Introduction
What happens when legal duties under different legislation appear to conflict? In a recent case, The Corporation of the Municipality of Marmora and Lake v. His Majesty the King in Right of Ontario, 2024 ONSC 2254 ,the Municipality of Marmora and Lake (the “Municipality”) considered this question when its required road maintenance work allegedly disturbed an endangered species and its habitat.
Endangered species are protected under the Endangered Species Act, 2007, (the “ESA”) and its regulations. The purpose of the ESA is to identify and protect species at risk and their habitats and promote stewardship to assist in species protection and recovery.[1]
From 2008 until 2018, the ESA fell under the mandate of the Ministry of Northern Development, Mines, Natural Resources and Forestry. In 2019, jurisdiction over the ESA shifted to the Ministry of the Environment, Conservation and Parks (the “MECP”).[2]
However, the ESA has been significantly amended by Bill 5, the Protect Ontario by Unleashing our Economy Act, 2025, which received Royal Assent on June 5, 2025.[3] The ESA will eventually be entirely repealed and replaced by the new Species Conservation Act, 2025 (the “SCA”). It remains to be seen how the new SCA may impact the MECP’s enforcement of environmental legislation and how this may alter a municipality’s obligation to comply with the ESA when there are competing legislative obligations.
The Municipality’s Highway Maintenance Project
In June 2021, the Municipality was undertaking highway maintenance required under the Municipal Act, 2001.[4] In the process of conducting the road maintenance, the road resurfacing crew cleared vegetation which housed mottled duskywing butterfly eggs. [5] The Municipality did not apply for permits to clear the vegetation, which are available at the discretion of the MECP, under section 17 of the ESA.[6]
Mottled duskywing butterflies are an endangered species under the ESA. The Municipality hosts the second largest population of the species in Ontario and is a key area for the mottled duskywing butterflies’ continued existence.[7]
In October 2022, the MECP charged the Municipality with two contraventions under the ESA, alleging that the Municipality had unlawfully killed, harmed, or harassed the mottled duskywing butterfly, and damaged or destroyed its habitat.[8]
The Municipality opposed the charges on the basis that the road maintenance was in preparation of a road resurfacing capital project, citing a municipality’s obligation to maintain highways under the Municipal Act. The Municipality suggested that abiding by the ESA in this matter would have made it impossible to comply with the Municipal Act and raised several concerns with adhering to both pieces of legislation. [9] The Municipality suggested that the conflict may create a multiplicity of prosecutions, which would be financially devastating, and would place undue burden on the provincial offence system.[10]
The Municipality brought an application to the Ontario Superior Court of Justice, seeking declaratory relief, including a declaration that the Municipality fell under an ESA exemption and was immune from liability. The Municipality alternatively sought a declaration that it had jurisdiction to determine “reasonable” statutory maintenance and did not have to obtain permits to conduct necessary maintenance work.[11] The Municipality’s prosecution at the Ontario Court of Justice was stayed, pending the outcome of the application.[12]
In response to the Municipality’s application, the MECP argued that: (i) there was no conflict between the ESA and Municipal Act, (ii) the Municipality should have sought the necessary permit, and (iii) the Municipality’s application to the Superior Court of Justice was an abuse of process by attempting to interfere with the MECP’s prosecution.[13]
Ultimately, the Ontario Superior Court of Justice dismissed the Municipality’s application, finding that the Municipality had a permit mechanism at its disposal, and that the matter was not yet ripe for declaratory relief.[14] The Court determined that permits could be quickly obtained and remained applicable over several years for the various activities required for the municipal works at issue.[15]
The Superior Court Decision Upheld on Appeal
The Municipality appealed the Superior Court’s decision. On January 8, 2025, the Ontario Court of Appeal dismissed the Municipality’s appeal and affirmed the Ontario Superior Court’s decision to deny the Municipality’s application for declaratory relief.[16]
The Court of Appeal found that the Superior Court judge correctly held that the broad declaratory relief sought by the Municipality should not be granted, as the matter was not yet ripe for adjudication. The Municipality had not attempted to obtain a permit under the ESA. The Court of Appeal also noted that the Ontario Court of Justice prosecution was another avenue for the Municipality’s position to be expressed and adjudicated upon. Further, the Court of Appeal held that the Superior Court was free to find that the Municipality had not demonstrated that the ESA was irreconcilable with the Municipal Act.[17]
The Court of Appeal also upheld the Superior Court judge’s finding that the Municipality was attempting to circumvent the Ontario Court of Justice’s authority through the application.[18]
Finally, the Court of Appeal determined that the Municipality was not entitled to a temporary order allowing road maintenance pending application for a permit, since the Municipality had delayed in applying for a permit.[19]
The Effects of Bill 5 on Endangered Species in Ontario
Since the Ontario Court of Appeal released its decision in Marmora and Lake (Municipality) v Ontario, Bill 5 received Royal Assent in the Ontario Legislature.
Bill 5 amends several provisions of the ESA. These amendments may result in a different outcome than that in Marmora for municipal projects that may impact endangered species.
For example, the current definition of “habitat” under the ESA includes any other species and the area on which a species depends, directly or indirectly, for all stages of its life cycle.[20] Bill 5 narrows this definition of “habitat” to include only a species’ habitually occupied dwelling-place and the immediate surrounding area essential for only some stages of the species’ life cycle.[21] This change may reduce the size of the areas defined as a species’ habitat.
Bill 5 also removes the prohibition on harassing a species, which captures activities that do not involve direct physical harm but are nonetheless disruptive and adversely affect a species’ ability to perform its life cycle processes.[22]
Bill 5 introduces a self-registration approach to activities that might impact species at risk.[23] Under the new SCA, most proponents must only register their activity and may commence work once the MECP provides confirmation of registration.[24] While the SCA sets out activities that still require permits, it is likely that most activities that previously required a permit will only require registration. However, a “registerable activity” and a “permit activity” are not clearly identified in the SCA, as such activities must be prescribed by regulations that are not yet in force.
Furthermore, a species’ endangered or threatened status may be subject to change. When the Committee on the Status of Species at Risk in Ontario (COSSARO) classifies a species as “at risk,” then it is automatically placed on the Species at Risk in Ontario List.[25] However, both the amendments to the ESA and the new SCA provide the provincial government with the discretion to “deviate” from COSSARO’s classifications and remove the requirement to list all species that COSSARO classifies.[26]
Conclusion
A key takeaway from the Marmora and Lake decisions is that strict adherence to environmental and other applicable legislation is critical for avoiding legal consequences.
Consequently, municipalities remain liable for ensuring their obligations are met under the Municipal Act, the ESA, and the new SCA, when it comes into force. However, the amendments to the ESA and the new SCA may alter the obligations for municipal proponents involved in projects that impact endangered species. The extent to which such obligations may change remains to be seen.
About the authors
Joanna Vince is a Partner at Willms & Shier Environmental Lawyers LLP in Toronto and certified as a Specialist in Environmental Law by the Law Society of Ontario. Joanna may be reached at 416-862-4830 or by e-mail at jvince@willmsshier.com.
Alessia Petricone-Westwood is a Partner at Willms & Shier Environmental Lawyers LLP in Toronto. Alessia may be reached at 416-642-4874 or by e-mail at apetricone-westwood@willmsshier.com.
Candice Gomes is an Articling Student at Willms & Shier Environmental Lawyers LLP in Toronto. Candice may be reached by e-mail at cgomes@willmsshier.com.
Julia Singer is a Summer Law Student at Willms & Shier Environmental Lawyers LLP in Toronto. Julia may be reached by e-mail at jsinger@willmsshier.com.
The information and comments herein are for the general information of the reader only and do not constitute legal advice or opinion. The reader should seek specific legal advice for particular applications of the law to specific situations.
[1] Endangered Species Act, 2007, SO 2007, c 6, s 1 [ESA].
[2] Office of the Auditor General of Ontario, Value-for-Money Audit: Protecting and Recovering Species at Risk (Toronto: Office of the Auditor General of Ontario, 2021) at 2.
[3] Bill 5, Protect Ontario by Unleashing our Economy Ac, 2025, 1st Sess, 44th Leg, Ontario, 2025 (assented to 5 June 2025) [Bill 5].
[4] Municipal Act, 2001, S.O. 2001, c. 25.
[5] The Corporation of the Municipality of Marmora and Lake v His Majesty the King in Right of Ontario, 2024 ONSC 2254 at para 6 [Marmora 2024].
[6] Ibid at para 51.
[7] Ibid at paras 1-5.
[8] Ibid at para 6.
[9] Ibid at paras 7, 9.
[10] Ibid at paras 67, 79.
[11] Ibid at paras 50, 82.
[12] Ibid at para 8.
[13] Ibid at paras 85, 86, 89.
[14] Marmora 2024, supra note 5 at para 128.
[15] Marmora 2024, supra note 5 at paras 140, 141 and 151.
[16] Marmora and Lake (Municipality) v Ontario, 2025 ONCA 10.
[17] Ibid at paras 17-18.
[18] Ibid at paras 19-23.
[19] Ibid at paras 26-27.
[20] ESA, supra note 1, s 2(1).
[21] Bill 5, supra note 3, Schedule 2, s 2(3).
[22] Ibid, Schedule 2, s 12(1).
[23] Ibid, Schedule 10, ss 16-17.
[24] Ibid, Schedule 10, s 16.
[25] ESA, supra note 1, s 7; O Reg 230/08.
[26] Bill 5, supra note 3, Schedule 2, s 7(2), Schedule 10, s 14(2).
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