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Summary

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Administrative law — Judicial review — Standard of review — Environmental Law — Wildlife — Regulations — Province making regulation exempting certain activities from compliance with Endangered Species Act — Environmental groups challenging regulation as ultra vires, alleging Minister did not satisfy statutory condition precedent and/or regulation inconsistent with legislative purpose of Act — Whether statutory decisions serving as conditions precedent to making subordinate legislation be reviewed using correctness or reasonableness standard of review analysis, or other standard — Whether courts should assess regulation against enabling statute’s purpose or against statutory scheme — Endangered Species Act, 2007, S.O. 2007, c. 6.

The Endangered Species Act, 2007, S.O. 2007, c. 6, prohibits the killing or harming of species at risk in Ontario, or any damage to their habitats. The Act also authorizes making regulations to create exemptions to these prohibitions. In 2013, the Minister of Natural Resources and Forestry approved a recommended regulation – O. Reg. 176/13 – containing exemptions for certain activities from the Act’s prohibitions. Two environmental groups brought a challenge to the Regulation, arguing that it was ultra vires because the Minister had failed to satisfy a statutory condition precedent – namely, to consider whether the Regulation was not likely to harm or jeopardize the survival each listed species – and/or because the Regulation was inconsistent with the Act’s legislative purpose.

The Divisional Court of Ontario dismissed the environmental groups’ application for judicial review, finding that the statutory conditions precedent of the Act had been met in this case, and that the Minister had properly discharged his duty. Furthermore, the Act accomplishes the goal of protecting species at risk while also accounting for other social, economic and cultural considerations; this suggests a balance between competing interests, and suggests that harm to certain species may be acceptable in light of certain social or economic benefits. As such, the Regulation was not inconsistent with the stated purpose of the Act.

The Court of Appeal dismissed the environmental groups’ appeal, finding no error in the analysis or conclusions of the Divisional Court. The Minister in this case properly considered the effect of the Regulation on each affected species at risk, and thus complied with the necessary statutory condition precedent. In addition, the proper approach to assessing a regulation’s consistency with its enabling statute’s legislative purpose necessarily involves an examination of the broader legislative scheme, and a consideration of the statute’s policy and objects when considered as a whole. In this case, the fundamental purpose of the Act was to protect species at risk; however, the Act promotes this object through a scheme that necessarily has regard to human activities with economic, social and cultural elements. As such, the Regulation’s partial focus on social and economic concerns is not inconsistent with the purposes, objects and scheme of the Act.

Lower Court Rulings