Ontario Federation of Anglers & Hunters et al. v. Ontario (Minister of Natural Resources) et al., (2002) 158 O.A.C. 255 (CA)

• Judge: Abella, MacPherson and Simmons, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: April 19, 2002
• Jurisdiction: Ontario
• Citations: (2002), 158 O.A.C. 255 (CA);2002 CanLII 41606 (ON CA);211 DLR (4th) 741;[2002] OJ No 1445 (QL);113 ACWS (3d) 63;158 OAC 255;93 CRR (2d) 1

Federation of Anglers v. Ont. (2002), 158 O.A.C. 255 (CA)

MLB headnote and full text

Temp. Cite: [2002] O.A.C. TBEd. AP.052

Ontario Federation of Anglers & Hunters ("OFAH") and C. Davison Ankney (applicants/respondents) v. Her Majesty the Queen in Right of Ontario as represented by the Ministry of National Resources and the Honourable John Snobelen (respondents/appellants)

(C36139)

Indexed As: Ontario Federation of Anglers & Hunters et al. v. Ontario (Minister of Natural Resources) et al.

Ontario Court of Appeal

Abella, MacPherson and Simmons, JJ.A.

April 19, 2002.

Summary:

The applicants sought judicial review to challenge the validity of Ontario Regulation 88/99 made by the Minister of Natural Resources under the Fish and Wildlife Conservation Act. The Regulation cancelled the spring bear hunt in Ontario. The applicants argued that the Minister lacked jurisdiction to pass the regulation because it was passed for an improper purpose (political expediency) and he did not follow the statutorily required procedure for passing the Regulation. The applicants also argued that the Regulation violated their freedom of expression under s. 2(b) of the Charter and their right to life, liberty and security of the person under s. 7 (including prejudice to outfitters' economic interests). The applicants invoked rule 39.03 and sought to examine John Snobelen, Minister of Natural Resources and Premier Mike Harris. The respondents moved for an order: (1) quashing the Notice of Examination to Minister Snobelen and the Summons to Witness to Premier Harris; (2) striking out certain portions of the applicants' affidavit evidence; and (3) restricting the applicants to three expert black bear biologists.

The Ontario Superior Court allowed the motion. The applicants brought a motion before a panel of the Divisional Court pursuant to s. 21(5) of the Courts of Justice Act to set aside the decision at first instance.

The Ontario Divisional Court, Kozak, J., dissenting, in a decision reported 142 O.A.C. 231, allowed the motion in part. The court held that Minister Snobelen and Premier Harris could be examined on the "sole issue of whether the Minister made his own decision in exercising his discretion to pass the regulation or whether he was merely directed to pass the regulation by the Premier without the exercise of any independent discretion." The court dismissed the motion for the rest. The respondents appealed. The applicant Ontario Federation of Anglers & Hunters brought an application to introduce fresh evidence.

The Ontario Court of Appeal allowed the appeal. The court also dismissed the application to introduce fresh evidence where that evidence did not meet the due diligence, relevance or determinative branches of the test for admission of fresh evidence (see paragraphs 61 to 68).

Crown - Topic 672

Authority of ministers - Exercise of - Enactment of regulations - [See Practice - Topic 3112 ].

Practice - Topic 3112

Applications and motions - Examinations in aid - Persons who may be examined - In March 1999, the Ontario Minister of Natural Resources passed a regulation that ended the spring bear hunt - The applicants sought to challenge its validity - They argued that the Regulation was ultra vires because the Minister considered improper purposes and "extraneous" factors in that the Minister took unethical hunting practices and political expediency into account - The applicants also argued that Minister failed to exercise his discretion in that he followed the Premier's dictate and did not make his own decision in passing the regulation - The applicants invoked rule 39.03 of the Rules of Civil Procedure (Ont.) and served a Notice of Examination on the Minister and a Summons to Witness to the Premier - The Ontario Court of Appeal quashed the Notice of Examination and the Summons to Witness where: (1) the Regulation was a decision of Cabinet - Even if the Premier had directed the Minister to enact the Regulation, the Minister's compliance did not constitute justiciable error; (2) the Minister was entitled to take ethical or humane hunting practices into account; and (3) governments were motivated to make regulations by political, economic, social or partisan considerations - These motives, even when known, were irrelevant as to whether the Regulation was valid - See paragraphs 1 to 60.

Practice - Topic 4241

Discovery - Examination - Persons who may be examined - Crown - Ministers - [See Practice - Topic 3112 ].

Statutes - Topic 5373

Operation and effect - Delegated legislation - Regulations - Validity of - Considerations - [See Practice - Topic 3112 ].

Cases Noticed:

Payne v. Human Rights Commission (Ont.) (2000), 136 O.A.C. 357; 192 D.L.R.(4th) 315 (C.A.), refd to. [para. 30].

Consortium Developments (Clearwater) Ltd. v. Sarnia (City) et al., [1998] 3 S.C.R. 3; 230 N.R. 343; 114 O.A.C. 92, refd to. [para. 30].

Ontario Teachers' Federation et al. v. Ontario (Attorney General) (1998), 53 O.T.C. 69; 39 O.R.(3d) 140 (Gen. Div.), refd to. [para. 31].

Agnew v. Ontario Association of Architects (1987), 26 O.A.C. 354; 64 O.R.(2d) 8 (Div. Ct.), refd to. [para. 31].

Thorne's Hardware Ltd. v. R. - see Irving Oil Ltd., Kent Lines Ltd. and Thorne's Hardware Ltd. v. National Harbours Board.

Irving Oil Ltd., Kent Lines Ltd. and Thorne's Hardware Ltd. v. National Harbours Board, [1983] 1 S.C.R. 106; 46 N.R. 91, consd. [para. 36].

New Brunswick Broadcasting Co. and Canadian Broadcasting Corp. v. Speaker of the House of Assembly (N.S.) et al., [1993] 1 S.C.R. 319; 146 N.R. 161; 118 N.S.R.(2d) 181; 327 A.P.R. 181, refd to. [para. 36].

New Brunswick Broadcasting Company v. Donahue - see New Brunswick Broadcasting Co. and Canadian Broadcasting Corp. v. Speaker of the House of Assembly (N.S.) et al.

Canadian Association of Regulated Importers et al. v. Canada (Attorney General) et al., [1994] 2 F.C. 247; 164 N.R. 342 (F.C.A.), consd. [para. 37].

TransCanada Pipelines Ltd. v. Beardmore (Township) et al. (2000), 137 O.A.C. 201; 186 D.L.R.(4th) 403 (C.A.), leave to appeal refused (2000), 266 N.R. 196; 142 O.A.C. 397 (S.C.C.), consd. [para. 38].

East Luther Grand Valley (Township) v. Ontario (Minister of the Environment and Energy) et al., [2000] O.T.C. Uned. 296; 48 O.R.(3d) 247 (Sup. Ct.), affd. [1996] O.J. No. 511 (Div. Ct.), refd to. [para. 38].

Masse et al. v. Ontario (Minister of Community and Social Services) (1996), 89 O.A.C. 81; 134 D.L.R.(4th) 20 (Div. Ct.), leave to appeal dismissed (1996), 89 O.A.C. 81 (C.A.), leave to appeal refused (1996), 207 N.R. 78; 97 O.A.C. 240 (S.C.C.), refd to. [para. 38].

Reference Re Validity of Regulations in Relation to Chemicals, [1943] 1 S.C.R. 1, consd. [para. 41].

A and L Investments Ltd. et al. v. Ontario (Minister of Housing) (1997), 104 O.A.C. 92; 36 O.R.(3d) 127 (C.A.), leave to appeal refused (1998), 227 N.R. 281; 111 O.A.C. 399 (S.C.C.), refd to. [para. 49].

Cosyns v. Canada (Attorney General) (1992), 53 O.A.C. 127; 7 O.R.(3d) 641 (Div. Ct.), refd to. [para. 49].

Gustavson Drilling (1964) Ltd. v. Minister of National Revenue, [1977] 1 S.C.R. 271; 7 N.R. 401; 65 D.L.R.(3d) 449, refd to. [para. 49].

Canada Metal Co. et al. v. Heap et al. (1975), 7 O.R.(2d) 185 (Ont. C.A.), refd to. [para. 57].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181; 50 C.C.C.(2d) 193, appld. [para. 61].

Statutes Noticed:

Fish and Wildlife Conservation Act, S.O. 1997, c. 41, sect. 6(1)(a) [para. 45]; sect. 113(1)(2) [para. 27].

Rules of Civil Procedure (Ont.), rule 39.03(1), rule 39.03(2) [para. 26].

Authors and Works Noticed:

Blake, Sara, Challenging Government Policy (October 20, 2000) Canadian Bar Association Ontario Continuing Legal Education Meeting, generally [para. 49].

Brown and Evans, Judicial Review of Administrative Action in Canada (1998), paras. 12:4441 and 12:4443 [para. 41].

Jennings, Sir Ivor, Cabinet Government (3rd. Ed. 1963), pp. 278 to 279 [para. 39].

Counsel:

Robert Charney and Hart Schwartz, for the appellants;

Timothy Danson, for the respondents.

This appeal was heard on November 22, 2001, by Abella, MacPherson and Simmons, JJ.A., of the Ontario Court of Appeal.

The decision of the Court of Appeal was released on April 19, 2002, by Abella, J.A.