



COURT OF APPEAL FOR ONTARIO

CITATION: Ontario (Natural Resources and
    Forestry) v. South Bruce Peninsula (Town), 2021 ONCA 332

DATE: 20210514

DOCKET: M52429

Miller J.A. (Motion Judge)

BETWEEN

Her Majesty the Queen in Right of Ontario

(Ministry
    of Natural Resources and Forestry)

Respondent (Responding Party)

and

The Town of the South Bruce
    Peninsula

Appellant (Moving Party)

Jonathan C. Lisus and James Renihan,
    for the moving party

Nicholas Adamson and Madeline Ritchie,
    for the responding party

Heard: May 4, 2021 by video conference

ENDORSEMENT

[1]

The Town of South Bruce Peninsula, the moving
    party, is responsible for maintaining Sauble Beach, a popular tourist
    destination. The beach is also the seasonal nesting home of the piping plover,
    a migratory shorebird designated as endangered by the
Endangered Species
    Act, 2007
, S.O. 2007, c. 6 (the 
ESA
). Section 10(1) of the
ESA
makes it an offence for any person to damage or destroy the habitat of over
    175 species of plants and animals, including the piping plover. The section
    applies to habitats located on private or public land.

[2]

In addition to its obligations under the
ESA
,
    the Town is required to maintain the beach for the safety of its users. Since 2007,
    when the piping plover returned to Sauble Beach after a 30-year absence, the
    Town has worked closely with the Ministry of Natural Resources and Forestry (MNRF)
    to assist in recovery efforts. The Town has sought to minimize the impact of its
    maintenance on the plovers, to take active steps to protect the few plovers
    nests (typically fewer than five) from predators and accidental interference
    from beach users, and to ensure that the natural features of the beach area
    remain suitable to piping plovers looking for a place to nest. All seemed
    satisfactory until 2017.

[3]

In early April 2017, before the annual arrival of
    the piping plovers, the Town mechanically raked the beach. In late August 2017,
    after the piping plovers had left for the season, the Town advised MNRF of its plan
    for upcoming maintenance. MNRF raised no objections to what was proposed and the
    Town carried out its maintenance.

[4]

Subsequently, the MNRF alleged that the nature and
    extent of the Towns maintenance in April and August exceeded what had been
    proposed and had damaged plover habitat.

[5]

The Town was charged and convicted of two counts
    of damaging piping plover habitat, contrary to s. 10(1)(a) of the
ESA
.
    The convictions were upheld on appeal by Morneau J. of the Ontario Court of
    Justice (the Appeal Judge).

[6]

The Town seeks leave to appeal to this court
    pursuant to s. 139(1) of the
Provincial Offences Act
, R.S.O. 1990, c.
    P.33 (the 
POA
). It raises two issues: (i) the Appeal Judge (and the
    Justice of the Peace below) erred in their interpretation of s. 10(1) of the
ESA
,
    particularly with respect to what constitutes damage to a species habitat
    and the evidence required to prove it, and (ii) the Appeal Judge (and the Justice
    of the Peace) erred in applying the test in
White Burgess Langille Inman v.
    Abbott and Haliburton Co.
, 2015 SCC 23, [2015] 2 S.C.R. 182 governing the
    admissibility of expert evidence in the context of a regulatory offence.

[7]

The threshold for granting leave to appeal pursuant
    to s. 139 of the
POA
is high. Section 139(1) provides that leave is
    only available on special grounds upon a question of law alone. Section 139(2)
    further specifies that no leave shall be granted unless, in the particular
    circumstances of the case, it is essential in the public interest or for the
    due administration of justice that leave be granted.

[8]

The Town argues that the Appeal Judge erred by
    interpreting damage too broadly, to include any change, no matter how
    temporary, that would make an area less attractive, useful or valuable to a
    species. This would capture any change that made a habitat less attractive to a
    species to any degree  regardless of whether it was a trifling inconvenience or
    capable of having any practical impact on the life processes of the species in
    question. The Town argues that damage must be interpreted with reference to
    the definition of habitat in the
ESA
, which is defined, in part, as an
    area on which the species depends, directly or indirectly, to carry on its life
    processes: at s. 2(1).

[9]

The Town argues that s. 10(1), properly
    interpreted, would require some assessment  and some evidence  that a change to
    a habitat had some negative impact on the viability of the species. It further
    argues that the interpretation of damage should include a balance between the
    protection of listed species and the economics of industries operating under
    the
ESA
. Furthermore, the public interest requirement from s. 139(2) is
    satisfied, it argues, by the number of land owners and users who are at risk of
    violating the
ESA
or are constrained in their use of land, due to an
    overly expansive and rigid interpretation of s. 10(1).

[10]

The Crown concedes that the interpretation of
    damage in the context of the
ESA
is a legal question, but argues
    that the Appeal Judge made no error in her interpretation of s. 10(1). It argues,
    further, that the interpretation advanced by the Town is untenable, as s. 10(1)
    is a strict liability offence that is established on proof that a habitat has
    been damaged to any degree, independently of any harm to a species. Finally, the
    Crown argues that an appeal on this question is not essential either to the public
    interest or the due administration of justice.

[11]

I am satisfied that leave ought to be granted on
    this question. The interpretation of the
ESA
provided by the Appeal
    Judge may be found to be right. However, the questions raised by the Town are serious
    and their resolution will make the legislation more determinate and thus capable
    of providing greater guidance to those subject to it. Further, there are a
    great many persons who are required to conform their behaviour to the demands
    of statute. The
ESA
is of such broad application  impacting private
    and public landowners as well as any member of the public using such lands  that
    as with
R. v. Castonguay Blasting
, 2011 ONCA 292, 58 C.E.L.R. (3d) 30,
Ontario (Labour) v. Sudbury (City)
, 2019 ONCA 854, 93 M.P.L.R. (5th)
    179,

and
R. v. Hicks
, 2014 ONCA 756, its interpretation is a
    matter of public interest. Furthermore, as with
Hicks
, this seems to
    be this courts first opportunity to apply this section.

[12]

I would also grant leave on the second issue. It
    is true that
White Burgess
has received considerable attention from
    this court and others since it was decided. There may prove to be no questions
    of nuance about its application in a regulatory setting that have not already been
    canvassed in the criminal and civil context. However, guidance from this court on
    such a fundamental question of law related to the administration justice is
    appropriate, and I am satisfied that leave should be granted on this basis.

DISPOSITION

[13]

The motion for leave to appeal is granted.

B.W. Miller J.A.


