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ENVIRONMENTAL LIABILITY - Penalties, remedial orders and sentencing principles

Thursday, March 01, 2018 @ 8:32 AM  

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Appeal by the Crown from a Queen’s Bench decision which quashed convictions entered against Envirogun Ltd. (Envirogun) and its principal, Kimery, for environmental offences. Envirogun operated an industrial effluent works and storage facility until February 2010. In May 2008, the Ministry of Environment directed Envirogun to provide reclamation and decommissioning plans by the end of October 2009. In August 2009, the Rural Municipality of Sherwood (Sherwood) took title to the property on which the facility operated for non-payment of taxes. Sherwood ordered Envirogun to vacate by the end of January 2010. A time extension was granted to February 17, 2010. Much hazardous waste was left at the property. Envirogun and Kimery took no steps to inform the Ministry of the situation. In July 2010, Sherwood advised the Ministry that it had taken title to the property, which was contaminated and had hazardous materials unsafely stored on it. It asked the Ministry for financial assistance in decontaminating the property. In October 2010, the Ministry gave Envirogun and Kimery notice of its intention to issue an Environmental Protection Order (EPO). They were allotted until November 30 to identify and classify the hazards at the site, remove them, carry out a site assessment and provide the Ministry with a remedial action plan. Envirogun took no action. Its lawyer informed the Ministry in December 2010 that the company had ceased operations and that everything had been in a satisfactory state when Envirogun vacated the property. The lawyer claimed that Envirogun was unable to re-enter the property after February 2010 and had directed Sherwood to ensure there was no contamination. The Ministry issued an EPO in January 2011. It directed Envirogun and Kimery to take certain actions to decontaminate the property, and provided them with contact information to obtain access from Sherwood. There was no evidence that they contacted Sherwood. Nothing was done to comply with the EPO. Prior to being charged with offences under the Environmental Protection and Management Act (Act), Envirogun and Kimery unsuccessfully challenged the EPO. The charges followed. The Provincial Court judge refused to accept Envirogun’s excuse that it was financially unable to comply with its obligations under the EPO, given the lack of complete financial information from Envirogun and its operation as a for-profit enterprise for many years without notifying the Ministry of any financial issues. The Queen’s Bench judge set aside the convictions because the Provincial Court judge had refused to consider Envirogun’s arguments concerning the validity of the EPO. The Queen’s Bench judge found that the right of appeal from an EPO under the Act was inadequate.

HELD: Appeal allowed. The matter was remitted to the Court of Queen’s Bench for considerations of other issues not addressed by the appeal judge. The Act provided for an appeal to the Court of Queen’s Bench from an EPO, such that the Provincial Court judge was entitled to decline to assess the validity of the EPO in the present case. Section 47 of the Act granted the Minister a broad power to order a person to take any protective and restorative measures necessary by way of an EPO. The Legislature did not intend to permit a person subject to an EPO to ignore it until charges were laid, and then challenge its validity in the Provincial Court.

R. v. Envirogun Ltd., [2018] S.J. No. 27, Saskatchewan Court of Appeal, N.W. Caldwell, M.J. Herauf and P.A. Whitmore JJ.A., January 29, 2018. Digest No. TLD-February262018009