The court held that the application judge had erred by applying a standard of correctness on review of an Acting Park Superintendent’s interpretation of a park management plan and by finding that the Applicant (Respondent on appeal) was denied procedural fairness in relation to its request for use of a private road located in a provincial park. At its highest, the applicable standard for review was reasonableness, and the Superintendent’s interpretation was not unreasonable.

Administrative law – Decisions of administrative tribunals – Park Superintendent – Road access – Judicial review – Standard of review – Reasonableness simpliciter – Procedural requirements and fairness

2016596 Ontario Inc. v. Ontario (Minister of Natural Resources), [2004] O.J. No. 3922, Ontario Court of Appeal, September 28, 2004, Simmons and Armstrong JJ.A. and Lane J. (ad hoc)

The Applicant on judicial review owned acres of land adjacent to Lake Superior Provincial Park. The Acting Park Superintendent had denied the Applicant’s request to use a park road to access its lands. On the judicial review application, the judge held that a park management plan entitled the Applicant to use the park road as a forest access road to travel to and from its lands adjacent to the park. The parties had agreed that the applicable standard of review of the Superintendent’s decision to deny access to the road was patent unreasonableness. On appeal, they disagreed on what standard of review the application judge had actually applied.

The 1995 Lake Superior Provincial Park Management Plan set out policies for use of the road in question. The Acting Park Superintendent denied the Applicant’s request for access to the road, concluding that the vehicle access on the road was not permitted for access to and from private property, based on the provisions of the 1995 Plan. The application for judicial review was brought after further repeated requests from the Applicant were denied by the Superintendent, the park manager, and ultimately the Minister. The Applicant sought, in the main, a declaration that it was entitled to use the road as a forest access road pursuant to the terms of the 1995 Plan, or for an injunction restraining the Minister from placing any barrier or obstacle over the road which would impede the Applicant’s access.

The court held that the application judge’s reasons indicated that he had employed a two-step approach in reviewing the access decision. In the first step, the application judge applied the standard of correctness and determined that the Acting Park Superintendent’s interpretation of the 1995 Plan was incorrect. In the second step, the application judge found that, in light of the Superintendent’s incorrect interpretation of the 1995 Plan and other factors, the access decision did not meet the standard of fairness.

The court went on to consider the proper standard for reviewing the Superintendent’s interpretation of the 1995 Plan. It was appropriate to apply the functional and pragmatic approach set out in the Supreme Court of Canada’s decision in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 1222. The court concluded that considerable deference should be accorded to the Superintendent’s interpretation.

The court concluded that, at most, the application judge ought to have applied a standard of reasonableness in reviewing the Acting Park Superintendent’s interpretation of the 1995 Plan. Considering whether that decision was reasonable, the court held that, based on a plain reading of the section, either standing alone or in combination with the evidence presented concerning the history of the use of the road, the Acting Park Superintendent’s interpretation of the 1995 Plan and the resulting decision to refuse the Applicant’s request for access to the road were not unreasonable. While a different interpretation of the 1995 Plan might also have been reasonable, the court was not persuaded that the interpretation in this case was unreasonable.

The court went on to consider whether the application judge had erred by concluding that the Respondent was denied procedural fairness. The court held that there was no basis for holding that either a public hearing or an Order-in-Council was required as a pre-condition to the access decision. There was no basis for holding that the Applicant was denied procedural fairness.

A dissenting opinion held that evidence of the historical use of the road, as a means of access to sources of timber on private property, resolved ambiguity that was created by part of the 1995 Plan. In the result, the decision of the Acting Park Superintendent was patently unreasonable and the appeal ought to have been dismissed.

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