Court and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20211020 DOCKET: M52810 (C69500)

Coroza 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 (Responding Party)

Counsel: Jonathan Lisus and James Renihan, for the appellant Nicholas Adamson, for the respondent Lindsay Beck, Bronwyn Roe, and Zachary Biech, for the proposed interveners Environmental Defence Canada Inc. and Federation of Ontario Naturalists

Heard: September 24, 2021 by video conference

Reasons for Decision

Overview

[1] Environmental Defence Canada Inc. (“Environmental Defence”) and the Federation of Ontario Naturalists (“Ontario Nature”) seek leave to intervene in an appeal that will address the statutory interpretation of s. 10(1) of the Endangered Species Act, 2007, S.O. 2007, c. 6 (“ESA”), which prohibits damage to habitats of species identified on the Species at Risk in Ontario List. The appeal is scheduled to be heard on February 22, 2022. The Town of South Bruce Peninsula is the appellant and the Ministry of Natural Resources and Forestry (the Crown) is the respondent.

[2] The appellant is opposed to the proposed intervention. [1] It argues that the proposed interveners would not offer a useful contribution because they offer no independent and different perspective and would simply echo the Crown’s submissions.

[3] For the reasons that follow, I would allow the intervention. This is a public prosecution as opposed to private litigation, and the interpretation of this statutory provision is a matter of public interest that will have broad implications beyond the prosecution of the appellant. While interventions in non-constitutional criminal appeals are granted sparingly, this appeal involves a prosecution for a provincial offence, a quasi-criminal matter. The proposed interveners are reputable organizations with expertise in environmental protection and endangered species, and their proposed submissions will likely make a useful contribution to the hearing.

[4] The concerns raised by the appellant about prejudice can be addressed by the terms of the intervention, such as by limiting the proposed interveners to a ten-page factum, ten minutes of oral argument, and by providing direction to the proposed interveners that they must accept the record that was created in the courts below and will not supplement the record in their factum. A narrow intervention by the proposed interveners would not, in my view, cause injustice to the appellant.

Background

[5] The piping plovers are migratory shorebirds identified as endangered on the Species at Risk in Ontario List under O. Reg. 230/08. The plovers nest seasonally on Sauble Beach which is maintained by the appellant. In April of 2017, shortly before the plovers had returned to Sauble Beach, the appellant mechanically raked the beach, and after the plovers had left the beach later that summer, it graded the beach area with a bulldozer and agricultural cultivator.

[6] In March of 2018, the appellant was charged with two counts of damaging piper plover habitat on Sauble Beach, contrary to s. 10(1)(a) of the ESA. Section 10(1)(a) makes it an offense to damage or destroy the habitat of a species listed as endangered or threatened on the Species at Risk in Ontario List.

[7] The appellant was convicted by a justice of the peace. A further appeal was dismissed by a judge of the Ontario Court of Justice sitting as a Provincial Offences Act, R.S.O. 1990, c. P.33 (“POA”) appeal judge. The appellant then sought leave to appeal to this court, pursuant to s. 139 POA. 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] On May 14, 2021, this court granted leave to appeal on both issues raised: Ontario (Natural Resources and Forestry) v. South Bruce Peninsula (Town), 2021 ONCA 332, 13 M.P.L.R. (6th) 1. Miller J.A. held that the interpretation of “damage” in s. 10(1) of the ESA is a legal question and it is essential in the public interest that leave be granted, at para. 11, given that:

1. “[T]he questions raised by the [appellant] are serious and their resolution will make the legislation more determinate and thus capable of providing greater guidance to those subject to it”;

2. “[T]here 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”; and

3. “[T]his seems to be this court’s first opportunity to apply this section.”

[9] The appeal is scheduled for February 22, 2022 with an hour given to the appellant and 45 minutes to the respondent.

Discussion

[10] In determining motions for leave to intervene as a friend of the court pursuant to Rule 13.03(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the court will generally consider “the nature of the case, the issues which arise and the likelihood of the applicant being able to make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties”: Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 74 O.R. (3d) 164 (C.A.), at p. 167; Foster v. West, 2021 ONCA 263, 55 R.F.L. (8th) 270, at para. 10; Reference re Greenhouse Gas Pollution Pricing Act, 2019 ONCA 29, at para. 8.

Nature of the Case and the Issues which Arise

[11] Where a criminal appeal raises no constitutional issue, or where the liberty of the subject is involved, leave to intervene is granted sparingly: see e.g., Gajewski (Re), 2020 ONCA 4, 149 O.R. (3d) 145, at para. 27; R. v. Roks, 2010 ONCA 182, 275 O.A.C. 146, at para. 11. The appellant cites this proposition to argue against granting leave. However, this appeal concerns a conviction under the POA, a quasi-criminal matter. Importantly, the appellant is not an individual facing a criminal conviction and its liberty is not at stake. The appeal does raise issues of significance to the appellant but the provincial offence at issue is, in fact, a wrong against the community as a whole, engaging a legal issue of a very public nature that is of interest to a wide segment of the community: see Gajewski (Re), at para. 34.

[12] In my view, the nature of the case and the issues which arise from the appeal overwhelmingly favour the proposed interveners on this motion. The proposed interveners seek to intervene on the interpretation of s. 10(1) of the ESA, which is a question of law. This provision has broad application and its interpretation may have profound implications for species at risk in Ontario, as well as the large number of people whose behaviour is subject to the statute. I agree with the proposed interveners that this court has recognized this issue is of public importance and transcends the dispute between the immediate parties by granting leave to appeal. Moreover, this will also be this court’s first opportunity to consider what “damage” means in s. 10(1) of the ESA, making informed contributions on the subject even more valuable.

Useful Contribution

[13] I now turn to the question of whether or not the proposed interveners will make a useful contribution without causing injustice to the immediate parties.

[14] The proposed interveners are established environmental organizations with a broad membership base who have taken a particular interest in the piping plovers’ habitat on Suable Beach. If they are granted intervener status on the appeal, they will make the following two arguments:

1. The de minimis principle, both as a defence and as an aid to statutory interpretation, must be construed narrowly in the context of environmental protection legislation; and

2. The statutory interpretation advanced by the appellant runs counter to the precautionary principle, an environmental approach present in international law and embraced in the ESA.

[15] I do not quarrel with the appellant’s position that the Crown is more than capable of fully presenting and arguing in favour of the position put forward by the proposed interveners. That said, the question is whether the proposed interveners bring a unique perspective that is independent of both of the parties. In my view, they do. As stated, the issue on appeal concerns a far-reaching question of statutory interpretation. The proposed interveners can offer the court a perspective of members of the community who have insight into issues that impact at-risk species in the local jurisdiction and beyond. In other words, this case has clear ramifications beyond these two parties and the immediate geography, and the proposed interveners’ expertise enables them to offer a useful contribution.

[16] I do not view the proposal to make submissions on the de minimis principle and the precautionary principle as an unwarranted expansion in the interpretation of s. 10(1). These issues are squarely before the court on the appeal because this court will likely hear diametrically opposed views on whether the word “damage” in s. 10(1) of the ESA should be read broadly or narrowly. The de minimis principle as an aid to statutory interpretation may not have been raised by the appellant at trial but even new legal arguments not raised in the court below can be considered during the appeal to support the lower court’s interpretation of the applicable legislative provision: Canadian Federation of Students v. Ontario (Colleges and Universities), 2020 ONCA 842, 476 C.R.R. (2d) 258, at paras. 17-19.

[17] Nor do I see any prejudice flowing from the proposed interveners’ proposal to draw on international law and comparative environmental protection legislation to support its argument that the precautionary principle should be applied when interpreting the ESA. International law can be an interpretative tool for statutory interpretation: see 114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Town), 2001 SCC 40, [2001] 2 S.C.R. 241, at paras. 30-32.

[18] The appellant also argues that the proposed interveners lack the impartiality to be granted intervener status, because in April of 2018 they sought an injunction to prevent the appellant from mechanically raking the beach out of concern for the plovers’ habitat. That injunction was eventually withdrawn because the Crown issued a stop order under s. 27 of the ESA. The appellant argues that the proposed interveners will not be “neutral” friends of the court and have a close relationship with the Crown. The prejudice flows from the fact that the appellant now faces two respondents in this appeal.

[19] I am not persuaded by this argument. As stated, this is not a case where the appellant is an individual with their liberty as at stake. This court has recognized that interveners “need not be ‘impartial’, ‘objective’ or ‘disinterested’ in the outcome of the case” and the “fact that the position of a proposed intervenor is generally aligned with the position of one of the parties is not a bar to intervention if the intervenor can make a useful contribution to the analysis to of the issues before the court”: Oakwell Engineering Limited v. Enernorth Industries Inc., at para. 9; see also Childs v. Desormeaux (2003), 67 O.R. (3d) 385 (C.A.), at paras. 13-15.

[20] The issues raised by the appellant on appeal are serious questions that relate to the interpretation of the ESA. Any decision rendered by this court will impact not only the parties before the court but also the broader public. As Miller J.A. noted in granting leave, there are many persons who will be affected by the decision. I do not view the fact that the proposed interveners are aligned with the Crown in this case as a factor that should favour dismissing the motion.

[21] In light of the public nature of the case, the far-reaching impact of the issue of the meaning of “damage” in s. 10(1) of the ESA, and the expertise of the proposed interveners, I have concluded that the proposed interveners will make a distinct and useful contribution that is different from Ontario on the proper interpretation of s. 10(1) of the ESA.

[22] However, I am not persuaded by the proposed interveners suggestion that they require 20 pages of written submissions and 20 minutes of oral argument to make their arguments fully and effectively. In the circumstances of the size of this appeal (an hour for the appellant and an 45 minutes for the respondent) and the limited role of an intervener, permitting the proposed interveners to file ten pages of written submissions and allowing them ten minutes of oral submissions is appropriate.

Conclusion

[23] The proposed interveners are granted leave to intervene on the basis of the submissions set out in their motion materials. The terms of the intervention are set out below.

a. Environmental Defence and Ontario Nature will take the record as it is and will not supplement the record by way of its factum or otherwise;

b. Environmental Defence and Ontario Nature will file a single factum not more than ten pages in length, no later than November 30, 2021;

c. Environmental Defence and Ontario Nature will make reasonable efforts to avoid duplicating the submissions of the parties;

d. Environmental Defence and Ontario Nature will not be entitled to, nor subject to, any costs of the appeal;

e. The appellant may file a factum responding to the interveners’ arguments not more than ten pages in length, no later than January 14, 2022; and

f. Environmental Defence and Ontario Nature will be granted ten minutes total to make oral argument at the hearing of the appeal. The appellant will be granted ten minutes to make oral argument to respond to any issues raised by the proposed interveners.

[24] There shall be no costs for this motion.

“S. Coroza J.A.”

[1] The respondent is aligned with the proposed interveners and consents to the motion.