SUPREME COURT OF Nova Scotia

Citation: Porter v. Nova Scotia (Minister of Municipal Affairs and Housing), 2023 NSSC 261

Date: 20230824

Docket: 524492

Registry: Halifax

Between:

Darren Porter

 

v.

 

Nova Scotia Minister of Municipal Affairs and Housing and The Attorney General of Nova Scotia

 representing His Majesty the King in Right of the Province of Nova Scotia

 

 

 

Judge:	The Honourable Justice Scott C. Norton
Heard:	July 18, 2023, in Halifax, Nova Scotia
Decision:	August 24, 2023
Counsel:	Jamie Simpson and Richelle Martin for the Applicant Jeremy P. Smith for the Respondents

 

By the Court:

 

Introduction

[1]             The Applicant, Darren Porter, is a commercial fisher in the Avon River in Hants County, Nova Scotia. He has filed a Notice of Application for Judicial Review of the June 1, 2023 decision of the Minister of Municipal Affairs and Housing, issuing a Declaration of State of Emergency pursuant to s.12(1) of the Emergency Management Act, SNS 1990, c.8, for the area around and including Pisiquid Lake, Windsor, Nova Scotia, and a Declaration pursuant to s.14 of the Act relating to the Avon River causeway aboiteau (“Gates”) (collectively, “Decision”).

[2]             The Decision resulted in the Gates being operated in a way that filled Lake Pisiquid. The Applicant alleges that this has prevented the free and timely passage of fish through the Gates causing fish mortality and jeopardizes future generations of Avon River fish populations. The Respondent says that the Decision directed the Gates to be operated as directed by the Provincial Fire Marshall, in his role as a fire suppression and prevention co-ordinator, with the goal of maximizing the water supply resource available for wildfire suppression efforts.

[3]             Before me for decision is the Applicant’s Motion pursuant to Rule 7.29 for an order for a stay of the Decision pending the hearing of the judicial review.

[4]             At the conclusion of the Motion hearing, I ruled that the Applicant’s motion was dismissed with written reasons to follow. These are those reasons.

 

Law

[5]             Rule 7.29 says:

7.29   Stay pending judicial review or appeal

(1)        A judge may stay a decision under judicial review or appeal and any process flowing from the decision until the determination of the judicial review or appeal.

(2)        A motion for a stay must be made at the same time as the motion for directions, unless a judge orders otherwise.

(3)        The motion must be made by notice of motion in accordance with Rule 23 - Chambers Motion, although it is mentioned in the notice of appeal or notice for judicial review.

(4)        A judge may grant an interim stay until the hearing of a motion for a stay.

(5)        The judge may grant any order, including an injunction, as may be necessary to effectively stay a decision.

 

[6]             The parties agree that the test for an interim stay is that described by the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311. The same test as is applied to applications for interim injunctions as well as stays in both private law and Charter cases. The test requires the Applicant to demonstrate:

 

1.       There is a serious issue to be tried;

2.       The Applicant will suffer irreparable harm if the stay is not granted; and

3.       The harm to the Applicant if the stay is not granted is greater than the harm to the Respondent if the stay is granted (the balance of convenience).

[7]             As a preliminary matter, it is important to note that the Application for Judicial Review and the Motion before the Court was filed by the Applicant as a private interest claim. The Application for Judicial Review states expressly, “The Applicant is a Private Interest Litigant”. The rationale for the Applicant’s claim of standing to bring the Application is his work as a commercial fisher (para. 1 of the Application). He derives his living from the fishery on the Avon River estuary (para. 2). The Decision harms the fishery on which he depends for his living (para. 3).

[8]             The RJR test must be applied to the Applicant as a private litigant.

 

Is there a Serious Issue to Be Tried?

 

[9]             The threshold to determine this issue is low. The analysis at this stage is whether the claim if frivolous or vexatious. (RJR, p. 337)

[10]         The Applicant argues that the Decision overrode a Federal Minister of Fisheries Order (that was no longer in force after June 23, 2023) and goes against provisions of the Federal Fisheries Act, raising questions of jurisdiction and paramountcy. The Applicant also questions whether there was a “present and imminent event” requiring the co-ordinated action to “protect property or the health, safety or welfare of people” in Windsor area to authorize the Minister’s Decision. The Applicant also questions the connection of the filling of Lake Pisiquid to the alleged State of Emergency.

 

[11]         The Respondent says that there are a number of fatal flaws to the underlying application and the present motion. The first is that s.21 of the Emergency Management Act immunizes the Decision from a stay. The section says:

 

No liability

21        The Minister, a mayor or warden, a municipality, the Department, a committee established pursuant to this Act or a member thereof, or any other person

(a)        is not liable for any damage arising out of any action taken pursuant to this Act or the regulations; and

(b)        is not subject to any proceedings by prohibition, certiorari, mandamus or injunction with respect to any action taken pursuant to this Act or the regulations.

[emphasis added]

 

[12]         The section of the Emergency Management Act under which the state of emergency declaration was issued is s.12(1):

 

State of emergency or state of local emergency

12 (1) The Minister, after consulting, if it is practical to do so, with a majority of the members of a committee established pursuant to Section 5 or a quorum of the Executive Council and, if the Minister is satisfied that an emergency exists or may exist, may declare a state of emergency in respect of all or any district, subdistrict or area of the Province.

[emphasis added]

 

[13]         The decision under s.12 is in the discretion of the Minister.

[14]         The direction was issued under s.14:

 

Protection of property and health or safety

14          Upon a state of emergency being declared in respect to the Province or an area thereof, or upon a state of local emergency being declared in respect to a municipality or an area thereof, the Minister may, during the state of emergency, in respect of the Province or an area thereof, or the mayor or warden, as the case may be, may, during the state of local emergency, in respect of such municipality or an area thereof, as the case may be, do everything necessary for the protection of property and the health or safety of persons therein and, without restricting the generality of the foregoing, may [...]

[emphasis added]

 

[15]         This is likewise a discretionary decision by the Minister.

 

[16]         The type of decisions that were made are also insulated to an extent from judicial review. In Sara Blake, Administrative Law in Canada, seventh edition (beginning on p. 249), the author states:

 

Courts review neither the wisdom nor the merits of an exercise of discretion made pursuant to statutory authority. Nor do they review whether government policy accomplishes its intended purpose. A court should not re- weigh the relevant factors nor substitute its own decision for that of the statutory decision maker just because it would have exercised the discretion differently had it been charged with the responsibility. Deference is given to decisions on political, social, economic, technical and scientific questions. A discretionary decision made within the scope of the statutory authority will be permitted to stand, especially if made by Cabinet, a Minister or other elected authority, unless it was made in bad faith or violates the applicant's procedural or constitutional rights.

This restricted authority of the courts to review an exercise of discretion is rooted in the fundamental theory of the separation of powers between Parliament, the executive and the courts. Parliament and the executive make policy. Courts apply the law. It is not the role of a court to question the wisdom or folly of the government's policy choices. If a court were to determine a question of policy it would circumscribe the authority of government to change the court-established policy to accord with a new scientific, social or political understanding. As government by judges is not democracy the court has no power to review the merits of discretionary decisions.

[emphasis added]

 

[17]         This excerpt from the Blake text, citing caselaw, is a warning entirely applicable to the Applicant’s Motion. In this case, the initial decision and the renewals provide for input from Cabinet, the highest level of decision-making in the executive branch, which reflects the multifaceted polycentric nature of the decision.

[18]         The issue of justiciability was recently reviewed by the Honourable Justice Brothers in Bancroft v. Nova Scotia (Lands and Forestry), 2021 NSSC 234. The Applicants in that case applied for judicial review of the decision to remove Owls Head from a policy document that had identified it as a provincial park and to sell it to a developer. Justice Brothers stated:

 

[5]  Elected officials on occasion make decisions, and use procedures, that leave some constituents feeling betrayed and even incensed. Where those officials exceed their power, judicial review may provide a remedy. But where the decisions are within their lawful authority, as in this case, the court cannot intervene. In such circumstances, if a remedy is sought by the public, the proper recourse in our constitutional democracy is not through the courts, but at the ballot box.

[Emphasis added]

 

[19]         In this case, the Applicant does not allege in the Notice for Judicial Review that the Minister did not have the statutory authority to declare a state of emergency or issue a direction. The Application focuses exclusively on the reasonableness of doing so, which is not reviewable as a policy decision of a Minister. Nor does the Application allege bad faith by the Minister, or any violation of the Applicant’s procedural or constitutional rights.

[20]         As stated previously, the Application is brought as a private interest claim.

[21]         At p. 217 of the above-cited text, Administrative Law in Canada, Sara Blake notes, “An indirect effect on commercial interests does not meet the test [for standing].”

[22]         In Laboratories C.O.P. Inc. v. New Brunswick College of Pharmacists, 2020 NBCA 74, the applicant sought judicial review of the College of Pharmacists’ decision to release a statement reminding pharmacists to confine their professional activities to areas permitted by legislation. The applicant had been selling weight loss products through some pharmacies in New Brunswick. The applicant sought standing on the basis of a financial interest in the decision. The Court of Appeal held that a financial interest was not sufficient to ground private interest standing (paras. 47, 48, 52, and 54, cumulatively).

[23]         Likewise, in Island Timberlands LP v. Canada (Foreign Affairs and International Trade), 2009 FCA 353, the applicant sought judicial review of the respondent Minister allowing another forest products company to make bids on logs designated for export by the applicant. The Federal Court of Appeal said:

 

[7]                   On the issue of standing, the Judge first noted that “a party who is only affected in the commercial sense by the decision of a Minister has no status to seek judicial review: see, for ex., Rothmans of Pall Mall Canada Ltd. v. Canada (Minister of National Revenue), 1976 Can Lil 2258 (FCA), [1976] 2 C.F. 500 (F.C.A.); Merck Frosst Canada Inc. v. Canada (Minister of Health and Welfare) (1988), 146 F.T.R. 249 (F.C.A.); Aventis Pharma Inc. v. Canada (Minister of Health), 2005 FC 1396” (reasons for Order at paragraph l8). Then, he concluded that "the [appellant] is ... simply seeking to protect its purported commercial advantage or interest associated with being able to export logs rather than having to sell them domestically by trying to prevent Kemp's inclusion in the pool of eligible domestic log purchasers" (reasons for Order at paragraph 20).

[8]                   Although he could have stopped there, and out of abundance of caution, the Judge proceeded to the examination of Timberlands’ grounds for the application. The Judge concluded, amongst other things, that the Minister’s decision was reasonable in that it fell within the range of possible outcomes (reasons for Order at paragraph 26).

[9]                   We have not been persuaded that the Judge has made any error of law or any other error warranting the intervention of this Court. The Judge correctly identified the issues and legal principles at play. It was open to him to conclude as he did on the basis of the evidentiary record.

[Emphasis added]

 

[24]         The Applicant’s stated interest in this matter is commercial, which is insufficient to ground a claim of standing to seek judicial review of a decision.

[25]         Finally, Mr. Porter gave evidence that he is not currently fishing. Even if an indirect financial interest could ground private interest standing, the Applicant’s own evidence is that he is not affected by the issue he is alleging.

[26]         On the facts in the record before me, based on the immunity provision in the Act, the type of decision, and the lack of standing, I find that the Applicant has failed to meet the burden to establish that there is a serious issue to be tried.

 

Would the Applicant Suffer Irreparable Harm if the Stay is Not Granted?

 

[27]         The second stage of the RJR test requires assessment of whether the Applicant as a private interest litigant will suffer irreparable harm. It is the nature of the harm, not the magnitude that is the focus. Irreparable harm is harm that cannot be quantified or remedied. The interest that the Plaintiff has put forward is a financial one: if the fish population is harmed in and around the Avon River, he will suffer financially as a fisher who makes his living fishing.

[28]         The Applicant submitted expert affidavit evidence from Trevor Avery and Michael Dadswell, both professors at Acadia University. Both provided reports “on the impact of the tidal gate operation on fishes and fish habitat in the Avon River”. No objection was taken to their qualifications. The Respondent argued that the reports should not be admitted as they did not meet the requirement of being “necessary” and their probative value was outweighed by their prejudicial effect.

[29]         The admissibility of expert evidence is governed by the Supreme Court of Canada decision in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23. Justice Cromwell stated, at para. 19:

 

Mohan established a basic structure for the law relating to the admissibility of expert opinion evidence. That structure has two main components. First, there are four threshold requirements that the proponent of the evidence must establish in order for proposed expert opinion evidence to be admissible: (1) relevance; (2) necessity in assisting the trier of fact; (3) absence of an exclusionary rule; and (4) a properly qualified expert (Mohan, at pp. 20-25; see also Sekhon, at para. 43). Mohan also underlined the important role of trial judges in assessing whether otherwise admissible expert evidence should be excluded because its probative value was overborne by its prejudicial effect — a residual discretion to exclude evidence based on a cost-benefit analysis: p. 21. This is the second component, which the subsequent jurisprudence has further emphasized: Lederman, Bryant and Fuerst, at

pp. 789-90; J. -L.J., at para. 28.

 

[30]         As the meaning of necessary, the Supreme Court of Canada in R. v. Mohan, [1994] 2 S.C.R. 9, stated:

 

Expert evidence, to be necessary, must likely be outside the experience and knowledge of a judge or jury and must be assessed in light of its potential to distort the fact-finding process. Necessity should not be judged by too strict a standard. The possibility that evidence will overwhelm the jury and distract them from their task can often be offset by proper instructions. Experts, however, must not be permitted to usurp the functions of the trier of fact causing a trial to degenerate to a contest of experts.

 

[31]         I find that the reports should be admitted as they meet the requirements of the White Burgess test and in particular were helpful to me to understand the alleged impact of the operation of the Gates on fish habitat.

[32]         That said, I find that neither expert report provided evidence of irreparable harm to the Applicant. Neither author had attended at the Gates since June 1, 2023, to witness anything. Dr. Avery states that the closing of the Gates will cause ecological changes that affect fish passage and habitat but does not say that the changes are permanent. At p.3 of his report attached to his affidavit, he says that the effects of closing the Gates are “uncertain as very little information is known about long-term, cumulative effects if fish populations in general, never mind these specific species”. Likewise, Dr. Dadswell did not testify that any harm is permanent or irreparable, and no harm to the Applicant is identified at all.

[33]         As stated previously, the Applicant’s evidence is that his commercial fishing activities are currently “paused”, meaning that he is presently suffering no risk of financial harm.

[34]         In summary, I find that the Applicant has failed to establish that he will experience irreparable harm if the stay is not granted.

 

Balance of Convenience

 

[35]         Having found that the Applicant has failed to establish either of the first two stages of the RJR analysis, there is no need to conduct a balance of convenience analysis.

[36]         The Motion is dismissed with costs payable forthwith to the Respondent in the amount of $1,500.

[37]         Order accordingly.

 

Norton, J.