DATE : December 18, 2023
ONTARIO COURT OF JUSTICE (East Region)
BETWEEN:
HIS MAJESTY THE KING (Prosecutor)
- and –
WELLMASTERS PLUS INC. et al. (Defendants)
REASONS FOR DECISION
18 December 2023
J.P. C. Peltzer
Legislation
- Provincial Offences Act, RSO 1990, c P.33, ss. 36, 47(3)
- Ontario Water Resources Act, R.S.O. 1990 c. 0.40, ss. 35(1), 43(1), 75(2), 107(1), 107(3), 114
- R.R.O. 1990, Regulation 903, ss 1, 7.4, 14.11(2), 15, 15.3, 16.2(1)
- Legislation Act, 2006, SO 2006, c 21, Sch F, ss. 67, 85 - 86
- Water Supply Wells: Requirements and Best Practices, Chapter 8: Well Disinfection
Cases
- R. v. Rowe, 2011 ONCA 753 at para. 58
- R. v. Sault Ste Marie, [1978] 2 SCR 1299
- R. v. W.(D.), [1991] 1 SCR 742
- Quesnel v. Ontario, [2023] O.J. No. 2810 at para. 51 (O.C.J. in appeal capacity)
- R. v. Oickle, [2000] 2 S.C.R. 3
- R. v. Hamilton (City), [2002] O.J. No. 283 (C.A.) at para. 16
- R. v. Strand Electric Ltd., [1968] O.J. No. 1291 (C.A.)
Witnesses
- Bruce Hickey
- Karen Hickey
- Darnell Francis
- Gerry Marcotte
- Monica Howlett
- Mary Cawker-Nelson
- David Montrose
- David Fisher
- Jeffrey Demarsh
- Warren Lusk
- Holly MacDonald
- Aaron MacDonald
Summary of the Case
[1] Bruce and Karen Hickey (hereinafter Bruce and Karen or the Hickey’s) were having sediment issues with their well in the spring of 2017. They called several well companies to assist, but without success. After several requests Wellmasters Plus Inc. (hereinafter Wellmasters) agreed to do a site visit. Aaron MacDonald (hereinafter Aaron) and an assistant attended at 1499 Boulter Road, Township of Carlo Mayo, County of Hastings, on 16 August 2017.
[2] Once on site, Aaron found that the well cap had been removed and about 20 ft of waterline had been lifted from the well and that the pump was presently stuck. Aaron and his assistant returned to the property on the 18th August 2017 where the pump was removed with the help of Halliburton Crane and a new pump, pressure tank, and screen saver were installed.
[3] The Hickey’s had concerns at the time about how the pump and waterline were installed. Conversations ensued with Aaron about chlorination procedures and the process for disinfecting the waterlines.
[4] A week or two after the installation the Hickey’s still had sediment issues with their water and received notice from the Health Unit that their latest water test had bacteria contamination. This prompted them to contact their local Health Unit and authorities as to their next steps. An investigation ensued where inspectors became concerned how the work had been done and that contamination may have resulted from disinfecting procedures not being followed.
[5] Following an interview with Aaron on 26 June 2018, where he provided both inculpatory and exculpatory statements, investigators decided to pursue charges against him, Wellmasters, and David Miles MacDonald (hereinafter Miles) which are the defendant’s before the court.
Findings on Issues Raised During Trial
[6] Given the evidence at trial, exhibits filed, and concessions made, there are no concerns in evidence regarding issues of time, date, place, jurisdiction, or identity for the parties. It was clear that Wellmasters was a corporate entity and Miles and Holly MacDonald (hereinafter Holly) were directors of the company, with Aaron as one of their employees.
[7] Following a blended voluntariness voir dire it was agreed by counsel and confirmed by the court that the statements made by Aaron to those in a position of authority were voluntary beyond a reasonable doubt (see R. v. Oickle, [2000] 2 S.C.R. 3) and that the evidence tendered applied to the trial proper.
[8] Also, following the conclusion of the evidence the court granted the Crown’s application to admit statements made by the defendants against the corporation Wellmasters, on consent, and pursuant to R. v. Strand Electric Ltd., [1968] O.J. No. 1291 (C.A.) which held that the statements made by an agent within the scope of his authority to third persons during the continuance of the agency may be received as admissions against the principal in litigation to which the latter is a party.
[9] In closing submissions the Crown also sought to “trim” the counts by making the following submission:
“Trimming” Counts Submitted to the Trier of Fact
Pursuant to s. 36 of the Provincial Offences Act, the Crown hereby stays charges 1–5 with respect to David Miles MacDonald. For clarity, the Crown is not conceding there is insufficient evidence to support convictions, but simply adhering to our Court of Appeal’s expectation that the Crown consider, after all the Crown and defence evidence is presented, trimming counts to reduce needless complexity and duplicity for the trier of fact. (See R. v. Rowe, 2011 ONCA 753 at para. 58.)
[10] As requested, counts 1 through 5 with respect to David Miles MacDonald are stayed.
Findings of the Court
[11] The following are my findings based on the evidence at trial. Given there are seven counts before the court I will address each count in turn. Where the findings are made on one count and logically are applicable to the remaining counts they will apply unless the court states otherwise in order to minimize replication in septuplicate.
Count 1: Whether Aaron and Wellmasters failed to obtain and affix a well tag to Hickey’s well after completing an alteration to a well.
[12] The issue is whether the requirements in s.14.11(2) of the Wells Regulations were complied with.
[13] The section reads:
Wells Regulation, R.R.O. 1990, Reg. 903
s.14.11(2) If an alteration, other than a minor alteration, is made to a cased well that does not already have a well tag, the person making the alteration shall obtain a well tag from the Ministry and, before the alteration is completed, shall affix the well tag permanently to the outside of the casing or to a permanent structure associated with the well, at a point where the well tag will be visible and will not be obstructed by the well cap, by other components of the well or by equipment associated with the well.
[14] Section 1 of the Regulations defines “minor alteration” to mean, with respect to a well,
(a) routine repair or maintenance, (b) the installation of monitoring, sampling or testing equipment, other than equipment used to test the yield of the well or the aquifer, (c) the installation of a pump in a test hole, or (d) the installation of a well cap or watertight well cover; (“modification mineure”)
[15] Of note is the definition of “construction of a well” which clearly includes the term alteration.
[16] Meaning of “constructing the well”
s. 35 (1) In this section and in sections 36 to 50 and subsection 75 (2), … “construct”, when used with respect to a well, means bore, dig, drill or otherwise make, extend or alter; (2) For the purposes of this section, sections 36 to 50 and subsection 75 (2), installing equipment in or connected to a well shall be deemed to be the constructing of a well.
[17] Legislation Act, 2006, SO 2006, c 21, Sch F
s. 85 If a term is defined, other forms of the same term have corresponding meanings. s. 86 Terms used in regulations have the same meaning as in the Act under whose authority they are made.
[18] It appears from the regulations that installing a new pump is an alteration; full stop, since an alteration is a form a constructing a well and constructing a well includes replacing a pump.
[19] It is clear from the evidence that the work Aaron and Wellmasters performed by pulling and replacing the pump, pressure tank and installing a screen saver, were alterations within the meaning of the regulations which did not amount to a minor alteration in the circumstances.
[20] Warren Lusk (hereinafter Mr. Lusk) provided expert opinion evidence to what is understood by “minor alteration” within Ontario’s well technician community when he stated that pulling a pump from a water supply well and re-installing the equipment in the well was not a minor alteration (Ex 27, Ontario Wells Manual, Chapter 2).
[21] In as much as an exception to a requirement is to be established, according to s. 47(3) of the Provincial Offences Act, the burden of proving an exception is on the defendants. The standard of proof for this defence burden is on a balance of probabilities.
[22] The defence assertions that replacing a pump must necessarily be a minor alteration is unsupported in the evidence and the legislation. A plain reading of the relevant sections is sufficient.
[23] Although there may be some room for argument for other types of work done on well systems, replacing a pump, pressure tank, and installing a screen saver, and being obligated to comply with the additional chlorination requirements clearly places these activities within the meaning of s 14.11(2) with the evidence of any exception being successfully engaged falling short on the balance of probabilities requirement.
[24] I make this finding based on the uncontested evidence of the witnesses that a new pump, pressure tank, and screen saver were installed on the property on 18 August 2017.
[25] Aaron is liable because he performed the work in question. Wellmasters is also liable because Aaron was working at the direction of his employer who was retained by the Hickey’s to perform the tasks at issue (see Ex 7 Wellmasters Receipt).
[26] Also, s. 114 of the OWRA provides that an act or omission done by an employee or agent of a corporation "shall be deemed to be also an act or thing done by the corporation.”
[27] Given my findings, the work performed triggered the need to obtain and affix a well tag to the casing of the well. It is uncontested that this step was not taken by the defendant’s on 18 August 2017 or anytime after completing the alteration.
[28] Even if the Hickey’s had advised the defendants to stay off their property after 18 August 2017, it is not a defence to the charge because the regulation requires affixing the well tag “before the alteration is completed.” In this case, any comments about being told to stay off the Hickey’s property clearly arose after the alteration was completed on August 18, 2017, as that is when the regulation required the well tag to be affixed.
[29] It is undisputed that a tag was not affixed as required therefore the onus turns to the defence to establish due diligence on a balance of probabilities.
[30] Taking all reasonable care to prevent the commission of the offence would have necessarily included making some effort to return to the property to affix the tag or at a minimum advise the Hickey’s of the defendant’s legal requirement to do so. The evidence was simply that there was a breakdown in the relationship and at some point Aaron returned to the property to return Hickey’s tools that had been borrowed.
[31] I am satisfied beyond a reasonable doubt that Aaron MacDonald and Wellmasters did not obtain and affix a well tag to Hickey’s well after completing an alteration to a well as required in s 14.11(2) of the OWRA and no exceptions or defences have been successfully engaged on a balance of probabilities. Therefore, offences were committed under s.107(1) of the OWRA.
Count 2: Whether Aaron and Wellmasters failed to ensure proper chlorination following construction of the well.
[32] Wells Regulation, R.R.O. 1990, Reg. 903 states that:
s.15(2) A person who undertakes construction of a well that is being used or maintained for use for the purpose for which it was constructed or installs pumping equipment in a well shall ensure that as soon as possible after the construction or installation is complete, the water in the well is dosed to a concentration of not less than 50 milligrams per litre and not more than 200 milligrams per litre of free chlorine. O. Reg. 372/07, s. 16.
[33] Wells Regulation, R.R.O. 1990, Reg. 903 also dictates what procedure is required in order to comply with the testing requirements. It states that:
s.15(4) A person referred to in subsection (2) shall ensure that, at least 12 hours and not more than 24 hours after the water is chlorinated, the well water is tested for free chlorine residual. O. Reg. 372/07, s. 16. (5) If, according to a test under subsection (4), the concentration of free chlorine residual in the well water is less than 50 milligrams per litre or more than 200 milligrams per litre, the person referred to in subsection (2) shall ensure that the following steps are taken:
- Water shall be pumped out of the well until the concentration of free chlorine residual in the well water is less than 1 milligram per litre.
- The water in the well shall be dosed to a concentration of not more than 200 milligrams per litre of free chlorine.
- At least 12 hours and not more than 24 hours after the water is dosed under paragraph 2, the well water shall be tested for free chlorine residual.
- If, according to a test under paragraph 3, the concentration of free chlorine residual in the well water is less than 50 milligrams per litre or more than 200 milligrams per litre, the steps referred to in paragraphs 1 to 3 and this paragraph shall be repeated. O. Reg. 372/07, s. 16. (6) A person who is required to ensure that steps set out in subsection (5) are taken shall ensure that, (a) subject to paragraph 4 of subsection (5), the steps are taken in the sequence in which they are set out in subsection (5); and (b) each step is taken as soon as reasonably possible. O. Reg. 372/07, s. 16. (7) If, according to a test under subsection (4) or paragraph 3 of subsection (5), the concentration of free chlorine residual in the well water is 50 milligrams per litre or more but not more than 200 milligrams per litre, the person who is referred to in subsection (2) shall ensure that water is pumped out of the well until the concentration of free chlorine residual in the well water is less than 1 milligram per litre. O. Reg. 372/07, s. 16. (8) No person shall, during a period between the chlorination of the water in a well by a person referred to in subsection (2) and the testing of the well water for free chlorine residual under this section, (a) disturb the well; or (b) use the well for any purpose. O. Reg. 372/07, s. 16. (9) A person who is responsible for ensuring that well water is tested for free chlorine residual under this section shall ensure that, before the well is used as a source of water for human consumption, the well purchaser is given a written record of the test results. O. Reg. 372/07, s. 16.
[34] The evidence is uncontroversial that Aaron and Wellmasters installed a new pump, pressure tank and screen saver on the Hickey’s property on 18 August 2017.
[35] A two-step assessment is appropriate to determine if an offence has been made out in this case. The first step is whether chlorine was used as required in the legislation. The second step is whether the required chlorination procedure was complied with.
On the issue of whether chlorine was used:
[36] The Crown submitted that in applying the test found in R. v. W.(D.), [1991] 1 SCR 742, the evidence of Bruce and Karen Hickey should be accepted beyond a reasonable doubt to be true, and that Aaron’s evidence should not raise a reasonable doubt.
[37] Aaron’s testimony at trial differed significantly from statements made to the investigators and to Bruce at the property, in the presence of Karen. They also differed significantly from the Hickey’s observations and recollection.
[38] The Hickey’s evidence regarding chlorination is consistent in that the well and piping were not chlorinated. Part of Aaron’s conversation with the Hickey’s on the 18th August 2017 corroborated this. Aaron’s stated views on the use and misuse of chlorine were clear during his statement to investigators in June 2018, which was consistent with Bruce Hickey’s recollection of the conversation.
[39] In his statement to investigators Aaron advised that: 1- chlorination takes at least 12 hours to perform; 2- customers do not want that when they have been without water for days; 3- that customers are happy to have it shocked and walk away; 4- he asked whether he had to do all of these steps even if he was not getting paid for it?; 5- he then rhetorically asked how he was to make any money?; 6- all they (the Hickey’s) paid for was the installation of a pump and pressure tank; and 7- now that he had re-read the Act he was going to start locking out the breaker panel (see Ex B, pgs. 6-7).
[40] Aaron’s statements on site, at the interview, and in court, are inconsistent and at times clearly contradictory.
[41] I accept the evidence that is consistent as between the parties and across time and place. I do not accept the evidence that changed and was inconsistent on the part of Aaron. I arrive at this conclusion for the following reasons:
1- Mr. Hickey was forthright and unequivocal in his testimony and did not contradict himself at any time. He was candid and provided uncontradictory evidence. 2- Aaron expressed to Mr. Hickey clear concerns and convictions that chlorine should never go in a well. 3- These same convictions regarding the use and misuse of chlorine were communicated by Aaron to investigators during his statement. E.g. “I don't agree with chlorinating a well. I don't think it's right. I understand that, yeah, sometimes there can be contaminants that get in there, but chlorinating has never been natural for water; never been natural.” (see Ex B, Page 8, Line 10)
[42] I agree with the Crown who submitted that if the conversation occurred as Aaron claimed (i.e. Bruce asked if he was going to chlorinate the well and Aaron merely responded in the negative because he had already done so), how would Bruce know that Aaron had such a strongly held conviction that well water should never be chlorinated? Aaron’s testimony does not make sense in this context.
4- Karen also claimed to be privy to part of this conversation between Aaron and Bruce where when asked about using chlorine for disinfecting she heard Aaron advise “you shouldn’t do that”. 5- The Hickey’s evidence on this issue was consistent and corroborated in part when their well test from August 29th 2017 indicated bacterial contamination; and 6- Finally, in contrast, Aaron’s evidence suffered from credibility and reliability concerns as his conversation on site and his statement to investigators contradict his recent evidence in court. (See Ex B p6)
[43] So at this point I find that it that the well was not chlorinated as required.
[44] In the alternative, if chlorination had occurred and the evidence of Aaron in court is to be accepted, I then need to also consider whether the proper procedure was followed.
Issue - whether the proper chlorination procedure was followed:
[45] Firstly, the “Smell Test” testified to by Aaron cannot satisfy the legal requirements dictated in the Regulations.
[46] The Crown asserted that even if this court were to find that Aaron’s evidence raised a reasonable doubt that he did put chlorine in the well and did smell the water coming out of the taps and did think it smelled like the appropriate concentration, this court should find that this is inadequate to “ensure” that the concentration “was not less than 50 milligrams per litre and not more than 200 milligrams per litre of free chlorine.” I agree.
[47] If the regulations indicate specific parameters and procedures that must be adhered to, to ensure compliance, and by extension public safety, then they must be followed. These parameters and procedures included measurements of amounts of chlorine per litre for a good, and necessary scientific reason.
[48] I accept the evidence of Warren Lusk when he stated that smelling water can sometimes determine the presence of chlorine but cannot provide a reliable and accurate determination of said concentration let alone “make certain” the concentration falls within a certain numerical range.
[49] The Ontario Wells manual, Chapter 8, recommends the use of test strips that according to the evidence cost around 30 cents each. Warren Lusk testified an electric chlorine meter is also reliable. The official Ontario Wells manual does not speak of let alone authorize a “smell test.” (Ex 26, p 49)
[50] Warren Lusk also stated that the purpose of the regulation is to prevent human infection from harmful bacteria like E. Coli, and the impetus for this regulation was the notorious Walkerton tragedy that killed 7 and injured many in the community, including causing permanent kidney damage to 22 children.
[51] I agree with the Crown’s submission that it would do great harm to the regulatory framework if this court were to find that word “ensure” / “make certain” can be so easily satisfied by an unreliable “smell test” and to take into consideration that the impetus for this Wells regulation was the Walkerton tragedy. (see Quesnel v. Ontario, [2023] O.J. No. 2810 (O.C.J. in appeal capacity) at para. 51)
[52] The smell test performed by Aaron MacDonald was not in compliance with the specific requirements in the regulations. He had no way of knowing the actual concentration of chlorine in the water by using a smell test. He testified that no other form of measurement was used on site.
[53] In addition, there was uncontradicted evidence that Aaron did not follow the time-consuming procedures required under s.15 (4) to (9) which were necessary to ensure compliance with s. 15(2) of the Regulations. The evidence was that Aaron left on the 18th of August 2017 and only returned weeks later to return tools that had been borrowed, and that he had delegated any addition disinfection measures to the homeowners.
[54] Given there was contradictory evidence before the court whether Aaron used any chlorine in the well at all on the 18th August 2017. And even if I was to reconcile the evidence of chlorination in favour of the defendants, I am still satisfied beyond a reasonable doubt that the procedure of pumping, waiting, and sampling was not followed as required in s.15(2). This finding of guilt beyond a reasonable doubt also applies to Wellmasters pursuant to s.114 of OWRA. Therefore, offences were committed under s. 107(1) of OWRA.
Count 3: Whether the well pump and hose were cleaned with a chlorine disinfectant prior to installation:
[55] Wells Regulation, R.R.O. 1990, Reg. 903
s.15.3 A person who installs equipment in a well shall ensure that the equipment is clean.
[56] It is uncontested in the evidence that Aaron and Wellmasters installed a new pump, pressure tank and screen saver in a well on the Hickey’s property on 18th August 2017.
[57] The Crown again submitted that in applying the W.D. test, the evidence of Bruce and Karen should be found beyond a reasonable doubt to be true, and that Aaron’s evidence should not raise a reasonable doubt.
[58] The issue remains whether they failed to ensure associated equipment (the hose) was cleaned by wiping it down to ensure it was clean i.e. disinfected.
[59] The more than 100 foot hose was removed from the well and simply placed on the ground where the owner’s dogs and cats would have relieved themselves on a fairly regular basis. Warren Lusk testified it would be necessary to wipe down the hose with chlorine in this context to make it “clean”.
[60] Bruce testified that he asked Aaron: “Did you wipe it down or anything” and Aaron responded “No, no, you don’t do that.”
[61] Bruce later clarified that when he asked Aaron about wiping down the hose, he explicitly asked him about whether he wiped it down with chlorine. Karen confirmed Bruce’s account that Aaron indicated he does not use chlorine.
[62] Given my findings of the evidence of the lack of use of chlorine in previous counts and the consistent evidence of the Hickey’s regarding their observations and Aaron’s statements to them, I find beyond a reasonable doubt that Aaron and Wellmasters did not ensure that the equipment was clean prior to installation contrary to s.15.3 thereby committing an offence under s.107(1) of OWRA.
Count 4: Whether a well information package was provided:
[63] Wells Regulation, R.R.O. 1990, Reg. 903
16.2 (1) On the day a pump is replaced in an existing well, the person constructing the well shall, unless the well purchaser otherwise directs, deliver to the well purchaser a copy of an information package about wells obtained from the Ministry. O. Reg. 372/07, s. 17.
[64] Meaning of “constructing the well”
s. 35 (1) In this section and in sections 36 to 50 and subsection 75 (2), … “construct”, when used with respect to a well, means bore, dig, drill or otherwise make, extend or alter; (2) For the purposes of this section, sections 36 to 50 and subsection 75 (2), installing equipment in or connected to a well shall be deemed to be the constructing of a well.
[65] Legislation Act, 2006, SO 2006, c 21, Sch F
s. 85 If a term is defined, other forms of the same term have corresponding meanings. s. 86 Terms used in regulations have the same meaning as in the Act under whose authority they are made.
[66] There is no issue that Aaron and Wellmasters replaced a pump. In doing so they were required by regulation to provide the purchaser with a copy of an information package about wells obtained from the Ministry on the day the pump was replaced.
[67] The Crown again submitted that in applying the W.D. test, the evidence of Bruce and Karen should be found beyond a reasonable doubt to be true, and that Aaron’s evidence should not raise a reasonable doubt.
[68] With respect to this specific issue, both Bruce and Karen testified that a well information package was not provided.
[69] The Hickey’s testified that they had a filing system and provided the investigator, and the court, several original documents including both a receipt and a well record they had received in 2003. If they had been provided a Well Information Package in 2017, it is highly unlikely they would have misplaced it or not realized it was in their possession.
[70] Moreover, Aaron testified that had no memory of providing the Well Information Package to the Hickey’s, but felt confident he had done so because it was his normal practice. However, he described his normal practice as providing a sheet of paper. When asked if he had ever provided it as a CD, he indicated confidently he had never done so.
[71] This is important because Warren Lusk testified that the Ministry switched the Well Information Package in 2017 from a CD to paper. Whereas the package used to be a CD called “Well Aware,” on October 15, 2017, the Ministry switched to using a piece of a paper with only core information and a web address where well owners could obtain further information.
[72] Warren Lusk’s evidence is corroborated by Provincial Officer Monica Howlett. She testified that on October 11, 2017, in her conversation with Holly, she specifically informed Holly that the Hickey’s had reported that they had not received the Well Information Package and that Holly indicated that she would send the Well Aware CD to them, presumably by mail.
[73] Given that Aaron testified he never provided the well information package by CD, and the Hickey’s never received such an item, I am satisfied beyond a reasonable doubt that the well information package was not provided to the Hickey’s by Aaron or Wellmasters in contravention of the Regulations s.16.2(1) therefore they both committed an offence under s.107(1) of the OWRA.
Count 5: Issue of whether well cap was installed as required:
[74] “Wells Regulation, R.R.O. 1990, Reg. 903”
Installation of Equipment
s.15.2 (1) Every person constructing a well shall comply with the requirements set out in this section. O. Reg. 372/07, s. 16.… (7) Subject to paragraph 8 of subsection 12 (9), the top of the casing of a well that is not constructed by digging or boring shall be sealed with a commercially manufactured vermin-proof well cap. O. Reg. 372/07, s. 16.
[75] Re Meaning of “constructing a well”
s.35 (1) In this section and in sections 36 to 50 and subsection 75 (2),… “construct”, when used with respect to a well, means bore, dig, drill or otherwise make, extend or alter;… (2) For the purposes of this section, sections 36 to 50 and subsection 75 (2), installing equipment in or connected to a well shall be deemed to be the constructing of a well.
[76] Legislation Act
s. 85 If a term is defined, other forms of the same term have corresponding meanings. s. 86 Terms used in regulations have the same meaning as in the Act under whose authority they are made.
[77] It is uncontested that Aaron and Wellmasters replaced a pump on the Hickey’s property on August 18th, 2107, which the statute deemed to be “constructing a well”. The Regulations required that they install a vermin proof well cap.
[78] The Crown again submitted that in applying the W.D. test, the evidence of Bruce and Karen should be found beyond a reasonable doubt to be true, and that Aaron’s evidence should not raise a reasonable doubt.
[79] Bruce testified that no cap was on the well when Aaron left, and that he had to put it back on himself. Bruce also stated specifically that he even went and bought five new bolts because the other ones were rusted and set it down right beside the well cap, right where he was working, but Aaron never installed it.
[80] Karen testified similarly when she stated that Aaron had left the cap off and even though Bruce had bought new bolts for it they were left on the ground so when Aaron left, Bruce went around and he saw it was off and he put it back on.
[81] Unlike previous testimony, Aaron’s evidence on this point was consistent between his statement to the investigators and his evidence in court that he had replaced the well cap prior to leaving the Hickey’s.
[82] I interpret the R. v. WD assessment as a specific test and not simply a generalized assessment of credibility. Having found adversely against Aaron previously on other testimony does not automatically mean an adverse finding to all of his evidence.
[83] On this issue, which is distinct from the other counts before the court, I cannot reject his evidence regarding replacing the well cap even though it conflicts with the Hickey’s evidence. Given the conflicting evidence that I cannot resolve I am left with a reasonable doubt for this specific issue and therefore the offence in relation to not replacing the well cap has not been proven beyond a reasonable doubt in relation to Aaron or Wellmasters.
[84] It is likely that Aaron left the cap off so that the Hickey’s could follow-up with their own chlorination of the house lines, but I cannot say that this was the case beyond a reasonable doubt.
Count 6: Issue of working on a well without a well technician’s license:
[85] Ontario Water Resources Act, R.S.O. 1990, c. O.40
Well Technician
s. 43 (1) No person shall work at the construction of wells except under and in accordance with a well technician licence of a class prescribed by the regulations or unless exempt under the regulations.
[86] Meaning of “the construction of wells”
s. 35 (1) In this section and in sections 36 to 50 and subsection 75 (2),… “construct”, when used with respect to a well, means bore, dig, drill or otherwise make, extend or alter;… (2) For the purposes of this section, sections 36 to 50 and subsection 75 (2), installing equipment in or connected to a well shall be deemed to be the constructing of a well.
[87] Legislation Act
s. 85 If a term is defined, other forms of the same term have corresponding meanings. s. 86 Terms used in regulations have the same meaning as in the Act under whose authority they are made.
[88] Wells Regulation, R.R.O. 1990, Reg. 903
Assistant Well Technician
- (1) An assistant well technician without an identification card issued under this section is exempt from section 43 of the Act when working at the construction of wells if he or she is supervised by a holder of a well technician licence who is present at the site. O. Reg. 128/03, s. 11. (2) An assistant well technician to whom an identification card has been issued under this section is exempt from section 43 of the Act when working at the construction of wells on behalf of the licensee named on the card if, (a) the expiry date on the card has not yet been reached; (b) he or she carries the card with him or her and produces it on the request of an employee or agent of the Ministry; and (c) he or she is supervised by the holder of a well technician licence who is available to be called to the site within one hour. O. Reg. 128/03, s. 11.
[89] s.47(3) of the Provincial Offences Act is also engaged in that the onus passes to defendants to establish on a balance of probabilities that any license, authorization, qualification, or exception applied once the prohibited act is proven beyond a reasonable doubt.
[90] To make a decision on this count a series of questions must be explored, the answers to which will determine my decision. For ease of reference I will pose them as questions to be answered.
1- Was Aaron a licensed Well Technician or Assistant Well Technician on 18 August 2017?
[91] It is uncontested that Aaron was not a licensed well technician on August 18th 2017. The Crown led rebuttal evidence that proved beyond a reasonable doubt that Aaron was not a licensed Well Technician on 18 August 2017 when he performed the work on the Hickey’s well and water system. (Ex 12, see also admissions by Aaron and Holly).
[92] What appears to be at issue was their apparent understanding at the time as to the status of any license and whether any defences are available.
[93] Aaron’s and Holly’s evidence was contradictory in this regard because Aaron was holding himself out as being a Well Technician yet had never successfully applied for a licence or responded to deficiency letters from the Ministry indicating that further materials were required, dating all the way back to 2014, following the completion of his coursework. (see Ex B and Ex 12)
[94] It is also of note that he correctly answered licensing exam test questions specifically related to these issues of licensing and supervision which meant that he understood the process and requirements at the time of his examination in 2014. (see Ex 12)
[95] I find that Aaron and Holly’s asserted belief that he was licensed in August of 2017 was unreasonably held and does not provide any defences to the charge, therefore the exception in s.9(2) cannot be relied on with simply having a fully licensed well technician in the area. There is also no due diligence on their parts to ascertain the status of his license at the time.
[96] Aaron’s assertions at the time of the interview and on the worksite undermine his credibility on the additional evidentiary issues in this count because if his evidence was to be believed it would create an illogical scenario at the Hickey’s property that day in 2017.
2- Since Aaron was not licensed is there evidence on a balance of probabilities that the exception in s. 9(1) of the Regulations has been met?
[97] In addition to finding that Aaron was not licensed, I also find that no Licensed Well Technician was present within the meaning of the s.9(1) supervising Aaron at the property on 18 August 2017. To comply with this exception in the regulations a licensed Well Technician was required to be present on the site of the work being completed because Aaron did not possess a valid Assistant Well Technician’s identification card issued by the Ministry. Here is where the defendants evidence became problematic.
[98] Aaron asserted in varying ways between his statement to investigators and his evidence at trial that his dad Miles was at different times: 1- There at the property with the cheque to pay for the Crane (Ex B, p 30); 2- That he was within 10 minutes of the property (Ex B, p27); 3- That he was sitting in his truck at the end of the ¼ mile laneway (at trial); 4- That he was going for a coffee (where nearest coffee shop is a 30 minute drive away) (Ex B, p 40); 5- That Miles had already left when he was finishing at the Hickey’s (at trial); and 6- That he was checking in on a friend who lived in the area (at trial).
[99] On its own, none of Aaron’s evidence satisfies the court on a balance of probabilities that Miles, the Licensed Well Technician, was supervising “on site” as required.
[100] In addition, there is consistent and conflicting evidence from the other people on site that day that Miles was never seen on the property at all, or at any time.
[101] Darnell Francis, the Crane operator, testified that it was only the property owners, and the two workers present that day. He did not see Miles nor saw any truck parked at the end of the lane when he arrived or departed.
[102] Both Hickey’s testified that Miles was not there at all that day and that if someone had attended at their property their dogs would have alerted them.
[103] The evidence of the defendant became illogical at this point because if Aaron honestly believed he was a licensed Well Technician in August 2017, then there would have been no reason for his dad to make the 2 hour drive from home in a separate vehicle to “supervise” his son from ¼ mile down the laneway. At best, it may be the case that Miles drove separately that day and initially checked-in at the site without being detected by anyone. It is possible but not probable.
[104] Another issue is that Aaron said he went to his dad to get the cheque. This evidence paints a scenario where Aaron walked down and back the ¼ mile of laneway to get the cheque without anyone noticing or the dogs barking. The ½ mile round trip would have consumed significant time and would not have gone unnoticed by others.
[105] The strongest logical conclusion is that Miles was not there at all that day and that he had simply signed a blank cheque for Aaron to write the amount owing in for Haliburton Crane. This is the only reasonable conclusion which would be consistent with the Hickey’s and Mr. Francis’ observations and Aarons stated beliefs as to the status of his license on that day.
[106] In the alternative, even if it was accepted that Miles remained at the end of the ¼ mile lane all day while Aaron worked on the well, I would find that this does not comply with the exceptional requirements in the regulations as Miles was not in anyway on site supervising the work being performed by an unlicensed technician.
[107] Also, this finding is somewhat troubling in that the statutory scheme is designed to ensure public health and safety, therefore such a laissez-faire approach to supervising unlicensed work cannot be acceptable. Also, no other defences were successfully argued in response to the evidence at trial.
[108] Both conclusions above lead the court to conclude beyond a reasonable doubt that Aaron worked at the construction of a well on 18 August 2017 without being licensed and without proving an exception under s. 47(3) of the POA was applicable, thereby failed to comply with s.43(1) and therefore committed an offence under s.107(1) of the OWRA.
Count 7: Whether being licensed, Miles failed to ensure the person under his supervision complied with requirements:
[109] Wells Regulation, R.R.O. 1990, Reg. 903
- The following are prescribed as conditions attaching to every well technician licence:… (4). The licensee shall comply and shall ensure that every person under his or her supervision shall comply with the requirements of the Act and this Regulation.
[110] Ontario Water Resources Act
s.107(3) Every person that contravenes a term or condition of a licence, permit or approval made under this Act is guilty of an offence.
[111] The evidence was clear that on 18 August 2017, David Miles MacDonald was a licenced well technician working at Wellmasters Plus Inc (see Ex13). Licenced Well Technicians have a legal duty on to ensure that work done by those under their supervision is in accordance with the legislation.
[112] The Crown submitted that if findings of guilt should be entered for any of counts 1-6, then logically there should be a finding of guilt for David Miles MacDonald on this count.
[113] Miles was not only in a supervisory position as a licensed well technician, but he was the co-founder, co-owner, and co-director of Wellmasters Plus Inc., a company holding a well contractor’s licence which customers like the Hickey’s call to have work done on their well.
[114] Given my reasons above, I find that Miles as the Licensed Well Technician with Wellmasters had an obligation to supervise all the unlicensed work of his son Aaron at the Hickey’s property. Aaron and Holly both asserted that Miles was supervising Aaron in varying capacities that day in August 2017, however illogical the scenarios it created if believed.
[115] For the reasons stated above, where I found initially that he simply was not there on site that day, or in the alternative that he was sitting in his truck at times at the road at least a ¼ mile from the job site, either conclusion places Miles in a position where he did not fulfill his obligations under s. 7.4 of the Regulations and did not supervise Aaron as required.
[116] It appears from the evidence that notwithstanding health issues he was still intimately involved in the day-to-day operations of the family business but had stopped going on-site as often due to health and mobility issues. Also, according to the evidence, Aaron believed through experience and assumption that he was able to work unsupervised, and it appears that Holly and Miles agreed with this assumption.
[117] I am satisfied beyond a reasonable doubt that Miles did not ensure that Aaron, a person under his supervision, complied with the requirements of the s.7.4 of the Regulations thereby committing an offence under s.107(3) of the OWRA.
[118] Therefore, convictions will be entered for Aaron MacDonald and Wellmasters Plus Inc. for counts 1-4. Count 5 is dismissed against both defendants. A conviction for count 6 for Aaron MacDonald, and a conviction for count 7 for David Miles MacDonald are entered.
In Obiter:
[119] I agree with the Crown’s refence in submissions regarding the appellate court’s guidance in interpreting legislation relating to public safety:
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 interpretations that would interfere with or frustrate the attainment of the legislature's public welfare objectives are to be avoided. R. v. Hamilton (City), [2002] O.J. No. 283 (C.A.) at para. 16
[120] A troubling issue in this case is that someone can work on wells for years who although became experienced in the mechanics of wells, did not become properly licensed and regulated in their work until after they were charged with offences flowing from a complaint.
[121] I appreciate that resources are limited for training, compliance, and enforcement, but it is concerning that even in this case issues arose prior to 2017 and the licensing and compliance issues were not addressed properly, which could have led to health issues for numerous clients and customers.
[122] In evidence Warren Lusk testified that the impetus for the licencing scheme in the Wells Regulation was a specific recommendation by the Associate Chief Justice Dennis O’Connor, who led the inquiry into the Walkerton tragedy which killed 7 and injured dozens, including permanent kidney damage to 22 children.
[123] Quoting Judge Condon acting in his appeal capacity has explicitly endorsed this view of Ontario’s well licencing regime:
This court also accepts the submission of the Crown that enforcement of Ontario's well drilling licensing scheme is fundamental to the protection of the public…. As pointed out by the Crown, the crisis that occurred in Walkerton, Ontario, years ago regarding deficiencies in the management of wells calls upon courts to acknowledge the need for wells to be created in accordance with the legislative and regulatory scheme and the need to protect the public from persons who fail, either carelessly or deliberately, to disclose their status and qualifications regarding the creation of wells. [Emphasis added]. Quesnel v. Ontario, [2023] O.J. No. 2810 at para. 51 (O.C.J. in appeal capacity).
[124] When Aaron testified that he was confident in the concentration of chlorine in a well based on a smell test it gravely concerned me. When he stated that he was confident in this approach because he had done it thousands of times, I had to put my pen down and pause. His testimony brought flashbacks of the laissez-faire approach to chlorination that led to the Walkerton tragedy. How many wells has Wellmasters dealt with that although maybe properly functioning were chlorinated in this fashion? We will never know. I trust that no-one else had to deal with contamination weeks or months later as a result. This case is a reminder of the importance of the regulatory scheme’s role in maintaining public safety and industry compliance.
[125] On the other hand, this case is also an example of the challenges facing the regulatory scheme in monitoring compliance, licensing and enforcement, and the tensions that arise is trying to operate a sustainable business where the dynamics in the field often lead to difficult choices that often have financial and sometimes health and safety consequences for all involved.