Author Archives: jurisblogger

Endangering the Endangered Species Act, 2007

“[T]hroughout the world, species of animals, plants and other organisms are being lost forever at an alarming rate. The loss of these species is most often due to human activities, especially activities that damage the habitats of these species. Global action is required.”[1]

These words are part of the preamble of Endangered Species Act, 2007 (ESA) of Ontario. The ESA was enacted to replace an older version of the legislation protecting endangered species, which provided insufficient protection.[2] However, legislation does not necessarily result in actions. As noted by the Federal Court: “administrative laissez-faire contributes, along with uncontrolled—and irresponsible—human activity, to the destruction of natural habitats and the loss of wildlife species.”[3] Sometimes administrative laissez-faire is not even the biggest problem; sometimes the government actively tries to undermine legislative protection. It is precisely what happened in Wildlands League v Lieutenant Governor in Council.[4] In this case, the government of Ontario granted sweeping exemptions to entire industrial sectors through Ontario Regulation 176/13 (the Regulation), rendering the ESA protection meaningless for countless endangered species. The Regulation was challenged by the Wildlands League and the Federation of Ontario Naturalists. They sadly lost at the Ontario Divisional Court (the decision is being appealed). In this post I will analysed this surprising decision and its flaws. I will look specifically at the two main arguments for the invalidation of the Regulation: the pre-condition for the enactment of the Regulation, and its consistency with the ESA.

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It’s Pride Again – How Fares the T in LGBTQ?

It is the time of the year when people get their rainbow flags out and celebrate sexual diversity. This weekend will be pride in Toronto with all the glitter and the shirtless men it entails. There is a lot of debate surrounding the political aspect of pride, or lack thereof, but that’s not what I want to talk about. I don’t mind pride as it is: a giant queer festival (I have issues with it on some level but I will not explore them here). I usually just let myself get carried by the atmosphere and let the politics behind for a time. Nevertheless, I thought it was a good time to see were we, Canada, were on trans issues (legally speaking). Two years ago, I lamented the foreseeable death of Bill C-279 in a post. The bill was revived at the beginning of the current session of Parliament, but sabotaged in committee with a slew of bathroom panic arguments. Now it will likely die (again), only to be brought back if the next government, after the fall election, actually values the lives of trans people. From that point, let’s see what has happened and will happen for trans rights in Canada.

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Precaution, delegation and aquaculture regulation – Morton v DFO Part 2

“I accept the undisputed evidence that there is some risk posed to Fraser River sockeye from diseases on salmon farms, but I cannot make a determination as to the precise level of risk. Therefore, precaution would suggest assuming that the risk is not insignificant.”[1]

This quote could have been taken directly out of the recent Federal Court decision of Morton v Canada (Fisheries and Oceans) since the issues address by that case are closely related to the ones in front of the Cohen Commission of Inquiry (Cohen) 3 years before.[2] In fact Justice Rinnie recognized this context.[3] It seems, however, that the Department of Fisheries and Oceans (DFO) did not head the wise words of Commissioner Cohen and continued to treat some serious salmon disease – specifically piscine reovirus (PRV) and heart and skeletal muscle inflammation (HSMI) disease – carelessly. But ignoring an issue does not make it go away. Thankfully for the vigilance of Ms. Morton, DFO will now have to rethink some of its approach to aquaculture. In Part 1 of this post, I explored the issues of the standard of review, the precautionary principle, and the reasonableness of the aquaculture fish transfer licence conditions. In this Part, I look at the issue of illegal sub-delegation of discretionary powers, especially in this case when discretion was delegated to the industry. I reproduced the background section of Part 1 below for ease of reference.

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Precaution, delegation and aquaculture regulation – Morton v DFO Part 1

If you have ever spent any significant amount of time on the west coast, you know how important and contentious of an issue salmon fishery is. Salmon fishery is part of the culture of many First Nations and coastal communities. It is a considerable industry, both in terms of commercial fisheries and aquaculture. Its future is uncertain as stocks seem to fluctuate beyond the comprehension of the Department of Fisheries and Oceans (DFO). There is no shortage of causes (diseases, pollution, poor management, climate change, etc), but as the Cohen Commission of Inquiry (Cohen) concluded, none is dominant.[1] Among them is the risk caused by diseases brought in the salmons’ ecosystem through aquaculture. This particular risk is plague by a familiar environmental policy issue: scientific uncertainty. However, as Cohen found, this uncertainty does not in fact diminishes the risks.[2] Last week, the Federal Court rendered a decision specifically on this issue in Morton v Canada (Fisheries and Oceans),[3] a decision that provide some much needed follow up on Cohen’s aquaculture conclusions. In part one of this two parts post I’ll look at the question of judicial review of a strongly circumscribed ministerial discretion, and the use of the precautionary principle in reasonableness review. In the second part I’ll look at the question of sub-delegation of regulatory requirements to industries.

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Turtle v Wind: When Environmental Concerns Collide

Environmental litigation often brings in the popular imagination a battle between some big polluting corporations and marginalised people abandoned by the state (the movie Erin Brockovich comes to mind). Those cases do exist, but the majority of environmental law is operationalized by government agencies balancing competing interests, usually economic development with environmental protection. This often results in a compromise: allowing a polluting activity, but with some mitigation measure to limit the environmental effects. But what happens when the two competing interests in front of the executive are environmental protection? This is what the Environmental Review Tribunal of Ontario (ERT) had to deal with in the case Alliance to Protect Prince Edward County v Director, Ministry of the Environment, ultimately largely upheld by the Court of Appeal.[1] This case presents the interesting issue of balancing the need for renewable energy and the impacts such a project can have on the environment, such as the endangered Blanding’s turtle.

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Grève Étudiante Prise Deux : Police et Injonction

J’ai l’impression que la grève étudiante de 2012 qui a évoluée en mouvement populaire généralisé ne s’est terminée qu’hier. Cette impression me vient peut-être du fait qu’aucune solution  permanente n’a été mise de l’avant pour régler les problèmes sous-tendant cette crise. Bien que la grève étudiante présentement en cours n’a pas la même envergure que celle de 2012, elle représente en partie le malaise de la société face aux compressions budgétaires de l’État au nom de l’austérité et du sacro-saint déficit zéro. Les étudiants en grève ne le sont pas parce que le gouvernement à décider d’augmenter les frais de scolarité ou de couper dans le programme de prêts et bourses, mais bien pour protester les politiques néo-libérales du gouvernement Couillard. Cette grève est aussi accompagnée de manifestations populaires et syndicales sur divers sujets reliés au mécontentement de la population face aux politiques gouvernementales telles que les coupes dans les programmes sociaux et le projet d’oléoduc d’Énergie Est.

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