Ontario assessing how ruling by province's top court could impact endangered species litigation

A complicated legal battle involving a North Bay construction company accused of damaging a threatened species habitat has come to an end — for now.

Last week, Ontario's Court of Appeal rejected the province's attempt to reopen the government's case against Consolidated Homes Limited. 

It's an outcome Crown lawyers feared could hurt their ability to prosecute future cases under the Endangered Species Act.

The ruling effectively upholds last year's acquittal of the company, which was found guilty in 2022 of damaging a Blanding's turtle habitat near Circle Lake by using heavy machinery to remove vegetation.

The province argued the wetland shores of Circle Lake were a habitat for the Blanding's turtles, which use the space to regulate their temperature, nest and hide from predators.

The 2024 appeal of the case centred on what evidence can be used to assess whether or not a threatened species lives in a given area at a given time. 

Company argued there was 'no direct evidence'

The construction work that damaged the area on the shore of Circle Lake occurred in 2018. 

The company was aware the broader Circle Lake area could be a habitat for Blanding's turtles prior to conducting the work. Employees had been pulled in for a presentation with the Ministry of Natural Resources in 2017.

Throughout the court proceedings, the company maintained there was never any official warning that the specific area they disturbed in 2018 was home to Blanding's turtles.

To prove the space was a habitat under the Endangered Species Act, government lawyers submitted testimony from an expert biologist and pictures of Blanding's turtles taken at Circle Lake in 2007, 2017 and 2020. 

The company argued there had been no direct sighting of the turtles or evidence of their presence in the specific area that was disturbed, at or around the time the offence was committed.

Document used by biologist not a 'legal' one 

The government expert that provided testimony to the court relied on a Ministry of Natural Resources document that describes the habitat of Blanding's turtles. 

Lawyers for the company argued the document only showed the area disturbed had the potential to be a habitat and didn't prove that it was one. 

They also argued it shouldn't be relied on as evidence as it is not a legal document. The Court of Appeal judge agreed with that point.

Ontario's top court ended up siding with the company during last year's appeal. The judge called into question how much the evidence of sightings should weigh considering they occurred before and after the offence, and not in the exact area where the construction work happened.

Ontario's appeal was rejected last week

The province then tried to appeal that, asking a third judge to take a look at the case. For it to be litigated again, the province would have had to have shown the previous judge made mistakes and the case has wider public interest in the outcome of the appeal.

The third judge did not believe the case was of wider public interest, despite concerns by the the government's lawyers that it would set a precedent — that land can only be found to be a habitat when there is direct evidence the species used it at the time of the alleged offence.

"The appeal judge's decision is highly fact-specific, and it would be difficult for a reader who does not have access to the full transcript to determine exactly why she found the evidence in this case was insufficient," reads the decision.

"She also gave her decision orally, and it does not yet appear to have been reported," it continues.  

"For both of these reasons, the prospect of trial courts treating her decision as establishing a legal requirement that direct evidence is always required [...] strikes me as remote."

Gary Wheeler, a spokesperson for the province's Ministry of the Environment, Conservation and Parks, told CBC it is "currently reviewing any potential impacts stemming from this decision."

Disconnect between science and law: advocate

Katie Krelove Ontario campaigner for the Wilderness Committee, a national conservation charity organization, said environmental groups are also assessing the impacts of this decision. 

"It takes resources for the province to pursue these cases; they wouldn't pursue them if they weren't fairly confident a violation had occurred," she said. 

Krelove believes having to provide proof that the species lived in the habitat that was damaged, in order to have a strong case, will set a very high standard. 

"It is very hard to gather evidence of the presence of endangered species. It takes presence on the land and waters," she said. "That's why the province often relies on photos taken by residents." 

Krelove said that overall, the ruling shows a disconnect between science and law. 

"If the Blanding's turtles were seen in the area before, and they were there after, then they were there on the year of the offence as well."