9255-2504 QUÉBEC INC. v. 142550 CANADA, 2020 FC 161

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: a . 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; b . 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 c . 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 a . remove, compact or plow the soil; b . remove, prune, damage, destroy or introduce any vegetation, such as a tree, shrub or plant; c . drain or flood the ground; d . alter surface water in any manner, including by altering its flow rate, its volume or the direction of its flow; e . install or construct, or perform any maintenance work on, any infrastructure; f . operate a motor vehicle, an all-terrain vehicle or a snowmobile anywhere other than on a road or paved path; g . install or construct any structure or barrier that impedes the circulation, dispersal or migration of the Western Chorus Frog; h . deposit, discharge, dump or immerse any material or substance, including snow, gravel, sand, soil, construction material, greywater or swimming pool water; and i . 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 those habitats.

It was Smitter’s Marsh, which is located in the application area of the Order , that was the focus of their concerns at the time. [ 67 ] In preparing his expert opinion, he stated he was provided with a copy of a report from the firm Genivar, dated November 2005 (Exhibit P-10E) and prepared at the request of the town of La Prairie in support of the request it was submitting to the Quebec authorities for the purpose of obtaining the certificate of authorization which would be issued in May 2008 under

section 22 of the Quebec’s environmental quality legislation (Exhibit P -26). [ 68 ] Although the Western Chorus Frog was one of the concerns discussed in that report, the federal government’s interest in the assessment undertaken at the request of Fisheries and Oceans was limited to fish habitat and migratory birds since, as explained by Mr. Dionne, the Western Chorus Frog did not, at the time, benefit from any designation under the Act . [ 69 ] On cross-examination, Mr.

Dionne acknowledged that the position of his department at the time the plaintiffs enquired, during information sessions held in relation to the Minister’s decision to recommend the issuance of an emergency order, about the payment of compensation in the event of the adoption of such an order, was to the effect that such compensation was not possible in the absence of regulations. He also acknowledged that, apart from the Order , none of documents entered in the Species at Risk Public Registry concerning the Western Chorus Frog were binding.

He finally recognized that before Nature Québec protested in spring 2013 by sending a formal demand to Minister Kent, the Western Chorus Frog was not yet considered by his department to be facing an imminent threat to its survival or recovery. However, he pointed out that the assessments allowing such a judgment to be made had not yet been carried out. C. Ms. Couture’s testimony [ 70 ] Ms. Couture has been a federal public servant since September 1997. In 2015, she was the head of the Canadian Wildlife Service for the Quebec region. It was essentially in this capacity that she testified at trial. [ 71 ] Like Mr.

Dionne before her, she stated that it was the Service, acting on behalf of Minister Aglukkaq, that was primarily responsible for following up on Justice Martineau’s judgment. Accordingly, it was she who signed the request for information sent to the plaintiffs in July 2015 (Exhibit P-7). The Service also filed, as part of the information gathering made necessary by Justice Martineau’s judgment, an access to information request concerning the Symbiocité Project, made to the Quebec authorities concerned (Exhibit D-8).

The town of La Prairie was also approached, she continued, as they were essentially trying to determine what protective measures were put in place to protect the Western Chorus Frog from the threat posed by the Symbiocité Project. [ 72 ] Ms.

Couture pointed out that 58 individuals and organizations were contacted as part of this information-gathering process and specified that 23 responses were received by the Service, including the letter from counsel for the plaintiffs dated October 14, 2015 (Exhibit P-10), to which I have already referred. [ 73 ] On November 26, 2015, continued the witness, the Minister was informed of the Service’s recommendation regarding the follow-up on Justice Martineau’s judgment. All the information collected by the Service as part of the information-gathering process was sent to the Minister.

That collection of information, according to Ms. Couture, was over 3,000 pages long (Exhibit D-54, excluding the first 13 pages). The Service concluded that even though the species was not facing an imminent threat to its survival, the same could not

be said for its recovery, given the likely impact of the Symbiocité Project on its habitat. [ 74 ] Ms. Couture remained involved in the file after the Minister’s decision to recommend to the Governor in Council that an emergency order be made. She now had to coordinate the collection of socio-economic information relating to the impact of creating an emergency order, information that had to be included in what was to be sent to the Governor in Council for its own decision-making purposes.

She had to also organize information sessions for those who were likely to be affected by the issuance of such an order. [ 75 ] An initial meeting took place on December 15, 2015. Mr. Quint was there, stated Ms. Couture. The question of compensation in the event of an emergency order was raised by Mr. Quint. He was informed that although compensation was possible under the Act , the question was premature at this stage since the adoption of such an order remained hypothetical. Mr.

Quint was also informed that, for the moment, there were no regulations allowing compensation to be paid (Exhibit D-17). [ 76 ] Also in December 2015, continued Ms. Couture, they received a list of questions , prepared by Environment Canada’s economists, aimed at helping people likely to be affected by an emergency order to provide the sought-after socio-economic information. An English version of the questions was sent, on request, to Mr. Quint on December 22, 2015 (Exhibit D-56J). On the same day, counsel for Mr. Quint reminded Ms.

Couture of their client’s interest in holding a meeting on the socio-economic impacts that the emergency order would have (Exhibit D-56K). [ 77 ] Ms. Couture clarified that a map showing the possible application area of such an order as well as a non-exhaustive list of activities that could be prohibited in this area were also sent to people potentially affected by an emergency order (Exhibit D-18). [ 78 ] A meeting with the town and representatives of Mr. Quint, including one of his lawyers, was held on January 14, 2016. Once again, the question of compensation was raised.

Environment Canada officials present at the meeting were asked whether the Minister intended to also recommend to the Governor in Council the adoption of regulations governing compensation. They said that she did not, specifying that the Minister [ translation] “will abide by her obligations under the [ Act ]” (Exhibit D-19). Ms. Couture and her team then recommended that participants who were interested in this issue could raise the point right in the socio-economic information they were given the opportunity to submit (Exhibit D-19). [ 79 ] On January 22, 2016, counsel for Mr.

Quint requested an extension of time to produce the socio-economic information requested (Exhibit P-14). Five days later, an amended map of the possible application area of a potential order and a new series of socio- economic questions were sent to the persons concerned (Exhibit D-56O). [ 80 ] On February 4, 2016, continued Ms. Couture, she received from the Quebec government the information that was the subject of the access to information request filed in July 2015 (Exhibit D-72). [ 81 ] Three new information meetings were held on March 9, 22 and 31, 2016.

The question of compensation was also addressed at these meetings. Ms. Couture then reiterated to participants that the Act makes it possible to pay compensation, but that in the absence of regulations, the Minister has no authority to consider such a request. Ms. Couture specified, however, that since the decision of this Court in Groupe Maison Candiac , the Minister’s position has been that she does have this authority, despite the absence of regulations. However, she was unable to say whether such requests had been made to the Minister since this change of position. [ 82 ] On April 5, 2016, Ms.

Couture received from Mr. Quint’s counsel, in the form of the KPMG report to which I have already referred (Exhibit P-15), the socio-economic information requested from people likely to be affected by the issuance of an emergency order. Ms. Couture stated that a

summary of all the information received was prepared and sent to the people concerned for comment. No comments, she stated, were received. [ 83 ] On May 4, 2016, according to the evidence on the record, Mr. Quint met with representatives of the Minister’s office to explain his concerns regarding the prospect of an emergency order which would have the effect of paralyzing the Symbiocité Project (Exhibit D-56X). [ 84 ] Following the adoption of the Order , Ms. Couture remained involved in the case insofar as her team was responsible for informing the persons affected by the adoption of the Order of its content.

A meeting to this effect, attended by Mr. Quint and representatives of the town of La Prairie, was held on June 22, 2016 (Exhibit D-56AA). [ 85 ] At the end of her testimony in chief, Ms. Couture stated that certain activities could be carried out in the application area of the Order upon obtaining a permit. She indicated that 15 such requests had been received since the Order was made and that permits had been issued in some cases.

She gave as an example the two permits issued to Hydro-Québec, which has facilities in the area subject to the Order , and one granted to the town of La Prairie allowing it to maintain the cross-country ski trails and the ice rink located in the application area of the Order . On cross-examination, she was asked if her department had received a permit request from a private owner. She replied that it had, stating that this request, which concerned the development of a parking lot, had been abandoned for reasons unknown to her.

However, she acknowledged that such activity would have been difficult to reconcile with the prohibitions set out in the Order . [ 86 ] On cross-examination, she was also made aware of a series of internal notes from her department (exhibits P-110 to P-117) setting out the Minister’s position that no compensation could be offered to the persons affected by Order , given the absence of regulations to that effect. She was also confronted with the possibility that the type of tree frog present in the application area of the Order may not be the Western Chorus Frog.

She responded that this issue had been resolved by the clarification statement issued by COSEWIC on November 26, 2015 (Exhibit D-53), that is, before the Minister made her decision to recommend that an emergency order be made. D. Mr. Branchaud’s testimony [ 87 ] This witness was employed by Environment and Climate Change Canada from 2003 to 2015. He is a biologist by training. He

began his career at the department as a biologist working on the recovery of species at risk and was a member of COSEWIC between 2007 and 2010. He therefore sat on this committee when it examined the Western Chorus Frog and recommended, in 2008, its designation as a threatened species under the Act .

The witness described COSEWIC’s discussions on the problem related to the type of tree frog found in La Prairie. [ 88 ] He was the one who signed the scientific opinion (Exhibit D-82) given to Minister Aglukkaq in connection with Nature Québec’s petition in May 2013, and the decision she had to make regarding the appropriateness of recommending that an emergency order be issued. He underlined the key elements, namely that the Symbiocité Project posed a real threat to the recovery of the Western Chorus Frog, and that an emergency order was the only tool available to counter that threat. [ 89 ] The main part of Mr.

Branchaud’s testimony, however, consisted of a review of the media coverage related to the plight of the Western Chorus Frog because of real estate development in La Prairie. He first identified two articles from the newspaper Le Devoir published in 2004 in connection with the intervention by Fisheries and Oceans Canada, an intervention which I have already mentioned ( “Ottawa bloque un projet de développement domiciliaire dans un marais à La Prairie” , Exhibit D-33; “Un plan global de protection est nécessaire pour mettre fin au saccage des boisés et des milieux humides” , Exhibit D-34).

The witness clarified that these articles do not discuss the Western Chorus Frog, but added that they do nevertheless speak of the destruction of wetlands where this species lives. [ 90 ] Mr. Branchaud then discussed the media coverage following the first opinion of the provincial recovery team for the Western Chorus Frog, made public in February 2007, which mainly highlighted the absence, at the provincial level, of legal tools to protect the habitats of this so-called “vulnerable” species under provincial legislation on threatened or vulnerable species (Exhibit D-64).

This was how Le Devoir , noted the witness, took an interest in this opinion and published, in its December 21, 2007 edition, a report entitled “La rainette devient moins politique” (Exhibit D-36). [ 91 ] Le Devoir was also interested, noted the witness, in the second opinion of the provincial recovery team for the Western Chorus Frog, this one published in 2010, which echoed the finding of the 2007 opinion, noting that the ineffectiveness of the legal tools available constituted [ translation] “the crux of the problem of protecting the habitats of the Western Chorus Frog” (Exhibit D-90).

This article, entitled “Entendez-vous le cri de la rainette faux-grillon” , was published on June 18, 2010 (Exhibit D-40). The daily newspaper La Presse also took interest in the second opinion of the provincial recovery team for the Western Chorus Frog and published, a few weeks earlier, on April 20, 2010, an

article which reported on it, entitled “Une minuscule grenouille disparaîtra du Québec” (Exhibit D- 37). [ 92 ] Mr. Branchaud then went on to address the media coverage following Nature Québec’s formal demand in the spring of 2013. La Presse reported on this on May 16, 2013, in an

article entitled “Espèce menacée à La Prairie : Nature Québec demande à Ottawa d’intervenir” (Exhibit D-38). It discussed it again on June 11, 2013, in an

article entitled “Milieux humides : Nature Québec craint le scénario « Laval » à La Prairie” , in which La Presse took another look at the steps taken by Nature Québec (Exhibit D-39). [ 93 ] On February 26, 2014, continued the witness, La Presse published an

article entitled “Milieux humides : des écologistes pressent Québec d’agir” (Exhibit D-41), in which some stakeholders denounced the decision of Quebec’s department of the environment authorizing the Symbiocité Project. On April 1, 2014, La Presse reported on the decision of Minister Aglukkaq not to intervene in the Symbiocité Project file in an

article entitled “Espèce menacée : Ottawa n’interviendra pas à La Prairie” (Exhibit D-42). On June 12 of the same year, this same newspaper reported Nature Québec’s decision to go to court to contest Minister Aglukkaq’s decision not to intervene. That

article was entitled “Minuit moins une pour une espèce menacée en Montérégie” (Exhibit D-43). [ 94 ] The witness noted that in February 2015, La Presse published an update to an

article originally published on November 18, 2014, which reported on the results of Western Chorus Frog recovery efforts for the period from 2004 to 2014 (Exhibit D-48), to which I have already referred and which was written on behalf of the organization Ciel et Terre by Isabelle Picard, a biologist specializing in aquatic wildlife who is interested in the fate of this species in Montérégie. This assessment, specified Mr. Branchaud, was an update of a first assessment made in 2004 by this same specialist in the context of a citizen movement for the protection of the Western Chorus Frog. This follow-up

article was entitled “Le déclin s’accélère pour la rainette faux-grillon” (Exhibit D-49). [ 95 ] Finally, Mr. Branchaud referred to articles published in 2013 and 2014 in the local publications Roussillon Express or Tout Express . These articles reported the concerns of some local defenders of the Western Chorus Frog (Exhibit D-76). [ 96 ] Mr. Branchaud also testified as a resident of La Prairie. He has lived there, he said, since the fall of 2003, and his residence is located in Grand Boisé, an area developed by Mr. Quint neighbouring the Symbiocité Project.

He claimed that the presence of the Western Chorus Frog has not gone unnoticed in his residential area. No one here, however, disputes that this species is present in the area of the Symbiocité Project. [ 97 ] On cross-examination, the witness was confronted with a scientific

article which he co-wrote in 2015 and which revisits the question of the true identity of the tree frog present in the La Prairie area ( “A ‘Trilling’ Case of Mistaken Identity: Call Playbacks and Mitochondrial DNA Identify Chorus Frogs in Southern Quebec (Canada) as Pseudacris maculata and Not P. triseriata ” , Exhibit P-121). Asked whether the conclusions of this

article were indeed to the effect that the tree frog present in this area is the Northern Tree Frog, and not the Western Chorus Frog, the witness asserted that the question should be qualified according to whether the species was being discussed in legal or biological terms, and that the conclusions of the

article do not change the correctness of the tree frog’s designation in the Order . He noted in this regard that COSEWIC had been asked twice to clarify this issue. The second, dated November 26, 2015, gave rise to the issuance of a statement by this organization, namely, the “Clarification statement on the taxonomic issues relevant to the status of chorus frogs in Canada” to which I have already referred (Exhibit D-53). [ 98 ] Moving on, Mr.

Branchaud, still under cross-examination, was asked to specify how many versions of the federal recovery program proposal for the Western Chorus Frog preceded the final version issued in December 2015, and how many versions of the scientific opinion related to Nature Québec’s formal demand had been produced before he signed it and sent it to Minister Aglukkaq. After checking, he stated that there were 76 and 31, respectively. [ 99 ] He was also asked to explain a discrepancy between the text of an earlier version of that scientific opinion, dated December

11, 2013 (Exhibit D-100), and the text of the final version, dated December 13, 2013 (Exhibit D-82), regarding what the province was prepared to do to address the concerns raised in the notice. Stressing that this kind of document passes through many hands before being finalized, he explained that the final version reflected his understanding of the Quebec government’s position as to its desire not to intervene to modify the authorizations previously issued for the Symbiocité Project. E. Witnesses from Fisheries and Oceans Canada [ 100 ] These two witnesses, Mr. Guitard and Mr.

Boula, both discussed the intervention of Fisheries and Oceans Canada in relation to citizen complaints received by this department in the mid-2000s regarding a real estate development project expected to bring harm to Smitter’s Marsh, in particular, located in the area where the Symbiocité Project would eventually be carried out. One, Mr. Boula, took over this file from the other, Mr. Guitard. [ 101 ] The plaintiffs objected to these two testimonies, considering them irrelevant.

Although they are at the limit of what is useful to know in order to resolve the present case, I allowed these testimonies insofar as they contribute, in my opinion, to understanding the general context of this dispute. [ 102 ] I note that after receiving these complaints, the town of La Prairie, identified as the proponent of the project in question, was informed, in the summer of 2004, that Fisheries and Oceans Canada considered the Fisheries Act , RSC 1985, c F-14 , applicable to this project, that an authorization under this law would be necessary to allow the completion of the planned work to the extent that it could affect fish habitat, and that an environmental assessment, conducted under the Canadian Environmental Assessment Act , could therefore be required. [ 103 ] Although some complaints mention the Western Chorus Frog as one of the concerns raised, it was not up to Fisheries and Oceans Canada to look closer at it.

Mr. Guitard mentioned that he did not remember whether his department informed Environment Canada of the existence of such complaints, although he did remember having seen a complaint to that department concerning this species. [ 104 ] Mr. Boula took over from Mr. Guitard in January 2006. He was asked to analyze the impact of the planned work on fish and their habitat. To do this, he read over the Genivar report, dated November 2005, which was previously discussed (Exhibit P-10E). Discussions then took place with representatives of that firm. Mr.

Boula stated that, ultimately, the town of La Prairie was notified by Fisheries and Oceans Canada that the work planned in a specific area— the Casimir-Dufresne area—would not be authorized due to the richness and rare nature of the fish habitat there. [ 105 ] As for the other areas included in the planned real estate development, they did not present any major challenges in relation to fish habitat, continued Mr. Boula, although they required further analysis to properly guide the decision-making process (Letter from Fisheries and Oceans Canada to the town of La Prairie dated September 20, 2006, Exhibit D-29D).

For these areas, stated Mr. Boula, protective measures were required, but no formal authorization was needed (Letter from Fisheries and Oceans Canada to the town of La Prairie dated October 27, 2006, Exhibit D-29E). The witness clarified that since no authorization was required under the Fisheries Act , there was no longer a [ translation] “trigger” justifying the continuation of the environmental assessment undertaken by Environment Canada. [ 106 ] On cross-examination, Mr. Boula was unable to describe the exact nature of the work that Fisheries and Oceans Canada did not authorize in the Casimir-Dufresne area.

F. Ms. Bouthillier’s testimony [ 107 ] The last witness presented by the defendant has been employed by the Quebec government for 30 years. She is currently an official working for the Ministère des Forêts, de la Faune et des Parcs. One of her biggest files, she stated, was the recovery of the Western Chorus Frog. Her testimony essentially consisted of listing the studies, reviews, programs, action plans and follow-ups undertaken and decisions made by her department in connection with the recovery of this species. [ 108 ] Ms.

Bouthillier recalled that the Western Chorus Frog has been designated in Quebec as a “vulnerable species” under Quebec legislation on threatened or vulnerable species since 2001. The provincial recovery team for this species already exists. Established in 1998, this team is responsible for collecting all the information available on the Western Chorus Frog in Quebec to determine whether this species qualifies as a species likely to be designated as threatened or vulnerable.

Once the species was designated, the mandate of the recovery team expanded; it now had to advise the Minister of Wildlife on the strategies to adopt and the programs to be put in place to ensure the recovery of the species. [ 109 ] A first recovery plan was prepared in 2001, approved by the ministerial authorities and published. It identified, in particular, the breeding sites of the Western Chorus Frog in La Prairie.

In addition to this recovery plan, a conservation plan for the Western Chorus Frog in La Prairie, of which the witness is a co-author, was prepared the following year (Exhibit D-89) and presented to the authorities of the town of La Prairie. This plan proposed a conservation perimeter which aimed to stop the fragmentation of the species’ habitat and to protect a significant portion of it. [ 110 ] Discussions ensued with various stakeholders, including the town of La Prairie.

A memorandum of understanding involving the town, the Société des Parcs et de la Faune, which then reported to the Minister of Natural Resources and Wildlife, the Quebec department of the environment and a property developer not related to Mr. Quint, Arrondissement de La Prairie Inc., emerged from those discussions (Exhibit P-10C). The memorandum was dated December 17, 2003. The objective of this agreement, from the point of view of the Société des Parcs et de la Faune, was to ensure the creation of a conservation park benefitting, in particular, the Western Chorus Frog in the area concerned. [ 111 ] Ms.

Bouthillier went on to discuss the involvement of her department in examining requests for certificates of authorization

filed under

section 22 of Quebec’s environmental quality legislation. This involvement is sought, specified the witness, when the provincial department of the environment judges that a wildlife component is affected by the project in question. In such a case, her department prepares a wildlife opinion for the provincial environment department. Her role, however, is not to recommend the issuance of the certificate.

She stated that she had worked on preparing a wildlife opinion as part of the certificate the town of La Prairie applied for in 2005 in relation to the Bois de la Commune development project, renamed, as we have seen, as the Symbiocité Project. [ 112 ] This opinion, she specified, was drawn up on the basis of the available data and the information in the Genivar report ordered by the town in support of its certificate application (Exhibit P-10E).

The opinion recommended modifications to the proposed development plan in order to, in particular, improve the conservation balance of the breeding ponds of the Western Chorus Frog and wetlands in general. The witness then described the commitments made by the town of La Prairie in relation to the upcoming issuance of the certificate of authorization (Exhibit P-26) in a letter sent to the Quebec government in March 2008 (Exhibit P-10D.1). [ 113 ] Ms.

Bouthillier went on to describe the Western Chorus Frog Conservation Plan prepared by the provincial recovery team for the species and made public in June 2008 (Exhibit D-64). This plan, recalled the witness, was based on a review of conservation principles carried out the previous year. The witness then returned to the three opinions issued by the recovery team in 2007 (Exhibit D- 64), 2010 (Exhibit D-90) and 2014 (Exhibit P-120) on the situation of the Western Chorus Frog.

She clarified that these three opinions were disseminated to various the stakeholders and departments concerned, with the exception of the 2014 opinion, which was only sent to the deputy minister of the Quebec wildlife department. [ 114 ] On cross-examination, Ms. Bouthillier acknowledged that her department did not oppose the issuance, to the town of La Prairie, of the 2008 certificate of authorization (Exhibit P-26) and that the developable territory subject to the 2003 memorandum of understanding (Exhibit P-10C) was located within the perimeter of the conservation park proposed in 2002 (Exhibit D-89).

Asked about the specific requests from her department for the protection of the Western Chorus Frog in the wildlife opinion filed along with the application that would result in the granting of the 2008 certificate of authorization, she admitted that all her department’s requests had been met by the plaintiffs or by the town and that the conservation park had been enlarged by more than 20 hectares. IV. SECTIONS 80 AND 64 OF THE ACT [ 115 ]

Section 80 of the Act gives the Governor in Council, on the competent minister’s recommendation, the power to make an emergency order for the protection of a species designated as threatened, particularly where the Minister is satisfied that the species concerned faces imminent threats to its survival or recovery.

Such an order may identify any habitat that is necessary for the survival or recovery of the species in question in the area to which the order relates and prohibit any activity that exposes the species to these imminent threats. [ 116 ] More specifically, subparagraph 80(4) (c)(ii), under which the Order was made, empowers the Governor in Council to make an emergency order for the protection of any species so designated, whatever it is and whatever its range.

In other words, this provision empowers the Governor in Council to make an emergency order, whether or not the designated species concerned is an aquatic species or a protected migratory bird species, within the meaning of the Act , or whether or not its range is on federal land, in the exclusive economic zone of Canada or on the continental shelf of Canada, once again, within the meaning of the Act . [ 117 ] For convenience, the text of

section 80 of the Act is reproduced in full as an appendix to this judgment. [ 118 ] For its part,

section 64 of the Act confers on the competent minister the power, in accordance with the regulations adopted for this purpose, to “provide fair and reasonable compensation to any person for losses suffered as a result of any extraordinary impact of the application of . . . an emergency order” , in particular. [ 119 ] These regulations, which still do not exist, as we have seen, may, in particular, set the procedure to be followed to claim compensation as well as the method of determining the right to compensation, the amount of loss suffered and the amount of the compensation in respect of any loss. [ 120 ]

Section 64 of the Act provides as follows: Compensation Indemnification 64(1) The Minister may, in accordance with the regulations, provide fair and reasonable compensation to any person for losses suffered as a result of any extraordinary impact of the application of 64(1) Le ministre peut, en conformité avec les règlements, verser à toute personne une indemnité juste et raisonnable pour les pertes subies en raison des conséquences extraordinaires que pourrait avoir l’application: (

a) section 58, 60 or 61; or

a) des articles 58, 60 ou 61; (

b) an emergency order in respect of habitat identified in the emergency order that is necessary for the survival or recovery of a wildlife species.

b) d’un décret d’urgence en ce qui concerne l’habitat qui y est désigné comme nécessaire à la survie ou au rétablissement d’une espèce sauvage. Regulations Règlements

(2) The Governor in Council shall make regulations that the Governor in Council considers necessary for carrying out the purposes and provisions of subsection (1), including regulations prescribing

(2) Le gouverneur en conseil doit, par règlement, prendre toute mesure qu’il juge nécessaire à l’application du paragraphe (1), notamment fixer:

(

a) the procedures to be followed in claimingcompensation;

a) la marche à suivre pour réclamer uneindemnité;(

b) the methods to be used in determining theeligibility of a person for compensation, theamount of loss suffered by a person and theamount of compensation in respect of anyloss; and

b) le mode de détermination du droit àindemnité, de la valeur de la perte subie etdu montant de l’indemnité pour cette perte; (

c) the terms and conditions for theprovision of compensation.

c) les modalités de l’indemnisation. V. DEFENDANTS’ DESIGNATION [121] This action was directed, jointly and severally, against Her Majesty the Queen, the Attorney General of Canada and theMinister of the Environment and Climate Change. The Attorney General maintains that this designation is problematic, being of theopinion that, according to the combined effect of subsection 48(1) of the Federal Courts Act, RSC 1985, c F-7, and the

schedule to thatAct, only Her Majesty the Queen may be named as the defendant in the case. His objection, he continues, also finds support in doctrine(Michael H.

Morris and Jan Brongers, The 2019 Annotated Crown Liability and Proceedings Act, Toronto, Carswell, 2019, at p 173;Bernard Letarte et al., Recours et procédure devant les Cours fédérales, Montréal, LexisNexis, 2013, at p 163 [Recours et procédure]). [122] The plaintiffs argue that this objection is moot and not based on any provision of the Federal Courts Act or the Rules, that theauthorities that support it do not have the scope that the Attorney General attributes to them and that, in any event, there is good reasonhere to also designate the Attorney General and the Minister as defendants. [123] I disagree. [124] To begin with, I would like to point out that the Court has the power to change the designation of the parties, if it considers thatit is incorrect, right in the conclusions of the judgment it is called upon to render (see, for example: Magy v Canada (Public Safety andEmergency Preparedness), 2019 CF 722 , 2019 FC 722; Okonkwo v Canada (Citizenship and Immigration), 2019 FC 1330 atpara 1).

Although neither the Federal Courts Act nor the Rules provide for a specific procedural vehicle for dealing with this type ofissues, the Court frequently deals with motions or requests of this nature (see, for example: Bergeron v Canada (Correctional Service),2016 FC 235 at paras 3–8). This is undoubtedly, in my view, part of its inherent or implied power to enforce the procedure governing theproceedings brought before it (Recours et procédure, at pp 12–13). [125] It is true that the wording of

section 48 of the Federal Courts Act, which provides that the document instituting proceedingsagainst the Crown “may be in the form set out in the schedule”, which

schedule identifies “Her Majesty the Queen” as defendant, ispermissive, not imperative. However, the jurisprudence is clear, in my view, that if, in a proceeding instituted, as here, against the federalCrown under

section 17 of the Federal Courts Act, no relief is claimed, in an individual capacity, from the Attorney General, a ministeror other Crown servant, it is not appropriate to designate the Attorney General, that minister or that other servant as a defendant in theaction (Rodriguez v Canada, 2018 FC 1125 at para 5; Kealey v The Queen, (FC), [1992] 1 FC 195 at para 64;Federal Courts Practice 2020, Toronto, Carswell, 2019, at p 301 [Federal Courts Practice]). [126] This approach is more consistent, in my opinion, with the law governing the extracontractual civil liability of the federal Crown,according to which, as we will see, this statutory liability can be engaged, in a case like ours, only for the fault of public servants.

In sucha context, designating both Her Majesty and her servants as defendants when the latter are not being sued in their personal capacity, as isthe case here, appears contrary to the reality proper to this right. [127] The designation of public servants as defendants is, of course, still possible if they are sued personally, but in such a case, ifthey are summoned to appear in Federal Court, the jurisdiction of the Court to deal with these claims is not a given (Peter G.

WhiteManagement Ltd v Canada (Minister of Canadian Heritage), 2006 FCA 190; Apotex Inc v Ambrose, 2017 FC 487; Federal CourtsPractice, at p 84). [128] The style of cause in this case will therefore be changed so that only Her Majesty the Queen appears as defendant. This changein no way weakens, of course, the rights that the plaintiffs would have to demand—and obtain—full execution of a judgment rendered intheir favour. VI. ISSUES [129] The present case, in my view, raises the following three issues: a.

Because the Governor in Council had not made regulations under subsection 64(2) of the Act at the time or following the issuanceof the Order and because the Minister believed that she was justified in not exercising the discretionary power of compensationvested in her under subsection 64(1) of the Act, in either case or in both cases, is it a fault engaging the civil liability of thedefendant?b.

Assuming this to be the case, should the plaintiffs, in planning to carry out a real estate project in an area known to harbour aspecies at risk, be considered to have taken a business risk for which they alone must assume the consequences, including thoseforming the basis of their claim based on Crown liability?

In other words, if the plaintiffs are to be considered as having taken abusiness risk in this case in relation to the presence of the Western Chorus Frog in the area planned for the completion of phases 5and 6 of the Symbiocité Project, does this constitute a bar or a complete defence, as the defendant claims, against their claim basedon Crown liability?c. Alternatively, did making the Order effect a disguised expropriation of the plaintiffs’ property included in the Order’s application

area? [130] For the reasons that follow, I find that the first and third questions should be answered in the negative and that it is thereforeneither necessary nor desirable to answer the second question. VII. ANALYSIS A. Is the federal Crown’s extracontractual civil liability engaged in this case?

(1) Plaintiffs’ position [131] The plaintiffs essentially argue that the defendant, first by the Governor in Council’s actions and subsequently by theMinister’s, failed to meet her obligations under

section 64 of the Act.

They maintain, however, that these obligations were unambiguous,insofar as the Governor in Council was required, by the wording of subsection 64(2), to adopt regulations implementing thecompensation plan instituted by this provision, which it has not yet done to date, while the Minister could not rely on the absence of suchregulations to refuse to consider paying compensation in relation to the Order. [132] These omissions, both on the part of the Governor in Council and of the Minister, constitute, according to the plaintiffs, by theircumulative effect, a civil fault engaging the liability of the federal Crown.

In particular, the plaintiffs argue that the Governor in Council,in making an emergency order in relation to private property for the first time since the adoption of the Act, therefore placed itself atodds with the Act, even though the Act made the adoption of regulations under subsection 64(2) a mandatory obligation. [133] The plaintiffs submit that this failure to act has, in a way, neutralized the power granted to the Minister to compensate them, theMinister having felt justified in not acting in turn for lack of regulations.

This situation persisted, they add, despite the clearpronouncements of the Court in Groupe Maison Candiac and Îlot St-Jacques that the absence of such regulations could not have theeffect of carrying out such a neutralization.

This situation, according to the plaintiffs, is not only contrary to the letter of the Act, but alsoto its underlying principles and to the intention clearly expressed by Parliament in the debates which preceded its enactment. [134] This is therefore an abuse of right, according to the plaintiffs, the government being unable, by its own turpitude, to deny a rightor a benefit specifically conferred by the Act. [135] In response to the defendant’s argument that a remedy for damages is not the appropriate remedy in the circumstances of thiscase, the plaintiffs argue that it must be rejected for three reasons. [136] First, it is with full knowledge of the facts, they say, that the Governor in Council and the Minister acted in this way since thequestion of compensation was raised at the first meeting that followed, in December 2015, the Minister’s decision to recommend theadoption of an emergency order.

However, there are still no regulations or a ministerial

[…]