Porter v. Nova Scotia (Municipal Affairs and Housing)

Porter v. Nova Scotia (Municipal Affairs and Housing) Court Supreme Court Date 2025-01-23 Citation 2025 NSSC 27 Docket Hfx No. 524492 Judge/Registrar/Adjudicator Jamieson, Darlene (Honourable Justice) Document Type Decision Decision Content SUPREME COURT OF Nova Scotia Citation: Porter v. Nova Scotia (Municipal Affairs and Housing) 2025 NSSC 27 Date: 20250123 Docket: Hfx No. 524492 Registry: Halifax Between: Darren Porter Applicant v. Nova Scotia Minister of Municipal Affairs and Housing, and The Attorney General of Nova Scotia, representing His Majesty the King in Right of the Province of Nova Scotia Respondents DECISION Judge: The Honourable Justice Darlene A. Jamieson Heard: November 27, 2024 in Halifax, Nova Scotia Written Decision: January 23, 2025 Counsel: Mr. James I. Simpson and Ms. Richelle Martin for the Applicant Mr. Jeremy P. Smith for the Respondents By the Court: Background [1] Mr. Darren Porter seeks judicial review of four decisions made by the Nova Scotia Minister of Municipal Affairs and Housing (“the Decisions”) under the Emergency Management Act, S.N.S. 1990, c. 8, (“EMA”) dated June 1, 2023; April 4, 2024; April 18, 2024; and May 2, 2024. The initial Notice for Judicial Review filed on June 12, 2023, sought judicial review of the June 1, 2023, decision to invoke a state of emergency. Along with filing the Notice for Judicial Review, Mr. Porter moved for a stay of the decisions on an emergency basis. On July 18, 2023, that motion was denied. By judgment dated April 9, 2024, leave to appeal was denied. [2] As the result of an agreement between the parties, the Notice for Judicial Review was amended to add the above-referenced three renewals of the declaration of the state of emergency. This matter concerns decisions taken by the Minister of Municipal Affairs and Housing (the “Minister”) for the area around and including Lake Pisiquid near Windsor, Nova Scotia. [3] The June 1, 2023, state of emergency decision referenced the many wildfires burning in several areas of the province and the extreme demands upon resources and personnel in the attempts to prevent loss of property and to protect the health and safety of residents. The Minister’s Direction ordered the gates (aboiteau) at the Avon River causeway to be closed. Lake Pisiquid is at the mouth of the Avon River and forms when the gates in the aboiteau are closed. [4] The aboiteau is a dam-like structure in which the gates can be mechanically operated to control the water flowing between the Avon River and the Bay of Fundy. The aboiteau was constructed between 1968 and 1970 and is operated by the Nova Scotia Department of Agriculture. [5] A March 18, 2021, order of the federal Department of Fisheries and Oceans (“DFO”), required the gates in the aboiteau to be opened during low tide. This DFO order was renewed every two weeks until June 10, 2023. The order resulted in the Lake Pisiquid area returning to its natural state, with the water from the Avon River flowing directly into the Bay of Fundy. [6] Mr. Porter is a commercial fisher. He lives near the Avon River and has made a living on the river as a fisher for more than two decades. The Avon River estuary is Mr. Porter’s primary commercial fishing zone. Mr. Porter is the spokesperson for several local fisheries, including the Gaspereau River Square Fisheries, the Avon River Gaspereau Fishermen, and the Fundy United Federation. These groups represent approximately 120 fishers. [7] Mr. Porter paused his commercial fishing in the spring of 2023 to carry out monitoring studies concerning the impact of the Avon River causeway’s aboiteau on the river’s fishery and ecosystem. These studies are part of the development of an application process for a new river-crossing gate structure for the Highway 101 twinning project. Mr. Porter has been contracted for the scientific monitoring work by the Confederacy of Mainland Mi’kmaq, on behalf of the Province of Nova Scotia. Mr. Porter intends to return to commercial fishing upon completion of his monitoring work. [8] Mr. Porter believes that the flow of water through the gates (aboiteau) at the Avon River causeway (both down-river during out-going tides and up-river during in-coming tides) is essential for the fishery that he fishes, as well as for the health of the river system generally. Mr. Porter says that he observed increases in the abundance and diversity of fish in the Avon River after the March 2021 DFO order. [9] A number of affidavits and reports concerning fish passage and the natural ecosystem were filed with the court in support of the stay motion and are contained in the supplemental record (the “Supplemental Record”). For example, the Supplemental Record contains an opinion from Dr. Trevor Avery that “closure of the Avon River gates, and the subsequent filling of the reservoir referred to as Lake Pisiquid, will cause ecological changes that affect fish passage and habitat (including water quality), as well as affect general ecosystem balance.” [10] Initially there was a preliminary issue as to whether Mr. Porter had standing to bring this application for judicial review. Mr. Porter sought private interest standing to bring the judicial review or, in the alternative, public interest standing. At the hearing, the Attorney General acknowledged that Mr. Porter has public interest standing. Given the Attorney General’s consent to public interest standing, the parties agreed that there was no need to consider the issue of private interest standing. Grounds for Review [11] The Amended Notice for Judicial Review, filed on July 5, 2024, lists the various grounds for review. In summary, they are as follows: The Minister acted unreasonably by declaring a State of Emergency for the area around and including Pisiquid Lake, Windsor, Hants County, Nova Scotia, and in reviewing the State of Emergency April 4, April 18 and May 2, 2024. There was no present or imminent threat to property or the health, safety or welfare of the people of Windsor due to wildfire at the time of the State of Emergency declaration or at the time of each subsequent renewal. Specifically, the Minister had no reasonable indication of a present or imminent event requiring the declaration in order to protect property or the health, safety or welfare of the citizens of Windsor. In other words, the Minister had no basis on which to conclude that an emergency exists or may exist in Windsor. Furthermore, the Minister had no basis on which to conclude that maximizing the water level in Pisiquid Lake was necessary for the protection of property and the health or safety of the citizens of Windsor. Lastly, the Minister’s discretion under the state of emergency has resulted in the unauthorized death of fish in contravention of s. 34.4 (1) of the Fisheries Act, RCS 1985, c F-14 and harmful alteration and disruption of fish habitat in contravention of s. 35(1) of the Fisheries Act. [12] The respondents filed a Notice of Participation on June 15, 2023. They say the court should not disturb any decision, action or other matter under review. [13] The record was filed with the court on September 26, 2024 (the “Record”). The Supplemental Record, consisting of six separate volumes, was filed by consent of the parties on October 29, 2024. The Decisions [14] The Decisions are dated June 1, 2023; April 4; April 18; and May 2, 2024. The decision of June 1, 2023, states in part: Emergency Area: A State of Emergency is declared for the area around and including Pisiquid Lake, Windsor, Hants County of Nova Scotia Nature of the Emergency: Many wildfires have been burning in the several areas of the Province. Some continue to be out of control and to create extreme demands upon resources and personnel in the attempts to prevent further loss of property and to protect the health and safety of residents. This event requires prompt coordinated action or regulation for the protection of property and for the health and safety of persons in Nova Scotia. After consultation with a quorum of the Executive Council, I am satisfied that an emergency, as defined in clause 2(b) of chapter 8 of the Acts of 1990, the Emergency Management Act, continues to exist or may exist in identified area of the Province. While under a Provincial State of Emergency, I may require any or all of the actions specifically listed under clauses 14(a) to (m) of the Emergency Management Act, or anything else I determine is necessary for the protection of property and the health or safety of persons in the Province.… [15] There is also a Direction of the Minister under a Declared State of Emergency document. It was signed on June 1, 2023, and states in part: … I direct that: the owners and operators of this sleway connected to Pisiquid Lake, and any associated infrastructure, manipulate that sleway as directed by the Provincial Fire Marshal, in his role as a fire suppression and prevention coordinator, with the goal of maximizing the water supply resource available for the wildfire suppression efforts. [16] The three decisions of April and May 2024 contain essentially identical wording and indicate that they are a renewal of the June 1, 2023, state of emergency. They list all of the prior renewals. These 2024 decisions state in part: Emergency Area: On June 1, 2023, a state of emergency was declared for the area around and including Pisiquid Lake, Windsor, Hants County in the province of Nova Scotia. Nature of the Emergency: Nova Scotia experienced unprecedented wildfire activity in May 2023. Out of control wildfires damaged homes and destroyed large tracks of land. The fire suppression resources in the emergency area were inadequate for a large fire event. The Provincial government had to monitor the availability of essential water resources in the Hants County area for fire suppression purposes. The circumstances require the continuation of prompt coordinated action or regulation for the protection of property and for the health and safety of persons in the emergency area. I am satisfied that an emergency as defined in clause 2 (b) of chapter 8 of the Acts of 1990, the Emergency Management Act, continues to exist or may exist in the Province and requires the further continuation of the state of emergency in the emergency area identified above. While under a Provincial State of Emergency, I may require any or all of the actions specifically listed under clauses 14(a) to (m) of the Emergency Management Act, or anything else I determine is necessary for the protection of property and the health or safety of persons in the Province.… With the approval of the Governor in Council, I hereby further renew the declaration of a State of Emergency… [17] All of the decisions indicate that the original was signed by the Honourable John Lohr, Minister of Municipal Affairs and Housing (the “Minister”) (also the Minister responsible for the Emergency Management Office (“EMO”)). The Statutory Scheme [18] In this judicial review the relevant legislation is the EMA. The relevant provisions are set out below: Interpretation 2 In this Act, … (aa) “Department” means the Department of Emergency Management; (b) “emergency” means a present or imminent event in respect of which the Minister or a municipality, as the case may be, believes prompt co-ordination of action or regulation of persons or property must be undertaken to protect property or the health, safety or welfare of people in the Province;… (d) “emergency management plan” means any plan, program or procedure prepared by the Province or a municipality, as the case may be, that is intended to mitigate the effects of an emergency or disaster and to provide for the safety, health or welfare of the civil population and the protection of property in the event of such an occurrence; (e) “Fire Marshal” means the Fire Marshal appointed pursuant to the Fire Prevention Act; … Act prevails and Minister’s authority 3 (1) Where there is a conflict or inconsistency between this Act, the regulations or an order made by the Minister under this Act and any other enactment respecting emergencies, this Act, the regulations and the order prevail. (2) The Minister has authority over all matters respecting emergency planning, preparedness, response, mitigation, recovery and emergencies in the Province. (3) The Minister’s authority under subsection (2) includes (a) the general supervision and management of this Act; (b) the co-ordination of emergency management plans within the Province; and (c) authority to delegate powers vested in the Minister by or pursuant to this Act. … Powers of Department 8. The Department may, subject to the approval of the Minister, (a) review and approve, or require modification to Provincial and municipal emergency management plans; (b) make surveys and studies to identify and record actual and potential hazards that may cause an emergency; (c) make surveys and studies of resources and facilities to provide information for the effective preparation of emergency management plans; (d) conduct public information programs related to the prevention and mitigation of damage during an emergency; (e) conduct training and training exercises for the effective implementation of emergency management plans; (f) procure food, clothing, medicines, equipment and goods of any nature or kind for the purposes of emergencies; (g) authorize or require the implementation of any emergency management plan; (h) enter into agreements with any persons, organizations or associations in respect of emergency management plans. … Municipality to report emergency 10A Every municipality shall, immediately upon becoming aware of it, inform the Department of any real or anticipated event or emergency that could impact the health, safety or welfare of Nova Scotians, their property or the environment. State of emergency or state of local emergency 12(1) The Minister, after consulting, if it is practical to do so, with a majority of the members of a committee established pursuant to Section 5 or a quorum of the Executive Council and, if the Minister is satisfied that an emergency exists or may exist, may declare a state of emergency in respect of all or any district, subdistrict or area of the Province. (2) A municipal council may, when satisfied that an emergency exists or may exist in all or any area of that municipality, declare a state of local emergency in respect of that municipality or area thereof. (3) If a municipal council is unable to act promptly, the mayor or warden may exercise the authority of the municipal council contained in subsection (2) after consulting, if it is practical to do so, with a majority of the members of the council’s committee to advise on the development of emergency management plans. (4) A declaration pursuant to this Section shall identify the nature of the emergency and the area in which it exists. (5) Nothing in this Section prevents the Minister from declaring a state of emergency whether a state of local emergency has been declared or not. Publication of declaration or termination 13 When a state of emergency or a state of local emergency has been declared or terminated pursuant to this Act, the Minister or the municipality, as the case may be, shall immediately cause the details of the declaration or termination to be communicated or published by such means as the Minister or the municipality, respectively, considers the most likely to make the contents of the declaration or termination known to the people of the area affected. Protection of property and health or safety 14 Upon a state of emergency being declared in respect to the Province or an area thereof, or upon a state of local emergency being declared in respect to a municipality or an area thereof, the Minister may, during the state of emergency, in respect of the Province or an area thereof, or the mayor or warden, as the case may be, may, during the state of local emergency, in respect of such municipality or an area thereof, as the case may be, do everything necessary for the protection of property and the health or safety of persons therein and, without restricting the generality of the foregoing, may (a) cause an emergency management plan or any part thereof to be implemented; (b) acquire or utilize or cause the acquisition or utilization of personal property by confiscation or any means considered necessary; (c) authorize or require a qualified person to render aid of such type as that person may be qualified to provide; (d) control or prohibit travel to or from an area or on a road, street or highway; (e) provide for the maintenance and restoration of essential facilities, the distribution of essential supplies and the maintenance and coordination of emergency medical, social and other essential services; (f) cause or order the evacuation of persons and the removal of livestock and personal property threatened by an emergency and make arrangements for the adequate care and protection thereof; (g) authorize the entry by a person into any building or upon land without warrant; (h) cause or order the demolition or removal of any thing where the demolition or removal is necessary or advisable for the purpose of reaching the scene of an emergency, of attempting to forestall its occurrence or of combating its progress; (i) order the assistance of persons needed to carry out the provisions mentioned in this Section; (j) regulate the distribution and availability of essential goods, services and resources; (k) authorize and make emergency payments; (l) assess damage to any works, property or undertaking and the costs to repair, replace or restore the same; (m) assess damage to the environment and the costs and methods to eliminate or alleviate the damage. … Fires and law enforcement 17 During a state of emergency, (a) the Fire Marshal is the co-ordinator of all efforts in relation to the suppression and prevention of fires, and every fire brigade, fire department and firefighter in the area in which the state of emergency exists is subject to the direction and control of the Fire Marshal; and (b) a peace officer designated for this purpose by the Solicitor General is the co-ordinator of all efforts in relation to law enforcement and every police officer and auxiliary police officer in the area in which the state of emergency exists is subject to the direction and control of that officer. Termination of state of emergency or state of local emergency 18 (1) The Minister may (a) terminate a state of emergency with respect to an area identified by the Minister in a declaration of a state of emergency when, in the Minister’s opinion, an emergency no longer exists in such area; and (b) terminate a state of local emergency with respect to an area identified by a municipality in its declaration of a state of local emergency when, in the Minister’s opinion, an emergency no longer exists in such area. (2) A municipality may terminate a state of local emergency with respect to an area identified by it in its declaration of a state of local emergency when, in its opinion, an emergency no longer exists in such area. Termination within fourteen days and renewal 19(1) A state of emergency terminates fourteen days after the day on which it was declared unless it is renewed or terminated by the Minister. (2) A state of emergency may be renewed by the Minister with the approval of the Governor in Council. (3) The provisions of this Act respecting a state of emergency and the declaration thereof apply, with the necessary changes, to a renewal of a state of emergency. Mr. Porter’s Position [19] Mr. Porter says the Minister has failed to demonstrate a present or imminent threat necessary to justify the use of the EMA in light of the factual constraints. He says there is no evidence that Windsor could not deal with the potential threat of fire in its community, or that any alternative measures, a step below invoking the EMA, have been explored in any robust manner. Mr. Porter argues that the reasons provided by the Minister as to why he ordered the causeway gates to be shut so as to re-fill Lake Pisiquid do not “add up”, both at the time of the June 1, 2023, closure and the subsequent renewals. He says the Minister claimed that he received a request from the Windsor Fire Chief for water resources at Lake Pisiquid, yet the Fire Chief attested that this did not happen. The Minister claimed that the wildfires burning in other parts of the province created an emergency in Windsor without any evidence, either before June 1, 2023, or in the months after, that there was or is a present or imminent event threatening property or people in Windsor. He says there is no evidence of communications with the Town of Windsor about firefighting preparedness, notwithstanding the Town’s jurisdiction over firefighting preparedness. Mr. Porter stressed that there is no evidence whatsoever that the Minister has investigated or is developing an emergency management plan to move beyond the seemingly perpetual state of emergency. [20] Mr. Porter says the Record contains no indication of the Fire Marshal being involved in the decision despite (a) Mr. Burgess attesting to having provided the Fire Marshal with information on water levels, (b) the Directive under the State of Emergency requiring direction from the Fire Marshal, and (c) the EMA requiring all efforts related to suppression and prevention of fires to be coordinated by the Fire Marshal. [21] Mr. Porter says Pisiquid Lake is politically contentious. He refers to a video made prior to the June decision where Premier Tim Houston and Ms. Melissa Sheehy-Richard, MLA for Hants West, are standing on the dry riverbed criticizing the federal government with respect to delayed approvals concerning the replacement for the aboiteau. [22] Mr. Porter submits that the lack of coherent reasoning to justify the original or continuing state of emergency, together with the antagonistic relations between the province and both the federal government and the Mi’kmaq of Nova Scotia on the causeway issue give rise to only one reasonable inference – the Minister took advantage of the spring 2023 wildfires for political reasons. He argues that the Minister’s use of the EMA in any case other than an emergency, as has occurred here, exceeds the power given to him by the legislation. He further says the Minister’s decisions do not appear to be based on the evidence that was actually before him, making them unreasonable. [23] Mr. Porter alternatively argues that even if the Minister’s reasons were found to justify the June 1, 2023, declaration of a state of emergency, those reasons collapsed as soon as the province had the wildfires under control on or about June 8, 2023. Issues [24] The parties agree that the issues for determination are: 1. Whether the decision of June 1, 2023, was reasonable. 2. Whether the decisions of April 4, April 18, and May 2, 2024, were reasonable. The Law and Analysis Standard of Review for Judicial Review [25] There is no dispute between the parties that the standard of review is reasonableness. [26] The Supreme Court of Canada in 2019 set out a revised framework for judicial review of administrative decisions in the companion decisions of Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, and Bell Canada v. Canada (Attorney General), 2019 SCC 66. The court said in Vavilov that the revised standard of review analysis begins with a presumption that reasonableness is the applicable standard of review in all cases. While the court recognized some limited exceptions to this presumption, none of those exceptions applies to this judicial review. The standard of review to be applied in assessing Minister Lohr’s decisions is reasonableness. Reasonableness Review [27] The court in Vavilov said that a reasonableness review aims to give effect to the legislature’s intent to leave certain decisions with an administrative body while fulfilling the constitutional role of judicial review to ensure that exercises of state powers are subject to the rule of law (para. 82). The majority further said that the focus is on the decision actually made: 83… Accordingly, a court applying the reasonableness standard does not ask what decision it would have made in place of that of the administrative decision maker, attempt to ascertain the “range” of possible conclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the “correct” solution to the problem. …Instead, the reviewing court must consider only whether the decision made by the administrative decision maker - including both the rationale for the decision and the outcome to which it led - was unreasonable. [28] Vavilov indicates that the reasonableness review is robust; that the court must always start with the decision-maker’s reasons, which are the primary means of demonstrating reasonableness; that the burden is on the applicant; that the review involves a contextual analysis; that it is a respectful analysis, attentive to the application by decision makers of specialized knowledge as demonstrated by their reasons; and that what is reasonable in a given situation will always depend on the constraints imposed by the legal and factual context of the particular decision under review. See also Carroll v. Canada (Minister of Justice), 2021 NSCA 71. [29] The court in Vavilov identified two distinctive characteristics of a reasonable decision. First, a reasonable decision is based on internally coherent reasoning. Second, the decision should be justifiable with regard to the legal and factual constraints that bear upon it. The court said: [101] What makes a decision unreasonable? We find it conceptually useful here to consider two types of fundamental flaws. The first is a failure of rationality internal to the reasoning process. The second arises when a decision is in some respect untenable in light of the relevant factual and legal constraints that bear on it. There is however, no need for reviewing courts to categorize failures of reasonableness as belonging to one type or the other. Rather, we use these descriptions simply as a convenient way to discuss the types of issues that may show a decision to be unreasonable. [102] To be reasonable, a decision must be based on reasoning that is both rational and logical. It follows that a failure in this respect may lead a reviewing court to conclude that a decision must be set aside. Reasonableness review is not a “line-by-line treasure hunt for error”: … [30] In Manitoba Government and General Employees’ Union v. The Minister of Finance for the Government of Manitoba, The Honourable Scott Fielding, 2021 MBCA 36, the court, citing Vavilov, set out a concise summary of the two fundamental flaws that may characterize an unreasonable decision: 37 With respect to the first characteristic, the reasons should contain a line of analysis that could reasonably lead the decisionmaker from the evidence to its decision with no fatal flaw in logic. The Supreme Court explained (at para 96): ... Even if the outcome of the decision could be reasonable under different circumstances, it is not open to a reviewing court to disregard the flawed basis for a decision and substitute its own justification for the outcome: Delta Air Lines [Delta Air Lines Inc v Lukács, 2018 SCC 2], at paras. 26-28. To allow a reviewing court to do so would be to allow an administrative decision maker to abdicate its responsibility to justify to the affected party, in a manner that is transparent and intelligible, the basis on which it arrived at a particular conclusion. This would also amount to adopting an approach to reasonableness review focused solely on the outcome of a decision, to the exclusion of the rationale for that decision. To the extent that cases such as Newfoundland Nurses [Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62] and Alberta Teachers [Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61] have been taken as suggesting otherwise, such a view is mistaken. 38 The majority also clarified that “the internal rationality of a decision may be called into question if the reasons exhibit clear logical fallacies, such as circular reasoning, false dilemmas, unfounded generalizations or an absurd premise” (at para 104). Ultimately, the decision-maker’s reasoning must “[add] up” (ibid). Conclusory or summary statements are generally insufficient. … 42 With respect to the second characteristic, the decision should be justifiable in light of the legal and factual constraints that bear upon the decision. It is important to recognise that the context in which the decision is rendered constrains the decision-maker. The Supreme Court of Canada provides a non-comprehensive list of some of the legal and factual elements that are generally relevant in determining reasonableness, each of which will vary in significance depending on the context. Thus, where applicable, the decision should: • respect the governing statutory scheme (see Vavilov at paras 108-10); • accord with other relevant statutes and common law principles, or explain why they are not applicable (see paras 111-13); • be consistent with the modern approach to statutory interpretation - although the decision-maker’s particular insight into a statutory scheme may be relevant (see paras 115-24); • reflect the evidentiary record and general factual matrix (see paras 125-26); • meaningfully account for the key issues or central arguments raised (see paras 127-28); • justify any departure from past practices or decisions (see paras 129-32); and • reflect the impact of the decision (see paras 133-35). [31] The Manitoba Court of Appeal went on to conclude, after examining a number of post-Vavilov decisions, that: 59 Taken together, these cases confirm the basic principles which arose from Vavilov, namely: (a) it is not enough that the outcome is justifiable, it must also be justified; (b) the reviewing court must not decide the issue or create a range of reasonable outcomes, but rather should focus on the reasonableness of the decision made and the reasons given; (c) the reviewing court should not buttress a deficiently justified decision with its own justifications; (d) decisions relating to statutory interpretation must accord with the text, context and purpose of the provision and statutory scheme, and other statutory or common law; and (e) decisions must reflect the evidentiary record and account for the key issues or central arguments raised by the parties. [32] The burden is on the party challenging the decision to show that it is unreasonable (Vavilov, para. 100). That burden rests with Mr. Porter. I will now consider the governing legal framework including the legislation (the EMA) that delegated the authority to the Minister. [33] The EMA gives the government extraordinary powers when it believes there is a present or imminent event that requires the taking of prompt action to protect property or the health, safety or welfare of the people of the province. As the Nova Scotia Court of Appeal said in denying leave to appeal the stay decision (Porter v. Nova Scotia (Minister of Municipal Affairs and Housing), 2024 NSCA 43): ... this case involves the application of a statutory discretion accorded by ss. 12(1) and 14 of the Emergency Management Act. In the exercise of a statutory discretion, the Minister’s determination must conform to the legislative intent. This is so, whether or not the Minister’s criteria include matters of policy. (para. 19) [34] Vavilov indicates that when a legislature chooses to use broad, open-ended language, as here, it clearly contemplates that the decision-maker is to have greater flexibility in interpreting the meaning of such language. However, the exercise of that discretion must accord with the purposes for which it was given. What matters is whether the decision-maker has properly justified its interpretation of the statute in light of the surrounding context. [35] The court in Vavilov spoke at length about the contextual constraints on a decision-maker: [90] The approach to reasonableness review that we articulate in these reasons accounts for the diversity of administrative decision making by recognizing that what is reasonable in a given situation will always depend on the constraints imposed by the legal and factual context of the particular decision under review. These contextual constraints dictate the limits and contours of the space in which the decision maker may act and the types of solutions it may adopt. The fact that the contextual constraints operating on an administrative decision maker may vary from one decision to another does not pose a problem for the reasonableness standard, because each decision must be both justified by the administrative body and evaluated by reviewing courts in relation to its own particular context. … [94] The reviewing court must also read the decision maker’s reasons in light of the history and context of the proceedings in which they were rendered. For example, the reviewing court might consider the evidence before the decision maker, the submissions of the parties, publicly available policies or guidelines that informed the decision maker's work, and past decisions of the relevant administrative body. This may explain an aspect of the decision maker’s reasoning process that is not apparent from the reasons themselves, or may reveal that an apparent shortcoming in the reasons is not, in fact, a failure of justification, intelligibility or transparency. Opposing parties may have made concessions that had obviated the need for the decision maker to adjudicate on a particular issue; the decision maker may have followed a well-established line of administrative case law that no party had challenged during the proceedings; or an individual decision maker may have adopted an interpretation set out in a public interpretive policy of the administrative body of which he or she is a member. … [108] Because administrative decision makers receive their powers by statute, the governing statutory scheme is likely to be the most salient aspect of the legal context relevant to a particular decision. That administrative decision makers play a role, along with courts, in elaborating the precise content of the administrative schemes they administer should not be taken to mean that administrative decision makers are permitted to disregard or rewrite the law as enacted by Parliament and the provincial legislatures. Thus, for example, while an administrative body may have considerable discretion in making a particular decision, that decision must ultimately comply “with the rationale and purview of the statutory scheme under which it is adopted”: Catalyst, at paras. 15 and 25-28; see also Green, at para. 44. As Rand J. noted in Roncarelli v. Duplessis, [1959] S.C.R. 121, at p. 140, “there is no such thing as absolute and untrammelled ‘discretion’”, and any exercise of discretion must accord with the purposes for which it was given: see also Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine, at para. 7; Montréal (City) v. Montreal Port Authority, 2010 SCC 14, [2010] 1 S.C.R. 427, at paras. 32-33; Nor-Man Regional Health Authority, at para. 6. Likewise, a decision must comport with any more specific constraints imposed by the governing legislative scheme, such as the statutory definitions, principles or formulas that prescribe the exercise of a discretion: see Montréal (City), at paras. 33 and 40-41; Canada (Attorney General) v. Almon Equipment Limited, 2010 FCA 193, [2011] 4 F.C.R. 203, at paras. 38-40. The statutory scheme also informs the acceptable approaches to decision making: for example, where a decision maker is given wide discretion, it would be unreasonable for it to fetter that discretion: see Delta Air Lines, at para. 18. … [110] Whether an interpretation is justified will depend on the context, including the language chosen by the legislature in describing the limits and contours of the decision maker’s authority. If a legislature wishes to precisely circumscribe an administrative decision maker’s power in some respect, it can do so by using precise and narrow language and delineating the power in detail, thereby tightly constraining the decision maker’s ability to interpret the provision. Conversely, where the legislature chooses to use broad, open-ended or highly qualitative language - for example, “in the public interest” - it clearly contemplates that the decision maker is to have greater flexibility in interpreting the meaning of such language. Other language will fall in the middle of this spectrum. All of this is to say that certain questions relating to the scope of a decision maker’s authority may support more than one interpretation, while other questions may support only one, depending upon the text by which the statutory grant of authority is made. What matters is whether, in the eyes of the reviewing court, the decision maker has properly justified its interpretation of the statute in light of the surrounding context. It will, of course, be impossible for an administrative decision maker to justify a decision that strays beyond the limits set by the statutory language it is interpreting. [Emphasis added] [36] As referenced above, the language of the EMA is broad. The s. 2(b) definition of emergency refers to a present or imminent event which the Minister “believes” requires prompt coordination of action or regulation of people or property to protect property or the health, safety or welfare of people in the province. These words are capable of a broad and flexible interpretation. Further s. 12(1) gives the Minister authority to declare a state of emergency if he “is satisfied that an emergency exists or may exist”. The state of emergency can be in respect of all or any district, subdistrict or area of the province. In addition, s. 14 gives the Minister broad authority upon a state of emergency being declared. The Minister may “do everything necessary for the protection of property and the health or safety of persons…” Section 14 then sets out a non-exhaustive list of the types of things the Minister may do upon a state of emergency being declared. [37] Further, s. 21 of the EMA provides that there is no liability for any damage arising out of action taken under the EMA. It also says the Minister is not subject to any proceedings by prohibition, certiorari, mandamus or injunction. In short, the EMA gives the Minister broad ranging discretion. As our Court of Appeal said in Porter, supra, “the breadth of the discretion afforded by the statute affects whether the decision is reasonable” (para. 23). [38] Mr. Porter says that part of the legal context for the Minister’s decision includes the Assembly of Mi’kmaq Chiefs asserting that the impounding of water above the causeway infringes their Aboriginal rights and that the Minister’s state of emergency order contravened the existing federal DFO order. While asserting these matters form part of the legal context, Mr. Porter acknowledged that these matters are not before the court in this judicial review. I make no comment with respect to the merits of those matters, given they are not before me. [39] I now turn to the factual context in which the June 1, 2023, decision was made. Large wildfires were burning in Nova Scotia, and some were out of control. The Nova Scotia Emergency Management Office, Provincial Coordination Centre Daily Situation Report for June 1, 2023, at 9 AM indicates that fire crews were actioning 13 fires across the province, with four being classified as out-of-control, one classified as being held, and eight others as under control. There was a provincewide burn ban in effect. Various temporary shelters had been set up in Shelburne County, Barrington/Clarks Harbor, Yarmouth, and Halifax Regional Municipality (“HRM”). Evacuation orders were in place in various areas of HRM along with road access restrictions. The Situation Report notes that a state of local emergency had been declared in the area of Barrington/Clarks Harbour and HRM. The report also notes that out-of-province resources had been requested. In the days prior to June 1, the daily situation reports note that fixed wing aircraft from other provinces were supporting fire suppression, helicopters had been deployed, etc. [40] None of the daily situation reports refer to a fire in Regions 1 or 2 (which includes East Hants). Neither Windsor nor West Hants are mentioned in the reports. [41] The Record contains an email sent on June 1, 2023, at 12:43 PM from Mr. Jamie Juteau, Fire Chief, District 4 – Windsor Fire Department, District 5 – South West Hants Fire Station, to the local MLA office. The email states: Just as noted in our conversation, we still are not able to secure water supply at Sangster’s Bridge Rd (nor the Windsor waterfront). The depth of the water at and the height difference between water and pump at the Sangster’s site do not allow us to draw water from there. [42] There is no dispute that this email is in reference to the two dry fire hydrants in the area not being functional because the water level in Lake Pisiquid was insufficient to feed them. As of June 1, 2023, the DFO order requiring the gates in the aboiteau to be opened, allowing the water from the Avon River to flow directly into the Bay of Fundy, remained in place. [43] It was in this context that the Minister declared a state of emergency for the area around and including Pisiquid Lake, Windsor, Hants County. The declaration of the state of emergency specifically refers to the many wildfires burning, some out-of-control, and the extreme demands upon resources and personnel in attempting to prevent further loss of property and protect the health and safety of residents. The associated Direction of the Minister indicates that the aboiteau is to be manipulated, as directed by the Provincial Fire Marshal, in his role as a fire suppression and prevention coordinator, “with the goal of maximizing the water supply resource available for the wildfire suppression efforts.” [44] Here I remind myself of the Supreme Court’s direction in Vavilov (at para. 13) that a reasonableness review is meant to ensure that courts intervene in administrative matters only where it is truly necessary to do so in order to safeguard the legality, rationality, and fairness of the administrative process. The starting point is the principle of judicial restraint and respect for the distinct role of administrative decision makers. However, a reasonableness review is robust and not a “rubber-stamping” process or a means of sheltering administrative decision makers from accountability. [45] It is not my role to reweigh or reassess the evidence considered by the Minister (Vavilov, para. 125). I am not to determine whether the decision was the correct one to make in the circumstances of the forest fires burning in various areas of Nova Scotia, or in the circumstances of the waters of Lake Pisiquid not being high enough to supply the dry hydrants in the Windsor area. Again, my role is not to assess the correctness of the decision or to conduct a de novo analysis. My role is to determine whether the decision was reasonable given the constraints imposed by the legal and factual context that existed at the time. [46] I am of the view the Minister’s June 1, 2023, decision to declare a state of emergency is justified in light of the factual and legal context noted above. The decision as to whether to invoke a state of emergency is a highly discretionary one. The Minister’s exercise of this broad statutory discretion under the EMA accords with the purposes for which the discretion was given. His decision is consistent with the text, context and purpose of the provisions of the EMA and the overall statutory scheme. I can find no failure of rationality internal to the Minister’s reasoning process. In short, the decision is rational, logical and justified in view of the factual and legal constraints existing at the time of the decision. [47] I disagree with the applicant that the reasons provided by the Minister as to why he ordered the aboiteau gates to be shut so as to re-fill Lake Pisiquid do not “add up”. Mr. Porter says there was no evidence of a present or imminent event threatening property or people in Windsor. Mr. Porter says, for example, that the Minister claimed he received a request from the Windsor Fire Chief for water resources at Lake Pisiquid, yet the Fire Chief attested that this did not happen. Mr. Porter relies on an affidavit of Fire Chief Juteau dated after the June 1, 2023, decision where he says he did not request water resources in Lake Pisiquid. Regardless, the email of June 1, 2023, refers to the inability to secure a water supply at Sangster’s Bridge and the Windsor waterfront. It is not up to this court to second guess the Minister’s interpretation of and reliance on the evidentiary record before him. [48] The news release issued by the provincial Emergency Management Office on June 1, 2023, at 9:47 PM refers to the government closing the aboiteau at the Windsor causeway as a precaution to refill Lake Pisiquid to protect the community of Windsor and keep residents safe in the event of a fire. The news release further refers to safety issues posed by dry conditions and the need to take every precaution to prevent further fires, protect communities and maximize the water supply resources available for ongoing response. It states: The state of emergency, signed at 8 p.m., overrides the federal order and instructs the operators of the sleway connected to Lake Pisiquid to close the gates to maximize the water supply available for wildfire suppression efforts. [49] While there may have been contentious issues between the provincial and federal governments concerning the aboiteau, I disagree with Mr. Porter’s characterization that the only reasonable inference to draw is that the Minister took advantage of the spring 2023 wildfires for political reasons. As explained above, I am of the view that the Minister’s June 1, 2023, decision was reasonable in the circumstances. I have reviewed the entirety of the Record and find no basis to conclude that the decision was made on the basis of an improper motive or impermissible reason. The April and May 2024 Renewals [50] This judicial review also concerns three renewals of the declaration of the state of emergency (April 4, 2024; April 18, 2024; and May 2, 2024) made by the Minister. The Minister has renewed the declared state of emergency and associated Direction every 14 days since June 1, 2023; however, it is only the three renewals listed above that are part of this judicial review. [51] Renewals are authorized under the EMA. The Minister’s broad discretionary authority applies equally to renewals of the state of emergency, as set out in s. 19: Termination within fourteen days and renewal 19 (1) A state of emergency terminates fourteen days after the day on which it was declared unless it is renewed or terminated by the Minister. (2) A state of emergency may be renewed by the Minister with the approval of the Governor in Council. (3) The provisions of this Act respecting a state of emergency and the declaration thereof apply, with the necessary changes, to a renewal of a state of emergency. [Emphasis added] [52] The factual context for the renewals differs from that of the original decision. The province was no longer facing the wildfire situation that existed in June 2023. However, additional information about local firefighting capacity was available to the Minister when the three decisions concerning the renewals were made. The evidentiary record available to the Minister includes the following information. [53] The Record contains the July 2023 evidence from the Deputy Fire Marshal, Mr. Scott Burgess, who was previously Fire Chief of the Windsor Fire Department and, before that, the Deputy Fire Chief for Windsor. He stated that the local water utilities do not make or store enough water for large fires, including large structure fires. He provided an example of an apartment building fire where they had to draw 1.5 million gallons of water from Lake Pisiquid to fight the fire. He further said that Lake Pisiquid must be almost full to cover the Windsor dry hydrant intake pipe. He also noted that helicopters are able to use buckets to dip water from Lake Pisiquid to fight forest fires. The next closest lake is seven kilometres away but is the source of the Windsor utility water. He also stated that the Upper Falmouth dry hydrant protects an elementary school, farms, homes, etc. [54] The Record also contains the July 2023 evidence of Mr. Kevin Bekkers, Director of Resource Sustainability. He stated that prior to the DFO order, the local fire department sometimes had to depend on water from Lake Pisiquid as the local water system was insufficient. He said the dry hydrants in Windsor and Falmouth draw from Lake Pisiquid and the lake must be at least three-quarters full for the hydrants to operate. He said that when the June 1, 2023, state of emergency was issued, he instructed the aboiteau operator to begin filling the lake on Thursday evening. It took until the following Tuesday to do so. He also noted that if the lake is not filled by a certain time each spring/summer, there would be insufficient water to make up for the water that leaks through the aboiteau and, therefore, impossible to fill the lake. He referred to this as the point of no return. [55] There is nothing in the Record to indicate that the above-described need for a supplemental water supply had been rectified by the time of the three 2024 renewals that are in issue. [56] The Record also contains the June 2023 evidence of Mr. Brett Tetanish, a Captain with the Brooklyn Fire Department, which is located approximately 10 kilometres from the town of Windsor. He stated that based on his experience, Lake Pisiquid would never be used for fighting wildfires because there are other water sources closer to where the wildfires would occur. He also said that the two dry hydrants are not necessary to adequately fight fires in the Windsor area. He indicated there are other water sources, including the Falmouth water system, that meet the firefighting needs. [57] The Record contains a letter dated October 5, 2023, from Ms. Twila Gaudet to Minister Lohr on behalf of the Mi’kmaq Rights Initiative. On behalf of the Assembly of Nova Scotia Mi’kmaq Chiefs, Ms. Gaudet proposed various solutions designed to ensure water access for firefighting while also providing for the passage of fish through the causeway. Ms. Gaudet indicated that the issue was not “about if the resource is there in the event it is needed for firefighting purposes under natural river state, but instead, how to best access the water resource under natural river state.” She indicated that the Avon River’s minimum river rate (20 cubic feet per second) was sufficient for firefighting purposes. [58] Deputy Minister of Municipal Affairs and Housing, Mr. Byron Rafuse, responded to the above letter on December 6, 2023. This letter says that the state of emergency dictates that water levels be maintained within Lake Pisiquid to support access to lake water for firefighting. Mr. Rafuse specifically referred to the information provided by Deputy Fire Marshal, Scott Burgess. He highlighted that the municipal water system had proven inadequate to fight fires without access to Lake Pisiquid. He said that based on internal discussions and evidence, it was the view of the provincial EMO that water levels in Lake Pisiquid must be maintained at seven to nine geodetic feet (keeping the lake at a minimum of three-quarters full) in order to ensure adequate water access for the dry hydrants, water buckets, and other measures to fight forest fires and structural fires in and around Windsor. He indicated that the approach allows for fish passage to the extent possible. He said the approach was to balance, as much as safely possible, the protection of the safety of Nova Scotians and the Mi’kmaq concerns for fish passage. The Appendix to the letter specifically addressed the questions and suggestions from the July 19, and October 5, 2023, letter. This included, for example, detail on how much water is necessary to submerge helicopter buckets; information about the municipal water supply being insufficient to fight fires within Windsor, let alone forest fires, without exhausting the entire supply of potable water in the area; information about the aboiteau currently allowing for fish passage for 10 minutes during tidal equilibrium on incoming and outgoing tides; and confirmation that staff from the Nova Scotia Department of Agriculture provide weekly reports of aboiteau gate operations and fish passage opportunities to the DFO. The Appendix also addressed the alternative measures suggested in the letters. The Appendix concluded by saying that Lake Pisiquid is the only viable water source sufficient for municipal day-to-day fire suppression. [59] It is in the context of the entire evidentiary record, including the above, that the renewals of the state of emergency were made. The lack of sufficient municipal water supply in the area to fight large structure fires and forest fires and the fact that operation of the two dry hydrants depends on the availability and height of Lake Pisiquid appears to be the bases for the Minister’s renewal decisions. The Record indicates that the Minister learned of the vulnerability of the area’s firefighting resources when there was no access to operational dry hydrants and he took action to ensure that Lake Pisiquid was available to feed the hydrants, as it had been for many years. [60] The legislation requires an event to be present or imminent in respect of which the Minister believes prompt coordination of action is needed to protect Nova Scotians. Section 12 indicates that the Minister is to be satisfied an emergency exists or “may exist.” Unlike the factual context for the initial decision, the Record does not include evidence that there were any fires present in April or May 2024. However, it does contain evidence of a vulnerability in firefighting capability due to the inability of the dry fire hydrants to draw from the lake when the river is in its natural state. The Record further indicates that one of these hydrants protects an elementary school, homes, farms, etc. The evidentiary record justifies the Minister’s three decisions under the wording of the EMA. The Record justifies the Minister’s decisions that an imminent threat may exist (possible fires when there are two non-operational dry hydrants). [61] Given the broad discretionary language of the EMA, I am of the view the Minister’s decisions to renew the state of emergency in April and May 2024 are justified in light of the factual context noted above. The Minister’s exercise of his broad statutory discretion under the EMA accords with the purposes for which the discretion was given. As noted above, it is not my role to reweigh the evidence and conclude whether the decisions were correct based on the evidence. I can find no failure of rationality internal to the Minister’s reasoning process. I conclude that the decisions were reasonable in the circumstances. [62] The EMA gives the Minister broad discretion to declare a state of emergency. To find that the factual record at the time of the original decision and the three renewals, as described above, cannot establish a “present or imminent event” to ground the Minister’s belief that action should be taken to protect property or the health, safety or welfare of the people of Nova Scotia (as Mr. Porter urges), the court would have to interpret the definition of “emergency” too narrowly. Such an interpretation is inconsistent with the broad discretion granted to the Minister. [63] Mr. Porter relied heavily on Alberta Teachers’ Association v. Alberta, 2002 ABQB 240, and Canadian Frontline Nurses v. Canada (Attorney General), 2024 FC 42, for his position that there was no bona fide emergency at any time. However, these cases considered very different legislation, with specific preconditions that are not applicable here. For example, in Canadian Frontline Nurses, supra, the Emergencies Act, R.S.C. 1985, c. 22, definition of “national emergency” included a precondition of being one that “cannot be effectively dealt with under any other law of Canada.” These cases do not deal with the same legislation and do not assist me in determining whether the Minister’s four decisions are justified in relation to the relevant legal constraints that bear on them. [64] Mr. Porter says the Record contains no indication of the Fire Marshal being involved despite, for example, the Directive under the State of Emergency requiring direction from the Fire Marshal, and the EMA requiring all efforts related to suppression and prevention of fires to be coordinated by the Fire Marshal. However, this judicial review concerns the decision to invoke a state of emergency and three decisions to renew the state of emergency. My reasonableness review does not extend to an assessment of whether the state of emergency was properly or reasonably managed by the Fire Marshal or others after it was invoked. [65] Mr. Porter says the EMA was not intended to allow for a perpetual state of emergency, which he says is the current situation. While I appreciate Mr. Porter’s point, this judicial review concerns only the initial decision and the three renewals. As noted above, I am of the view these decisions are reasonable. As to Mr. Porter’s position that there exists a perpetual state of emergency, the Act clearly indicates that a state of emergency is intended to last for 14 days unless it is terminated earlier or is renewed. The EMA at s. 19 specifically states that the provisions of the Act apply to renewal decisions, meaning the Minister’s renewal decisions must be made within the authority given under the legislation, including the definition of emergency in s. 2(b). Therefore, each renewal made under the EMA is a separate decision and can be the subject of judicial review to assess whether the decision is reasonable in light of the legal and factual constraints that bear upon it. I make no comment on whether a state of emergency could be perpetually renewed for many years without the province taking steps to address the underlying issues and end the state of emergency. The reasonableness of such a course of action is an issue for another day. In this case, as of the April and May 2024 decisions, the province was awaiting federal approval of the aboiteau redesign, which, according to the Record, it believes will address the fish passage issues and presumably allow access to sufficient water to supply the dry hydrants. [66] The Record indicates that there is a process ongoing for replacement of the aboiteau in conjunction with the highway twinning project. The evidence of the Director of Resource Sustainability indicates that Nova Scotia is currently in the process of obtaining regulatory approvals for the design of the new aboiteau from the federal government. The Director indicated that the current proposal is a structure that allows the lake to be filled while providing fish passage via dedicated fishways and includes a modernized gate structure intended to accommodate a wider range of operating scenarios than the existing structure. I have no evidence before me as to when the approvals are expected, nor when the Minister anticipates the state of emergency will end. Nor do I have any evidence before me as to whether DFO would reinstate its order if the state of emergency was lifted. As noted above, the Record includes the provincial news release noting the initial state of emergency “overrides the federal order.” It further indicates the provincial government is providing weekly reports to DFO concerning the aboiteau gate operations. [67] My role is to assess the reasonableness of the decisions before me. In the context of the evidentiary record, the fact that there were consecutive renewals from June 1, 2023, up to and including the April and May 2024 renewals, does not render these three decisions unreasonable. Renewals are specifically contemplated in the EMA, and I have found the decisions to renew the state of emergency on April 4, 2024; April 18, 2024; and May 2, 2024, to be reasonable in light of the evidentiary record. Conclusion [68] In conclusion, I am of the view that the June 1, 2023, decision and the three renewal decisions are reasonable, considering the relevant factual and legal constraints that bear on each decision, as set out above. The decisions are rational, logical, and justified in view of the factual and legal constraints existing at the time of the decisions. The decisions are justified in light of the facts and the legislation. [69] The Application for Judicial Review is dismissed with costs. [70] I would ask counsel for the Attorney General to prepare an order accordingly. If the parties cannot agree on costs, I will receive their written submissions within 30 days from the date of this decision. Jamieson, J.