Lynn v. Nova Scotia (Lands and Forestry), 2020 NSSC 307

SUPREME COURT OF Nova Scotia Citation: Lynn v. Nova Scotia (Lands and Forestry) , 2020 NSSC 307 Date: 20201113 Docket: Hfx No. 499038 Registry: Halifax Between: Maryn Rebecca Lynn and Sandra Catherine Lynn Applicants v. Nova Scotia Minister of Lands and Forestry, The Attorney General of Nova Scotia Respondents Judge: The Honourable Justice Ann E. Smith Heard: September 15, 2020, in Halifax, Nova Scotia Counsel: James Ian Simpson, for the Applicants Myles H.

Thompson, for the Respondents By the Court: Introduction [ 1 ] The Applicants, Maryn Lynn and Sandra Lynn, filed a Notice for Judicial Review on July 10, 2020. The Applicants seek judicial review of the contents of an email sent to Beth Skerrett from the Minister of Lands and Forestry dated June 5, 2020. The Minister’s email was in response to a complaint from Ms. Skerrett regarding the construction of shoreline protection on James Beach, Black Point, Nova Scotia by Wayne Chisholm. Ms. Skerrett wishes to be added as an Applicant in this proceeding.

The Applicants do not oppose Beth Skerrett being added as an Applicant. The Respondents take no position on the matter. [ 2 ] The Applicants say that the contents of the Minister’s email to Beth Skerrett was a “decision” and that decision was contrary to the Nova Scotia Beaches Act , the Crown Lands Act and the Endangered Species Act . They seek judicial review of that “decision.” [ 3 ] On July 28, 2020, the Attorney General of Nova Scotia (“AGNS”) filed a Notice of Participation on behalf of the Minister.

In it, the Minister maintains that the decision of the Department of Lands and Forestry (“DLAF”) regarding the shoreline protection on the Chisholm property was communicated to the Applicants on January 14, 2020, and that therefore the Applicants’ Notice of Judicial Review was late filed. [ 4 ] Pursuant to Civil Procedure Rule 7.05(1)(a), a person who seeks judicial review of a decision must file a notice of review 25 days after the decision is communicated to the person. [ 5 ] When Maryn Lynn and Sandra Lynn filed their Notice of Judicial Review, they also each filed Affidavits.

Also filed was the Affidavit of Beth Skerrett, sworn August 14, 2020. [ 6 ] Wayne Chisholm seeks intervenor status if the judicial review proceeds.

[ 7 ] This Court is scheduled to hear the underlining judicial review on January 20, 2020. Evidence Before the Court [ 8 ] In support of the motion, the Respondents filed the Affidavits of Matthew Reid, Area Manager for Pictou County for the DLAF, as well as the Affidavit of Scott MacEwan, Forestry Technician for Pictou County, working for the DLAF. [ 9 ] The Applicants filed the Affidavits of Maryn Lynn (July 10, 2020) and Supplemental (September 3, 2020), the Affidavits of Sandra Lynn and the Affidavit of Beth Skerrett (August 14, 2020). [ 10 ] None of the affiants were cross-examined on their affidavits.

Issues [ 11 ] The Minister and the AGNS moved before this Court on September 15, 2020 for decisions on three matters: 1. What is the applicable date of the decision under review and should this judicial review be dismissed or set aside because it was late filed? 2. If the Notice of Judicial Review was filed on time, should this judicial review nevertheless be dismissed because the Applicants (and the proposed Applicant, Beth Skerrett) lack either private or public interest standing? 3. Should the Affidavits of the Applicants and Beth Skerrett be struck, in whole or in part?

Grounds of Review [ 12 ] The Applicants’ Notice of Judicial Review raises the following grounds of review: Grounds of review The applicant seeks review on the following rounds: The Minister’s definition of the location of the boundary between Crown land and private land at James Beach was unreasonable. The Minister failed to consider relevant factors in coming to his decision. The Minister’s decision that private land extends below the ordinary high water mark at James Beach does not align with the standard and common sense delineation of private and Crown land and is thereby unreasonable.

In the alternative, if the Minister agrees that Crown land and private land at Black Beach ( sic ) is defined by the ordinary high water mark, then the Minister has failed to carry out his statutory duties under the Beaches Act , the Crown Lands Act, and the Endangered Species Act. [ 13 ] The Applicants seek the following relief: Order proposed The applicant requests an order to remit the decision regarding the definition of the boundary between Crown land and private land at James Beach back to the Minister of Lands and Forestry to be remade in consideration of this Honourable Court’s decision.

Issue 1: What is the applicable date of the decision under review and should this judicial review be dismissed or set aside because it was late filed? [ 14 ] The Chisholm family – Helen, Wayne, Janice and Jeffrey, own property on James Beach (sic) at 75 Sandpiper Lane, Black Point, Nova Scotia (PID 01045426) – (the “Chisholm property”). [ 15 ] In the Spring of 2017, the Chisholms undertook shoreline protection and erosion control work to protect their waterfront property from coastal erosion. [ 16 ] The Respondents filed the Affidavit of Scott MacEwan who has been employed for the last 42 years as a Forest Technician for DLAF. [ 17 ] Mr.

MacEwan is also a designated Conservation Officer and holds all the delegated powers and authorities to carry out the administrative and inspection duties of a Conservation Officer pursuant to the Beaches Act , Crown Lands Act , Forests Act , Trails Act , Wildlife Act , Provincial Parks Act and Endangered Species Act . [ 18 ] Mr. MacEwan states in his Affidavit that on or about May 18, 2017, he was contacted by a contractor, Bernie Ross of BA Ross Backhoeing and Trucking Ltd., regarding proposed shoreline protection work on James Beach on the Chisholm property. [ 19 ] Mr. MacEwan’s Affidavit provides: 8.

In response to this proposed construction activity, I visited the Chisholm property and determined that no permits were necessary to carry out this work as all the shoreline protection work could be achieved from the inland private property and all rock placement would occur above the mean highwater mark. I took several photos during my site visit …

10. In addition to the site visit, I contacted regional biologist for the DLAF, Shavonne Myers and Bird Studies Nova Scotia program coordinator, Sue Abbot, to determine if there were any issues with the work being carried out during the Piping Plover nesting season. 11. I was advised by Ms. Myers and Ms. Abbot, and I do believe, that the work being carried out at the Chisholm property would not be detrimental to the nesting activity of the Piping Plover. 12. Subsequently, the work was completed with all rock placement above the mean highwater mark.

On June 26, 2017 and October 27, 2017, photographs were provided by the landowners to the DLAF showing the shoreline protection work that was completed . [emphasis added] [ 20 ] In his Affidavit, Mr. MacEwan states that on May 16, 2019, he received an email from Patrick Lynch, a Forester with DLAF, who advised that DLAF Species at Risk Biologist, Mark McGarrigale, and some DLAF summer students were checking on certain piping plover beaches and had seen construction activity on James Beach that appeared to be taking place below the mean highwater mark.

They also observed some armour stone and track marks on the beach. [ 21 ] Mr. MacEwan visited the Chisholm property on May 17, 2019 to observe the work being carried out. He took several photographs of what he observed. [ 22 ] Mr. MacEwan then used DLAF’s GIS software, “ArcMap” to examine the

section of beach washout on James Beach caused by major storms in November 2018. Using the GIS software and pre and post-storm aerial images of the Chisholm property, he generated a map of the Chisholm property which he said showed extensive washout from the November 2018 storms. Mr. MacEwan concluded that the waves and storm surge had washed over the shoreline protection the Chisholms had installed in 2017. [ 23 ] Based on this analysis, Mr. MacEwan determined that the new work (May 2019) being carried out was within the Chisholm’s original property boundary demarked by the 2017 shoreline protection work. Mr.

MacEwan discussed the matter with his area manager, Matthew Reid, and they determined that no regulatory infractions had occurred. [ 24 ] On January 10, 2020 at 8:41 a.m., Maryn Lynn sent an email message to Matthew Reid attaching what she described as a formal complaint against Wayne Chisholm (the “Lynn Complaint”).

The Lynn Complaint is signed by Sandra Lynn, Maryn Lynn’s mother. [ 25 ] The Lynn Complaint states, inter alia , that: Complaint being filed against: Wayne Chisholm 75 Sand Piper Lane, Black Point, Nova Scotia, B0K 1X0 PID 01045426 Background The purpose of this is letter is to register a formal complaint against Mr. Wayne Chisholm, who is illegally developing and modifying James Beach and its associated dune systems. The public has enjoyed free access to and safe passage across James Beach for decades. As a landowner adjacent to the beach, Mr.

Chisholm is required to preserve that public right and manage his private land so that it complements the beach. Mr. Chisholm’s recent construction of three armour rock walls at James Beach violates Sections 2(2) , 6(1) and 8(1) of the Nova Scotia Beaches Act (hereafter referred to as the Beaches Act ). [ 26 ] The Lynn Complaint attached photographs of James Beach and the Chisholm property. [ 27 ] The relief sought in the Lynn Complaint was for the DLAF to order Mr. Chisholm to present his permit(

s) for all prior and ongoing development activities, to remove all rocks and foreign material that violate the Beaches Act , to remove all rocks and foreign material that have been deposited beyond his deeded land and to order Mr. Chisholm to cease ongoing or further developments and alterations of the beach and associated dune systems that violate the Beaches Act . [ 28 ] After receiving the Lynn Complaint, Mr. Reid contacted Scott MacEwan. [ 29 ] Mr. Reid and Mr. MacEwan reviewed the Lynn Complaint. They reviewed the photographs that Scott MacEwan had taken in 2017, 2018 and 2019 and the GPS map Mr.

MacEwan generated in May 2019 showing the estimated area of washout following November 2018 storms on the Chisholm property. They also looked at photographs Wayne Chisholm had submitted to DLAF on June 26, 2017 and October 27, 2017. [ 30 ] On January 10, 2020, after Mr. Reid and Mr. MacEwan reviewed the Lynn Complaint, photographs and the GPS map, they concluded that the work being carried out by the Chisholms was within the original private property boundary that was demarked by the shoreline protection installed by Mr. Chisholm in 2017.

They determined that November 2018 storms had not altered the original property boundary between the Chisholm property and Crown land. [ 31 ] On January 14, 2020, Mr. Reid sent Maryn Lynn and Sandra Lynn an email message in response to the Lynn Complaint. The email stated:

From: Reid, Matthew Sent: January 14, 2020 10:31 AM To: Lynn.Maryn; ‘Sandra Lynn’ Cc: MacEwan, Scott; Sarson, Robert Subject: RE: FAO Nova Scotia Department of Natural Resources – Complaint Submission Hi Sandra, I am writing in regards to our conversation that we had last week. I discussed with my Technical staff about the property in question at James Beach, Black Point. The property owner in question had constructed a barrier rock wall above the ordinary high water mark back some years ago. As discussed we have photo imagery that shows his property and the adjacent land/dune.

This wall was constructed above the ordinary high water mark and therefore he was within his right to build the rock barrier to protect his property. Since the protection wall was built there have been several if not more significant weather/storm events that have removed sand/dune adjacent to the landowner. Now the property stands out as sand and dunes have been removed by storms and the landowner continues to protect his property that was established back years ago by the barrier that is in place today . I hope this provides some clarification to this situation.

If you require any further information please feel free to contact me, (902)922-4000 Regards, Matthew [emphasis added] [ 32 ] Approximately four months later, on May 6, 2020, Sandra Lynn sent an email message to Matthew Reid with the “Re” line “FAO Nova Scotia Department of Natural Resources – Complaint Submission.” Ms. Lynn starts the email as follows: Dear Mr. Reid, Sadly I am writing in respect to ongoing illegal dumping of foreign material on James Beach, Black Point by Wayne Chisholm who owns recreational property adjacent to this public beach.

This letter is further to my formal complaint filed on January 10, 2020 and your response and explanation of January 14, 2020 which is both unacceptable and incorrect. Today Mr. Chisholm has converted James Beach, once again, into a heavy construction zone. Images of activity today are embedded below for your reference. This on top of his illegal activity late last year (December 2019) which was the genesis of my original complaint. I attach my letter and images for your review . [emphasis added] [ 33 ] It is clear from the content of this email, that Sandra Lynn disagreed with the contents of Mr.

Reid’s January 14, 2020 response to her January 10, 2020 complaint. It is equally clear, however, that Sandra Lynn was raising new concerns about the Chisholm’s activities. She refers to her email as a Complaint Submission in the “Re” line and refers to: • Ongoing illegal dumping • Today , Mr. Chisholm has converted James Beach, once again, into a heavy construction zone . Images of activity today are embedded below for your reference. [ 34 ] In his Affidavit, Scott MacEwan refers to Sandra Lynn’s May 6, 2020 email as a “reply” to Matthew Reid’s January 4, 2020 email.

Scott MacEwan states in his Affidavit that Sandra Lynn’s May 6, 2020 email was her expression of disagreement and concern with the January 14, 2020 decision. [ 35 ] What Scott MacEwan does not refer to at all in his Affidavit were those parts of Sandra Lynn’s email referring to “new” construction on the beach by the Chisholms. Mr. MacEwan does not refer to the photographs embedded in Ms. Lynn’s email showing a bulldozer or other heavy construction equipment on the site “today.” [ 36 ] Nor does Mr.

MacEwan’s Affidavit say that he took any steps to determine whether the work Sandra Lynn said was taking place that day required permits or was in compliance with regulations. [ 37 ] Scott MacEwan states in his Affidavit that after receiving Sandra Lynn’s May 6, 2020 email, he began to receive emails from various individuals regarding the shoreline protection. [ 38 ] Like Scott MacEwan, Matthew Reid also refers to Sandra Lynn’s May 6, 2020 email to him as a “reply” to his January 15, 2020 email. Mr. Reid, as is the case with Mr.

MacEwan, says nothing at all in his Affidavit about the fact that Sandra Lynn was complaining about ongoing construction by Mr. Chisholm, including the fact that she observed, that day, a large piece of heavy equipment on the property. Mr. Reid’s Affidavit does not refer to any step he took in relation to this new information. [ 39 ] On May 25, 2020, Beth Skerrett submitted to the DLAF a complaint on behalf of a private Facebook group she organized called the “Black Point Beach Preservation Group.” The complaint noted that the Facebook group had 220 members.

She resubmitted this complaint on May 29, 2020, not having received a response. In her affidavit Ms. Skerrett states that as of the time she swore her

affidavit (August 14, 2020) the Facebook group had over 530 members. [ 40 ] The evidence before the Court discloses that the Black Point Beach Preservation Group is a private Facebook group made up of citizens concerned with the shoreline protection installed on the Chisholm property. [ 41 ] The first page of the Black Point Preservation Group Complaint shows a photograph labeled as “Photo: ongoing development of armour rock wall/pier on James Beach (May 6, 2020).” This photograph shows a piece of heavy construction equipment on the Chisholm property. [ 42 ] The second page of the Complaint provides, inter alia : Nature of this dispute The purpose of this is document is to register a formal complaint against the property owners, who we believe are illegally developing and modifying James Beach and both directly and indirectly interfering with its associated dune systems.

The property owners recent construction (beginning late 2018 through to present day ) of three armour rock walls at James Beach violates the Nova Scotia Beaches Act hereafter referred to as the Beaches Act ). The latest development took place in the winter 2019/20 and during beach closures brought on by the Covid-19 pandemic , so was not obvious to many residents until near completion. The work resulted in a new armor rock barrier that prevents residents and visitors from enjoying safe, unencumbered access to the natural beach shoreline.

This group is concerned with the following actions by the property owners: [emphasis added] [ 43 ] The Black Point Beach Preservation Group Complaint is clearly referencing new activity as well as previous activity on the Chisholm property. [ 44 ] On May 28, 2020, Beth Skerrett sent an email to a large number of recipients, including the Minister of Lands and Forestry and the leader of the official Opposition in which she asks them to “escalate their concern” over the Black Point Beach Preservation Group’s complaint of May 25.

She states that “[T]oday there is a crane on the beach with paving stones and sod.” [ 45 ] On June 5, 2020, Ms. Skerrett received a response to the Black Point Beach Preservation Group Complaint from Iain Rankin, Minister of Lands and Forestry. This response, in its entirety is as follows: From: Minister, Lands and Forestry ≤MINDNR@novascotia.ca≥ Sent: Friday, June 5, 2020 6:41 PM To: b***********t@hotmail.com ≤b***********t@hotmail.com≥ Subject: Re: complaint against the construction of an armor rock wall/pier structure on James Beach in Black Point, Nova Scotia (Log # 2020-00782) Ms.

Beth Skerrett b**********t@hotmail.com Dear Ms. Skerrett: I am responding to your email of May 25, 2020, concerning your complaint against the construction of an armor rock wall/pier structure on James Beach in Black Point, Nova Scotia. Staff from the Department of Lands and Forestry and NS Environment have visited the site at James Beach and reviewed the situation. They found no evidence of a violation of the Crown Lands Act , the Endangered Species Act or the Beaches Act .

There is no legal authority under the Beaches Act for the Minister to issue an order in the nature of a “cease and desist.” In 2017, erosion control work was undertaken on James Beach. No permits were required, as the work was within the boundaries of private land, above the mean highwater mark. In addition, no work was done on submerged crown land. A number of your questions are legal in nature and request that the law be applied to your individual circumstances. We recommend that you consult with legal counsel in order to determine your individual, or community, rights with regards to this situation.

We know that Nova Scotians have a deep connection to the ocean and public access to coastline is an ongoing important consideration. I understand that a gap has been put in the wall in question, giving the community safe and unobstructed access to walk along the beach at high tide. This compromise by the landowner to accommodate walkers will enable Black Point residents and other visitors to enjoy the beach. Sincerely, Original signed by Iain Rankin Minister of Lands and Forestry

[emphasis added] [46] Mr. Rankin states that “[S]taff from the Department of Lands and Forestry and Nova Scotia Environment have visited the siteat James Beach and reviewed the situation.

They found no violation of the Crown Lands Act, the Endangered Species Act or theBeaches Act.” [47] However, there is no evidence before the Court that DLAF staff or staff from Nova Scotia Environment visited the Chisholmproperty, as a result of Beth Skerrett’s complaint on behalf of the Black Point Beach Preservation Group, or Sandra Lynn’s May 6, 2020complaint, despite being sent photographs showing heavy equipment on the site and being advised by Sandra Lynn that work was beingcarried out “today.” [48] The Minister’s email message reads as though staff had visited the beach and “reviewed the situation” as a result of SandraLynn’s May 6, 2020 complaint or Beth Skerrett’s May 25, 2020 Complaint, when in fact there is no evidence before the Court on thismotion that that was the case. [49] This Court finds that Beth Skerrett’s email constituted a new complaint, as did Sandra Lynn’s May 6, 2020 complaint.

TheMinister could choose to not investigate these complaints, but Sandra Lynn’s May 6, 2020 complaint is, in my view, certainly not a reply(as stated in the Reid and MacEwan Affidavits) to an email sent to Sandra Lynn some four months earlier.

In fact, Sandra Lynn neverreceived a written response from anyone to her May 6, 2020 email. [50] The Respondents argue that the Minister’s June 5, 2020 email to Beth Skerrett, was not a new decision or a reconsideration ofthe January 14, 2020 decision, but a courtesy response to what it characterizes as the public email campaign started by the Black PointBeach Preservation Group. They refer to the decision of Noël J. of the Federal Court, Trial Division in Dumbrava v.

Canada (Minister ofCitizenship & Immigration, 1995 CarswellNat 1229 as confirming that in order for a response to constitute a new decision subject tojudicial review, there must be a fresh exercise of discretion such as a reconsideration of a prior decision on the basis of new facts: Whenever a decision-maker who is empowered to do so agrees to reconsider a decision on the basis of new facts, a fresh decision willresult whether or not the original decision is changed, varied or maintained.

What is relevant is that there be a fresh exercise ofdiscretion, and such will always be the case when a decision-maker agrees to reconsider his or her decision by reference to facts andsubmissions which were not on the record when the original decision was reached. (para. 15) [51] The Respondents argue that the Black Point Beach Preservation Group Complaint did not present any new facts to the Ministerthat were not previously presented to Mr.

Reid and nor did the Minister agree to “reconsider” the complaint based on new facts. [52] This position ignores the fact that both Sandra Lynn’s May 2020 complaint and the Black Point Beach Preservation GroupComplaint refer to new work on the Chisholm property taking place then (May 2020) with photographs showing heavy equipment on theChisholm property. [53] The principles in Dumbrava were recently restated in Global Marine Systems Ltd v Canada (Transport), 2020 FC 414 (“GlobalMarine”).

This reasoning is consistent with the Nova Scotia authorities indicating that a “decision” for the purposes of Civil ProcedureRule 7.01 requires an exercise of discretion, and ongoing communication amounting to clarification or reiteration of the decision will notextend the filing deadline where a decision has been rendered (para. 90). [54] In Global Marine, the applicant sought judicial review of a decision by Transport Canada that certain activities of a vesseloperated by the applicant were classified as marine activities of a commercial nature for licensing purposes under the Coasting TradeAct, SC 1992, c 31.

The Minister submitted that an email confirming this classification was no more than an advance ruling or courtesyletter, and was not a reviewable administrative action. The Minister also argued that the email was the last of a series of communicationssetting out the same conclusion, so that the judicial review application was out of time (paras. 22-23). After reviewing a course ofcorrespondence that lasted for more than a year, the court was “not persuaded that the June 20, 2019 email, which marked theculmination of an extended discussion, can be properly analogized to a courtesy letter.

Courtesy letters are typically written in reply to arequest that a prior decision be reconsidered (para. 52).” The court cited earlier Federal Court decisions on the distinction betweencourtesy replies and decisions, including Brar v Canada (Minister of Citizenship and Immigration ) (1997), (FC), 140FTR 163, [1997] FCJ No 1527 (FCTD): [55] Similarly, Brar ... concerned the judicial review of a decision of a visa officer refusing to reconsider the refusal of the applicant’sapplication for permeant [sic] residence.

There this Court held that: [7] In these proceedings the applicant Brar is not challenging the visa officer's refusal letter of January 23, 1996. He is rather,challenging the letter of July 8, 1996, which refused the request for reconsideration. The respondent characterizes that letter as simply a“courtesy response”, which does not constitute a “decision” as that phrase is employed in

section 18.1 of the Federal Court Act. [8] I agree with the respondent. This view is supported by the decision of Noël J. in Dumbrava v. M.C.I., where it was decided thatwhen there is a fresh decision based on new facts, there is always “a fresh exercise of discretion”. In the case at bar, the visa officer didnot refer to any new facts or submissions nor did she state that she was reconsidering her decision. As was stated by McKeown, J. inDhaliwal v.

M.C.I., counsel cannot extend the date of decision by writing a letter with the intention of provoking reply". [9] On this record, there is nothing to explain why Brar’s counsel did not file a timely application for judicial review or anapplication for extension of time. I agree with respondent’s counsel that the letter of July 8, 1996, is merely a courtesy response and notsubject to review pursuant to

section 18.1... [Emphasis added.]

[55] The court in Global Marine concluded that it was not clear that a prior final decision had been made and communicated, butthat, “due to a change of circumstances and new information, Transport Canada utilized a fresh exercise of its discretion and made a newdecision (para. 61).” [56] The court summarized: [62] In sum, based on its communications and actions, it is not clear that Transport Canada made a prior final decision. Therefore, itsJune 20, 2019 email is not a courtesy letter as it is not a response to a request for reconsideration.

In any event, even if I am wrong andeven if Transport Canada made a prior final decision but decided to utilize a fresh exercise of its discretion to consider the newsubmissions of Global Marine that it invited, and then made a new decision on June 20, 2019, that new decision would not be a mereresponse to a reconsideration request. [57] In my view, the law drawn from the line of cases culminating in Global Marine supports the view that where an interestedperson has brought new facts to the attention of a decision-maker, and the decision-maker investigates and provides a further response,this is more than a courtesy response.

It is not a mere reiteration or further explanation of a decision already provided, even if there hasbeen a previous related decision. In Global Marine it was notable that Transport Canada had invited further facts and argument; in thepresent case, the new facts and argument were unsolicited. However, the decision-making authority nevertheless responded.

As thecourt said in Dumbrava, “[w]henever a decision maker who is empowered to do so agrees to reconsider a decision on the basis of newfacts, a fresh decision will result whether or not the original decision is changed, varied or maintained (para. 15).” [58] The fact that the final correspondence from the Minister of June 14, 2020 was vaguely worded, i.e. “Staff from the Departmentof Lands and Forest and NS Environment have visited the site at James Beach and reviewed the situation,” with no evidence before theCourt that that was the case, should not allow the Minister to claim that there was no new decision in circumstances where the recordshows that Sandra Lynn’s May 2020 complaint and the Black Point Beach Preservation Group Complaint each complained about a newset of facts that did not exist at the time of the January 2020 decision.

The June 14, 2020 letter suggests that there was a fresh exercise ofdiscretion in response to a new set of facts. This was not simply reiteration of a previous decision, and if that is what it was meant to be,the Minister could have said so.

But even if the Minister had made such an assertion, in my view there would still be a strong argumentthat addressing a new set of facts reported by a different individual takes the situation out of any reasonable claim that this was merely acourtesy reply. [59] I conclude that it would be open for the Minister to decline to consider new information (absent a specific statutory orprocedural fairness obligation to consider it).

In that case, I would expect the Minister’s response to show that the new information wasnot being addressed and therefore the Minister was reiterating the original (January 2020) decision. [60] On the other hand, where (as is the situation on the evidence before this Court) it is impossible to say from the response therewas a new exercise of discretion, and this Court only has the evidence, which I have reviewed previously, which indicates that there wasnew information before the Minister, I find that the Minister’s response is a new decision. [61] The Minister should not be able to avoid judicial review simply by using vague language in the June 2020 response to BethSkerrett, and then make a self-serving argument that the response does not show that there was a new exercise of discretion. [62] In conclusion, having considered the January 14, 2020 communication to Ms.

Lynn and the June 5, 2020 communication to Ms.Skerrett, I find that the latter cannot be characterized as mere confirmation of the January 2020 decision or a “courtesy response.” Eventhough the Minister confirmed the January 2020 decision, I find that the June 2020 communication is a separate decision. The Januaryand June communications may have been related, but they were separate, even if the June decision confirmed the January decision. [63] Accordingly, I am not prepared to dismiss the motion for judicial review on the basis it was filed too late.

To find otherwisewould be to advantage the Minister in circumstances where there is no evidence that he considered new, relevant information and sent avaguely-worded letter in response to fresh complaints. [64] In conclusion, the decision under review is the Minister’s communication to Beth Skerrett of June 5, 2020, and not the January14, 2020 email from Matthew Reid to Sandra Lynn and Maryn Lynn. Accordingly, the Notice of Judicial Review filed by theApplicants on July 10, 2020 was filed within the time period mandated by Civil Procedure Rule 7.05(1)(a).

Issue 2: Should this judicial review be dismissed or set aside because the Applicants lack public or private interest standing tobring this Judicial Review? [65] The law of locus standi governs who may apply to the court for relief. Bryson J.A., in Canadian Elevator Industry EducationProgram (Trustees of) v. Nova Scotia (Elevators and Lifts Act), 2016 NSCA 80, described private and public interest standing as follows: [13] The rules and application of standing differ depending on whether one if seeking private or public interest standing, because theinterests engaged differ.

Vindicating private rights is the interest of the former. The latter is a matter of maintaining the rule of law as ageneral principle, regardless of whether a private right or interest is involved. As Chief Justice Laskin, speaking for the majority, said inThorson v.

Attorney General of Canada, (SCC), [1975] 1 S.C.R. 138, at p. 145: [ . . . ] it would be strange and, indeed, alarming, if there was no way in which a question of alleged excess of legislative power, a mattertraditionally within the scope of the judicial process, could be made the subject of adjudication. [66] In Judicial Review of Administrative Action in Canada (Toronto: Thomson Reuters, 2017 at 4:1000), the authors note thataccess to the court can be sought in two ways: (

a) Private interest standing: as a right to those who allege that they have sustained some legal wrong or a discrete injury as a result ofthe impugned administrative action; or

(

b) Public interest standing: it is within the discretion of courts to permit a private individual who has suffered no personal harm tochallenge the validity of administrative action when no one else is likely to do so. Private Interest Standing [67] In Finlay v. Canada (Minister of Finance), (SCC), [1986] 2 S.C.R. 607 (“Finlay”), the Supreme Court ofCanada set forth the requirements to be granted private interest standing.

A party must demonstrate that they are “exceptionallyprejudiced by the wrongful act” or have “a special interest in the subject matter of the action” or that they are somehow “moreparticularly affected than other people.” The nature of the interest has been described in various ways in the case law, typically requiringthe applicant to show that there is some direct, substantial, immediate, or real impact on their interests, although this need not rise to thelevel of a formal legal right. [68] Canadian Elevator Industry Education Program (supra) involved an objection by the Trustees of the Canadian ElevatorEducation Program to the decision of the Chief Inspector under the Elevator and Lifts Act to authorize an alternative training program forelevator mechanics.

Certification was required to be through a program run by the Trustees or an “equivalent” program acceptable to theChief Inspector. The Province argued that the Trustees lacked standing. [69] Addressing private interest standing, Bryson J.A. observed that [c]onsideration of the parties’ legal rights or obligations is appropriate when assessing their potential interest in a proceeding. It is themost common ground sustaining private interest standing.

But the analysis is not confined to legal rights and obligations… (para. 25) [emphasis added] [70] Bryson J.A. went on to cite with approval the considerations going to private interest standing identified by Sarah Blake inAdministrative Law in Canada: [42] In contrast to the Trustees, the Province refers to the following factors described by Sarah Blake in her text Administrative Law inCanada, 5th ed (Markham: LexisNexis, Canada 2011), that should be considered when determining private interest standing: (

a) Statutory purposes; (

b) The subject matter of the proceeding; (

c) A person’s interest in the subject; (

d) The effect that decision might have on that interest. [43] The considerations proposed by the Province are more comprehensive and better capture the discussions in the jurisprudence. Importantly, the “merits” of the case are not a consideration. As we shall see, courts have even been ambivalent about the importance ofthe merits in cases of public interest standing. [71] The application of the law respecting private interest standing in respect of judicial review was recently considered by BrothersJ. in Rudderham v. Scotian Materials Ltd., 2017 NSSC 330.

The applicants sought judicial review of a Development Officer’s decisionapproving a mobile asphalt and concrete plan on property owned by the respondent Scotian Materials, arguing that the decision wasinconsistent with the relevant land-use bylaw and the municipal planning strategy. The applicants were local residents who objected tothe permit. [72] Brothers J. noted that assessment of standing requires a “contextual approach” not confined to a consideration of “legal rightsand obligations” (para. 39).

With respect to the merits, she noted Bryson J.A.’s remark in Canadian Elevator that the merits should not matter when considering private interest standing for the simple reason that a party who has an interest in theproceeding should not need to demonstrate the strength of his case to obtain the standing to make it” (Canadian Elevator at para. 37,cited in Rudderham at para. 40). [73] In considering the relevant statutory scheme under the HRM Charter, Brothers J. noted that an appeal from a developmentofficer’s decision was “set up as a bi-lateral process.” In particular, an “aggrieved person” had only limited rights of appeal, and no rightto appeal a development officer’s decision, leading to the conclusion that “the legislature did not intend an aggrieved person to have aright of appeal from an approval of a [development officer].” Providing the applicants no right of appeal or notice of the developmentofficer’s decision, or of consultation, the statutory scheme did “not support or strengthen the applicants’ case for standing.

It, in allrespects, weakens their case.” As a result, the applicants had “the burden of showing some special interest in the matter in order to meetthe test of private interest standing.” [74] In terms of the applicants’ interest in the subject matter, Brothers J. reviewed the applicants’ history of involvement in variousproceedings involving the respondent’s activities. The applicant Rudderham stated in her affidavit her belief that the proposed asphaltand concrete plant would “create a nuisance, affect her home value and affect her well water” (paras. 68-76).

Rudderham said that sheexpected “increased dust, smoke, noise, traffic and runoff” but Brothers J. said that Rudderham provided “no basis for these baldassertions” (paras. 77-78). The other applicant, Isenor, made similar claims. [75] Brothers J. concluded that the affidavits of both applicants were “rife with conjecture” and offered no “clear, admissibleevidence of detriment or impact to the applicants’ legal or property interests” (para. 85). [76] Justice Brothers determined that the applicants did not have private interest standing to seek judicial review of the developmentofficer’s decision. She stated:

[88] In making these comments, I acknowledge the authorities and the trends of the courts to be more generous in finding private interest standing to those who challenge decisions of public authorities. However, a relationship between the applicants and the challenged action must have some nexus as opposed to be contingent worry or even less, conjecture. Brothers J. found that mere proximity to the subject land did not meet the test for legal standing. The Evidence Before the Court – Private Interest Standing [ 77 ] The Respondents submit that the Applicants do not have private interest standing in this matter.

The Respondents say that the facts before the Court show that the Applicants’ interest is not beyond that of the general public. They say that while the Applicants may own a family cottage in the vicinity of James Beach, their properties are not adjoined to the Chisholm property. Accordingly, the Respondents say that the Applicants’ private property interests are not directly impacted by the decision of DLAF.

The Respondents say that while the Applicants’ alleged ability to access the entirety of James Beach may be impacted by the Chisholm’s shoreline protection work, their level of access is not impacted any more than any other member of the public who wished to access James Beach. [ 78 ] The Respondents also say that it is clear from the letters written by members of the Black Point Beach Preservation Group that the Applicants are part of a public interest group who feel that they have been impacted by the decision of the DLAF. [ 79 ] In terms of a statutory purpose, there is no appeal process available to the Applicants under any applicable legislation.

There is therefore no statutory right of appeal from the Minister’s June 5, 2010 decision communicated to Beth Skerrett. [ 80 ] There is no statutory scheme that strengthens the Applicants’ case. Where there is no legislation which provides a right of appeal for the Applicants, they have the burden of showing some special interest in the matter in order to meet the test for private interest standing. [ 81 ] In terms of the subject matter of the proceeding, the Applicants say that the Minister made an unreasonable decision concerning the location of the boundary between Crown land and private land at James Beach.

They also allege that the Minister failed to carry out his statutory duties under the Beaches Act , the Crown Lands Act , and the Endangered Species Act . [ 82 ] In terms of the Applicants’ interest in the subject matter, and the effect the decision may have on their interest, Sandra Lynn’s Affidavit states that she has owned a family cottage at Black Point for 23 years, and has spent most of her summers over these years at her cottage. Sandra Lynn notes that the rock wall in question deprives her of free movement along James Beach, which she says she enjoyed prior to the construction of the rock wall.

Sandra Lynn says, as such, she is directly impacted by the Minister’s decision. [ 83 ] Maryn Lynn states in her Affidavit that she is similarly impacted by the Minister’s decision, in that she and her family are not able to enjoy free passage along what would, but for the Minister’s decision, be considered Crown land. [ 84 ] Beth Skerrett states in her Affidavit that she has owned a residential property in Black Point for 15 years and has visited the area since 1974, enjoying unfettered passage along James Beach.

She states that she considers that to be an important component of her family’s use and enjoyment of their properties at Black Point and that their use and enjoyment has been negatively impacted by the Minister’s decision. [ 85 ] The Applicants and Ms.

Skerrett say that while James Beach is open to the public, they have a special interest that is particular to them, given they own property in the area and have walked and enjoyed James Beach with their families for decades. [ 86 ] They say that for the general Nova Scotian public, James Beach may be just another beach, but for them, the shoreline is where they grew up and shared with their children and grandchildren over the years. Case Law Involving “Neighbouring Property Owners” and Private Interest Standing [ 87 ] In Brighton v.

Nova Scotia (Agriculture and Fisheries) , 2002 NSSC 160 , then Chief Justice Michael MacDonald, found that a group of citizens had standing to appeal the Minister of Agriculture and Fisheries’ decision to allow a fin fish farm under the Fisheries and Coastal Resources Act , SNS 1996, c 25 . They were “aggrieved persons” within the meaning of

section 119 of that legislation permitted an appeal by a “person aggrieved by a decision of the Minister ... .” MacDonald A.C.J. (as he then was) said: [7] Because the Appellants filed no documentation to show that they have been directly prejudiced by this decision, the Respondent Crown suggests that they do not meet the threshold of “aggrieved persons” so as to have standing to prosecute this Appeal. I reject this submission . One need look no further than to the voluminous record to quickly realize that the Appellants were most interested in the outcome of this application and directly involved in the process.

In fact the Minister saw fit to write many of them personally when his decision was announced ... Given the scope of the FCRA generally and the circumstances surrounding this process in particular, the Appellants meet the standard contemplated under s. 119. [emphasis added] [ 88 ] In Specter v Nova Scotia (Fisheries and Aquaculture) , 2011 NSSC 333 , the appellant landowners appealed a Minister’s decision granting amendments to an aquaculture license allowing the sites to be larger and closer to their property.

The Minister and the respondent argued, inter alia , that the appellants lacked standing. [ 89 ] LeBlanc J. held that the residents were “aggrieved” by the Minister’s decision, within the meaning of the appeal provisions of the Fisheries and Coastal Resources Act .

He cited the considerations going to whether a person is “aggrieved” as discussed in Cromwell’s Locus Standi : the relationship between the person and the decision; the statutory scheme; and the merits of the complaint ( Spector at para. 56, citing Thomas Cromwell, Locus Standi: A Commentary on the Law of Standing in Canada (Toronto: Carswell, 1986)) The respondents conceded that the appellants had an interest in the decision, but maintained that it was not sufficient to give them standing.

Alternatively, they submitted that “the appellants should only be granted standing with respect to Site 0602, because that is the

only site close enough to their property to cause issues in the intertidal zone” (para. 58). [90] Justice LeBlanc acknowledged (citing Brown and Evans, Judicial Review of Administrative Action in Canada loose-leaf(Toronto: Canvasback, 2010 at §4.3443) that “Public interest groups and individual advocates have usually been denied standing tochallenge administrative action that raises environmental concerns, for lack of an identifiable special interest of their own…” (para. 59).

However, the situation was different for adjacent property owners: [60] However, adjacent landowners have been granted standing to challenge the issuance of permits or government decisionsgoverning land use. In Oakland/Indian Point Residents Assn... , the Court allowed the applicant standing to challenge a subdivision planand development permits, noting that some of the members of the applicant association were adjacent landowners to the proposed condodevelopment at issue. In Lord Nelson Hotel Ltd. v.

Halifax (City) (1972), (NS CA), 4 NSR (2d) 753, 33 DLR (3d) 98(CA), the Court of Appeal found that an adjacent landowner had standing to challenge the City of Halifax’s re-zoning of neighbouringproperty. [61] In my view, how the test for standing is phrased is largely irrelevant. It does not matter whether a statute uses the phrase,“person aggrieved”, “person directly affected”, or “direct and personal interest”. What matters is the

interpretation that is given to thesephrases. This necessarily involves a textual, contextual, and purposive analysis of the applicable legislation. Involved in thisinterpretation is the concern of courts that an overly broad

interpretation will allow mere “busybodies” to flood the courts with litigationchallenging public decisions. [62] The key question to ask is whether a potential applicant has an economic, commercial, legal, or personal interest in a decisionthat is sufficiently delineated from the concerns of the general public so as to make them a “person aggrieved”. [63] The interests of adjacent property owners may fall into any of these categories.

What may set adjacent property owners apartfrom other potential applicants is that their proximity to the place affected by a decision makes them sufficiently different from otherpotential applicants. [91] In holding that the appellants had standing, Justice LeBlanc concluded that Brighton applied. He added: [71] In this case, the decision at issue authorized the movement of an industrial food production facility - an aquaculture fish farm - towithin approximately 240 metres of an adjacent coastal landowner.

The owner of the fish farm admits that water clouding in the vicinitycan occur, as well as increased algae and slime in the intertidal zone. [72] One of the purposes of the Act is to “foster community involvement in the management of coastal resources”. The value of theappellants’ property may be impacted by this decision. The appellants’ use of the intertidal zone immediately adjacent to their propertymay also be impacted by this decision. This potential impact will affect the appellants in ways that are significantly different from thegeneral public.

In my view, these appellants are at least as affected as the appellants in Brighton, if not more so. As such, the appellantsare “persons aggrieved” within the meaning of the Act, and they should be granted standing. [73] I reject Kelly Cove’s submission that the Minister’s decision should be parsed, and the appellants granted standing only withrespect to Site 0602. Kelly Cove made a single amendment application to the Minister.

The Minister made a single decision withrespect to this application that affected three different sites. [74] An attack of ultra vires would apply to all of the licenses and not just Site 0602. There may be evidence at the hearing that theappellants’ interests were affected by other sites.

At this time, it would not be appropriate to limit the appellants’ appeal to only theamendment of Site 0602. [Emphasis added.] [92] A review of these decisions demonstrates that there is a body of case law in Nova Scotia supporting the view that aneighbouring or proximate landowner to a property in respect of which an administrative decision has been made will have standing toadvance a justiciable complaint.

In some cases there is specific statutory language within which standing can be considered (e.g.“aggrieved”), but this is not a prerequisite of standing, particularly where the complaining party is seeking judicial review. Where thedecision relates to private property in which neighbouring or proximate property owners have a direct or genuine interest, in my viewthere is a strong basis to find that standing exists.

As LeBlanc J. said in Specter, the question is “whether a potential applicant has aneconomic, commercial, legal, or personal interest in a decision that is sufficiently delineated from the concerns of the general public so asto make them a ‘person aggrieved’.” [93] In my view a similar analysis can be applied to determine whether a person has standing as an applicant for judicial reviewpurposes.

Conclusion on Private Interest Standing [94] I find that the Applicants have shown, through evidence, that the Minister’s decision (June 5, 2010) meets the test for“interest.” They have more than a “subjective” interest, but rather, are “persons aggrieved.” As property owners in the near vicinity tothe Chisholm property, they have a greater interest with respect to the activities on the Chisholm property than general members of thepublic.

They live on or near James Beach and have shown that their use and enjoyment of their properties have been directly affected bythe Chisholm’s constructions. [95] In coming to this conclusion, I have applied a contextual approach and have not confined my analysis to strictly legal rights and

obligations. [96] In conclusion, I find that given the evidence provided by the Applicants and Ms. Skerrett, the principles articulated in the caselaw, and applying a contextual generous approach, and not considering the merits or strength of the case, the Applicants and Ms. Skerretthave established that they have private interest standing. Public Interest Standing [97] Public interest standing, as the name implies, typically requires an issue of broad importance, such as a constitutional issue.

The law suggests that it will not easily be extended to what amounts to an essentially private issue or complaint. [98] The most recent authoritative statement of the principles engaged in a claim of public interest standing is the decision of theSupreme Court of Canada in Downtown Eastside Sex Workers United Against Violence Society v. Canada (Attorney General), 2012 SCC45 (S.C.C.) (Downtown Eastside) where Cromwell J. stated: [1] This appeal is concerned with the law of public interest standing in constitutional cases.

The law of standing answers thequestion of who is entitled to bring a case to court for a decision. Of course it would be intolerable if everyone had standing to sue foreverything, no matter how limited a personal stake they had in the matter.

Limitations on standing are necessary in order to ensure thatcourts do not become hopelessly overburdened with marginal or redundant cases, to screen out the mere “busybody” litigant, to ensurethat courts have the benefits of contending points of view of those most directly affected and to ensure that courts play their proper rolewithin our democratic system of government: Finlay v. Canada Minister of Finance), (SCC), [1986] 2 S.C.R. 607, at p.631. The traditional approach was to limit standing to persons whose private rights were at stake or who were specially affected by theissue.

In public law cases, however, Canadian courts have relaxed these limitations on standing and have taken a flexible, discretionaryapproach to public interest standing, guided by the purposes which underlie the traditional limitations. [2] In exercising their discretion with respect to standing, the courts weigh three factors in light of these underlying purposes and ofthe particular circumstances.

The courts consider whether the case raises a serious justiciable issue, whether the party bringing theaction has a real stake or a genuine interest in its outcome and whether, having regard to a number of factors, the proposed suit is areasonable and effective means to bring the case to court: Canadian Council of Churches v. Canada (Minister of Employment andImmigration), (SCC), [1992] 1 S.C.R. 236, at p. 253.

The courts exercise this discretion to grant or refuse standing in a“liberal and generous manner” (p. 253). [99] After referring to earlier decisions of the court on standing, Cromwell J. noted the interrelated nature of the factors to beconsidered: [35] From the beginning of our modern public interest standing jurisprudence, the question of standing has been viewed as one to beresolved through the wise exercise of judicial discretion.

As Laskin J. put it in Thorson, public interest standing “is a matter particularlyappropriate for the exercise of judicial discretion, relating as it does to the effectiveness of process” (p. 161); see also pp. 147 and 163;Nova Scotia Board of Censors v. McNeil, (SCC), [1976] 2 S.C.R. 265, at pp. 269 and 271; Borowski, at p. 593; Finlay,at pp. 631-32 and 635. The decision to grant or refuse standing involves the careful exercise of judicial discretion through the weighingof the three factors (serious justiciable issue, the nature of the plaintiff’s interest, and other reasonable and effective means).

Cory J.emphasized this point in Canadian Council of Churches where he noted that the factors to be considered in exercising this discretionshould not be treated as technical requirements and that the principles governing the exercise of this discretion should be interpreted in aliberal and generous manner (pp. 256 and 253). [36] It follows from this that the three factors should not be viewed as items on a checklist or as technical requirements.

Instead, thefactors should be seen as interrelated considerations to be weighed cumulatively, not individually, and in light of their purposes. [emphasis added] [100] In Downtown Eastside, Justice Cromwell elaborated on “serious justiciable issue”: [42] To constitute a “serious issue”, the question raised must be a “substantial constitutional issue” (McNeil, at p. 268) or an“important one” (Borowski, at p. 589). The claim must be “far from frivolous” (Finlay, at p. 633), although courts should not examinethe merits of the case in other than a preliminary manner.

For example, in Hy and Zel’s, Major J. applied the standard of whether theclaim was so unlikely to succeed that its result would be seen as a “foregone conclusion” (p. 690). [101] In Canadian Elevator (supra), Bryson J.A. further explained the meaning of a serious justiciable issue with reference toDowntown Eastside: [52] Justice Cromwell explained that “serious justiciable issue” addressed two related concerns: the appropriateness of judicialresolution of the matter (as opposed to legislative or executive action), and proper use of judicial resources (overburdening the courtswith marginal or redundant suits) (¶¶ 39-41). [53] The Supreme Court did not endorse assessment of the merits of the claim when deciding whether a serious justiciable issue wasraised, (¶ 41).

Nevertheless, it may be difficult in practice to ignore the merits altogether if maintaining the “rule of law” underwritespublic interest standing, as AXA says and Downtown Eastside implies (¶ 31). Certainly, consideration of the merits is how the Ontarioand Manitoba Courts of Appeal resolved this factor in Corp. of the Canadian Civil Liberties Assn. v. Canada (Attorney General) (1998), (ON CA), 40 O.R. (3d) 489, ¶ 87 and Rowell v.

Manitoba, 2006 MBCA 14, ¶ 50, respectively. [102] The Applicants in the within proceeding frame the justiciable issue as the Applicants seeking to challenge whether the Minister’sdecision regarding the ordinary location of the highwater mark on the Chisholm property was reasonable. They submit that the Ministerunreasonably set the location of the ordinary highwater mark at James Beach below the hightide line.

[ 103 ] In Downtown Eastside , the court reviewed the type of cases which meet the seriousness standard and characterized them as: 1. Constitutional issues; 2. Charter challenges; and 3. Other challenges to the validity of legislation. [ 104 ] The issue before the Court is justiciable. But is it also serious? The Supreme Court has said that to be serious, the question raised must be a “substantial constitutional issue” or “important.” [ 105 ] The challenge here is to a Minister’s decision. The decision was made within the Minister’s home statutes and any challenge to that decision would be based on whether the decision was made within a range of reasonable outcomes. [ 106 ] The question(

s) raised by the Applicants on judicial review do not rise to a level of seriousness as described by the Supreme Court in Downtown Eastside . [ 107 ] In this case, the challenge arises solely over the Minister’s decision to not require the Chisholms to obtain a permit or comply with any applicable regulations to undergo the rock wall work they had carried out in the Spring of 2020. This is not a public interest challenge and the Applicants and Ms. Skerrett do not meet the test. [ 108 ] Given my conclusion on this factor, there is not need for the Court to review the other two factors for public interest standing.

Issue 3: Should some or all of the Affidavit evidence of the Applicants and Beth Skerrett be struck? [ 109 ] Counsel for the Applicants advised the Court that the proffered Affidavit evidence was solely on the motions before the Court, and not for the purpose of forming part of the record of judicial review. [ 110 ] I gave an oral decision on the hearing of the motion confirming that various provisions of the Affidavits tendered by the Applicants and Beth Skerrett are struck, and the reason(

s) why. These are listed, for the benefit of the parties, as Appendix “A” to this decision. CONCLUSIONS [ 111 ] Beth Skerrett is added as an Applicant. [ 112 ] Wayne Chisholm is granted intervenor status on the judicial review. [ 113 ] The applicable date of the decision under review is June 5, 2020. The Notice of Judicial Review was filed on time. [ 114 ] The Applicants and Beth Skerrett have private interest standing to judicially review the Minister’s decision, communicated to them on June 5, 2020.

The Applicants and Beth Skerrett lack public interest standing to judicially review the Minister’s decision. [ 115 ] Appendix “A” to this decision confirms the Court’s oral decision on the hearing of the motion that various provisions of the Affidavits of the Applicants and Beth Skerrett (now an Applicant) are struck. [ 116 ] The Applicants are entitled to their costs. If the parties cannot agree on costs, I will receive written submissions within ten clear days of this decision. Smith, J.

Appendix “A” The Affidavit of Maryn Lynn affirmed on July 10, 2020 At the hearing of this motion, counsel for the Applicants agreed that the following paragraphs should be struck and I gave an oral decision advising that the following paragraphs of Maryn Lynn’s Affidavit are struck and why: • paragraph 10 – in its entirety • paragraph 12 – A period is put after the word “months’ in the second sentence.

The remainder of the second sentence is struck. • paragraph 13 in its entirety as well as Exhibits “E” and “F” • paragraph 14 is struck in its entirety, with the exception of the first sentence • paragraph 15 is re-numbered as paragraph 15(a). The second sentence is struck. • The second paragraph 15 is re-numbered as paragraph 15(b). • Exhibits “H”, “I”, “J”, “K”, and “L” are struck.

Sandra Lynn’s Affidavit, sworn August 18, 2020 Counsel for the Applicants agreed at the hearing that the following sections should be struck and I gave an oral decision advising that the following paragraphs of Sandra Lynn’s Affidavit are struck and why: • paragraph 5 - A period is placed after the words “along the shore” in the first sentence and the second sentence is struck. • Paragraph 6 – The words “has altered the natural water-course along the shore and” are struck from the last sentence. • paragraph 7 – The second sentence is struck. • paragraph 8 is struck in its entirety.

The Affidavit of Glenna Beth Skerrett, affirmed on August 14, 2020. Counsel for the Applicants agreed that the following

section of Beth Skerrett’s Affidavit should be struck and I gave an oral decision advising that the following paragraphs are struck and why: • paragraph 5 – A period is placed after the words “this beach,” and the remainder of the sentence is struck. • paragraphs 9 through 16 are each struck in their entirety, as are the attached Exhibits “C”, “D”, “E”, “F”, “G”, “H” and “I.” • Exhibits “A” and “D” attached to paragraphs 16 and 19 are struck • Exhibit “C” – The June 5, 2020 email from Beth Skerrett to the Minister of Lands and Forestry and to Tim Houston, are struck. • Exhibits “E”, “F”, “G”, “H” and “I” are struck.

The Affidavit of James Loel Campbell This Affidavit is struck in its entirety.