Municipality allegedly failed to seek permit despite impacts of its activities on butterflies
The Ontario Court of Appeal has dismissed the application for broad declaratory relief requested by a municipality whose road maintenance activities allegedly affected the mottled duskywing butterfly, a species designated as endangered under Ontario’s Endangered Species Act, 2007 (ESA).
In October 2022, the Corporation of the Municipality of Marmora and Lake faced charges before the Ontario Court of Justice for two ESA contraventions. The charges alleged that the municipality failed to secure a permit under s. 17(1) of the ESA to allow its activities despite the effects of these activities on the butterflies and their habitat.
Allegedly, on two days of June 2021, the municipality’s acts of removing vegetation by the side of the highway and parking vehicles on the host plants during its road resurfacing project killed, harmed, or harassed the butterflies and damaged or destroyed their habitat.
The municipality applied for declaratory orders in the Superior Court of Justice of Ontario. It argued that requiring ESA compliance would prevent it from meeting its road and related infrastructure maintenance obligations required under Ontario’s Municipal Act, 2001 and protecting itself from liability for accidents caused by maintenance failures.
The application alleged that each Ontario municipality had the sole jurisdiction to decide what was reasonable in performing its statutory maintenance and repair duties to ensure that highways or bridges were in an acceptable state of repair under the Municipal Act.
The application judge of the Superior Court denied the application seeking declaratory relief, which prompted the municipality to appeal. In Marmora and Lake (Municipality) v. Ontario, 2025 ONCA 10, the Court of Appeal for Ontario dismissed the appeal.
The appeal court found no reversible error in the application judge’s finding that the issues raised by the municipality were not ripe for adjudication and were not justiciable. The appeal court noted that the prosecution before the Ontario Court of Justice or the permit process could resolve these issues.
The appeal court also saw no error in the application judge’s finding that the municipality was trying to circumvent the Ontario Court of Justice’s authority. The appeal court noted that the municipality could raise its arguments mentioned in this application relating to the ESA’s interpretation based on the full evidentiary record before the Ontario Court of Justice.
The application judge was entitled to find, based on the evidence, that the municipality failed to establish irreconcilability in its obligations under the ESA and under the Municipal Act, the appeal court said.
The appeal court rejected the municipality’s request for a temporary order exempting it from ESA compliance until it had time to apply for a permit. The appeal court found this request for temporary relief perplexing, given that the municipality had delayed seeking a permit for so long.
