Court of Appeal for Ontario

Date: 2019-08-30 Docket: M50663

Pardu J.A. (In Chambers)

Between

Her Majesty the Queen in right of Ontario (Ministry of the Environment, Conservation and Parks) Respondent

and

Thomas Cavanagh Construction Limited Applicant

Counsel

Don Sullivan, for the applicant Paul McCulloch, for the respondent

Heard and released orally: August 12, 2019

Reasons for Decision

[1] Thomas Cavanagh Construction Limited (TCCL) moves for leave to appeal from a judgment of the Ontario Court of Justice, which dismissed TCCL's appeal from sentences imposed by a Justice of the Peace.

[2] TCCL was convicted of two offences of discharging or permitting the discharge of material into a watercourse that may impair the quality of water, contrary to s. 30(1) of the Ontario Water Resources Act, R.S.O. 1990, c. O.40, and two charges of failing to notify the Ministry of the Environment of those two discharges, contrary to s. 30(2) of the same act.

[3] The sentences imposed were fines of $80,000 and $60,000 on the two discharge counts and $40,000 on each of the failure to report charges for a total of $220,000.

[4] TCCL argues that the fines were excessive, and that the sentencing judge and the appeal judge ought to have weighed the aggravating and mitigating circumstances differently. It is noteworthy that minimum fines totaling $100,000 established the floor for sentencing purposes in this case.

[5] TCCL has not shown that the sentencing judge or the appeal judge considered any irrelevant factor or failed to consider any relevant factor. No error of principle is alleged.

[6] Both the sentencing justice and the appeal justice applied the relevant existing jurisprudence. The appeal judge concluded that the sentence imposed was not manifestly unfit. TCCL's conduct bordered on recklessness. Its annual revenues exceeded $100 million dollars.

[7] TCCL argues that the sentencing judge should have distinguished comparable sentencing decisions on grounds that the damage to the watercourse here was not as severe, and therefore imposed a lesser fine than was imposed in MOECC v. Aecon Construction and Materials Ltd. (10 February 2017), Prosecution Disposition Report (Trial), LSB file #15-10480, for example. However, on appeal, the sentencing judge's weighing of the relevant sentencing factors is owed deference.

[8] Section 131(2) of the Provincial Offences Act, R.S.O. 1990, c. P.33, provides that "no leave to appeal shall be granted … unless the judge of the Court of Appeal considers that in the particular circumstances of the case it is essential in the public interest or for the due administration of justice that leave be granted."

[9] TCCL asks this court to review the application of well-established legal principles. There is no basis advanced which would allow this court to conclude that it is essential in the public interest or for the due administration of justice that leave to appeal be granted.

[10] The motion for leave to appeal from the dismissal of the sentence appeal is dismissed.

"G. Pardu J.A."