Court File and Parties

Court File No.: Hamilton: 000975

Ontario Court of Justice

Between:

Her Majesty the Queen

___ And ___

Baldev Kumar (Dave) Madan & 0558154 B.C. Ltd.

Before: Justice of the Peace S. Lancaster

Heard on: October 3, 2014, September 4, 2015 & January 8, 2016

Reasons for Judgement released: February 26, 2016

Charge: Fail to comply with Provincial Officer's Orders

[Environmental Protection Act, R.S.O. 1990, c. E.19, as amended]

Counsel:

• Mr. P. Poly – Crown Prosecutor
• Mr. H. Kopyto, Mr. M. Tadros, Mr. A. Hesami – Agents for Defendant

JUSTICE OF THE PEACE LANCASTER:

A) ISSUE

1. Baldev Kumar (Dave) Madan and 0558154 B.C. LTD., are charged under the Environmental Protection Act (EPA) s.186(2) for failing to comply with two Provincial Officer's Orders issued on July 27, 2010. Specifically, Counts 2 and 3: August 5, 2010 – July 18, 2011 to retain the services of a qualified waste management professional to assess and classify all waste currently located on 249 Hess Street North, Hamilton and Count 5: August 7, 2010 – July 18, 2011 for Mr. Madan alone in relation to a similar Order regarding 245 Catharine Street North, Hamilton. Counts 1 and 4 were withdrawn by the Prosecution.

B) BACKGROUND

2. This matter first appeared on May 12, 2012 with this trial commencing on October 3, 2014. There have been multiple adjournments and the file had the benefit of 2 pre-trial dates. There's been a succession of 5 defence agents, and the proceedings were the subject of a defence 11B Charter application that was unsuccessful as this court determined that the delay rests largely with the defence. From the Information there also appears to have been 3 prosecutors during the 3½ years from first appearance to court judgment. There have been a total of 18 appearances.

3. Several defence adjournment requests were granted due to the defendant's agent's successive late hiring, the time necessary to transfer and review the disclosure and receive the defendant's instructions. The last 3 agents were hired within a few days of the next trial dates despite the adjournment periods of 3-8 months. For example, when Mr. Kopyto was removed as agent after the LSUC rejected his long-standing paralegal licence application and despite a 4 month adjournment to obtain new representation Mr. Tadros was hired the day before the next (2nd) trial date. The prosecution noted that disclosure was provided to the defence on 3 occasions (to 2 agents and the defendant, with some additional copies provided to agents Mr. Tadros and Mr. Hesami during the trial.

4. Mr. Tadros' motion to be removed as agent was granted given what he characterized as a breakdown in client-agent communication, his inability to obtain disclosure from the defendant and to obtain instructions. The defendant had several weeks to obtain new representation. Mr. Hesami who was hired within a couple of days of the next (3rd) trial date was denied an adjournment given the defendant's history of similar delays, and as all defence adjournments were marked pre-emptory on the defence to proceed with or without representation.

5. This court heard from 4 Crown witnesses and the defendant Baldev Madan. This matter is returning today for judgement.

C) EVIDENCE OF WITNESSES AND FACTS

Stephen Burt – Crown Prosecution Witness #1

6. The court heard from Stephen Burt, Senior Environmental Officer, a Provincial Offences Officer, with the Ministry of the Environment and Climate Change (the ministry). He is responsible for addressing complaints and conducting inspections in relation to integrated steel facilities. At the request of his manager John Beals he conducted an EPA inspection at 242 Catharine Street North, Hamilton on July 22, 2010. The property is a large industrial complex in the area of residential dwellings.

7. Accessing the property on July 23, 2010 with the defendant's site representative Phillip Webb he observed a large run-down industrial site with the main building door open. Upon entering the building he observed equipment left from the former electroplating business, along with evidence that people had accessed the property, including evidence of "squatters". Stephen Burt and Brad Farnan another ministry officer attended the property with Mr. Webb to catalogue and photograph the waste.

8. Exhibit 1 A-O, photographs taken by Mr. Burt accurately depict the scene at 245 Catharine Street that day. They observed materials included rusting opened and sealed drums, pails, a compressed air cylinder, storage tanks, electroplating baths and tanks with affixed "Hydrochloric Acid" "30 Nitric Acid" and other "Hazard" stickers, "Contaminant (spill) pallet(s)" containing waste material with its drain plug removed with the contents spilling onto the floor; an oily residue was observed on the ground. A former "lab" area table and shelf contained a number of unknown containers and powders. This waste material raised concerns about the potential impact on the natural environment and human health especially given that the property was accessible, and the graffiti observed suggest that the building had been accessed and vandalized in the past. This site is not a ministry approved waste disposal site.

9. Exhibit 2 and 3 respectively, a Teranet property search report shows that Baldev Madan purchased the Catharine Street property, on July 24, 2005 and a Service Ontario, Land Registry Office report shows that on July 23, 2010 Baldev Madan was the Catharine Street property owner.

10. Exhibit 4 signed by Stephen Burt on July 27, 2010 is the "Provincial Officer's Order" issued and delivered (as certified by Exhibit 6) to Baldev Kumar Madan at his Eglinton Avenue East Toronto address in relation to 245 Catharine Street. Among the Order items relating to other charges since withdrawn by the Crown, this Order requires that Mr. Madan retain the services of a qualified waste management professional by August 6, 2010, and by August 18, 2010 to have the onsite waste classified by a qualified waste management professional.

11. Mr. Burt, with Brad Farnan, spoke briefly with Mr. Madan on July 23, 2010. Mr. Madan hung up the telephone after asking the ministry to send a letter to his lawyer. Mr. Burt met with Mr. Madan on August 23, 2011 at City Hall (with city and ministry staff) and on September 20, 2011 at the Hess Street property to discuss the charges. Mr. Burt noted that Mr. Madan was not in compliance with the Order by the August 6, 2010 deadline or since. At this time the property had been secured by the city. Two letters sent to the ministry by Paul Brasca, Senior Care Associates of Toronto dated August 4, 2010 (Exhibits 8 & 9) indicate that Mr. Madan had retained Christopher and Max Meyer. Mr. Burt testified that on August 17, 2010 he contacted Christopher Meyer by telephone and that Mr. Meyer confirmed that he had not been retained by the defendant to undertake this work. This court heard from Mr. Meyer as a witness on the next trial date who confirmed this.

12. During Mr. Kopyto's cross examination Mr. Burt confirmed that he observed unknown liquids and sludge within the tanks (Exhibits 1D & 1M) and witnessed an acrid smell and evidence of vandalism including broken windows, material strewn about, blankets, a hypodermic needle, and that part of the roof had caved in. Mr. Burt advised that no chemical analysis of the liquid waste material had been undertaken by the ministry as this was required of the defendant by the Order. He further advised that the compliance dates could have been amended to allow additional compliance time but that Mr. Madan had made no ministry contact in this regard. In relation to the "Securement Order" in the presence of a city hired security officer, on September 20, 2010 Mr. Burt spoke briefly with Mr. Madan through Mr. Madan's van window regarding Mr. Madan's interest in accessing his property. Mr. Burt provided Mr. Madan access to install security camera equipment. The Securement Order (Exhibits 28 & 29) are court Orders prohibiting the defendants, their employees and agents from entering the properties for a 30 day period unless written permission is first granted by the ministry.

Christopher Meyer – Crown Prosecution Witness #2

13. The court heard from Christopher Meyer, owner and President of "Force Wrecking" since 2005, a scrap metal demolition business working throughout Ontario. Mr. Meyer testified that in 2006 he was referred to Mr. Madan by a business acquaintance and that he is familiar with the properties at 249 Hess Street North and 245 Catharine Street North in the City of Hamilton, meeting Mr. Madan in person in 2006.

14. Regarding the Catharine Street property, at Mr. Madan's request Mr. Meyer collected some on-site barrels placing them in two 20-foot waterproof "sea containers", and cleaned up the exterior of weeds and shrubbery. At no time did he remove the waste material or containers from the Catharine Street property. This work was completed in 2007.

15. Regarding the Hess Street property, at Mr. Madan's request Mr. Meyer tore down a dilapidated building and removed the building materials from the property (brick, wood, roofing material and 1 steel Quonset building). This work was completed in 2006. Mr. Meyer noted that Mr. Madan couldn't pay him for the demolition work. In lieu of payment Mr. Madan agreed to permit Mr. Meyer to use the Hess Street property to process his steel (clean and cut steel into smaller length pieces) from his other demolition jobs before shipping the steel to receiving mills. This use of the Hess Street property ended in May 2008.

16. Counts 2 and 3 of the Information and Items 2 & 8 of Exhibit 18: the Provincial Officer's Order relate to 249 Hess Street North, Hamilton. By August 4, 2010 the defendant was to retain the services of a qualified waste management professional to assess and classify all wastes on the property. Mr. Meyer testified that neither he nor anyone from his company or his father Max Meyer was retained, contracted or otherwise participated in any work in regard to this Order.

17. Count 5 of the Information and Item 2 of Exhibit 4, the Provincial Officer's Order relate to 245 Catharine Street, Hamilton. By August 6, 2010 the defendant was to retain the services of a qualified waste management professional to assess and classify all wastes currently on site. Mr. Meyer testified that neither he nor anyone from his company or his father Max Meyer was retained, contracted or otherwise participated in any work in regard to this Order.

18. The defence spent considerable time cross examining Mr. Meyer regarding dealings he may have had with Mr. Madan after 2008, the subject properties prior to 2010 and Hotz Environmental, including dates before 2006. The relevance of this cross examination was unclear and questioned. The court gave the defence considerable latitude in this regard as Mr. Tadros noted that this witness was critical to the defence. With the witness excused Mr. Tadros noted that the cross examination was to explore Mr. Meyer's knowledge and possible motives leading up to his offer to purchase the Hess Street property between 2006 and 2008, an offer that Mr. Madan turned down. The cross examination was to raise witness credibility concerns for the court. The defence believes that Mr. Meyer had ongoing communication with Mr. Madan after 2008 when Mr. Meyer indicated his communication had ended. The Prosecutor submitted that the defence appears to be challenging the validity of the Order, a "collateral attack" on the Provincial Officer's Order as per R. v. Consolidated Maybrun that the defendant could have addressed through the Environmental Review Tribunal.

19. On cross examination Mr. Meyer agreed that he had offered to buy the Hess Street property prior to 2008 that Mr. Madan rejected. Mr. Meyer denied the defence suggestion that he had brought waste back onto the Hess Street property as a tactic to acquire the property at a lower price, and that Mr. Madan "… could not foresee what kind of materials may have been dumped" as Mr. Meyer had secured the property during his use in 2006/07. Mr. Meyer testified that Mr. Madan possessed a key and had accessed the property several times during this time. Again, Mr. Meyer indicated that his dealings with Mr. Madan ended in 2008 and that he has had no contact with the defendant since that time.

Shannon Boland – Crown Prosecution Witness #3

20. The court heard from Shannon Boland who on the offence dates was a Senior Environmental Officer, a Provincial Offences Officer, with the Ministry of the Environment and Climate Change. She is currently a Water Inspector who has been with the ministry since 2009. At the time of the offence her name was Shannon Christian and she authored the Provincial Officer's Order in relation to 249 Hess Street North, Hamilton (Exhibit 18). During the offence dates she was responsible for enforcing environmental legislation and regulations, responding to pollution incident reports and conducting inspections in the Hamilton area.

21. Ms. Boland became involved with the Hess Street property on July 21, 2010 after being briefed by her supervisor John Beals regarding waste material referenced on a local activist's website that included photos showing barrels and other waste material on the property. She attended the property on July 22, 2010 with Mr. Beals and officer Amanda Denault.

22. Ms. Boland noted that 249 Hess Street North area is a mix of residential, commercial and former industrial properties. "Some of the buildings are in horrible condition". The property had evidence of vandalism with spray-painted wall graffiti. "The site perimeter is such that it could be easily broken into and some barrels appear to be leaking". Upon entering and walking the property she noted "an unpleasant or a hydro-carbon, kind of oily odour", and observed "… two large shipping containers full of barrels containing an unknown liquid". Some barrels were labelled "Hotz Environmental", a Hamilton waste management company. Ms. Boland noted that this site was not approved for waste disposal.

23. Exhibit 19 A-K was tendered to the court. Ms. Boland noted that she took these photos on July 22, 2010 and stated that they accurately represent the Hess Street property that day. They illustrate the building's poor structural condition, various waste piles, containers of industrial lubricants, cans, old tires, construction and demolition waste, Boric Acid powder bags and a child's tricycle, noting the close proximity to some commercial and residential buildings. With the fence in disrepair the site is easily accessed by the public raising concerns for human health and safety.

24. Within the buildings there is running water (source unknown), a compressed air container, graffiti, barrels leaking a resin-like material, old fuel tanks, and precariously stacked containers labeled "Udyalite" a company that manufactures electroplating material. One Barrel had a warning label: "Flammability reactivity" and another: "H81" indicating that the waste was previously classified.

25. Exhibit 20, Teranet property search report shows that 0558154 B.C. LTD., purchased the 249 Hess Street property on October 7, 2005. Exhibit 21, Service Ontario, Land Registry office report shows that 0558154 B.C. LTD., is the Hess Street property owner on July 7, 2010.

26. Per Exhibit 22, the B.C., Registrar of Companies confirms that on November 22, 2006 0558154 B.C. LTD., was incorporated under the Business Corporations Act showing B.K. (Dave) Madan as Director and President, listing an address of 165 University Avenue, #179, Toronto, Ontario.

27. Exhibit 24, "Provincial Officer's Report" outlines Ms. Boland's July 27, 2010 observations at the Hess Street property, including two large shipping containers each containing some 25 barrels of unknown waste. "The liquid industrial and solid waste has appeared to have remained on the property for greater than two years".

28. Ms. Boland made several attempts to contact Mr. Madan leaving several messages and spoke with him a few times by telephone and meeting him on August 23, 2011. Ms. Boland testified that Mr. Madan did not comply with the August 4, 2010 Order deadline and as of the trial date the Order is still relevant to the ministry as all of the waste remains on site. Ms. Boland contacted Christopher Meyer who confirmed that he had not been retained by Mr. Madan to conduct the work in relation to this Order.

29. Ms. Boland's Provincial Officer's Order was delivered (per Exhibit 25) to 0558154 B.C. LTD., at its Vancouver and Toronto addresses and Dave Madan as the company Director and President at his Toronto address.

Baldev (Dave) Madan – Defendant

30. The court heard from the defendant, Baldev (Dave) Madan who is 64 years old. Defence Exhibit 27 indicates that Mr. Madan purchased the Hess and Catharine Street properties in 2005 as a City of Hamilton "tax sale" with the hope of "clearing the brownfields and developing them" with the help of government funding. The funding requirements proved too expensive for Mr. Madan with minimal tax rebate relief. Mr. Madan testified that he believed that the onsite waste presented no public health hazards, basing his assessment on his understanding of chemistry and pH values gleaned from his chemistry and engineering studies, noting "I believe I have a good knowledge of chemicals" and that he could deal with brownfields". He submits that the on-site liquids were merely rain water entering the building through the damaged roof and that the "… so called chemicals are harmless and of no consequence".

31. Mr. Madan referred to Exhibits 8 and 9, letters dated August 2, 2010 and August 4, 2010 respectively, that indicate that Chris Meyer and Max Meyer were retained to undertake the work required by the Provincial Orders. Mr. Madan provided no documentary evidence of this undertaking, noting that there was no written contractual agreement. This arrangement is similar to what he had in place when Mr. Meyer used his Hess Street property in lieu of payment for the demolition work he had done on that site prior to 2008. Mr. Madan provided no evidence as to Mr. Meyer's professional expertise in terms of satisfying the Order, or for that matter what Mr. Meyer's compensation would be for this work, given his evidence of limited finances, and non-payment arrangement with Mr. Meyer in the past.

32. Mr. Madan referred to a May 7, 2009 ministry' letter sent to him (Exhibit 26) which led him to believe that the Catharine Street property was cleaned up to the ministry's satisfaction. Mr. Madan noted his efforts to hire companies to clear up a vat at Catharine Street, including Hotz Environmental to wash tanks after the ministry deadline, suggesting that the ministry's intervention discouraged these companies from getting involved. Much of Mr. Madan's testimony was unclear as to dates and no documentary evidence was provided.

33. Mr. Madan testified that the court orders prevented him from re-entering his properties, although no entry dates were provided, apart from the time when Mr. Madan attended the Catharine Street property to install security cameras. Mr. Madan was referring to the Securement Orders that prohibited entry to the two properties for 30 days of the Order, requiring written ministry approval prior to entry.

34. Defence Exhibit 27 notes that in regard to the Catharine Street property Mr. Meyer was contracted to place the liquid waste chemicals into sea containers that were removed to an unknown location in 2007. It is Mr. Madan's belief that in 2010 Mr. Meyer returned the containers removed from the Catherine Street property in 2007 to the Hess Street property to "blackmail" him into selling the Hess Street property at a lower price anticipating the City of Hamilton was looking to acquire the property for the Pan-American games stadium.

35. Mr. Madan referred to his poor health, injuries from a traffic accident years earlier and his poor financial circumstances. He notes that "I am not capable any more physically or financially to handle these sites in Hamilton".

John Beals – Crown Prosecution Witness #4

36. The court heard from John Beals District Supervisor since 2010 with the Ministry of the Environment and Climate Change. He is the supervisor for the Hamilton Abatement Office that conducts proactive and reactive inspections. Officers Burt and Boland reported to him on the offence dates and he is familiar with the Provincial Orders and charges facing Mr. Madan in relation the Catharine and Hess Street properties. Mr. Beals is a rebuttal witness given Mr. Madan's testimony that he was prevented from accessing his property by the Securement Orders. Mr. Madan was evasive when cross examined regarding any access requests he had made to the ministry.

37. Mr. Beals is familiar with the Securement Orders concerning the Catharine and Hess Street properties. He testified that Mr. Madan never made written requests to the ministry to access his two properties as required by the Securement Orders. On cross examination Mr. Beals noted that the ministry issues very few Securement Orders.

D) APPLICABLE STATUTES AND CASELAW

Environmental Protection Act, R.S.O. 1990, c. E.19 as amended states:

s. 186(2) "Every person who fails to comply with an order under this Act, other than an order under section 99.1, 100.1, 150 or 182.1, is guilty of an offence. R.S.O. 1990, c.E.19, s186(2); 2005, c. 12, s.1(55)"

R. v. Sault Ste. Marie (City) (1978), 40 C.C.C.(2d) 353 (S.C.C.)

R. v. Lifcus (1997) 150 D.L.R. (4th)

R. v. Consolidated Maybrun Mines Limited (1998) 1 S.C.R. 706

R. v. W.(D.) [W.D.], [1991] S.C.J. No.26

Evidence Credibility – R. v. W.(D.)

As evidence credibility is an issue in this trial the court considered R. v. W.(D.) (1991) to determine which evidence the court finds more credible and reliable.

• Where I believe the defendant's evidence, I must acquit
• Where I don't believe the defendant's testimony, but I'm left in reasonable doubt, I must acquit
• Where I don't believe the accused's evidence, but on the balance of the evidence I have reasonable doubt, I must acquit

38. The only apparent contact between Mr. Madan and the ministry was largely initiated by the ministry. Mr. Madan testified that his failing health and limited finances hampered his efforts to respond to the Provincial Officer's Orders. Mr. Madan's actions fall short of acting diligently to address the ministry's concerns about environmental and public health and safety.

E) FINDINGS

39. The prosecution's and Mr. Madan's evidence confirm that the defendant is the owner and directing mind of the two Hamilton properties. Mr. Madan testified that he bought both properties in 2005. The ministry inspection in 2010 found these properties to present environmental, health and safety concerns and issued two Provincial Officer's Orders to Mr. Madan and his numbered company. Mr. Madan understood the Provincial Orders' requirements, although challenged the need for the professional waste assessment, submitting that in his personal opinion the waste presented no environmental, health or safety concerns.

OFFICIALLY INDUCED ERROR DEFENCE

40. The ministry's letter sent to Mr. Madan from Lance Larkin in 2009 (Exhibit 26) notes an "understanding of a general clean-up of material originally abandoned by the former owner". Mr. Madan submits that this letter led him to believe that the Catharine Street property was clean of contaminants. This letter further notes that "I would like to discuss the condition of the property with you (Mr. Madan) to determine if there are any remaining vats or containers of material stored". The letter concludes with an invitation to Mr. Madan to call the writer upon receipt of the letter. This communication could not be construed to mean that Mr. Madan's property remediation efforts are complete, and as such does not present the basis for an officially induced error defence. Mr. Madan could not, in good faith, have relied on this information to avoid his obligations in relation to this property.

41. There is no documentary evidence to support Mr. Madan's contention that he had hired the Meyers to address the ministry Orders. Christopher Meyer denies this, advising that while past work brought him into contact with Hotz Environmental, he does not possess the professional background to undertake this kind of assessment work. Mr. Madan claims poor health and limited financial resources as reasons for not doing more in relation to these Orders. He contends that Mr. Meyer, the City of Hamilton and the ministry have conspired against him.

42. Mr. Madan's account of what transpired prior to and after the 2010 Provincial Officer's Orders are different from that of Mr. Meyer, Mr. Burt, Ms. Boland and Mr. Beals. The evidence of the Hess and Catharine Street properties depict potentially serious, longstanding waste management, health and safety concerns. The ministry has a statutory and regulatory obligation to ensure that environmental health and safety concerns are addressed in a timely fashion, and looks to property owners to assist the ministry in this regard.

43. Mr. Tadros suggested that Mr. Meyer's credibility should be in question. It is his client's belief that Mr. Meyer had removed "…the waste off Catharines Street and put it somewhere for a couple years and then brought it back to Hess Street so he can make a lowball purchase offer…". The defendant further contends that the City of Hamilton was interested in re-acquiring the Catharine Street property for the Pan-American Games, and that Mr. Meyer thought that he could capitalize on this.

ACTUS REUS

44. The Crown must prove all elements of the actus reus of the offence beyond a reasonable doubt. As per R. v. Lifcus (1997), "proof must be logically connected to the evidence, or absence of the evidence, and does not involve proof of an absolute certainty…"

DUE DILIGENCE – LEGAL PRINCIPLES

45. The charges before this court are strict liability offences. Once the actus reus of the offence is proved a conviction must follow unless the defendant exercised due diligence to avoid the commission of the offence. (R. v. Sault Ste. Marie (City) (1978), 40 C.C.C.(2d) 353 (S.C.C.)). Based on the evidence this court finds that the prosecution has proven the actus reus of the offences. This court now turns to due diligence. The defendant must prove due diligence on a balance of probabilities and call evidence to positively make out due diligence. Per R. v. Sault Ste. Marie, "In the normal case, the accused alone will have knowledge of what he has done to avoid the breach and it is not improper to expect him to come forward with evidence of due diligence".

46. Mr. Burt and Ms. Boland testified that Mr. Madan has not complied with their Provincial Officer's Orders, and made little effort to communicate with them to address the environmental concerns, including a possible compliance date extension, despite meetings in August 2011 at City Hall and on the Hess Street property in September 2011. Exhibits 8 and 9 letters sent to the Ministry in 2010 are adversarial in nature and characterize the ministry's actions as "trespassing" and "harassment" in relation to Mr. Madan and his properties that appear not inconsistent with Mr. Burt's and Ms. Boland's interaction with Mr. Madan. Both letters challenge the ministry's Orders making claims that are not supported by facts. Mr. Madan's defence lacks an evidential foundation, and lacks an air of reality, and fails to raise reasonable doubt in the court's mind.

H) JUDGEMENT

47. The court finds that on a balance of probabilities that Mr. Madan failed to exercise due diligence that would be expected of a reasonable person in the circumstances, and that there is no merit to the defense arguments regarding an officially induced error that would justify a stay.

48. After considering the evidence presented to this court, and R. v. W.(D.), this court finds that the Crown prosecution has proven its case beyond a reasonable doubt, that Mr. Madan has failed to comply with the two Provincial Officer's Orders and convictions will be registered on counts 2, 3 and 5 of the Information.

Signed ________________________________________________

Stephen Lancaster, Justice of the Peace

Released: February 26, 2016