Skibsted v. Canada (Environment and Climate Change)

Skibsted v. Canada (Environment and Climate Change)
Court (s) Database
Federal Court Decisions
Date
2021-05-10
Neutral citation
2021 FC 416
File numbers
T-716-20
Decision Content
Date: 20210510
Docket: T-716-20
Citation: 2021 FC 416
Ottawa, Ontario, May 10, 2021
PRESENT: The Honourable Madam Justice Strickland
BETWEEN:
LINDA SKIBSTED, RICK SKIBSTED, SPRUCE COULEE FARMS LTD., RICHARD CLARK, WENDY CLARK, HALF-DIAMOND HC LIMITED, SAMANTHA ANDERSEN AND H&A ANDERSEN FARMS LTD.
Applicants
and
CANADA (MINISTER OF ENVIRONMENT AND CLIMATE CHANGE) AND CANADA (ATTORNEY GENERAL)
Respondents
and
BADLANDS RECREATION DEVELOPMENT CORP.
Intervener
JUDGMENT AND REASONS
[1] This is an application for judicial review seeking an order of mandamus compelling the Minister [Minister] of Environment and Climate Change Canada [ECCC], pursuant to the Species at Risk Act, SC 2002, c 29 [SARA], to prepare and publicly register a recovery strategy and an action plan, and to designate critical habitat for the Bank Swallow, a threatened species.
Background
[2] The Bank Swallow (Reparia riparia) is a small, insectivorous and migratory songbird. It builds its nests in burrows made in vertical or near vertical banks of silty fine sands, such as those found on lake and ocean bluffs, and stream and river banks.
[3] In May 2013, the Committee on the Status of Endangered Wildlife in Canada [COSEWIC] assessed the Bank Swallow as a threatened species. Section 27(1.1) of the SARA states that the Governor in Council may, within 9 months after receiving a COSEWIC assessment and on the recommendation of the Minister, accept the assessment and add the species to the List of Wildlife Species at Risk, which is Schedule 1 of the SARA [List]. Four years after being assessed by COSEWIC as threatened, on November 2, 2017, the Bank Swallow was listed as a threatened species (Order Amending Schedule 1 to the Species at Risk Act, SOR/2017-229).
[4] The Assessment and Status Report on the Bank Swallow Riparia riparia in Canada prepared by COSEWIC states that the reason for designation of the Bank Swallow as threatened is that the widespread species has shown a severe long-term decline amounting to a loss of 98% of its Canadian population over the last 40 years. The report states that, as with many other aerial insectivores, the decline continues, albeit at a slower rate since the 1980s. Breeding Bird Survey data for 2001-2011 indicate a potential loss of 31% of the population during that 10-year time period. Further, that the reason for this decline is not well understood, but is likely caused by the cumulative effects of several threats. These threats include loss of breeding and foraging habitat, destruction of nests during aggregate excavation, collision with vehicles, widespread pesticide use affecting prey abundance, and impacts of climate change, which may reduce survival or reproductive potential.
[5] Under the SARA, when a species, such as the Bank Swallow, is listed as threatened a number of statutory obligations and timelines are triggered. The Minister is required to develop a recovery strategy for the threatened species, and to post a proposed recovery strategy in the public registry within two years of the species being designated (SARA at s 37 and s 42(1)). The recovery strategy must contain, among other things, identification of the species’ critical habitat. Once a proposed recovery strategy is posted, there is a 60-day period for public comments (s 43(1)). Thirty days after the 60-day comment period has ended, the Minister is required to consider any comments received, revise the proposed strategy as the Minister considers appropriate, and post a final recovery strategy in the public registry (s 43(2)).
[6] In this case, pursuant to the SARA, a proposed recovery strategy should have been posted in the public registry by November 2, 2019. However, to date, a recovery strategy has not been posted. The Respondents’ evidence is that a draft of the recovery strategy has been developed, which is subject to ongoing consultations, and it is anticipated that the proposed recovery strategy will be posted on the public registry in June 2021 and that the final version will be posted “on or about November 2021”.
[7] When a final recovery strategy is posted, the SARA requires that the Minister prepare an action plan (s 47). The action plan is based on the final recovery strategy and must describe the measures that are to be taken to implement the recovery strategy, including measures to protect the species’ critical habitat and identification of portions of the species critical habitat that have not been protected (SARA at s 49). There is no statutory timeline for developing an action plan. However, the Minister must include a proposed action plan in the public registry. Public comments can be filed within 60 days after the proposed action plan is posted. Within 30 days after the comment period has ended, the Minister is required to consider any comments received, revise the proposed action plan as the Minister considers appropriate, and post a final action plan in the public registry (s 50).
[8] Within 180 days after the recovery strategy or the action plan that identified the critical habitat of the threatened species is included in the public registry, all of the critical habitat is protected (s 57-58).
[9] The Applicants own, reside at or are the corporate representatives of properties bordering the Rosebud River, in Alberta. Those properties are also immediately adjacent to property owned by the Badlands Recreation Development Corp [Badlands], also bordering the Rosebud River. Badlands has proposed the development of a motor vehicle racetrack on its property. It is not disputed that there are colonies of Bank Swallows nesting along the banks of the Rosebud River, including on and adjacent to the Badlands property. The Applicants claim that the proposed racetrack will be constructed on lands that are critical habitat for the Bank Swallow. By way of this application for judicial review, they seek an order of mandamus compelling the Minister, pursuant to his statutory obligations under the SARA, to prepare a recovery strategy and action plan for the Bank Swallow and to identify the species’ critical habitat.
Procedural History
[10] The Applicants filed their Notice of Application on July 7, 2020, naming the Minister of Environment and Climate Change Canada and the Attorney General as the Respondent, and seeking the following relief:
A writ of mandamus compelling the Minister of Environment and Climate Change (the “Minister”) to prepare a recovery strategy for a species known as the “Bank Swallow” or “riparia riparia” pursuant to section 37(1) of the Species at Risk Act (“SARA”);
A writ of mandamus compelling the Minister to prepare an action plan or action plans based on the recovery strategy pursuant to section 47 of SARA;
A writ of mandamus compelling the Minister to recommend, identify and/or designate critical habitat for the Bank Swallow pursuant to sections 41(1)(c), 58(5) and (5.1) of SARA; and
A writ of mandamus compelling the Minister to recommend that the Governor in Council make an emergency Order providing for the protection of the Bank Swallow pursuant to section 80(1) of SARA, particularly in or around the lands subject to Water Act, RSA 2000, c W-3, Approval No. 00406489-00-00.
[11] Badlands brought a motion seeking leave to intervene with respect to the fourth ground of relief sought by the Applicants, an emergency order under s 80(1). By order dated December 21, 2020, Case Management Judge Ring granted Badlands’ motion, but limited its participation as an intervener in the proceeding to the facts and issues relevant to that ground of relief. By Order dated December 24, 2020, the Case Management Judge dealt with the timetable governing the completion of the remaining steps in the underlying application for judicial review. This included granting the Applicants leave to file a supplementary record, including any supplemental affidavits and supplemental written submissions in response to the Intervener’s affidavits.
[12] On February 23, 2021, the Applicants filed a notice of motion seeking an interlocutory injunction against Badlands. The Applicants sought to prevent Badlands from proceeding with any construction or development pending the hearing of this application. The motion was heard by Justice Pentney on March 9, 2021 and his reasons dismissing the motion were issued on April 7, 2021.
[13] On March 24, 2021, the Respondents wrote to the Applicants indicating that the Minister has decided not to make a recommendation to the Governor in Council under s 80(1) of the SARA. Given this development, the Applicants brought a motion seeking leave to further amend their Notice of Application to remove the fourth ground of relief, seeking a writ of mandamus compelling an emergency order pursuant to s 80(1). By Order dated April 12, 2021, the Case Management Judge granted the request. The Applicants filed an Amended Amended Notice of Application on April 13, 2021 striking out the fourth ground of relief. The Applicants also advised the Case Management Judge that they would not be seeking costs against the Intervener, Badlands, in relation to its participation and, ultimately, Badlands advised that it would not be filing a motion record or appearing at the hearing of this judicial review.
Legislative Regime
[14] The most relevant provisions of Species at Risk Act, SC 2002, c 29 are attached as Annex A to these reasons.
Issues
[15] There are two preliminary issues and one substantive issue arising in this application.
[16] Preliminary issues:
Admissibility of the Expert Affidavit of Cliff Wallis [Wallis Affidavit #1] sworn on July 6, 2020; and
Status of the Applicants’ Supplementary Record.
[17] The substantive issue can be framed as follows:
Have the Applicants have met the test for mandamus compelling the Minister:
a) to prepare a recovery strategy, pursuant to s 37 of the SARA;
b) to prepare an action plan based on the recovery strategy, pursuant to s 47 of the SARA; and
c) to recommend, identify and/or designate critical habitat for the Bank Swallow pursuant to sections 41(1)(c), 58(5) and (5.1) of SARA.
Preliminary Issues
i. Admissibility of the Wallis Affidavit #1
[18] In its written submissions, the Respondents point out that the Wallis Affidavit #1, sworn and filed on July 6, 2020, was not accompanied by a Form 52.2 – Certificate Concerning Code of Conduct for Expert Witnesses [Certificate], as required by Rule 52.2(1)(c) of the Rules of the Federal Courts SOR 98-106 [Rules] and that the Applicants have never cured this defect.
[19] Further, that by Order dated January 6, 2021, the Case Management Judge declined to exercise her discretion to decide the Applicants’ motion seeking leave to append the required Certificate to Wallis Affidavit #1 or to make an early ruling as the admissibility of the affidavit. The Respondents submit that the Applicants have flouted the Court’s decision by including a signed copy of the Certificate with Wallis Affidavit #1 found in their Application Record.
[20] The Respondents submit that an expert’s failure to meet the objective requirements of the Code of Conduct means the Court could exclude some or all of the expert’s affidavit. Wallis Affidavit #1 does not meet the threshold requirements for admissibility because the expert has not complied with the Rules by appending a certificate. Further, the lack of compliance gives rise to concerns about the objectivity and independence of the expert. Here, the cross-examination of Mr. Wallis reflects the lack of objective compliance with the Code and raises material questions as to his impartiality.
[21] When appearing before me, the Applicants submitted that the cross-examination and re-direct testimony of Mr. Wallis established that he understood and complied with the duties of an expert witness. Therefore, failure to append the Certificate could be cured and did not warrant the exclusion of his report.
Analysis
[22] By way of background, in her January 6, 2021 Order, the Case Management Judge noted that the Applicants had brought a motion in writing seeking an order appending the Certificate, required by Rule 52.2(1)(c), to Wallis Affidavit #1. The Prothonotary noted that it was common ground that the affidavit did not comply with Rule 52.2(1)(c) because a Form 52.2 Certificate was not appended. The Order also notes that when Mr. Wallis was cross-examined by the Respondents he acknowledged that he had not read the Code and was not aware that in the Federal Court a certificate is required to be appended to affidavits of expert witnesses. The Order also notes that during re-direct, Applicants’ counsel asked Mr. Wallis a series of questions regarding his compliance with the Code.
[23] The Respondents opposed the motion and also contended that it was an opportunity for the Court to review the expert witness affidavit and determine its admissibility. The Respondents asked the Court to exclude the entire affidavit. The Case Management Judge held that the Respondents’ informal request “is in essence a disguised attempt to seek an interlocutory order striking out the Wallis Affidavit without necessity of bringing a formal motion requesting such relief”. She declined to entertain the Respondents’ request.
[24] With respect to the relief that was actually sought in the motion before her, the Case Management Judge referred to the Federal Court of Appeal’s decision in Saint Honore Cake Shop Limited v Cheung's Bakery Products Ltd., 2015 FCA 12 [Saint Honore], and concluded that “the absence of a certificate constitutes a defect in the expert’s affidavit that, depending on all of the circumstances, may be curable or may render the affidavit inadmissible”.
[25] Ultimately, the Case Management Judge declined to exercise her discretion to entertain the Applicants’ motion, on a preliminary basis, because “it is not in the interests of justice to parse out the various alleged defects in the Wallis Affidavit and have them determined in a piecemeal fashion at different stages of the proceeding by different members of the Court”. Therefore, she held that the Applicants’ request for leave to append the required certificate to the Wallis Affidavit #1 after it was sworn would be determined at the hearing of the application for judicial review, at the same time as any motion by the Respondents to strike out Wallis Affidavit #1.
[26] She dismissed the motion, without prejudice to the ability of the Applicants to seek an order appending the Certificate at the hearing of the application for judicial review.
[27] As the Respondents note, the Applicants have appended the Certificate to the Wallis Affidavit #1 found in their Application Record.
[28] I note that the Respondents have not filed a motion seeking to strike Wallis Affidavit #1 nor made substantive submissions as to its admissibility other than to footnoted references in their written submissions to identified pages of the transcript of the Wallis cross-examination.
[29] Rule 52.2(1)(c) states that:
52.2 (1) An affidavit or statement of an expert witness shall:
…
(c) be accompanied by a certificate in Form 52.2 signed by the expert acknowledging that the expert has read the Code of Conduct for Expert Witnesses set out in the schedule and agrees to be bound by it;
(2) Failure to comply – If an expert fails to comply with the Code of Conduct for Expert Witnesses, the Court may exclude some or all of the expert’s affidavit or statement.
[30] Form 52.2 Certificate Concerning Code of Conduct for Expert Witnesses certifies that the expert has read the Code of Conduct for Expert Witnesses set out in the schedule to the Rules and agrees to be bound by it.
[31] In Saint Honore, the Federal Court of Appeal held:
[24] With respect, in my opinion, the judge erred when he found the Chen affidavit to be inadmissible in the circumstances. His finding confuses the particular content requirements of an expert affidavit pursuant to Rule 52.2(1)(c) with the general objective of Rule 52.2(2) regarding compliance with the Code of Conduct for Expert Witnesses. Lack of compliance with the former should not be conflated with a failure to comply with the Code of Conduct for Expert Witnesses. Indeed, whilst Rule 52.2(2) permits the exclusion of some or all of an expert’s affidavit for failing to comply with the Code of Conduct, the same cannot necessarily be said for failing to comply with particular content requirements of an expert affidavit set forth by Rule 52.2(1).
[32] In this case, the Respondents point to the October 15, 2020 transcript of the cross-examination of Mr. Wallis. There, Mr. Wallis confirmed that he had not read the Code of Conduct nor was he aware of the Certificate and that, as an expert witness, he was required to sign and attach it to his affidavit. However, he also stated that he was aware he had a duty to provide an independent opinion and he understood that, as an expert giving evidence in this Court, his overriding duty is to assist the Court impartially on matters relevant to his expertise, and that this duty overrode any duty owed to the party retaining him. Further, he understood that for the purposes of giving evidence as an expert, he must be independent and objective. On re-direct, counsel for the Applicants took Mr. Wallis through the Code of Conduct and Mr. Wallis confirmed his understanding of its requirements and his compliance in that regard.
[33] The Schedule – Code of Conduct of Expert Witnesses (Rule 52.2), under the heading General Duty to the Court states:
1. An expert witness named to provide a report for use as evidence, or to testify in a proceeding, has an overriding duty to assist the Court impartially on matters relevant to his or her area of expertise.
2. This duty overrides any duty to a party to the proceeding, including the person retaining the expert witness. An expert is to be independent and objective. An expert is not an advocate for any party.
[34] In my view, it is clear from Mr. Wallis’s cross-examination and re-direct testimony that he understood his general duty owed to the Court. The Respondents make the general assertion that not complying with the Certificate requirement gives rise to concerns about the expert’s objectivity and independence. As a general assertion, this is true. However, given Mr. Wallis’ cross-examination and re-direct testimony, I do not agree with the Respondents’ further assertion that the cross-examination reflects the lack of objective compliance with the Code – beyond his acknowledgement that he did not provide the required Certificate. Moreover, the Respondents do not expand on their submission that the absence of the Certificate raises “material questions as to his impartiality”. They do not identify these material questions and they have not responded to the Case Management Judge’s Order by bringing a preliminary motion challenging the impartiality of Mr. Wallis’s expert report on this basis and seeking to have it struck out.
[35] When appearing before me the Respondents took the position that the Applicants were required to bring a motion to address the appending of the Certificate but that they had failed to do so. However, the Applicants did file such a motion. The Case Management Judge declined to entertain the motion, instead holding that the issue would be heard at the hearing of the application. She dismissed the Applicants’ motion without prejudice to their ability to seek an order appending the Certificate at the hearing of the application for judicial review. Accordingly, in my view, there is no merit to the Respondents’ position that the Applicants were required to bring a new motion. It was open to the Applicants to raise their request at the hearing before me.
[36] The Applicants should not have appended the Certificate to Wallis Affidavit #1 until obtaining leave of the Court to do so, or they should have signalled that the Certificate had been appended subject to leave being granted at the hearing. However, because I am satisfied that Mr. Wallis understood his duty to the Court, I am granting leave to the Applicants to cure the defect by appending the Certificate.
ii. Status of Applicants’ Supplemental Record
[37] As indicated above, the Applicants have submitted a Supplementary Record. This was done pursuant to the December 24, 2020 Order of the Case Management Judge which addressed, among other things, the timetable for additional steps to be taken after Badlands was granted intervener status. Paragraph 4(b) of the Order grants the Applicants and Respondents leave to serve supplemental affidavit evidence in reply to the Intervener’s affidavits. Paragraph 4(d) granted leave to the Applicants to file a supplemental record “that includes any supplemental affidavits and supplemental written submissions in reply to the Intervener’s affidavits”.
[38] On January 20, 2021, the Intervener filed an affidavit of Heather Ferguson, biologist, affirmed on January 19, 2021, and the affidavit of Rick Grol, affirmed on January 20, 2021. Ms. Ferguson and Mr. Grol were cross-examined on their affidavits on February 12, 2021.
[39] On January 29, 2021, the Applicants filed a responding affidavit of Cliff Wallis sworn on January 29, 2021 [Wallis Affidavit #2]. Mr. Wallis was cross-examined on this affidavit on February 10, 2021.
[40] The Applicants’ Supplemental Record was filed on February 26, 2021. Their Supplemental Memorandum of Fact and Law confirms that the supplemental written submissions are provided pursuant to paragraph 4(d) of the December 24, 2020 Order of the Case Management Judge. Included with the Supplemental Record is Wallis Affidavit #2, the transcript of the cross-examination of Natalie Savoie, answers to undertakings given at that cross-examination, and the cross-examination transcripts of Heather Ferguson and Rick Grol.
[41] As indicated above, given the subsequent developments, Badlands is no longer involved in the proceedings. However, the affidavits filed by the Intervener and the Applicants’ Supplemental Record remain in the record.
[42] Given that relief by way of a writ of mandamus compelling the Minister to recommend that the Governor in Council make an emergency Order pursuant to section 80(1) of SARA was no longer being pursued and the Intervener is no longer involved, the Case Management Judge directed the parties to advise the Court what evidence and materials were no longer relevant to the application.
[43] By letter to the Court dated April 16, 2021, the Applicants took the position that only four paragraphs of their Supplementary Memorandum of Fact and Law should not be considered (paragraphs 68-72) as well as the cross-examination transcript of Rick Grol (additionally, they advised that portions of their original Memorandum of Fact and Law were no longer relevant).
[44] In a letter dated April 16, 2021, the Respondents provided the background to this situation and their position. Given that the Applicants were denied leave to rely on additional affidavit evidence, that the Intervener is no longer participating in the mandamus application, and the ground of relief in paragraph 4 of the Applicants’ Notice of Application is no longer being pursued, the Respondents submit that the Applicants’ Supplementary Record should be excluded in its entirety from the proceeding (the Respondents also identify additional paragraphs of the Applicants’ original Memorandum of Fact and Law that they submit are no longer relevant).
[45] At the hearing of this matter, counsel for the Applicants advised that the Applicants would not be relying on their Supplemental Record other than referring to three cases cited in paragraphs 55-62 of their Supplemental Memorandum of Fact and Law. They also pointed out that their Supplemental Application Record includes the transcript of the cross-examination of Ms. Natalie Savoie, a biologist with ECCC. The Applicants advised that the Respondents had sought and been granted leave to file the Savoie Affidavit by the Case Management Judge, and that that affidavit was not filed in response to the Intervener’s affidavits.
[46] I agree that the Applicants’ Supplementary Record should be excluded in whole from consideration in this application as it is no longer relevant, except the transcript of the cross examination of Natalie Savoie. The Applicants may also refer to the three referenced cases.
[47] The affidavits filed by the Intervener are also no longer relevant.
Have the Applicants have met the test for mandamus?
The test
[48] The parties agree that the test for mandamus is as set out in Apotex Inc v Canada (Attorney General), [1994] 1 FC 742 (FCA) [Apotex]:
1. There must be a public legal duty to act;
2. The duty must be owed to the applicant;
3. There is a clear right to performance of that duty, in particular:
a) the applicant has satisfied all conditions precedent giving rise to the duty;
b) there was
i. a prior demand for performance of the duty;
ii. a reasonable time to comply with the demand unless refused outright; and
iii. a subsequent refusal which can be either expressed or implied, e.g. unreasonable delay;
4. Where the duty sought to be enforced is discretionary, the following rules apply:
a) in exercising a discretion, the decision-maker must not act in a manner which can be characterized as “unfair”, “oppressive” or demonstrate “flagrant impropriety” or “bad faith”;
b) mandamus is unavailable if the decision-maker's discretion is characterized as being "unqualified", "absolute", "permissive" or "unfettered";
c) in the exercise of a "fettered" discretion, the decision-maker must act upon "relevant", as opposed to "irrelevant", considerations;
d) mandamus is unavailable to compel the exercise of a "fettered discretion" in a particular way; and
e) mandamus is only available when the decision-maker's discretion is "spent"; i.e., the applicant has a vested right to the performance of the duty…;
5. No other adequate remedy is available to the applicant;
6. The order sought will be of some practical value or effect;
7. The Court in the exercise of its discretion finds no equitable bar to the relief sought; and
8. On a "balance of convenience" an order in the nature of mandamus should (or should not) issue.
[49] The Respondents challenge only two aspects of the test. First, they deny that a duty is owed to the Applicants, as they do not meet the applicable principles governing standing. Second, they submit that the Applicants do not have a clear right to the performance of the Minister’s duty as the Applicants have failed to make prior demand and because the delay in posting the recovery strategy is justified and reasonable in this circumstance. When appearing before me, the Respondents confirmed that they do not dispute that the remaining factors of the mandamus test are met in this case with respect to the recovery strategy. The Respondents’ position is premised on their view that the Minister is not under a duty to prepare and produce an action plan or to designate critical habitat until the recovery strategy has been posted.
i. Public legal duty to act
Applicants’ submissions
[50] The Applicants submit that the Minister has a public legal duty to produce a recovery strategy, an action plan and to designate and protect critical habitat. They submit that the Minister was required, within 9 months after the COSEWIC assessment of the Bank Swallow as a threatened species, to amend the List accordingly (SARA at s 27(3)) but the Minister missed this deadline by nearly four years. When the order was issued on November 2, 2017, it triggered the statutory requirement for the Minister to include in the public registry a recovery strategy and an action plan by November 1, 2019. This has not been done and the Minister has failed to comply with these statutory deadlines.
[51] The Applicants note that a recovery strategy must include identification of the species’ critical habitat (SARA at s 41(1)(c)). Further, that an action plan must include both an identification of the species’ critical habitat and examples of activities that are likely to result in its destruction and identification of any portion of the species’ critical habitat that have not been protected (SARA at s 49(1)(a) and (c)). The Applicants submit that a critical part of the SARA scheme is that the Minister must protect the critical habitat 180 days after publishing an action plan or recovery strategy (SARA at s 58(5)). Further, that the Minister has no discretion in identifying a critical habitat and, once a critical habitat is designated through a recovery strategy and action plan, the critical habitat is automatically protected. Applying principles of statutory interpretation to s 58(5.1), the Applicants conclude that the Minister is required to protect the critical habitat through either a s 11 agreement or by issuing an order under s 58 of the SARA.
Respondents’ submissions
[52] The Respondents agree that the Minister must prepare a recovery strategy for the Bank Swallow because it has a threatened listing under SARA and that a proposed recovery strategy was required to be included in the public registry by November 2, 2019, two years after the listing. However, the Respondents submit that failure to meet the deadline does not prevent the Minister from developing the recovery strategy, that ECCC has been diligently engaged in developing an effective recovery strategy and that the delay is reasonable and does not warrant judicial intervention by way of mandamus.
[53] The Respondents also submit that the Applicants cannot compel an action plan or identification of critical habitat until a final recovery strategy is posted in the public registry. The Respondents submit that the Applicants’ request is premature as the requirement for the performance of the duty has yet to arise. That is because, based on the statutory scheme, the Minister is not under a public legal duty to develop an action plan and/or protect critical habitat until the final recovery strategy has been posted. Further, it is premature for the Court to interpret the Minister’s requirements under s 58 since the provision is only triggered once a recovery strategy is posted.
Analysis
[54] In order to compel the Minister to act, the Applicants are required to demonstrate that the Minister is under a public legal duty to act.
[55] Section 37 of SARA states that if a wildlife species is listed as an extirpated species, an endangered species or a threatened species, the competent minister must prepare a strategy for its recovery. In the case of a threatened species, s 42(1) of SARA states that the competent minister must include a proposed recovery strategy in the public registry within two years after the species was listed as such. The parties do not dispute that the Minister has an obligation to post a recovery strategy and that the statutory deadline for posting that recovery strategy, November 2, 2019, has passed.
[56] I agree with the Applicants that the Minister has a public legal duty to issue a recovery strategy and has failed to do so within the two-year period prescribed by statute.
[57] However, I also agree with the Respondents that any further mandamus relief is premature because the Minister’s duty to issue an action plan or protect critical habitat is only triggered after the final recovery plan is posted.
[58] Section 41(1) of SARA states that the competent minister must address the threats to the survival of the species identified by COSEWIC, including any loss of habitat, and in doing so must include the information listed in that provision. This includes the identification of the threats to the survival of the species and threats to its habitat (s 41(1)(b)), and the identification of the species’ critical habitat, to the extent possible, based on the best information possible. Where the available information is inadequate, a schedule of studies to identify critical habitat (s 41(1)(c), (c.1)), as well as a statement of when one or more action plans “in relation to the recovery strategy” will be completed (s 41(1)(g)) must be included in the recovery strategy.
[59] Section 47 of the SARA states that the competent minister in respect of a recovery strategy must prepare one or more action plans “based on the recovery strategy”. Section 49(1) sets out what must be included in an action plan, this includes a statement of the measures that are to be taken to implement the recovery strategy (s 49(1)(d)).
[60] In essence, the recovery strategy is the foundation for the action plan. Until critical habitat is identified, measures cannot be taken to protect it. As stated in Environmental Defence Canada v. Canada (Fisheries and Oceans), 2009 FC 878:
[6] The recovery strategy provisions of SARA are one component of a comprehensive protection strategy. Following meeting the recovery strategy requirements in s. 41, the action plan element takes effect as set out in sections 47 to 55. There is no dispute that the scheme of these two elements is to first provide a baseline of information about the biology and ecology of a species and a broad strategy to address conservation threat. In contrast, action plans are intended to describe more detailed “action” measures to achieve a species’ survival and recovery, including evaluation of the socio-economic costs and benefits of such measures.
[61] In Western Canada Wilderness Committee v Minister of Fisheries and Oceans, 2014 FC 148 [WCWC], the applicants sought declarations that the Minister had unlawfully failed to post proposed recovery strategies within the statutory timelines prescribed in the SARA and orders of mandamus compelling the Minister to post proposed and final recovery strategies within specified time periods for the four species that were the subjects of that application. When the application was heard, the Minister had posted proposed recovery strategies for three of the four species, and a final recovery strategy for one of the species. The Court held that it was premature to order mandamus for a duty not yet owed:
[123] I agree with the Ministers that the applicants’ request for mandamus in relation to the posting of final recovery strategies for the three species in question is indeed premature. The timelines contained in section 43 of SARA are only triggered once a proposed recovery strategy has been included in the public registry. Those timelines have not yet expired, with the result that there is currently no public legal duty on the part of the Ministers to act in relation to the posting of final recovery strategies for the Southern Mountain Caribou, the Marbled Murrelet, and the Nechako White Sturgeon.
[124] An order of mandamus will not be granted to compel a public official to act in a specified manner if he or she is not under an obligation to act as of the date of the hearing: Apotex, above at para. 51. See also British Columbia (Attorney General) v. Canada (Attorney General), [1994] 2 S.C.R. 41 at para. 157.
[62] In WCWC, the Court declined to issue an order of mandamus compelling the Minister to post final recovery strategies when the 90-day statutory comment and revision period had not yet passed. However, the Court retained jurisdiction over the matter so that the applicants did not have to file a new application if the time period passed without the Minister complying with his statutory duties (WCWC at para 125).
[63] In this case, the Minister is not yet under a public legal duty to issue an action plan pursuant to s 47, as the action plan is based on the recovery strategy, which remains outstanding.
[64] As to designation of critical habitat, s 57 states that the purpose of s 58 is to ensure that, within 180 days after the recovery strategy or action plan that identified the critical habitat referred to in s 58(1) is included in the public registry, all of the critical habitat is protected by one of the two mechanisms set out. Either the provisions in or measures under SARA or other Act of Parliament (including agreements under s 11), or the application of s 58(1).
[65] It is clear from s 57 that s 58 is subject to the requirement that the recovery strategy or action plan must first be posted. The Minister’s public duty with respect to s 58(1) is not triggered until 180 days after the recovery strategy or action plan are posted and, therefore, any order for mandamus is premature.
[66] In that regard, I note that the Federal Court of Appeal in Canada v David Suzuki Foundation, 2012 FCA 40 [Suzuki], stated at para 30 that pursuant to s 58(5) of SARA the inclusion of the recovery strategy in the public registry required the Minister to ensure that the critical habitat identified in that strategy be protected within 180 days through either a protection order made pursuant to s 58(1) and (4) or through a statement by the Minister setting out the critical habitat or portions of it. Section 58(5) explicitly states that the Minister must take one of those actions within 180 days after the recovery strategy or action plans that identified the critical habitat is posted to the public registry.
[67] I acknowledge the Applicants’ statutory interpretation submissions regarding s 58(5.1). However, even if I were to accept the Applicants’ view, the recommendation of the competent minister referred to in s 58(5.1) is explicitly subject to the statutory timeline set out in s 58(5.2)(a). The competent minister must make the recommendation within 180 days after the recovery strategy or action plan that identifies the critical habitat that includes habitat to which the Migratory Birds Convention Act, 1994 applies is included in the public registry, and after the required consultation. Therefore the Minister’s public duty is not yet triggered and the mandamus application is premature.
[68] In view of the above, of the three grounds for mandamus listed in the Applicants’ Notice of Application (the Applicants having abandoned the fourth ground), only the first ground, the preparation of a recovery strategy pursuant to s 37(1) of SARA, remains at issue. The other two being premature. The reasons that follow will therefore address only that ground. I also note that the only public legal duty that the Minister owes at this point is to post a proposed recovery strategy in the public registry. Based on the statutory scheme, the Minister is not obligated to post a final recovery strategy until the 90-day comment and revision period has passed (SARA s 42 – 43; WCWC at para 123).
ii. The duty must be owed to the Applicants
Applicants’ position
[69] The Applicants submit that, when determining whether a duty is owed to an applicant in an application seeking mandamus, the principles of standing apply and that either direct or public interest standing meets the Apotex threshold (citing Bancroft v. Nova Scotia (Lands and Forests), 2020 NSSC 175 at para 145 [Bancroft]). The Applicants submit that they meet either test.
[70] Regarding direct standing, the Applicants submit that private interest standing is extended to parties who have “a personal basis where [their] legal rights have been or are likely to be affected” (citing Alberta (Attorney General) v Malin, 2016 ABCA 396 at paras 18-19). They submit that they have direct standing because they are adjacent landowners to the Badlands property which hosts Bank Swallow colonies, as do other properties near theirs, and they would likely be subject to any draft critical habitat designation. Similarly, the Applicants submit that they have a special interest in the operation of SARA, beyond the general interest common to persons interested in the protection of a threatened species, because they each have a personal interest in protecting the Bank Swallow and when and how protection is afforded to the Bank Swallow will have a di