only available on special grounds upon a question of law alone. Section 139(2) further specifies that no leave shall be granted unless, in the particular circumstances of the case, “it is essential in the public interest or for the due administration of justice that leave be granted”.
[8] The Town argues that the Appeal Judge erred by interpreting ‘damage’ too broadly, to include any change, no matter how temporary, that would make an area “less attractive, useful or valuable” to a species. This would capture any change that made a habitat less attractive to a species to any degree – regardless of whether it was a trifling inconvenience or capable of having any practical impact on the life processes of the species in question. The Town argues that ‘damage’ must be interpreted with reference to the definition of ‘habitat’ in the ESA, which is defined, in part, as “an area on which the species depends, directly or indirectly, to carry on its life processes”: at s. 2(1).
[9] The Town argues that s. 10(1), properly interpreted, would require some assessment – and some evidence – that a change to a habitat had some negative impact on the viability of the species. It further argues that the interpretation of ‘damage’ should include a balance between the protection of listed species and the economics of industries operating under the ESA. Furthermore, the public interest requirement from s. 139(2) is satisfied, it argues, by the number of land owners and users who are at risk of violating the ESA or are constrained in their use of land, due to an overly expansive and rigid interpretation of s. 10(1).
[10] The Crown concedes that the interpretation of ‘damage’ in the context of the ESA is a legal question, but argues that the Appeal Judge made no error in her interpretation of s. 10(1). It argues, further, that the interpretation advanced by the Town is untenable, as s. 10(1) is a strict liability offence that is established on proof that a habitat has been damaged to any degree, independently of any harm to a species. Finally, the Crown argues that an appeal on this question is not essential either to the public interest or the due administration of justice.
[11] I am satisfied that leave ought to be granted on this question. The interpretation of the ESA provided by the Appeal Judge may be found to be right. However, the questions raised by the Town are serious and their resolution will make the legislation more determinate and thus capable of providing greater guidance to those subject to it. Further, there are a great many persons who are required to conform their behaviour to the demands of statute. The ESA is of such broad application – impacting private and public landowners as well as any member of the public using such lands – that as with R. v. Castonguay Blasting, 2011 ONCA 292, 58 C.E.L.R. (3d) 30, Ontario (Labour) v. Sudbury (City), 2019 ONCA 854, 93 M.P.L.R. (5th) 179, and R. v. Hicks, 2014 ONCA 756, its interpretation is a matter of public interest. Furthermore, as with Hicks, this seems to be this court’s first opportunity to apply this section.
[12] I would also grant leave on the second issue. It is true that White Burgess has received considerable attention from this court and others since it was decided. There may prove to be no questions of nuance about its application in a regulatory setting that have not already been canvassed in the criminal and civil context. However, guidance from this court on such a fundamental question of law related to the administration justice is appropriate, and I am satisfied that leave should be granted on this basis.
Disposition
[13] The motion for leave to appeal is granted.