COURT: Provincial Offences, City of Ottawa
DATE: 2012·01·31
Citation: Ontario (Ministry of the Environment) v. 349977 Ontario Ltd., 2012 ONCJ 170
ONTARIO COURT OF JUSTICE
BETWEEN:
Ministry of the Environment
— AND —
349977 Ontario Ltd. operating as Lacombe Waste Services
Before Justice of the Peace B. Mackey
Sentencing Submissions Heard on October 31, 2011
Sentencing Decision released on January 31, 2012
Jerry Herlihy ...................................................................................................... for the prosecution
Diane Saxe ...................................................................... for the defendant Lacombe Waste Services
JUSTICE OF THE PEACE B. Mackey:
1.0 PREAMBLE
[1] The Court is aware of the principles of sentencing in provincial offence matters. In particular, the message of general deterrence that is meant for the larger audience of those businesses operating in similar areas, and all others that must adhere to environmental legislation. There is a compelling educational factor to this direction.
[2] The Court is also aware of the principle of specific deterrence meant to modify the behaviour of the particular defendant. Since a finding of guilt has already been registered, it is a direct, most often financial indicator to the convicted entity that such behaviour will not be tolerated. To that extent, it must not be construed as simply, the cost of doing business.
[3] Sentencing must support regulatory standards while being fundamentally fair and just.
2.0 SUMMARY
[4] Lacombe Waste Services stands convicted of eight (8) offences which are found collectively in what are known as the Ottawa Information and the Cornwall (Lafleche) Information.
[5] Concerning the Ottawa Information, there are three offences (counts 1, 2 and 3) that fall under what became known as the “Fleet” charges, in regards to permitting the transportation of waste in unapproved vehicles. Counts 6, 8 and 12 involve failing to take representative samples, and count fifteen (15) involves storing waste in an unapproved area (the lugger box charge).
[6] The final sentencing issue involves the Cornwall Information (also known as the Lafleche charge). The single conviction, count one (1) is concerning the depositing of hazardous waste at a non-hazardous landfill site.
3.0 VIVA VOCE EVIDENCE ON SENTENCING
[7] Defence offered evidence, on sentencing through examination of Tom Neilson, President of Lacombe Waste Services (LWS), regarding actions taken by LWS before and after the charges in question. During the events covered by the various charges and convictions now before the Court, Tom Neilson was the Operations Manager of the company. George Neilson was the President at the time the offences were committed, but is now retired.
[8] Tom Neilson referred to the ongoing working relationship between his company and the Ministry of the Environment, particularly through periodic visits. The most recent of which was in August of 2011.
[9] He also indicated that LWS received a new Certificate of Approval (COA), including a new Design and Operations Report from the Ministry, in the summer of 2011. Tom Neilson is of the opinion that the new COA has dealt with a number of grey areas that caused certain issues in the past.
[10] Tom Neilson referred to upgrades that LWS made to their operation. These include paving the yard, fencing the yard, introducing a new tracking system with scanners, installing cameras on-site, installing magnetic security locks on doors, and improving employee training. He also referred to the $200,000 purchase of the GC/MS gas chromatography/mass spectrometry equipment (to be discussed later) allowing their chartered chemists to do laboratory testing of organics. They now do organic TCLP’s in-house.
[11] Mention was made by Tom Neilson that the various changes and modifications, other than the direct cost of the GC/MS equipment, cost the company an additional $336,000.
[12] He stated that they now send all residual industrial waste to a transfer site and nothing directly to a landfill which is an additional cost to them of about $25 per ton causing a revenue reduction, based on approximately 8,000 tons, of $200,000. This is both a management and a risk reduction decision, on their part.
[13] In conclusion, when asked if he had anything else to say, Mr. Neilson stated that, “We don’t want to come back here. It’s not a fun place. It’s not – it’s more than just the money that it’s cost us, it’s five-six years hanging over our head, ... so it’s not something that we want a repeat of, and we do everything we can to make sure that it – we don’t come back.”
[14] In cross examination, the Crown noted that some of the above updates and improvements relate to previous charges and do not relate to the current infractions. Specifically, in the case of the GC/MS spectrometer (at a cost of $200,000), that this piece of equipment was available, although not operational, during the time of the current convictions. Had the equipment been functioning, Lacombe Waste Services (LWS) could have performed the necessary testing internally.
4.0 TECHNICAL EXPLANATIONS
[15] It seems appropriate, at this time, to identify exactly what is a GC/MS testing device. GC/MS (gas chromatography–mass spectrometry) is an analytical machine that combines the features of gas-liquid chromatography and mass spectrometry to identify different substances within a test sample. Applications of GC-MS include environmental analysis and identification of unknown samples. Additionally, it can identify trace elements in materials that were previously thought to have disintegrated beyond identification. GC-MS has been widely heralded as a "gold standard" for forensic substance identification because it is used to perform a specific test. That test positively identifies the actual presence of a particular substance in a given sample. Whereas, a non-specific test merely indicates that a substance falls into a category of substances.
[16] Toxicity Characteristic Leaching Procedure (TCLP) is a soil sample extraction method for chemical analysis employed as an analytical method to simulate leaching through a landfill. The extract is analyzed for substances appropriate to the protocol.
[17] The following information regarding ‘PERC’ is provided for the reader. The chemical in question, known as Perchloroethylene (also called PERC), is a colourless, non-flammable liquid. It does not occur naturally. The primary user of “PERC” is the dry cleaning industry. Additionally, it is used by textile mills, chlorofluorocarbon producers, vapour degreasing and metal cleaning operations, and makers of rubber coatings. It can be added to aerosol formulations, solvent soaps, printing inks, adhesives, sealants, polishes, lubricants, and silicones. Typewriter correction fluid and shoe polish are among the consumer products that can contain “PERC.” Exposure to ‘perchloroethylene’ can occur in the workplace or in the environment following releases to air, water, land, or groundwater.
5:0 SENTENCING ISSUES BEFORE THE COURT
5.1 Disposition of Related Charges
[18] Regarding the Ottawa Information, “Fleet” charges (counts 1, 2 and 3), the Crown suggests that the Court look to the treatment of the other participants, with the caveat that Lacombe Waste Services has been before the Court for two (2) decades. The Prosecutor stressed that none of the other defendants, in the related transportation charges, has a previous record.
[19] The company known as Veolia (Veolia ES Canada Services) made arrangements with Vacuum Drummond, between July and November of 2003, to transport 24 loads of waste from Quebec to LWS although not authorized under their Certificate of Approval (COA). Veolia was fined $8,000.
[20] Veolia provided written notification to Vacuum Drummond in November 2003 that they would no longer be able to operate under their approval.
[21] Vacuum Drummond transported 194 loads (2003-2007) of waste from Uniboard, plus 18 loads (2006-2007) from Centre-Environnemental Techni-Cite to LWS without a COA. They were fined $3,500 plus an individual was also fined $3,500.
[22] Newalta failed to report the addition of vehicles, specifically Conteneurs Carlex, regarding two (2) loads (2006) of waste to LWS. Newalta was fined $1,250 per count on two counts for a total of $2,500.
[23] Conteneurs Carlex was fined $1,250 per count, on two counts (2006), for a total of $2,500 for transporting solid non-hazardous waste from Quebec to LWS without COA approval.
[24] Centre Environnemental Techni-Cite arranged to have 18 loads transported by Vacuum Drummond to LWS without an approved COA (2006 to 2008). Techni-Cite were fined $5,000.
5.2 Position of the Prosecution
[25] The Crown notes that this is the sixth set of convictions for Lacombe Waste Services (LWS) and that such a string of convictions by a single company is rare throughout Ontario. This is a central theme in the Crown’s sentencing submissions.
[26] The conviction dates are: 1988, 1992, 1995, 2005 on appeal (2001), 2005, and 2011.
[27] On the “Fleet” charges, the behaviour continued from April 24 to December 4, 2006 for count one (1) involving 35 loads. Counts two (2) and three (3) were single loads. The Crown seeks penalties of $20,000 on count one (1) and $5,000 each for count two (2) and three (3) for a total of $30,000.
[28] Counts 6, 8 and 12 from the Ottawa Information, involving representative sampling, must, according to the Crown, be viewed in the context of the previous conviction for the same offence in 2005. The Prosecutor noted that past fines, or various offences, of up to $15,000, per count, have failed to stop this behaviour. The recommendation is for $25,000 per count, for each of the three counts, for $75,000.
[29] In reviewing the record of previous convictions, found in the Crown Sentencing Brief, there is a Prosecution Disposition Report (PDR), at Tab 2, for the most recent convictions (2005) that include a charge for failing to ensure that all incoming wastes were properly analyzed. This, the Crown asserts, is a direct, previous conviction relating to Ottawa Information counts six (6), eight (8), and twelve (12).
[30] Further, the Crown submits that an aggravating factor is that the matters before the Court, for this sentencing, commenced on September 19, 2005, which was only some six months after the last LWS conviction.
[31] The total fines for the collective offences, at that time, were $35,000. Count Four (4) involving the failure to properly analyze incoming waste, as noted above, incurred a fine of $10,000 for the company, as well as $2,000 each for the two directors.
[32] Count fifteen (15), on the Ottawa Information involves the placement of a ‘lugger’ box in an area not approved for storage. Notwithstanding that the Ministry has since amended the Certificate of Approval (COA) for Lacombe Waste Services (LWS), now allowing this exact storage location, the Prosecutor is seeking a fine of $15,000 taking into account previous related storage convictions, although not this conviction directly.
[33] The most serious offence is found in the Cornwall (Lafleche) Information. This deals with count one (1) and involves depositing hazardous waste on a non-hazardous landfill site. Here, the Prosecution refers to Regina vs. Erie Environmental Services (Tab 11) dated June 6, 2005, concerning events from 2003, where the company was found guilty of failing to comply with its COA. This is a waste management business that was convicted of dumping bailer juice from a cannery, contrary to their Provisional Certificate of Approval (COA).
[34] The company was considered to have some financial difficulties and was fined $50,000 for that one count. They also had a prior conviction from a Part 1 ticket. The Crown suggests that the fine would have been higher, but for the financial considerations, even though the waste they spread on the field was organic – not hazardous.
[35] Regarding the Lafleche Information, count one (1), the EPA contains a minimum penalty under section 40 of $100,000 (and not more than ten million dollars on subsequent convictions). The Crown is seeking the minimum with the aggravating test of “recklessness” given the behaviour of LWS.
[36] The Prosecutor also made the argument that the minimum fine of $100,000 is, on its own, not enough. However, if the Court is going to impose the recommended fines, bearing in mind the principle of totality, then the Crown would find the minimum sufficient.
[37] The Crown notes that the defendant chose to move this matter to trial. The company, therefore, has forfeited any credit for remorse. The Prosecutor called for a strict sentence on this repeat offender.
[38] The Prosecutor pointed out that under the Environmental Protection Act (EPA), an offender could be sentenced up to $500,000, on each of the other counts, for “subsequent convictions.”
[39] The Prosecution takes exception with the Defence argument that, in the face of their prior record, LWS fines should go down, in many cases. This, they argue is not how convicted companies with a record are dealt with at sentencing, given conventional sentencing principles. The argument is that it is not consistent with the goals of specific and general deterrence to reduce fines on repeat offenders. The fine is critical to changing behaviour.
5.3 Position of the Defendant
[40] Defence argues that some of the companies listed by the Prosecutor without prior records have actually changed their corporate names and status (citing Newalta) and that some do, in fact, have prior records, not acknowledged by MOE. Whereas, LWS has operated continually under the same name and should not be disadvantaged at sentencing by their corporate continuity.
[41] Further, Defence argues that the Crown’s assertion that LWS was reckless does not meet the test as enunciated in Regina vs. Snap-on Tools Canada (2001) (not provided). Defence questions the notion that the offences are repetitive and without distinguishing differences, and further notes that the concept of recklessness does not fall automatically from repeating an offence.
[42] The issue of notice was raised. Defence notes that to have been previously convicted of an offence on other facts is not a warning. Making use of the Crown’s Brief, Tab 8, it was further noted that in the related case of Vacuum Drummond, there is evidence to show that the company was warned (stopped by an MOE investigator) about needing a certificate. No such warning was ever given to LWS.
[43] Defence argues that LWS made positive steps to rectify issues with the Ministry. They sought an amendment to their COA to clarify a number of grey areas. They applied for the new certificate in 2008 and were only recently granted it, due, in part, to prolonged negotiations, particularly surrounding the Design and Operations Report.
[44] Specifically, regarding the Ottawa Information and count fifteen (15), it is suggested that LWS was not even aware that it was illegal to store in the disputed area. Indeed, this issue is no longer valid as the Ministry has approved usage of the exact location in the new COA. This highlights the previous issue of grey areas in the COA.
[45] Relating to the Ottawa ‘Fleet’ charges, found in the Ottawa Information, counts one (1), two (2), and three (3), these are loads that originated with Quebec generators using haulers that did not have COA authority. LWS contends that they never knew that the haulers did not have proper authority, even though the other parties to these offences did know. In one case, LWS would not allow the transaction without a letter confirming the COA.
[46] Dealing with the individual convictions, count one (1), is the Veolia matter where LWS stopped Vacuum Drummond at their gate and would not accept the load until they received a corporate letter covering them under the COA. Veolia knew that they had cut off Vacuum Drummond as of October, 2003, but LWS was left out of the loop. Neither Veolia, as the originator, nor Vacuum Drummond, as the hauler, informed LWS. When LWS found out, they stopped the shipments. Defence argues that LWS was duped by the other two parties and should therefore be penalized less severely and that their original effort should count towards sentencing.
[47] Defence notes that the hauler, Vacuum Drummond was only fined $3,500 as opposed to the Crown’s submission to fine LWS $20,000 per count. Veolia, on the other hand, a billion dollar business, was fined $8,000. Defence strenuously argued that LWS didn’t create the situation, they failed to catch it and that LWS also made some effort to rectify the situation once the correct information was available while the originator and hauler did not inform LWS of the change of status.
[48] Centre Environnemental Techni-Cite (Tab 10), operating a waste management and transfer facility, continued to transport through Vacuum Drummond, without COA authority, long after the facts became known and was fined $12,000 (on three counts at $5,000, $5,000, and $2,000).
[49] Defence also raised the issue of the case of Fuda Contracting and the charge of transporting 20 to 30 loads without COA authority over 11 months, similar to counts one (1) to three (3). They were only fined $1,500 per count.
[50] Among the various cases presented, the case of Regina vs. 4160410 Inc. involved transporting 72 loads from Quebec to Ontario without COA authority with a fine $4,500.
[51] Of note, Regina vs. Lafleche LeBlanc Soil Recycling Inc. received 72 loads that were transported to their site by a Quebec based company and was fined $2,000 as opposed to $4,500 for the hauler. A notation in the Defendant’s Casebook on Sentencing, at the bottom of the page (under the first Tab, Counts 1,2,3) notes, “The Crown noted that the hauler, who also pled guilty...had the primary responsibility...but Lafleche Leblanc had a secondary responsibility to ensure the necessary approvals were in place.” Defence argues that this established a relationship of stepping down the responsibility from the originator/hauler to the receiver.
[52] In the case of Trans-Luthi, who transported 19 loads, the fine was $2,000.
[53] Based on submissions and tendered cases, Defence proposes, as the appropriate fine, $2,000 for count one (1) of the “Fleet” charges. Mention was made that LWS was the only company involved in this charge where there is evidence of an effort to comply with the law, as well as being the only one left in the dark about the status of the respective COA’s. Defence notes that there are no previous offences for LWS for this charge.
[54] Speaking to counts two (2) and three (3), of the Ottawa “Fleet” charges, Defence notes that both of the other convicted parties were fined the same amount of $1,250 per count. The argument was again made that the originator/hauler has the primary responsibility to know the law and carry the proper permits. The fact that there were only a total of two LWS loads, due, according to the Defence argument, to the LWS checking the status of the hauler and stopping shipments when the error was discovered, is significant. This diligence should, it is further argued, be reflected in a lower fine. Based on this, Defence suggests a fine of $1,000 each on counts two (2) and three (3) for a total of $2,000 as opposed to the Crown’s submission for $5,000 per count.
[55] Dealing with the issue of sampling and counts six (6), eight (8) and twelve (12), Defence rejects the Crown’s submission for $25,000 per count and counter submits that any penalty should not exceed $5,000 per count. Defence argues that the only comparable precedent is the 2005 LWS (Crown’s Sentencing Brief) case where there was no PCB analysis over the eight loads, and they were fined $10,000 (which amounts to $1,250 per load). The suggested $5,000 per count is significantly higher than the $1,250 per load amount.
[56] Defence noted, in the current conviction, that the Court found all of the loads were sampled and analyzed. The issue for the Court was one of the methods employed regarding representative sampling for certain loads, or, to put it another way, the lack of necessary sampling techniques, given the documentation presented at trial.
[57] Defence submitted the following four cases concerning the sampling charges, beginning with Regina vs. Ultramar (2011) which involves discharging waste water for 17 months without sampling. The fine was $3,000. Grab samples were to be taken to ensure that the effluents met certain criteria.
[58] Regina vs. New Reinland Mennonite Church involves three (3) counts with one of failing to take grab samples, regarding sewage with a fine of $3,000.
[59] Regina vs. Waterdown Garden Supplies is seen by Defence as more comparable to the case at hand where the company pleaded guilty to failing to analyze waste prior to acceptance on two (2) counts of failing to take samples. They were fined $5,000 per count.
[60] Regina vs. Grant’s Transportation involved the requirement to do routine monitoring of waste oil. They used the wrong test, failed to routinely monitor waste oil and were fined on count one (1) $1,000 and $2,000 on count two (2). The higher fine reflected the continued failure regarding an order.
[61] Regarding count fifteen (15), Defence argues that the Court finds itself in a peculiar circumstance as the previous charge of storing a “lugger” box in an area not allowed is no longer an offence. The Ministry has allowed a change in the amended COA that now makes it legal and corrects, from the Defence perspective, a minor problem. Defence argues that the environmental problem, as was raised in argument during the trial, has no teeth given that nothing has changed at that site with the exception that storage is now allowed. The evidence submitted at trial by the Ministry official who conducted the original, on-site inspection confirmed that the “lugger” box was not on the ground very long. LWS indicated that they were simply sampling and that took about 45 minutes. Regardless, this practice is now allowed.
[62] Defence submitted the following three cases, commencing with Regina vs. Lafcorp Inc. (2011) involving the storage of tires outside, contrary to their COA which was subsequently modified to allow this activity. They were fined $4,000 per count (total of $8,000). Accordingly, Defence proposes a fine of $4,000.
[63] Regina vs. Villeneuve was also reviewed. They plead guilty to a number of charges including storing material outdoors and their fine was $2,000 plus $500 for storing waste in the wrong container.
[64] Regina vs. Turtle Island Holdings Corporation plead guilty and was fined $5,000 for storing waste materials outdoors.
[65] Defence also raised the issue of why the company was not just simply warned in this storage issue. The point was made that the Ministry could have pointed out the error of storing a lugger box for analysis in a non-storage area, as they have done with other companies, and the company would have complied. Given that the Ministry has now approved the use of that space, with no apparent concern about environmental issues, why then were public and private resources required resolving what is obviously a minor concern, even according to the Ministry? It is the Defence position that this should play a role in penalty.
[66] The Lafleche charge, count one (1), found in the Cornwall Information comes with a high minimum fine of $100,000. Defence contends that LWS is overly affected by a previous record whereas other companies have changed their corporate name or structure thereby avoiding a tainted past. Defence noted their concern over the initiation of the minimum penalty based on the current conviction and previous record given their earlier comments on the company’s record and the circumstances surrounding this conviction.
[67] There is no evidence of any environmental harm related to the conviction. The hazardous waste was at all times in a segregated area and removed by LWS immediately upon request. LWS did not protest, deny or even take their own sample for their own analysis. Importantly, they were not the generator of the waste. They are a transfer site meaning that the ‘PERC’ came from someone other than LWS. To date, no one has been held accountable except for LWS. No generator has been charged.
[68] In concluding, Defence argues that none of the previous convictions are truly comparable to the current convictions. Additionally, LWS is a small company with only 35 employees. The offences were not committed intentionally while substantial efforts were made to stay in compliance. These include fencing, paving, computer tracking, monitoring entry, and hiring a consultant for training of a previous Environment Manager. LWS has apparently lost $200,000 a year by no longer taking environmental waste to the Lafleche site. It now goes to a new Newalta facility. The argument is that the company has made substantial changes to meet all of their legal requirements at significant cost.
[69] Defence argues that there is no comparable history of convictions with LWS and that a prior record with the Ministry, for other offences, does not apply to this conviction.
[70] Also, during the trial proper, the Court heard from numerous LWS employees regarding training and their awareness of their jobs which is proof that the company has significantly improved how it operates.
6.0 DECISION OF THE COURT
[71] Lacombe Waste Services (LWS) stands convicted of eight (8) offences which are found collectively in the Ottawa Information and the Cornwall (Lafleche) Information.
[72] The Court is well aware of the seminal Cotton Felts decision, including subsequent case law, regarding the importance of upholding the regulatory fabric of legislation that seeks to enforce environmental standards including the protection, safety and well-being of persons wherever they may be located. In consideration, the Court will take into account such factors as a prior record, prescribed penalties, the business size and scope of the company, ability to pay, extent of actual or potential harm, the balancing of appropriate penalties without harshness, along with actual remorse, within the context of general and specific deterrence.
[73] The Court intends to give some weight to the record that Lacombe Waste Services has accumulated over twenty three years. To do otherwise, would be to ignore the axiom that “nothing predicts future behaviour like past behaviour.” However, the Court is also cognizant of the consideration for a nexus between current and past convictions.
[74] Based on the Prosecution Disposition Reports (PDR’s) submitted in the Sentencing Brief of the Crown, Lacombe Waste Services, and on occasions, the two executive officers, have, in total, been convicted on five previous occasions for various violations under the Environmental Protection Act (EPA) of Ontario. These dates are 1988, 1992, 1995, 2001 (2005 date of Appeal Decision), and again in 2005. Lacombe Waste Services (LWS) has now accumulated a sixth conviction from 2011. This is concerning to the Court.
[75] Over the five past convictions, there are two counts that stand out. That is to say, there are only two counts that the Court recognizes as being directly related to the current convictions, now subject to sentencing. The Court acknowledges that there have been other convictions which relate to the Ottawa Information, specifically count fifteen (15) regarding storage (which would include the general operational aspects of storage, containers, location, etc.) and that will be dealt with separately. The two related counts are: Count four (4) from the most recent 2005 conviction (LSB File #: 02-1789), “Failing to ensure that all incoming wastes were properly analyzed.” On this count, LWS was fined $10,000 corporately with $2,000 individually to the two directing officers. The only other significantly related conviction is that of “sewer dumping” in 1988, for which the company was fined $125,000. The Court recognizes some connection to the charge of depositing hazardous waste at the Lafleche (Cornwall) site in Moose Creek, Ontario.
[76] Concerning the Ottawa Information, there are three offences (counts 1, 2 and 3) that fall under what became known as the “Fleet” charges, which involved permitting the transportation of waste in unapproved vehicles. Counts 6, 8 and 12 involve failing to take representative samples, and count fifteen (15) involves storing waste in an unapproved area (the “lugger” box charge).
[77] The final conviction involves the Cornwall (Lafleche) Information. Count one (1) concerning the depositing of hazardous waste at a non-hazardous landfill site. This is the most serious conviction involving the chemical substance which is known by the acronym, “PERC” and some explanation has been previously given regarding this hazardous chemical. The Crown argued that based on past performance and the manner in which LWS performed regarding this charge that they acted in a reckless fashion.
[78] Dealing with count one (1), of the Ottawa Information, known as the “Fleet” charges, the Prosecutor is seeking a fine of $20,000. This is larger than the fines sought for counts two (2) and three (3), reflecting the quantum of occasions that Quebec loads were illegally transported without Certificates of Approval (COA’s), from the Ministry.
[79] The Prosecutor notes that Veolia, the generator, without a prior record, was fined $8,000, and the hauler, Vacuum Drummond, $3,500 for count one (1).
[80] Also, the Prosecutor draws the Court’s attention to the fact that these offences occurred so soon after the previous convictions, in 2005, for other offences.
[81] Defence is proposing a fine of $2,000 based on a previous court classification of the hauler as having primary responsibility for assuring that there is an active COA and that all conditions are followed while LWS had a secondary responsibility. Indeed, the argument is made that there is no prior record for this conviction and that LWS did make reasonable efforts, even if below what the Court expects, to obtain written proof of an existing COA. The argument is that they were left out of the Veolia/Vacuum Drummond loop even when those companies became aware of the COA problem. The argument was made that they were duped by the other companies.
[82] Nevertheless, LWS cannot be treated as a ‘dupe,’ given the serious responsibilities that all players have in safeguarding the health and safety issues embodied in the EPA. This is not a field where one can be casual about the strictness of rules and regulations.
[83] Neither does the Court subscribe fully to the notion that there is an allocation of lesser responsibility amongst the various players, which presents a scale to assess fines to the superior and subordinate players. Each player must be a part of the solution to any problem that can so easily be passed along through the various connected channels. If each one does their duty, the likelihood of flow-through errors would greatly be diminished.
[84] LWS has five previous convictions that cover various infractions. Although most do not relate directly to the current convictions, they must be considered by the Court as aggravating given what appears to be a concerning pattern of violations.
[85] Nevertheless, it would be patently unfair to penalize LWS at the $20,000 level given their initial attempt to adhere to the requirements, and demand proof by way of COA authority, the lack of repetition of similar convictions, and the actions of the generator and hauler.
[86] Similarly, the Defence position of a fine of $2,000 is not consistent with the required actions of the receiver or the length and variety of the company’s record.
[87] In taking into account the fines applied to the Quebec entities, the cases submitted, that there is no previous conviction, the previous LWS record, and, although there was a lack of follow-up, the effort that was made by LWS, the Court finds that a fine of $5,000 on count one (1) is appropriate and balances both the general and specific sentencing principles with the specifics of the case at hand.
[88] For counts two (2) and three (3), Defence seeks fines of $1,000 per count while the Crown seeks fines of $5,000 on each of the two counts. These circumstances are lesser to count one (1) and the Court finds that an appropriate fine on each count, given the submissions, is $2,500 per count.
[89] Regarding the sampling convictions, counts six (6), eight (8), and twelve (12), the Crown is seeking fines of $25,000 per count. Defence counters with arguments for a maximum of $5,000 per count.
[90] Defence notes that in the Ultramar case the fine relating to failing to take monthly grab samples was $3,000; in New Reinland, again for grab samples there was a fine of $3,000 per count (3); in Waterdown Garden $5,000 per count regarding failing to analyze waste material; and Grant’s Transport was fined $1,000 and $2,000 on counts regarding routine monitoring of waste oil.
[91] Clearly, the 2005 LWS conviction for failing to ensure that all incoming wastes were properly analyzed with a fine of $10,000 is concerning to the Court. This also involved individual fines of $2,000 each to George Neilson and Tom Neilson.
[92] However, the Court recognizes that, in all cases, sampling and analysis was actually performed, even though, in these three counts, it was not properly done, given the documented findings regarding the incoming material and the need for external testing (see the comments about the GC/MC testing equipment and TCLP protocol). Nevertheless, LWS is given some consideration for having a sampling regime in place and this effort is recognized by the Court even in the face of a previous record.
[93] Additionally, the fact that LWS had purchased a GC/MS analytical device is not helpful. It was not operational at the time. Besides, there was no evidence before the Court to indicate any urgency or compulsion to use this equipment for those samples even given the need for an external TCLP testing regime.
[94] The Court has before it Defence cases that indicates a range of between $1,000 and $5,000 per count although this is only helpful in a limited fashion given the circumstances of the case and the previous conviction.
[95] The Court also recognizes that the previous (2005) fine of $10,000 was on eight loads that were not analyzed.
[96] The other side of the coin is the fact that LWS chemists and management, all levels, should have looked to external analysis given the documented findings. In this highly regulated business, the expectation is to err on the side of caution.
[97] Based on all of this, the Court is not inclined to reduce the fine below the previous conviction. Also, given the mitigating reasons already enunciated, the Court is neither prepared to acquiesce to the Prosecutor’s request for fines of $25,000 per count.
[98] The net effect to LWS, and the individuals, in the 2005 decision were fines of $14,000 ($10,000 to the company, and $2,000 to each of the principals). The Court recognizes the need to set fines that strongly encourage the company to fully comply with the legislation, recognizing past performance, and keeping in mind what is appropriate and fair under the circumstances.
[99] Therefore, given the above information, the Court is prepared to set the fine per count at $10,000 each on counts six (6), eight (8), and, twelve (12).
[100] Count fifteen (15) is complicated by the fact that in 2011, LWS successfully negotiated a new COA with the Ministry that now allows storage in the exact location of the offence. The Court recognizes that storage can be a dynamic system, although the effect of changes to the design and operation of the facility mitigates against the efficacy of financial penalties to change behaviour.
[101] The Crown is asking for a fine of $15,000. The Court notes a previous conviction for failing to use an approved storage tank, although that is not exactly identical to this charge. In that case from 2001, LWS was fined $7,500 and the two principals were each fined $2,000.
[102] Defence is asking for a fine of $4,000 based primarily on the Lafcorp case from 2011 with similar circumstances.
[103] Other than that, Defence cases ranged from $500 for Villeneuve Backhoe and Trucking to $5,000 regarding Turtle Island Holdings for storing waste materials outdoors.
[104] The Court does not find the casebook examples particularly useful in this situation although Defence makes a good case for the similarities with Lafcorp case.
[105] The company should not escape a fine, and yet the fact that the Ministry has approved the exact location for storage is a substantial factor. There is no evidence of any danger or environmental impact and this additionally limits the intended effect of sentencing. Similarly, as noted, there is no clear precedent to follow.
[106] The Court accepts the Defence arguments and finds that the appropriate fine should be $4,000 on count fifteen (15).
[107] Turning to the final count, the Cornwall (Lafleche) Information, count one (1). The minimum fine is $100,000 and both the Crown and Defence have agreed on the appropriateness of the minimum being imposed.
[108] Defence submitted cases including R. vs. Poly-Pacific International (2009), R. vs. Rose Mechanical, and R. vs. Waxman Recycling that were considered by the Court. The Poly-Pacific case involved transporting a hazardous waste (spent PBM) via companies without valid COA’s; the Rose Mechanical case involved transporting hazardous waste to an unapproved site; and, Waxman Recycling involved depositing hazardous waste on an unapproved site. There was no record of any previous convictions and the circumstances of these cases varied enough from the LWS case to only warrant their recognition.
[109] The Court is of the opinion that the minimum sentence is appropriate based on the evidence and would not have favoured a higher fine as the circumstances did not warrant it. The Court will acquiesce to their submissions and will impose the $100,000 fine, on count one (1).
[110] The Court wishes to address the Crown’s “principle of totality” issue. This is where the Crown noted that their acceptance of the minimum fine on count one (1) of the Cornwall (Lafleche) Information was conditional on the imposition of the other Crown recommended fine structure. Clearly, the Court cannot acquiesce to this request given the aforementioned comments on each conviction. The Crown’s position, as with the Defence position, is respected by the Court and serves as valuable guidance in rendering a decision. The Court’s decision reflects those opinions, case law, and the peculiarities of each independent conviction based on the circumstances. In the end, the totality is what it is, nothing more, and nothing less.
[111] The final word should go to Tom Neilson, President of Lacombe Waste Services, who noted in submissions that, as the current President of Lacombe Waste Services, he does not want to return to court. That may be difficult to accomplish for a business in such a highly regulated field, but the Court does not doubt his sincerity.
Released: January 31, 2012 Signed: “Justice of the Peace B. Mackey”