Penalties of $140,000 from Fisheries Act violation result from B.C. lakefront property renovation

A Vancouver-based property developer and its president were sentenced Friday to fines of $10,000 each – and ordered to pay a conservation group $60,000 each – after being convicted under the federal Fisheries Act, after work was done on a residential property on the shore of Kamloops Lake, British Columbia.

Canadian Press and Kamloops This Week reported that Northland Properties Corp. and its president, Tom Gaglardi, were sentenced Friday. Gaglardi, in addition to being president of Northland, is also owner of the Dallas Stars NHL hockey team.

Court records indicate that Tom Gaglardi, his father Bob Gaglardi and Northland were each charged with two counts under Section 35 (1) of the Fisheries Act. That section of the law stipulates that no person “shall carry on any work, undertaking or activity that results in serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or to fish that support such a fishery.”

The maximum sentence to an individual, on first offence on indictment, is $1 million while the maximum fine for a corporation is $6 million.

Bob Gaglardi was acquitted last August, while Tom Gaglardi and Northland Properties were found guilty by Mr. Justice Stephen Harrison of the Provincial Court of B.C.

The Fisheries Act charges are strict liability offences, which essentially means that the crown only has to prove that the act has taken place but the defence of due diligence is available.

The work – which included rebuilding and putting an addition on a three-bedroom bungalow – started in 2010 on a property owned by the Gaglardi family. The work “was still in progress on January 25, 2011, when officers and a biologist from the Department of Fisheries and Oceans … attended the property and stopped the work,” wrote Justice Harrison. “Northland was the vehicle through which the work on the Gaglardi property was performed. A number of Northland’s systems, employees, and contractors were used on the project. “

Court records indicate that vegetation was cleared from the property and that fill was cut from a slope leading away from the lake. This fill was used to raise the level of the property and both sides of the shack.

“On the east side, the fill material was used to level the property and to create a berm which sloped from the edge of the levelled area down to the beach,” Justice Harrison wrote. “This slope was shorter and steeper than the natural slope of the beach and was covered with riprap cladding, a protective layer of larger rock. The berm was bisected by a boat ramp.”

The Crown argued that “a massive amount of highly-productive fish habitat was torn out and damaging fill placed on top to a very extensive degree,” Justice Harrison wrote.

Habitat is defined as “spawning grounds and any other areas, including nursery, rearing, food supply and migration areas, on which fish depend directly or indirectly in order to carry out their life processes,” in the Fisheries Act.

“The defence submitted that the amount of actual harm done is vague and difficult to quantify, but acknowledges some harm done,” Justice Harrison wrote in August.

Two expert witnesses “gave evidence of the role that the shoreline vegetation plays in sustaining immature fish on Kamloops Lake, particularly during seasonal high water.”

The Fisheries Act includes, in its definition of fish, the “eggs, sperm, spawn, larvae, spat and juvenile stages of fish, shellfish, crustaceans and marine animals,” among others.

There had been “a number of tall, deciduous trees close to the water, east and west of the shack and below the shack,” including cottonwood trees, Justice Harrison wrote, adding many tall trees close to the water “would have been in or overhanging the lake at high water in late spring.” These trees “would have contributed to the fish habitat of Kamloops Lake,” he noted.

The defendants contended that a Northland employee had ” exceeded his instructions and authority, that the clearance of vegetation, lot levelling, and bringing riprap onto the property was neither authorized nor wanted.”

But Justice Harrison noted that the defendents’ counsel “submits that they failed to meet their obligations to exercise due diligence to ensure the work done at the property was carried on lawfully and did not result, as it did, in the harmful alteration, disruption, or destruction of fish habitat along the foreshore.”

-With files from The Canadian Press