Court Information

Ontario Court of Justice (East Region)

Date: 2017-08-16

Court File No.: 15-0454-01/02/03/04

Location: Napanee, Ontario

Parties

Between:

Her Majesty the Queen Crown

-and-

Martha Embury Edward Embury Harvest Hill Farms Ltd. And Lennox Pork Ltd. Defendants

Judicial Officer

Before: C. Peltzer J.P.

Hearing and Judgment Dates

Heard:

January 16, 2017
April 10, 11, 12, 2017
May 16, 17, 2017

Judgment: August 16, 2017

Counsel

For the Crown: Edward Wren

For the Defendants: Donald Good

Witnesses

Crown Witnesses:

Trevor Dagilis
Rhonda Clancy
Brent Winters
Peter Doris

Defence Witnesses:

Edward Embury
Martha Embury
Wayne Currah
Paul McCulloch

Statutes, Regulations and Rules Cited

Ontario Water Resources Act, R.S.O. 1990, c. O.40, as amended. ss. 0.1, 16.4, 107(2)
Nutrient Management Act, 2002, S.O. 2002, c. 4. ss. 1, 43(1)(c), 43(2)
Nutrient Management Act Regulations, O. Reg. 267/03, as amended. ss. 6(1), 10(2)
Provincial Offences Act, R.S.O. 1990, c. P.33. ss. 47(3), 81

Decision of the Court

A. Decision

[1] C. Peltzer J.P.: The following are my reasons for judgment.

[2] I am satisfied beyond a reasonable doubt that the elements of the offences in counts 1 through 6 have been made out on the evidence presented at trial as against the four named Defendants.

[3] Although I have made findings of guilt on all counts, convictions will only be entered on counts 1, 3, 4, 5, and 6 given the duplication of the charges in counts 1 and 2: this is in keeping with the principle in Kineapple.

[4] A conditional stay will be entered for count 2, which will become a permanent stay of proceedings following the expiry of any appeal period.

[5] Following my summary of the case, I will outline the purpose of the legislation; respond to the submissions of counsel; address the issues that arose in the evidence; and make conclusions from the evidence.

B. Background

[6] Edward Embury, Martha Embury, Harvest Hill Farms Ltd. (hereinafter Harvest Hill Farms) and Lennox Pork Ltd. (hereinafter Lennox Pork) owned/operated/controlled a large hog finishing operation on their farm property near Newburgh, Ontario.

[7] An inspection of the Hog 1 and Hog 2 sites in 2013 by Officer Clancy of the MOECC (hereinafter MOECC) resulted in a Provincial Officer's Order (hereinafter POO) being placed against the Operation/Operators, due to concerns about the handling and storage of prescribed material (manure) on site.

[8] The Defendants sought a review of the POO, which was granted by Director Trevor Dagilis (hereinafter Dagilis). After getting input from the parties, Dagilis generated his own Director's Order (hereinafter DO) thereby replacing the original POO; which is ultimately the subject matter of this case.

[9] Various reasons were given by the Defendants as to why certain items in the DO were not completed by the required compliance dates. Specifically, items #11 (written confirmation that manure production had ceased) and #25 (which required an engineering assessment and site characterization study to be completed relating to the structures and lands of the Hog 1 and Hog 2 sites).

[10] Dagilis was concerned that the production and storage of manure at the sites may result in contamination of groundwater without evidence that the storage areas were adequately engineered to prevent seepage into the environment.

[11] Dagilis was also concerned whether the soils on which the sites were located were suitable for such an intensive hog operation.

[12] Although most of the items in the DO were complied with, items #11 and #25 remained outstanding.

[13] The Defendants relied on the fact that they had applied for a new Nutrient Management Strategy (hereinafter NMS) for Lennox Pork, which was operating the hog operation after January 2014, as evidence of compliance.

[14] A fire in March 2014 destroyed the Hog 2 structure which caused significant delays in clean-up and rebuilding due to the regulations involving the removal of manure and debris during the winter months and the extensive permitting process required for rebuilding.

[15] The Defendants initially appealed the DO to the Environmental Review Tribunal (hereinafter ERT) in October 2013. For reasons that are subject to privilege, the appeal was eventually withdrawn in June 2015 on consent of the parties; which left the DO unaltered and in full force and effect.

C. Offences

Count 1

THAT Martha Embury, Edward Embury, and Harvest Hill Farms Ltd. during the period beginning on or about November 9, 2013 and ending on or about July 6, 2015 at or near 276 Embury Rd RR#1 Newburgh Ontario, Township of Stone Mills, County of Lennox and Addington and elsewhere in the Province of Ontario did commit the offence of failing to comply with item number 11 of Director's Order #4426-98EJ3W-1, dated October 8, 2013 by failing to provide written confirmation that the permitting, causing or arranging for the deposit of livestock manure in the existing liquid storage structures, facilities or into the natural environment at the Hog 1 and Hog 2 Site has ceased, thereby committing an offence under s. 107(2) of the Ontario Water Resources Act, R.S.O. 1990, c. O.40, as amended.

Count 2

AND FURTHER THAT, Martha Embury, Edward Embury, and Harvest Hill Farms Ltd. during the period beginning on or about November 9, 2013 and ending on or about July 6, 2015 at or near 276 Embury Rd RR#1 Newburgh Ontario, Township of Stone Mills, County of Lennox and Addington and elsewhere in the Province of Ontario did commit the offence of failing to comply with item number 11 of Director's Order #4426-98EJ3W-1, dated October 8, 2013 by failing to provide written confirmation that the permitting, causing or arranging for the deposit of livestock manure in the existing liquid storage structures, facilities or into the natural environment at the Hog 1 and Hog 2 Site has ceased, thereby committing an offence under s. 43(1)(c) of the Nutrient Management Act, as amended.

Count 3

AND FURTHER THAT, Martha Embury, Edward Embury, and Harvest Hill Farms Ltd. during the period beginning on or about July 1, 2014 and ending on or about July 6, 2015 at or near 276 Embury Rd RR#1 Newburgh Ontario, Township of Stone Mills, County of Lennox and Addington and elsewhere in the Province of Ontario did commit the offence of failing to comply with item number 25 of Director's Order #4426-98EJ3W-1, dated October 8, 2013 by failing to submit to the issuing Director or his delegate an engineering assessment completed by a Professional Engineer which details and assesses the integrity and suitability of the manure storages at Hog 1 and Hog 2 Sites relative to sound engineering practice and the requirements set out in the Nutrient Management Act, thereby committing an offence under s. 43(1)(c) of the Nutrient Management Act, as amended.

Count 4

AND FURTHER THAT, Martha Embury, Edward Embury, and Harvest Hill Farms Ltd. during the period beginning on or about November 30, 2013 and ending on or about December 20, 2013 at or near 276 Embury Rd RR#1 Newburgh Ontario, Township of Stone Mills, County of Lennox and Addington and elsewhere in the Province of Ontario did commit the offence of failing to comply with item number 25 of Director's Order #4426-98EJ3W-1, dated October 8, 2013 by failing to submit to the issuing Director or his delegate a site characterization study of Hog 1 and Hog 2 manure storage sites as required by O. Reg. 267/03, thereby committing an offence under s. 43(1)(c) of the Nutrient Management Act, as amended.

Count 5

AND FURTHER THAT, Lennox Pork Ltd. during the period beginning on or about January 16, 2014 and ending on or about April 1, 2014 at or near 276 Embury Rd RR#1 Newburgh Ontario, Township of Stone Mills, County of Lennox and Addington and elsewhere in the Province of Ontario did commit the offence of managing prescribed materials that are generated in the course of an agricultural operation except in accordance with a nutrient management strategy, namely operating a hog producing operation that produced manure, contrary to s. 10(2) of Regulation 267/03 as amended, made under the Nutrient Management Act, as amended, thereby committing an offence under s. 43(1)(a) of the Nutrient Management Act, as amended.

Count 6

AND FURTHER THAT, Martha Embury during the period beginning on or about January 16, 2014 and ending on or about April 1, 2014 at or near 276 Embury Rd RR#1 Newburgh Ontario, Township of Stone Mills, County of Lennox and Addington and elsewhere in the Province of Ontario as a Director or Officer of Lennox Pork Ltd., did commit the offence of failing knowingly concurring in the commission of an offence by the Corporation, namely operating a farm unit except in accordance with a Nutrient Management Strategy that is in force with respect to the operation and the farm unit contrary to s. 43(2) of the Nutrient Management Act, as amended, thereby committing an offence under s. 43(1) of the said Act.

D. Legislative Framework

[16] The Nutrient Management Act and the Ontario Water Resources Act apply to the Hog 1 and Hog 2 site due to the size and nature of the hog operation.

[17] The amount of manure and other prescribed material generated on site also triggered the requirement for a valid NMS to be in place throughout its period of operation.

[18] The purpose of these Acts inform my assessment of the evidence in the proceeding.

[19] The Nutrient Management Act states:

The purpose of this Act is to provide for the management of materials containing nutrients in ways that will enhance protection of the natural environment and provide a sustainable future for agricultural operations and rural development.

[20] This statement recognizes the ongoing tensions and dynamics between economic certainty and sustainability of both small and large agricultural operations that generate nutrient materials and the public's ongoing concern about controlling and monitoring the addition of nutrients into the environment and their latent effects.

[21] The purpose of the Ontario Water Resources Act reiterates this ongoing public/private dynamic when it states:

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.

[22] This case is an excellent example of these tensions between economic certainty, operator compliance, and environmental sustainability.

E. Findings of the Court

i. General Findings

[23] The following list is not designed to be exhaustive, but rather indicates my determination of some of the issues before the Court. These are in addition to my comments below.

[24] I find that:

A. The Defendants Edward Embury, Martha Embury, and Harvest Hill Farm were the owners/operators/controllers of the Hog 1 and Hog 2 operations which form the subject matter of counts 1-4 because:

i. The evidence of each witness was clear that these parties were intimately involved in the day to day operations of the farm as it is a family run business;

ii. They communicated with authorities on behalf of the operation; and

iii. They, by way of ownership, control, or actions, were responsible for the operations of the Hog 1 and Hog 2 sites during the date ranges in the information.

B. There is no issue regarding the identity of the parties or of the location of the hog operation given the overlapping evidence of both Crown and Defence witnesses.

C. I accept that the Emburys retrofitted existing chicken barns into hog finishing barns having researched best practices across North America prior to construction.

D. The Defendants had previously installed transfer sites (storage areas) at the Hog 1 and Hog 2 barns to prevent any leakage into the environment and that these sites were installed with proper permits at that time.

E. There was no evidence at trial of any observations of spillage or seepage of manure out of the storage units at any time.

F. Relations with the MOECC were strained dating back to 2008 and the Emburys felt that nothing they could do would satisfy them.

G. It was clear in the evidence that there was some level of frustration and animosity between the Emburys and the MOECC.

H. Lennox Pork, through its Director Martha Embury, filed its initial NMS application signed 5 July 2013, and was received by OMAFRA on 12 July 2013; and

I. That Lennox Pork also filed a revised NMS application signed on 17 October 2014, and received by OMAFRA on 14 January 2015.

ii. The Alleged Promise by Director Dagilis Not to Prosecute

[25] Edward and Martha Embury and Wayne Currah (their Consultant) testified that at the meeting on 20 September 2013, Director Dagilis promised that he would not be prosecuting the Defendants for non-compliance.

[26] Dagilis testified that no such promise was made and that he would not have provided any promise that would have limited his authority to enforce the terms of the NMA.

[27] This difference in evidence created a classic credibility issue that needs to be resolved.

[28] The defence asserted that:

A. There were three witnesses to the alleged promise not to prosecute;

B. The promise was in response to a question asked by Martha Embury asking whether they were at risk of charges for non-compliance with the Order;

C. Martha Embury expressed significant relief after hearing the promise by Dagilis as it alleviated concerns she had about potential charges; and

D. The Defendants then relied on this promise which in turn apparently satisfied them that they were on the right track in:

i. Having applied for the new NMS through Lennox Pork; and

ii. Engaging with OMAFRA for final approval of the proposed NMS.

[29] On the other hand, the Crown asserted that the credibility of the Defence witnesses Edward Embury, Martha Embury, and Wayne Currah were strained given:

A. The overall nature and content of their testimony given their erroneous and distorted interpretations of:

i. The NMA;

ii. The meaning of the Notice of Motion before the ERT; and

iii. Of compliance issues generally;

which also undermined the reliability of their recollections of their conversations at the meeting and of the meaning of Dagilis' comments to them;

B. That their interpretations of their legal obligations and documentation were unreasonable due to the fact that:

i. They never asked for clarification of their assumptions regarding the approval process for NMS applications; and

ii. They never advised anyone in authority of their ultimate reliance on this alleged promise;

C. That their credibility is challenged due to their allegations of interference by the MOECC throughout their farming endeavors without providing any concrete examples of said interference;

D. That their animosity towards the MOECC ultimately affected their interpretations of events and documentation;

E. That the promise, even if it was made, would not bind the Crown in any event; and

F. That it was illogical for the alleged promise to apply to the Director's Order as it was not in existence at that time.

[30] I find in relation to the alleged promise made by Director Dagilis that:

A. Dagilis' testimony about his comments and actions were internally consistent and did not vary;

B. Dagilis denied making the promise alleged;

C. Dagilis' comments about the goals of cooperation between the MOECC, OMAFRA and the Emburys were simply that—cooperation, with the aim of moving towards ultimate compliance, which cannot be confused with any promise of immunity from prosecution;

D. It is illogical that a promise would be made in relation to a DO that did not exist at the time of the meeting in September 2013, given that at the time of the meeting:

i. There was only a POO in existence that the Emburys had asked for a review of; and

ii. There was no litigation contemplated at that time (this may have been communicated to them, but it in no way meant that no charges would ever be laid).

E. The Emburys and Currah's interpretation of Dagilis' comments were not credible and were self-serving because:

i. No Director's order existed at the time;

ii. It is illogical and improper for a Director to obviate on his authority to enforce the law if the need arises;

iii. The testimony of the Emburys and Currah are internally inconsistent in that:

a. They testified that they honestly believed they were complying—given that they had applied for a new NMS for Lennox Pork; and

b. That Currah confirmed this belief in his testimony;

c. BUT—if they in fact believed they were complying—it strikes me as odd that the Emburys were worried about charges being laid—which led to the questions asked of Dagilis in the first place; and

d. Martha also testified that she experienced "relief" when Dagilis allegedly said no charges were being laid.

F. My conclusion is that one cannot have it both ways:

i. If they in fact believed that:

a. They were complying with the Provincial Officers or Director's Order through the period of non-compliance as they have testified; and

b. These beliefs were honestly held;

c. Then according to their own evidence, they should not have been concerned about prosecution as they had already filed their NMS in July 2013.

ii. Given their evidence that they were also deeply concerned about prosecution, to the point where they sought assurance from Dagilis at the meeting in September 2013 (and ultimately drew comfort from their interpretation of Dagilis' words at the meeting) it undermines their assertions/assumptions about their state of compliance with the NMA.

iii. Either they thought they were complying, or they didn't.

iv. These inconsistencies undermine their credibility of their beliefs and has informed several of my findings at trial.

[31] Therefore, I find that:

A. I do not accept that a promise was made by Dagilis not to prosecute;

B. At the time of the meeting the DO was not in existence as there was only a POO in existence at that time;

C. Discussions regarding cooperation and compliance were misconstrued by the Defendants and erroneously relied upon;

D. Dagilis' actions following the meeting were consistent with his assertions that no promises were made; as charges were ultimately laid;

E. The interpretations of the Defendants from their own evidence are:

i. Wrong in law:

a. Regarding equating compliance with the filing a NMS application; and

b. Regarding the actual meaning of the ERT appeal withdrawal;

ii. Unreasonable, due to:

a. Their blind reliance of their own interpretation of the NMA;

b. Their misunderstanding of the nature and effect of the Notice of Motion;

c. The fact that they could have easily clarified their legal obligations by asking anyone in authority for clarification;

i. This they did not do—despite their apparent reliance on their mistaken beliefs;

d. The evidence of their interpretation of the NMS process and their presumed compliance, which clearly contradicts the meaning and purpose of the NMA and creates an absurdity in that:

i. If application equals approval, as the Defendants assert, then anyone could proceed to produce manure in a farming operation without approval or oversight from OMAFRA or MOA ahead of time; and

e. The fact that if their interpretations were true, this presumptive approach would:

i. Undermine the purpose of the NMA as it would then authorize many types of production of prescribed materials before adequate review of the proposed farming operations by OMAFRA and the MOECC;

ii. Create significant economic and environmental uncertainty as:

Farming operations may have to be shut-down following their start-up if their NMS applications were ultimately rejected; notwithstanding significant investments having already been made by the operators;

Significant environmental damage may occur by operators using deficient methods of nutrient management while OMAFRA takes weeks or months to review their applications; and

Public health and safety may be undermined in the process.

[32] It must be noted that the initial onus is not on the MOECC or OMAFRA to shut down an operation, the initial onus is on the farmers/operators to have proper permits and authorizations prior to producing farming products that generate prescribed materials.

[33] Next, I will address the counts before the court.

iii. The Director's Order Applied to the Defendants in Counts 1-4

[34] Director Dagilis had the authority to issue his DO against Edward Embury, Martha Embury, and Harvest Hill Farms as they were the owners/operators/controllers of the Hog 1 and Hog 2 operations.

[35] Given the evidence at trial, there is no issue regarding Dagilis' jurisdiction to make the Order. This authority arose from s. 16.4 of the Ontario Water Resources Act and s. 32 of the Nutrient Management Act respectively.

[36] The DO was a result of an application for review of Officer Clancy's POO from July 2013, given the concerns raised by the Emburys relating to the original POO.

[37] Also, given that the appeal to the ERT was withdrawn, the DO remained in effect throughout the dates contained in counts 1-4.

iv. The Director's Order Was Not Complied With

[38] At no time during the period from November 9, 2013 – July 6, 2015 did the Defendants comply with item #11 of the DO requiring them to provide written confirmation that they had ceased causing or permitting the deposit of livestock manure into the existing storage facilities, which makes out the actus reus of the offences in counts 1 and 2.

[39] I accept the evidence of Brent Winters, Peter Doris, and Wayne Currah that the hog operation continued throughout the non-compliance period; except in relation to the Hog 2 barn that was destroyed by fire in March 2014.

[40] At no time during the period from July 1, 2014 – July 6, 2015 did the Defendants comply with item #25 of the DO requiring them to provide an engineering assessment which addresses the integrity and suitability of the manure storage areas at the Hog 1 and Hog 2 sites, which makes out the actus reus of the offence in count 3, as:

A. Notwithstanding that extensions were provided by Brent Winters allowing more time due to the unique circumstances of their operation (the fire, cold weather, impediments to manure removal), the Defendants still did not provide the engineering assessment as required, as it could not be completed until the manure storage areas were cleared of manure, and as the evidence showed, the operation continued unabated. Therefore, at no time was there any opportunity for the engineers to complete their assessment;

B. The Defendants chose to continue operations for various reasons (be they financial, contractual, or otherwise); and

C. Their decision to continue farming operations was also apparently informed by their erroneous assumptions that their filed NMS application obviated the need to comply with the DO which required them to cease operations in order to allow an engineering assessment to be completed.

[41] At no time during the period from November 30, 2013 - December 20, 2013 did the Defendants comply with item #25 of the Director's Order requiring them to provide a Site Characterization Study of the Hog 1 and Hog 2 sites, which makes out the actus reus for count 4.

A. The evidence at trial was that the Site Characterization Study was completed by December 20, 2013 but was not filed with the Ministry until three days after the due date, being December 23, 2013.

[42] Doing an R. v. W.D. analysis on the evidence for counts 1-4 does not change the outcome of my decision as the Defendants did not provide any exculpatory evidence that they had in fact complied with items #11 and #25 in the Director's Order (other than their bald assertion that in applying for the new NMS it somehow obviated the need to concern themselves with the outstanding terms in the Director's Order).

[43] In reviewing the Defendants' evidence, in light of all of the evidence relating to counts 1-4, I find that:

A. I do not have evidence from them that I accept that is exculpatory in nature as it relates to the actus reus;

B. I also do not have evidence that in light of the whole of the evidence leaves me with a reasonable doubt as to the actus reus; and

C. Based on the remaining evidence that I have, both the evidence of the Defendants that is inculpatory (their belief that they were complying already) and the evidence of the ministry officials that the required documents were not received by the dates required, I am satisfied beyond a reasonable doubt that the actus reus of counts 1-4 have been made out.

[44] Since counts 1-4 are strict liability offences, once the prohibited act or omission has been made out beyond a reasonable doubt, the negligence of the acts/omissions are then presumed. It then falls to the Defendants to avail themselves of the defences at law to the acts/omissions proven.

v. Available Defences

[45] Several defences were available to the Defendants for counts 1-4.

[46] Regarding the defence of Due Diligence:

A. The All Reasonable Care branch of the defence of Due Diligence was not made out on a balance of probabilities for counts 1-4 as:

i. There was little to no evidence that the Defendants took "all reasonable care" to avoid the prohibited act (being non-compliance with the terms of the DO);

ii. They continued to operate their hog operation throughout the non-compliance period making it impossible to comply with terms #11 and #25 of the DO; and

iii. They testified that they did not think that they had to comply specifically with the DO based on:

a. Their mistaken assumptions relating to the filing of the NMS previously; and

b. The alleged promise made by Dagilis.

B. The Reasonable Mistake of Fact branch of the defence of due diligence can also apply when a Defendant reasonably believes in a mistaken set of facts that, if true, would render the act or omission innocent.

i. In this case a Reasonable Mistake of Fact Defence has been not made out on a balance of probabilities for the following reasons:

a. The facts that the Defendants relied on did not render their acts or omissions innocent;

b. They relied on erroneous advice from their consultant Wayne Currah who told them that:

i. Once their NMS application was submitted it obviated the need to concern themselves with the DO; and

ii. They were in a state of compliance at that point unless OMAFRA told them otherwise; and

c. That this incorrect advice and assumptions on their part are not objectively reasonable.

ii. Again, I would reiterate that the Defendants own actions in relation to partial compliance and their apparent anxiety about prosecution do not lend credibility to their assertions about compliance.

[47] Regarding the Defence of Officially Induced Error of Law:

A. Ignorance of the law is not a defence to a charge.

B. Officially Induced Error of Law, or mixed fact and law is an exception to the general rule that ignorance of the law is no excuse for committing an offence.

C. This defence recognizes it is reasonable for someone to assume he or she knows the law after consulting a representative of the state acting in a capacity which makes the person an expert on that subject.

D. The elements required to establish Officially Induced Error are:

i. An error of law or of mixed law and fact was made

ii. The defendant considered the legal consequences of his or her actions

iii. The advice was obtained from an appropriate official

iv. The advice was reasonable

v. The advice was wrong and

vi. The defendant relied on the advice in committing the act.

E. It is necessary to establish the objective reasonableness not only of the advice, but also of the reliance on the advice.

F. Factors to be considered in determining this include:

i. The efforts made to obtain information;

ii. The clarity or obscurity of the law

iii. The position and role of official that gave the advice and

iv. The clarity, definitiveness and reasonableness of the advice.

G. It is not sufficient in such cases to conduct a purely subjective analysis of the reasonableness of the information. This aspect of the question must be considered from the perspective of a reasonable person in a situation similar to that of the defendant.

H. The defence of officially induced error must be proven by the defendant, on a balance of probabilities.

I. If the defence of officially induced error is made out, the procedure is to find the defendant guilty of the offence charged but enter a stay of proceedings rather than a conviction. An acquittal is not entered if this defence succeeds.

[48] Below are my findings relating to the six factors of the defence of Officially Induced Error:

A. Was there an error of law or of mixed law and fact?

i. Yes, there was an error of mixed fact and law in this case:

a. There was an error of law by the Defendants regarding their belief in the existence of an authorization to continue their operation; and

b. An error of fact in their belief in the existence of a permit/authorization (NMS) to continue the hog operation.

B. Had the Defendants considered the legal consequences of their actions?

i. Yes;

ii. They took their actions based on assumptions and incorrect advice from their Consultant; and

iii. They had retained counsel throughout the process, but it is unknown if advice was provided in this regard.

C. Was the advice obtained from an appropriate official?

i. No;

ii. There is no evidence that advice was sought from the appropriate official regarding their stated beliefs regarding compliance; and

iii. The advice they received was from parties other than an appropriate official.

D. Was the advice reasonable?

i. No.

ii. The advice from the consultant and their beliefs were not reasonable.

E. Was the advice wrong?

i. Yes;

ii. The advice received and the beliefs held were wrong in law, illogical, and contrary to the purpose of the NMA as previously stated.

F. Did the Defendants rely on the advice in committing the act?

i. Yes, according to their own evidence they relied on these beliefs in making the decisions they made during the period of non-compliance.

[49] Given the above, I am of the view that the six requirements of Officially Induced Error of Law have not been made-out on a balance of probabilities.

vi. Issue of Mootness at ERT

[50] I find that:

A. I agree with the Crown in that the issues before the ERT became moot because the Defendants were soon to have a new NMS which may contain many of the same conditions as the existing Director's Order and that the requirements in items #11 and #25 were not going to disappear following the issuance of the new NMS;

B. A plain reading of the notice of motion does cause one to reasonably conclude that the Director's Order has been affected in any way; and

C. The only element that became moot, according to the notice of motion, was the appeal itself, not the DO.

vii. Count 5 Relating to Lennox Pork Ltd.

[51] I am satisfied beyond a reasonable doubt that Lennox Pork Ltd. generated and managed prescribed materials without the required approved NMS as required by s. 10(2) of Regulation 267/03 and therefore committed an offence under s. 43(1)(a) of the NMA between January 16, 2014 and April 1, 2014 for the following reasons:

A. Several witnesses testified that the hog operation at Hog 1 and Hog 2 continued during this time period—which meant that Lennox Pork produced prescribed materials prior to having an approved NMS from OMAFRA.

B. Both Brent Winters and Peter Doris testified as to the ongoing nature of the hog operation;

C. Wayne Currah also testified that the operations were ongoing through 2013-2015; except during the rebuilding period of Hog 2 following the fire in March 2014;

D. Martha Embury, with the assistance of Wayne Currah, filed at least 2 NMS applications between July 2013 and October 2014, where she indicated that Lennox Pork was producing prescribed materials and that an NMS was required for approval.

[52] Based on the testimony of Brent Winters, Peter Doris, the Emburys and Wayne Currah, there is no question in my mind that Lennox Pork produced prescribed materials without a NMS authorized by OMAFRA.

[53] The evidence provided by the Defendants regarding their beliefs in their compliance status has previously been discussed, which also applies to this count against Lennox Pork.

[54] Again, their belief that submitting the application was sufficient to proceed with production has been shown to be both wrong in law and unreasonable for the reasons stated above.

[55] Given these findings, my R. v. W.D. analysis of the evidence at trial relating to count 5 does not leave me with any reasonable doubt as the evidence of the Defendants was consistent with the prohibited act alleged. By extension then, their evidence was also not exculpatory on this point nor did it leave me with a reasonable doubt relating to the prohibited act.

[56] Of note: once the Crown established that prescribed materials were being generated by Lennox Pork Ltd., which is a prohibited act without proper authorization, s. 47(3) of the Provincial Offences Act states that it is on the Defendant to prove on a balance of probabilities that any permit or authorization operates in their favour.

A. Given the fact that:

i. No NMA approval was in existence during the time periods in Count 5; and

ii. Martha Embury's own evidence was that the NMA application was still in the approval process during the time period in count 5, with the ultimate NMA approval for Lennox Pork not being finalized until July 2015;

this onus has not been met.

viii. Count 6 Relating to Martha Embury as Director of Lennox Pork Ltd.

[57] I am also satisfied beyond a reasonable doubt that Martha Embury as Director of Lennox Pork Ltd. knowingly concurred in the generating and managing of prescribed materials without the required approved NMS contrary to s. 43(2) of the NMA and therefore committed an offence under s. 43(1) of the NMA between January 16, 2014 and April 1, 2014 for the following reasons:

A. In addition to my reasons stated previously, I find that the elements of this offence, including the mens rea, have been made out beyond a reasonable doubt.

B. Martha Embury was the Director of Lennox Pork and applied on behalf of Lennox Pork for the NMS application on two occasions, with the assistance of Wayne Currah.

C. There is no doubt in my mind that she had personal knowledge of the activities of Lennox Pork in producing prescribed materials during the offence period in count 5 as she was the author/signatory of the details of the Lennox Pork's plans and operations as outlined in her NMS applications.

D. Her stated beliefs in compliance once the NMS application was submitted have already been ruled to be unreasonably held and incorrect based on my previous findings.

E. I find that she had actual knowledge of the day to day operations of Lennox Pork and as its Director knowingly concurred in its non-compliance with the NMA.

F. No defences have been made out for count 6 in favour of Martha Embury for the same reasons as stated previously.

[58] Also, in my R. v. W.D. analysis I do not find that Martha Embury's, or the other Defendants' evidence was exculpatory in nature so as to leave me with a reasonable doubt regarding count 6.

[59] Based on the evidence that I do accept from Martha Embury, Wayne Currah, Edward Embury, Brent Winters, and Peter Doris, it is clear that the hog operation continued throughout the time period in count 6 and that Martha knew that Lennox Pork did not have an NMS approval authorizing the production of prescribed materials.

F. Comments: In Obiter

[60] In looking at the evidence of the parties at trial and measuring it against the purposes of the NMA and the OWRA, certain comments I believe are in order:

A. If the MOECC was genuinely concerned with the production of prescribed materials and had concerns about the Hog 1 and Hog 2 operations, why did they simply rely on a DO and not intervene further?

B. Given the public's obvious concerns with the possibility of seepage and water contamination, especially in light of the tragedy in Walkerton, Ontario, why would the MOECC and OMAFRA allow two years to pass without intervening further?

C. How is it that in Ontario hogs can be produced and sold from a farm where the production and storage of manure has not been determined to be safe?

D. Either there was a genuine concern for public health and possible pollution or there was not.

E. Relying on prosecution after the fact is cold comfort for any community in the event that there actually was a problem with the engineering of the storage areas or the suitability of the lands.

F. Notwithstanding that the Engineers Site Characterization Report stated that the lands did not appear suitable, according to the evidence in this case, months and years past before the issues were rectified. How is this tolerated?

G. This passive approach is problematic, again in light of the Walkerton tragedy, and in light of the purposes of the NMA and the OWRA.

H. I think it is safe to say that the public expects more of the MOECC and OMAFRA.

[61] This case also highlighted for me the potential communication issues that arise when one ministry is responsible for permitting and another is responsible for compliance and enforcement.

A. In this arrangement it is all too possible for either miscommunication of expectations or significant periods of time to pass where farm operators may not know where they stand regarding compliance issues or outstanding applications. This arrangement may allow non-compliance issues to linger.

B. Where there are concerns with possible contamination of the environment, it is imperative that both ministries work together and speak with one voice and communicate their expectations clearly to farmers and the public.

C. I appreciate that there may be a reluctance to interfere with a farming operation, as there would be an obvious financial impact, but any such impact pales in comparison to dealing with the possible effects of contamination.

D. In the event that an intervention shows that there was in fact no issues of contamination, it would then allow all parties to move forward with confidence. Any other approach is simply a calculated risk on the part of the ministries responsible for the farming industry and for the public's well-being.

Released: August 16, 2017

Justice of the Peace C. Peltzer