COURT FILE NO.: CV-20-20 DATE: 2020-02-29 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

JOHN LOVELL, WAYNE WILLIAM KURIAN, SUSAN MAUREEN KURIAN, LOGAN WALTER KRUGER, KATHLEEN S. KURGER, JOANNE ELLEN DUNFORD, ANN LOVELL, ANNE 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

COUNSEL: Ms. C. Siran, for the Applicants Ms. J. Parker, for the Respondent Her Majesty the Queen Mr. K. Williams, for the Respondents Evan Michaud and Sara Michaud

HEARD: April 17, 2020 in Kenora, Ontario

Justice J. Fregeau

Introduction

[1] The applicants have applied for judicial review of the February 21, 2020 Decision of the Ontario Ministry of Natural Resources and Forestry (the “MNRF”) to issue Work Permit No. KN2018-0486-AP001 (the “work permit”) to the respondents Evan and Sara Michaud (the “Michauds”).

[2] The work permit authorized the Michauds to build, between February 20, 2020 and March 31, 2020 and in accordance with their Application for Work Permit, dated November 2, 2018, a dock, walkway and parking area at their property located on Kendall Inlet, Clearwater Bay, Lake of the Woods.

[3] The applicants issued this application for judicial review in the Superior Court of Justice pursuant to s. 6(2) of the Judicial Review Procedure Act, R.S.O. 1990, Chapter J.1, (the “JRPA”) which provides as follows:

(2) An application for judicial review may be made to the Superior Court of Justice with leave of a judge thereof, which may be granted at the hearing of the application, where it is made to appear to the judge that the case is one of urgency and that the delay required for an application to the Divisional Court is likely to involve a failure of justice.

[4] On this motion, the applicants seek the following relief:

e. An interim/interlocutory Order that the Permit and the authority granted thereby be stayed and that the Michauds and anyone acting for them be enjoined and restrained from proceeding with any further development work authorized by the Permit, related work and from using the development work in any way, pending the hearing and final determination of this proceeding and any appeals therefrom.

[5] Section 4 of the JRPA provides that “on an application for judicial review, the court may make such interim order as it considers proper pending the final determination of the application.”

[6] Prior to the hearing of this motion seeking interim relief, all parties to the application agreed that leave should be granted for this application to be made, in the first instance, to the Superior Court of Justice on the grounds of urgency, that the applicant’s motion for interim relief be heard and decided by the Superior Court of Justice and that the application then be transferred to the Divisional Court for a hearing of the application for judicial review.

[7] Ontario has provided the parties and the Court with the Decision Documents pertaining to the issuance of the work permit but has not otherwise participated in this motion.

Background

[8] On September 14, 2018, the Michauds purchased undeveloped land on Kendall Inlet, Clearwater Bay, Lake of the Woods, legally described as follows:

PIN 42150-2557, PCL 13691, MINING CLAIM K5484, UNSURVEYED TERRITORY BEING LAND AND LAND COVERED WITH THE WATER OF PT OF KENDALL’S INLET, SITUATE ON CLEARWATER BAY OF LAKE OF THE WOODS … DISTRICT OF KENORA.

[9] As is evident from the legal description, the Michauds purchased the remnants of Mining Claim K5484, which included land above the ordinary high-water mark of Kendall Inlet and land under the waters of Kendall Inlet. The Michauds also own an island and camp approximately 7 miles from their Kendall Inlet property.

[10] Eight of the ten identified applicants own cottages, docks and boathouses directly adjacent to and in some cases resting upon the Michauds’ Kendall Inlet property.

[11] The Michauds’ Kendall Inlet property falls within the Clearwater Bay Restricted Area Order (“RAO”), a designation made by MNRF under s. 13(1) of the Public Lands Act, R.S.O. 1990, c. P.43. (the “PLA”). Pursuant to s. 13(2) of the PLA, no work is to be performed on property within a RAO except under the authority of a permit issued under the PLA.

[12] The Michauds’ Kendall Inlet property is the site of the former Kenricia Gold Mine. Surface and underground drilling operations were conducted on this site between 1936 and 1940. Included in the operations was a 100-ton mill which processed gold and silver, milling 22,344 tonnes of ore between 1939 and 1940.

[13] On November 2, 2018, the Michauds submitted an Application for Work Permit to the MNRF seeking permission for the construction of a dock, parking area and connecting walkway on their Kendall Inlet property.

[14] The proposed walkway connecting a large parking area with the dock was to be a combination gravel/decked walkway of approximately 370 feet. The dock was to be built at a 90-degree angle to the walkway, forming a “T” structure. The docking area was to be approximately 131 feet in width with six docking slips able to accommodate up to eight boats at one time.

[15] The Michauds submitted amended work permit applications in early 2020, seeking approval to alter/angle the decked portion of the walkway and to build a 16 ft. x 16 ft. shed on a 20 ft. x 20 ft. platform adjacent to the decked portion of the walkway. The dock, walkway and platform for the shed were to be constructed on a metal foundation supported by steel “screw piles” drilled into bedrock.

[16] The Michauds’ application has been strongly opposed by the applicants from the date that it came to their attention.

[17] In late 2018, the MNRF circulated the Michauds’ work permit application to the Ministry of Energy, Northern Development and Mines (the “ENDM”) and to the Ministry of the Environment, Conservation and Parks (the “MECP”) for review and comment. There is no evidence that MECP provided any negative comments to MNRF in relation to the work permit application.

[18] The ENDM responded in a January 3, 2019, letter to the MNRF recommending that a geotechnical investigation be conducted in any areas which may be potentially disturbed by any proposed development on the property, including but not limited to the work outlined in the work permit application for the dock, walkway and parking area.

[19] The ENDM further recommended that the results of the geotechnical investigation be presented in a report which clearly identified the risks of the development and suggested mitigation strategies.

[20] ENDM issued a Request for Proposals and ultimately retained TBT Engineering Consulting Group (“TBT”) to conduct geochemical and environmental assessments at the Michauds’ Kendall Inlet property including:

1. A characterization of the waste rock and tailings;
2. A sediment quality assessment; and
3. Surface water quality characterizations.

[21] TBT issued its report, entitled Geochemical and Enviromental Characterization of the Former Kenricia Tailings and Waste Rock Areas (the “TBT Report”), on December 19, 2019. By letter from TBT to ENDM dated December 20, 2019, TBT provided to ENDM recommendations associated with the December 19, 2019 TBT Report.

[22] Included in the TBT Report is a map depicting the proposed parking area, walkway and dock in relation to the estimated area of the tailings and the “Area of Concern” as set out by ENDM in its Request for Proposals. This map also depicts the locations from which surface water, sediment and soil were sampled and analyzed, within and outside the tailings area and Area of Concern.

[23] TBT’s December 19, 2019 Report stated that the area with suspected tailings “appears physically stable and vegetated and is laterally separated from the proposed new parking lot and dock by a minimum of 45 metres.”

[24] TBT’s December 20, 2019 recommendations were expressly intended to “provide the recommendations associated with the waste rock and tailings characterization, sediment quality assessment, and surface water quality characterization undertaken at the former Kenricia Mine located on the west shore of Kendall Inlet…” TBT’s recommendations were as follows:

• Multiple additional samples for ABA and metals analyses from both the suspect tailings materials and the sediment would benefit this characterization study. Sampling locations should include multiple background locations. Further evaluation should not rely solely on colour of material as a suitable decision factor for delineating suspect tailings;
• Based on the identification of metals contamination within the on-shore suspect tailings and sediment of the inlet, disturbance should be avoided to the extent possible;
• Vegetative cover on the suspect tailings area should be preserved to help minimize exposure;
• Existing wetlands at the west end of the Kendal Inlet should be preserved to the maximum degree possible to minimize exposure of the suspect materials to the lake;
• Identify areas with suspect metals contamination both onshore and offshore with signage; and
• Consider completion of both human health and ecological risk assessments to determine any future potential mitigation requirements.

[25] The reference to “metals contamination” in the second recommendation above is a reference to “exceedances” found in three tailings samples, taken from the identified tailings area, and in a single sediment sample taken from underneath where the dock is now located, when compared to soil standards set out in Ontario Regulation 153/04, Enviromental Protection Act. Exceedances were found for arsenic, chronium, lead, molybdenum, silver, cadmium, uranium and zinc.

[26] On February 18, 2020, John Lovell, one of the applicants, contacted ENDM directly with questions about the TBT Report and Recommendations. Marc Stewart, Senior Manager, Rehabilitation Section, ENDM, responded to Mr. Lovell on February 19, 2020. His email was copied to Charlotte Caron, the MNRF “File Lead” in regard to the Michaud’s work permit application.

[27] In his February 19, 2020 email, Mr. Stewart advised Mr. Lovell that ENDM’s “comments and observations regarding the area associated with the [Michauds’] work permit application have been submitted to the MNRF and the report has been released to the parties that have expressed an interest to [ENDM].” Apparently ENDM did not provide a formal, written report to MNRF subsequent to ENDM’s receipt and review of TBT’s Report and Recommendations.

[28] Mr. Stewart further advised Mr. Lovell that ENDM had considered TBT’s Recommendations “in the context of the findings of the study and made the following recommendations to MNRF to assist them in considering the application for a Work Permit”:

a. The tailings were successfully characterized … and the tailings area is appropriately identified on Map 1 (the TBT map of sampling locations). b. The tailings appear to be both physically and geochemically stable. c. Metal concentrations in sediments outside the extent of the tailings area appear to be naturally elevated. [Emphasis added] d. Measures should be taken to avoid disturbing the sediments in the bay. e. Developments within the footprint of the tailings area which could disturb vegetation should be avoided.

[29] As noted above, the December 19, 2020 TBT Report concluded that “the area with the suspected tailings appears physically stable and vegetated and is laterally separated from the proposed new parking lot and dock by a minimum of 45 metres.”

[30] Mr. Stewart concluded his email to Mr. Lovell by stating that ENDM’s role in the review and comments to MNRF was complete and that no further actions were planned for this site.

[31] An “MNRF – RSFD Class Enviromental Assessment Decision Making Documentation” form was completed by the MNRF in regard to the Michauds’ work permit application and included within the Decision Documents filed by Ontario on this application. Germane to this motion, this document includes the following comments:

• Meets RAO guidelines, but neighbours are opposing development.
• ENDM report has outlined location of tailings. Construction is outside of tailings.
• ENDM commissioned a study. Essentially no concerns as construction to occur outside area of tailings.

[32] An “Application Summary Report”, dated February 21, 2020 and signed by Abby Anderson, Operations Supervisor, MNRF, was also included in the Decision Documents provided by Ontario. This report includes Ms. Caron’s “Detailed Review” of the Michauds’ work permit application and her summary and assessment of the issues raised in opposition to it.

[33] In the Application Summary Report, Ms. Caron noted that the application had been “controversial and lengthy”, with neighbours [the applicants] forming a coalition to oppose the project. Ms. Caron’s comments on the issues raised in opposition were as follows:

1. The property is an old mining claim and in the vicinity of the old Kenricia Gold Mine. ENDM and the Ministry of the Enviroment, Conservation and Parks were circulated on this file to provide comments. ENDM completed a field study on the area and provided this information to MNRF, the property owners and the concerned opposition. Based on the information received there is no valid environmental reason from the old mining site to deny this permit.
2. The proposed docking is 131 ft or 22.5% of the shoreline, within the 25% of the guideline. The location is also greater than the required distance from the lot line.
3. There is a concern that the development is commercial because the [Michauds] have rented their cottage on Ward Island [Lake of the Woods]. There are numerous cottages in and outside the Clearwater Bay Restricted Area that are rented on a short-term basis. None of them are deemed to be commercial and neither is this. The [Michauds] have stated this will not be a commercial marina and they will not be charging a fee for the use of docking slips on this property.

[34] Ms. Caron concluded by recommending approval of the Michauds’ application. She further recommended that “clean cobble be piled around the drilled posts to reduce the movement of the sediment from drilling, addressing item “d” of ENDM’s Feb. 19, 2020 email.”

[35] Jake Daniher, MNRF Lands and Waters technician also provided his “Detailed Review” for the Application Summary Report. Mr. Daniher also concluded that the “application and proposed development meets conditions of the Clearwater Bay Restricted Area Order Guidelines.”

[36] The Recommendation Summary in the MNRF Application Report recommended approval of the Michauds’ work permit application. The rationale provided for this approval included the following:

This application is consistent with the Clearwater Bay RAO Guidelines. The numerous concerns from the public have been reviewed and addressed where necessary … ENDM report on file (no concerns with proposed construction site, or stability of tailings).

[37] Ms. Anderson, in her capacity as Operations Supervisor, MNRF, signed and endorsed the Application Summary Report on February 21, 2020 and Work Permit No. KN2018-0486-AP001 was issued to the Michauds that day. The conditions attached to the permit were as follows:

1. 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.
2. 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.
3. Cribs will be designed and fill material selected to prevent the loss of crib fill material into the water.
4. No in water work April 1 – June 20.
5. 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.
6. Clean cobble to be placed around base of pipes to reduce drilled sediment from dispersing.

[38] Two further Work Permits were issued to the Michauds on March 9 and 11, 2020. These permits authorized, respectively, the decked portion of the dock/walkway to be angled at 163 degrees and the construction of a 16 ft. x 16 ft. shed on a 20 ft. x 20 ft. platform adjacent to the dock/walkway.

[39] The required underwater drilling, utilizing screw piles, and the construction of the dock foundation was completed by March 19, 2020. Cobble was placed around the base of the screw piles as required by the conditions attached to the Michauds’ work permit. The frame for the dock and the decking were completed by March 26, 2020. The walkway connecting the dock to the shore, including decking, was completed by March 29, 2020. The screw piles and structural foundation for the platform for the shed were completed prior to the hearing of this motion. The parking area and the shed have not been completed.

[40] It is not in issue that the Michauds have complied with the terms and conditions of all issued work permits.

The Positions of the Parties

The Applicants

[41] The applicants acknowledge that the parking area proposed in the Michauds’ work permit application is well removed from both the tailings area and the larger “Area of Concern” identified by ENDM’s Request for Proposals. Given this fact, the applicants are not asking that the Michauds be restrained from completing the parking area.

[42] The applicants seek an interim order restraining the Michauds from using the completed dock and from constructing the 16 ft. x 16 ft. shed on the completed platform adjacent to the walkway leading to the dock.

[43] In general terms, the applicants submit that the entire development authorized by the MNRF work permit issued to the Michauds is inconsistent with the terms of the Clearwater Bay RAO.

[44] The applicants contend that the disproportionate size of the dock and its anticipated use as a “staging area” for tenants renting the Michauds’ Ward Island camp lead to the conclusion that the project will be for commercial use within the definition set out in the Clearwater Bay RAO Guidelines.

[45] The applicants further submit that the size of the dock in relation to the size of the small bay where it is located, together with the use of the dock and bay by multiple watercraft, will dominate and overwhelm the bay, significantly and irreparably impacting their use and enjoyment of their property.

[46] More relevant to the issue on this motion, the applicants submit that the use of the dock by the Michauds and/or their family may cause irreparable harm to the immediate environment and be unsafe to other residents on Kendall Inlet.

[47] The applicants contend that boating in and around the Michaud dock will, or has the potential to, disturb the sediment in this shallow bay. The applicants submit that the TBT report indicated exceedances of Enviromental Protection Act standards in metals analyses conducted on soil analyzed within the tailings area and in a sediment sample taken from where the dock is now located.

[48] In addressing the test to be applied on an application for an interlocutory injunction, as set out in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 SCR 311, the applicants submit that:

1. Their application is not frivolous or vexatious and that there is a serious issue to be tried. The TBT Report “flags” potentially serious environmental issues not fully considered or addressed by the MNRF prior to the issuance of the work permit, according to the applicants;
2. In the event the use of the dock does in fact cause serious environmental damage, such damage could not be adequately rectified by an award of damages; and
3. An assessment of the balance of inconvenience as between the applicants and the Michauds favours restraining the Michauds from using their newly constructed dock to access a seasonal residence, thereby precluding potential environmental damage in the immediate area of the Michaud’s dock.

The Michauds

[49] Given that the construction of the dock, walkway and platform for the shed are complete and that the applicants are not opposed to the completion of the parking area, the Michauds submit that the vast majority of the relief sought by the applicants on this motion cannot be ordered and is therefore moot.

[50] The Michauds submit that the only material issue before the court is whether the Michauds should be restrained from the use of the newly constructed dock and from the construction of the shed on the newly constructed platform adjacent to the dock/walkway.

[51] In general terms, the Michauds suggest that the applicants’ submissions as to this project being inconsistent with the Clearwater Bay RAO Guidelines are completely without merit.

[52] The Michauds submit that the applicants’ complaints as to the size and scope of the dock and parking area and their speculation that its intended use is commercial in nature were duly considered by the MNRF. The Michauds contend that it was clearly determined by the MNRF that the work contemplated by the work permit was not commercial in nature and that it met all applicable RAO guidelines. The Michauds submit that the applicants have not adduced any credible evidence of intended commercial use of the dock on this motion.

[53] The Michauds submit that the construction of a 16 ft. x 16 ft. shed on the already constructed platform could not possibly have a negative environmental impact and that this is a “non-issue”.

[54] The Michauds submit that the only remaining issue on this motion is whether the Michauds should be restrained from using their dock. The Michauds concur that the RJR MacDonald test applies to this issue.

[55] As to the application of the RJR MacDonald test to the usage of their dock, the Michauds submit as follows:

1. The application for judicial review of the MNRF’s Decision to issue the work permit to the Michauds and the suggestion that the Michauds be restrained from the interim use of their dock because such use is potentially unsafe to the environment and to the applicants is frivolous and vexatious. The TBT Report and Recommendations did not identify any potential environmental concern arising from the use of the dock; the MNRF, in conjunction with the ENDM, expressly concluded that there was no valid environmental reason to prohibit the construction of the dock. It logically follows that there is no environmental reason to prohibit the use of the dock, according to the Michauds;
2. If the relief sought is not found to be frivolous and vexatious, there is no potential for irreparable harm being suffered by the applicants. In the event the Michauds’ use of the dock results in environmental harm, compensation in damages is an available and appropriate remedy; and,
3. An assessment of the balance of inconvenience as between the applicants and the Michauds being denied the use of their dock on an interim basis favours dismissal of the motion. The Michauds query why the applicants would seek to deny them the use of their dock on the basis that boating activity in this small bay could potentially cause environmental harm while all applicants would continue to enjoy the use of their docks and the waters of Kendall Inlet.

Discussion

[56] When this application is heard by the Divisional Court, the deferential standard of reasonableness will be applied to the administrative decision of the MNRF to issue the work permit to the Michauds. The standard of reasonableness flows not from the specialized expertise of the MNRF in its application of the PLA and the Clearwater Bay RAO, but from the fact of delegation of this decision making authority from the legislature to the MNRF.

[57] The judicial review of the decision to issue the work permit will consider all decision documents and any reasons given for the decision to determine the rationale for issuing the work permit in light of all the facts. Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, paras. 16, 30, 137.

[58] Judicial review on a reasonableness standard is meant to ensure that courts intervene in administrative decisions only where it is truly necessary to do so in order to safeguard the legality, rationality and fairness of the administrative process – “it finds its starting point in the principle of judicial restraint and demonstrates a respect for the distinct role of administrative decision makers … it is not a “rubber-stamping” process or a means of sheltering administrative decision makers from accountability. It remains a robust form of review.” Vavilov, para. 13.

[59] On this motion for a stay and/or interlocutory injunction, I am required to apply the three-part test established in RJR MacDonald. On a practical basis, given the stage of construction of the work authorized by the work permit, the test is to be applied to the applicants’ request that the Michauds be restrained from using their newly constructed dock and from building a 16 ft. x 16 ft. shed on a newly constructed platform.

[60] At the first stage of the test, the applicants are required to persuade the court that the issues are not frivolous or vexatious – in other words that there is a serious issue to be tried. The threshold is a low one. A court is to make a preliminary and not extensive assessment of the merits of the case. RJR MacDonald, pg. 337.

[61] If I am persuaded that the application is neither frivolous or vexatious, I must then proceed to consider the second and third stages of the test, even if of the opinion that the applicant is unlikely to succeed at trial.

[62] At the second stage, the applicants must convince the court that they will suffer irreparable harm if the relief is not granted. “Irreparable” refers to the nature of the harm rather than its magnitude. RJR MacDonald, pg. 348.

[63] The third stage requires a determination of which of the two parties will suffer the greater harm from the granting or refusal of an injunction pending a decision on the merits. The factors to be considered in assessing the balance of inconvenience depend on the particular circumstances of each individual case. RJR MacDonald, pg. 342.

Stage 1 – Is there a serious issue to be tried?

[64] The shed is to be built on a completed platform, built adjacent to the dock/walkway, supported by screw piles drilled to bedrock in accordance with the work permit. The applicants have not provided any evidence of any possible environmental impact or damage which could result from further construction on and above the platform.

[65] The applicants’ have failed to establish that there is a serious issue to be tried in relation to the construction of the shed. This aspect of the applicants’ motion is dismissed.

[66] Given that the work authorized by the work permit has been completed, but for the shed and parking area, I will apply the first stage of the RJR MacDonald test to the request for judicial review of the MNRF decision authorizing the construction set out in the work permit, with the second and third stages of the test to be considered in the context of the anticipated use of the dock.

[67] The Michauds submitted their Application for Work Permit to the MNRF on November 2, 2018. On November 9, 2018, Ms. Caron, MNRF Lands and Water Technical Specialist, initiated an environmental assessment of the project contemplated by the Michauds’ application, circulating the application internally within the MNRF and externally to ENDM and MECP.

[68] Internally, the MNRF determined that the project was not commercial and that it met the RAO guidelines. Externally, ENDM recommended that a geochemical and environmental assessment be conducted. ENDM retained TBT to conduct the investigation. TBT did so and provided their report and recommendations to ENDM in December of 2019.

[69] ENDM reviewed the TBT report and recommendations and made specific mitigative recommendations to MNRF. Neither TBT nor ENDM suggested the work permit application be denied for environmental reasons associated with the former gold mine.

[70] Ms. Caron considered the recommendations provided by ENDM and concluded, in an Application Report Summary, that there was “no valid environmental reason from the old mining site to deny this permit.” Ms. Caron reiterated that the Michaud application was consistent with the RAO guidelines, expressly noted that “numerous concerns from the public have been reviewed and addressed where necessary” and that the “ENDM report [was] on file (no concerns with proposed construction site, or stability of tailings).”

[71] Ms. Caron recommended approval of the project. Ms. Anderson, MNRF District Operations Supervisor endorsed Ms. Caron’s recommendation and approved the issuance of the work permit on February 21, 2020.

[72] In my opinion, there is no serious issue to be tried on this judicial review application.

[73] ENDM retained TBT to investigate and report on any potential environmental risk that could result from the construction of the dock, walkway and parking area in the vicinity of this former gold mine. The degree and level of risk, or the lack thereof, obviously informed TBT’s recommendations to ENDM.

[74] ENDM considered the TBT report and recommendations and, in turn, made specific recommendations to the MNRF, including suggesting appropriate mitigative measures. MNRF then considered ENDM’s recommendations in light of the significant opposition to the project by the applicants and made a dispassionate, objective decision to issue the work permit, subject to conditions incorporating ENDM’s recommendations.

[75] My preliminary review of the merits of the judicial review application of the MNRF decision to issue the work permit to the Michauds leads me to the conclude that it is both frivolous and vexatious and that there is not a serious issue to be tried.

[76] In the event that I am incorrect in my conclusion that this application does not present a serious issue to be tried or in the event that I have delved too deeply into the merits of the application in arriving at this conclusion, I will proceed to address stages 2 and 3 of the RJR MacDonald test.

Stage 2 – Would the applicants suffer irreparable harm if the motion is denied?

[77] At stage 2, the only issue to be decided is whether a refusal to grant the relief sought could so adversely affect the applicants’ own interests that the harm could not be remedied if the eventual decision on the merits does not accord with the result of the interlocutory application. RJR MacDonald, pg 341.

[78] I note that the applicants have not particularized the anticipated nature of the harm they allege will occur from the Michauds’ interim usage of their dock, other than to suggest in general terms that it would be “unsafe to the environment and the residents of this small bay.” As noted by the Michauds, there is no evidence on this motion to support the submission that the use of this dock is of any environmental concern.

[79] Numerous other camps and docks have been built in this small bay. Other residents of the bay, and quite likely the general public, will continue to operate their boats and other watercraft in this bay this season as they have in the past. The inability of the applicants to differentiate between the Michauds’ use of their dock and other residents’ use of the bay persuades me that the Michauds’ interim use of their dock will not cause irreparable harm to the applicants.

[80] In any event, should the interim use of the Michauds’ dock cause some type of environmental harm or damage to the applicants, such harm could be compensated by monetary damages.

Stage 3 – Assessing the “balance of inconvenience”

[81] At this stage, I am required to determine, as between the applicants and the Michauds, who will suffer the greater harm from the granting or refusal of an interlocutory injunction, pending a decision on the merits. RJR MacDonald, pg. 342.

[82] The granting of the relief sought on this motion would prohibit the Michauds from using their newly constructed dock due to an alleged concern that such use may cause some form of nebulous environmental damage. However, all other residents of this bay, the applicants included, would continue to enjoy the use of their docks in close proximity to the Michauds’ dock, despite their apparent concern that environmental damage would be caused by the Michauds’ use of their dock.

[83] In my opinion, the balance of inconvenience favours the denial of the relief sought on this motion.

Conclusion

[84] The applicants’ motion for an interim order restraining the Michauds from using the dock which was constructed pursuant to the authority granted in the work permit issued by the MNRF is dismissed.

[85] The Michauds have been successful on this motion. If the parties cannot agree on the costs of the motion they shall make written submissions as to costs, not to exceed five pages, exclusive of their respective Bills of Costs. The Michauds’ Costs Submissions shall be filed within 14 days of the release of this decision, the applicants’ within seven days thereafter. If Costs Submissions are not received within this timeframe, costs shall be deemed to have been resolved.

[86] Subsequent to the issue of costs being determined, this application shall be transferred to the Divisional Court.

Justice J. Fregeau Released: April 29, 2020

COURT FILE NO.: CV-20-20 DATE: 2020-04-29 JOHN LOVELL, WAYNE WILLIAM KURIAN, SUSAN MAUREEN KURIAN, LOGAN WALTER KRUGER, KATHLEEN S. KURGER, JOANNE ELLEN DUNFORD, ANN LOVELL, ANNE 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 Released: April 29, 2020