Her Majesty the Queen v. Crompton Co./Cie [Indexed as: R. v. Crompton Co./Cie.]
78 O.R. (3d) 135
[2005] O.J. No. 4449
Docket: C42806
Court of Appeal for Ontario,
Labrosse, Sharpe and Gillese JJ.A.
October 21, 2005
Environmental law -- Offences -- Provincial officer not having right to make telephone demand for additional information from defendant -- Power of provincial officer to require provision of information under s. 156 of Environmental Protection Act can only be exercised during physical attendance at site for purpose of carrying out inspection -- Defendant properly acquitted of offence of obstructing provincial officer in performance of his duties under s. 184(1) of Act -- Provincial officer not having power under s. 92(1) of Act to require additional information -- Additional information may only be requested by Director -- Environmental Protection Act, R.S.O. 1990, c. E.19, ss. 92(1), 156, 184(1).
The defendant reported to the Ministry of the Environment Spills Action Centre that cooling tower water had been accidentally discharged into a creek. A provincial officer with the Ministry of the Environment telephoned M, a representative of the defendant, and asked for a written report showing the quantity and quality of the material that had been spilled and any action that the defendant had taken to prevent a recurrence. M refused to provide the requested information unless required to do so by a written demand signed by a Director pursuant to s. 92(3) of the Environmental Protection Act. The defendant was charged with hindering or obstructing a provincial officer in the performance of his duties, contrary to s. 184(1) of the Act. The defendant was convicted at trial. Its appeal was allowed. The appeal court judge held that (1) information required by the Ministry regarding the spill of a pollutant in accordance with s. 92(1) of the Act could only be demanded by the Director requesting additio nal information pursuant to s. 92(3) of the Act; and (2) the power of a provincial officer to require the provision of information under s. 156 of the Act could only be exercised during a physical attendance at a site for the purposes of carrying out an inspection. The Ministry appealed.
Held, the appeal should be dismissed.
The appeal court judge correctly concluded that the provincial officer did not have the right to make a telephone demand for additional information from the defendant. As s. 184(1) of the Act requires proof that a person hindered or [page136] obstructed a provincial officer "in the performance of his or her duties under the Act", and as the provincial officer did not have the legal authority to compel the defendant to provide the information by means of a telephone request, the offence under s. 184(1) was not made out.
Sections 92 and 156 of the Act both provide mechanisms for the Ministry to require the kind of additional information sought in this case. Assuming that s. 92(1) applied to the spill in question, s. 92(3) explicitly empowers a Director to require the person required to give notice (and the owner of the pollutant) to give such additional information as the Director may require in respect of the pollutant, the source of the pollutant and the spill. A provincial officer does not have the power under s. 92(1) of the Act to require additional information. Only the Director has the authority to require the provision of additional information. A provincial officer can also obtain further information in the event of a spill by conducting a physical inspection under s. 156. A physical inspection, by definition, cannot be conducted over the telephone. Had he made a physical inspection, the provincial officer in this case could have relied on s. 156(2) to require the defendant to produce the desired information.
APPEAL from the judgment of Downie J. (2004), 2004 ONCJ 428, 76 O.R. (3d) 758, [2004] O.J. No. 5892 (C.J.) allowing the appeal from the conviction entered by Gay J. of the Ontario Court of Justice on January 6, 2004, for an offence under the Environmental Protection Act, R.S.O. 1990, c. E.19.
Statutes referred to Environmental Protection Act, R.S.O. 1990, c. E.19, ss. 92 [as am.], 156 [as am.], 184 [as am.]
Frederic L. Maefs, for appellant. John M. Buhlman and Megan Ferrier, for respondent.
The judgment of the court was delivered by
[1] GILLESE J.A.:-- Crompton Co./Cie manufactures chemicals at a plant in Elmira, Ontario. On September 21, 2002, Crompton employees reported to the Ministry of the Environment Spills Action Centre that 400 litres of cooling tower water had been accidentally discharged into the Canagagigue Creek. The Spills Action Centre determined that no urgent action was required. A statement on the report said, "No adverse effects are anticipated."
[2] Philip Shewen is a provincial officer working for the Ministry of the Environment. On September 24, 2002, Provincial Officer Shewen phoned Jeff Merriman at Crompton and asked for a written report showing the quantity and quality of the material that had been spilled and any action that Crompton had taken to prevent a recurrence. Mr. Merriman forwarded some information to him but, acting on legal advice, refused to provide the requested information unless required to do so by a written [page137] demand signed by a Director pursuant to s. 92(3) of the Environmental Protection Act, R.S.O. 1990, c. E.19 (the "Act").
[3] On October 18, Provincial Officer Shewen issued a Provincial Officer's Report and Order that required Crompton to prepare a written incident report regarding the spill by October 28. Crompton complied with the order on October 25.
[4] The Ministry took the position that, by failing to provide the information as initially requested, Crompton had hindered or obstructed a provincial officer in the performance of his duties between September 24 and October 25, contrary to s. 184(1) of the Act.
[5] At first instance, Crompton was found guilty of the offence and fined $4,000 plus a victim surcharge of $1,000.
[6] Crompton successfully appealed and was acquitted.
[7] The Ministry was granted leave to appeal.
[8] On appeal, the Ministry asks this court to determine whether the appeal court judge erred in law by holding that (1) information required by the Ministry regarding the spill of a pollutant in accordance with s. 92(1) of the Act could only be demanded by the Director requesting additional information pursuant to s. 92(3) of the Act; and, (2) the power of a provincial officer to require the provision of information under s. 156 of the Act could only be exercised during a physical attendance at a site for the purposes of carrying out an inspection.
The Relevant Legislation
[9] For ease of reference, the relevant parts of ss. 92, 156 and 184 of the Act are set out below.
[10] At the relevant time, s. 92 provided:
92(1) Every person having control of a pollutant that is spilled and every person who spills or causes or permits a spill of a pollutant that causes or is likely to cause an adverse effect shall forthwith notify the following persons of the spill, of the circumstances thereof, and of the action that the person has taken or intends to take with respect thereto,
(a) the Ministry;
(2) The duty imposed by subsection (1) comes into force in respect of each of the persons having control of the pollutant and the person who spills or causes or permits the spill of the pollutant immediately when the person knows or ought to know that the pollutant is spilled . . . .
(3) The person required by subsection (1) to give notice and the owner of the pollutant shall give to the Director such additional information in respect of the pollutant, the source of the pollutant and the spill of the pollutant as may be required by the Director. [page138]
(4) A member of a police force or an employee of a municipality or other public authority who is informed of or who investigates the spill of a pollutant shall forthwith notify the Ministry of the spill of the pollutant unless he or she has reasonable grounds for believing that such notice has been given to the Ministry by another person.
(5) The notices required by subsections (1) and (4) shall be given in accordance with any requirements prescribed by the regulations.
[11] Section 156 provides:
156(1) For the administration of this Act or the regulations, a provincial officer may, without a warrant or court order, at any reasonable time and with any reasonable assistance, make inspections, including,
(a) entering any part of the natural environment to ascertain the extent, if any, to which contaminants have caused an adverse effect, the causes for any adverse effect, and how any adverse effect may be prevented, eliminated or ameliorated and the natural environment restored;
(b) entering any place in which the provincial officer reasonably believes can be found anything that is governed or regulated under this Act or anything the dealing with which is governed or regulated under this Act;
(c) entering any place in or from which the provincial officer reasonably believes a contaminant is being, has been or may be discharged into the natural environment;
(d) entering any place that the provincial officer reasonably believes is likely to contain documents related to,
(i) an activity or undertaking that is, or is required to be, the subject of a permit, licence, approval, certificate of approval, provisional certificate of approval, certificate of property use, program approval, agreement, or order under this Act,
(ii) an activity or undertaking that is exempted by a regulation from any requirement to have a permit, licence, certificate of approval or provisional certificate of approval under this Act and that is regulated by the provisions of the regulation, or
(iii) the discharge of a contaminant into the natural environment;
(e) entering any place that the provincial officer reasonably believes,
(i) is, or is required to be, subject to or referred to in a permit, licence, approval, certificate of approval, provisional certificate of approval, certificate of property use, program approval, agreement, or order under this Act, or
(ii) is subject to or referred to in a regulation that provides for an exemption from any requirement to have a permit, licence, certificate of approval or provisional certificate of approval under this Act, where the regulation includes provisions that regulate the place; [page139]
(e.1) entering any property for which a record of site condition has been filed in the Environmental Site Registry established under section 168.3 for the purpose of sampling, testing or examining anything referred to in the record of site condition;
(f) entering any place where a motor, motor vehicle or beverage container regulated under this Act is stocked, displayed, sold or offered for sale, to carry out his or her duties under Part III or IX, as the case may be;
(g) entering any establishment for the repair of motors or motor vehicles, to carry out his or her duties under Part III;
(h) entering any ice shelter to carry out his or her duties under Part IV;
(i) entering any abandoned motor vehicle to carry out his or her duties under Part VII;
(j) entering any place where the provincial officer reasonably believes the permit and plates of a vehicle may be found, in order to seize them in accordance with section 48 or 49; and
(k) entering any place where a pollutant as defined in Part X is spilled.
(2) During an inspection under subsection (1), the provincial officer may,
(a) make necessary excavations;
(b) require that any thing be operated, used or set in motion under conditions specified by the provincial officer;
(c) take samples for analysis;
(d) conduct tests or take measurements;
(e) examine, record or copy any document or data, in any form, by any method;
(f) record the condition of a place or the natural environment by means of photograph, video recording or other visual recording;
(g) require the production of any document or data, in any form, required to be kept under this Act and of any other document or data, in any form, related to the purposes of the inspection;
(h) remove from a place documents or data, in any form, produced under clause (g) for the purpose of making copies; and
(i) make reasonable inquiries of any person, orally or in writing.
(3) A record made under clause (2)(f) must be made in a manner that does not intercept any private communication and that accords with reasonable expectations of privacy.
(3.1) A provincial officer shall not remove documents or data under clause (2)(h) without giving a receipt for them and shall promptly return the documents or data to the person who produced them. [page140]
(4) A provincial officer who exercises the power set out in clause (2)(i) may exclude from the questioning any person except counsel for the individual being questioned.
(5) A person shall not exercise a power conferred by this Act to enter a room actually used as a dwelling without the consent of the occupier except under the authority of an order under section 158.
[12] Subsections 184(1) and (4) read as follows:
184(1) No person shall hinder of obstruct any provincial officer or any employee or agent of the Ministry in the performance of his or her duties under this Act.
(4) No person shall refuse to furnish any provincial officer, the Minister, the Ministry or any other employee or agent of the Ministry with information required for the purposes of this Act and the regulations.
Analysis
[13] For the reasons that follow, in my view, the appeal court judge correctly concluded that the provincial officer did not have the right to make a telephone demand for additional information from the respondent. As s. 184(1) of the Act requires proof that a person hindered or obstructed a provincial officer "in the performance of his or her duties under this Act" and, as Provincial Officer Shewen did not have the legal authority to compel Crompton to provide the information by means of a telephone request, the offence under s. 184(1) was not made out.
[14] This, however, does not mean that the Ministry was precluded from demanding the information that it sought. In my view, both ss. 92 and 156 of the Act provide mechanisms for the Ministry to require such additional information.
[15] It is useful to set out s. 92(3) again. It reads as follows:
92(3) The person required by subsection (1) to give notice and the owner of the pollutant shall give to the Director such additional information in respect of the pollutant, the source of the pollutant and the spill of the pollutant as may be required by the Director.
[16] Assuming that s. 92(1) applied to the spill in question, s. 92(3) explicitly empowers the Director to require the person required to give notice (and the owner of the pollutant) to give such additional information as the Director may require in respect of the pollutant, the source of the pollutant and the spill. Thus, in the case at bar, when the Ministry determined that it wished further information in relation to the spill, pursuant to s. 92(3) the Director had the right to require the respondent to provide that information.
[17] I do not accept the Ministry's argument that a provincial officer has the power under s. 92(1) to require additional information. [page141] The Ministry concedes that the legislation does not expressly authorize provincial officers to demand such information but argues that such authority should be implied. In my view, such an argument cannot succeed in light of s. 92(3), which makes it clear that if additional information is to be obtained, it is the Director who has the authority to require its provision.
[18] Section 156 provides another means by which the Ministry and, specifically, a provincial officer, can obtain further information in the event of a spill. I begin by observing that s. 156(1) empowers a provincial officer to make an inspection by "entering" land, buildings and other places. "Entering" land, buildings and places can only be done physically. Thus, on a plain reading, in my view, s. 156(1) contemplates a physical inspection. A physical inspection, by definition, cannot be conducted over the telephone.
[19] This view is fortified by a consideration of other parts of s. 156 of the Act. Section 156(2) gives a provincial officer certain powers "during an inspection". These powers are consistent with the provincial officer making a physical inspection as it authorizes such things as the making of excavations, taking of samples and examining of documents. For ease of reference, s. 156(2) is set out again:
(2) During an inspection under subsection (1), the provincial officer may,
(a) make necessary excavations;
(b) require that any thing be operated, used or set in motion under conditions specified by the provincial officer;
(c) take samples for analysis;
(d) conduct tests or take measurements;
(e) examine, record or copy any document or data, in any form, by any method;
(f) record the condition of a place or the natural environment by means of photograph, video recording or other visual recording;
(g) require the production of any document or data, in any form, required to be kept under this Act and of any other document or data, in any form, related to the purposes of the inspection;
(h) remove from a place documents or data, in any form, produced under clause (g) for the purpose of making copies; and
(i) make reasonable inquiries of any person, orally or in writing.
[20] Pursuant to s. 156(2), a provincial officer does have the power to require the production of documents and data, when conducting an inspection. However, in the case at bar, when Provincial Officer Shewen made the telephone request of the respondent, [page142] he was not conducting an inspection under s. 156(1) of the Act. Therefore, he did not have the power under s. 156(2) to require the report or information that he sought. Had he made a physical inspection, Provincial Officer Shewen could have relied on s. 156(2)(g), for example, to require the respondent to produce the desired information.
[21] I would venture to add that, although s. 184(4) was not in issue before us, it appears to offer a third option for the Ministry.
[22] It will be recalled that s. 184(4) provides that:
(4) No person shall refuse to furnish any provincial officer, the Minister, the Ministry or any employee or agent of the Ministry with information required for the purposes of this Act and the regulations.
[23] Section 92(1) is a self-reporting mechanism. It requires a person to notify the Ministry not only of the spill but also "of the circumstances thereof" and "the action that the person has taken or intends to take with respect to" the spill. The Ministry contends that, pursuant to s. 92(1), the respondent was required to notify it of the spill and that its notification was deficient as it failed to specify the circumstances of the spill and the action that the respondent intended to take in respect of the spill.
[24] If it can be proven that s. 92(1) applies to a spill, that the person required to notify the Ministry failed to provide the information as required by s. 92(1), and, that the person refused to furnish a provincial officer with the information as required, it appears that an offence under s. 184(4) of the Act could be made out.
Disposition
[25] Accordingly, I would dismiss the appeal.
Appeal dismissed.