Case information

Administrative law — Judicial review — Standard of review — Decision of Minister — Discretion — Compensation policy — Claim for compensation — Emergency order with view to protecting threatened species prohibiting, in particular, construction of infrastructure — Real estate project not carried out because of order — Standard to be applied by appellate court to choice of remedy by trial judge on judicial review of administrative decision — Circumstances in which Parliament’s intention to exclude rules of common law respecting expropriation will be established — Extent to which Minister can adopt non binding policy to make up for absence of regulations — Species at Risk Act, S.C. 2002, c. 29, s. 64.

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

The applicants, 9255 2504 Québec inc., 142550 Canada inc. and Grand Boisé de La Prairie inc., acquired lands in La Prairie, a city located on the South Shore of Montréal, to develop a residential project. That project, called the “Symbiocité project”, consisted in six phases of development schedule to be finished in 2019. However, the lands in question turned out to be the natural habitat of a population of Western Chorus Frogs, classified as a “vulnerable wildlife species” since 2001 pursuant to the Act respecting threatened or vulnerable species, CQLR, c. E 12.01. In 2008, La Prairie obtained a certificate of authorization pursuant to s. 22 of the Environment Quality Act, CQLR, c. Q 2, that authorized the backfilling of wetlands in the area where the applicants’ project was to be developed. In return, certain measures had to be taken to offset the environmental impacts caused by the backfilling. In 2012, a memorandum of understanding was entered into by the applicants and La Prairie with regard to the six phases of the project. The applicants agreed to take the necessary measures to, among other things, ensure compliance with the measures required in return for the granting of the certificate. Further to that memorandum, an environmental advocacy group initiated the process to obtain an emergency order pursuant to the Species at Risk Act, S.C. 2002, c. 29 (SRA) to protect the habitat of the Western Chorus Frog. In the beginning of 2015, the Minister of the Environment (Minister) at the time refused to recommend the making of an emergency order to the Governor in Council. That decision was then set aside by the Federal Court and referred back to the Minister’s office for reconsideration. In December 2015, the new Minister decided to recommend the making of an emergency order to the Governor in Council. That emergency order was made in June 2016 and had the effect of putting an end to the two last phases of the applicants’ project by reason of the conditions that it established. In June 2020, and in parallel with other proceedings brought before the courts, the applicants jointly submitted to the Minister a claim for compensation under s. 64(1) of the SRA in the amount of $22,292,473. On June 29, 2022, the Minister denied the claim for compensation on the ground that the losses suffered did not result from “any extraordinary impact” of the adoption of the order. There was therefore no justification for granting “fair and reasonable” compensation pursuant to s. 64(1) of the SRA. In the absence of regulatory guidelines established by the Governor in Council under s. 64(2) of the SRA, the Minister’s decision was based on his compensation policy and on the assessment report prepared by his department. The Federal Court allowed the application for judicial review filed by the applicants, and the Court of Appeal dismissed the appeal.