In Ontario (Natural Resources and Forestry) v. South Bruce Peninsula (Town), 2022 ONCA 315, the Court of Appeal for Ontario provided guidance on the important issue of what constitutes damage to a species’ habitat under Ontario’s Endangered Species Act (“ESA”), concluding that ‘damage’ ought to be interpreted generously in alignment with the legislative goals of the ESA.
Background
At trial, the Town of South Bruce Peninsula (the “Town”) was convicted of two counts under s.10(1) of the ESA, of damaging the habitat of the Piping Plover, a migratory shorebird designated as endangered under the ESA. The ‘damage’ in question related to the Town’s decision to mechanically rake and bulldoze portions of Sauble Beach, the seasonal nesting home of the Piping Plover. This “maintenance” resulted in the loss of vegetation and foredunes, thereby removing features used for nesting, foraging, shelter, and camouflage. The ESA sets out an absolute prohibition on damaging endangered species’ habitats, but allows the Minister of Environment to permit some intrusion where the public interest so requires. Specifically, s.10(1) of the ESA states:
No person shall damage or destroy the habitat of,
(a) a species that is listed on the Species at Risk in Ontario List as an endangered or threatened species; or
(b) a species that is listed on the Species at Risk in Ontario List as an extirpated species, if the species is prescribed by the regulations for the purpose of this clause.
The trial justice of the peace began his interpretation of ‘damage’ by referencing the Oxford Dictionary definition: “to do something – [including] physical harm caused – to something that makes it less attractive, useful or valuable.” He found that this could encompass damage that is minor or temporary in nature. The trial justice concluded that the Town’s actions constituted damage contrary to s.10(1), finding that “the raking would prevent the Piping Plover from undergoing courtship, building a nest, and mating or laying eggs, and would leave them vulnerable to reduced food supply, predators and extreme weather.” The trial justice rejected the Town’s argument that the statutory defence of due diligence applied to its decision to rake the beach, noting that the decision exceeded the Ministry of Natural Resources’ (MNR) approval and violated the Town’s own bylaw.
On appeal, the Ontario Court of Justice judge upheld the convictions. The appeal judge rejected the Town’s argument that a habitat is only “damaged” if there is a demonstrated negative impact on the ability of the species to carry on its life processes. In this regard, the appeal judge found that the definition of ‘damage’ endorsed by the trial judge, namely to cause something to be “less attractive, useful or valuable,” was appropriate and should be understood from the perspective of the species at risk. The appeal judge observed that the expert evidence showed that a flattened beach and the removal of foredunes and natural vegetation would impact the Piping Plover’s ability to nest, forage, camouflage, and find shelter. The appeal judge concluded that the trial justice made no errors in law, and his findings of fact were supported by the record and entitled to deference.
Court of Appeal upholds interpretation of ‘damage’ under ESA
The Town appealed the decision of the appeal judge to the Court of Appeal for Ontario, arguing in part that the courts below erred in adopting a dictionary definition of ‘damage’ and that the term ‘damage’ in s.10(1) should be more narrowly defined. The Town submitted that the question is not whether the Piping Plover sustained damage, but rather whether its habitat sustained damage. In this respect, the Town argued that ‘damage’ is not a defined term and that a court must undertake a “species meaningful” interpretation of habitat. It further submitted that the determination of whether there was damage to habitat must be tied to the species and that the evidence at trial did not link the actions of the Town to damaging the Piping Plover habitat.
Justice Pardu of the Court of Appeal began her analysis by acknowledging that s.10(1) of the ESA 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. Further, she referred to the goals of the legislation set out in the preamble, namely to prevent the “loss of species caused by human activities which damage the habitat of the species” and to “prevent damage to avoid or minimize threats to endangered species.” Justice Pardu also reiterated the statement in the Supreme Court of Canada decision Castonguay Blasting Ltd. v. Ontario (Environment), 2013 SCC 52 at para. 9 regarding the need to generously interpret the ESA in light of its remedial nature and its objective of environmental protection.
Justice Pardu found that the trial justice properly considered the text of the legislative prohibition and adopted a dictionary definition of ‘damage’ as to do something physical that causes a feature to be less attractive, useful, or valuable. The trial justice considered the changes the Town made to the beach from the point of view of the needs of the Piping Plover for an undamaged habitat, which was precisely the task necessitated by the charges under s. 10(1). As such, there was no basis to conclude that the trial justice’s ultimate findings on questions of mixed fact and law were tainted by palpable and overriding error.
Justice Pardu further noted that the application of the de minimus defence to charges under the ESA must be undertaken with caution “because of the potential cumulative effect of small damage over an extended period of time.” In any event, Justice Pardu found that the work done by the Town went well beyond that performed in the past, in consultation with the MNR, and cannot be characterized as a minimal interference with the Piping Plover habitat.
Potential Implications
This decision by the Court of Appeal for Ontario provides clarity to public and private landowners and industries that are governed by environmental legislation in Ontario. It is clear that courts are to generously interpret prohibitions in environmental legislation, given its remedial nature. In this case, the Court of Appeal upheld the generous interpretation of ‘damage’ as doing something physical that causes a feature to be less attractive, useful, or valuable, including minor or temporary damage. Furthermore, when such ‘minor damage’ is found to exist, courts will be cautious in applying any de minimus defence, as minor damage can build over time in an environmental context. An analogy to the Fisheries Act was drawn in the appeal decision, but this interpretation may be extended to other provincial environmental legislation with prohibitions, such as the Environmental Protection Act and the Ontario Water Resources Act.
