Date: 20190314

Docket: T-1190-16

Citation: 2019 FC 315

[UNREVISED CERTIFIED ENGLISH TRANSLATION]

Ottawa, Ontario, March 14, 2019

PRESENT:  The Honourable Mr. Justice Locke

BETWEEN:

HABITATIONS ÎLOT ST-JACQUES INC.

Applicant

and

ATTORNEY GENERAL OF CANADA

Respondent

JUDGMENT AND REASONS

I.  Introduction

[1]  Habitations Îlot St-Jacques Inc. (the applicant) is applying to the Court pursuant to section 18.1 of the Federal Courts Act, RSC 1985, c F-7, for the purpose of setting aside an emergency order issued under the Species at Risk Act, SC 2002, c 29 [SARA]. The applicant submits that this order (the Order) is invalid either because the statutory process under SARA was not properly followed in that the Governor in Council (the Governor) must make regulations that the Governor considers necessary for compensating the owners of lots covered by such an order, or because the Governor’s decision to protect the applicant’s lot by the Order has no reasonable basis.

[2]  For the reasons that follow, I have concluded that this application must be dismissed.

II.  Facts

[3]  The applicant is a company incorporated under the Canada Business Corporations Act, RSC 1985, c C-44, and has been active in the real estate sector since January 28, 2010.

[4]  On October 14, 2010, the applicant became the owner of the vacant lot located in the municipality of La Prairie, Quebec, known and designated as lot 2 267 872 in the cadastre of Quebec (the Lot) for the sum of $451,500. The Lot represents an area of approximately 738,000 square feet.

[5]  Also in 2010, the applicant carried out an environmental assessment of the Lot. This assessment concluded that no Western Chorus Frogs were observed at that location.

[6]  On May 15, 2013, Nature Québec asked the Minister of the Environment and Climate Change (the Minister) to recommend that the Governor make an emergency order under section 80 of SARA because it considered that there was an imminent threat to the Western Chorus Frog metapopulation from Bois de la Commune to La Prairie (the Western Chorus Frog), as a result of deforestation and wetland alteration in the area surrounding the development of a housing project known as the Domaine de la Nature.

[7]  On March 27, 2014, the Minister decided not to recommend the making of an emergency order because, in her opinion, the Western Chorus Frog was not facing an imminent threat to its survival or recovery.

[8]  On April 24, 2014, an application for judicial review was filed against the Minister’s decision. The Centre québécois du droit de l’environnement and Nature Québec asked, among other things, for the Minister’s decision to be set aside.

[9]  On June 22, 2015, Mr. Justice Luc Martineau found that the Minister’s decision was unreasonable and allowed the application for judicial review (Centre québécois du droit de l’environnement v Canada (Environment), 2015 FC 773). As a result, Martineau J. ordered the Minister to re-examine the status of the Western Chorus Frog metapopulation from Bois de la Commune to La Prairie.

[10]  Following the decision of Martineau J., the Minister implemented a strategy to gather information on the Western Chorus Frog across Canada, to allow her to determine whether the Western Chorus Frog faced an imminent threat, and if appropriate, to recommend that the Governor make an emergency order.

[11]  In July 2015, the Minister sent official requests for information to Quebec’s Ministère des Forêts, de la Faune et des Parcs and the Ministère du Développement durable, de l’Environnement et de la Lutte aux changements climatiques, as well as to other stakeholders, such as municipalities, non-profit regional environmental organizations, experts and some local developers. In total, more than fifty requests for information were sent.

[12]  The same month, three working groups were formed within Environment and Climate Change Canada (the Department) in relation to the application for an emergency order. Their mandate was to prepare assessments of (i) the scientific status of the Western Chorus Frog in Canada; (ii) the level of protection for individuals of that species, and the species’ residence and habitat; and (iii) the imminent threats to the survival and recovery of the Western Chorus Frog in Canada. Each of those three groups produced a report on its assessment.

[13]  Following this review, the Minister concluded on December 4, 2015, that the species was facing an imminent threat to its recovery. In light of this finding, the Minister was required by subsection 80(2) of SARA to recommend to the Governor that an emergency order be made to protect the species, which she did.

[14]  Following this recommendation, the Department gathered information to establish the potential scope of the recommended emergency order and the prohibited activities to be included. This research was conducted between early December 2015 and March 31, 2016. During this period, the Department held meetings with various stakeholders. In total, more than 30 organizations were reached through more than 80 representatives.

[15]  On March 24, 2016, the Department sent an invitation by courier or email to the owners identified by the municipality of La Prairie because they were potentially covered by the order recommended by the Minister, in addition to the stakeholders already involved. The invitation was for a meeting on March 31, 2016, to discuss the order. The applicant received an invitation to attend the meeting, but none of its representatives participated or submitted written comments.

[16]  On June 22, 2016, the Emergency Order for the Protection of the Western Chorus Frog (Great Lakes / St. Lawrence – Canadian Shield Population) was announced, and on June 30, 2016, it was registered as SOR/2016-208 (the original order).

[17]  The original order was to come into force 30 days after its publication. However, the day after the June 22 announcement, department officials found that activities that were damaging the critical habitat of the Western Chorus Frog were under way in some of the lots covered by the order. To put an end to those activities, a new order was published to accelerate its coming into force.

[18]  On July 8, 2016, a second emergency order (the Order in issue in this application) was made by the Governor (SOR/2016-211), having the same purpose and scope as the first, but providing for its coming into force on the same day. This Order replaced the original order.

[19]  The only measure challenged by the applicant is the emergency Order made by the Governor on July 8, 2016.

III.  Impugned decision

[20]  In the first place, the Order precisely defines its area of application.

[21]  The Order includes a “Regulatory Impact Analysis Statement” (RIAS) that refers to the RIAS of the original order, which outlines the context of its adoption and specifies the reasons for its adoption, namely:

The most serious threat to the Western Chorus Frog . . . in Canada is habitat destruction or alteration. Habitat destruction in suburban areas of southwestern Quebec is so rapid that, absent taking action to protect the species, populations there may be extirpated from their known habitats in the province by 2030.

. . .

The Minister’s conclusion was informed by a scientific assessment based on the best available information, which determined that the planned future phases of residential development in La Prairie, as currently proposed, would result in the loss of connectivity among remaining populations in the La Prairie metapopulation and the direct loss of habitat, including breeding ponds.  The areas remaining after such development are therefore unlikely to sustain the viability of the La Prairie metapopulation in the long-term.

. . .

The order is designed to directly address the threat to the La Prairie of the Western Chorus Frog metapopulation. . . . It identifies habitat that is necessary for the recovery of the species (i.e. the area to which the Order applies). This area is approximately 2 km² of undeveloped and partially developed land in the municipalities of La Prairie, Candiac, and Saint-Philippe, suburbs outside of Montréal, Quebec, a large portion of which is currently a conservation park.

[22]  The Order then establishes the following prohibitions:

1. Remove, compact or plow the soil;

2. Remove, prune, damage, destroy or introduce any vegetation, such as a tree, shrub or plant;

3. Drain or flood the ground;

4. Alter surface water in any manner, including by altering its flow rate, its volume or the direction of its flow;

5. Install or construct, or perform any maintenance work on, any infrastructure;

6. Operate a motor vehicle, an all-terrain vehicle or a snowmobile anywhere other than on a road or paved path;

7. Install or construct any structure or barrier that impedes the circulation, dispersal or migration of the Western Chorus Frog;

8. Deposit, discharge, dump or immerse any material or substance, including snow, gravel, sand, soil, construction material, greywater or swimming pool water; and

9. use or apply a pest control product as defined in section 2 of the Pest Control Products Act or a fertilizer as defined in section 2 of the Fertilizers Act.

[23]  The Order also provides that any contravention of these prohibitions is an offence for the purposes of section 97 of SARA, which states that every person commits an offence who, among other things, “contravenes a prescribed provision of . . .  an emergency order”.

[24]  The RIAS of the original order, which is referred to in the Order, sets out the alternative measures that were considered by the Department and other levels of government to manage the status of the Western Chorus Frog, and summarizes the cost-benefit analysis conducted to assess the quantitative and qualitative incremental impacts of the Order from a societal perspective. Costs considered in this analysis include the change in land value, lost productivity of oversized infrastructure investments, costs associated with the prohibition of various activities in the area of interest, other impacts on household welfare, and the cost to the Government of Canada.

[25]  The RIAS also summarizes the consultation undertaken by the Department, as follows:

Further to the determination by the Minister of the Environment that, in her opinion, the Western Chorus Frog . . . is facing an imminent threat to its recovery, the Department conducted targeted consultations with key stakeholders between December 2015 and March 2016. In this time period, departmental officials held 22 stakeholder meetings, which were attended by 80 representatives from 33 organizations/groups. Participating organizations included: Quebec provincial government ministries; municipalities in the Montérégie region; land owners and developers; environmental non-governmental organizations; and utility companies. In order to collect information and comments on anticipated impacts of regulatory action by the Government of Canada, stakeholders received a map of the area showing zones that could be included in an Order, descriptions of what these zones represent, and a list of activities that could be prohibited under an Order.

[26]  The RIAS also summarizes the comments of the stakeholders that participated in the consultation, and the results of the consultation.

[27]  Finally, the RIAS sets out the factors that justify the making of the Order and describes the stages of its implementation.

IV.  Issues

[28]  The issues are the following:

1. What is the appropriate standard of review?

2. Were the conditions for the making of an order by the Governor in Council under section 80 of SARA fulfilled?

3. Is there a reasonable basis for including the Lot in the geographic scope of the Order?

V.  Legislation

[29]  SARA sections 64 and 80 read as follows:

VI.  Analysis

A.  What is the appropriate standard of review?

[30]  The applicant submits that the decision of the Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir] applies and that the applicable standard of review in this case is one of reasonableness. In support of its argument that this standard applies even in the case of a Governor’s order, the applicant refers to paragraph 28 of Dunsmuir:

By virtue of the rule of law principle, all exercises of public authority must find their source in law. All decision-making powers have legal limits, derived from the enabling statute itself, the common or civil law or the Constitution. Judicial review is the means by which the courts supervise those who exercise statutory powers, to ensure that they do not overstep their legal authority. The function of judicial review is therefore to ensure the legality, the reasonableness and the fairness of the administrative process and its outcomes.

[31]  The Federal Court of Appeal recognized this excerpt from Dunsmuir in its decision in Globalive Wireless Management Corp v Public Mobile Inc, 2011 FCA 194 at para 30.

[32]  The applicant also notes several examples in the case law of Governor’s decisions that were overturned in judicial review: Wagner v Canada (Environment and Climate Change), 2017 FC 560; Oberlander v Canada (Attorney General), 2004 FCA 213; Athabasca Chipewyan First Nation v British Columbia (Hydro and Power Authority), 2001 FCA 62.

[33]  In addition, the applicant refers to paragraph 40 of Council of the Innu of Ekuanitshit v Canada (Attorney General), 2014 FCA 189, for the following list of situations where the Court may intervene in a decision of the Governor:

1. The statutory process provided by the applicable law was not properly followed;

2. The decision was made without regard for the purpose of the applicable law; or

3. The decision has no reasonable basis in fact, which is tantamount to an absence of good faith.

[34]  For its part, the respondent, the Attorney General of Canada, submits that the standards of review as described in Dunsmuir do not apply in the case of a legislative decision by the Governor: Katz Group Canada Inc v Ontario (Health and Long-Term Care), 2013 SCC 64 at paras 24–28 [Katz]. In Katz at paragraph 24, the Supreme Court notes that “[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”. The Supreme Court also notes that regulations are presumed to be valid (para 25), and that the inquiry does not involve assessing the policy merits of the regulations to determine whether they are “necessary, wise, or effective in practice” (para 27).

[35]  The respondent refers to the definition of “regulations” in the Interpretation Act, RSC 1985, c I-21, to establish that the Order constitutes regulations, and argues that Katz should apply in this case.

[36]  The respondent also refers to Reference re Manitoba Language Rights, [1992] 1 S.C.R. 212 [Language Rights], to confirm that certain Governor’s orders are legislative in nature while others are administrative. In Language Rights, the Supreme Court held that for a text to be of a legislative nature, it must (i) embody a rule of conduct; (ii) have the force of law; and (iii) apply to an indeterminate number of persons.

[37]  The respondent submits that the Order satisfies these three criteria.

[38]  In my view, it is not at all clear that Katz applies in this case to displace the application of the standard of reasonableness as described in Dunsmuir. Admittedly, I accept that the Order is indicative of a legislative nature since it establishes a rule of conduct that has the force of law and applies to an indeterminate number of persons. However, the Order is not entirely analogous to the comprehensive regulatory regime described in Katz.

[39]  That said, the Order is also not entirely analogous to the texts at issue in the judgments cited by the applicant. In those cases, the Governor’s decisions likely applied to a limited number of persons, and thus did not meet all of the requirements in Language Rights noted above to indicate a decision of a legislative nature. In short, none of the decisions cited squarely apply to the facts of this application.

[40]  In the end, there may not be a big difference between the two different tests proposed by the parties in this case. Indeed, Katz recognizes that it is relevant to consider whether the regulations in question are based on considerations that are irrelevant, extraneous or completely unrelated to the statutory purpose. These factors are similar to those considered in assessing the reasonableness of a decision using the Dunsmuir approach.

[41]  In addition, I do not find it necessary to determine whether the standard of review as established in Dunsmuir applies in this case or whether the Court should apply the Katz test instead. Even if the applicant were right in arguing that the reasonableness standard applies in this case, I am of the view that the Order is reasonable. In short, regardless of the standard applied, I would arrive at the same outcome.

B.  Were the conditions for the making of an order by the Governor in Council under section 80 of SARA fulfilled?

[42]  The applicant notes that subsection 64(2) of SARA requires the Governor to put in place a system to allow those who suffer losses as a result of an emergency order (among other reasons) to claim compensation. Despite the fact that this obligation has existed since SARA came into force in 2002, such a system has never been set up.

[43]  The applicant submits that the Order had a major impact on the value of the Lot (a fact that is not disputed), and that it should have had access to the compensation plan provided for in subsection 64(2) of the SARA. The entry into force of the Order in the absence of such a system amounts to a disguised expropriation, according to the applicant. It refers to two decisions of the Supreme Court of Canada in which a disguised expropriation without compensation was reversed: Manitoba Fisheries Ltd v The Queen, [1979] 1 S.C.R. 101; The Queen (British Columbia) v Tener, [1985] 1 S.C.R. 533.

[44]  The applicant adds that more than two and a half years have passed since the Order came into force, so the respondent cannot reasonably argue that the urgency of the Order can excuse the failure to put in place a compensation plan.

[45]  The respondent argues that the Order is legislative in nature and that therefore the Court must limit itself to considering whether the Order is inconsistent with the objective of SARA or the scope of the SARA mandate.

[46]  The applicant does not claim any inconsistency with the objective of SARA, so the dispute turns on whether the prerequisites for the Order have been met. The respondent submits that there is only one prerequisite under section 80 of SARA, the “recommendation of the competent minister”. There is no doubt that this condition has been satisfied.

[47]  The respondent argues that the Governor’s decision to make an emergency order under section 80 of SARA is distinct from the power to establish a compensation plan under subsection 64(2), and that consequently the validity of the Order does not depend on the presence of such a plan.

[48]  The respondent also argues that disguised expropriation is irrelevant to the assessment of the validity of the Order, since this common law concept was excluded by section 64 of SARA.

[49]  I agree with the applicant that subsection 64(2) requires a compensation plan. Although I am not required to reach a definitive conclusion on this issue, I am also of the view that the absence of such a plan appears to be in contravention of SARA. Moreover, in my view, there is some inconsistency between the failure to set up a compensation plan and the respondent’s argument that the plan rules out the idea of a disguised expropriation. It is difficult to understand how a plan that does not exist can have this effect.

[50]  However, I accept the respondent’s argument that the mere fact that the Governor failed to set up a compensation plan does not invalidate the Order. The purpose of the compensation plan is to give people who suffer losses as a result of an emergency order a mechanism to protect themselves from such losses. The objective of the Order is to protect the habitat of the Western Chorus Frog. This objective is independent of that of the compensation plan. It would be illogical for the absence of a plan that has nothing to do with the reasons for making an order to have the effect of invalidating it. The habitat of the Western Chorus Frog should not have to suffer as a result of the Governor’s omission.

[51]  Furthermore, SARA does not suggest that the creation of a compensation plan is a prerequisite for a valid emergency order.

[52]  Although I do not definitively conclude that the failure to implement a compensation plan contravenes SARA, I am of the view that this failing should be rectified by the introduction of such a plan.

[53]  I agree with the following reasoning by the Honourable Mr. Justice René LeBlanc in Groupe Maison Candiac Inc. v Canada (Attorney General), 2018 FC 643 at paras 204–207, another decision concerning the validity of the same Order:

[204] Like the Attorney General, I am of the view that de facto expropriation or disguised expropriation, which are part of common law and civil law, are of no hope to Groupe Candiac in this case. In other words, the question of the validity of the Emergency Order does not pass with these concepts because Parliament has already provided, in clear terms, a mechanism to compensate for losses suffered following the application of an emergency order and defines the scope of any “extraordinary impact” of such an order.

[205] This is not a regulation justifying the application of the rule of construction, which aims to protect a land owner from dispossession from his or her lands without compensation. There is no silence to fill in the Act in this regard, Parliament’s intent has been clearly expressed in section 64 of the Act.

[206] But what about the absence of regulations pertaining to the Minister’s power to pay compensation in relation to the application of an emergency order. Does it prevent the exercise of this power, as Groupe Candiac claims and, in so doing, the application of the concepts of de facto expropriation and disguised expropriation. I do not believe so.

[207] It is well established that an administrative decision-maker cannot invoke the absence of a regulation to not act when this inaction is equivalent to stripping a law or countering its application. We want to avoid creating a legal vacuum, thereby giving rise to an abuse of power by conferring to the regulatory authority [TRANSLATION] “a dimension that allows the Administration to indefinitely strip the legislature’s express will” (Patrice Garant, Droit Administratif, 7th Ed., Montreal, Yvon Blais, 2017 [Garant], at pages 215-216). The principles only apply to the exercise of regulatory power, be it facultative or imperative, like in this case (Garant, at page 215). They are particularly useful in the absence of a regulation, if it was interpreted as having prevented the application of the legislation, or depriving the offender of a benefit conferred by it (Irving Oil Ltd. et al. v. Provincial Secretary of New Brunswick, [1980] 1 SCR 787, at page 795).

[54]  In my view, the fact that the purpose of section 80 of SARA is to remedy an emergency situation is another reason for not requiring the adoption of a compensation plan to be a prerequisite for the making of a valid emergency order.

[55]  In this case, there is no evidence that the respondent failed to adopt such a plan because of the urgent nature of the situation. However, as stated above, such evidence is not necessary since the validity of the Order does not depend on the adoption of a compensation plan.

C.  Is there a reasonable basis for including the Lot in the geographic scope of the Order?

[56]  The applicant’s argument on this issue is twofold. First, the applicant argues that the consultations conducted prior to the coming into force of the Order were insufficient. Next, the applicant submits that there was no basis for extending the area protected by the Order to include its Lot.

[57]  The sufficiency of the consultations is of limited relevance in this case because the applicant does not allege that the Governor breached his duty of procedural fairness. Rather, the consultations held between December 2015 and March 2016, and which extended the scope of the Order, took place after the Minister issued a recommendation as to the area within which there was an imminent threat to the survival of the Western Chorus Frog.

[58]  In my view, the argument regarding the insufficiency of the consultations is in fact closely related to the applicant’s second argument that there was no basis for extending the area protected by the Order to include the Lot. The applicant submits that the recommendation of the Minister concerned Bois de la Commune, and that the Lot is about one kilometer away from Bois de la Commune. The applicant refers to an environmental assessment of the Lot in 2010, which concluded there were no Western Chorus Frog on the Lot, and to other documents that describe the boundaries of Bois de la Commune.

[59]  The respondent maintains that the Order is legislative in nature and that the Court therefore does not have the jurisdiction to determine whether it is reasonable. The respondent also submits that even if the Court could assess the reasonableness of the Order, the Governor was not obliged to limit the scope of the Order to the area identified in the Minister’s recommendation. The Governor had the power to enforce the Order wherever it was needed to counter the imminent threat to the survival of the Western Chorus Frog.

[60]  In addition, the respondent refers to the evidence that identifies the presence of Western Chorus Frogs within a distance of 300 m from the Lot and that therefore justifies the Order covering the Lot. This evidence is more recent than the 2010 report referred to by the applicant.

[61]  On the issue of consultations, the respondent notes that subsection 80(3) of SARA establishes a single duty to consult, which is the duty to consult every other competent minister. The respondent notes that, in addition, this obligation rests solely with the Minister, not the Governor, and that the applicant has not called the Minister’s recommendation into question.

[62]  I accept that the applicant does not argue that the Order is invalid because of a lack of procedural fairness.

[63]  In my opinion, even if the Order is legislative in nature, it is relevant to consider whether there was a reasonable basis for extending the scope of the Order to include the Lot. Even if I limit myself to the criteria enumerated in Katz, it is difficult to conclude that an order that applies to an area that extends beyond the space required to protect the Western Chorus Frog could meet the objective of SARA. I must therefore determine whether there was a reasonable basis for extending the scope of the Order to include the Lot.

[64]  I am satisfied that the area of application of the Order is not without reasonable basis. I accept the evidence of Mark Dionne in paragraphs 33 to 43 and 52 of his affidavit dated September 23, 2016, as well as the maps and other documents he cites. The information included in those documents is sufficient to confirm the presence of a suitable habitat for Western Chorus Frogs, as well as the presence of the Western Chorus Frog within a radius of less than 300 m of the Lot.

VII.  Conclusion

[65]  For the above-mentioned reasons, the application for judicial review is dismissed.

[66]  In addition to seeking the dismissal of this application, the respondent requests that the Minister be removed from the style of cause. Given that the applicant does not object, I grant this request.
JUDGMENT in T-1190-16

THE COURT’S JUDGMENT is that:

1. The application for judicial review is dismissed with costs.

2. The style of cause is amended by removing the Minister of the Environment with immediate effect.

“George R. Locke”

Certified true translation

This 29th day of April 2019.

Johanna Kratz, Translator
FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:	T-1190-16
STYLE OF CAUSE:	HABITATIONS ÎLOT ST-JACQUES INC. v ATTORNEY GENERAL OF CANADA
PLACE OF HEARING:	MONTRÉAL, QUEBEC
DATE OF HEARING:	FEBRUARY 5, 2019
JUDGMENT AND REASONS:	LOCKE J.
DATED:	MARCH 14, 2019

APPEARANCES:

Alain Brophy	For The Applicant
Andréane Joanette-Laflamme Michelle Kellam	FOR THE RESPONDENT

SOLICITORS OF RECORD:

Deveau Gagné Lefebvre Tremblay et Associés sencrl Attorneys Laval, Quebec	For The Applicant
Attorney General of Canada Montréal, Quebec	FOR THE RESPONDENT