Her Majesty the Queen v. Ontario Corp. 311578, operating as Dedrick Bros. Excavating Ltd. [Indexed as: R. v. Ontario Corp. 311578]
112 O.R. (3d) 614
2012 ONCA 604
Court of Appeal for Ontario,
Feldman, Sharpe and Ducharme JJ.A.
September 14, 2012
Environmental law -- Offences -- Defendant having contract with farmer pursuant to which it removed top soil on farmland, levelled sand knolls, sold sand and restored land to make it arable for farming -- Defendant guilty of operating pit without licence contrary to s. 7(1) of Aggregate Resources Act -- Intention to rehabilitate excavation after excavating aggregate not taking operation out of definition of "pit" in s. 1(1) -- No specified exemption existing in Act for farm betterment projects -- Section 7(1) applying to on-site operator and not just to owner of pit -- Aggregate Resources Act, R.S.O. 1990, c. A.8, ss. 1(1), 7(1).
Pursuant to a contract with a farmer, the defendant removed top soil, levelled sand knolls, sold the sand, then restored the land with the top soil to make it arable for farming. The defendant was charged under s. 7(1) of the Aggregate Resources Act with operating a pit without a licence. "Pit" is defined in the Act as meaning "land . . . from which unconsolidated aggregate is being or has been excavated, and that has not been rehabilitated . . . ". The justice of the peace acquitted the defendant on the basis that the land was not a "pit" as the defendant rehabilitated it. On appeal to the Ontario Court of Justice, the [page615] court found that it was not the purpose of the Act to regulate the type of activity where a farmer was simply trying to improve his farmland to better grow crops, and that because the defendant's intent was to remove the sand and then make the land useful for farming, the defendant was not operating a "pit". The Crown appealed.
Held, the appeal should be allowed.
The Act could not be interpreted as excluding pits that will be rehabilitated after excavation in order to improve farmland, as s. 1(3) of the Act provides a specific ministerial exemption where the primary purpose of the excavation is not for the production of aggregate. There would be no need for that exemption if the licensing requirement did not apply, prima facie, to the particular excavation. There is no specified exemption in the Act for farm betterment projects. Finally, s. 7 of the Act clearly applies to the on-site operator and not just the owner of the pit.
APPEAL from the order of Edward J. of the Ontario Court of Justice dated September 12, 2011 dismissing the Crown's appeal from the acquittal entered by Justice of the Peace Kivell dated February 17, 2011.
Cases referred to Euro-Excellence Inc. v. Kraft Canada Inc., [2007] 3 S.C.R. 20, [2007] S.C.J. No. 37, 2007 SCC 37, 282 D.L.R. (4th) 577, 365 N.R. 332, J.E. 2007-1510, 59 C.P.R. (4th) 353, 159 A.C.W.S. (3d) 429
Statutes referred to Aggregate Resources Act, R.S.O. 1990, c. A.8, ss. 1(1) [as am.], (3), 2, 7, [as am.], (1), 12.1 [as am.], 48 [as am.], 66 [as am.] Planning Act, R.S.O. 1990, c. P.13 [as am.], s. 71
Authorities referred to Driedger, Elmer A., Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983)
Brian Wilkie, for appellant. Thomas A. Cline, Q.C., for respondent.
The judgment of the court was delivery by
[1] FELDMAN J.A.: -- The respondent was charged under s. 7(1) of the Aggregate Resources Act, R.S.O. 1990, c. A.8 (the "ARA") with operating a pit without a licence. The respondent was carrying out a contract with a local farmer in Norfolk County, whereby he was removing the top soil, levelling the sand knolls, selling the sand, then restoring the land with the top soil to make it arable for farming. Neither he nor the farmer had obtained a licence to operate a pit or quarry. [page616]
[2] Section 7(1) of the ARA provides:
7(1) No person shall, in a part of Ontario designated under s. 5, operate a pit or quarry on land that is not land under water and the surface rights of which are not the property of the Crown except under the authority of and in accordance with a licence.
[3] There are several definitions in s. 1(1) of the ARA that are important for the analysis:
"pit" means land or land under water from which unconsolidated aggregate is being or has been excavated, and that has not been rehabilitated, but does not mean land or land under water excavated for a building or structure on the excavation site or in relation to which an order has been made under subsection (3); @7 . . . . .
"excavate" includes the preparation of land for excavation and removal of hills, sand dunes, knolls, stones and rocks other than metallic ores from the general surface of the ground; @7 . . . . .
"aggregate" means gravel, sand, clay, earth, shale, stone, limestone, dolostone, sandstone, marble, granite, rock or other prescribed material; @7 . . . . .
"operate", when used in relation to a pit or quarry, means "work" and includes all activities associated with a pit or quarry that are carried out on the site; @7 . . . . .
"rehabilitate" means to treat land from which aggregate has been excavated so that the use or condition of the land, (a) is restored to its former use or condition, or (b) is changed to another use or condition that is or will be compatible with the use of adjacent land.
[4] The parties proceeded before the justice of the peace by an agreed statement of facts. Together with other business activities, the respondent has been in the business of restoring agricultural land for the past 30 to 35 years, never under the authority of a pit excavation licence. The respondent generally does not charge the farmer for this service because the respondent obtains the benefit of removing and selling the sand from the knolls that are levelled.
[5] In this case, in the event that the farmer needed some of the sand at one of his other farms, he would pay the respondent to truck it there. The farmer estimated that once the rehabilitation of his land was complete, the value of his property would be increased by $2,000 per acre and the productivity of the land would also be enhanced. Although the farmer looks to the [page617] respondent for his expertise in rehabilitating the land, it is the farmer that makes the ultimate determination of what will take place on his land.
[6] The justice of the peace acquitted the respondent, finding that because the respondent rehabilitates the land, the land is not a "pit" within the definition under the ARA.
[7] On appeal to the Ontario Court of Justice, the court referred to s. 2 of the ARA, which sets out its purposes:
- The purposes of this Act are, (a) to provide for the management of the aggregate resources of Ontario; (b) to control and regulate aggregate operations on Crown and private lands; (c) to require the rehabilitation of land from which aggregate has been excavated; and (d) to minimize adverse impact on the environment in respect of aggregate operations.
[8] The court found that it was not the purpose of the ARA to regulate the type of activity where "a farmer was simply trying to improve his farmland to better grow crops". He reasoned that because the respondent's intent was to remove the sand, then to make the land useful for farming, i.e., to rehabilitate the land, the respondent was not operating a "pit" within the definition under the ARA.
[9] Leave to appeal to this court was granted.
[10] The Crown, represented by the Ministry of Natural Resources, submits that while sand is being excavated, and before the rehabilitation process is complete, the person doing the excavating is operating a pit within the definition. In response to the decision of the appeal judge that the ARA is not intended to cover farms, the ministry's position is that there was no evidence that large-scale excavations of aggregate for agricultural purposes require less management than excavations for other purposes, or that their environmental impacts would be of a lesser magnitude. In this case, the restoration of the lands was an extensive project intended to take years.
[11] The ministry referred to s. 1(3) of the ARA, which is a ministerial exemption available when the primary purpose of the excavation is not the extraction of aggregate. In its factum, the ministry stated that such an exemption would have been available in this case. However, in oral argument, counsel resiled from this position and indicated that the ministry would likely have refused to grant such an exemption if the respondent [page618] had applied for one. Finally, the ministry took the position that the respondent, not being a farmer, had only a commercial purpose and not a farming purpose for its activity.
[12] The respondent submits that there are two issues on the appeal. Only the first was decided by the courts below. The first issue is, was there a "pit" within the definition under the ARA? The second issue is, if there was a "pit", "whose pit was it"?
[13] On the first issue, the respondent submits that the establishment of a pit or quarry is primarily a land use issue governed by the Planning Act, R.S.O. 1990, c. P.13. The Official Plan of Norfolk County, which was passed in 2006 and approved by the Minister of Municipal Affairs and Housing in December 2009, designates the subject lands as "agricultural land". The governing by-law does not permit the operation of a pit or quarry on lands zoned agricultural. However, it allows above-grade levelling of agricultural land to extend agricultural uses "notwithstanding . . . the definition of a pit or quarry". Finally, s. 71 of the Planning Act provides that in the event of a conflict with another Act, the provisions of the Planning Act prevail.
[14] The respondent's position is that from an interpretative purpose perspective, it was not intended that the ordinary activities associated with farming require a pit licence. It argues that if the impugned activity on a farm requires a pit licence, so would excavating for tile drainage, the digging of irrigation ponds, excavating in order to clean up head lands and wind breaks, excavation for archaeological purposes and the removal of rocks and stones from fields. He adds that the excavation of beach sand around cottages would also be subject to licensing.
[15] Responding to the ministry's submission that exempting these types of long-term farm rehabilitation projects would allow an aggregate producer to excavate any amount of aggregate uncontrolled, the respondent counters that the applicable by- law would preclude that degree of excavation. Furthermore, the by-law prohibits a commercial use of land.
[16] On the second issue, the respondent argues that if a pit licence is required, then it is the owner of the land who must obtain the licence. It is the owner who controls and directs the entire project. The respondent is there at the owner's request and by his leave.
Analysis
[17] The question in this case involves an exercise in statutory interpretation. The accepted modern approach is set out in Elmer A. Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983), at p. 87, most recently referred to by the [page619] Supreme Court of Canada in Euro- Excellence Inc. v. Kraft Canada Inc., [2007] 3 S.C.R. 20, [2007] S.C.J. No. 37, 2007 SCC 37, at para. 2:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
[18] It is clear that what the respondent was doing was excavating a pit within the grammatical and ordinary sense of the definition in the ARA. The respondent argues that the ARA should not be interpreted to include pits that are being excavated and that will be rehabilitated in order to improve farmland and not for the purpose of commercial aggregate production. The problem with that interpretation is that s. 1(3) provides a specific ministerial exemption where the primary purpose of the excavation is not for the production of aggregate. There would be no need for such an exemption if the licensing requirement did not apply, prima facie, to the particular excavation. Moreover, the intention to rehabilitate the excavation in the future does not take the operation out of the definition of a "pit". That definition covers land "that has not been rehabilitated" and s. 48 requires all licencees and permittees to rehabilitate the site in accordance with the Act and regulations.
[19] There is no specified exemption for farm betterment projects. This is another indication within the statute that there is no intent to exempt such projects from the licensing requirements of the ARA.
[20] Contrary to the conclusion of the appeal judge, the purposes of the ARA set out in s. 2 apply to these projects, particularly when the projects are significant in scope and duration, such as the impugned project in this case. In cases where the project is much more limited, such as some of the examples suggested by the respondent, presumably a s. 1(3) exemption could be available.
[21] As to the argument that this is strictly a Planning Act issue and that the ARA has no application, it appears that both acts can apply in appropriate circumstances. Section 66 of the ARA provides for the overriding application of the ARA "despite any municipal by-law", while s. 12.1 states that no licence shall be issued where a zoning by-law prohibits the site from being used for the operation of a pit. In this case, while the area is zoned for farming and pits are prohibited, the applicable zoning by-law, quoted above, appears to have an exemption for farmers levelling their land. Therefore, the ARA can apply. Presumably, [page620] any pit licence issued under the ARA would be carefully tailored to the applicable zoning restrictions.
[22] The respondent's second argument seems to be that if a licence is required, it is not the contractor but the owner of the pit who must obtain it. Section 7(1) makes it an offence for a person to "operate" a pit. It makes sense that the person who owns and controls the pit is also operating the pit for the purposes of s. 7. After all, that person can hire and fire one or more trucking companies to conduct the actual grading operation. However, the wording of s. 7, which is directed to anyone who "operates" the pit, i.e., "works" the pit, clearly extends to the actual on-site operator as well.
Conclusion
[23] In the result, I would allow the appeal, set aside the acquittal and, based on the agreed statement of facts that forms the record in this case, enter a conviction and refer the matter back to the justice of the peace for sentencing.
Appeal allowed.