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Environment (Ont) - Endangered Species Act (ESA). R. v. Consolidated Homes Ltd.
In R. v. Consolidated Homes Ltd. (Ont CA, 2025) the Ontario Court of Appeal dismissed a Crown leave to appeal application (which would be the second appeal), here against an earlier appeal acquittal against a conviction under the Endangered Species Act.
The case turned on whether certain lands were "habitat" under the ESA:[5] The main focus at trial was on whether the evidence proved that the land where CHL had dug was the habitat of Blanding’s turtle. “Habitat” is defined in s. 2(1) of the ESA to mean:(a) with respect to a species of animal, plant or other organism for which a regulation made under clause 56(1)(a) is in force, the area prescribed by that regulation as the habitat of the species, or
(b) with respect to any other species of animal, plant or other organism, 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,
and includes places in the area described in clause (a) or (b), whichever is applicable, that are used by members of the species as dens, nests, hibernacula or other residences; (“habitat”) Since there are no regulations prescribing the habitat of Blanding’s turtle clause (a) did not apply, leaving clause (b) as the relevant branch of the definition. Section 2(2) of the ESA provides further that:For greater certainty, clause (b) of the definition of “habitat” in subsection (1) does not include an area where the species formerly occurred or has the potential to be reintroduced unless existing members of the species depend on that area to carry on their life processes. . Marmora and Lake (Municipality) v. Ontario
In Marmora and Lake (Municipality) v. Ontario (Ont CA, 2025) the Ontario Court of Appeal dismissed an appeal, this from a dismissed municipality application for declarations, amongst other things, that "it is within every Ontario municipality’s sole jurisdiction to determine what is reasonable in performing their statutory maintenance and repair duties to keep highways or bridges in an acceptable state of repair under the Municipal Act, and a declaration that, where a municipality makes such a determination, it is not required to obtain a permit, comply with an order or be subject to the offence provisions or other enforcement provisions of the ESA and its regulations".
This followed on Endangered Species Act POA convictions against the municipality for endangering rare butterfly habit:[5] ... She rejected the respondent’s argument that the issues raised by the Municipality were entirely hypothetical, speculative, or academic, but found that the live issues raised in the application could and should be adjudicated in the Ontario Court of Justice in the context of the ESA contraventions against the Municipality.
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[10] .... The Municipality had not attempted to obtain a permit from the Ministry of Environment, Conservation and Parks (the “Ministry”) as contemplated under the ESA. Through a permit, it could have sought to maintain the highways, as required under the Municipal Act, notwithstanding the protection given to the butterflies as an endangered species. According to the respondent’s expert, who had assisted other municipalities in obtaining ESA permits, a permit could be obtained within a week (although she admitted it could take much longer) and the Municipality could apply for a multi-year permit covering various activities. The expert also testified that an ESA permit had been granted to another municipality for roadwork affecting the mottled duskywing butterfly (albeit in different circumstances), and that she knew of no case where a permit has been refused. ....
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[12] .... She noted that, under an ESA regulation, a party may be exempted from the permit process if there is an emergency that poses an imminent risk to health and safety: General, O. Reg. 242/08, s. 8(1).
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(2) The application judge did not err in finding that the Municipality was impermissibly attempting to circumvent the Ontario Court of Justice’s authority
[19] The second ground concerns the application judge’s finding that, by bringing the [SS: declaration] application, the Municipality was attempting to circumvent a quasi-criminal proceeding by obtaining rulings on issues before the Ontario Court of Justice in the ESA prosecution. The Municipality contends that this conclusion was unfounded because a determination by the Ontario Court of Justice on the ESA charges will not address all the interpretive questions it raises in the application; in particular, it will not rule on what is “reasonable” under the Municipal Act. The ESA charges could even be stayed or dismissed on bases unconnected to the conflicting statutory schemes.
[20] We do not agree that the application judge erred. She acknowledged that the prosecution will not address all conflicts that the Municipality alleges could arise from its concurrent obligations under the Municipal Act and the ESA. As she noted, however, the only live, non-hypothetical dispute between the parties involves whether the Municipality contravened the ESA as charged. In defending to the ESA charges, the Municipality may rely on the same arguments it seeks to raise in the application regarding the appropriate interpretation of the ESA, based on a full evidentiary record not before the application judge. We agree with the application judge that “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 [the Ontario Court of Justice] where the true dispute lies.” . Ontario (Natural Resources and Forestry) v. Town of South Bruce Peninsula
In Ontario (Natural Resources and Forestry) v. Town of South Bruce Peninsula (Ont CA, 2022) the Court of Appeal (Pardu writing, two other judges concurring) considers the Endangered Species Act:(1) Interpretation of s. 10(1) of the Act
[24] I begin my analysis of the interpretation of s. 10(1) of the Act with the preamble to the legislation, which expressly sets out the goals the legislator hopes to achieve and the problems the legislation is designed to prevent:Biological diversity is among the great treasures of our planet. It has ecological, social, economic, cultural and intrinsic value. Biological diversity makes many essential contributions to human life, including foods, clothing and medicines, and is an important part of sustainable social and economic development.
Unfortunately, throughout the world, species of animals, plants and other organisms are being lost forever at an alarming rate. The loss of these species is most often due to human activities, especially activities that damage the habitats of these species. Global action is required.
The United Nations Convention on Biological Diversity takes note of the precautionary principle, which, as described in the Convention, states that, where there is a threat of significant reduction or loss of biological diversity, lack of full scientific certainty should not be used as a reason for postponing measures to avoid or minimize such a threat.
In Ontario, our native species are a vital component of our precious natural heritage. 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. The present generation of Ontarians should protect species at risk for future generations. [25] From this preamble I draw the following:a. One of the goals of the legislation is to prevent the loss of species caused by human activities which damage the habitat of the species.
b. Measures to prevent significant reduction or loss of biological diversity should be undertaken even where full scientific certainty is not present.
c. The goal is to prevent damage to avoid or minimize threats to endangered species.
d. Species at risk should be protected, with appropriate regard to social, economic and cultural considerations. [26] “Habitat” is defined in s. 2(1) to mean “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”.
[27] Section 10(1) prohibits the damage or destruction of the habitat of a species that is listed on the Species at Risk in Ontario List as an endangered or threatened species. It is common ground that the Piping Plover is such an endangered species.
[28] Section 17 of the Act provides that the Minister may issue a permit authorizing a person to engage in activity that would be otherwise prohibited by s. 10. At the time the charges in this matter were laid, the Minister could 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) 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,
(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 individual members of 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) the Minister has consulted with a person who is considered by the Minister to be an expert on the possible effects of the activity on the species and to be independent of the person who would be authorized by the permit to engage in the activity,
(iii) the person consulted under subclause (ii) has submitted a written report to the Minister on the possible effects of the activity on the species, including the person’s opinion on whether the activity will jeopardize the survival or recovery of the species in Ontario,
(iv) the Minister is of the opinion that the activity will not jeopardize the survival or recovery of the species in Ontario,
(v) 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,
(vi) the Minister is of the opinion that reasonable steps to minimize adverse effects on individual members of the species are required by conditions of the permit […]. [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.
[30] The Act should be given a generous interpretation in light of its remedial nature and its objective of environmental protection. As noted by the Supreme Court in Castonguay Blasting Ltd. v. Ontario (Environment), 2013 SCC 52, [2013] 3 S.C.R. 323, at para. 9:[E]nvironmental protection is a complex subject matter — the environment itself and the wide range of activities which might harm it are not easily conducive to precise codification. As a result, environmental legislation embraces an expansive approach to ensure that it can adequately respond to a wide variety of environmentally harmful scenarios, including ones which might not have been foreseen by the drafters of the legislation. Because the legislature is pursuing the objective of environmental protection, its intended reach is wide and deep.
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