Simon's Legal Resources

Collateral Attack - Against Prior Evidence

. Grassy Narrow First Nation v. His Majesty the King in Right of Ontario, et al

In Grassy Narrow First Nation v. His Majesty the King in Right of Ontario, et al (Div Ct, 2026) the Divisional Court dismissed a JR, this brought against "the actions of a Director appointed under the Environmental Protection Act" who refused "to exercise his powers under the Act to issue stop and control orders against the mine".

The court considers a 'collateral attack on prior evidence' [my term] issue, here where the applicant did not seek "judicial review of the 2020 ECA and did not take any action with respect to that ECA at the time it was issued. Yet a large portion of its expert evidence raises significant concerns about that ECA":

[48] In my view, Grassy Narrows is mounting a collateral attack on the 2020 ECA. In 2020, Grassy Narrows could have sought leave to appeal the ECA to the Ontario Land Tribunal under s. 38 of the Environmental Bill of Rights. It did not do so. It now seeks to discredit that ECA indirectly, which it ought not be permitted to do.

[49] Thus, given that this is a discretionary enforcement decision, that the legislation creates a very high threshold for a stop order to issue, that historical exceedances were not ongoing at the time of the letter to the Minister, and that much of the evidence represents a collateral attack on the 2020 ECA, there is no basis upon which this court can interfere.