DATE: 20010830 DOCKET: C23040
COURT OF APPEAL FOR ONTARIO
FINLAYSON, CARTHY and SIMMONS JJ.A.
B E T W E E N:
CELANESE CANADA INC. and MELVYN WILFRED HAZELL
D. Thomson For the Appellant Celanese Canada Inc.
And P. F. Kemp for the
Appellants
Appellant Melvyn Wilfred Hazell
- and -
HER MAJESTY THE QUEEN
J. G. Herlihy
For the respondent
Respondent
Heard: May 15, 2001
On appeal from the judgment of Justice J. Peter Coulson dated June 27, 1995.
CARTHY J.A.:
[1] The appellants have been charged jointly that they:
On or about the 20th day of October, 1993 at Lot 24, 25, Concession 1, Ernestown Township in the County of Lennox and Addington did commit the offence of causing or permitting the discharge of a contaminant into a slow flowing ponded area directly downstream of the west outfall of Celanese Canada Inc., which discharges into Lake Ontario, which may impair the quality of the water, of any waters, contrary to section 30(1) of the Ontario Water Resources Act R.S.O. 1990, c.O.40, as amended.
[2] At trial, the Crown submitted as its case an agreed statement of facts, an aerial photo of the appellant Celanese's premises, and a Certificate of Approval (issued under the authority of s. 53 of the Ontario Water Resources Act, R.S.O. c. O-40 (the "Act") which imposes conditions on the level of discharges from the factory). Upon motion by the appellants, Justice of the Peace T. Walker acquitted the appellants on a directed verdict without calling upon them to adduce evidence. Upon appeal by the Crown, Judge Coulson held that there was sufficient evidence to call for a defence and directed a new trial. By leave of a judge of this Court, the appellants seek to reinstate the directed verdict.
[3] The agreed statement of facts established the following background facts. The Celanese plant is in the business of polyester production, requires large amounts of water for cooling purposes and draws its supply by intake pipes extending into Lake Ontario. When the water has served its cooling purpose it is discharged from the plant into two slow moving and ponded waterways, called outfalls, running across the Celanese property and eventually through pipes back to Lake Ontario. When Zebra mussels invaded the lake, systems such as this became clogged with the mussels and their larvae. Celanese hired experts who consulted with the Ministry of the Environment and Energy and delivered a control system that added chlorine at the point of intake to kill the mussels and then removed the chlorine from the water as it passed through the plant. The system was operated pursuant to a very detailed Certificate of Approval issued by the Ministry providing in part that "The owner shall … operate the works such that the total residual chlorine concentration [in each outfall] prior to entering Lake Ontario does not exceed 0.01 milligrams per litre."
[4] In the afternoon of October 23, 1993, the Ministry of Natural Resources found approximately 300 dead fish in the west outfall. Water samples at that time showed no evidence of chlorine in the outfall but subsequent investigation revealed that on the morning of October 20th the chlorination system had been shut down for the season and a vacuum effect may have drawn 10 to 20 gallons of chlorine through the system. The agreed statement of facts included the concession that "with minor exceptions, fish died in the discharge channel and ponded area as a result of exposure to chlorine as a result of a vacuum/siphon of chlorine solution from the storage tank on October 20, 1993."
[5] On those facts the appellants were charged under s. 30(1) of the Act which reads:
Every person that discharges or causes or permits the discharge of any material of any kind into or in any waters or on any shore or bank thereof or into or in any place that may impair the quality of the water of any waters is guilty of an offence.
[6] The definition of "waters" in the Act is very broad and clearly includes this outfall on private property. The issue at trial therefore was whether there was any admissible evidence, direct or circumstantial, which if believed by a properly charged jury, would justify a conviction of the appellants of permitting a discharge that might impair the quality of that water.
[7] The appellants' principal position is that where a Certificate of Approval is outstanding which permits a discharge of chlorine at specified levels, the Crown must prove as an element of the offence that the impugned discharge occurred in violation of the terms of the Certificate of Approval. It is argued that, if it were otherwise, than a person who has express approval for discharge of a contaminant up to a particular level may be prosecuted and convicted without any proof of exceeding that level. That would be an attractive argument if the charge was for breach of the Certificate of Approval, but is spurious when the charge is a general one for discharge of a contaminant.
[8] Section 107(3) provides:
Every person that contravenes a term or condition of a licence, permit, approval or report made under this Act is guilty of an offence.
This is not a prosecution for that offence, rather the general offence of polluting waters.
[9] Further, s. 47(3) of the Provincial Offences Act, R.S.O. 1990, c.P-33 provides:
The burden of proving that an authorization, exception, exemption or qualification prescribed by law operates in favour of the defendant is on the defendant, and the prosecutor is not required, except by way of rebuttal, to prove that the authorization, exception, exemption or qualification does not operate in favour of the defendant, whether or not it is set out in the information.
[10] The appellants' Certificate of Approval contains a series of monitoring requirements in obvious recognition that it is within the operator's control to maintain records of chlorine levels and with a purpose directed to the very events which occurred here. By the time the dead fish were found by the Ministry, the chlorine which killed them had dissipated and could no longer be measured.
[11] The issuance of the certificate permitting the use of chlorine carried with it the expressed obligation to monitor performance and the statutory obligation to establish performance in the face of an allegation of a general offence under the Act.
[12] I can find nothing in the authorities binding upon this court and cited by the appellants that assists their argument. See Proulx v. Krukowski (1993), 109 D.L.R. (4th) 606 (Ont. C.A.), R. v. Boise Cascade Ltd. (1995), 17 C.E.L.R. (N.S.) 276 (Ont. C.A.) and R. v. Lee's Poultry (1985), 17 C.C.C. (3d) 359 (Ont. C.A.). To the contrary, acceding to their position would undermine the cornerstone of jurisprudence on regulatory prosecutions set by Dickson J. in R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299. That seminal judgment fixed the demarcation between the Crown's obligation to prove the actus reus beyond a reasonable doubt and the regulated party's onus of establishing due diligence on a balance of probabilities. Here the Crown proved that fish died from chlorine emanating from the Celanese plant -- the actus reas -- and it was incumbent upon those in control of the plant's operation and able to monitor its efficacy to respond and demonstrate due diligence by compliance with it's Certificate of Approval, or otherwise.
[13] The appeal should be dismissed.
Released: August 30, 2001 “GDF”
“J.J. Carthy J.A.”
“I agree G.D. Finlayson J.A.”
“I agree Simmons J.A.”