Environmental Group Allowed Public Interest Standing in River Crossing Case

OUTCOME: Allowed

Date: 20260610 Docket: T-5142-25 Citation: 2026 FC 768 Toronto, Ontario, June 10, 2026 PRESENT: Madam Justice Whyte Nowak BETWEEN: [APPELLANT] Applicant and [NAME] AND [NAME] AND [COMPANY]. Respondents

REASONS AND

JUDGMENT I. Overview [ 1 ] [COMPANY]. [[NAME]] is one of Canada’s largest forestry companies and a global producer of renewable wood products. It sought authorization to construct and install 14 temporary river crossings [[NAME]], in connection with its plans for timber harvesting operations in the Upper Highwood River watershed within Kananaskis Country, Alberta. [ 2 ] On October 6, 2025, the [NAME] and [NAME] [Minister] issued Authorization Document No. 25-HCAA-00193 [Authorization] authorizing the [NAME]. [ 3 ] On December 19, 2025, [APPELLANT] [[NAME]], filed an application for judicial review [Application] challenging the lawfulness and reasonableness of the Authorization. [NAME] is a grassroots coalition of Albertans who advocate for environmental conservation, including along the Eastern Slopes of southern Alberta. [NAME] alleges in the Application, that the Authorization may result in harm to the [NAME], Saskatchewan-Nelson Rivers population [[NAME]], which is a threatened species. [ 4 ] Before the Court are three motions: a motion by [NAME] to strike the Application on the basis that [NAME] lacks standing to bring it; and motions by each of [NAME] and [NAME] to strike affidavits filed by the other on the merits of the Application [collectively, the Rule 306 and 307 Affidavits]. [ 5 ] For the reasons that follow, I find that the issue of standing is amenable to a preliminary determination with final effect as [NAME] meets the test for public interest standing. [NAME]’s motion to strike the Application is therefore dismissed. [ 6 ] The motions to strike the Rule 306 and 307 Affidavits are dismissed as they are not amenable to preliminary determination and should instead be decided by the judge hearing the Application [Application Judge].

II. Facts [ 7 ] The parties agree that on a motion to strike an application for judicial review, the facts asserted in the Notice of Application are presumed to be true, unless they are manifestly incapable of being proven ( [NAME] ([COMPANY] v Canada (National Revenue) , 2013 FCA 250 at para 52 [ [NAME] ]). [ 8 ] The facts that follow are therefore taken from the Notice of Application. A. Background to the Authorization [ 9 ] In April 2025, [NAME] applied to the Minister seeking authorizations for the [NAME], which consist of 14 temporary river crossings that will allow it to undertake timber harvesting operations in the Upper Highwood River watershed in southern Alberta. [ 10 ] The Minister issued the Authorization on October 6, 2025. It was made under subsection 35(2) of the Fisheries Act, RSC 1985, c F-14 , which is also an authorization under sections 73 and 74 of the Species at Risk Act , SC 2002, c 29 [ SARA ]. [ 11 ] The Minister concurrently published a document entitled, “Explanation for issuing other similar documents 25-HCAA-00193 pursuant to the provisions of section 74 of [NAME] populations” [Explanation], in which the Minister addressed the incidental effect of the [NAME] on the [NAME]. B. The Application [ 12 ] The [NAME] is a member of the salmon family, whose principal habitat is located in the Upper Highwood River watershed. It is listed as a threatened species under Schedule 1 of SARA . [ 13 ] [NAME] is of the view that the Authorization may result in the harm, harassment or killing of the [NAME] population, or damage or destroy the [NAME]’s critical habitat. It therefore filed the Application seeking judicial review of the Authorization based on its claim to have both private and public interest standing to do so. The Application is supported by the Affidavit of [NAME] sworn February 17, 2026 [[NAME]], a Director of [NAME] who describes himself as a specialized consultant in inland fisheries and the ecology of inland waters in western Canada. [ 14 ] On January 7, 2026, [NAME] served its Notice of Appearance in response to the Application, and on April 7, 2026, it served its supporting affidavits, two of which are sworn by [NAME] and [NAME]. [ 15 ] Ms. [NAME] is the Manager of [NAME] at [NAME]. She holds graduate training in ecology and biology and her affidavit [[NAME]] addresses conservation science, species at risk considerations, forest management planning and [NAME]’s approach to mitigating and offsetting impacts on [NAME] and its critical habitat. [ 16 ] Mr. [NAME] is a professional hydrologist and Senior Hydrologist at [COMPANY]. His affidavit [[NAME]] addresses hydrological modelling, watershed‑scale effects of timber harvesting and the conclusions of hydrological risk assessments prepared in relation to the Upper Highwood River watershed. [ 17 ] [NAME] intends to have both Ms. [NAME] and [NAME] qualified as expert witnesses.

III. Issues [ 18 ] Before the Court are three interlocutory motions to be decided in writing: (1) A motion brought by [NAME] to strike the underlying Application supported by a law clerk’s affidavit, which [NAME] responded to by filing an affidavit from [NAME] sworn May 11, 2026 [[NAME]]; (2) [NAME] motion to strike the [NAME]; and (3) [NAME]’s motion to strike the [NAME]. [ 19 ] These motions were authorized by Order of the Court dated April 29, 2026. [ 20 ] [NAME] submits that its motion to strike the Application and the question of standing, should be determined now as a decision on standing at this preliminary stage of the proceeding would preserve judicial resources and promote efficiency. [ 21 ] [NAME] now concedes that it lacks private interest standing but continues to assert public interest standing. It argues that [NAME] motion should be dismissed as it raises issues directed to the merits of the Application which are more appropriately determined at the hearing of the Application. [ 22 ] The Minister does not oppose any of the motions and did not file any formal responses to them. [ 23 ] Based on the parties’ positions, the Court must decide: Is it plain and obvious that [NAME] lacks standing and should this Court exercise its discretion to finally determine the issue of standing on this preliminary motion? What materials may the Court consider in deciding the issue of standing? [NAME] meet the test for public interest standing? and Should the Court strike any or all, or part of the [NAME], [NAME] and/or [NAME] [collectively, the Affidavits]? IV. Analysis A. Whether the Court should finally decide the issue of standing on this motion [ 24 ] On a motion to strike an application for judicial review based on an issue of standing, the Court may decide whether it would be appropriate in the circumstances to render a decision on standing, or whether a final disposition of the question should be heard with the merits of the case ( [COMPANY] v Canada (Governor in Council) , 2007 FCA 374 at para 13 [ Apotex ]). In making this determination, the Court should consider whether it has all of the relevant facts before it and is in a position to make a fully informed decision on the question ( Apotex at paras 13-14). [ 25 ] Given the nature of the parties’ arguments made for and against a grant of standing, I am of the view that the issue can be decided without a full record. I also agree with [NAME] that doing so will promote the efficiency of the hearing of the Application. Given that standing may be revisited if there has been a material change that warrants reconsideration of the issue ( British Columbia ([NAME] [NAME]) v Council of Canadians with Disabilities , 2022 [NAME] 27 at paras 74-75 [ Council of Canadians with Disabilities ]), I see no benefit to putting off a decision on this issue. I am therefore exercising my discretion to finally decide the question of [NAME]’s standing on this motion ( [NAME] v Canada (Citizenship and Immigration) , 2024 FC 2084 at paras 12, 14). B. The admissibility of the parties’ affidavit evidence on the issue of standing [ 26 ] Affidavits are generally not admissible in support of motions to strike applications for judicial review, or in support of an applicant’s response to a motion to strike ( [COMPANY] v Canada (Citizenship and Immigration) , 2026 FC 617 at para 19 citing [NAME] at paras 52-54). There are exceptions to this [NAME] rule where the affidavit evidence furthers the interests of justice and does not undercut the justifications against admissibility, which requires that an application list the complete grounds for review without the need to supplement those grounds by way of affidavit evidence ( [NAME] at paras 52-53). [ 27 ] In support of its motion to strike the Application, [NAME] filed a law clerk’s affidavit which attaches the Explanation, a corporate registry search, printouts of excerpts of [NAME]’s website as of April 15, 2026, and a transcript of the contents of a video from the [NAME] website. [NAME] submits that these records are incorporated by reference into the Application as they demonstrate [NAME]'s pleaded “record of action” and it is in the interest of justice to allow them to be filed (citing [NAME] at paras 53-54, 64). [ 28 ] In response to [NAME] motion, [NAME] filed the [NAME] which provides evidence going to [NAME]’s past conservation activities which include: (i) [NAME]’s preparation of scientific reports and publications between 2013 and 2020 addressing the conservation of Alberta’s native trout; (ii) examples of [NAME]’s engagement in the monitoring of East Slope trout habitat and the protection of Alberta’s native trout, dating back to 2019; and (iii) the commencement of four previous judicial review applications related to the Westslope Cutthroat Trout, none of which involved a challenge by the Minister to [NAME]’s public interest standing. [ 29 ] I agree that the Explanation is incorporated by reference in the Application and should be before the Court. [NAME]’s remaining exhibits stretch the limits of what it means to be “incorporated by reference” ( [NAME] at para 64), I will nevertheless allow them as well as the [NAME] as the justifications for the [NAME] rule of inadmissibility are not undercut by this evidence ( [NAME] v Canada ([NAME] [NAME]), 2019 CanLII 97266 (FC) at paras 17-18). This evidence is generally relevant to the issue of whether [NAME] has a history of engagement in the subject matter of the Authorization, which [NAME] pleaded and it is better for the Court to consider actual evidence of [NAME] history of engagement rather than simply rely on judicial authority allowing me to take its pleading in the Notice of Application as true. C. [NAME] meets the test for public interest standing [ 30 ] The question is whether [NAME] meets the test for public interest standing established in Canada ([NAME] [NAME]) v [NAME] Workers [APPELLANT] , 2012 [NAME] 45 at paragraph 2 [ [NAME] ]. For the reasons that follow, I find that it has. (1) [NAME] has raised a serious justiciable issue [ 31 ] On a preliminary motion to determine standing, the moving party must demonstrate that the applicant fails to raise a fairly arguable case in respect of a justiciable or a serious issue ( [NAME] v Canada ([NAME]) , [1999] 2 FC 211 at para 39). [ADDRESS] need only determine that at least one such issue is raised ( Council of Canadians with Disabilities at para 49 citing [NAME] at para 42). [ 32 ] The existence of a justiciable issue is one that is suitable for judicial determination, and which calls on the Court to exercise its proper role ( Council of Canadians with Disabilities at paras 48, 50). The existence of a serious issue on the other hand protects against the allocation of scarce judicial resources from frivolous proceedings brought by a litigant with no genuine interest, often described as “the mere busybody” ( Council of Canadians with Disabilities at paras 48-49, 51). [ 33 ] [NAME] submits that the Application is not directed at the Minister’s Decision and fails to address the [NAME] themselves. It suggests that the Application is instead “overwhelmingly concerned with the forestry operations that the [Proposed] Crossings will facilitate.” [NAME] characterizes the Application and the evidence filed in support of it as an impermissible challenge to the broader, provincially regulated, timber harvesting operations that the [NAME] will facilitate. [ 34 ] I do not agree with [NAME] characterization of the Application. One ground of review, in particular, shows the fallacy of [NAME] position. [ 35 ] The Application raises the following issue under SARA relating to the Minister’s compliance with the mandatory preconditions imposed by subsection 73(3) of SARA : The Minister concluded that [NAME] plan to construct the [NAME] represented the best solution after considering all reasonable alternatives, such that paragraph 73(3)(a) was met. This conclusion is unsupported. The Explanation assumes that industrial access for logging must occur and does not demonstrate that less harmful alternatives, such as restricting harvest areas, using existing infrastructure, or deferring operations, were meaningfully assessed. No comparative analysis of alternative access routes or non-bridge options is provided. [ 36 ] The focus on whether logging should be permitted at all, stems not from a misdirected focus on the part of [NAME], but from the Minister’s own rationale in issuing the Authorization found in the Explanation, which in examining alternatives, opens with the statement: “[t]he alternative to ‘do nothing’ at this site is not a reasonable option, as the crossings are required for the harvesting operations.” [ 37 ] I therefore find that [NAME] has raised at least one serious justiciable issue appropriate for public interest standing on the facts pleaded in the Application. (2) [NAME] has a genuine stake that goes beyond generalized advocacy [ 38 ] The first basis upon which [NAME] says that [NAME] has failed to meet this factor of the test, is that [NAME] does not have a genuine interest in the actual subject matter before the Court. This submission is premised on [NAME]’s view that [NAME]'s true interest is in halting forestry and in achieving the creation of a conservation area, objectives which are entirely beyond the scope of the Decision under review. [ 39 ] [NAME] submits that [NAME]’s advocacy has never been focused on bridge crossings or the federal authorization process for watercourse crossings in areas mapped as critical habitat. It argues that [NAME]’s establishment of an indirect connection to the true subject matter of this proceeding, is insufficient to make out a genuine interest in the issues at stake. I do not agree. [ 40 ] The saying that “two things can be true” is particularly apt. [NAME]’s focus is on the [NAME], which will facilitate its harvesting operations. This is the focus of the Authorization. [NAME]’s focus is on the impact of the Authorization on the [NAME] and its habitat, which is the focus of the Explanation. As the Explanation forms part of the Minister’s decision making in issuing the Authorization, I cannot accept [NAME]’s argument that [NAME]’s record of action in connection with the [NAME] and other threatened species of fish in the region is insufficient to make out a genuine interest worthy of the grant of standing. [ 41 ] I agree with [NAME] that it’s history of advocating for [NAME] and other SARA -listed species of fish occupying waters of the Eastern Slopes of the Canadian Rockies in Alberta and its history of engagement with the statutory regime is made out on the evidence and is sufficient to satisfy this aspect of the standing analysis, particularly where there is no other party directly affected by the Decision ( Canada ([NAME] and [APPELLANT]) v [NAME] , 1996 CanLII 11890 (FCA), Citizens' Mining Council of [COMPANY] v Canada ([NAME]) , [1999] FCJ No 273 at paras 34-35). (3) Whether the Application is a reasonable and effective means of bringing the issues in the Application forward [ 42 ] [NAME] relies on the decision in [COMPANY] v Canada ([NAME]) , 2014 FCA 245 [ [NAME] ], in which the applicant was denied standing by reason that it had played no role in the underlying administrative process leading to the decision under review. [NAME] similarly argues that [NAME] chose not to participate in the administrative process leading to the issuance of the Authorization and applying [NAME] , [NAME] fits the bill of a “classic” busybody litigant and should therefore be denied standing. [ 43 ] I find that [NAME] is distinguishable. First, in [NAME] there was another party who was able to litigate the issues in dispute, which is not the case here. Second, the record in [NAME] was found not to have shown either a genuine interest in the issues in the case or issues similar to the one being litigated in the case ( [NAME] at para 34). Here the evidence confirms [NAME] interest in [NAME] and its record of action in protecting and defending other SARA -listed species of fish. I do not accept the characterization of [NAME] as a “busybody” litigant. [ 44 ] Finally, I note that judicial review is the sole mechanism available to challenge the Authorization. [NAME] judicial review will ensure that the Authorization receives the fair scrutiny that it deserves in light of the alleged impact that [NAME] pleads it could have on a threatened species. [ 45 ] The decision to grant public interest standing is ultimately, a matter of discretion which looks to serve the underlying purposes of the law of standing ( [NAME] at paras 3, 35). Having assessed and weighed the three factors referred to in [NAME], cumulatively and purposively and with regard to the circumstances of this case, I am of the view that [NAME] should be granted public interest standing. This is neither a marginal or redundant case and there is no litigant with a direct interest. Not only is the Application a reasonable and effective way to bring the issues raised in the Application before the Court, but without a grant of standing, a Ministerial decision that has the potential to incidentally affect a threatened species, would be immune from an assessment of its reasonableness ( Council of Canadians with Disabilities at paras 28-31, [NAME] at paras 1, 21). D. Whether the Court should strike the Rule 306 and 307 Affidavits [ 46 ] [NAME] seeks to strike the [NAME], which [NAME] filed in support of its Application. [NAME] for its part, seeks to strike the [NAME]. [ 47 ] The Federal Court of Appeal has consistently held that in the context of judicial review, motions to strike an affidavit, whether in whole or in part, should only be brought in exceptional circumstances where there is demonstrated prejudice to the moving party ( [COMPANY] v [COMPANY] , 2001 FCA 8, Gravel v [COMPANY] , 2011 FCA 14 at para 5). [ 48 ] [NAME] submits that the [NAME] is improper in that it: (i) focuses on logging, not on the [NAME] that are the actual subject of the Authorization; (ii) is not confined to matters within the personal knowledge of the deponent; (iii) introduces extrinsic evidence, analysis, opinions and arguments that were not before the decision maker; (iv) is not restricted to matters of a factual nature and contains extensive opinion and argument amounting to expert evidence; and (v) lacks independence. [ 49 ] The bases cited by [NAME] for striking the [NAME] are that: (i) the affidavits provide inadmissible extrinsic material that was not before the decision maker, which does not fit within any of the recognized exceptions to the [NAME] rule; (ii) the affiants’ evidence is argumentative; and (iii) the affidavits are improperly advanced in order to augment the Minister’s assessment of the merits of the Authorization. [ 50 ] Both parties suggest that they will be prejudiced by the Affidavits as they will be required to incur time and expense in responding to them or cross-examining the affiants. [NAME] additionally argues that the [NAME] will improperly transform the proceeding into a trial de novo on issues of science. [ 51 ] [NAME] and [NAME] defend the Affidavits including on the basis that each Affidavit provides background to the Decision that will be of assistance to the Court and any objections can be dealt with as a matter of weight (citing Association of Universities and Colleges of Canada v [NAME] (Access Copyright) , 2012 FCA 22 at paras 19-20 [ Access Copyright ]). [ 52 ] This is not an exceptional case as required by the caselaw, nor have the parties raised issues of prejudice that cannot be dealt with by way of costs. I appreciate that there are limits to the background exception provided for in Access Copyright , and that each of [NAME] and [NAME] argue that those limits have been exceeded; however, the Application Judge is best suited to deciding this and other issues regarding the propriety of the Affidavits under Rules 8(1) or 52.2 of the Federal Courts Rules, SOR/98-106, including whether such issues should be addressed as a matter of admissibility or weight. To the extent that this complicates the hearing of the Application, the fault for this lies with the parties themselves who, with the benefit of time, will hopefully narrow their objections down to those that really matter.

V. Conclusion [ 53 ] The motion to strike the Application is dismissed and in the exercise of this Court’s discretion, [NAME] is granted public interest standing. [ADDRESS] is also dismissing the motions to strike the Affidavits without prejudice to these motions being brought before the Application Judge.

JUDGMENT in T-5142-25 THIS COURT’S

JUDGMENT is that: [NAME]’s motion to strike the Notice of Application, is dismissed; [APPELLANT] is granted public interest standing in connection with the Application herein; [NAME]’s motion to strike the affidavit of [NAME] sworn February 17, 2026, is dismissed without prejudice; [NAME] motion to strike the affidavits of [NAME] and [NAME] sworn April 6, 2026, is dismissed without prejudice; and There is no award of costs. blank “Allyson Whyte Nowak” blank Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-5142-25 STYLE OF CAUSE: [APPELLANT] v [NAME] AND [APPELLANT] CANADA AND [COMPANY]. MOTION IN WRITING CONSIDERED AT TORONTO, ONTARIO PURSUANT TO RULE 369 OF THE FEDERAL COURTS RULES

REASONS AND

JUDGMENT: WHYTE NOWAK J. DATED: JUNE 10, 2026 WRITTEN SUBMISSIONS : [COUNSEL] [NAME] [COUNSEL] FOR THE APPLICANT [COUNSEL] [NAME] [COUNSEL] FOR THE RESPONDENT ([COMPANY].) SOLICITORS OF RECORD : [COMPANY] and Solicitors Calgary, Alberta FOR THE APPLICANT [NAME] [NAME] of Canada Edmonton, Alberta FOR THE RESPONDENT ([NAME] AND [RESPONDENT] CANADA) [COMPANY] and Solicitors Calgary, Alberta FOR THE RESPONDENT ([COMPANY].)