



COURT OF APPEAL FOR ONTARIO

CITATION:
Ontario
    (Natural Resources and Forestry) v. South Bruce Peninsula (Town), 2021 ONCA 749

DATE: 20211020

DOCKET: M52810 (C69500)

Coroza J.A. (Motion
    Judge)

BETWEEN

Her Majesty the Queen in
    Right of Ontario

(Ministry of Natural
    Resources and Forestry)

Respondent (Responding Party)

and

The Town of the South
    Bruce Peninsula

Appellant (Responding Party)

Jonathan Lisus and James Renihan, for the appellant

Nicholas Adamson, for the respondent

Lindsay Beck, Bronwyn Roe, and Zachary Biech, for the proposed
    interveners Environmental Defence Canada Inc. and Federation of Ontario
    Naturalists

Heard: September 24, 2021 by video conference

REASONS FOR DECISION

OVERVIEW

[1]

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

[2]

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

[3]

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

[4]

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

BACKGROUND

[5]

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

[6]

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

[7]

The appellant was convicted by a justice of the peace. A further appeal
    was dismissed by a judge of the Ontario Court of Justice sitting as a
Provincial
    Offences Act
, R.S.O. 1990, c. P.33 (
POA
) appeal judge. The appellant
    then sought leave to appeal to this court, pursuant to s. 139
POA
.
    Section 139(1) provides that leave is only available on special grounds upon a
    question of law alone. Section 139(2) further specifies that no leave shall be
    granted unless, in the particular circumstances of the case it is essential in
    the public interest or for the due administration of justice that leave be
    granted.

[8]

On May 14, 2021, this court granted leave to appeal on both issues
    raised:
Ontario (Natural Resources and Forestry) v. South Bruce Peninsula
    (Town)
, 2021 ONCA 332, 13 M.P.L.R. (6th) 1. Miller J.A. held that the
    interpretation of damage in s. 10(1) of the
ESA
is a legal question
    and it is essential in the public interest that leave be granted, at para. 11,
    given that:

1.

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

2.

[T]here are a great many persons who are required to conform their
    behaviour to the demands of statute. The
ESA
is of such broad
    application  impacting private and public landowners as well as any member of
    the public using such lands; and

3.

[T]his seems to be this courts first opportunity to apply this section.

[9]

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

DISCUSSION

[10]

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

Nature of the Case and the Issues which Arise

[11]

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

[12]

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

Useful Contribution

[13]

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

[14]

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

1.

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

2.

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

[15]

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

[16]

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

[17]

Nor
    do I see any prejudice flowing from the proposed interveners proposal to draw
    on international law and comparative environmental protection legislation to
    support its argument that the precautionary principle should be applied when
    interpreting the
ESA
. International law can be an interpretative tool
    for statutory interpretation: see
114957 Canada Ltée (Spraytech, Société
    darrosage) v. Hudson (Town)
,

2001 SCC 40, [2001] 2
    S.C.R. 241, at paras. 30-32.

[18]

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

[19]

I
    am not persuaded by this argument. As stated, this is not a case where the
    appellant is an individual with their liberty as at stake. This court has
    recognized that interveners need not be impartial, objective or
    disinterested in the outcome of the case and the fact that the position of
    a proposed intervenor is generally aligned with the position of one of the
    parties is not a bar to intervention if the intervenor can make a useful
    contribution to the analysis to of the issues before the court:
Oakwell
    Engineering Limited v. Enernorth Industries Inc.
, 2006 CanLII 60327
    (Ont. C.A.), at para. 9; see also
Childs v. Desormeaux
(2003), 67 O.R.
    (3d) 385 (C.A.), at paras. 13-15.

[20]

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

[21]

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

[22]

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

CONCLUSION

[23]

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

a.

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

b.

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

c.

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

d.

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

e.

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

f.

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

[24]

There
    shall be no costs for this motion.

S. Coroza J.A.





[1]

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


