Bancroft v. Nova Scotia (Lands and Forestry), 2019 NSSC 205

SUPREME COURT OF Nova Scotia Citation: Bancroft v. Nova Scotia (Lands and Forestry) , 2019 NSSC 205 Date: 20190621 Docket: HFX484556 Registry: Halifax Between: Robert Bancroft, Federation of Nova Scotia Naturalists, Blomidon Naturalists Society, and The Halifax Field Naturalists Applicants v. Nova Scotia Minister of Lands and Forestry, The Attorney General of Nova Scotia Representing Her Majesty the Queen in Right of the Province of Nova Scotia Respondents and East Coast Environmental Law Association Intervenor Decision Judge: The Honourable Justice Patrick J.

Duncan Heard: June 19, 2019, in Halifax, Nova Scotia Oral Decision: June 21, 2019, in Halifax Nova Scotia Counsel: James Simpson for the Applicants Jeremy Smith for the Respondents James Gunvaldsen-Klaassen and Sarah McDonald for the Intervenor By the Court (Orally): Introduction [ 1 ] There are two motions before the Court. [ 2 ] The first motion, brought by the Applicants, seeks an Order that they “be permitted to introduce evidence beyond the record”, specifically a February 15, 2015, Report entitled “ Protected on Paper Only” which was attached as Exhibit “C” to the affidavit of Mr.

Bancroft filed February 20, 2019. [ 3 ] The second motion, brought by the Intervenor, seeks:

1. leave to file the affidavit of Lisa Mitchell of East Coast Environmental Law, affirmed May 31, 2019, and filed with the Prothonotary on June 4, 2019; and 2. an Order declaring “that the affidavit is admissible and relevant to the issues before the Court on the within application for Judicial Review.” (The substantive effect of this is to admit into evidence Exhibit “A” to the affidavit which is a 2019 update to the “Protected on Paper Only” exhibit which the Applicants seek to introduce.) [ 4 ] Both motions are opposed by the Respondents. [ 5 ] All parties filed written submissions and presented oral argument.

Position of the Applicants [ 6 ] Counsel for the Applicants acknowledges that evidence beyond the record in a Judicial Review is generally inadmissible, on the basis that such a review is fundamentally a review of the administrative decision-maker’s decision made in light of the information that was in front of them at the time the decision was made. [ 7 ] Counsel argues that there are recognized exceptions to this general rule and that the list of such exceptions should not be considered as closed.

These are said to include an exception for reception of: … An affidavit that provides general background in circumstances where that information might assist it in understanding the issues relevant to the judicial review… Care must be taken to ensure that the affidavit does not go further and provide evidence relevant to the merits of the matter decided by the administrative decision maker, invading the role of the latter as factfinder and merits decider. (Per, Justice Stratus of the Federal Court Appeal in the case of Association of Universities and Colleges of Canada v.

Canadian Copyright Licensing Agency , 2012 FCA 22 ). [ 8 ] Mr. Simpson submits that the 2015 Report provides “background context regarding (

a) the roles of the Endangered Species Act in protecting Nova Scotia’s most vulnerable wildlife, and (

b) the Applicant’s view that the Minister’s alleged failure to meet legal obligations under the Act is of a systemic nature and has been alive as part of the public discourse in Nova Scotia for a number of years” (see para. 12 of the Applicant’s brief). The Applicants, by their counsel, suggest that the Report should be seen as “ neutral, non- argumentative statements that assist the reviewing Court to understand the history and nature of the case ”. [ 9 ] The Applicants say that the Report is not being tendered for the truth of its contents.

I take this to mean that it is not tendered for the truth of its contents on material issues in the current application, such as whether in 2019 there is or has been non-compliance by the Respondents with their responsibilities under the Act . I also take it that the Report is not tendered to prove the truth of its contents that speaks to the alleged non-compliance by the Respondents with the statute in 2015, assuming for the moment, that has relevance to the current proceeding.

Position of the Intervenor [ 10 ] The Intervenor set out its position in paras. 29 to 33 of its brief filed February 15, 2019, and expanded on the argument in its prehearing brief filed June 4, 2019. [ 11 ] In its earlier submission, counsel for the Intervenor also relies on the “general background” exception for admission of the affidavit of Ms. Mitchell with attached Report. The Intervenor maintains that the information contained therein is relevant, does not cause prejudice to the responding parties, and allows that the responding party may seek to introduce evidence in response.

The evidence was characterized in the brief as “uncontroversial and limited in scope” . [ 12 ] In the more recent submission, counsel for the Intervenor candidly advances the position that: … the 2019 Update Report provides a detailed background

summary of the status of Nova Scotia endangered species and “it sets out the Minister’s continued failure to abide by his statutory responsibilities and to protect endangered species, despite the requirements of the Endangered Species Act .” (para. 8 of Intervenors brief, filed June 4, 2019) [ 13 ] The Intervenor takes a different position than the Applicants on one important point – it says that the information in the Report should be seen as reliable and a basis upon which the hearing judge may choose to rely in making findings on material issues.

In oral submissions counsel advanced the argument that the threshold for admissibility on this hearing should not be measured against any objectionable content as the hearing judge can assess what weight if any to place on such information.

In essence, though not stated this way, the argument was that even if there are reasons upon which to refuse admission of the evidence the special nature of the case mitigates in favor of allowing the hearing judge the opportunity to make the decision on what, if any of the Report, should be considered in deciding the application. [ 14 ] The “special nature” of this case is that the review is not against a discrete decision made by a Minister, but rather is akin to trying to prove a negative – that something required to be done, was not done over an extended period of time.

Counsel for the Intervenor takes the view that there is no other way for them to make the case to the Court if this type of information is not before the Court. Position of the Respondents [ 15 ] Counsel for the Respondents submits that extrinsic evidence is presumptively inadmissible. He acknowledges that the court can grant leave to permit such evidence but that leave should be granted sparingly and only when the proposed evidence falls within one of the exceptions set out at para. 6 of his brief.

Counsel also acknowledges the decision of the Federal Court that holds that evidence may be admitted as “general background”, as advocated by the Applicants and Intervenor. The Respondents say, however, that the Applicants and the Intervenor have not met the burden upon them to establish that the Reports in question fall within any of the exceptions.

[ 16 ] Counsel for the Respondents says that: 1. the information sought to be adduced in these Reports was not before the decision-maker and therefore should not be admitted; 2. that the proposed evidence goes well beyond “general background” information as contemplated in the Federal Court of Appeal case of Association of Universities and Colleges of Canada v. Canadian Copyright Licensing Agency , 2012 FCA 22 ; and 3. it includes improper opinion and legal argument and seeks to make declarations that go to the heart of the decisions that are under review.

Analysis [ 17 ] I will begin my analysis by examining the contents of the proposed extrinsic evidence. It bears noting, at the outset, that both Reports were prepared by the Intervenor. The 2015 Report [ 18 ] The Executive

Summary of the 2015 Report is conclusory as to the issue to be adjudicated in the Judicial Review hearing. It states: The East Coast Environmental Law Association (ECELAW), in conjunction with the Environmental Law Students Society (ELSS) at the Schulich School of Law, Dalhousie University, assessed whether the Nova Scotia government is fulfilling its legal obligations to species at risk in our province… [ 19 ] Later in the Executive

Summary it says: We are troubled to find that Nova Scotia’s Department of Natural Resources (DNR) has not fulfilled its legal obligations under the Endangered Species Act with respect to 20 of Nova Scotia’s 37 endangered or threatened species as detailed in Appendix “A”.

DNR has failed to complete recovery plans and to identify core habitat for a number of species at risk, among other requirements. [ 20 ] Included in Appendix “A” to the Report are the six “representative species” cited in the Notice of Judicial Review that is currently before this Court for determination. [ 21 ] The Conclusion to the 2015 Report, found at p. 6, determined: The Nova Scotia provincial government has failed to meet its legal obligations to species at risk in Nova Scotia, pursuant to the Endangered Species Act .

The Minister of Natural Resources, responsible for administering the Act , has failed to meet his legal obligations with respect to 20 of Nova Scotia’s 37 identified endangered and threatened species. The remaining 15 of the total 52 identified species at risk are ranked as vulnerable, for which the government is not obligated to create recovery plans. [ 22 ] The Report consists of a combination of factual assertions and opinion, both scientific and legal, which are founded on those factual assertions.

The Report purports to answer the ultimate question that the Court must answer in this review. [ 23 ] In saying this, I acknowledge that it is over four years old. But if its age is an argument for why it is only part of general context, then its age also mitigates against its possible relevance.

However, if, as the Intervenor says, it is to be read in conjunction with the 2019 Update to show that there has been an extended period of non-compliance by the Respondents, then it might be relevant - but only if it is admissible for the truth of its contents. [ 24 ] In my view, whether it should be permitted as part of the evidence before the hearing judge must be assessed in conjunction with the 2019 Update Report. The Lisa Mitchell Affidavit and 2019 Update Report [ 25 ] Ms.

Mitchell is the Executive Director and a senior lawyer with the East Coast Environmental Law Association. [ 26 ] Her affidavit indicates that she, together with a law student and staff at the ECEL completed the “update” to the 2015 Report, which update is attached as Exhibit “A” to her affidavit. The title page attributes the work to Ms. Mitchell and a Peter Rak. [ 27 ] Ms. Mitchell is described in the Report as having a “Masters of Environmental Studies from Dalhousie University and 20 years of experience working in the areas of environmental law, policy and environment management.” Mr.

Rak is described as a law student who is or was a part of his law school’s “Environmental Justice and Sustainability Clinic”. [ 28 ] Ms. Mitchell affirmed that this Report was sent to the Minister of Lands and Forestry on January 28, 2019, being four days after the Notice for Judicial Review was filed in this matter. As such, this information would not have been available to the Minister for his consideration prior to the filing of the Notice for Judicial Review, and so could not be part of the Record at the time of the initiation of this Application. [ 29 ] There are different aspects to the Report.

As with the 2015 Report it makes assertions of fact and offers conclusory opinions based on those facts and the law as understood by the authors. Those conclusory statements go to the ultimate question to be resolved by the Court in this Judicial Review. [ 30 ] A second aspect of the Report is a commentary on various representations made to government and alleged resulting action, or inaction, of the provincial government.

For example, reference is made to the June 2016 Nova Scotia Auditor General’s Report and the Lahey Review, a Report commissioned by the provincial government and submitted to the Respondent Minister. Excerpts from those

documents are cited and commented upon by the authors. [ 31 ] In my view, assuming the two Reports are not part of the Record, and that they are relevant to the issues on the Review, then the best evidence would be copies of the entire Reports of the Auditor General and of the Lahey Review. [ 32 ] The commentary that I refer to in the Update is, in fact, argument, not general information for context. It draws upon third party information, using selective information (however fairly that may have been done) to support the very conclusions that the Application for Judicial Review asks to be drawn.

It is clear that the nature of this Report is the expression of opinion that would, if accepted by the Court, be conclusory of the issues sought to be adjudicated by this Review. Conclusion [ 33 ] The assertions of fact contained in these two Reports are derived from third party sources.

It is hearsay and only admissible if it falls into a recognized exception to the Rule against the admission of hearsay. [ 34 ] The opinions expressed in the report assume the completeness and the accuracy of that information. [ 35 ] An expression of expert opinion evidence, based on third party information may be admitted in a proceeding if it is proffered in compliance with the requirements of Rule 55 - which these Reports are not. The qualifications of the authors as experts would need to be established, and that they are objective.

In this case, the Reports are prepared by the Intervenor and tendered in support of a longstanding position taken by the Applicants and the Intervenor, both interested parties. It is difficult to see how these Reports would meet the requirement that the expert be objective. See Rule 55.04(1) which states:

(1) An expert’s report must be signed by the expert and state all of the following as representations by the expert to the court: (

a) the expert is providing an objective opinion for the assistance of the court, even if the expert is retained by a party; (

b) the witness is prepared to testify at the trial or hearing, comply with directions of the court, and apply independent judgment when assisting the court; (

c) the report includes everything the expert regards as relevant to the expressed opinion and it draws attention to anything that could reasonably lead to a different conclusion; [ 36 ] Also problematic is that the moving parties seek, as I have already pointed out, to put conclusory opinions before the Court on the very questions that the hearing judge is to decide.

That is something that Justice Stratus said is not permitted, even as he was allowing that evidence for general background might be admitted. [ 37 ] Therefore, I disagree with the assertion that these Reports are “neutral, non-argumentative statements” or “uncontroversial and limited in scope” as suggested by counsel for the moving parties. They are very much the opposite.

They include substantial amounts of hearsay evidence and offer argument, opinion, and conclusions that reflect the position taken by them in the matter under review. [ 38 ] I agree that the circumstances in this case differ from Judicial Reviews of discrete decisions. In this case, the Applicants and Intervenor say that this involves an extended period of action or inaction by the Minister which puts him in violation of the Act .

It has been suggested that it is impossible, without the Reports, to make the case since the Applicants and Intervenor are, in their submission, being asked to prove a negative where important information is in the control of the Respondent. Therefore, as I have outlined earlier, I am urged to allow the Reports to go forward anyway and let the hearing judge decide what to do with them. [ 39 ] I am not attracted to this argument. That would be an abdication of my responsibility.

If the evidence should not be admitted, then that is what I must conclude. [ 40 ] For the reasons set out above, I find that the motions must fail. The Reports will not be admitted. The affidavit of Ms. Mitchell, without the Report attached, offers nothing to justify its inclusion in the evidence and so it also will not be permitted to be form part of the evidence of the Hearing. [ 41 ] By prior agreement of the parties and an Order of this Court, no costs are ordered. [ 42 ] I have reached this conclusion in relation to these particular documents.

My decision does not foreclose the parties from bringing forward a future motion for admission of extrinsic evidence. Duncan, J.