Saskatchewan auto waste transfer firm ‘should have been given an opportunity to challenge the validity’ of environmental protection order: Court

Saskatchewan’s Environmental Management and Protection Act does not provide for an “independent adjudicative tribunal” that could “balance the public interests against individual rights,” a Court of Queen’s Bench judge suggested in a recent decision.

The EMPA gives the province the power to issue cleanup orders. Failure to comply can result in a three-year prison sentence and a $1 million fine, Madam Justice Lian Schwann of the Court of Queen’s Bench noted.

In a ruling released Aug. 8, Justice Schwann ordered a new trial for Envirogun Ltd. and its sole shareholder, Clint Kimery. Court records indicate that Envirogun operated a hazardous waste transfer station, which collected oil and other automotive waste material, east of Regina.

The business site was essentially seized, in 2009, by the Rural Municipality of Sherwood, over a tax dispute.

More than a year later, the firm was served with an environmental protection order by the province. The company was unsuccessful in appealing that order through the courts. The company argued it no longer had title to the land and the environment ministry essentially argued that the municipality would allow the firm to enter the property to comply with the environmental protection order.

In 2015, Envirogun and Kimery were convicted, by Mr. Justice Bruce Henning of the Provincial Court, of failing to comply with the environmental protection order. Their appeal to the Court of Queen’s Bench was allowed, with Justice Schwann ordering a new trial.

The EMPA gives the province’s environment minister the power “to decide which alterations create an adverse effect,” but the opinion “must nonetheless be reasonably based on objective evidence of a chemical, physical or biological alteration to the environment which had been caused by Envirogun,” Justice Schwann wrote. “Furthermore, assuming these changes occurred and were caused by Envirogun, the Minister’s opinion, again based on objective evidence, must reasonably allow him or her to conclude that the site was impaired or damaged from an environmental perspective, or that human health might be harmed because of it.”

Envirogun and Kimery “should have been given an opportunity to challenge the validity of the underlying order in defence of the charge,” Justice Schwann added. With EMPA, there is a “complete absence of an independent adjudicative tribunal or any form of de novo review structure to balance the public interests against individual rights,” she added. “The Saskatchewan Legislature was free to legislate whatever form of review or appeal mechanism it wished, and to be clear, the Legislature is not required to establish a specialized appeal tribunal or any other form of independent adjudicative process. But by crafting a limited form of appeal in [Section 54 of EMPA], this accused had no opportunity to have the substantive merits and individual rights asserted independently from the Minister.”

In his 2015 decision, Justice Henning suggested the central issue was whether Envirogun exercised due diligence in complying with the environmental protection order.

“It is not contested that the EPO was not in fact complied with,” Justice Hennig wrote in 2015. “The true question in this case is whether EnviroGun Ltd. and Clint A. Kimery, the sole owner and directing mind of the company, employed due diligence in complying with the EPO. The EPO was issued on or about the same time that the company ceased operations without decommissioning.”

Among the cases cited by Justice Henning were the Supreme Court of Canada ruling in 1978 in a provincial offences charge against the City of Sault Ste Marie, Ontario.

The city was charged under The Ontario Water Resources Commission Act over allegations that ” did discharge, or cause to be discharged, or permitted to be discharged, or deposited materials into Cannon Creek and Root River, or on the shore or bank thereof, or in such place along the side that might impair the quality of the water in Cannon Creek and Root River, between March 13, 1972 and September 11, 1972.”

In that case, Canada’s highest court was “concerned with offences variously referred to as ‘statutory,’ ‘public welfare,’ ‘regulatory,’ ‘absolute liability,’ or ‘strict responsibility,’ which are not criminal in any real sense, but are prohibited in the public interest,” Mr. Justice Brian Dickson, then of the Supreme Court of Canada, wrote in 1978. “Although enforced as penal laws through the utilization of the machinery of the criminal law, the offences are in substance of a civil nature and might well be regarded as a branch of administrative law to which traditional principles of criminal law have but limited application. They relate to such everyday matters as traffic infractions, sales of impure food, violations of liquor laws, and the like.”

The City of Sault Ste Marie was initially acquitted but later convicted after a crown appeal. The Divisional Court then quashed the conviction. The Court of Appeal for Ontario ordered a new trial, a decision upheld in 1978 by the Supreme Court of Canada.

In charges under strict liability statutes, “it is not up to the prosecution to prove negligence,” Justice Dickson wrote in Sault Ste. Marie. “Instead, it is open to the defendant to prove that all due care has been taken. This burden falls upon the defendant as he is the only one who will generally have the means of proof. This would not seem unfair as the alternative is absolute liability which denies an accused any defence whatsoever. While the prosecution must prove beyond a reasonable doubt that the defendant committed the prohibited act, the defendant must only establish on the balance of probabilities that he has a defence of reasonable care.”

In 2015 in Envirogun, Justice Henning wrote that under Saskatchewan’s Environmental Management and Protection Act, “the Crown does not have to prove full mens rea on the part of the persons charged, but only a failure to do the acts required, which may be defended by the persons charged demonstrating due diligence.”