Court File and Parties

Court File: Peterborough 09-0741-02 Date: March 22, 2012 Ontario Court of Justice

Between: Her Majesty the Queen

And: David Neilson

Before: Justice of the Peace S. Lancaster

Heard: February 2, 2012

Reasons for Judgement Released: March 22, 2012

Charge: Provide False / Misleading Information to MOE s.184(2), Environmental Protection Act

Counsel:

• Ms. D. Meuelman & Mr. Windsor – Crown Prosecutor – MOE
• Mr. D. Neilson – Defendant (Self-represented)

Decision

JUSTICE OF THE PEACE LANCASTER:

A) ISSUE

[1] David Neilson is before the court charged under the Environmental Protection Act for providing false or misleading information to the Ministry of the Environment pursuant to section 184(2), in relation to the ministry's September 2008 investigation into PCB hazardous waste storage violations.

B) BACKGROUND

[2] Mr. Neilson's trial was held on February 2, 2012 when the court heard from 2 Crown witnesses. Mr. Neilson did not provide defence evidence. This matter is returning today for judgement.

[3] At the time of the alleged offence, David Neilson was identified as the Technical Site Manager of Buckham Transport. Buckham Transport operates a waste transfer/processing facility located within the Township of Otonabee-South Monaghan, Peterborough County.

C) EVIDENCE OF WITNESSES AND FACTS

Ted Bryan – Crown Witness #1, Fire Chief, Otonabee-South Monaghan Township

[4] The court heard from Ted Bryan, Fire Chief, Otonabee-South Monaghan Township. Chief Bryan has managed the operation of the fire department since 1986 and conducts fire prevention inspections within this municipality to confirm compliance with the Fire Code.

[5] On September 17, 2008 Chief Bryan conducted an inspection at Buckham Transport. He was contacted a few days earlier by Gord Tate a then Buckham Transport employee regarding a fire safety concern. Chief Bryan is familiar with Buckham Transport as he has inspected this property since 1997, conducting inspections annually unless complaints or violation concerns require more frequent inspections. Buckham Transport is a chemical recycling and waste management plant that receives and recycles bulk chemical waste, including flammable and combustible waste. Chief Bryan knows Mr Neilson, having dealt with him since 1997 as the Operations Manager for Buckham Transport.

[6] On September 17, 2008 Chief Bryan met with representatives of the Ministry of Labour (Karen Malcolm, Mike O'Donnell), the Fire Department (Ned Foley) and Jason Hedges and David Neilson of Buckham Transport, to conduct an inspection of the onsite waste inventory, storage compartments and an assessment of the stored combustible and flammable liquids. He described the on-site building as a large truck terminal with 16-20 feet high ceilings. Mr. Tate referred to a 6,000 gallon tanker trailer situated within the building. When Chief Bryan inquired of Mr. Neilson what was in the subject tanker, Mr. Neilson responded that he did not know. A sample of the tanker contents was drawn by Mr. Neilson, and taken by Mr. Foley to SGS Lakefield Research Limited for laboratory testing.

[7] Exhibit B, a "Certificate of Analysis, Final Report", received from SGS Lakefield Research dated September 22, 2008 was tendered to the court. This certificate confirms that the sample liquid tested contains Poly Chlorinated Biphenals (PCB) at 101 PPM, a level that was 2 times the MOE permitted limit for a class 2 combustible liquid for indoor storage. Chief Bryan conducted further inspections on September 19, 2008 and attended a September 23, 2008 meeting with MOE and MOL. Buckham Transport arranged for the removal of the hazardous waste by pumping off the liquid into "tote" containers while being observed by Chief Bryan.

Chris Johnston – Crown Witness #2, MOE Provincial Officer

[8] The court heard from Chris Johnston, an employee of the Ministry of the Environment, and a designated Provincial Officer since 2001. He is responsible for air, land and water inspections to determine compliance with the Environmental Protection Act and the Ontario Water Resources Act, inspecting facilities for non-compliance and to help bring those facilities into compliance. Buckham Transport is noted as a "proactive" inspection facility, i.e., is the subject of inspections that are not prearranged. He has the investigation role where charges are approved, working out of the Peterborough District office with Buckham Transport falling within his area of jurisdictional responsibility.

[9] Exhibit A, "Certificate of Approval No. A341906" was tendered to the court. Officer Johnston testified that this certificate is issued by the MOE Director of the Approvals Branch, in response to a company's application that is to outline the nature of business and how the company wants to conduct their operation. The Certificate of Approval stipulates how Buckham Transport is to operate its transfer process, including how waste is to be handled and processed, the record keeping requirements, and the permitted type and amount of waste. Buckham Transport is approved to handle all types of waste, including hazardous waste. They are required to keep track of the waste received, the waste on site, where the waste goes when it leaves their facility, and any waste analysis reports.

[10] Officer Johnston noted that some waste streams are handled differently, some are held in containers, and some just transferred and not processed. Officer Johnston knows Mr. Neilson as Buckham Transport's Technical Director up to the winter of 2008, having worked with him for a number of years since 2002, including an inspection in December 2007.

[11] Officer Johnston advised that he was involved in a "proactive" inspection on September 18, 2008 at Buckham Transport's facility, involving Mr. Neilson and several others, following a call he received from Chief Bryan regarding his site management concerns, and specific concerns about the storage of hazardous waste, involving a large container with PCBs. He advised Mr. Neilson of the purpose of his inspection. The type of waste noted was MOE classified waste class 243. He identified a 2½ hectar yard, an office, a vehicle repair shop, a 60x100 meter box building, parking for trucks and large waste bins. He observed a large 20,000 litre tanker that was found to contain PCB waste. He described the PCB compound that bio-accumulates in the environment (mammal's tissue), that doesn't breakdown and is dangerous. Exhibit A requires that PCB material is to be stored outside on the east side of the Buckham Transport property, noting 2 parking spots.

[12] Exhibit C, Site Design and Operation Report, Buckham Transport Ltd., Waste Disposal Transfer Station, dated July 2003, was tendered to the court. Officer Johnston noted that Buckham Transport is to follow the requirements noted in Exhibit C, and specifically, the proper storage of PCB material. The September 18, 2008 inspection was concerned with the incompatible storage and too much waste on site. The tanker containing PCBs was located inside a building, and not positioned in the designated outside area. An MOE Order "not to receive waste" was issued (Cathy Curlew) to Buckham Transport, with the defendant present.

[13] On September 19, 2008 Officer Johnston met with Mr. Neilson and Mr. Hedges and Chief Bryan took possession from Mr. Neilson a 2nd sample of the tanker material.

[14] On September 23, 2008, Officer Johnston met with the David Neilson, Jason Hedges, Lenore Buckham, representatives of the MOE and the fire department to discuss SGS Lakefield Research's Report findings of 101 PPM in the sample waste taken from the tanker on September 17, 2008, that being greater than 50 PPM as per MOE's definition of PCB waste. With these findings, Buckham Transport was not in compliance with MOE PCB storage requirements. Officer Johnston inquired as to how the material got on site and how the company dealt with the situation. Mr. Neilson made a statement that he didn't know how the contamination got into the tanker, with no comments from Mr. Hedges or Ms Buckham. On consent of Mr. Neilson, his statement was accepted by the court as given voluntarily by Mr. Neilson, and no voir dire was entered into.

[15] Exhibit D, Certificate of Analysis from AGAT Laboratories, was tendered to the court. This report confirms the 2 samples taken by David Neilson on September 23, 2008 contained 130 and 80 parts per million.

[16] Exhibit E, letter from David Neilson to MOE dated September 24, 2008, confirms that the PCB contaminated solvent and the trailer was removed from the Buckham Transport property between September 26-29, 2008.

[17] On November 18, 2008, Officer Johnston met with David Neilson, Jason Hedges, and Tim Hanna (MOE) to review the Certificate of Approval, and specifically condition 20 (page 7): "All in-coming and outgoing wastes shall be inspected and tested as detailed in Item 11 of Schedule "A" of this Certificate, prior to being received, processed, transferred and shipped to ensure wastes are being managed and disposed of in accordance with the Act and O.Reg. 347". This meeting was convened to ensure that Buckham Transport had an internal process to ensure compliance. Officer Johnson testified that David Neilson stated during this meeting that "they were aware of the PCB material in September 2008". This was a contradiction to the statements that David Neilson made on September 17 and 23, 2008 that he was unaware of the PCB contaminated waste. When asked for an explanation, neither Mr. Neilson nor the others from Buckham Transport responded further.

[18] Exhibit F, letter from Dave Neilson, received by MOE on December 12, 2008, was tendered to the court. This letter refers to the subject tanker T-181 used to transfer materials internally in the transfer station. It notes the presence of materials that contained PCB contamination that was tested at greater than 50 PPM. The intent was to take a second test sample for confirmation but due to a vacant Facility Supervisor position no second sample was taken.

[19] On cross examination of Officer Johnston, Mr. Neilson raised questions regarding the types of waste received from the generating source, and specifically the possible discrepancy in the noted waste classes. Mr. Johnston responded that while this is possible, the receiving waste management company must document this situation, and have a process to address this situation. When Mr. Neilson asked if his explanation as per Exhibit F letter was unreasonable, Mr. Johnston responded that given is initial September, 2008 statements that 1) he did not know what was in the tanker, and 2) that he did not know how the PCB waste got into the tanker, he disagreed that the explanation was reasonable.

D) APPLICABLE STATUTES AND CASELAW

• Environmental Protection Act, R.S.O. 1990, Chapter E.19, s.184(2)
• Environmental Protection Act, R.R.O. 1990, Regulation 362 – PCBs
• Environmental Protection Act, R.R.O. 1990, Regulation 347
• R. v. Sault Ste. Marie (City), 40 C.C.C.(2d) 353
• R. v. Mac's Liquid Disposal (1982) Ltd. (Ont. C.A.)
• R. v. Carter and Quinte-Eco Consultants Inc (2007)
• R. v. Lifcus (1997), 150 D.L.R. (4th)

[20] Environmental Protection Act s.184(2) states:

"No person shall orally, in writing or electronically, give or submit false or misleading information in any statement, document or data, to any provincial officer, the Minister, the Ministry, any employee in or agent of the Ministry or any person involved in carrying out a program of the Ministry in respect of any matter related to this Act or the regulations"

As was noted at the outset of this trial, the offence under s.184(2) is not a mens rea offence and that the offence does not include "knowingly" as part of the offence wording. It is therefore not up to the Crown to prove that the defendant knowingly gave false or misleading information.

E) ACTUS REUS

[21] The Crown must prove all elements of the actus reus of the offence beyond a reasonable doubt. The Crown must produce sufficient evidence that Mr. Neilson provided false or misleading information. As per R. v. Lifcus (1997), "proof must be logically connected to the evidence, or absence of the evidence, and does not involve proof of an absolute certainty…"

F) DUE DILIGENCE – LEGAL PRINCIPLES

[22] The charge before this court is a strict liability offence. Once the actus reus of the offence is proved a conviction must follow unless the defendant exercised due diligence to avoid the commission of the offence. (R. v. Sault Ste. Marie (City), 40 C.C.C.(2d) 353)

[23] As per R. v. Sault Ste. Marie (City), "In a normal case, the accused alone will have knowledge of what he has done to avoid the breach, and it is not improper to expect him to come forward with evidence of due diligence"

COURT FINDINGS

[24] The court has heard allegations that on September 17, 2008 Mr. Neilson advised Chief Ted Bryan that he didn't know what was in the tanker. Chief Bryan's inspection that day followed a complaint about fire safety made by a Buckham Transport employee. On September 23, 2008, Mr. Neilson advised Provincial Officer Johnston, that he didn't know how the PCB contamination got into the tanker. The alleged statements were made about a week apart to two public officials tasked with ensuring compliance regarding the handling of a hazardous material, and ensuring public safety. On November 18, 2008 Mr. Neilson contradicted his earlier statements by noting to Officer Johnston that Buckham Transport was in fact aware of the PCB contaminated waste in September 2008.

[25] Much documentary and viva voce evidence has been presented to the court regarding Buckham Transport's obligations pursuant to their Provisional Certificate of Approval, and specifically regarding the receipt and handling of PCB contaminated waste. Regulation 362 under the Environmental Protection Act specifies that PCB material means material containing PCBs at a concentration of more than 50 PPM. Chief Bryan and MOE officers, including Officer Johnston have had significant dealings with Mr. Neilson over the years as the "go-to-person" at Buckham Transport. With the correspondence to and from Mr. Neilson and the MOE, including the Provisional Certificate of Approval, there is no doubt that Mr. Neilson was in a prominent position with Buckham Transport, and was a primary contact on environmental matters concerning this company.

[26] Both samples taken by the defendant that were the subject of 2 independent laboratory tests confirming that tanker T-180 contained PCB contaminated waste above 50 PPM. Exhibit F, letter from the defendant received by the Ministry of the Environment likewise confirms readings greater than 50 PPM. While the letter refers to a test undertaken by Buckham Transport "in the spring", the court concludes this refers to the spring of 2008, as the subject relates to tanker T-180 PCB contaminated waste, and the defendant cross examined Officer Johnston regarding this letter as relevant to this trial.

[27] This trial is not specifically about the mishandling of PCB contaminated waste by Buckham Transport, but rather the false or misleading information that Mr. Neilson has alleged to have given to a MOE Provincial Officer.

[28] As Mr. Neilson did not give evidence during his trial the R. v. W(D) (1991) analysis doesn't come into play regarding the defence evidence credibility and reliability. Through cross examination and final submissions Mr. Neilson submits that neither Chief Bryan nor Officer Johnston took notes of the alleged statements, and specifically as they relate to questions asked of him or the answers he allegedly provided. Mr. Neilson submits that the court is being asked to rely on Chief Bryan's and Officer Johnston's memory, and that the Crown has failed to prove its case beyond a reasonable doubt.

[29] According to Exhibit F, Tanker T-181 was PCB contaminated a fact that was known to Buckham Transport several months prior to the September MOE and Fire department investigations, whether or not this tanker was housed indoors during this time, contrary to EPA Regulation. The EPA Regulation is in place to provide for the diligent oversight of the receipt and handling of hazardous waste materials. False or misleading information given to public officials charged with enforcing O. Reg 347 or the Fire Code places the public and workers at risk given the inherent dangers associated with PCB contaminated waste.

[30] Regarding the issue of notes taken by Chief Bryan and Officer Johnston the court qualified the notes taken. Mr. Neilson submits that the absence of notes specifically relating to his statement should raise reasonable doubt for this court, as the notes should be required to substantiate their evidence. The court found that Chief Bryan's and Officer Johnston's evidence was sufficiently detailed and consistent. The questions posed would go to the heart of the concern about the presence of PCB contaminated waste. The questions would not only have been reasonable to ask, not asking these questions might suggest that the Fire Chief of 26 years and the MOE Provincial Officer of 11 years, both seasoned public servants would have been derelict in their duties. I would suggest that Mr. Neilson's responses, as alleged, would clearly stand out in their minds and at that time would reasonably lead to Officer Johnston's inquiry for an explanation regarding the statement inconsistency. I don't believe that notes in this regard are required to refresh their memory of these events, or to substantiate the allegations.

[31] The court finds that Chief Bryan's and Officer Johnston's evidence to be credible and reliable.

[32] Mr. Neilson, is a self-represented defendant. In order to avoid a conviction, Mr. Neilson must prove on a balance of probabilities that either he had an honest but mistaken belief in the facts, if true, would render the act innocent; or that he exercised all reasonable care so as to avoid committing the offence. The defence of due diligence is available to Mr. Neilson, although he has not shown any aspect of due diligence in regard to the false statements.

[33] When Mr. Neilson first became aware of Tanker T-181 PCB contaminated waste prior to September 2008 is not clear. Given his senior position with Buckham Transport he should have been aware, or taken steps to ensure that he was made aware of this situation. As the company's test results confirmed the presence of PCB contaminated waste several months earlier, it would be incumbent on Mr. Neilson to act with due diligence, to be aware, and to be informed to respond with accuracy to MOE enquiries. Again, there is no evidence of this before the court.

G) COURT JUDGEMENT

[34] This court finds that the Crown prosecution has provided a prima facie case, proving its case beyond a reasonable doubt, that Mr. Neilson provided false or misleading information in his statement to a ministry employee and a conviction for entered.

Signed

Stephen Lancaster, Justice of the Peace

Released March 22, 2012