On January 8, 2025, the Court of Appeal for Ontario released its decision in Marmora and Lake (Municipality) v. Ontario.1 The court addressed procedural and jurisdictional issues raised by the appellant, Corporation of the Municipality of Marmora and Lake, in the context of an application brought during a prosecution for an alleged environmental offence under the Endangered Species Act, 2007 (the "ESA").2
The Municipality argued—both at the Court of Appeal and in the initial application to the Ontario Superior Court of Justice (the "ONSC")—that if it was required to comply with the ESA, it would not be able to fulfill its mandatory road maintenance obligations under the Municipal Act, 2001.3The purpose of its application was to seek various orders to that effect.4
The Court of Appeal agreed with the application judge's dismissal of the Municipality's application on the basis that it was not ripe for declaratory relief and should have been adjudicated in the Ontario Court of Justice (the "OCJ") in the context of the ESA offence prosecution.5
The Court of Appeal decision is noteworthy because it provides helpful procedural guidance on:
- When issues are "justiciable" such that resolution through declaratory relief is appropriate;
- The proper forum for rulings on issues in an ESA prosecution;
- Whether application judges are required to address every ground raised by a litigant; and
- The evidentiary foundation required to justify an order granting temporary relief from compliance with the ESA.
Background
The mottled Duskywing butterfly is an endangered species under the ESA. In Ontario, the second largest population of this butterfly lives near host plants clustered along eight kilometers of highway in an area of the Municipality called Riverside Pines.6 This butterfly is not migratory, meaning its entire life cycle takes place on or near the host plants.7
In 2021, the Municipality undertook a major resurfacing project involving its main roads and other gravel highways, which included roads in Riverside Pines. During the resurfacing, a construction crew cleared a high shoulder of built-up winter sand, cleared vegetation to bare soil, and parked maintenance vehicles on top of the host plants.8 The Ministry of the Environment, Conservation and Parks (the "MECP") alleged that in doing so, the Municipality killed, harmed, or harassed the butterflies and host plants.9 The Municipality had not applied for a permit under section 17(1) of the ESA to allow for these activities, despite impacts on the butterflies and their habitat. The Municipality was accordingly charged with two contraventions under the ESA for (1) unlawfully killing, harming, or harassing the Duskywing,10 and (2) damaging or destroying its habitat,11contrary to sections 9 and 10 of the ESA.
The Municipality argued that at the time of the alleged contravention, it was performing work pursuant to its obligation under the Municipal Act to maintain highways in its jurisdiction in a reasonable state of repair, failing which it is subject to liability under the Negligence Act. As a result, the Municipality asserted that it was not possible to comply with the road safety provisions of the Municipal Act and the ESA at the same time.
On this basis, in March 2024, the Municipality requested, among other things, a declaration from the ONSC of what is "reasonable" or an opinion to otherwise guide it in the management of its duties under the Municipal Act and the ESA.12 Specifically, the Municipality sought a declaration that (1) it had jurisdictional independence to determine what was "reasonable" in performing its statutory duties under the Municipal Act and that (2) where a municipality makes such a determination, it is not required to obtain a permit, comply with an order, or be subject to the offence provisions or other enforcement provisions of the ESA or its regulations.13 The Respondent, the MECP, argued that the Municipality could not seek judicial advice for what it considered to be future hypothetical events and that doing so constituted an abuse of process.
The Superior Court of Justice: Application Decision
On April 18, 2024, Justice Adrianna Doyle of the ONSC released her decision on the application. The court determined that it had the jurisdiction to make binding declarations as of right pursuant to the Courts of Justice Act.14 However, it declined to do so on the basis that the application was not ripe for declaratory relief and the issues—while not hypothetical, speculative, or academic—should be adjudicated in the OCJ in the context of the ESA offence prosecution.
The court found the issues raised were "not ripe for a declaration" because the Municipality had not previously sought relief by applying for a permit under the ESA.15 Section 17(1) of the ESA gives the MECP the authority to permit a person to engage in activities that would otherwise be prohibited under the ESA, including damaging or destroying the habitat of an endangered species. The Municipality chose not to avail itself of that process on the basis that, as a small entity with limited funds, it would be too onerous for it to maintain its highways in compliance with the Municipal Act while also complying with conditions in the permit that may be set by MECP.16 It further argued that it would not have time to obtain a permit if it had to do emergency roadwork.17 While the court acknowledged that these concerns were genuine, it found that they could not be supported by the evidentiary record because the Municipality had not actually engaged with the permitting process. The court ultimately determined that in circumstances where an alternative process is provided for under the ESA, a declaration should not be granted.18
The ONSC further characterized the requested relief as an improper substitute for a ruling in quasi-criminal proceedings before the OCJ.19 The issues raised on the application were not hypothetical, speculative, or academic; they presented a live dispute, but one that was brought in the wrong court.20 What the Municipality could and should have done, and whether it should be found culpable under the quasi-criminal prosecution given the dueling legislative obligations, were matters properly before the provincial court as defences against the ESA charges.
Court of Appeal for Ontario
The Court of Appeal for Ontario dismissed the appeal on all grounds, finding that:
- The application judge correctly held that the broad declaratory relief sought by the Municipality should not be granted unless the issues were justiciable. Issues are justiciable when they are "ripe for judicial determination, in the sense that there is a live controversy, with a sufficient factual foundation, and no other, prior procedural avenues".21 The Municipality had not attempted to obtain a permit from the MECP and there was some evidence on the record from the MECP's expert that the issues raised by the Municipality could be resolved through the permitting process. Further, the Court of Appeal agreed with the application judge's conclusion that, unlike in other decisions relied upon by the Municipality, which involved "purely interpretive questions", the issues in this case involved more factual considerations, which were inadequately described in the record on the application and in any event, could be resolved in the prosecution before the OCJ.22
- The application judge did not err in finding that the Municipality had improperly attempted to circumvent the jurisdiction of the OCJ. While the Court of Appeal confirmed that the prosecution would not address all conflicts that could hypothetically arise from the Municipality's concurrent statutory obligations, in defending the ESA charges, the Municipality could have relied on the same arguments it sought to raise in the application regarding the correct interpretation of the ESA. In other words, what the Municipality "could and should have done", as well as its culpability in quasi-criminal proceedings, were properly determinable in the OCJ.
- The application judge was not obliged to address the Municipality's argument that it alone had the jurisdictional competence to determine whether its road maintenance obligations were "reasonable" under the Municipal Act. The Court of Appeal also noted that the Municipality had provided no authority to support its argument with respect to an exclusive jurisdictional competence that would relieve it from compliance with the ESA or a judicial determination that it failed to meet the standard of care prescribed by the Municipal Act, based on its own assessment of what is reasonably required under that Act. Further, the judge's conclusion that the issues raised were not ripe for adjudication was sufficient to dispose of the application and she was not required to address all other arguments raised, including jurisdictional issues.23
- The Municipality was not entitled to an order granting temporary relief from its obligation to comply with the ESA when conducting road maintenance while a permit application under section 17(1) of the ESA was pending. At the time of the Court of Appeal decision, the Municipality had not applied for a permit. Therefore, there was no evidentiary basis to support the proposition that the Municipality could not obtain accommodation allowing it to comply with its concurrent statutory obligations within a reasonable time. It would have been inappropriate, according to the Court of Appeal, to grant an order premised on an application for a permit that did not presently exist.
Comment
This decision is a useful reminder that the preferred forum for advancing defences to provincial offences and addressing any related legal issues, is the OCJ. As the Court of Appeal explained, while the provincial court may not be able to address each of the interpretive questions raised by the applicant, in particular the question of what is "reasonable" under the Municipal Act, it could certainly determine what the Municipality ought to have done in this particular case. The trial court's decision, including the legal interpretations it expressed, could be the subject of appeal, if needed.
The decision also highlights that courts will resist granting declaratory relief where prior procedural avenues for relief (e.g., permitting processes) have not been engaged and exhausted. Non-engagement with these measures may make it difficult to assert the impossibility of compliance or prove that compliance would be too onerous. In this case, there was no evidence suggesting that, if the Municipality had applied for a permit, it would not obtain reasonable accommodation for its road maintenance obligations, or that it would not receive a permit within a reasonable time.
"Speculative" claims about the non-feasibility of other procedural avenues are unlikely to warrant judicial intervention. This was particularly true here, where there was evidence that similar entities had successfully availed themselves of that relief (the MECP's expert testified that an ESA permit had been granted to the Region of Halton for roadwork affecting the same species).
The unresolved legal issue in this case—the alleged conflict between highway maintenance obligations under the Municipal Act and endangered species protections under the ESA—awaits resolution at the OCJ, at trial. We will continue to monitor.
Footnotes
1. Marmora and Lake (Municipality) v. Ontario, 2025 ONCA 10.
2. S.O. 2007, c. 6.
3. S.O. 2001, c. 25.
4. 2025 ONCA 10 at para 4.
5. Marmora, 2025 ONCA 10 at para 5.
6. Marmora, 2025 ONCA 10 at para 2; The Corporation of the Municipality of Marmora and Lake v. His Majesty the King in Right of Ontario, 2024 ONSC 2254 at para 2.
7. Marmora, 2024 ONSC 2254 at para 2.
8. Marmora, 2024 ONSC 2254 at para 6.
9. Marmora, 2024 ONSC 2254 at para 6.
10. Contrary to s. 9 of the ESA.
11. Contrary to s. 10 of the ESA.
12. Marmora, 2024 ONSC 2254 at para 95.
13. Marmora, 2025 ONCA 10 at para 4.
14. R.S.O. 1990, c. C. 43, s. 97.
15. Marmora, 2024 ONSC 2254 at para 128.
16. Marmora, 2024 ONSC 2254 at para 136.
17. Marmora, 2025 ONCA 10 at para 12.
18. Marmora, 2024 ONSC 2254 at para 151.
19. See Kourtessis v. Minister of National Revenue, 1993 CanLII 137 (SCC), [1993] 2 SCR 53.
20. Marmora, 2024 ONSC 2254 at para 155.
21. Marmora, 2025 ONCA 10 at para 9.
22. Marmora, 2025 ONCA 10 at para 16.
23. Marmora, 2025 ONCA 10 at para 25.
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