Court Information

Court: Ontario Court of Justice, Central West Region

Court File No.: 10-3097

Decision Date: December 14, 2012

Location: City of St. Catharines

Parties

Between:

Her Majesty the Queen

-and-

Hernder Farms Limited and Gottfried Hernder

Appearances

For the Crown (Ministry of the Environment):

J. Herlihy (supplemental submissions prepared by A. Bednar)

For the Defence:

M. O'Brien

Proceedings

Proceedings conducted June 6, 8 and 9, 2011 at the City of Welland, Ontario and September 28 and 29, 2011 at Fort Erie, Ontario. On June 22, 2012, the Court requested supplementary submissions, which were provided over the months of October and November, 2012.

Statutes Considered or Cited

Environmental Protection Act, R.S.O. 1990, c. E.19, as amended (hereinafter "EPA")
Ontario Water Resources Act, R.S.O. 1990, c. O.40, as amended (hereinafter "OWRA")

Cases Considered or Cited

Witnesses

Linda Gabriele, Abatement Officer, Niagara District office of the Ministry of the Environment
Chris Hernder, son of the defendant, Director and employee of Hernder Farms Limited
Gottfried (Fred) Hernder, defendant, President and Director of Hernder Farms Limited
Dirk Hughes, currently Senior Environmental Technician for the City of St. Catharines
George Huupunen, witness for the defence
M. Kilian, Land Use Planner, Niagara Escarpment Commission
Pakwing Mak, Technical and Enforcement Specialist, Ministry of the Environment, admitted as an Expert Witness
Chris Medland, Environmental Officer at the Niagara District Office of the Ministry of the Environment
Kenneth John Simmons, Senior Environmental Officer in the Niagara District Office of the Ministry of the Environment
Alphie Wolf, Public Health Inspector with the Niagara Region Public Health Department

Decision of the Court

Conviction

For the reasons set out below, the Court is satisfied that the Crown has met its onus and proved each of the elements of each of the charges before the Court, and, as a result, convictions are entered. The Court invites submissions as to penalty.

Background and the Proceedings

The Charges

Hernder Farms Limited and Gottfried Hernder are separately charged under the OWRA, as follows:

Hernder Farms Limited stands charged that on or about the 19th day of June 2008 at 1607 Eighth Avenue in the City of St. Catharines of the Regional Municipality of Niagara, did commit the offence of discharging or causing or permitting the discharging of material, namely raw sewage to any waters which impaired the quality of the water of any waters, namely a tributary of Richardson's Creek contrary to section 30 subsection (1) of the Ontario Water Resources Act, R.S.O. 1990, Chapter 0.40 as amended thereby committing an offence under section 107 subsection (1) of the said Act.

And further, Hernder Farms Limited on or about June 19th 2008 at 1607 Eighth Avenue in the City of St. Catharines, Regional Municipality of Niagara, did commit the offence of operating a sewage works for which an approval was required without the approval having being granted contrary to section 53 subsection (5) of the Ontario Water Resources Act, R.S.O. 1990, Chapter 0.40 as amended, thereby committing an offence under section 107 subsection (1) of the said Act.

And further, Gottfried Hernder, on or about June 19th 2008 at 1607 Eighth Avenue, in the City of St. Catharines, Regional Municipality of Niagara being a Director did commit the offence of not taking all reasonable care to prevent the Corporation of Hernder Farms Limited from causing the discharge of raw sewage that impaired the quality of the water of a tributary of Richardson's Creek, contrary to section 116 subsection 1 of the Ontario Water Resources Act, R.S.O. 1990 chapter 0.40 as amended thereby committing an offence under section 107 subsection (1) of the said Act.

Preliminary Matters

Gottfried Hernder is commonly known as Fred Hernder.

The proceedings commenced by way of a sworn Information and summons, setting out the charges, dated 11 June, 2010.

A judicial pre-trial was conducted in the matter on September 9, 2010 and the matter was set for trial thereafter.

Gottfried Hernder entered a plea of not guilty on his behalf, as well as on behalf of the corporate defendant to all charges.

Overview of the Case

Relevant Statutory Provisions

The relevant sections from the OWRA provide as follows:

Purpose

The purpose of this Act is to provide for the conservation, protection and management of Ontario's waters and for their efficient and sustainable use, in order to promote Ontario's long-term environmental, social and economic well-being.

Definitions

In this Act, (inter alia):

"sewage" includes drainage, storm water, commercial wastes and industrial wastes and such other matter or substance as is specified by the regulations; and
"sewage works" means any works for the collection, transmission, treatment and disposal of sewage or any part of such works, but does not include plumbing to which the Building Code Act, 1992 applies

Deemed Impairment

For the purposes of this Act, the quality of water shall be deemed to be impaired by the discharge of material if the material or a derivative of the material enters or may enter the water, directly or indirectly, and:

(a) the material or derivative causes or may cause injury to or interference with any living organism that lives in or comes into contact with:

(i) the water, or
(ii) soil or sediment that is in contact with the water;

(b) the material or derivative causes or may cause injury to or interference with any living organism as a result of it using or consuming:

(i) the water,
(ii) soil or sediment that is in contact with the water, or
(iii) any organism that lives in or comes into contact with the water or soil or sediment that is in contact with the water;

(d) a scientific test that is generally accepted as a test of aquatic toxicity indicates that the material or derivative, in diluted or undiluted form, is toxic;

(e) peer-reviewed scientific publications indicate that the material or derivative causes injury to or interference with organisms that are dependent on aquatic ecosystems; or

(f) the material or derivative has a prescribed characteristic or is a prescribed material.

For the purposes of this Act, water shall be deemed to be impaired if the quality of the water is deemed to be impaired.

Subsections (3) and (4) apply to all water, including the water of any water, watercourse or other waters.

Discharge Prohibition

Section 30(1): Every person that discharges or causes or permits the discharge of any material of any kind into or in any waters or on any shore or bank thereof or into or in any place that may impair the quality of the water of any waters is guilty of an offence.

Sewage Works Approval

Section 53(1): No person shall establish, alter, extend or replace new or existing sewage works except under and in accordance with an approval granted by a Director.

Section 53(5): No person shall use or operate sewage works for which an approval is required under subsection (1) unless the required approval has been granted and complied with.

General Offence

Section 107(1): Every person that contravenes this Act or the regulations is guilty of an offence.

Director Liability

Section 116(1): Every director or officer of a corporation has a duty to take all reasonable care to prevent the corporation from:

(a) discharging or causing or permitting the discharge of any material, in contravention of:

(i) this Act or the regulations, or
(ii) a licence, permit or approval under this Act

Environmental Protection Act

Reference is also made to the EPA, as follows:

Definition of Adverse Effect

In this Act, (inter alia):

"adverse effect" means one or more of:

(a) impairment of the quality of the natural environment for any use that can be made of it,

(b) injury or damage to property or to plant or animal life,

(d) an adverse effect on the health of any person,

(e) impairment of the safety of any person,

(f) rendering any property or plant or animal life unfit for human use,

(g) loss of enjoyment of normal use of property, and

(h) interference with the normal conduct of business

Discharge Prohibition

Section 14(1): Subject to subsection (2) but despite any other provision of this Act or the regulations, a person shall not discharge a contaminant or cause or permit the discharge of a contaminant into the natural environment, if the discharge causes or may cause an adverse effect.

Important Note on Statutory Changes

Section 53(5) was repealed subsequent to the charge being laid. There is no information before the Court relating to the repealing of that provision.

Investigation Background

Hernder Farms Limited and Gottfried Hernder (hereafter, collectively, "Hernder") are charged as a result of an investigation conducted, initially, by the City of St. Catharines Public Health Department.

Corporation documents confirm that Hernder Farms Limited is a corporation registered with the Province of Ontario, with its place of business located at the subject site. Gottfried Hernder is listed as First Director and President of the Corporation. These points are not in dispute.

The Property and Sewage Systems

Physical Layout

On the Hernder property are several "installations", including a septic tank and/or "pumping station" located westward and downhill from the parking lot adjacent to a large building housing various parts of the Hernder winery operations. To the west of that location is a "class four leaching bed system" which is designed to allow sewage to be dispersed into the ground. These "installations" formed part of an application for approval filed by Hernder in the early to mid 1990's, but for which approval was not granted until sometime in 2009.

There is also a septic system located to the south side of the buildings on the property, which pre-dates the contested system.

Crown's Case Summary

Fundamentally, the Crown's case is that Hernder installed a septic system without approval, that the system eventually leaked and discharged effluent to the ground surface, and that that effluent eventually made its way into a watercourse, causing pollution.

Issues in Dispute

It appears, from a reading of the submissions, that there are a number of issues in dispute:

(a) Was there a sewage system in place that required approval and operating on the day set out in the charge?

(b) If so, had approval been granted?

(d) If so, did that discharge make its way into the watercourse? And

(e) If so, did such discharge "impair" the waters?

(i) As a condition precedent to this, is the Crown expert, Mr. Mak, biased on such a way as to exclude his evidence from consideration?

(f) Further, was any discharge sufficient to exceed any threshold that might exist as a result of a de minimus non curat lex argument?

(g) In the event that the Court is satisfied that there was an operating but unapproved septic system, did Fred Hernder meet his burden of proving, on a balance of probabilities, that he exercised due diligence in the operation of such a system, and is thus excused from liability?

Supplementary Submissions

Prior to 22 June, 2012, when the Court had originally anticipated rendering its decision, it became clear that the parties had not addressed themselves to certain aspects of the evidence before the Court. Consequently, the Court invited submissions on:

(a) what import attached to the decision of the Ontario Court of Appeal in R. v. Castonguay, released after submissions by the parties had been completed

(b) what criteria might apply to determine a threshold below or above which the de minimus non curat lex argument might apply, and

(c) the impact of elements of documentary evidence submitted as part of the Crown case, but which had not previously been addressed in submissions

and incorporated consideration of those submissions in these reasons.

The Evidence

Fred Hernder's Background

Fred Hernder was born and raised in the area and has been involved in farming his whole life. He advised that he left school without completing grade eight.

Fred Hernder advised that he incorporated his business in 1972 and acquired the subject property in 1988. At the time of the acquisition, there were a number of structures and (presumably) some septic systems. Fred Hernder sold a part of the property to the south west (the Kelly property), comprising of one acre and a "duplex" structure, at about the same time.

System Components

To assist in reference for the purpose of entering evidence and this decision, the parties notated one document submitted in evidence, identifying a number of components of the sewage system(s) on the property. This includes tanks numbered from one to five, and tile beds numbered A, B and C. For the purposes of this decision, tanks 2 and 5 are implicated, as is tile bed C.

There is also a septic system located to the south side of the buildings on the property, which pre-dates the contested system.

1995 Approval and Expansion

In or around 1995, Fred Hernder had plans to expand his operation and made appropriate applications for development approval. As part of this process, he accepted a need to submit a plan for an expanded sewage system. That application was approved, by way of a document entitled "Conditions of Use Permit Hernder Estate Winery, 1607 8th Avenue, St. Catharines", dated 21 December, 1995. This document is signed by himself and David Young for the Niagara Region Public Health Department. It contains two statements, as follows:

(a) The applicant and owner of this property agrees to accept the engineering design and installation of the sewage disposal system located on the south side of Hernder Estate Winery (emphasis added), and

(b) The applicant and owner of this property agrees to expand and repair and/or relocate this sewage system should it fail to function in accordance with the Environmental Protection Act.

The components at the south end of the property include tank 2. Tank 5 is located to the west of the facility expanded in 1995, and bed C is located to the western perimeter of the Hernder property.

Tank 5 and Backup System Installation

In the course of that application being processed, Fred Hernder asserts that Public Health department officials suggested installation of an additional "backup system" in case the primary septic systems became overwhelmed. A holding tank (tank 5) was in fact installed at that time; the leaching bed to the west side of the property (bed C) was also installed at that time. A review of the plans submitted prior to the 1995 approval do not reveal either tank 5 or the line running from tank 2 to tank 5. There was an indication of the leaching beds to the west margin of the property (again, by agreement, labelled "C"), however, there is a line on the engineer's drawing connecting that directly to the banquet hall.

2001 Ministry Discussion

In or about 2001, Fred Hernder participated in a discussion with Mr. Taylor, a representative of the Ministry of the Environment. Mr. Kilian advised in the course of his evidence that a permit was required for the operation of the system to the west of the banquet hall, indicating that he had not been able to locate any permit for that part of the Hernder system. It is undisputed that, by that time, tank 5 and bed C had been installed, meaning that any application was for "after-the-fact" approval.

Shift in Regulatory Authority

The need for a further Application arose, in part, it would seem, as a result of a reassignment of responsibility for approving and monitoring septic systems, moving that responsibility from public health units to the Ministry of the Environment.

Fred Hernder's Efforts to Obtain Approval

Fred Hernder insisted that approval had been granted (and relies on Exhibit 7 in support of this proposition), however, at the time, he was unable to produce any documents in support of this, in spite of what he describes as significant effort. He tried to track down staff from the public health department, at least one of whom, by now, had retired. Accordingly, Mr. Hernder engaged a new engineer to assist him and submitted updated plans in 2001.

August 2000 Public Health Letter

Holding tank 5 was not indicated on the 1995 plans nor was the line from tank 5 to tank 2. It is agreed that the Public Health Department did issue a letter addressed to the City of St. Catharines Building Department on August 9, 2000, which reads in part "Enclosed you will find the "System Design" proposed by Mr. Hernder's consulting engineer. The Department approved of this design and system as it was installed." It is not clear why this was issued, what flowed as a result of its issuance, or what exactly was captured by the scope of such approval. In fact, the Court heard no evidence in respect of this document; it was simply submitted as part of a multi-page document tendered as an Exhibit by the Crown, on consent.

Professional Contractors

Fred Hernder maintains that he engaged reliable engineers/specialists and contractors to design and install the approved systems. He reports changing contractors after developing some dissatisfaction with his earlier contractor as early as 1976, and has enjoyed a good relationship with his new supplier since then.

Rainwater Infiltration Issues

It is his recollection that, after being given direction to install the system (in or about 1995) to the west of the property, he came to believe that one reason the systems to the front or south of the property were being overwhelmed was due to excess rainwater infiltrating the system. As a result, the need for the backup became less urgent.

Regulatory Authority Transfer

Mr. Wolf advised that, as an employee of the Region of Niagara, he is involved with drinking water legislation. He advised that, prior to 1998, the Region also had responsibility for approval of septic systems, however, this responsibility migrated to the Ministry of the Environment at that time.

He further advised that, based on a search of records available to him, there was no approval or Certificate of approval for the septic system described as being to the west of the main Hernder operation, and including holding tank 5. He was not asked whether the approval in 1995 could have included holding tank 5 and/or leaching bed "C".

Ministry Directive to Lock Out System

Mr. Simmons also gave evidence of a conversation between himself and Fred Hernder dating to sometime in the years 2000 through 2002, during which Mr. Simmons advised Mr. Hernder that the system to the west of the banquet facility should be locked out of use until it could be properly approved. It was Mr. Simmons' understanding that approval had not been granted for want of, among other things, a hydro geological study.

Niagara Peninsula Conservation Authority Requirements

Speaking to the reason for the difficulty in obtaining approval for the newly submitted application in the early 2000s, Mr. Kilian contacted, among others, the Niagara Peninsula Conservation Authority, which expressed a particular concern. Specifically, the Niagara Peninsula Conservation Authority mandated that the part of the piping running below the watercourse needed to be double lined, or encased in an outer sleeve. Fred Hernder did not accept that this was required and did not make any change to the installation to accommodate this.

2008-2009 Approval Process

The issue eventually came to a head in or about 2008 when Hernder made a subsequent application for development of a vinegar operation. Since the Peninsula Conservation Authority held out that the further development would be contingent on regularizing the earlier Application, Hernder eventually agreed to make the change which had been demanded in the early 2000s, and subsequently received the approval which had been requested in the early 2000s. The approval was dated March 10, 2009.

Mr. Kilian concedes that as early as 2001 Mr. Hernder's engineering consultant may have communicated a willingness to address the Niagara Peninsula Conservation Authority concerns. That said, Mr. Kilian reported his impression that, based on conversations he had with Mr. Hernder, Mr. Hernder himself did not see the need for the required changes to be made. The outer sleeve was not, to Mr. Kilian's understanding, installed until the spring of 2009. This is consistent with the evidence of Fred Hernder.

Kenny Property Incident

Chris Hernder gave evidence that approximately two months prior to the investigation relating to the charges which are the subject of this decision, he had been called to the Kenny property to assist a tenant with their septic system. It appears that the occupant at that property was experiencing problems with the system which was backing up; the occupant wanted to remove the top to allow the tank to be pumped out. After unsuccessfully trying to remove the top with pry bars, Chris returned to the farm to get a back hoe and eventually used chains to successfully remove the top. As a result of this, there was a gush of water out of the top, running almost the full diameter of the tank (being two feet across) and spilling almost six inches above the top of the tank. Chris Hernder advised that the effluent was just grey water, but eventually, saw feces and toilet paper spread across the yard and along the hillside.

Investigation and Discovery

Initial Water Quality Testing

The current charges stem for an investigation triggered in or about May, 2008, during a routine exercise to check water quality, students employed by the City of St. Catharines under a "Seepage Vapour" programme collected water samples which they found to be (potentially) contaminated with e-coli, leading them to suspect the entry of pollutants to the watercourse. Initial testing indicated elevated e-coli levels in the water. This evidence was put before the Court only for the purpose of explaining what triggered the investigation that ensued, involving City, Regional and Ministry of the Environment employees.

Follow-up Investigation

A further sample was tested to confirm the initial results, and staff followed up and conducted further inspections. Mr. Hughes, responsible for this initiative, contacted the Building Inspector responsible for plumbing issues, as well as Mr. Simmons of the Ministry of the Environment, and Mr Wolf from the Public Health Department. Diane Allan-Zwart from City staff and Mr. Medland from the Ministry of the Environment also attended the site on June 19th, 2008.

June 19, 2008 Site Visit

This group of people assembled at a point on 8th Avenue where the watercourse crosses below the road, and began to follow the path of the watercourse. After arriving at a point where Mr. Hughes had earlier attended in the company of the students described above, the group of people observed discoloured water. The bank to the side of the hill closer to the developed Hernder property was "mushy", and featured a noticeable growth of wild vegetation, which they followed uphill. At a point about half way up that hill, they observed a pool of water. There is some inconsistency as to how large was the pool, how much water was pooled and as to whether there was any movement to the water. Mr. Hughes described discharge as "oozing out of the ground". The pool and any emanations from the ground were not immediately visible due to thick foliage, but was only located as a result of tracking the path of apparent discharge uphill from the point of apparent discolouration in the watercourse. It is clear that there was no water "geysering" from the ground, but any water would perhaps better be described as "percolating" out of the ground.

Pool Observations

Mr. Simmons offered that the water formed a pool or pond, and he estimated that the flow into and from this pool was approximately one litre per minute. There was no scientific basis or measurement used for this simple estimate or guess. Others described the pool as ranging from non-existent, through almost dry, through twelve inches across with no estimate of depth. It was, however, deep enough to allow Ministry staff to collect samples for testing.

Location and Vegetation

The only other evidence of the location of this water percolating from the ground was that it was some fifteen to twenty feet distant from the watercourse itself, and that the area between the location where it emerged from the ground to where it entered the watercourse was distinctive, and described as mushy. In addition, photos taken on June 19th and evidence of those who made concurrent observations suggest that the area featured more abundant and lush growth than the surrounding area.

Discovery of Tank and Control Box

Ensuing physical inspection of the surrounding area lead staff to an electrical control box and apparently a related septic/holding tank referenced in paragraph 12. It is disputed as to whether the switch on the control box was locked out or not. There is no evidence that there were any noises such as would emanate from a pump that could be heard at the time of the visit.

Contact with Fred Hernder

On June 19th, 2008, Mr. Hughes together with Mr. Simmons unsuccessfully sought out Mr. Hernder or one of his children (known to be actively involved in directing operations). Being unable to locate such a person, he left a message with staff for Mr. Hernder to contact Mr. Simmons. Mr. Hernder did contact Mr. Simmons on the 19th of June, and reported that he had arranged for the area where the pooled water had been observed to be excavated.

Pipe Crack Discovery and Repair

Later evidence confirmed that there was a crack to a pipe downhill from tank 5 and that Mr. Hernder had arranged for this crack to be repaired.

Water Sampling

Prior to leaving the property on the 19th, Simmons and Medland took samples of the ponding fluid, which samples were later tested. There is no issue with respect to improper sampling procedures or continuity with respect to possession of these samples. Results from this testing were tendered in evidence.

June 20, 2008 Follow-up Visit

Mr. Medland and Ms. Gabriele gave evidence of a follow up visit to the site on June 20th. Once again, they were unable to locate any of the Hernder family members responsible for operations and conducted a further inspection of the area around the excavation and watercourse. Ms. Gabriele recorded values obtained from a field testing device relating to temperature, pH levels, dissolved oxygen and a concentration in percent and in parts per million and conductivity. Normal pH levels were reported to be between 6.5 and 8.5 or 9. Oxygen levels express the amount of oxygen available to aquatic life, with a level below four parts per million being of concern. Conductivity relates to the level of salts in the water.

Water Quality Test Results

Results were recorded for six samples; one was upstream from the location in issue, one at the location in issue, three downstream from that point, and a final one apparently off the Hernder property. Results from this testing are set out in the table below:

Location Number	Location Description	Temperature (°C)	pH Level	Dissolved Oxygen (ppm)	% Dissolved Oxygen	Conductivity
1	Upstream from where the discharge entered the watercourse	21	7.95	11.6	140.5
2	At the point where the spill entered the watercourse	22.7	7.81	8.52	99.4	1271
3	Point downstream where watercourse "turns" north	14.45	7.61	7.02	73.4	1336
4	Point downstream just beyond a concrete culvert	15.28	7.45	4.06	42.7	1288
5	Point downstream before watercourse converges with another watercourse	19	7.6	7.58	82.3	1265
6	Off the Hernder property, about one kilometre downstream	20.2	7.5	6.06	67	1128

Interpretation of Test Results

Ms. Gabriele gave information about her limited understanding of the significance of these numbers. For example, she advised that she understands that these measures would signify. She advised that she has no understanding of the impact of water temperature. She advised that pH levels outside of a range of between 6.5 and 8.5 or 9 range would indicate the presence of something to make the water more acidic or alkaline. However, she did not explain how being more acidic or alkaline would impact the environment. She advised that she would understand that a reading above 4ppm would be acceptable. And, she was unable to explain how conductivity would matter.

However, Mr. Mak did explain (more detail on his evidence below) that availability of dissolved oxygen (expressed as a percentage) is consistent with diminished oxygen available in the water as a result of biochemical oxygen demand (BOD) reflecting presence of material in the water that uses up oxygen, thereby depriving other things in the natural environment from access to this oxygen.

Cleanup Progress

Mr. Simmons further gave evidence regarding the progress of the cleanup of any discharge into the watercourse. It is perhaps notable that, in spite of comments within his hearing that a cleanup had not been completed by June 25th, 2008, he made no further efforts to confirm the cleanup had been done, believing that, having directed Mr. Hernder to attend to the matter, it would be done.

Defence Evidence

Fred Hernder's Account

With respect to the day in question, June 19, 2008, Fred Hernder gave evidence that he had become aware of a complaint regarding an odour coming from the west side of the banquet hall. It was his understanding that a guest had reported that to the Ministry of the environment. Fred Hernder acknowledged that there was a pool of water on the hillside (which is what triggered his instructions to excavate and locate the source of the water), however, in an apparent contradiction, Chris Hernder denied that there was any pool of water at all.

Conflicting Accounts of Events

In the face of the evidence that no Ministry staff were actually able to locate Fred Hernder on either the 19th or 20th, Fred Hernder gave evidence, variously, that he and/or his son escorted Mr. Simmons to visit the property to the south west of his – the Kenny property – and shown him evidence of sewage running from the septic system located on that property, and flowing along a ditch, eventually passing a few feet from the location of the holding tank. He indicates that he was met with a request by Mr. Simmons to clean up any sewage residue, using equipment he owns. His evidence reads:

It was right when the spill was right there, it was that day, or the next day, it was very, very close or the following Monday, I don't know. It was – you're going back two years ago, eh. But that I recall when he asked me, 'cause my guys were right there and he asked me if I would get the pooper scooper we call it and go in there and suck out the sewer out of the ditch." And further, he reports: "And he says clean that all up and we'll forget about it. The exact words.

In later evidence, he concedes it may not have been on the 19th, as he was not present there that day, but then claimed that his son Chris escorted Mr. Simmons to the Kenny property and the conversation between Fred Hernder and Mr. Simmons occurred some time later.

Blame on Neighbour

Throughout his evidence, Fred Hernder maintained his assertion that the source of the sewage was from his neighbour's property. He acknowledges there was some puddling or ponding on his property, but that it did not emanate from his system but rather from his neighbour's discharge.

Excavation and Pipe Repair

Notwithstanding this, he requested his son to use a back hoe and excavate around the area near to tank 5. Upon excavating to the depth of the horizontal pipe, they discovered a crack in the pipe in their system and had it repaired. Conveniently, Mr. Huupunen, a plumber, was in the area and assisted in effecting the repair.

Fred Hernder further explained that this pipe connects tank 5 to the tank 2 at the south end of the property. Fluid is pumped there from tank number 2 to tank 5 which holds overflow capacity until the leaching beds at the south end of the property can again accept this fluid for dissipation.

Limited Seepage Evidence

Both Fred and Chris Hernder contest that there was little, if any evidence of seepage of fluid into the ground from the crack in the pipe.

Excavation Details

In another apparent contradiction with his father's evidence, Chris Hernder advised that he did not operate the back hoe to excavate the hole near the holding tank, since he does not have sufficient experience. Rather, an employee of Randy Casper, Brian Dueck did the excavating.

Further, he advised that Mr. Huupinen assisted with the repair to the cracked pipe, with which Mr. Huupunen agreed.

Both Mr. Huupunen and Chris Hernder described the amount of fluid at the bottom of the excavation to be extremely limited, and Mr. Huupunen graphically attested to the fact that he was not wearing work boots but rather regular shoes (with the intimation that he would not have climbed into the excavated hole risking damage to a good pair of shoes).

Pipe Configuration

Chris Hernder also advised that there are two pipes leaving the holding tank, identified as number 5. One is a two inch pipe running to the south end of the property, which I understand from the evidence of Fred Hernder to be to tank 2. The other is a three inch pipe travelling under the watercourse to the leaching bed on the west margin of the property.

Control Panel Lock

Fred Hernder challenges the evidence of Mr. Simmons with respect to whether there was a lock on the electrical control panel and whether the switch was in the "on" or "off" position. It is Mr. Hernder's evidence that the switch was off. In addition, he reports that he advised that the fluid from tank 5 would eventually be pumped back to tank 2, when tank 2 had sufficient capacity to process this fluid.

Chris Hernder's Account of Kenny Property

Chris Hernder gave evidence similar to that of his father, indicating that he (Chris Hernder) took Mr. Simmons to the Kenny property to show Simmons the on-going flow, sometime after the 19th of June (probably the 25th), although Mr. Simmons disputes this claim. Simmons did indicate that he provided information about another possible leak and/or source for this leak to Alphie Wolf, who would have had a responsibility to follow up on it.

Lost Photographs

Chris Hernder asserts he took pictures capturing his observations of discharge from the neighbouring property, however he indicates that they were taken using his cell phone which he misplaced sometime in the months leading up to the trial.

Lack of Photographic Evidence

Although there are photographs tendered as exhibits depicting the pooling of water on the hillside, there are no pictures tendered to show the discolouration of the watercourse.

Odour Evidence

There was viva voce evidence from Mr. Wolf and others as to the presence of an odour emanating from the area. This evidence was not set out in the individual's notes. However, in his evidence, Mr. Hernder admits that guests to the banquet hall could detect similar odours from time to time.

Witness Credibility Issues

In addition, prosecution witnesses did agree under cross-examination that their viva voce evidence differed in some ways from their notes.

Several prosecution witnesses gave evidence of forwarding their notes to Mr. Miller, a Ministry employee coordinating the litigation of this matter and reviewing "Will Say" statements prepared by Mr. Miller. They also acknowledge that they met with counsel for the Ministry in preparation for this trial, during which time they reviewed their evidence.

Expert Evidence: Mr. Mak

Environmental Impact Evidence

Mr. Mak gave evidence regarding the environmental impacts of the pollution, to establish that the effluent would "impair the quality of the water".

Due Diligence Evidence

Fred Hernder gave evidence with respect to the diligence he exercised in monitoring the operation of the sewage system. He advised that he would overlook the hillside where tank 5 is located on those occasions when he was in the area to dump household waste in the dumpsters located on the parking area at the top of the hill. Under cross examination, he advised that he had no regular programme in place to check the creek beds or the area around tank 5 for possible leaks.

While not on point, he also admitted that his systems become clogged on occasion because of materials finding their way into the system, and/or because sometimes water was allowed to run overnight. He acknowledged that staff were directed to conduct checks at the end of each day for running toilets or taps, however, he acknowledged that this is not always done.

Description of System Output

When discussing the output from the various tanks, Fred Hernder described it as saying "And that water is just – it's clean water but it's grey water – what they call grey water."

Miscellaneous Evidence

Assault Incident

There were a number of points introduced in evidence that can best be described as miscellaneous points. This included evidence to confirm that Mr. Hernder was apparently the subject of an assault by a Ministry employee (not otherwise involved in this case), arising, it seems to be agreed, from that employee's effort to serve documents on Fred Hernder. Prosecution witnesses disavowed any particular knowledge of the nature of the charge, the evidence or, apart from the conviction, any consequence of those proceedings.

Fred Hernder's Attitude Toward Regulators

It is clear that, throughout his evidence, Fred Hernder holds staff of various approval agencies in some measure of disregard. In discussing an approval for a further system, sought in 2004 or 2005, he reports "the reason the pond didn't go through, I hired an engineer to put it all into one pond instead of two ponds, when I paid my money and sent all the application, they told me I had to send an application, sent all my applications and my money in and then they turned around and told me that the Niagara Escarpment didn't give their blessing the second time so they held that for six years".

Prior Criminal Convictions

Likewise, in examination in chief, he acknowledged that he had a prior encounter with the court system which resulted in pleas of guilty to charges. Based on his evidence in the current trial, he acted on the advice of counsel at that time. It is clear that he repudiates his expression of guilt no longer believes that advice to have been sound.

Crown Submissions

The Crown believes it has proven all the elements of the charges before the Court and requests convictions. In the Crown view, the evidence of the municipal, Regional and Ministry staff demonstrate beyond a reasonable doubt that the offences occurred. It discloses that there was a sewage works requiring approval, that such approval was not in place at the material time, that there was a leak causing a discharge which found its way into a watercourse. The efforts by Gottried Hernder, director of the Corporation, do not establish that he discharged his duty of due diligence.

The Crown opposes the defence proposition that the matter should be dismissed as de minimus, arguing that the law, to the extent that it applies, does not fit these facts.

Defence Submissions

By contrast, defence asserts that the Crown has failed to prove the actus reus in relation to operation of a sewage works beyond a reasonable doubt. The defence position is based on its view that:

(a) the Crown has failed to lead evidence of the operation of an un-approved sewage system; in light of the evidence of Fred Hernder, it is reasonable that he understood that approval had been granted for the various parts of the systems in place on the day in question

(b) the Crown has failed to prove that approval was required

(c) the Crown evidence should be afforded little weight, as witnesses, in effect, were "coached" (the Court's choice of word, reflecting, in effect, the essence of the defence position); in addition, evidence was lead that differed from what is captured in the witnesses' notes, and was impacted in part by an organized effort to ensure alignment of their evidence through the process of preparation of the will say statements

(d) the Crown evidence should be considered in the context of the Ministry staff being aware that one of their colleagues had been convicted of a criminal offence involving the defendant, and their motives would be suspect (this last point was actually not argued directly in submissions, however, it is a clear inference from the evidence elicited from Crown witnesses in cross-examination, as well as defence witnesses in chief).

Further, defence submits that there is no reliable evidence upon which the Court could find that any discharge from the leak from the sewage works found its way into the watercourse. Even if the Court were to determine that contaminants found their way into waters, the amount of discharge is so minimal as to allow for the application of the de minimus principle. To this end, defence relies on a decision of HW Woodworth in R. v. UBA Inc., (upheld on appeal).

Finally, defence asserts that, in all the circumstances, the event was not foreseeable and Gottfried Hernder took all the steps that could be reasonably expected of him and can be excused from liability under the principle of due diligence.

Court's Analysis

Was there a sewage system in place and operating on the day set out in the charge?

It is incontrovertible that there was a sewage system in place on the day of the allegations. This is recognized by Fred Hernder who believes that he had approval to install the systems as they appear today, based on the approval dated September 27, 1995. However, it is clear that he subsequently made further application to obtain approval for the system to the west side of the property in 2001 and that this system was not granted final approval until 2009. There is no question that the system was in place to collect, transmit, treat and dispose of sewage, and there was no argument that the system falls within the exemption relating to the Building Code Act.

That said, I acknowledge that there is a paucity of direct evidence regarding the nature and content of a "sewage system" in general, or this specific system (or combination of systems) in particular. What cogent evidence there is comes from Fred Hernder, with a portion provided by the Crown in terms of the engineering plan prepared by J. David Pounder on behalf of Hernder and tendered by the Crown with respect to the design of the Hernder "system".

From what I have been able to glean from the evidence, a sewage system generally comprises of collection of wastewater from a source. In this case, I take it to be that the source is generally speaking from the "human" operations of the farm, being the sanitation, food preparation and service operations, and included both residential and commercial aspects. It appears (although it has not been addressed in evidence) that the system(s) in question do not relate to the industrial operation of the farm, that is the processing of grapes to wine, vinegar and, I believe, other products. It is my impression that any sewage created by those operations is addressed through a different system (potentially one which was, at least in part, the subject of a different set of charges as against Hernder, and which resulted in pleas of guilty).

Sewage, containing a combination of solids and fluids, is directed to a two-part tank, in which the wastewater is separated from the solids. This wastewater appears to be referred to as "grey water". In a simple system, this grey water is then directed to a distribution box associated with a tile bed or leaching system, where the fluid is distributed to various rows of tiles and eventually seeps into the ground, where, again presumably, it is rendered harmless to the environment.

The Hernder system is far from simple. One level of complication is that it includes at least one or more "storage tanks", which store grey water until the distribution box is able to accept the accumulated grey water to be distributed to the tile system. There is one large storage tank installed in conjunction with the operation at the south end of the property.

Sometime in the mid-90s, Fred Hernder sought to expand the system, in conjunction with an application to construct/expand the banquet facility that had been or was being constructed. That part of the system involved a tile system to the western portion of the Hernder property, and it is that installation that is the focus of this enforcement action. A plan prepared by J. David Pounder Limited, Consulting Engineers, shows what is apparently meant to be a pipeline from the banquet facility to the western tile bed.

Based on Fred Hernder's evidence, a tank was added to serve as an over-flow from tank 2, apparently at the suggestion of public health officials. While this was contemplated to address capacity issues, it apparently became redundant when it was discovered that tank two was being over-challenged by rainwater making its way into that part of the system. Notwithstanding that, a line was installed connecting tank 2 to tank 5. Fred Hernder's evidence is that overflow fluid from tank 2 is pumped to tank 5, where it is stored until tank 2 and the south tiles could accommodate the volume of grey water. Whether this was accomplished through one or two pipes was never addressed by the parties.

Tank 5 and use of the western tile beds was never formally approved by any appropriate authority until 2009, well after the date of these charges. There is some suggestion that tank 5, associated piping and the installation of the western tile beds was captured in a 2001 document from the Public Health Department that reads in part that the system was "approved as installed". However, when approached by Taylor from the Ministry of the Environment in 2001 with an assertion that use of the western tile bed was not part of any approval, Fred Hernder was unable to marshal any proof of such approval and, instead, proceeded to make a formal application for approval, which was not granted until mid 2009, after issues with the installation were addressed to the satisfaction of the Niagara Peninsula Conservation Authority.

Fred Hernder insists that the western tile beds were never operational until after the 2009 approval was granted. That said, he acknowledges that there was a leak in the system that required repair, which was in part the subject of these charges.

I conclude, based on the evidence before me, that the only issue hindering final approval for the system "as installed" was the objection by the Niagara Peninsula Conservation Authority that the part of this that travelled below the watercourse needed to be constructed with a double-sleeve configuration, to protected against leakage from that part of the pipeline from making its way into the creek. The evidence suggests (but, again is not directly addressed to this point) that once Fred Hernder agreed to the installation of a double-sleeve pipe, that he would obtain his approval, and I conclude that that is exactly what happened. There is no evidence that any other modifications were required to permit use of the western tile beds or that any such modifications were made. As such, I conclude that there was a pipe feeding tank 5 from the banquet facility and a further pipe directing grey water from tank 5 to the western tile beds. The most important conclusion flowing from this was that tank 5 must have been capable of separating solid from liquid waste, and must have been more than a simple "storage tank" as asserted by Fred Hernder.

Taken at its best, Fred Hernder's evidence would suggest that only two of the pipes connected to tank 5 were under pressure. That said, his evidence is inconsistent on this point, because he variously asserts that the pipeline which experienced the leak travelled west and downgrade from tank 5 but made a turn to the south and east in order to join tank 2. At other times, he insisted that the discharge which was eventually discovered by the students and eventually confirmed by City of St. Catharines and Ministry staff was a result of gravity forcing fluid in that line to the surface, as, in his evidence, that line was NOT under pressure from any pumps. That inconsistency betrays an assertion that the fluid in that line was being directed back to tank 2, as I conclude there is no reasonable or credible basis for believing it could, given the topography and the laws of physics, and his assertions with respect to the timer controlled operation of pumps that directed such flow.

The design of the system as described by Fred Hernder seems to defy logic. It is possible that the evidence is consistent with the discharge coming from the pipeline I find was connected to the western tile beds and that that line was not under pressure. However, I struggle to accept as cogent or credible that, in the event of a leak such as this, that the fluid would have risen to the surface of the ground under force of gravity to be found as described in the evidence.

In any event, that part of the configuration was not the subject of the 1995 approval, and while possibly being captured as part of the 2001 approval letter, I do not accept that it was, given the evidence from the time that no proof of such could be found and Fred Hernder`s subsequent steps to rectify the situation.

If so, had approval been granted?

This question is far more complicated. Evidence is clear that approval had been granted in 1995 for a sewage works. This was based on an Application for a Certificate of Approval and Use Permit issued first on May 26, 1994 for a period of one year and later on September 27, 1995. This Application includes numerous attachments which specify, among other things, that it is for the "south side of Hernder Estate Winery". The attached diagrams also make reference to the leaching bed system, apparently on the western perimeter of the property.

The approval process is complicated and daunting and changed during the time involving the evidence in this case. Prior to 1998, authority to approve was vested with the Region of Niagara Public Health Department. After that time, authority was vested in the Ministry of the Environment. As part of its approval process, however, the Ministry consulted with and gave weight to inputs by the Region of Niagara Public Health Department, which in turn sought input from the Niagara Peninsula Conservation Authority. It is clear that the sticking point with the application brought in the early 2000s was the Conservation Authority.

That said, the body of the engineering report indicates that "It is proposed to expand the existing larger system to accommodate the new flow requirements". This certainly gives rise to the inference that the leaching bed (labelled as "C") was not a part of this proposal.

There is a further letter dated August 9, 2000, signed by Dave Young for the Public Health Department, stating "This Department approved of this design and system as it was". It is unclear to what this approval related.

Further, Fred Hernder admits that he installed the leaching bed ("C") without express written authorization but under direction of Regional staff. He installed tank 5, it appears, on a similar basis. After the Ministry of the Environment assumed responsibility for system approvals, and he was advised to do so by Ministry staff, he made a further Application which was not actually granted. It is clear that the issue standing in way of approval was the construction of the pipe running beneath the watercourse. While there is some indication that Hernder would have installed the required double sleeve pipe (and eventually did install it), Fred Hernder did not agree this was necessary, and, apparently, was not eager to incur the expense. That said, it is clear he was aware of the position of the Niagara Peninsula Conservation Authority, and could have pursued the matter to bring himself into compliance. It also seems disingenuous to suggest that no approval was required for the systems in question, and I take, among other things, that his actions acknowledge that such approval was in fact required (aside from a plain reading of the enabling statute).

There is also a complication arising from the piping configuration. Hernder advises that tank 5 is fed both from the banquet hall as well as from tank 2, serving in the latter case as an overflow facility. This evidence is not contradicted by any direct evidence.

That said, the evidence from both Chris and Fred Hernder is that there are two pipes exiting tank 5, one destined for leaching bed "C" and the other connecting to tank 2. It is unclear whether there is in fact a third pipe from tank 2 towards tank 5, or whether the overflow from tank 2 is fed into tank 5 using the same pipe that would eventually deliver any fluid in the opposite direction.

The evidence clearly establishes an inference that tank 5 is physically located at a lower elevation from tank 2. Both Fred and Chris Hernder insist that the pump at tank 5 was locked out, presumably to preclude pumping fluid to leaching bed "C". However, it betrays logic that somehow fluid from tank 5 somehow finds its way back to tank 2 without such a pump.

In regard to this point, however, the Court recalls the following excerpt from the evidence of Fred Hernder:

Q. So you use tank number five, as I understand it, as an emergency…

A. As a back up tank, yes.

Q. …as a back up. Now once it's fills where does it pump to?

A. Well pumps, when the float will let it in the front, when the floats gets down low enough, they'll let - these are on a timer too, but the timers cannot work on number five unless the floats are low enough in number two.

Q. Okay, so number five is on a timer?

A. It's on a timer, but it can only work when this tile bed is low, the one out in front, number two is that – when that tank is low, when the floats allows it. That float has drop down then that system can work. If not it doesn't work until that system drops down, the float drops down below.

Q. Okay.

A. So then when they drop, that will pump into the front tank.

Q. So five, once the system in the front has caught up with the extra flow…

A. Correct.

Q. …will …

A. Automatically pump up there.***

Q. …It will pump back up to the front?

A. Yes.

Q. Now it's also designed to pump out to the tile beds, correct?

A. That's correct. There's a pump in there running down the ditch and back up and these are two tile beds, but they are…

This evidence is in clear contradiction to Mr. Hernder's other assertions that the pump in tank 5 was locked out and inoperable, as follows:

A. I don't know 18th or 19th but he came out there and I said that it's impossible for it to be on, because there is a lock in the box so that no one could put the switch on.

Q. So there is a lock, and you cannot turn it on. So if we look at exhibit five, exhibit five is a photo of the switch box I believe is the switch box…

A. That is correct.

Q. And where on that box is the lock is?

A. Right there behind the grass right on that piece right hand, hanging.

Q. Is it visible on this photo?

A. No, the grass is sort of hiding it, it's right there. This box comes out and the switches the locks right against that place and that side, it's right there. But the grass just happens to be in the way.

Q. Oh sorry. So your evidence is that lock on the 19th of June 2008?

A. It's still locked to date.

I suppose it is possible that there are two pumps controlling the flow of "grey water" from the holding tank 5, however, the evidence from Mr. Hernder is confusing at the best or misleading at the worst.

Facing all these challenges, I cannot conclude that there was a sewage system in place compliant with the specifications provided by Hernder's engineering consultant and, consequently, any approval which may have been granted by any governing authority.

If so, was there a discharge from that system?

In mid to late May 2008, staff from the City of St. Catharines, on a routine assignment, tracked along the watercourse feeding eventually into Richardson's creek and came upon a area of obvious (to them) concern. They took samples and, later, follow up samples, and communicated their observations, with the information coming to the attention of Ken Simmons.

Based on this information, Mr. Hughes first visited the site with his assistant, and later organized a team to visit on June 19, 2008. They followed the same access route to the suspect location, and, it is their common evidence that there was obviously discolouration in the watercourse. Their evidence is that there was an odour, however, this was not recorded in their notes and is less compelling than other points they set out.

They continued their investigation to see if they could locate an obvious source for the "pollution". Moving uphill, they discovered a pool of water with a measure of activity, leading them to conclude that fluid was coming up from below the soil surface.

According to Fred Hernder, on that same day, the facility had guests from another Ministry who observed a disturbing odour coming from an area west of the banquet hall. It was Fred Hernder's understanding that one of these guests contacted the Ministry of the Environment, although this was not further substantiated in any way.

Hughes and Simmons, and possibly others, sought out Fred Hernder or another principal of the operation. They did not succeed. They left word for Hernder to call Simmons, which, it would appear he did later that day. By that time, Fred Hernder had sleuthed out what was afoot and found the same ponding. In spite of any suspicions or concerns he might have had, he brought together a crew, including his son, to excavate the area and discovered a small crack in the pipe, which they repaired. There was no evidence of further, on-going discharge of fluid to the surface.

Claims by both Fred and Chris Hernder that the source of the discolouration in the watercourse originated at the neighbour's property are highly suspect, inconsistent even as between Fred and Chris Hernder, as well as George Huupunen and contradicted by Ken Simmons. Any collaboration that might have been possible through the neighbour is noticeably absent, as is any photographic evidence taken by Chris Hernder, said to have been taken but eventually lost (notwithstanding that Chris Hernder would clearly have understood it importance).

In all the circumstances, I am satisfied that there was a leak from a pipe connected to tank 5, without determining whether it was connected to tank 2 or the tile bed C at the western boundary of the Hernder property. In arriving at this conclusion, I note Fred Hernder's own evidence that he was able to locate the ponding on his property, caused the area to be excavated and located a crack in the pipe related to his system, and caused a repair to be effected.

If so, did that discharge make its way into the watercourse?

It is clear that the commencement of this investigation was triggered by observations of discolouration of the water in the waters in the watercourse. While evidence of the student's activities and research is not before the Court as admissible evidence (but only for the purpose of the context in which follow-up investigation was conducted), we do have the evidence of Mr. Hughes and Mr. Simmons, indicating that as they walked along the watercourse, they observed the water to be clear up to the point below tank 5, where there was a marked discolouration. Investigation ensued, following an apparent path and leading them uphill to the area around tank 5, and the discovery of the pond with fluid percolating from the ground below. Evidence further reveals that the edge of the watercourse was mushy.

The defence sought to establish that the investigation was triggered by a complaint filed by guests to the banquet hall that same day. This does nothing to diminish the overwhelming, un-contradicted evidence of the origins of the investigation. And, in any event, it is not corroborated in any way, and amounts to double or triple hearsay.

Evidence of an alternative source of pollution is not persuasive. I take no issue with the allegations that there may have been an on-going problem with the neighbour's sewage system. However, Fred Hernder's evidence that he accompanied Mr. Simmons to that site to show him the evidence of the problem is simply unbelievable. What is far more believable is that he was giving evidence of what his son had done as if it were his own actions. He was repeatedly inconsistent regarding the date(s) when this would have occurred, at times trying to report that this visit to the neighbour's occurred at a time we knew he was not there.

The defence was unable to elicit independent corroboration of its claim that there was another source of discharge, originating on the neighbour's property. The defence failed to weaken the Crown's case by eliciting any admission of such corroborating evidence. This is particularly remarkable given the assertion that the path of the discharge from the neighbour's property passed within mere feet of the discovery of the ponding (which Fred Hernder acknowledged existed in contradiction to the opposite claims of his son). I also note that Chris Hernder's claim that he took photographs but was unable to produce them because he lost the camera on which they were taken is suspect, noting that he was aware of the litigation for a long time, he would have been aware of the importance of such potentially exculpatory evidence and he had ample opportunity to produce printed copies of such images.

Is the Crown expert, Mr. Mak, biased on such a way as to exclude his evidence from consideration?

In order to be admissible, expert opinion evidence must be relevant, necessary (not merely helpful) to assist the trier of fact, not excluded by any exclusionary rule and given by an expert who has been properly qualified.

The Court was not provided with a proposed scope for the evidence to be presented by Mr. Mak. However, the Court finds some guidance in the Request for Technical Support Services, which requests a "Tech Review to determine impairment of water quality of a creek adjacent to the Hernder Winery Farm". Based on that and in light of the remaining evidence in this trial, I conclude that the proposed expertise is directed to providing expert interpretation of the test results conducted on the fluid found in the ponding near tank 5, and, separately, assisting the Court in determining whether there was impairment of the watercourse.

Prior to the discussion of evidence of impairment, it is necessary to consider the defence objection to the admission of Mr. Mak as an expert. The issue arises, in the defence view, because Mr. Mak is an employee of the Ministry of the Environment and is limited to giving evidence for the prosecution. Further, defence argues that Mr. Mak changed roles from that of expert witness offering opinion evidence to that of advocate for the prosecution, seeking to explain away deficiencies in other prosecution evidence. In conjunction with this, defence also points to a number of elements of Mr. Mak's evidence which reveals that he incorporated evidence neither specifically set out in his report nor, in some cases, not disclosed to the defence. Defence asserts that Mr. Mak has a long history of working with this particular prosecutor. Finally, defence submits that Mr. Mak has been found not qualified to give evidence in the R. v. Inco case.

In R. v. Inco, the Court held:

The mere fact that the witness in this case was employed in the Investigations and Enforcement Branch as a "technical enforcement specialist" is not a sufficient basis on which to find him incapable of providing an independent opinion. The trial judge did not assess whether the witness' evidence was based on valid assumptions, whether he fully disclosed all material facts or whether his opinion was properly researched and fell within his area of expertise.

In the course of the voir dire into Mr. Mak's qualifications and opinions, the defence adopted the view expressed in R. v. Inco that "Experience and education in this matter are not an issue. Mr. Mak has ample of both. The question here is the matter of impartiality or independence." I agree. To that extent, and having regard to the technical expertise required to understand the evaluation of the test results of the samples taken by Mr. Medland and Mr. Simmons, I find that his evidence is necessary and that Mr. Mak is qualified to provide this interpretation.

With respect to the impairment of the watercourse, the question is far less clear. It is clear that Mr. Mak incorporated information not set out or not set out clearly or cogently in his report. For example, he conceded that he may have had occasional and casual discussions with Mr. Simmons, for the purpose of exchanging information, but kept no notes of these exchanges.

He also incorporated rainfall records which were not detailed in his report either. There is also some question, based on his evidence under cross-examination, as to the appropriateness of the data points chosen. For example, he used rainfall data from the Hamilton airport and the Royal Botanical Garden, both some distance away from the subject site, while conceding that there are some closer stations operated by Environment Canada.

Some of this the challenges to Mr. Mak's evidence were remedied through his viva voce evidence. Some were not.

As a result, it is clear that his relationship with the Ministry is anything but arm's length.

That said, the next question is whether this impairs his ability to give opinion evidence on the second point, that is, the impairment effects on the waters in the watercourse.

I start by noting that, as Mr. Herlihy concedes, "On one hand, one might say, well obviously yes, it's in the jargon no brainer" that there was impairment. The question is the extent of that impact.

Quoting from his summary, Mr. Mak asserts:

A discharge of sewage at Hernder Estate Wines on 19 June 2008 was found to have the potential to impair the water quality of small Ontario watercourses. Actual degradation in appearance and odour were observed in the receiving creek during the incident, for which water quality may be deemed to be impaired. No ecological impacts were observed or likely on the following day due to flushing and dilution by rain.

Mr. Mak reiterated these conclusions in his viva voce evidence. He does so, reflecting not only the report he prepared in preparation for the trial, but also reflecting his appreciation for the Crown evidence tendered at trial.

He provided the insight, when addressing the distance of the samples from the waters and watercourse, that "to me, near is close enough to cause the impact that was identified in sampling done by City summer students".

And further, in response to a challenge to his finding regarding impairment of the waters, he concluded:

Well, we have a discharge at a very, very high concentration, 22 million e-coli's per 100 million, is a very, very high concentration. It's a small watercourse, there's not much water available to provide dilution. And it was also during times when there was no heavy rainfall to flush out that material, So, once it comes out of the ground and flows downhill into the stream, it is going to remain in the stream or slowly travel downstream very slowly. So during the time that it's travelling, before it gets broken down by sunlight and all that, those e-coli levels would be very high.

The Court, on review of the substance of the examination in chief and cross examination of Mr. Mak, and focussing narrowly on the two points set out above, that these reflect more accurately the result of scientific expertise and are not unduly influenced by extraneous considerations,. These two points could not be achieved by the Court without the assistance of the expert input. Having regard to the limited scope of these opinions, I find that they are not moderated by the extraneous (and arguably impermissible) inputs, and are thus admissible.

If so, did such discharge "impair" the waters?

Mr. Mak's evidence describes the following test results for the fluids sampled in the "ponding" near tank 5. These results are as follows:

Component Tested	Result	Observations
e-coli	22 million colony forming units per 180 millilitres	Drinking water should contain no e-coli. Normal household sewage would present in the range of 1-2 million
Biochemical oxygen demand (BOD)	1178 milligrams per litre	With a normal rate for household sewage in the range of 180ml/l, this would be about 6 times that rate
Ammonia	50.4 milligrams per litre	Clean water would normally have zero. Sewage would normally contain 10-20mg/l

The effects of e-coli are notoriously known, recalling the infamous episode in Walkerton. Mr. Mak explained that elevated levels would give rise to disease in humans and/or animals.

BOD at these levels would have the impact of reduced oxygen availability for aquatic life.

Ammonia is known first to burn fish and then to poison them, eventually resulting in their death. A similar impact could befall other invertebrates; however, it is unknown whether such impacts occurred.

It is clear that these results were obtained in the ponding.

Having regard to the evidence regarding the triggers to this investigation, the collective observations of Mr. Simmons, Mr. Medland and the results of samples first by Mr. Simmons and Mr. Medland and subsequently the multipoint samples taken by Mr. Medland and recorded by Ms. Gabriele, I conclude that the quality of water was deemed impaired and, following the statutory provisions, find that water was impaired.

Further, was any discharge sufficient to exceed any threshold that might exist as a result of a de minimus non curat lex (de minimus) argument?

The defence position relies heavily on R. v. UBA Inc., a decision of my sister Justice Woodworth, upheld on appeal. In that case, tried pursuant to the EPA, Her Worship concluded that the facts before her supported a decision to dismiss the charges on the basis of the defence described as de minimus non curat lex. Her Worship also gave weight to the guidance of the Supreme Court of Canada in R. v. Canadian Pacific Ltd., which directed:

The contaminant must have the potential to cause injury or damage to property or to plant or to animal life, cause harm or material discomfort, adversely affect health, impair safety, render property or plant or animal life unfit for use by man or cause loss of enjoyment or normal use of property or interfere with the normal conduct of businesses. The choice of terms in section 13(1) at the time leads me to conclude that polluting conduct is only prohibited if it has the potential to impair a use of the natural environment in a manner which is more than trivial. Therefore, a citizen may not be convicted under this section of the Environmental Protection Act for releasing a contaminant which can have only a minimal impact on the use of the natural environment. Where an accused has released a substance into the natural environment, the legal debate must focus on whether an actual or likely cause of the natural environment has been impaired by the release of this contaminant. The legal debate is clearly facilitated by the application of generally accepted interpretive principles. In particular, these principles demonstrate that that section of the Environmental Protection Act does not attach penal consequences to trivial or minimal impairments of the natural environment, nor to the impairment of the use of the natural environment which is merely conceivable or imaginable. A degree of significance consistent with the objective of environmental protection must be found in relation to both the impairment and the use which was impaired.

The appeal judge was also mindful of the direction of the Ontario Court of Appeal in Ontario (Ministry of Labour) v. Hamilton (City), in which the Court cautioned:

Protective legislation designed to promote public health and safety is to be generously interpreted in a manner that is in keeping with the purposes and objectives of the legislative scheme. Narrow or technical interpretation that would interfere with or frustrate the attainment of the legislature's public welfare objectives are to be avoided.

Without repeating the history and controversy relating to the availability of that defence, I accept that the principle of de minimus could apply in light of the facts specific to each case.

This case, of course, was tried pursuant to the OWRA and not the EPA, as was R. v. UBA. There are differences in wording between the two pieces of legislation, and in particular, the EPA contemplates "adverse impact" while the OWRA prohibits discharges which "impair the quality of the water of any waters". The EPA goes on to prohibit "discharge causes or may cause an adverse effect". As a result, any distinction in the wording may be moot.

Having regard to Ontario (Minister of the Environment) v. Castonguay Blasting Ltd., I am mindful first that the case dealt with issues under the EPA. In addition, that case dealt with a failure to report a discharge, while this address a failure to avoid a discharge (among other things). For those reasons, the cases are distinguishable. However, I am also mindful of the approach of the Ontario Court of Appeal, where the majority wrote:

76 However, the EPA is, in my view, also concerned with uses of the environment that cause harm to people, animals and property - for example, as a conduit for contaminants that cause dam-age or harm to people, animals or property. Blasting is a perfect example. In many cases, blasting will not harm the environment; para. (a) of the definition of "adverse effect" will not be triggered. However, where blasting causes the discharge of a contaminant, such as fly-rock, into the natural environment, blasting may harm people, animals or property. That is what happened in this case. A blasting activity gone wrong (as the appellant concedes) may not have caused more than trivial or minimal harm to the air, land or water. However, the fly-rock generated by the blasting did cause significant harm to property, a different adverse effect under the Act. Importantly, the direct conduit resulting in this harm was the appellant's use of the environment (the air) to disperse a contaminant (fly-rock).

77 In conclusion, I see no policy reason for limiting the coverage of the EPA to fact situations where serious adverse effects to people, animals and property can be considered only if the environment is also harmed by the impugned activity. In this case, the discharge of fly-rock into the air during a blasting operation was a sufficient trigger for scrutiny under the EPA.

Conclusion

78 The plain meaning of the relevant provisions of the EPA, a proper understanding of the broad purposes of the EPA, and the application of the decisions of the Supreme Court of Canada in Canadian Pacific and this court in Dow Chemical, taken together, establish that the appellant's discharge of the fly-rock from a blasting operation being carried out in the natural environment is the discharge of a contaminant that caused an adverse effect under the EPA. The appellant, therefore, should have reported the incident to the Ministry of the Environment pursuant to s. 15(1) of the Act.

In this case, we have evidence of specific, observable discharge into the surface ground around a watercourse. In fact, I accept that the discharge took place a distance of some fifteen feet from the watercourse and then made its way into the watercourse. I accept that the vegetation surrounding the path of the flow of the discharge was more abundant and lush, and that it was the basis upon which Ministry personnel and others actually located the point of discharge. I also conclude that the presence of the "pool" or "ponding" was the basis upon which Fred Hernder actually located the source of the leak.

We also have evidence of specific, observable contamination, being the discolouration of waters. Mr. Mak testified to the fact that this would constitute at least potential impairment. There is controversy over the duration and amount of contamination, and no evidence of actual impact on any living organism.

It is troubling that municipal officials were aware of at least the potential for an issue and took almost a month to marshal and co-ordinate resources to attend at the scene, even after the initial findings were supposedly verified. Even after attending, Ministry officials did not take control of any clean-up, but left information with the property owner to require a call back. When there was information available to Ministry employees that the effects of the impairment were still discernable a week after the source of the leak had been repaired, some six days after the comprehensive assessment and testing of water samples, the most that Ministry officials did was to rely on the good faith and follow up of the property owner. This is especially curious given the fractious history between the Ministry and the property owner.

It is also curious that the Ministry seems to have taken at least a fairly lax approach ensuring information about a further possible source of impairment from the neighbour's property was investigated and/or addressed.

What is clear, however, from the evidence, is that there was a discharge of effluent from the unapproved sewage system. This discharge was sufficient in quantity to percolate up through the ground from a depth of some five to six feet, establish a visible pool on the ground, and that the discharge then made its way from that pool into a watercourse some ten to fifteen feet downgrade from that pool, causing visible murkiness or discoloration in the watercourse.

While the evidence of the findings of the summer students would have been helpful in establishing a duration for this discharge, such evidence was not tendered "for the truth" of its contents, and as such is not properly before the Court.

That said, the Court is of the view that the description of physical observations made by those who attended on June 19, 2008, collaborated by the actions taken by Fred Hernder to clean up the site and his admission regarding the presence of a crack in the pipe carrying discharge from tank 5, that the discharge was not insignificant and did make its way into the watercourse.

In the event that the Court is satisfied that there was an operating but unapproved septic system, did Fred Hernder meet his burden of proving, on a balance of probabilities, that he exercised due diligence in the operation of such a system, and thus is excused from liability?

It is common ground that the matter before the Court is a matter of strict liability, as set out in the R v. Sault Ste. Marie. These are:

Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. These offences may properly be called offences of strict liability.

The Sault Ste. Marie decision relies on oft-quoted background, adopted by the majority in R. v. MacMillan Bloedel Ltd., which discusses foreseeability in the context of strict liability offences. At paragraph 47 Justice Smith notes that there are two branches of the due diligence defence. A reference to the original language in Sault Ste. Marie is helpful:

The case which gave the lead in this branch of the law is the Australian case of Proudman v. Dayman (1941), 67 C.L.R. 536, where Dixon, J., said, at p. 540:

It is one thing to deny that a necessary ingredient of the offence is positive knowledge of the fact that the driver holds no subsisting licence. It is another to say that an honest belief founded on reasonable grounds that he is licensed cannot exculpate a person who permits him to drive. As a general rule an honest and reasonable belief in a state of facts which, if they existed, would make the defendant's act innocent affords an excuse for doing what would otherwise be an offence.

This case, and several others like it, speak of the defence as being that of reasonable mistake of fact. The reason is that the offences in question have generally turned on the possession by a person or place of an unlawful status, and the accused's defence was that he reasonably did not know of this status: e.g., permitting an unlicensed person to drive, or lacking a valid licence oneself, or being the owner of property in a dangerous condition. In such cases, negligence consists of an unreasonable failure to know the facts which constitute the offence. It is clear, however, that in principle the defence is that all reasonable care was taken. In other circumstances, the issue will be whether the accused's behaviour was negligent in bringing about the forbidden event when he knew the relevant facts. Once the defence of reasonable mistake of fact is accepted, there is no barrier to acceptance of the other constituent part of a defence of due diligence.

On the first part of that approach, the defence view is that the event is question is not foreseeable, and relies on the evidence by Fred Hernder to that effect. Both defence and the Crown devote substantial and elegant effort in setting out their positions in respect of this question.

In the Court's view, the entire analysis is misplaced, and presumes that the belief held by the defendant is a reasonable one.

Regrettably, I cannot conclude that it is. To start, I acknowledge that the burden of proving the defence of due diligence falls to the defendant, on a standard of balance of probabilities.

In this case, the Court has been apprised of Fred Hernder's belief in respect of whether the eventual leak was foreseeable. However, we have no evidentiary foundation for that belief. What we do know is that the system needed to be designed by an engineer (this was done, subject to the modification which was not supported by engineered plans), and installed by a qualified contractor (again, there is uncontroverted evidence that this was also done). There is uncontroverted evidence relating to the materials used, indicating them to be appropriate.

At the same time, we do not have evidence that the installation was done under engineering supervision, and in fact, an inference that it was not. This arises since the final installation differed from the signed proposal (in that holding tank 5 was added). We also know that Fred Hernder has had prior experiences in which he has admitted – by way of guilty pleas – that he has failed to construct in compliance with approved plans. We have further evidence that he was disdainful of any regulatory and approval processes, and believed that, once his engineer designed something, it ought be approved without interference by any regulatory body. He believes that efforts to withhold approval were simply inappropriate.

We know that he is of limited education, but undoubtedly rich in experience. That said, we have no evidence that he requested or obtained any professional advice as to the proper maintenance of a complex system such as this.

It is clear that his efforts at maintenance, generally, were limited. In respect of the holding tank 5 and the general area, he described that he would occasionally overlook the area from the parking lot, when there to dispose of household garbage in a dumpster. The location of that dumpster would be, based on the photographs before the Court, not an insignificant distance away. He advised that he used "stick" to monitor the fluid level in the tank. He did not advise as to the frequency of such checks.

What is unknown is what with frequency Fred Hernder made such observations. Given my finding with respect to the abundance and lushness of the vegetation near to the point of surfacing of the discharge, I am troubled that he failed to observe it, leading me to wonder as to when he had last deposited trash or uses his stick to measure depth of fluid.

He advised the court that staff did not always follow any instructions they may have had, with respect to checking overnight water flow from toilets and sinks, but we have no evidence as to any remedial steps or discipline he enforced to ensure compliance.

I also conclude that he downplayed the impact of the output from the various tanks when he described it as "And that water is just – it's clean water but it's grey water – what they call grey water." This is certainly a gross under-estimate of the potential impact of these fluids on the environment.

Thus, overall, it is my conclusion that, without finding whether the event that may or may not have led to the crack in the pipe was foreseeable, I cannot conclude that "all reasonable care was taken". As a result, any defence of due diligence must fail.

Conclusion

For the reasons set out above, the Court is satisfied that the Crown has met its onus and proved each of the elements of each of the charges before the Court, and, as a result, convictions are entered.

His Worship Donald Dudar

Justice of the Peace

Released: December 14, 2012

City of St. Catharines