Executive Summary: Key Legal and Evidentiary Issues

• Whether the Long Point Region Conservation Authority (LPRCA) has statutory tools under the Conservation Authorities Act to enforce compliance with conditions of permits it issues, including after construction is complete.
• Characterization of the LPRCA’s decision not to take enforcement action as an exercise of discretion based on permissive, not mandatory, enforcement powers under Part VII of the Act.
• The extent to which an interested neighbouring landowner, who is not the permit applicant, may bring an application challenging a conservation authority’s decision made in response to his complaint.
• Identification of the applicable standard of review for the LPRCA’s decision, and whether that decision is reviewed for reasonableness or correctness in light of Vavilov.
• Sufficiency of the LPRCA’s reasons and supporting affidavit evidence explaining why, after reviewing the revised grading plan and engineer’s letter, it decided not to pursue enforcement measures.
• Impact, if any, of the Provincial Policy Statement and of the LPRCA’s mandate under the Conservation Authorities Act on the alleged obligation to enforce permit conditions.

Facts and regulatory background

This Application concerns a permit issued by the Long Point Region Conservation Authority (LPRCA) to Robert and Cheryl Ritchie for development on their property in Norfolk County. The Ritchies are not parties to the Application. The Applicant, Donald Husack, owns a property at 57 Ordnance Avenue that borders the Ritchie property at 55 Ordnance Avenue. Both properties are located within a provincial hazard flood zone along Lake Erie.
The LPRCA is a conservation authority constituted under the Conservation Authorities Act (CAA). The Ritchie and Husack properties fall within its jurisdiction because of their proximity to Lake Erie and their location within an area designated as a flood hazard zone. It is not disputed that the LPRCA has authority over the Ritchie property and that development or construction there is prohibited under the CAA unless it is undertaken in compliance with a permit issued by the LPRCA.
On June 21, 2022, the Ritchies applied to the LPRCA for a permit to construct a residential dwelling on their property. The permit application included a grading plan addressing management of stormwater through a swale running along the southern boundary of the Ritchie property. The application was reviewed and approved, and a permit was issued on September 1, 2022. The general conditions of the permit included that the project was to be carried out in accordance with the plans submitted, and there was a specific condition that the applicant agreed to maintain all existing drainage patterns.

Change in grading plan and construction

After receiving their LPRCA permit, the Ritchies applied for a building permit from Norfolk County. The building permit application included a different grading plan from the one submitted to the LPRCA. The revised grading plan provided for a retaining wall instead of a swale to manage stormwater. Norfolk County approved the building permit and issued it in accordance with the revised grading plan. The LPRCA was not notified of the change to the grading plan before Norfolk County issued the building permit, and the Ritchies did not apply to the LPRCA for a revised permit.
The Ritchies proceeded with construction in accordance with the building permit issued by Norfolk County, including construction of the retaining wall in the revised grading plan. Historically, grading on the Ritchie property included a swale along the southern boundary with the Husack property that directed water southeast between the two properties. The retaining wall blocks movement of water from the Husack property onto the Ritchie property.

Complaint and LPRCA investigation

In May 2023, Mr. Husack notified the LPRCA that the Ritchies had deviated from the original grading plan on which the LPRCA permit was based. A resource planner from the LPRCA replied to him, confirming that permit applications were required for the location of the Ritchie property, that a grading plan had been submitted and approved, and that if the grading were completed as approved, there would be no impact to neighbouring properties.
On November 1, 2023, the LPRCA conducted a site visit from the public road in response to Mr. Husack’s complaint. Photographs were taken and it was confirmed that the lot grading did not follow the approved LPRCA permit. On November 8, 2023, the Ritchies were notified that the property was in violation of the LPRCA permit because the lot grading was not in compliance with the grading plan as submitted.
The Ritchies then submitted an updated site plan along with a letter from a professional engineer stating that, in his opinion, the revised grading plan conformed with Norfolk County’s design criteria. Technical staff at the LPRCA reviewed this additional information and determined that the construction completed on the Ritchie property conformed with the CAA and the Prohibited Activities, Exemption and Permits Regulation.
The LPRCA notified Norfolk County’s building department that there was a discrepancy between the grading plan approved by the LPRCA and the grading plan in the building permit issued by the municipality. Norfolk County replied that the building permit had been finalized and closed.
Mr. Husack was informed that, as a result of its investigation, the LPRCA determined that there were no concerns with the revised grading plan or the construction on the Ritchie property as completed. A follow-up letter dated November 26, 2024 was sent to his counsel confirming that the LPRCA was satisfied that the work as completed complied with the legislation and that no action would be taken.

Issues before the court

The Application raises two issues: whether the LPRCA has the authority to make an order enforcing its own permit, and what role the Court has in reviewing the LPRCA’s decision not to take any action in relation to that permit.
The judge first reviewed the statutory basis for the LPRCA’s powers. The LPRCA is a creature of statute, and any authority it has must be grounded in the CAA or regulations. It is conceded by the LPRCA that the Ritchies did not comply with the permit as issued. However, there is nothing in the CAA that provides the LPRCA with authority to issue an order to the Ritchies to comply with the permit. Enforcement under the CAA is governed by Part VII. Under Part VII, the only orders that the LPRCA may issue are stop orders under section 30.4.
A stop order would not be appropriate in this case, because it requires persons to stop engaging or not engage in an activity that contravenes the conditions of a permit, and the Ritchies were no longer engaged in any activity on their property. The decision notes that if the LPRCA had been notified of the grading change before or during construction, it could have issued a stop order under section 30.4, but the wording in that section is permissive rather than mandatory: an officer “may” make an order where there are reasonable grounds to believe that a person is contravening the conditions of a permit.

Enforcement tools and discretion

Section 30.5(1)(c) of the CAA makes it an offence to contravene the conditions of a permit issued under section 28.1. The judge accepts that the Ritchies failed to comply with the conditions of the LPRCA permit by constructing a retaining wall not provided for in the original grading plan submitted, and that this failure amounts to an offence contrary to section 30.5(1)(c). However, the Ritchies have not been charged with this offence.
The decision states that there is nothing in the CAA that compels a conservation authority to charge persons who engage in activities that constitute an offence under the Act. In the absence of any mandatory provision, a conservation authority has discretion to decide whether or not to pursue charges. The judge notes that no authority was provided for the proposition that there are circumstances in which a conservation authority must take steps to enforce compliance with a permit.
The judge concludes that the LPRCA has tools at its disposal to enforce compliance with permits, including the possibility of stop orders (while work is ongoing) and the ability to lay charges for an offence, but that the use of all those tools is discretionary. In this case, the LPRCA exercised its discretion not to take any steps to force the Ritchies to comply with the permit issued.

Standing and the nature of the decision under review

The court notes that Mr. Husack brings the Application as an interested third party, not as a person directly involved in the issuance or enforcement of the permit. The CAA contains a mechanism for someone who has applied for a permit to seek a review of the decision made regarding its issuance, but that scheme does not apply to Mr. Husack because he is not the permit applicant and would likely not have standing under the CAA to seek a review of the permit for the Ritchie property.
For the purpose of this Application, however, the judge is satisfied that Mr. Husack is an interested person because he owns an abutting property and may be affected by stormwater drainage. The complaint he made to the LPRCA about the failure of the Ritchies to comply with permit conditions triggered the Authority’s review and its decision to take no enforcement action. On that basis, the judge accepts that he has standing for this Application and does not decide the broader standing issue under the CAA.
The court then turns to the framework for judicial review as described in Canada (Minister of Citizenship and Immigration) v Vavilov, quoting passages about the constitutional role of administrative bodies and the presumption of deference to their decisions, subject to judicial review. The LPRCA is described as a specialized administrative body tasked with applying the provisions of the CAA and its regulations. The decision explains that administrative decisions are reviewed on a standard of reasonableness unless they fall within exceptions in Vavilov, such as certain questions of law.
The judge does not accept Mr. Husack’s characterization of the LPRCA’s refusal to act as an error of law. The decision not to take enforcement steps is treated as an exercise of discretion rather than a general question of law. The measures available to the LPRCA to enforce permit conditions are described as permissive, not mandatory, and the decision not to act is within the LPRCA’s jurisdiction based on its statutory authority. The court therefore applies the reasonableness standard.

Reasonableness analysis

In discussing reasonableness, the court cites Vavilov on the focus of reasonableness review, which includes both the decision maker’s reasoning process and the outcome, and emphasizes that a reviewing court does not decide the issue afresh or determine the “correct” solution. The task is to determine whether the decision, including its rationale and outcome, is unreasonable.
The judge notes that this review is somewhat unusual because the court is reviewing the LPRCA’s discretion to take no enforcement action after being told of a non-compliance. To assess reasonableness, the court considers why the decision was reached and what its outcome is, asking whether the decision bears the hallmarks of justification, transparency, and intelligibility. Mr. Husack bears the burden of demonstrating that the LPRCA’s decision is unreasonable.
The decision refers to case law cited by Mr. Husack, including Lake Simcoe Conservation Authority v Saad and Stojkovski v Essex Region Conservation Authority, and explains why those cases are distinguishable on their facts. In Saad, there were charges laid under regulations made under the CAA, and in Stojkovski, the proceeding involved an appeal to the Ontario Land Tribunal after a conservation authority refused to issue a permit. In this case, the LPRCA did issue a permit and there was no appeal of that permit decision.

Reasons provided by the LPRCA

Although reasons are not required for all administrative decisions, the LPRCA did provide reasons to Mr. Husack about its decision not to enforce its permit. First, an email to Mr. Husack indicated that LPRCA staff had reviewed the updated grading plan and determined that the plan addressed stormwater and drainage on the Ritchie property. Next, the November 2024 letter to his counsel provided further details about the information reviewed and the conclusion that the work completed on the Ritchie property conformed with the legislation, so no further action would be taken.
The judge is satisfied that these reasons adequately explain the LPRCA’s decision not to enforce the original permit. Taken together, the email and letter are considered sufficient to permit meaningful review and to provide adequate justification and transparency in the decision-making process.
In response to the argument that the LPRCA failed to explain how it concluded that the drainage issue was being properly addressed, the court notes that the LPRCA has no legal obligation to explain to Mr. Husack how it reached that conclusion. Even if there were such a requirement, an explanation was provided in the affidavit evidence of Leigh-Anne Mauthe filed in the Application.
The judge states that the issue of how the LPRCA concluded, correctly or not, that the drainage issue was being properly addressed is beyond the scope of this review. The decision under review is the decision not to take steps to enforce the permit. There is nothing in the legislation requiring the LPRCA to enforce permit conditions, so the choice whether to issue a stop order or lay charges is entirely discretionary. The decision not to take enforcement measures was based in part on the LPRCA’s assessment of drainage on the Ritchie property and on whether the works as constructed complied with the CAA and its regulations.

Provincial Policy Statement and mandate arguments

The court addresses arguments that the LPRCA’s decision fails to comply with the Provincial Policy Statement (PPS) and that its failure to enforce the permit overrides its mandate under the CAA and its obligations under the PPS. The judge finds that this is based on a misunderstanding of the legislative scheme. The decision states that there is nothing in the CAA that positively requires the LPRCA to make decisions in compliance with the PPS and nothing in the PPS that requires conservation authorities to pursue enforcement of their permits.
The judge notes that the mandate to act in accordance with public safety and environmental protection does not require conservation authorities to act in every instance of non-compliance with permit conditions. The question of the LPRCA’s overall purpose or effectiveness is described as beyond the scope of the Application. The court’s role is to decide whether it was reasonable in the circumstances for the LPRCA to decline to initiate enforcement proceedings, not whether it should have done so.

Outcome and costs

The judge concludes that the LPRCA’s decision not to take enforcement steps was reasonable and should not be interfered with. The Application is dismissed. The decision leaves open, for another case, the question of whether the Court could grant the remedy sought by Mr. Husack if the LPRCA’s decision were found unreasonable.
On costs, the judge directs that if the parties cannot agree, brief written submissions may be filed within 30 days of receipt of the judgment, subject to specified formatting limits. Otherwise, the Application is dismissed. The text of the judgment does not fix any amount of costs, damages, or other monetary award. The successful party is the Respondent, Long Point Region Conservation Authority, and the total amount, if any, to be ordered in its favour cannot be determined from this decision because any costs are left to agreement between the parties or to later written submissions.