Aerial view from a drone over long straight stretch of highway 101 with the town of Windsor and blue water of Lake Pisiquid behind the dam across the Avon River on the right side of the photo, green salt marshy area on the left of the highway and the photo.
A drone shot of Lake Pisiquid and the town of Windsor following the provincial June 1, 2023 emergency order to close the dam across the Avon River to refill the artificial lake. Credit: Alex Hanes

Darren Porter will have his day in court.

Last summer, as wildfires burned in Tantallon and Barrington, John Lohr, the minister responsible for the Office of Emergency Management, declared a state of emergency for the area around the Windsor causeway. Lohr said, falsely, that a local fire chief had urged him to order the Avon River aboiteau be closed so that Lake Pisiquid would fill behind the aboiteau, thereby providing water for firefighting purposes.

Lohr’s emergency order allowed him to override a 2021 order from the federal Department of Fisheries and Oceans that kept the aboiteau open. Opening the aboiteau had allowed fish to migrate freely up the Avon River.

Lohr’s emergency order expires every two weeks, and at the end of each two-week period, he issues another order.

With the aboiteau now closed, large numbers of fish have died. As a result, Porter, a fisher, asked the court to stay the emergency order.

But in August, Supreme Court of Nova Scotia Justice Scott Norton ruled against Porter. Norton not only refused to issue the stay, but additionally ruled that the court had no ability to rule on the “reasonableness” of an emergency order and that Porter had no standing in any event.

Porter appealed Norton’s decision. While the appeal did not address the stay, it did ask that Norton’s reasonableness and standing rulings be overturned. This week, three judges at the Court of Appeal ruled in Porter’s favour, with a decision written by Justice Joel Fichaud and with Justices Carole Beaton and Edward Scanlan concurring.

“We got everything we wanted,” Porter’s lawyer Jamie Simpson told the Examiner in a phone interview. “Well, except for costs.” (Fichaud ordered costs be split.)

“This appeal from a stay motion is not the occasion for a definitive ruling on Mr. Porter’s standing to seek judicial review,” wrote Fichauld. “The issues of standing and mootness, if that point is raised at the time, are better left to the merits judge on the judicial review.”

What that means is a judge will hear extended arguments about the emergency order to close the aboiteau. Although a date for that hearing has yet to be set, Simpson expects it will be sometime this summer.

Tim Bousquet is the editor and publisher of the Halifax Examiner. Twitter @Tim_Bousquet Mastodon

Join the Conversation

3 Comments

Only subscribers to the Halifax Examiner may comment on articles. We moderate all comments. Be respectful; whenever possible, provide links to credible documentary evidence to back up your factual claims. Please read our Commenting Policy.

  1. It is beyond belief that the order to close the aboiteau has been extended repeatedly as a fire protection measure when the local fire authority sees no need for it. Is there an ethical challenge here?

  2. Excellent. Glad to see this is still moving through the courts. I’ll keep my comments about Lohr himself to myself for now.