Court File and Parties

COURT FILE NO.: CV-23-58 DATE: 2024/04/18

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

THE CORPORATION OF THE MUNICIPALITY OF MARMORA AND LAKE Applicant – and – HIS MAJESTY THE KING IN RIGHT OF ONTARIO Respondent

COUNSEL: M. Kathleen Kinch, Counsel for the Applicant Michael J. Sims and Jacob Eidinger, Counsel for the Respondent

HEARD: March 11, 2024 via teleconference at Belleville, Ontario

REASONS FOR JUDGMENT

A. Doyle J.

[1] The respondent, His Majesty the King in Right of Ontario, placed the mottled Duskywing butterfly (“the butterfly”) on the list of endangered species under the regulation of the Endangered Species Act, 2007, S.O. 2007, c. 6 (“ESA”), in 2014.

[2] There are approximately 630 butterflies in Riverside Pines in the town of Marmora, located in the jurisdiction of the applicant, the Corporation of the Municipality of Marmora and Lake. This butterfly is not migratory and hence its entire life cycle takes place on or near the prairie redroot and New Jersey tea plants (“host plants”), which are clustered in the vicinity of approximately eight kilometres of highway in Riverside Pines.

[3] This is the second largest population in Ontario and is the source population for a captive rearing program designed to reintroduce the butterflies to other habitats.

[4] From mid-May to early July, the butterflies lay eggs on the host plants. In June/July, its eggs hatch and the larvae feed on the host plants. The larvae develop into leaf nests and enter into a diapause state, which is a period of suspended development. In the fall, the leaf nests fall to the ground when the plants shed their leaves and, in the spring, they pupate into adult butterflies.

[5] The host plants do not tolerate shade and therefore routinely survive along the maintained roadsides, where taller vegetation is cut back to maintain sightlines. The shrubs grow between knee-height and waist-height, and blossom white flowers in late spring. The host plants grow in dry, open habitats with poor soils.

[6] On October 5, 2022, the applicant was charged with two contraventions under the ESA. In resurfacing some of the roads in Riverside Pines, a construction crew cleared the vegetation to the bare soil and maintenance vehicles were parked on top of the host plants. The road crew was removing a high shoulder of three to six feet from the edge of the payment, which was an accumulation of build-up of winter sand. It was alleged that in doing so, it killed, harmed, or harassed the butterflies and the host plants. It had not applied for an exemption permit under the ESA before beginning the project.

[7] The applicant states that it was performing work within six feet of the travelled portion of the River Heights Road and the road maintenance was in the course of preparing for a capital project of road resurfacing. The applicant is obligated under the Municipal Act, 2001, S.O. 2001, c. 25, to maintain the highways in its jurisdiction in accordance with the standards set out in the regulations. However, road maintenance that disturbs the larval host plants can threaten the butterfly.

[8] The applicant’s prosecution in the Ontario Court of Justice (“OCJ”) has been adjourned, with a defence waiver of delay, pending this application.

[9] The applicant states that it cannot responsibly absorb the liability under the Municipal Act where it compromises reasonable highway maintenance practices due to the ESA. It submits that it is impossible to comply with the road safety provisions of the Municipal Act and comply with the ESA at the same time.

[10] It is requesting declarations and advisory opinions outlining its statutory obligations to maintain highways under the Municipal Act and its environmental duties under the ESA. It argues that given the tension between these two obligations, the court must intervene to lay out its responsibilities under both pieces of legislation.

[11] In essence, the municipality, a state actor, is seeking answers to practical questions about two legislative and regulatory regimes that incompatibly controls its conduct. It argues that there is an overlap of two legislative regimes in the context of Riverside Pines, and is seeking a ruling on how it can comply.

[12] The respondent argues that this application is improperly brought as the applicant cannot obtain legal advice for hypothetical or future events, that this is an abuse of process given the prosecution in the OCJ, that there is no legal foundation, and, finally, that the applicant has failed to adduce the necessary evidence.

[13] For the reasons that follow, the application is dismissed.

Background

[14] The applicant has a population of approximately 4,000 (based on 2016 census data).

[15] Highway maintenance is a critical function and transportation services is the largest line item in the applicant’s budget. The total budget for transportation services in 2022 was $2,253,299 for the following functions: snow removal, salt/sand, bridges and culverts, brushing, ditching, line painting, grading, dust control, street sweeping, storm water, connecting link maintenance, sidewalks, mowing, and transit. The roads department is managed by the Manager of Transportation Services and is overseen by the Chief Administrative Officer/Clerk. The applicant is responsible for the maintenance of approximately 215.2 kilometres of highway year-round within the municipality.

[16] The majority of the applicant’s roads system is made up of rural highways that are either in remote areas or have proximity to natural features such as wetlands, wooded areas, and ecological areas with specific features as alvars.

[17] A municipally maintained highway is typically a minimum of 66 feet (approximately 20.12 metres) and may be larger depending on circumstances including legal ownership of the parcel where the highway is located, past expropriations, and other factors.

[18] A highway includes the travelled surface, the shoulders (which is a defined term in Minimum Maintenance Standards for Municipal Highways, O. Reg. 239/02, s. 1(1) (“the MMS regulation”)), and corridors of land on either side of the travelled surface that provide lateral support to the roadway and may accommodate stopped motor vehicles and emergency use. This could include verge-type areas and standing/surface water adjacent to a highway, stands of trees, boulders/rock features, and manmade barriers between the highway and adjacent lands.

[19] Roads contain both paved and non-paved surface shoulders and the latter may have very little, some, or a lot of vegetation. The shoulder for the purpose of road maintenance and road support purposes may be wider or larger than what visually appears to be the shoulder from the perspective of a person passing on the travelled surface in a vehicle.

[20] Riverside Pines is a rural sub-division located approximately two and a half kilometres south of the village of Marmora. The plan of subdivision was given final approval in November 1980. The development agreement provided that all roads in the subdivision vested in the applicant and the roads would be assumed by the applicant and that all road allowances were public highways. This then required the applicant to maintain the roadways in accordance with the Municipal Act.

[21] In 2021, the applicant undertook a major resurfacing project for the main roads and other gravel highways, which required surface grading once or twice per year and dust control in the summer (sporadic application of liquid calcium or daily water application).

[22] The applicant faces two charges: that during, on, or about June 5, 2021 and June 7, 2021, the applicant committed the offences of (1) unlawfully killing, harming, or harassing the mottled Duskywing, and (2) damaging or destroying the habitat of the mottled Duskywing.

[23] Tonia Bennett is the Chief Administrative Officer and Clerk who oversees the administration of the municipality and takes on the legislative duties in terms of preparing by-laws, taking minutes, preparing agendas, and generally keeping abreast of the legislation. Her affidavit, dated May 29, 2023, sets out the following:

• the Manager of Transportation reports to her;
• she is concerned with financial risk, as the applicant has a duty to taxpayers to manage the municipality’s finances properly;
• the applicant is in a situation of impossible dual compliance with two provincial statutes –i.e., the Municipal Act, which requires maintenance of roads, and the ESA, which requires protection of the endangered species and their habitats, given that the butterfly and its habitat are present in the municipally maintained roads in Riverside Pines;
• roughly $0.25 of every municipal dollar is used for transportation services, according to the 2023 budget data; and
• road maintenance is a complex task that involves careful coordination of equipment and employee resources, public funds for dynamic requirements, guarding against future disruptions of the roads system, and meeting the standards set out in the statutes, regulations, and common law.

[24] Jessica Linton was proffered as the respondent’s expert. She has been qualified as an expert on environmental impact statements before the Ontario Land Tribunal and as an expert of butterfly habitat and behaviour before the Environmental Review Board. Having reviewed her CV and her experience, the court qualifies her as an expert in butterfly habitat and behaviour.

[25] Ms. Linton prepared the Recovery Strategy for the Mottled Duskywing (“report”), dated June 25, 2015, for the Ontario Ministry of Natural Resources and Forestry (“MNRF”). This report outlines the process by which the decline of an endangered, threatened, or extirpated species is arrested or reversed.

[26] In this report, Ms. Linton recognized that sites in Marmora were undergoing development that would likely result in the loss of suitable habitat. She states the following:

[Marmora] provides an opportunity to examine methods to avoid direct impacts to the species through transplanting food plants (adhering to strategic timing windows), educating future residents about the species and its habitat requirements, encouraging the planting of food plants and nectar sources, and habitat restoration in appropriate places such as planned open spaces.

[27] With respect to the identification and protection of habitats that may be occupied by the butterfly, the report states the following: It is therefore recommended that all contiguous suitable habitats (i.e. vegetation types containing Ceanothus plant colonies) to a community in which an extant population occurs be considered for inclusion in the habitat regulation along with a 5 m buffer. Narrow gaps (e.g. 20 m) between vegetation types, for example a road right-of-way, should not be considered a barrier.

[28] Some disturbance is required to maintain the early successional habitat and fires may be a process in achieving this. Also, mowing along the hydro lines or roadsides reduces woody plant encroachment and allows host plants to thrive.

[29] In addition, Ms. Linton states the following: It is recommended that areas where populations of Mottled Duskywing occur be prescribed as habitat within a habitat regulation under the ESA. The boundaries of this area should be identified as a buffered Ecological Land Classification (ELC) vegetation type which contain suitable habitat (i.e. Ceanothus plant colonies) and where Mottled Duskywing occurs. It is recommended that potential recovery habitat for the species also be prescribed within the habitat regulation. These areas are identified as buffered ELC vegetation community types containing suitable habitat, which are contiguous to habitat supporting extant populations.

[30] The complete mapping of potential habitat in Riverside Pines is still unavailable.

[31] The municipality has worked with Ms. Linton to educate the residents and has installed signs at the entrances to Riverside Pines to alert residents and other visitors to the butterfly and its habitat.

[32] In the Riverside Pines area, the host plants where the butterflies live are found growing in the following locations:

• on the edge of the travelled surface of the highway, integrated with or very close to the actual travelled surface;
• within ten metres of the surface of the roadway.
• on gravelled areas of the highway;
• alongside the travelled surface where routine maintenance occurs throughout the year;
• within several meters of the travelled surface in locations where municipal equipment need to stop or that could be the site of sporadic, emergency, or major road maintenance;
• among other vegetation, including poison ivy, or vegetative growth that would obstruct sightlines or result in plant encroachment of the woodland toward the travelled surface;
• among large boulders; and
• up to the edge of and overlapping with wooded areas that encroach on the highway.

Statutory Framework

Municipal Act

[33] A municipality is mandated to maintain highways (which include its travelled surface, shoulder, signs, drainage, and other features) under the Municipal Act and the MMS regulation. The regulation applies to highways classed 1 to 5, and classes are defined by the speed limit and average daily traffic. It does not apply to class 6 highways, which are subject to the general maintenance obligations under s. 44(1) of the Municipal Act. The municipality has class 3-6 roadways in its jurisdiction.

[34] The classes determine requirements of road maintenance. For example, under s. 4 of the MMS regulation, within 24 hours after snow accumulation has ended, the municipality must clear the snow to a specified depth of 10 centimetres, and provide a total cleared road width of 5 metres (16.4 feet) for a class 5 road with two lanes. Also, there are time periods for clearing ice formation, repairing potholes of a certain size on paved and non-paved surfaces, and repairing shoulder drop-offs and cracks.

[35] Section 44(1) of the Municipal Act provides that a municipality that has jurisdiction over a highway “shall keep it in a state of repair that is reasonable in the circumstances, including the character and location of the highway or bridge”.

[36] Failure to comply with s. 44(1) can result in liability pursuant to s. 44(2), which states that “[a] municipality that defaults in complying with subsection (1) is, subject to the Negligence Act, liable for all damages any person sustains because of the default”. The exceptions to this liability are found in s. 44(3), which states that a municipality is not liable for failing to keep a highway in a reasonable state of repair if any of the following apply:

(a) it did not know and could not reasonably have been expected to have known about the state of repair of the highway or bridge; (b) it took reasonable steps to prevent the default from arising; or (c) at the time the cause of action arose, minimum standards established under subsection (4) applied to the highway or bridge and to the alleged default and those standards have been met. 2001, c. 25, s. 44 (3).

[37] Other sections of the Municipal Act shield municipalities from highway maintenance liability, but there is no provision that states that a municipality is not liable for failing to keep a highway in a reasonable state of repair due to compliance with the ESA.

[38] A municipality is also required to maintain the shoulders of the highway, and under the MMS regulation, a shoulder is defined as “the portion of a highway that provides lateral support to the roadway and that may accommodate stopped motor vehicles and emergency use”: s. 1(1). A municipality is also required to repair potholes on the surface of a shoulder within a set time and to repair shoulder drop-offs within a set time.

[39] Under s. 23.1(1) of the Municipal Act, a municipality can “delegate its powers and duties under this or any other Act to a person or body subject to the restrictions set out in this Part.” A municipality cannot avoid its responsibility of maintaining the highways by delegating the responsibility to others, as s. 23.1(2)4 provides that the duty remains the “joint duty of the municipality and the delegate”.

[40] Part III of the Municipal Act, “Specific Municipal Powers”, provides the municipality certain powers, including the ability to impact private rights to deal with highway hazards posed by vegetation and objects. There is no reference to endangered species in the provisions under “Natural Environment”, ss. 135-47.

[41] Therefore, the Municipal Act does not contain provisions that exempt the municipality from its obligations for highway maintenance by virtue of compliance with the ESA.

Endangered Species Act

[42] The preamble of the ESA states that Ontarians “wish to do their part in protecting species that are at risk, with appropriate regard to social, economic and cultural considerations” and “should protect species at risk for future generations.”

[43] Section 1 establishes that the purposes of the ESA are to “identify species at risk based on the best available scientific information, including information obtained from community knowledge and aboriginal traditional knowledge”, “protect species that are at risk and their habitats, and to promote the recovery of species that are at risk”, and “promote stewardship activities to assist in the protection and recovery of species that are at risk.”

[44] The pertinent regulations under the ESA are as follows:

• Habitat, O. Reg. 832/21;
• General, O. Reg. 242/08 (“the general regulation”); and
• Species at Risk in Ontario List, O. Reg. 230/08 (the butterfly is listed in Schedule 2, Endangered Species).

[45] On June 27, 2014, the butterfly was listed as an endangered species in the regulations under the ESA.

[46] The protection afforded to the butterfly is set out ss. 9 and 10 of the ESA:

Prohibition on killing, etc.

9 (1) No person shall, (a) kill, harm, harass, capture or take a living member of a species that is listed on the Species at Risk in Ontario List as an extirpated, endangered or threatened species; (b) possess, transport, collect, buy, sell, lease, trade or offer to buy, sell, lease or trade, (i) a living or dead member of a species that is listed on the Species at Risk in Ontario List as an extirpated, endangered or threatened species, (ii) any part of a living or dead member of a species referred to in subclause (i), (iii) anything derived from a living or dead member of a species referred to in subclause (i); or (c) sell, lease, trade or offer to sell, lease or trade anything that the person represents to be a thing described in subclause (b) (i), (ii) or (iii). 2007, c. 6, s. 9 (1).

Exception, temporary suspension order (1.1) If a species is listed on the Species at Risk in Ontario List as an endangered or threatened species for the first time, the application of the prohibitions in subsection (1) with respect to the species is subject to any order made under section 8.1. 2019, c. 9, Sched. 5, s. 8 (1).

Exception, species regulations (1.2) Subject to section 57, the Minister may, by regulation, limit the application of the prohibitions in subsection (1) with respect to a species that is listed on the Species at Risk in Ontario List as an endangered or threatened species. 2019, c. 9, Sched. 5, s. 8 (1).

Same (1.3) Without limiting the generality of subsection (1.2), a regulation under that subsection may, (a) provide that some of the prohibitions in subsection (1) do not apply with respect to a species or provide that they do not apply in specified circumstances; (b) limit the geographic areas to which all or some of the prohibitions in subsection (1) apply, or the times at which they apply, with respect to a species; (c) limit the application of all or some of the prohibitions in subsection (1) to a specified stage in the development of a species; or (d) provide that a limitation set out in the regulation is subject to specified conditions. 2019, c. 9, Sched. 5, s. 8 (1).

Consideration of government response statement (1.4) Before a regulation is made under subsection (1.2), the Minister shall consider any government response statement that has been published under section 12.1 with respect to any species affected by the regulation. 2019, c. 9, Sched. 5, s. 8 (1).

Possession, etc., of species originating outside Ontario (2) Clause (1) (b) does not apply to a member of a species that originated outside Ontario if it was lawfully killed, captured or taken in the jurisdiction from which it originated. 2007, c. 6, s. 9 (2).

Specified geographic area (3) If the Species at Risk in Ontario List specifies a geographic area that a classification of a species applies to, subsection (1) only applies to that species in that area. 2007, c. 6, s. 9 (3).

Possession and transport by Crown (4) Clause (1) (b) does not apply to possession or transport of a species by the Crown. 2019, c. 9, Sched. 5, s. 8 (2).

Same, persons or body (5) Clause (1) (b) does not apply to possession or transport of a species by a person or body if the Minister has authorized the person or body to possess or transport the species for, (a) scientific or educational purposes; or (b) traditional cultural, religious or ceremonial purposes. 2019, c. 9, Sched. 5, s. 8 (2).

Conditions (5.1) An authorization granted under subsection (5) is subject to such conditions as the Minister may specify in the authorization. 2019, c. 9, Sched. 5, s. 8 (2).

Prohibition on damage to habitat, etc. 10 (1) No person shall damage or destroy the habitat of, (a) a species that is listed on the Species at Risk in Ontario List as an endangered or threatened species; or (b) a species that is listed on the Species at Risk in Ontario List as an extirpated species, if the species is prescribed by the regulations for the purpose of this clause. 2007, c. 6, s. 10 (1).

[47] Habitats can be specifically defined. This was not done in the case of the butterfly, despite being recommended in the report.

[48] The habitat of the butterfly is captured by the general definition set out in s. 2(1) (b) of the ESA: “an area on which the species depends, directly or indirectly, to carry on its life processes, including life processes such as reproduction, rearing, hibernation, migration or feeding”, including places such as “dens, nests, hibernacula or other residences”.

[49] The ESA and its regulations provide for exceptions. Section 8 of the general regulation reads as follows:

8. (1) Clause 9 (1) (a) and subsection 10 (1) of the Act do not apply to a person who is acting to protect a human being or animal if the person reasonably believes that there is an imminent risk to the health or safety of the human being or animal. O. Reg. 242/08, s. 8 (1).

(2) Clause 9 (1) (a) and subsection 10 (1) of the Act do not apply to a police officer, firefighter or other person if, (a) he or she is exercising powers or performing duties under an Act of Ontario or Canada or is acting under the direction of a person who is exercising powers or performing duties under an Act of Ontario or Canada; (b) he or she is engaged in an activity that is intended to, (i) protect the health or safety of any human being, (ii) search for a living or dead human being, (iii) prevent or reduce significant damage to property or the environment, or (iv) enforce the law; and (c) in the circumstances, it is not reasonable to comply with clause 9 (1) (a) or subsection 10 (1) of the Act. O. Reg. 242/08, s. 8 (2). [Emphasis added.]

[50] One of the declarations sought by the applicant is that it is an “other person” as set out in the above section, thereby immunizing it from liability under the ESA.

[51] Another exception that could absolve an entity from the enforcement of the ESA is found under s. 17. In that section, the Minister of Environment, Conservation and Parks is empowered to issue permits to permit a person to engage in activities that would otherwise be prohibited under the ESA, such as damaging or destroying the habitat of a species at risk. It reads as follows:

Permits

17 (1) The Minister may issue a permit to a person that, with respect to a species specified in the permit that is listed on the Species at Risk in Ontario List as an extirpated, endangered or threatened species, authorizes the person to engage in an activity specified in the permit that would otherwise be prohibited by section 9 or 10. 2007, c. 6, s. 17 (1).

Limitation (2) The Minister may issue a permit under this section only if, (a) the Minister is of the opinion that the activity authorized by the permit is necessary for the protection of human health or safety; (b) the Minister is of the opinion that the main purpose of the activity authorized by the permit is to assist, and that the activity will assist, in the protection or recovery of the species specified in the permit; (c) the Minister is of the opinion that the main purpose of the activity authorized by the permit is not to assist in the protection or recovery of the species specified in the permit, but, (i) either of the following conditions will be or have been met: (A) the Minister is of the opinion that an overall benefit to the species will be achieved within a reasonable time through requirements imposed by conditions of the permit, or (B) subject to subsection (2.1), the person who would be authorized by the permit to engage in the activity has agreed to pay to the Agency any species conservation charge that is required by the permit, (ii) the Minister is of the opinion that reasonable alternatives have been considered, including alternatives that would not adversely affect the species, and the best alternative has been adopted, and (iii) the Minister is of the opinion that reasonable steps to minimize adverse effects on the species are required by conditions of the permit; or (d) the Minister is of the opinion that the main purpose of the activity authorized by the permit is not to assist in the protection or recovery of the species specified in the permit, but, (i) the Minister is of the opinion that the activity will result in a significant social or economic benefit to Ontario, (ii) subject to subsection (2.1), the person who would be authorized to engage in the activity has agreed to pay to the Agency any species conservation charge that is required under the permit, (iii) the Minister is of the opinion that the activity will not jeopardize the survival or recovery of the species in Ontario, (iv) the Minister is of the opinion that reasonable alternatives have been considered, including alternatives that would not adversely affect the species, and the best alternative has been adopted, and (v) the Minister is of the opinion that reasonable steps to minimize adverse effects on the species are required by conditions of the permit. 2007, c. 6, s. 17 (2); 2019, c. 9, Sched. 5, s. 15 (1).

Species conservation charge (2.1) The Minister may require a permit holder to pay a species conservation charge to the Agency as a condition of a permit issued under clause (2) (c) or (d) only if the permit is issued with respect to a species that is a conservation fund species. 2019, c. 9, Sched. 5, s. 15 (2).

Response to recovery strategy (3) Before issuing a permit under this section, the Minister shall consider any government response statement that has been published under section 12.1 with respect to a recovery strategy for the species specified in the permit. 2007, c. 6, s. 17 (3); 2019, c. 9, Sched. 5, s. 15 (3).

Conditions (4) A permit issued under this section may contain such conditions as the Minister considers appropriate. 2007, c. 6, s. 17 (4).

Same (5) Without limiting the generality of subsection (4), conditions in a permit may, (a) limit the time during which the permit applies; (b) limit the circumstances in which the permit applies; (c) require the holder of the permit to take steps specified in the permit, and require that steps be taken before engaging in the activity authorized by the permit; (d) require the holder of the permit to furnish security in an amount sufficient to ensure compliance with the permit; (d.1) require the holder of a permit issued under clause (2) (c) or (d) to pay a species conservation charge; (e) require the holder of the permit to ensure that the activity authorized by the permit, and the effects of the activity, are monitored in accordance with the permit; (f) require the holder of the permit to rehabilitate habitat damaged or destroyed by the activity authorized by the permit, or to enhance another area so that it could become habitat suitable for the species specified in the permit; or (g) require the holder of the permit to submit reports to the Minister. 2007, c. 6, s. 17 (5); 2019, c. 9, Sched. 5, s. 15 (4).

Compliance (6) An authorization described in subsection (1) does not apply unless the holder of the permit complies with any requirements imposed by the permit. 2007, c. 6, s. 17 (6).

Amendments or revocation (7) The Minister may, (a) with the consent of the holder of a permit issued under this section, (i) amend the permit, whether it was issued under clause (2) (a), (b), (c) or (d), if the Minister is of the opinion that the permit could be issued under the same clause in its amended form, or (iii) revoke the permit; or (b) without the consent of the holder of the permit issued under this section, but subject to section 20, amend or revoke the permit if the Minister is of the opinion that the revocation or amendment, (i) is necessary to prevent jeopardizing the survival or recovery, in Ontario, of the species specified in the permit, or (ii) is necessary for the protection of human health or safety. 2007, c. 6, s. 17 (7); 2019, c. 9, Sched. 5, s. 15 (5, 6).

Delegation (8) In addition to any authority under any Act to delegate powers to persons employed in the Ministry, the Minister may, in the circumstances prescribed by the regulations, delegate his or her powers under this section to a person or body prescribed by the regulations, subject to any limitations prescribed by the regulations. 2007, c. 6, s. 17 (8).

[52] In other words, the Minister may issue a permit if a reasonable alternative has been considered, and reasonable steps to minimize adverse effects and overall benefit to the species will be achieved within a reasonable time through requirements imposed by conditions of the permit.

[53] The above provisions permit four kinds of permits:

1. Permits to protect human health and safety.
2. Permits necessary to protect or recover species at risk. For example, a company holds a five-year permit to study the butterfly in 16 sites across the province, including Riverside Pines.
3. Permits for when the main purpose of the activity is not to assist the species but provides an overall benefit to the species. For example, the Region of Halton was permitted to construct a four-lane highway even though the construction could potentially affect two species, including the butterfly. It was required to protect the habitat with vegetation-protection fencing, create a new habitat using transplanted host plants, and restore a certain portion of the existing habitat.
4. Permits for where the activity will result in significant social or economic benefit to Ontario, and will not jeopardize the survival or recovery of the species.

[54] The provision does not provide a time limit for the permit. Under s.17(7)(a) of the ESA, the Minister may also renew the permit.

[55] Government materials on its website describe the permit process:

• “Proponents are encouraged to discuss activity plans with the [MNRF] local office staff early in the planning and design phase”.
• “Each activity is assessed on a case-by-case basis to determine whether or not a permit is required. A permit is required for activities where adverse effects to endangered species or threatened species at risk or their protected habitat cannot be avoided”.
• “Proponents are responsible for obtaining the appropriate approvals and permits prior to beginning the activity”.
• The MNRF can share knowledge, identify any information gaps, provide “advice on appropriate methods for conducting species at risk surveys”, provide resources, advise “the proponent on the consideration of avoidance alternatives for the activity and its subcomponents that would not adversely affect the species at risk or protected habitat or otherwise contravene the ESA”.
• The MNRF can determine “whether specific activities may require authorization under the ESA to avoid a contravention of the Act”.
• The MNRF can provide “advice on the development of an overall benefit permit application.”

[56] The ESA overall benefit permit flowchart shows the following process:

• Preliminary screening – The proponent discusses the proposed activity with MNRF, which advises of potential species at risk or habitat concerns. If there are potential species at risk concerns, the proponent proceeds to Phase 1.
• Phase 1 – Information gathering – The proponent completes an information gathering form (IGF).
• Phase 2 – Activity review and assessment – MNRF reviews the IGF to see if the proposed activity contravenes the ESA. If contravention is likely, the proponent completes an avoidance alternatives form and elects to (1) avoid a contravention, or (2) apply for a permit. If contravention is likely and an avoidance alternative is not adopted, the proponent proceeds to Phase 3.
• Phase 3 – Permit application and assessment – The proponent submits a permit application, and MNRF assesses whether the legislated conditions for an overall benefit permit are likely to be met and determines whether or not the submission is complete. If the submission is complete, the process proceeds to Phase 4 (three-month service standard begins for Phases 4 and 5).
• Phase 4 – Permit drafting – MNRF completes the drafting of the proposed permit and ensures requirements are met.
• Phase 5 – Permit decision – The proposed permit is submitted for the Minister’s decision. MNRF notifies the proponent of the decision. If the permit is issued, proceed to Phase 6. If the permit is denied, the proponent may submit a new application.
• Phase 6 – Permit implementation – The proponent undertakes the activity in accordance with the conditions of the permit.

[57] In one permit application by another entity, consultation was not necessary as the MNRF said it did not meet the required criteria set out in s. 1.3(6) of Classification of Proposals for Instruments, O. Reg. 681/94, of the Environmental Bill of Rights, 1993, S.O. 1993, c. 28. But the Ministry consulted nevertheless and requested public comment.

[58] The permit granted the Halton municipality required it to create a habitat of a certain size with New Jersey tea from the impacted site, nursery stock grown from locally sourced seed, and a compatible native seed mix. Also, within a reasonable time, it was required to plant and naturalize a large section of an affected floodplain, place signs, and repair and stabilize sections of eroded channel bank.

[59] These permit applications considered avoidance options, actions to minimize adverse effects, and benefit actions for the species.

Position of the Applicant

[60] The applicant needs legal clarity in order to determine its reasonable maintenance obligations under the Municipal Act – i.e., it requires a determination of what is reasonable from a road safety perspective without being subject to another agency.

[61] It argues that there is a conflict between s. 44 of the Municipal Act and ss. 9 and 10 of the ESA. The applicant argues that where a species is at risk or its habitat is located on a highway, the applicant cannot simultaneously comply with its mandatory maintenance obligations for the highway and also with the requirements under the ESA.

[62] If the applicant fails to maintain highways, it may find itself liable as s. 44 of the Municipal Act does not allow a relaxation of the obligations when a species at risk or its habitat is present. Pursuant to s. 44(2) a municipality is “liable for all damages any person sustains because of the default” in complying with its highway maintenance obligations.

[63] In addition, in fulfilling its obligation to maintain highways, the applicant risks enforcement and prosecution by the Ministry of the Environment, Conservation and Parks (“MECP”) if the highway maintenance impacts the endangered species or its habitat.

[64] This conflict causes issues for the applicant, which is a small rural municipality, and it is seeking urgent clarification in order for it to know what it can or cannot do on the highways and shoulders where the butterfly’s habitat is located.

[65] Contrary to the respondent’s submission, the applicant is not seeking immunity from prosecution under the ESA, but rather a statutory interpretation. The applicant is open to an interpretation that strict compliance with the ESA is required provided that the Municipal Act and the MMS regulation are interpreted in a manner that makes compliance with the ESA reasonable under s. 44 of the Municipal Act and a recognized exception under the MMS regulation.

[66] The municipality is concerned about storm events (including of the sort that occurred in 2022) impacting the highways where the butterfly’s habitat is present. Access to residential lots, hydro utilities, and private property may be impacted if the applicant cannot perform its usual clean-up functions due to risk of prosecution.

[67] The bottom line is that the applicant is concerned about the following:

• accumulation of water pooling along the roadway during the spring thaw or summer storms where high shoulders have developed;
• road users encountering a hazard while a permit application is in process;
• road users not seeing deer as vegetation growing along the road shoulder cannot be mowed until the winter; and
• drivers’ reaction times being reduced due to blocked sightlines.

[68] The Municipal Act does not provide any exceptions to the derogation of duty if the municipality is attempting to comply with the ESA.

[69] The ESA does not contain sufficiently clear language that would clearly exempt the applicant’s performance of statutorily required highway maintenance from prosecution for violations/offences.

[70] The applicant submits that the mottled Duskywing mitigation measures fall short of Municipal Act highway maintenance standards and practices. It is asking the court to resolve the conflict between road safety and preservation of an endangered species in Riverside Pines.

[71] The municipality’s maintenance obligations cannot be met in the following conditions:

• Mowing in Riverside Pines only between November and April each year – Vegetation mowing in the summer months targets fresh vegetation that has regrown. Winter mowing would not provide effective vegetative control, as most green organics have died back for winter or have not matured to cause traffic issues. Mowing in that period would be a waste.
• Targeting woody vegetation removal with hand tools instead of mowing – Riverside Pines is too large to hand-remove obstructive vegetation, the road crew is small, and the applicant does not have the financial or human-power resources to complete that job cost-effectively or effectively remove vegetation for road safety proposes.
• No more than one quarter of the habitat in a given year be targeted for mowing – This would cause significant vegetative growth to remain and it would obscure traffic signs and damage to signs. Class 5 highways require rectification of damaged signs within 30 days.

[72] The municipality does not have the resources to have in-house experts train road workers.

[73] Keeping the roads clear requires more than just plowing. The municipality will need to use de-icing agents or salt. Ms. Linton has stated that these items could impact the species, but the impact is unknown. The municipality has a provincially approved salt management plan, which manages the possible risks of road salt but allows the municipality to ensure the safety of people using the public highways.

[74] With respect to the permit process, the wording of s. 17 emphasizes the discretionary nature of the permit process and the Minister is not obligated to issue permits. There is no wording that would require the Minister to consider the municipality’s reasonable highway maintenance.

[75] In addition, the applicant argues that there is no evidence that the permit would be granted unconditionally and there is no certainty that the Minister would grant the municipality a “blanket permit”, as the respondent refers to in its factum. In addition, the conditions under the permit would likely limit the applicant’s ability to perform highway maintenance to the required standards under the Municipal Act. Also, the ESA provisions do not require the Minister to take the obligations under the Municipal Act into account.

[76] In furtherance of the purpose of the ESA, the applicant had sought a grant to map and manage the butterfly, and hired an expert to carry out the work.

[77] The applicant cannot pause all maintenance work in the interim while waiting for the funding and performance of the work pursuant to this grant project.

[78] The legal issue is that there are no safety valves in Municipal Act. On the practical side, the applicant is concerned that if it obtained a permit, the conditions imposed would not be reasonable for road maintenance and would not prioritize road safety.

[79] A multiplicity of prosecutions would be financially devastating to the municipality, place undue burden on the provincial offence system, and would not answer the underlying question of where the municipality’s highway maintenance duties end and the enforcement powers of the MECP begin.

[80] The applicant does not intend to exploit a species for its own gain, but rather obtain a determination of its own statutory responsibilities.

[81] The applicant is requesting a determination of the definition of “highway” and a determination that is responsibility under s. 44 of the Municipal Act responsibility is paramount to its obligations under the ESA.

[82] Alternatively, the applicant requests a declaration that a municipality has jurisdiction to determine what is “reasonable” in performing its statutory duties under s. 44 of the Municipal Act to keep such highway or bridge in a state of repair that is reasonable in the circumstances and this determination will not be subject to the requirement to obtain a permit or to the offence provisions or other enforcement provisions of the ESA, where it involves work as particularized in para. 1 of the Notice of Application.

[83] Finally, the applicant is requesting the court determine the legal boundaries of the Minister’s rights and jurisdiction to enforce the ESA and the legal boundaries of the statutory rights and duties of a municipality to maintain a highway or bridge pursuant to s. 44 of the Municipal Act where any of the lands and structures include a “habitat” or a species listed on the species at risk in Ontario list, as defined in s. 2(1) of the ESA.

Position of the Respondent

[84] The respondent argues that the court should not exercise its discretion to grant declaratory relief as the applicant is seeking a legal opinion and relief that is merely hypothetical, speculative, or academic.

[85] In addition, the application is an abuse of process because it is attempting to interfere with a quasi-criminal proceeding. The applicant is also attempting to interfere with prosecutorial discretion by requesting a declaration that will immunize it from criminal liability. It is also attempting to immunize itself from civil liability.

[86] The application is not legally founded as the paramountcy doctrine does not apply and there is no conflict between the ESA and the Municipal Act.

[87] In addition, there is no constitutional challenge to the Municipal Act or ESA, no notice of question, and no suggestion that the statutes were improperly enacted or invalid.

[88] The applicant is not entitled to a declaration because it wishes to immunize itself from future liability.

[89] The applicant has not availed itself of the permit process set out in the ESA, which would permit it to request exemptions and permitted activity. Therefore, the respondent argues that the applicant has failed to take steps to avail itself of the alternative routes to deal with what the applicant perceives as a conflict in two Acts. The legislature has provided exceptions in the Acts and regulations for municipalities to consider.

[90] Specifically, regarding maintenance, the respondent argues, first, that the applicant can maintain the roads while preserving the butterfly and its host plants. Permitted maintenance includes snow and ice clearing, repaving and regrading the road surface, traffic and road-side installation and maintenance, and dust control. This type of work has been ongoing for decades with negligible impact on the habitat.

[91] Second, there is no evidence that the applicant has breached the ESA by spraying pesticides and the applicant cancelled spraying poison ivy due to the presence of the butterflies.

[92] Third, there is no evidence that the salting by the applicant is a contravention under the ESA. The respondent’s expert indicated that caution is necessary but that maintenance activities that occur only on the highway are unlikely to have an effect on the butterfly.

[93] Finally, mowing along the side of the highway can occur at appropriate times of the year, such as late fall or early spring, when the butterflies are in suspended animation in the leaf litter at the base of the plants. In addition, maintenance workers could be educated and hand tools could be used in sensitive areas.

[94] The respondent’s expert has been assisting homeowners and private landowners regarding private construction and the requirements under the ESA. This was done without them applying for a permit. The expert has been able to carry out extensive field work without parking on top of the butterfly host plants. The MNRF has been with the applicant to ensure it can carry out its regular activities, and the applicant has been advised to screen for the potential presence of species at risk during project planning and to contact the Ministry for advice to avoid impacts on species at risk or to inquire as to whether authorization is required. In addition, the applicant has been working with one of the experts on the butterfly to develop a habitat management plan.

Analysis

Introduction

[95] The applicant is requesting, among other things, a declaration of what is “reasonable” or an opinion to guide the applicant in the management of its duties under the Municipal Act and the ESA.

[96] There is a mechanism created by the legislature that would allow the applicant to obtain a permit under the ESA, which can provide exemptions or relief from the requirements under the ESA.

[97] Also, the municipality can defend the charges against it in the OCJ, as in the case of Ontario (Natural Resources and Forestry) v. South Bruce Peninsula (Town), 2022 ONCA 315, 161 O.R. (3d) 436, at para. 35, and ask for exemption from the ESA in the event of an emergency. The applicant has a history of applying for other permits, e.g., permits to take water under the Environmental Protection Act, R.S.O. 1990, c. E.19, and the Environmental Assessment Act, R.S.O. 1990, c. E.18.

[98] For the reasons further articulated below, I decline to grant the declarations requested.

Court has jurisdiction

[99] Even though the section was not specifically pleaded, pursuant to s. 97 of the Courts of Justice Act, R.S.O. 1990, c. C.43, this court has the power to make binding declarations of right.

[100] In S.A. v. Metro Vancouver Housing Corp., 2019 SCC 4, [2019] 1 S.C.R. 99, at para. 60, the Supreme Court states the following: Declaratory relief is granted by the courts on a discretionary basis, and may be appropriate where (a) the court has jurisdiction to hear the issue, (b) the dispute is real and not theoretical, (c) the party raising the issue has a genuine interest in its resolution, and (d) the responding party has an interest in opposing the declaration being sought (Ewert v. Canada, 2018 SCC 30, [2018] 2 S.C.R. 165, at para. 81; see also Daniels v. Canada (Indian Affairs and Northern Development), 2016 SCC 12, [2016] 1 S.C.R. 99, at para. 11; Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44, at para. 46).

[101] In Glaspell v. Ontario, 2015 ONSC 3965, 40 M.P.L.R. (5th) 77, at para. 28, Perell stated that the “court’s discretion to make a declaration should be exercised sparingly and with extreme caution: Re Lockyer, [1934] O.R. 22 (C.A.). As a general policy, the court will not make a declaratory order or decide a case when the decision will serve no practical purpose because the dispute is theoretical, hypothetical or abstract, and the remedy of declaratory relief is not generally available where the dispute or legal right may never arise: Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; Green v. Canada (Attorney General), 2011 ONSC 4778 (S.C.J.).”

[102] In Solosky v. The Queen, [1980] 1 S.C.R. 821, at p. 830, the Supreme Court states as follows: Declaratory relief is a remedy neither constrained by form nor bounded by substantive content, which avails persons sharing a legal relationship, in respect of which a ‘real issue’ concerning the relative interests of each has been raised and falls to be determined.

[103] Further, the Supreme Court states, at p. 832, “It is clear that a declaration will not normally be granted when the dispute is over and has become academic, or where the dispute has yet to arise and may not arise.”

[104] In Operation Dismantle v. The Queen, [1985] 1 S.C.R. 441, at para. 33, the Supreme Court concludes that “there must be a cognizable threat to a legal interest”.

Is the issue justiciable?

Case law

[105] The case law below provides examples of how courts have interpreted their discretionary powers in making declarations, and the guiding principles that arise.

[106] Schaeffer v. Woods, 2011 ONCA 716, 107 O.R. (3d) 721, rev’d in part on other grounds, 2013 SCC 71, [2013] 3 S.C.R. 1053, provides an example of the court’s right to exercise its discretion to grant a declaration, but it does not provide a guide of how and when this power should be used.

[107] Schaeffer concerned a purely interpretive question: see paras. 23, 52, and 55. The court was asked whether the applicable legal framework entitled police officers who are involved in incidents attracting the attention of the Special Investigations Unit (“SIU”) to obtain legal assistance in the preparation of their notes regarding the incident.

[108] The court was dealing with an application by private individuals who were requesting an interpretation of the Police Services Act, R.S.O. 1990, c. P.15, and the regulation about the conduct and duties of officers in SIU investigations. The application judge at first instance dismissed the application, finding it was a private reference and “not a proper use of court resources” and using “Rule 14 to fly a trial balloon”: 2010 ONSC 3647, at para. 70.

[109] The Ontario Court of Appeal found that the case was justiciable and that the court was not precluded from “exercising its customary role of interpreting the legal instruments that the legislature has provided”: Schaeffer, at para. 43. It found that it should exercise its discretion to decide the application.

[110] In Schaeffer, at para. 42, the Court of Appeal states the following: The matter of SIU investigations has certainly been contentious, hotly debated and the subject of numerous reviews, reports and policy debates. However, the legislative process has engaged those issues and a legislated regime to govern SIU investigations has now been established. The applicants simply ask for the court’s interpretation of what the legislation does, and does not, allow in the context of a specific factual record emerging from two SIU investigations.

[111] At para. 43, the court writes the following: The fact that the legal regime the court is being asked to interpret was shaped by policy considerations and the need to balance competing interests, does not, and cannot, preclude the court from exercising its customary role of interpreting the legal instruments that the legislature has provided. The SIU Regulation provides a legal framework for the exercise of the court’s adjudicative authority. This authority cannot be ousted by virtue of the fact that policy debates about SIU investigations continue. Where policy issues provide “the context for, rather than the substance of, the questions before the Court”, the matter is justiciable: Same-Sex Marriage, Re, 2004 SCC 79, [2004] 3 S.C.R. 698 at para. 10. As Le Dain J. stated in Finlay at para. 33, “where there is an issue which is appropriate for judicial determination the courts should not decline to determine it on the ground that because of its policy context or implications it is better left for review and determination by the legislative or executive branches of government”.

[112] A relevant case citing Schaeffer is A.B. v. Canada (Attorney General), 2017 ONSC 3759, 139 O.R. (3d) 139, where the court likens the applicant’s application (for a declaration to protect a physician from criminal charges, for determination that she had grievous and irremediable medical condition, and a declaration that she may receive medical assistance in dying) to that in Schaeffer: at para. 72. The court proceeds to grant a declaration that the applicant’s death is reasonably foreseeable.

[113] Contrast this with Grain Farmers of Ontario v. Ontario (Ministry of the Environment and Climate Change), 2016 ONCA 283, 130 O.R. (3d) 675, where the application sought an interpretation of the provincial prohibitions on pesticide and a stay of those regulations as they were “unworkable” and would “produce little benefit”: at para. 1. The application was seeking to rewrite the laws of general application, as opposed to Schaeffer where there were “practical questions to be answered about the rights of state actors under legislation that was intended to guide and constrain their conduct”: at para. 21.

[114] In Attorney General for Ontario v. Persons Unknown, 2020 ONSC 6974, at para. 59, Justice Myers found the case was “not a dispute that is real today” but rather there was only a fear that people might sue in the future and a party would be forced to incur the costs of a defence.

[115] Myers J. states the following, at para 70: In my respectful view, this crosses the line of constitutionally permissible roles. It is not the court’s place to endorse the executive branch’s view of its conduct without any live dispute in which people with opposite views can be fairly heard and issues can be dispassionately decided.

[116] Regarding separation of power, Myers J. quotes from Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3, where the Supreme Court of Canada discussed the importance of each branch of government operating within the limits of its constitutional role and then said this: “Accordingly, the limits of the court’s inherent jurisdiction must be responsive to the proper function of the separate branches of government, lest it upset the balance of roles, responsibilities and capacities that has evolved in our system of governance over the course of centuries”: at para. 30.

[117] Also, in Bunker v. Veall, 2023 ONCA 501, 168 O.R. (3d) 356, the estate sought a declaration regarding the illegality of a payment by the estate to satisfy a judgment rendered in Dubai. It was concerned it would be prosecuted as the funds could be used for illegal activities such as terrorism.

[118] Godin v. Sabourin, 2016 ONSC 770, involved a neighbours’ dispute as one neighbour’s pool installation changed the grade of the property. The applicant sought, amongst other things, a declaration regarding the responsibility of neighbours to maintain the grade of their respective properties and the condition of shared fences. The court dismissed the application because the declaration “would serve no purpose and relate to matters that are well settled in case-law and/or are provided for in legislation”: at para. 20.

[119] The court comments on the application of r. 14.05, at para. 11:

[11] While procedurally an estate may seek the advice of the court including declarations of right under r. 14.05(3) of the Rules of Civil Procedure, that rule does not give the court jurisdiction. It is a procedural rule only. This court recently discussed these principles at para. 61 of Bryton Capital Corp. GP Ltd. v. CIM Bayview Creek Inc., 2023 ONCA 363: Rule 14.05 is procedural in nature. It does not create jurisdiction, but assumes it, and provides a means by which to engage that jurisdiction: Grain Farmers of Ontario v. Ontario (Ministry of the Environment and Climate Change), 2016 ONCA 283, 130 O.R. (3d) 675, at paras. 17-18. A court must have jurisdiction independent of r. 14.05 before it can consider the appropriate vehicle for bringing the matter forward, whether by application or action: J.N. v. Durham Regional Police Service, 2012 ONCA 428, 294 O.A.C. 56, at para. 16.

[120] In Bunker, the court was also dealing with possible future prosecutions and found it could not interfere with prosecutorial discretion or provide immunity from prosecution (para. 14).

[121] In Bryton Capital Corp. GP Ltd. v. CIM Bayview Creek Inc., 2023 ONCA 363, 8 C.B.R. (7th) 22, the court also refers, at para. 64, to the hesitation to make declarations when there are other available remedies.

[64] As indicated in S.A., declaratory relief is discretionary. A non-exhaustive list of reasons why a court may deny declaratory relief includes “standing, delay, mootness, the availability of more appropriate procedures, the absence of affected parties, the theoretical or hypothetical nature of the issue, the inadequacy of the arguments presented, or the fact that the declaration sought is of merely academic importance and has no utility”: ….

Applicant has not availed itself of the permit process

[122] The applicant is requesting an opinion with respect to what is “reasonable” under both legislation and what is required for it to perform its obligation and avoid any future liability. It is not exactly requesting, as the respondent submits, a declaration to shield itself from civil and criminal liability under the Municipal Act and the ESA, although such a declaration may have that consequence.

[123] Unlike Schaeffer, this case involves more factual considerations, including the effectiveness of maintenance techniques and their relative impacts, the timing of such maintenance activities, the scope of road maintenance, etc.

[124] The court must determine whether this matter is justiciable. To do so, the court must consider that it “would be an economical and efficient investment of judicial resources to resolve [the matter], that there is a sufficient factual and evidentiary basis for the claim, that there [is] an adequate adversarial presentation of the parties’ positions and that no other administrative or political body has been given prior jurisdiction of the matter by statute”: Lorne M. Sossin, Boundaries of Judicial Review: The Law of Justiciability in Canada, 2nd ed. (Toronto: Thomson Reuters, 2012), at p. 294.

[125] The applicant essentially argues that the parties in the cases cited by the respondent were not state actors seeking answers to practical questions, and therefore Schaeffer is more relevant. While Schaeffer and A.B. both serve as examples of cases where courts chose to exercise their discretion to grant declarations, the court must nevertheless respect the principle that declarations should be granted cautiously.

[126] The evidence filed by the applicant outlines the challenges it faces in meeting its obligations under the Municipal Act and the ESA.

[127] On the May long weekend in 2022, the municipality declared a state of emergency due to a severe storm that downed trees and required emergency road maintenance. The municipality could not apply for a permit before undertaking work to meet its road maintenance obligations, given the significant weather event.

[128] The court finds that the issues before the court are not ripe for a declaration as the applicant has not sought any relief by applying for a permit under the ESA.

[129] Also, although not determinative, it has also not tested its defences to the provincial prosecution.

[130] As discussed above, the ESA provides a mechanism for the applicant to obtain some relief from its obligations.

[131] In South Bruce Peninsula, the court states the following about the ESA, at para. 29:

[29] The statutory regime creates an absolute prohibition against damage to the habitat of an endangered species but allows the Minister to permit some intrusion where the public interest so requires. The prohibitions are broad, but the exceptions authorized by the Minister are the vehicle through which other social and economic needs are recognized: Wildlands League v. Ontario (Natural Resources and Forestry), 2016 ONCA 741, 134 O.R. (3d) 450, at para. 92.

[132] Lorne Sossin, in his book, at p. 28, states the following: Ripeness is a doctrine of justiciability concerned with the timing and presentation of a dispute. Generally, courts will assume jurisdiction of a matter only when it becomes ‘ripe’ for judicial determination, in the sense that there is a live controversy, with a sufficient factual foundation, and no other prior, procedural avenues to exhaust… [I]t is the hypothetical nature of a claim that will offend the doctrine of ripeness, not simply that a certain event has not yet transpired.

[133] At p. 83, he writes that alternative grounds are an aspect of ripeness doctrine that typically arises “when a court is asked to judicially review a decision prior to all procedural avenues being exhausted” or “decide a matter not necessary to dispose of a case”. He continues to write the following, at p. 84: Two policies relating to the administration of justice explain this doctrine: one is that courts as a general rule should only decide what is necessary to resolve a dispute, and second, judicial resources are scarce and should only be diverted to resolving public law disputes at the appropriate time (i.e. where there is no other mechanism capable to do so). [Footnotes omitted.]

[134] In Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources), [1989] 2 S.C.R. 49, the court did not intervene, as it found that the Auditor General’s request for disclosure was not justiciable as the relevant power was reserved to Parliament. The court’s decision was premised on the basis that Parliament had legislated on this issue and the separation of powers dictated that courts not intervene.

[135] Certainly, the permit provisions could have allowed the municipality to obtain permission to maintain the highways in compliance with s. 44 of the Municipal Act. This occurred with respect to the Halton permit: certain requirements were set out that would ensure that the endangered species are protected and safeguarded. As noted in the materials, Halton was requested to produce refurbished acreage for these endangered species.

[136] Here, the applicant indicates that it is a small municipality with limited funds and taxpayer dollars, and it would be onerous for it to maintain the highways in compliance with the Municipal Act yet also have the obligation to comply with conditions that may be set by the Minister if it applied for a permit under the ESA.

[137] It argues that none of the environment registry approvals that have been posted to the ESA website regarding permits relate to regular highway maintenance, but rather to construction projects.

[138] The court acknowledges that the applicant runs a municipality with a limited budget that wishes to respect the provisions of the ESA and applauds its objectives, but at the same time, is concerned of the potential undue burden if prosecuted while performing its statutory obligations regarding road maintenance under the Municipal Act.

[139] If there is an emergency that poses an imminent risk to health and safety, there are exemptions under s. 8(1) of the general regulation.

[140] If there are non-imminent risks to health or safety, the municipality may apply for a permit. Ms. Linton said a permit could be obtained in a matter of days. Also, the applicant could apply for a multi-year permit covering various activities.

[141] The applicant has not bothered to apply for permits to determine whether the requirements under a permit would be onerous and conflict with its obligations under the Municipal Act and the regulations, or give due consideration to the small budget of this particular municipality.

[142] At her examination for discovery, Ms. Linton testified regarding the issuance of the permits:

• She has never experienced a denial of a permit by the Minister.
• In a permit process, one would develop a mitigation plan and she would not propose mowing in the summer.
• The butterfly’s flight period lasts from the last week of May to the first week of July, when the females lay eggs on the host plants, then the eggs develop into larvae, so that the life cycle starts as soon as the adults start flying.
• She did not concede that a permit allowing mowing in the summer months would be granted and she had no expertise in municipal roads maintenance and the MMS regulation.
• She was not able to state how long a permit could be issued for and there was no evidence that indefinite permits have ever been granted.
• The time to obtain a permit varied and some took up to six months as various legal branches were involved.
• She has not been involved in a permit regarding mowing but rather her comments relate to municipal drain cleanouts, bridge replacements, and beach maintenance.

[143] It is acknowledged that the Minister is not under any obligation to grant a permit or consider the municipality’s obligations under the Municipal Act. However, no attempt has been made to get such a permit. A refusal to grant the application is not before the court. An application for judicial review alleging that the Minister did not exercise its discretion fairly is not before the court. The legislature made a provision for entities to apply for a permit and arguments of whether one would be granted and what conditions would be imposed are speculative.

[144] The Minister’s permit powers under the ESA do not supersede the municipality’s right to determine what is a reasonable state of repair for the roads in Riverside Pines under s. 44 of the Municipal Act.

[145] The court cannot on this record conclude that the municipality’s dual obligation is unmanageable or unattainable. The applicant is pessimistic that a permit would be workable in light of conditions that would accompany it. The applicant asserts that its budget could not carry a permit with a list of conditions and restrictions on how it could complete its statutory duties under the Municipal Act.

[146] The court acknowledges that some of Ms. Linton’s suggestions as to what would be required by the applicant to comply with the ESA may be problematic for the applicant from a practical and monetary point of view.

[147] For example, Ms. Linton indicated that routine mowing activities could be carried out with due care at appropriate times of the year. However, the municipality’s evidence on this point is that the usual schedule of mowing during periods of time other than the limited winter window put forward by Ms. Linton is necessary to control growth of vegetation along the roads to the standards required under the Municipal Act. Section 44 requires machines to be present in the road shoulders, which disrupts the host plants, or vegetation control.

[148] Ms. Linton expressed her opinion that snow removal (plowing) and spraying are not risks to the butterfly. Ms. Linton cautions that salt or de-icing chemicals have an “unknown impact” on the butterfly.

[149] As Ms. Bennett states in her reply affidavit, the municipality’s highway maintenance obligations cannot be met if mowing in Riverside Pines takes place only between November and April of each year, if the applicant is required to use “targeted woody vegetation removals with hand tools” instead of mowing in other times, and if no more than one quarter of the habitat in a given year be targeted for mowing. Ms. Linton admitted that if the municipality completes annual mowing during the summer months, it would be “very detrimental to the butterfly”.

[150] Winter maintenance is not necessary as the vegetation has either died or not yet grown up again. Also, it is not feasible to maintain road safety standards if only half of the subdivision can have its vegetation managed in any given year. Vegetation control along the road shoulders includes other types of vegetation beyond the host plants and control is needed to maintain sightlines and safe stopping for vehicles. This is required throughout the year in all of the subdivision.

[151] In any event, the applicant has not availed itself of the permit process and a declaration should not be granted if there is an alternative process provided for in the ESA.

[152] Therefore, on this ground alone, the application fails. Nevertheless, the court will comment on whether this matter is hypothetical.

Is the matter hypothetical?

[153] The respondent submits that the issue is hypothetical, speculative, or academic.

[154] I disagree. There is a live dispute but not in this court.

[155] Certainly, prospective declarations regarding the interpretation of statutes should not be made in the abstract. Yet, this is not a speculative dispute in the true sense, as there is currently a prosecution against the applicant in the OCJ. The applicant’s obligation to maintain the roadway under the Municipal Act required it to perform road work in 2022. This led to charges under the ESA, as in performing this obligation, it allegedly harmed or killed the butterfly or its habitat.

[156] However, the applicant is seeking a broader declaration that goes beyond the dispute it is currently facing in the OCJ. The matter before the OCJ is not hypothetical and the issue of what the municipality could and should have done and whether it should be found culpable under the quasi-criminal procedure can be determined in that court where the true dispute lies.

[157] The municipality indicates that its roads manager removed a “high shoulder” as a preventative maintenance measure to keep the roads clear of water and other hazards. The high shoulder prevented the water from draining off the travelled surface, increasing water build-up on the surface, which is a road hazard and destructive to the surface over time.

[158] High shoulders build up over the winter as a result of de-icing and snow clearing.

[159] The evidence of the criminal charge before the OCJ is not before this court and a declaration of this court does not bind the OCJ in its determination of the charges.

[160] Regarding prosecution under the ESA, a person can defend the charge and show that it has exercised all due diligence or demonstrate that it honestly and reasonably believed in the existence of facts that, if true, would have rendered the conduct innocent: see ESA, s. 39; R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299. Also, it can defend itself by proving another recognized common law defence, such as necessity or de minimis non curat lex: see Perka v. The Queen, [1984] 2 S.C.R. 232; South Bruce Peninsula, at para. 35. Potentially, the applicant could also argue that it is a “other person” as defined under section 8 of the general regulation.

[161] It is agreed that findings regarding culpability in the prosecution of the charges facing the applicant will not resolve the conflict in the laws that it suggests is present in this matter.

[162] It is for the applicant to seek its desired rulings in the OCJ and avail itself of any appellate routes if necessary. Here, the applicant is circumventing the quasi-criminal proceeding by attending this court to obtain a substitute ruling. The Supreme Court has stated that, as a general rule, the court should refuse declaratory relief where it is sought as a substitute for a ruling in a criminal case: Kourtessis v. Minister of National Revenue, [1993] 2 S.C.R. 53, at p. 116.

Conclusion

[163] Accordingly, I decline to exercise my discretion to grant any of the declaratory relief sought. The application is dismissed.

[164] The court awards costs in the agreed fixed amount of $20,000 (all inclusive) to the respondent.

Justice A. Doyle Released: April 18, 2024