" A challenge to the vires (legal power or authority)
of the Lieutenant Governor in Council in making a regulation stands
apart from the review of an administrative decision. A regulation
is a form of subsidiary legislation. ... The scope of such
a review is narrow:
A successful challenge to the vires of regulations
requires that they be shown to be
inconsistent with the objective of the enabling statute or
the scope of the statutory mandate.
 It is not concerned with assessing the policy
merits of a regulation to determine if it is "...necessary,
wise, or effective in practice"
 This is not an examination of the "political,
economic, social or partisan considerations" underlying the
 It is not a question of whether the regulation will
achieve its statutory objectives.
 A regulation must be "irrelevant",
"extraneous" or "completely unrelated" to the
statutory purpose if being inconsistent with that purpose is to be
the basis for finding the regulation to be ultra vires (beyond or
outside the power or authority of the Lieutenant Governor).
 In effect, although it is possible to strike down
regulations as ultra vires on this basis, "it would take an
egregious case to warrant such action".
Wildlands argued that the regulation was invalid because the
Minister of Natural Resources had not separately considered the
impact of the exemptions on each and every one of the 155 species
identified as threatened or endangered in Ontario, including
whether the survival of each would be in jeopardy and whether each
or any would be at risk of any other significant adverse effect
. They also argued that the regulation was inconsistent
with the ESA because:
"... the Regulation functions so as to deprive almost all
listed endangered and threatened species of the protections of
theESA's key operative prohibitions in ss. 9(1) and 10(1) and the associated authorized scheme in ss. 17 and 18
Put another way, the Regulation puts an end to the ESA's core statutory protections for almost all of
Ontario's most seriously at-risk species,...
... In its place, the Regulation supplants the scheme with a
parallel Exemptions Regime that enables many activities dangerous
to species and their habitats. ...
Wildlands relied on a special report prepared by the Environmental
Commissioner of Ontario, entitled, "Laying Siege to the
Last Line of Defence: A review of Ontario's Weakened
Protections of Species at Risk.
 The Report takes the view that O. Reg 176/13 "thwarts
the very purposes of the Act"
. In an accompanying press release, the Commissioner
suggested that the regulatory amendments "threaten the
protection of the province's species at risk" and
"undermine what the Ontario legislature set out in
Justice Lederer was unmoved.
" I start by pointing out that the words of the
Minister, the report of the Environmental Commissioner and the
accompanying news release are not helpful. In this case,
it is the words of the statute that drive an understanding of its
 ...Even understanding the contribution that biological
diversity makes to our economy, the ESA sets out to protect that
diversity while not forgetting our more general concern for other
considerations (social, economic and cultural) that play an
important role and have a significant impact on our society and way
 ... harm to the species may be accepted in light of
the social or economic benefits that will
For Justice Lederer, it was therefore consistent with
the ESA for the regulation to cut down the protection offered to
endangered species in order to achieve financial/ economic
benefits. Whether this was wise or not was not for the court to
decide. He therefore refused to invalidate the
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