9255-2504 Québec Inc. v. Canada

9255-2504 Québec Inc. v. Canada
Court (s) Database
Federal Court Decisions
Date
2020-01-30
Neutral citation
2020 FC 161
File numbers
T-495-17
Decision Content
Date: 20200130
Docket: T-495-17
Citation: 2020 FC 161
[UNREVISED CERTIFIED ENGLISH TRANSLATION]
Ottawa, Ontario, January 30, 2020
PRESENT: The Honourable Mr. Justice LeBlanc
BETWEEN:
9255-2504 QUÉBEC INC.
AND
142550 CANADA INC.
AND
GRAND BOISÉ DE LA PRAIRIE INC.
Plaintiffs
and
HER MAJESTY THE QUEEN
Defendant
JUDGMENT AND REASONS
Table of Contents
I. INTRODUCTION 2
II. GENERAL BACKGROUND 4
III. EVIDENCE ADDUCED AT TRIAL 14
A. Mr. Quint’s testimony 15
B. Mr. Dionne’s testimony 22
C. Ms. Couture’s testimony 26
D. Mr. Branchaud’s testimony 31
E. Witnesses from Fisheries and Oceans Canada 36
F. Ms. Bouthillier’s testimony 38
IV. SECTIONS 80 AND 64 OF THE ACT 41
V. DEFENDANTS’ DESIGNATION 43
VI. ISSUES 46
VII. ANALYSIS 47
A. Is the federal Crown’s extracontractual civil liability engaged in this case? 47
(1) Plaintiffs’ position 47
(2) Applicable general principles 49
(3) Absence of regulations implementing compensation plan established by Act not engaging, in this case, Crown’s extracontractual civil liability 54
(4) Minister’s decision not to pay compensation in absence of regulations also not engaging extracontractual civil liability of federal Crown 72
B. Alternatively, was there a disguised expropriation? 78
I.
INTRODUCTION
[1] The plaintiffs, which are related companies, work in the field of real estate development. Their activities are mainly concentrated on the South Shore of Montréal, particularly in the town of La Prairie, where in 2013 they undertook a real estate development project known as “Projet Symbiocité” (also identified in the evidence at times as the “projet du Domaine de la nature” or “projet du secteur du Bois de la commune”) [Symbiocité Project]. This project had six phases and was scheduled for completion in 2019.
[2] On June 17, 2016, when the first four phases of the Symbiocité Project were for all intents and purposes completed, the Governor in Council, pursuant to its powers under subparagraph 80(4)(c)(ii) of the Species at Risk Act, SC 2002, c 29 [the Act], made an emergency order to protect the Western Chorus Frog, a threatened species under the Act. This order, which was to come into effect on July 17, 2016, was followed by a second order (Emergency Order for the protection of the Western Chorus Frog (Great Lakes / St Lawrence and Canadian Shield population), SOR/2016-211 [Order], Exhibit P-1), made on July 8, 2016, but with immediate effect, since heavy machinery work, not attributed to the plaintiffs, continued to be observed in the area subject to the first order. Except for the effective date, the Order was identical in all respects to the order dated June 17, 2016.
[3] The Governor in Council considered this intervention necessary, being convinced that this species present in Quebec, especially in the Montérégie region, and whose population has declined significantly over the past 50 years in this region, which includes the territory of the town of La Prairie, faces imminent threats to its recovery.
[4] The scope of the Order extended to the land on which phases 5 and 6 of the Symbiocité Project were to be built, and the prohibitions that the Order put in place slowed down the development of said phases since the plaintiffs were therefore no longer permitted, under threat of severe penalties, to carry out the work necessary to complete the last two phases of their project.
[5] As with at least two of their competitors, Groupe Maison Candiac Inc. and Habitations Îlot St-Jacques Inc., whose lands were also affected by the Order, the plaintiffs considered themselves to have been harmed by its coming into force. However, unlike those two competitors, they did not contest the validity of the Order, which has been confirmed by two decisions of this Court (currently before the Federal Court of Appeal) in Groupe Maison Candiac Inc. v Canada (Attorney General), 2018 FC 643 [Groupe Maison Candiac] and Habitations Îlot St-Jacques Inc. v Canada (Attorney General), 2019 FC 315 [Îlot St-Jacques].
[6] Assuming, therefore, for the purposes of this action that the Order is valid, the plaintiffs submit that the defendant has engaged her civil liability by failing to compensate them for the losses they consider to have suffered because the completion of phases 5 and 6 of the Symbiocité Project is now, for all intents and purposes, irreparably compromised by the Order. According to them, this fault allegedly results from the failure of the defendant, herein represented by the Governor in Council and the Minister of the Environment and Climate Change, to implement the compensation plan established by the Act, which authorizes providing fair and reasonable compensation, in accordance with the regulations made for this purpose, to any person for losses suffered as a result of any extraordinary impact that the application of an emergency order made under the Act may have, and from the failure to fully apply the plan in the present case.
[7] Alternatively, the plaintiffs claim that the Order, because it was not preceded—or followed—by the implementation of said compensation plan, effected a disguised expropriation of the land included in the area subject to the Order, an expropriation for which, they argue, they are entitled to obtain full compensation.
[8] The defendant disputes both grounds of the plaintiffs’ claim but admits, after coming to an agreement with them a few days before the start of the trial, that the loss suffered by the plaintiffs as a result of the adoption of the Order is $22,292,473, excluding expert fees and extrajudicial fees paid to their counsel. The details of this agreement are set out in Exhibit P-106 filed, by consent, at trial.
II. GENERAL BACKGROUND
[9] The Western Chorus Frog is a small wetland amphibian which, in adulthood, generally does not measure more than 2.5 centimetres long or weigh more than a gram. During its lifetime, it will rarely move more than 300 metres from its breeding site.
[10] In Canada, it is now found mainly in southern Ontario and southwestern Quebec, chiefly in the Montérégie and Outaouais regions. In Montérégie, more particularly, it is said that this species occupies only 10% of the range it once occupied 50 years ago. One of the six metapopulations of Western Chorus Frogs listed in Montérégie is located in the La Prairie area, at the limits of the municipalities of Candiac and Saint-Philippe. It is the second-largest metapopulation in the region.
[11] According to the evidence on the record, the greatest threat to this species comes from the fact that its habitat is often found on land considered to be of interest for urban or agricultural development. The resulting draining and backfilling of the land do indeed prove fatal for many individuals, in addition to significantly changing the quality of the species’ critical habitat (Exhibit D-1).
[12] On February 23, 2010, the Western Chorus Frog Great Lakes/St. Lawrence–Canadian Shield population was designated, by order of the Governor in Council, a “threatened species” within the meaning of the Act, meaning a wildlife species that is likely to become an endangered species if nothing is done to reverse the factors leading to its extirpation or extinction (Order Amending Schedule 1 to the Species at Risk Act, SOR/2010-32, Exhibit D‑3).
[13] As I mentioned in Groupe Maison Candiac, the designation of a species as a threatened species generally results from an assessment conducted by a committee of independent experts, the Committee on the Status of Endangered Wildlife in Canada [COSEWIC], constituted under the Act, whose mission is, among other things, to assess the status of each wildlife species it considers to be at risk and, as part of the assessment, to report to the responsible minister—in this case the Minister of the Environment and Climate Change (or the federal Minister of the Environment)—existing and potential threats to the species (Groupe Maison Candiac at paras 58–60).
[14] In this case, in a report dated April 2008 (Exhibit D-1), COSEWIC noted that in Quebec, particularly due to suburban expansion, the habitat and breeding sites of the Western Chorus Frog were suffering continuous losses, resulting in population losses and the isolation of the remaining patches of habitat. It concluded that the species was threatened. This was followed by a recommendation from the federal Minister of the Environment that the Western Chorus Frog Great Lakes/St. Lawrence–Canadian Shield population be added to the list of “threatened species”, as defined in the Act, and that the abovementioned designation order be made (Exhibit D-3).
[15] Since 2001, the Western Chorus Frog has also been classified as a “vulnerable wildlife species” under Quebec legislation on threatened or vulnerable species (Act respecting threatened or vulnerable species, CQLR c E-12.01) and since that time has been the subject of a conservation plan (Exhibit D-89) prepared under the aegis of this legislation and intended to halt the decline of the population of the species. This plan was updated in 2008 based on a review of conservation principles conducted the previous year (Exhibit D-64).
[16] In May 2008, the town of La Prairie, further to a request it had made in December 2005, obtained from the Quebec government of a certificate of authorization issued under section 22 of Quebec’s environmental quality legislation (Environment Quality Act, CQLR c Q-2; Exhibit P-26). This certificate authorized backfilling of wetlands (swamps and marshes) on the land where what would become the Symbiocité Project was planned to be built. In return, it was accompanied by a number of measures aimed at mitigating the environmental impacts of these activities. The evidence reveals that the plaintiffs were involved in the process of obtaining this certificate, but since the town of La Prairie was, at the time, owner of more than half of the land in the area where the development of the future Symbiocité Project was being considered, the certificate was issued under its name.
[17] On July 11, 2012, the plaintiffs signed a memorandum of understanding with the town of La Prairie (Exhibit P-2) for the development of the Symbiocité Project. As a result of this memorandum, the plaintiffs and the town exchanged land. More specifically, the plaintiffs bought from the town most of the land on which phases 5 and 6 of the Symbiocité Project were to be built. This transaction was signed before a notary on June 6, 2013 (Exhibit P-23).
[18] A few weeks before this transaction was finalized, in mid-May 2013, an environmental group, Nature Québec, formally asked the federal Minister of the Environment at the time, Peter Kent, to make an emergency order under section 80 of the Act to protect the habitat of the Western Chorus Frog metapopulation in the area where the Symbiocité Project was planned to be built. Nature Québec believed that this project threatened what remained of the metapopulation in this area and alerted the Minister to the existence of an opinion published by the provincial recovery team for this species in 2010, which [translation] “reiterates the weakness of legal tools in place in Quebec to protect wildlife habitats on private land”, noted in a first opinion made public in 2007 (Exhibit D-7).
[19] On March 27, 2014, Minister Kent’s successor to the Environment portfolio, Minister Leona Aglukkaq, refused to recommend to the Governor in Council the adoption of the emergency order sought, saying that even though the decline of the Western Chorus Frog in all of southern Quebec and Ontario could be described as serious from a biological point of view, the scope of the work planned on the site referred to in Nature Québec’s formal demand did not threaten the possibility of the species’ presence elsewhere in Ontario and Quebec (Exhibit P-119).
[20] Nature Québec did not stop there. It challenged Minister Aglukkaq’s decision before this Court. It joined forces with another environmental defence group, the Centre québécois du droit de l’environnement.
[21] On June 22, 2015, Justice Luc Martineau, even though he refused to order the Minister to recommend to the Governor in Council that an emergency order be issued, set aside the decision to not make such a recommendation, which he considered to be unreasonable, and referred the matter back to the Minister to reconsider said decision within six months (Centre québécois du droit de l’environnement v Canada (Environment), 2015 FC 773 [Centre québécois du droit de l’environment]). Essentially, Justice Martineau criticized the Minister for having “arbitrarily and capriciously ignore[d] the scientific opinion of her own Department’s experts” and for having adopted an unduly restrictive interpretation of section 80 of the Act to limit its application to cases where a species is exposed to imminent threats to its survival or recovery on a national basis (Centre québécois du droit de l’Environnement at paras 77–78).
[22] On December 5, 2015, the new Minister of the Environment and Climate Change Canada, Catherine McKenna [Minister], following the judgment of Justice Martineau, announced that she intended to recommend to the Governor in Council the adoption of an emergency order, being of the opinion that the Symbiocité Project, in particular, threatened the short-term viability of the metapopulation of the Western Chorus Frog in the La Prairie area, that this metapopulation was necessary for the restoration of the species in Canada and, therefore, that there was an imminent threat to this recovery (Exhibit D-14).
[23] The Minister presented three options to the Governor in Council:
make an emergency order which would protect part of the suitable habitat for the metapopulation of the area concerned and which would include the land of phases 5 and 6 of the Symbiocité Project, but not that of phases 1 to 4, already developed;
make an emergency order which would protect all suitable habitats for the metapopulation of the area concerned and which would include all the land associated with the Symbiocité Project; or
do not issue an emergency order;
[24] It was ultimately the first option that was chosen by the Governor in Council. The impact study done in relation to the Order specified the following as the issues that led to its adoption:
While there is a continuous decline in the Western Chorus Frog (GLSLCS) population, threats to the connectivity and viability of existing metapopulations and the lack of adequate measures to protect its habitat, the Minister of the Environment concluded in December 2015 that the Western Chorus Frog (GLSLCS) was exposed to an imminent threat to its recovery due to the threat posed by the Symbiocité residential project to the metapopulation of La Prairie and, therefore, that immediate intervention was required.
The Minister’s conclusion was based on a scientific assessment that took into account the best information available. The study concluded that the planned phases of the La Prairie residential development project, as we currently understand them, would cause the loss of connectivity between the remaining populations of the Prairie metapopulation and the direct loss of habitat, including breeding ponds. The areas remaining after such development were therefore unlikely to sustain the viability of the La Prairie metapopulation in the long-term. As such, the objectives set out in the recovery strategy for the Western Chorus Frog (GLSLCS) were unlikely to be achieved without immediate intervention. Therefore, under subsection 80(2) of the [Act], the Minister recommended that the Governor in Council make an emergency order to address the imminent threat to the Western Chorus Frog (GLSLCS). The Governor in Council accepted the Minister’s recommendation and made the Emergency Order for the protection of the Western Chorus Frog (Great Lakes / St Lawrence and Canadian Shield population).
[25] The Order gives a precise description of the area to which it applies and states that it is prohibited to
remove, compact or plow the soil;
remove, prune, damage, destroy or introduce any vegetation, such as a tree, shrub or plant;
drain or flood the ground;
alter surface water in any manner, including by altering its flow rate, its volume or the direction of its flow;
install or construct, or perform any maintenance work on, any infrastructure;
operate a motor vehicle, an all-terrain vehicle or a snowmobile anywhere other than on a road or paved path;
install or construct any structure or barrier that impedes the circulation, dispersal or migration of the Western Chorus Frog;
deposit, discharge, dump or immerse any material or substance, including snow, gravel, sand, soil, construction material, greywater or swimming pool water; and
use or apply a pest control product as defined in section 2 of the Pest Control Products Act or a fertilizer as defined in the Fertilizers Act.
[26] The Order also provides that any contravention of these prohibitions is an offence for the purposes of section 97 of the Act, which states that every person commits an offence who, among other things, “contravenes a prescribed provision of a regulation or an emergency order”.
[27] On July 13, 2016, the plaintiffs sent a formal demand to the Attorney General of Canada in connection with the adoption of the Order, which in their view had the effect of preventing the completion of phases 5 and 6 of the Symbiocité Project. More specifically, they asked the Attorney General to confirm in writing, within 10 days, that it was the Government of Canada’s intention to compensate them for the losses resulting from the Order, which provided no form of compensation (Exhibit P-17).
[28] Essentially, this formal demand fell on deaf ears, such that on April 3, 2017, the plaintiffs instituted these proceedings. As I indicated at the outset, they do not contest the validity of the Order. Rather, they focus on its effects for which they seek compensation. They consider that by failing to ensure the implementation of the compensation plan established in section 64 of the Act, in particular by failing to adopt the regulations required for this purpose, the defendant committed an omission which incurred her civil liability. Alternatively, they consider that making the Order, without paying compensation for the losses resulting from it, amounts to a disguised expropriation of the land intended for the construction of phases 5 and 6 of the Symbiocité Project.
[29] As I have also had occasion to say, the defendant disputes the plaintiffs’ action. In particular, she submits that the failure to make a regulation—or to make a decision—under section 64 of the Act does not constitute a fault and, at best, gives rise to a remedy on judicial review. She argues that, in any event, there is no possibility of a remedy in civil liability in the circumstances of the present case since the plaintiffs must be considered as having, with full knowledge of the facts, assumed a business risk in planning a real estate development in an area at the heart of the habitat of a species at risk. According to her, the plaintiffs knew—or should have known—that it was possible that a government authority could intervene to protect this species and thus thwart, in whole or in part, the achievement of this development. The realization of this risk must be entirely borne by the plaintiffs, she concludes.
[30] Finally, the defendant argues that the conditions for applying the rules of disguised expropriation, assuming that they were not ruled out by the compensation plan established by the Act, were not satisfied in the present case. She argues, in this regard, that the Order did not result in the appropriation by the Crown of an interest in the plaintiffs’ property subject to the Order, or even in the abolition of all uses of said property, which could still be put to reasonable uses despite the prohibitions provided for in the Order.
[31] I note that the plaintiffs, after having read the judgment in Groupe Maison Candiac, filed an application for judicial review aimed at forcing the Governor in Council to adopt the regulations provided for in subsection 64(2) of the Act and the Minister to exercise the powers vested in her under subsection 64(1) of the Act (Grand Boisé de La Prairie et al. v Her Majesty the Queen et al., T-1374-18 [Grand Boisé II]). They say they instituted these proceedings to protect their rights. After filing these proceedings, they requested that they be stayed until judgment is rendered in the present case.
[32] In response to this alternative proceeding, the Attorney General requested that it be rejected, by means of a motion to strike. He argued that said judicial review proceeding was incompatible with the rules and principles governing judicial reviews before this Court in that, in particular, it related to two separate decision-making processes under the jurisdiction of two separate federal boards, commissions or other tribunals, did not specify grounds in support of the conclusions sought, compelled the Court to identify for itself the decision to be reviewed so that it could exercise its jurisdiction and, moreover, constituted an abuse of right to the extent that, inter alia, an application for judicial review cannot serve as an insurance policy, so to speak, in case it turns out to be useful later on.
[33] The Attorney General’s motion was still under reserve before Prothonotary Alexandra Steele when this case was being tried. Since then, on November 29, 2019, Prothonotary Steele granted the said motion and, therefore, struck the plaintiffs’ alternative remedy, finding it, essentially on the grounds relied on by the Attorney General, inconsistent with the rules and principles governing judicial review before this Court.
[34] As permitted by rule 51 of the Federal Court Rules, SOR/98-106 [Rules], Prothonotary Steele’s order was appealed to a judge of this Court. However, on December 18, 2019, Prothonotary Tabib, at the request of the plaintiffs and with the consent of the defendant, suspended that appeal until the delivery of this judgment.
III. EVIDENCE ADDUCED AT TRIAL
[35] The present case was heard between September 11 and October 3, 2019, in Montréal.
[36] The plaintiffs called only one witness, Theodore Quint, their principal shareholder and director. For her part, the defendant called six witnesses, namely Mark Dionne and Marie-Josée Couture, both officials at Environment and Climate Change Canada (or Environment Canada); Alain Branchaud, formerly of that same department; Alain Guitard and Dominic Boula, both officials at the federal Department of Fisheries and Oceans; and Lyne Bouthillier, an official representing Quebec’s department of forests, wildlife and parks, the Ministère des Forêts, de la Faune et des Parcs.
[37] These testimonies were used, in particular, to file a total of 160 exhibits, some of which were the subject of objections, all of which were either settled or decided during the trial.
[38] It should be noted that a confidentiality order that was issued was not challenged by the plaintiffs in this case. The purpose of this order was to guarantee the confidentiality of personal information (names, mailing addresses, telephone numbers and email addresses) concerning natural persons who are not parties to this dispute, contained in exhibits D-46 and D-54 produced by the defendant at trial. No such information appears in these reasons for judgment, so there is no reason to also issue a confidential version.
A. Mr. Quint’s testimony
[39] Mr. Quint, personally or through companies he controls, has worked in the field of construction and real estate development since the late 1960s. To avoid making this summary of the testimony unnecessarily heavy to read, I will refer to Mr. Quint, although most of the time he acted through one or more of the companies of which he is the chief officer.
[40] Mr. Quint’s activities, therefore, are concentrated on the South Shore of Montréal. At the time, he built residences as well as commercial and industrial buildings. In particular, he began building houses on the territory of the town of La Prairie in the mid-1970s.
[41] In the 1980s, he abandoned construction to focus on his real estate developer activities, which became more demanding due to new requirements imposed by the municipalities. As such, he stated that he had developed [translation] “almost all residential areas” in La Prairie (Transcripts, September 11, 2019, at p 46). For example, it is Mr. Quint who developed the Grand Boisé Project, located on the northern edge of the Symbiocité Project.
[42] His real estate developer activities, he continued, consist of finding and acquiring [translation] “developable” land, ensuring the bearing capacity of such land effectively allows building what is planned to be built there, decontaminating that land, if necessary, discussing and negotiating with the municipal authorities the agreements necessary for carrying out the proposed real estate development, obtaining the environmental permits required from the government authorities concerned, carrying out the necessary infrastructure work (streets, water and sewer services, public utility services, etc.) and then selling the serviced land to builders, as subdivided.
[43] Mr. Quint stated that he had acquired land that would eventually be used for the development of the Symbiocité Project in 1987. Some of the land was subsequently transferred to the town of La Prairie, which wished to develop an industrial park there. However, citizen opposition put a stop to the project. This sector therefore became a residential area with a school, a daycare centre and an arena, explained Mr. Quint.
[44] The planning of the Symbiocité Project took its more or less final form, continued the witness, in July 2012, when he signed, on behalf of the plaintiffs, the memorandum of understanding, which I have already mentioned, with the town of La Prairie (Exhibit P-2). This memorandum was the culmination of two years of negotiations, he stated, during which the project underwent modifications, mainly in terms of its residential density. This document also provides for the exchanges and transfers of land between the plaintiffs and the town, necessary for the implementation of all phases of the project. These exchanges and transfers, recalled Mr. Quint, were signed before a notary in June 2013 and set the stage for beginning work on the project as scheduled for fall of that same year.
[45] Although the memorandum does not mention it, this work included, explained Mr. Quint, carrying out the compensation measures stipulated in the certificate of authorization issued to the town in May 2008 under the terms of Quebec’s environmental quality legislation (Exhibit P-26), and in the complementary measures issued during 2014 and relating, in particular, to the five-year waterworks and sewer plan related to the project (exhibits P-38, P -39 and P-41). These measures, at the expense of the plaintiffs, specified Mr. Quint, included expanding the existing conservation park by 5 million square feet, bypassing a stream crossing the Symbiocité Project area and developing four breeding ponds for the Western Chorus Frog. All of these measures had been taken, continued Mr. Quint, with the exception of the development of the two breeding ponds to border phases 5 and 6 of the Symbiocité Project, which the Order made obsolete.
[46] The certificates of authorization issued in relation to the Symbiocité Project also oblige the plaintiffs not to carry out any work during the reproduction period of the Western Chorus Frog, that is, between March and July.
[47] The memorandum of understanding also dictates, the witness continued, the pace that the development of the six phases of the Symbiocité Project has to follow. Mr. Quint emphasized, in this regard, that this agreement obliges him to build 125 units per year or face monetary penalties. It also obliges him to do business, at least for the first four phases of the project, with a minimum of six contractors. As for phases 5 and 6, this number is reduced to two, since they were intended to accommodate only one type of housing, that is, single-family houses. The contractors were chosen in 2015, and negotiations for the completion of these phases began with them in the fall of the same year and continued to the spring of 2016. Mr. Quint specified that the game plan was to proceed with the sale of the serviced land to these two contractors in time for construction of the homes to begin in the summer of 2018. This was admitted by the defendant (Exhibit P-105).
[48] When asked about the business risk associated with the Symbiocité Project, Mr. Quint specified that from the moment he had, from an environmental standpoint, all the required authorizations from the town and the province to undertake the project, it no longer posed a risk, at least in this regard. For a promoter, he stated, having a certificate under section 22 of the Quebec’s environmental quality legislation, [translation] “is the green light to go ahead with a project” (Transcripts, September 11, 2019, at p 110). Besides, he noted, if carrying out the project still presented a risk, he would not have invested 15 million dollars in the construction of infrastructure, of which 2.5 million dollars was devoted to the over-sizing of the infrastructure of phases 1 to 4, which is necessary for carrying out phases 5 and 6.
[49] He added that, to his knowledge, there was no citizen opposition to this project, at least no significant opposition. As for the presence of the Western Chorus Frog in the Symbiocité Project area, he stated he was obviously aware of it since it was discussed with the municipal and Quebec authorities for the purpose of issuing the certificates and authorizations required to launch the project and was also referenced in the certificates obtained under Quebec’s environmental quality legislation, which imposed compensation measures to limit the impact of the project’s development on the species.
[50] As for the steps taken in the spring of 2013 by Nature Québec to force the federal Minister of the Environment to recommend the issuance of an emergency order under the Act, Mr. Quint stated he did not know anything about it until notice of provisional and interlocutory injunction proceedings (Exhibit P-8) was served on him by Nature Québec and the Centre québécois du droit de l’environnement in the summer of 2015, in the wake of Justice Martineau’s judgment. The objective behind these proceedings was to preserve the useful effects of that judgment while Minister Aglukkaq reconsidered her decision not to recommend the making of such an order to the Governor in Council, and to stop, for this purpose, the work being done on the Symbiocité Project.
[51] At the same time, stated Mr. Quint, the authorities of Environment and Climate Change Canada, through a letter signed by Marie-Josée Couture, one of the defendant’s witnesses in the present case, contacted him (Exhibit P-7). They were looking for information on the situation of the Western Chorus Frog and on the activities that could have an impact on it, in this case the Symbiocité Project. Mr. Quint noted that the letter he received from Ms. Couture made no reference to Justice Martineau’s judgment.
[52] On October 14, 2015, Mr. Quint, through his counsel, wrote to Minister Aglukkaq (Exhibit P-10) to persuade her to maintain her decision not to recommend the issuance of an emergency order while reminding her of the potentially disastrous effect that the adoption of such an order would have on the plaintiffs and the Symbiocité Project. Following the election of Justin Trudeau’s government in the fall of 2015, the same letter was sent to the Minister.
[53] Mr. Quint then described the discussions he and his counsel had with Environment Canada authorities following the Minister’s decision in early December 2015 to recommend to the Governor in Council that an emergency order be made in the Symbiocité Project area. He specified that this department was especially interested, this time, in the potential socio-economic effects of making an emergency order and required information of this type from him. Mr. Quint then commissioned a study by the firm KPMG on the economic losses that would result from making such an order (Exhibit P-15). This study was submitted to department authorities on April 5, 2016.
[54] This particular request led him to believe that compensation would be paid to him by the government if an emergency order were to be adopted. Moreover, during meetings held in January and March 2016, in relation to the work carried out by the Minister with a view to finalizing her recommendation to the Governor in Council, Mr. Quint inquired about the compensatory measures expected in the event that such an order were made. Ultimately, he stated, he was told that for the most part, in the absence of regulations under subsection 64(2) of the Act, the Minister had no authority to pay compensation.
[55] Mr. Quint stated that the land in phases 5 and 6 of the Symbiocité Project was now worthless and it was folly to believe that it could be used for other reasonable purposes than that for which it was intended. He also stated that he was ready to cede the land to the federal government if he received full compensation for the damage suffered as a result of the Order.
[56] The plaintiffs’ representative concluded his testimony by asserting that, as a good citizen, he did not oppose the protection of species at risk, as evidenced by the investments he had made to mitigate the impacts of the Symbiocité Project on the Western Chorus Frog. However, it is baffling why the Order, which had the effect of devaluing the land in phases 5 and 6 of his project almost to nothing, was not accompanied by compensatory measures, especially since the Act provided that this could be done.
[57] Questioned on the reasons that motivated him to bring this action rather than attack, on judicial review, the Governor in Council’s inaction on putting in place regulations implementing the compensation plan provided for in section 64 of the Act or the Minister’s decision to consider herself without authority, in the absence of regulations, to exercise her power of compensation, Mr. Quint stated that, at the age of 74, time was running out for him and that the quickest way to be compensated, in the circumstances, was to institute this action in damages.
B. Mr. Dionne’s testimony
[58] This witness, the first called by the defendant, has worked for the Canadian Wildlife Service since 2004. The Canadian Wildlife Service is a branch of Environment and Climate Change Canada. The witness is a biologist by training. He was called upon to contribute to the work which would eventually lead, following Justice Martineau’s judgment, to the Minister’s decision and the subsequent adoption of the Order.
[59] After briefly explaining the procedure leading to a “threatened species” designation under the Act and the mission of the Species at Risk Public Registry as a tool for publicizing certain actions (recommendations, decisions, reports) taken under the Act, Mr. Dionne described the obligations that must be imposed following such a designation, namely the identification of the species’ critical habitat, the preparation of a proposal for a recovery plan for the species for consultation purposes, the adoption of the recovery plan and the implementation of an action plan.
[60] In the case of the Western Chorus Frog, recalled Mr. Dionne, the proposal for the recovery program or plan (Exhibit D-44) was published, for consultation, in July 2014. He stated, using a postcard referring to this proposal to support his claim (Exhibit D-45), that among the people and organizations consulted were the land owners whose properties are home to the species’ critical habitat, and that among those owners, two of the three plaintiffs, Grand Boisé de La Prairie Inc. and 142550 Canada Inc., were on the mailing list for said postcards filed in support (Exhibit D-46). As for the final version of the recovery program or plan (Exhibit D-6), according to the witness, it was published on December 1, 2015.
[61] Returning to his involvement in the follow-up to Justice Martineau’s judgment, Mr. Dionne stated that he was involved on a number of levels. He worked first, he said, to collect the information necessary for the reconsideration process imposed by that judgment. This was to update the knowledge that Environment and Climate Change Canada had on the Western Chorus Frog and what threatened it. He also participated in the activities of the various committees responsible for producing evaluation reports to be used to reconsider the decision not to recommend the issuance of an emergency order.
[62] Mr. Dionne explained that three reports were necessary for this purpose: a first on the situation of the species (Exhibit D-5), a second on the protection to which it was subject (Exhibit D-12) and a third on the threat it faced (Exhibit D-13). A number of studies and reports from a variety of federal/provincial government and non-government sources were considered for the purposes of this exercise. The witness listed a few, including the 2008 COSEWIC status report, which was used to designate the Western Chorus Frog as a threatened species (Exhibit D-1); the recovery report for the species for the period from 1999 to 2009, prepared by Quebec’s department of natural resources and wildlife, the Ministère des Ressources naturelles et de la Faune, and made public in April 2010 (Exhibit D-4); the conservation plan submitted to the town of La Prairie in June 2008 by the Western Chorus Frog provincial recovery team set up by the Ministère des Ressources naturelles et de la Faune (Exhibit D-64); and the report released by Ciel et Terre on the situation of the Western Chorus Frog in the La Prairie area, in particular, this time for the period from 2004 to 2014 (Exhibit D-48).
[63] These reports, the witness pointed out, conclude, among other things, that since 1992, in the La Prairie area, the Western Chorus Frog had suffered habitat losses of around 60%, and that these were the largest losses observed in Montérégie. It also concluded, again according to the witness, that there are significant shortcomings in Quebec in terms of protecting the critical habitat of this species, in particular because the relevant legislation does not apply to private land in most cases, whereas the majority of habitats are located on such land.
[64] His involvement, continued Mr. Dionne, did not stop there since once the decision to recommend the adoption of an emergency order was made in December 2015, he was called upon to participate in land inventories for the purpose of delimiting what the application area of a possible order could include, as well as in information meetings organized by his department for the people likely to be affected by such an order.
[65] His only other involvement in a file concerning the area where the Symbiocité Project would be developed or its surroundings dates back to the mid-2000s. At that time, he was asked to give an expert opinion on a feared loss of wetlands in connection with a real estate development project whose name he could not recall.
[66] His department, which manages the federal environmental assessment procedure established under the Canadian Environmental Assessment Act, SC 1992, c 37, was then called upon by Fisheries and Oceans Canada to follow up on complaints received by the department in relation to that project. The assessment related, explained Mr. Dionne, to the impact that the anticipated loss of wetlands could have on migratory birds that use th