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Municipal - Application of Ontario Law. 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.”
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