Wildlands League et al. v. Lieutenant Governor in Council (Ont.) et al., 2015 ONSC 2942

• Judge: J. Mackinnon, Corbett and Lederer, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: January 14, 2015
• Jurisdiction: Ontario
• Citations: 2015 ONSC 2942;(2015), 338 O.A.C. 309 (DC)

Wildlands League v. Lieutenant Governor (2015), 338 O.A.C. 309 (DC)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. JL.017

Wildlands League and Federation of Ontario Naturalists (applicant) v. Lieutenant Governor in Council and Minister of Natural Resources (respondents)

(400/13; 2015 ONSC 2942)

Indexed As: Wildlands League et al. v. Lieutenant Governor in Council (Ont.) et al.

Court of Ontario

Superior Court of Justice

Divisional Court

J. Mackinnon, Corbett and Lederer, JJ.

May 28, 2015.

Summary:

The applicants, Wildlands League and the Federation of Ontario Naturalists (collectively, "Wildlands"), were public interest litigants. Both were non-profit environmental organizations. Wildlands challenged the validity of Ontario Regulation 176/13, made under s. 55(1)(b) of the Endangered Species Act, as ultra vires for failing to comply with a mandatory condition precedent and for being inconsistent with the Act's purpose.

The Ontario Divisional Court dismissed the application.

Animals - Topic 4204

Species at risk (incl. marine animals) - General - Interpretation of legislation - [See third and fourth Statutes - Topic 5367 ].

Animals - Topic 4229

Species at risk (incl. marine animals) - Recovery of endangered, threatened and extirpated species - Judicial review - [See third Statutes - Topic 5367 ].

Statutes - Topic 501

Interpretation - General principles - Purpose of legislation - Duty to promote object of statute - [See first and second Statutes - Topic 5367 ].

Statutes - Topic 502

Interpretation - General principles - Intention of parliament or legislature - [See fourth Statutes - Topic 5367 ].

Statutes - Topic 1644

Interpretation - Extrinsic aids - Legislative history - Legislative debates - [See fourth Statutes - Topic 5367 ].

Statutes - Topic 5367

Operation and effect - Delegated legislation - Regulations - Validity of - Ultra vires - Whether purpose authorized by empowering statute - The Ontario Divisional Court stated that "[a] challenge to the vires (legal power or authority) of the Lieutenant Governor in Council in making a regulation stands apart from the review of an administrative decision. ... The scope of such a review is narrow: 'A successful challenge to the vires of regulations requires that they be shown to be inconsistent with the objective of the enabling statute or the scope of the statutory mandate.' ... It is not concerned with assessing the policy merits of a regulation to determine if it is '... necessary, wise, or effective in practice'. ... This is not an examination of the 'political, economic, social or partisan considerations' underlying the regulation. ... It is not a question of whether the regulation will achieve its statutory objectives. ... A regulation must be 'irrelevant', 'extraneous' or 'completely unrelated' to the statutory purpose if being inconsistent with that purpose is to be the basis for finding the regulation to be ultra vires (beyond or outside the power or authority of the Lieutenant Governor). ... In effect, although it is possible to strike down regulations as ultra vires on this basis, 'it would take an egregious case to warrant such action'." - See paragraphs 27 to 29.

Statutes - Topic 5367

Operation and effect - Delegated legislation - Regulations - Validity of - Ultra vires - Whether purpose authorized by empowering statute - The Ontario Divisional Court stated that "'[r]egulations benefit from a presumption of validity'. ... The presumption has two aspects: (1) the burden is on the challenger to demonstrate the invalidity of the regulation ...; and (2) where it is possible, the regulation should be construed in a manner which renders it intra vires (within the power or authority of the Lieutenant Governor). ... 'Both the challenged regulation and the enabling statute should be interpreted using a 'broad and purposive approach.'" - See paragraphs 27 to 31.

Statutes - Topic 5367

Operation and effect - Delegated legislation - Regulations - Validity of - Ultra vires - Whether purpose authorized by empowering statute - Wildlands challenged the validity of Ontario Regulation 176/13, made under s. 55(1)(b) of the Endangered Species Act, as ultra vires for, inter alia, failing to comply with the mandatory condition precedent in s. 57(1) of the Act - The Ontario Divisional Court rejected the argument - "Compliance with the direction found in s. 57(1) consists of two questions. ... The first question asks whether or not 'the proposed regulation would apply to a species that is listed on the "Species at Risk in Ontario List" as an endangered or threatened species'. ... Where there are Species at Risk to which the proposed regulation would apply, the Minister is obliged to answer the second question. He or she must come to an opinion as to whether the proposed regulation is likely to jeopardize the survival of those species or whether it will have any other significant adverse effect on them. If, in the opinion of the Minister, the answer to the second question is affirmative, he or she has to consult with an expert. There is nothing that says that the Minister has to examine the impact on each species to which the regulation would apply separately or independently of the others." - Regarding whether the condition precedent in s. 57(1) of the Act had been met, the court found that the record demonstrated that the required steps had been taken - See paragraphs 32 to 37.

Statutes - Topic 5367

Operation and effect - Delegated legislation - Regulations - Validity of - Ultra vires - Whether purpose authorized by empowering statute - Wildlands challenged the validity of Ontario Regulation 176/13, made under s. 55(1)(b) of the Endangered Species Act (ESA), as ultra vires because, inter alia, it was inconsistent with the ESA's objects and purposes - The Ontario Divisional Court stated that this submission was rooted in the idea that the protection and recovery of Species at Risk was the single and only purpose behind the ESA and any regulation that allowed for any other consideration to be accounted for or balanced against this was inconsistent with the ESA's purpose - In taking this position, Wildlands relied on, inter alia, comments made in the legislature at the time of its passing - However, it was the words of the statute that drove an understanding of its intention - The preamble to the legislation contained the following: "The people of Ontario wish to do their part in protecting species that are at risk, with appropriate regard to social, economic and cultural considerations." - It was apparent from these words that the ESA was not one-sided in its purpose as Wildlands had proposed - See paragraphs 38 to 53.

Cases Noticed:

Shoppers Drug Mart Inc. et al. v. Ontario (Minister of Health and Long-Term Care) et al., [2013] 3 S.C.R. 810; 451 N.R. 80; 312 O.A.C. 169; 2013 SCC 64, refd to. [para. 27, footnote 37].

Katz Group Canada Inc. v. Ontario (Minister of Health and Long-Term Care) - see Shoppers Drug Mart Inc. et al. v. Ontario (Minister of Health and Long-Term Care) et al.

Jafari v. Minister of Employment and Immigration, [1995] 2 F.C. 595; 180 N.R. 330 (F.C.A.), refd to. [para. 28, footnote 38].

Ontario Federation of Anglers & Hunters v. Ontario (Minister of National Resources) et al. (2002), 158 O.A.C. 255; 211 D.L.R.(4th) 741 (C.A.), refd to. [para. 28, footnote 39].

Irving Oil Ltd., Canaport Ltd., Kent Lines Ltd. and Thorne's Hardware Ltd. v. National Harbours Board, [1983] 1 S.C.R. 106; 46 N.R. 91; 143 D.L.R.(3d) 577, refd to. [para. 29, footnote 40].

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

R. v. CKOY Ltd., [1979] 1 S.C.R. 2; 24 N.R. 254, refd to. [para. 29, footnote 41].

Pacific Pilotage Authority v. Alaska Trainship Corp., Pacific Maritime Agencies Ltd. and Ship S.S. Alaska, [1981] 1 S.C.R. 261; 35 N.R. 271, refd to. [para. 29, footnote 42].

Doctors Hospital v. Ontario (Minister of Health) (1976), 12 O.R.(2d) 164 (Div. Ct.), dist. [para. 29, footnote 42].

Shell Canada Products Ltd. v. Vancouver (City), [1994] 1 S.C.R. 231; 163 N.R. 81; 41 B.C.A.C. 81; 66 W.A.C. 81, refd to. [para. 29, footnote 42].

United Taxi Drivers' Fellowship of Southern Alberta et al. v. Calgary (City), [2004] 1 S.C.R. 485; 318 N.R. 170; 346 A.R. 4; 320 W.A.C. 4; 2004 SCC 19, refd to. [para. 31, footnote 47].

Glykis v. Hydro-Québec, [2004] 3 S.C.R. 285; 325 N.R. 369; 2004 SCC 60, refd to. [para. 31, footnote 47].

Waddell v. Canada (Governor in Council) (1983), 8 Admin. L.R. 266 (B.C.S.C.), refd to. [para. 38, footnote 56].

Heppner v. Alberta (1977), 6 A.R. 154; 80 D.L.R.(3d) 112 (C.A.), refd to. [para. 52, footnote 79].

Statutes Noticed:

Endangered Species Act, S.O. 2007, c. 6, sect. 55(1)(b) [para. 6]; sect 57(1) [para. 32, footnote 49].

Endangered Species Act Regulations, Ontario Regulation 176/13, generally [para. 2 et seq.].

Authors and Works Noticed:

Brown, Donald J.M., Evans, John M., and Deacon, Christine E., Judicial Review of Administrative Action in Canada (1998) (2012 Looseleaf Update), vol. 3, para. 13:1310 [para. 31, footnote 47]; 15:3200 to 15:3230 [para. 30, footnote 46]; 15:3261 [para. 29, footnote 42].

Hansard (Ontario) - see Ontario, Hansard, Legislative Assembly, Official Report of Debates.

Keyes, John Mark, Executive Legislation (2nd Ed. 2010), pp. 95 to 97 [para. 31, footnote 47]; 266 [para. 29, footnote 41]; 544 to 550 [para. 30, footnote 45].

Ontario, Environmental Commissioner, Laying Siege to the Last Line of Defence: A review of Ontario's Weakened Protections of Species at Risk (2013), paras. 69, 70, Exhibit EE [para. 42, footnote 62]; 71, Exhibit FF [para. 42, footnote 64].

Ontario, Hansard, Legislative Assembly, Official Report of Debates (March 20, 2007), No. 143, 2nd Sess., 38th Parliament, p. 1401 [para. 39, footnote 57].

Ontario, Hansard, Legislative Assembly, Official Report of Debates (March 28, 2007), No. 148, 2nd Sess., 38th Parliament, p. 1530 [para. 39, footnote 57].

Ontario, Minister's Explanatory Note - Changes to Ontario Regulation 242/08 under the ESA related to Modernization of Approvals (2013), pp. 2 [paras. 13, 43, 45, footnotes 19, 65, 67]; 5 [para. 34, footnote 51]; 8, 32 [para. 43, footnote 65]; 33 to 35 [para. 23, footnote 31].

Régimbald, Guy, Canadian Administrative Law (2008), p. 132 [para. 27, footnote 37].

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), pp. 368 [para. 31, footnote 47]; 458 [para. 30, footnote 44].

Counsel:

Anastasia M. Lintner, Lara Tessaro and Charles Hatt, for the applicant;

Bill Manuel and Sunil Mathai, for the respondent.

This application was heard at Toronto, Ontario, on January 14, 2015, by J. Mackinnon, Corbett and Lederer, JJ., of the Ontario Divisional Court. Lederer, J., delivered the following decision for the court on May 28, 2015.