Environmental Law - ONCJ

The defendants were charged with violating the Huron County Conservation By-Law by destroying trees in a woodland and failing to comply with a stop work order.

The prosecution proved that approximately 6.8 acres (2.75 hectares) of woodland containing thousands of trees was destroyed between March and July 2023, and that burning and grading activities continued after a stop work order was issued on June 8, 2023.

The court found that the cleared area met the statutory definition of woodland under the by-law and convicted both defendants on both counts.

Following conviction for violating the Huron County Conservation By-Law 38-2013 (Forest Conservation By-Law) by destroying a woodland and failing to comply with a stop work order, the court imposed significant monetary penalties and a two-year probation order.

The defendants were found guilty of destroying approximately 10,450 trees on property owned by the corporation and directed by the sole director.

The court rejected the defendants' arguments that the proposed fines were excessive and found substantial aggravating factors, including prior knowledge that the land could not be cleared and continued destruction after a stop work order was issued.

The City of Toronto charged Islington Lakeshore Mall Inc. and 1767734 Ontario Inc. with zoning bylaw violations under the Etobicoke Zoning Code and the Planning Act, specifically concerning outdoor storage of scrap metal, used parts, and inoperative/derelict vehicles exceeding 10% of the lot area at two properties.

The defendants argued that a newer city-wide bylaw applied and that they had a legal nonconforming use defence, citing ongoing cleanup efforts and personal hardships.

The court found the Etobicoke Zoning Code was still in effect, the actus reus of the offences was proven beyond a reasonable doubt, and the defendants failed to establish a due diligence defence or a legal nonconforming use defence.

The defendants were found guilty on all counts.

This case concerns charges against Wellmasters Plus Inc., Aaron MacDonald, and David Miles MacDonald under the Ontario Water Resources Act and its regulations, arising from well alteration and pump installation work.

The charges included failure to affix a well tag, improper chlorination procedures, failure to clean equipment, and working without a proper license or supervision.

The court found Aaron MacDonald and Wellmasters Plus Inc. guilty on counts 1-4 (well tag, chlorination, equipment cleaning, information package) and Aaron MacDonald guilty on count 6 (unlicensed work).

David Miles MacDonald was found guilty on count 7 (failure to supervise).

Count 5 (well cap installation) was dismissed due to reasonable doubt.

The defendants brought an application for disclosure of information related to four other land development projects, arguing it was relevant for full answer and defence, due diligence, and to demonstrate inconsistent application of environmental legislation by the Ministry.

The court determined that the materials sought were not first-party disclosure in the possession or control of the prosecution but rather third-party records held by the Ministry of Natural Resources and Forestry.

The court outlined the proper two-step process for a third-party production application, emphasizing the need to notify the record holder and any parties with privacy interests, and provided guidance on the Crown's duty to inquire.

The application for disclosure was not granted as first-party, but the court provided a procedural path for the defendants to pursue it as third-party production.

The appellants appealed their convictions and sentences for unlawfully undertaking development within 120 metres of a provincially significant wetland without permission from the Halton Regional Conservation Authority.

The appeal addressed four main issues: the reasonableness of the convictions, alleged infringements of section 7 Charter rights (including disclosure and abuse of process), alleged infringements of section 11(b) Charter rights (unreasonable delay), and the appropriateness of the sentences imposed.

The court dismissed the appeals against conviction and the Charter applications, finding the convictions reasonable and no Charter breaches.

However, the court partially allowed the appeal against sentence, reducing one appellant's fine, vacating the other's fine and substituting a suspended sentence, and amending the probation order to a one-year term with specific conditions, while upholding the remediation order.

Other counts were conditionally stayed based on the Kienapple principle.

The defendants were convicted under the Conservation Authorities Act and sentenced to fines, incarceration, and a rehabilitation order.

They sought a stay of these orders pending appeal.

The court applied the test from R. v. Smug, considering whether the appeal was frivolous, whether continuation of the sentence was necessary in the public interest, and whether granting a stay would undermine public confidence in the administration of justice.

The court granted a stay of the incarceration and rehabilitation order but refused to stay the payment of fines, finding that the defendants had not demonstrated sufficient hardship and that allowing them to avoid payment would undermine public confidence given their history of similar violations and ongoing apparent non-compliance.

The Crown appealed the acquittal of the respondent on a charge of unlawfully depositing material on public lands contrary to section 27(1)(a) of the Public Lands Act.

The respondent, a miner who owned mining rights to a parcel of land, had deposited debris on a Crown land trail (CL 16773) that crossed his property.

The trial justice acquitted the respondent, finding that the Crown had not proven the trail was Crown land and that the Mining Act provided a legal exception to the Public Lands Act.

The appellate court found palpable and overriding errors in the trial justice's factual findings and rejected the legal argument that mining rights exempted the respondent from the Public Lands Act.

The appeal was allowed, the acquittal was quashed, and a conviction was substituted with a $500 fine imposed.

The defendant was convicted on 56 counts of unlawfully removing, injuring, or destroying heritage trees without a permit contrary to the Town of Ancaster Bylaw 2000-118.

The defendant removed 56 heritage trees from the property at 558 Golf Links Road in Hamilton over a period of several days in July and August 2014.

The court imposed a sentence of $6,000 per count for a total fine of $336,000 and a two-year probation order with standard statutory terms and conditions.

The court rejected the defendant's arguments that the conviction should be stayed and that the Keinapple rule against multiple convictions should apply to reduce the sentence to a maximum of $10,000.

The defendant was charged with two offences under the Forest Fires Prevention Act: failing to tend, control, and extinguish an outdoor fire before leaving the site, and starting an outdoor fire without a permit.

The fire occurred on May 10, 2017, on the defendant's property and expanded to approximately 0.1 hectares.

The defendant denied starting the fire and claimed someone else was responsible.

The court found that all elements of both offences were proven beyond a reasonable doubt, including that the defendant was responsible for the fire, and convicted on both counts.

A provincial offences appeal concerning the destruction of a boundary tree without the consent of the co-owner.

The appellant, a homeowner, obtained a municipal permit to remove a Norway maple tree on the property line between his residence and his neighbors' property, claiming it was hazardous.

He removed the tree without obtaining the neighbors' consent.

The trial justice found him guilty of violating section 10(3) of the Forestry Act.

On appeal, the appellant argued that the Forestry Act did not apply to joint owners of boundary trees and that he had a self-help remedy to abate a nuisance.

The appellate court upheld the conviction, finding that the appellant's conduct was manifestly unreasonable, particularly given the three-and-a-half-year delay between obtaining the permit and removing the tree, and his failure to seek consent or court authorization.

A ruling on a voir dire concerning the admissibility of Approximate Regulation Limit (A.R.L.) maps created by the Halton Region Conservation Authority.

The prosecution sought to admit these maps as evidence to establish the regulatory jurisdiction of the Authority over properties at 7459 Auburn Road, Milton, Ontario.

The defendants challenged admissibility on hearsay grounds.

The court determined that the A.R.L. maps, created pursuant to Ontario Regulation 162/06, constitute part of the regulation itself and are therefore admissible under section 25 of the Evidence Act as copies of regulations.

The defendants were charged with six counts of contravening section 154 of the Canadian Environmental Protection Act, 1999 (CEPA) for importing motor scooters from China that violated emissions standards and lacked proper documentation.

The Crown alleged the defendants failed to comply with conditions requiring evidence of conformity and adherence to prescribed emissions standards.

The defendants argued they exercised due diligence by hiring compliance consultants, obtaining manufacturer assurances, and relying on EPA certification.

The court found that the Crown failed to prove the actus reus for counts 1-3 (documentation violations) and that the defendants established due diligence as a defence for counts 4-6 (emissions violations).

All charges were dismissed.

The Crown appealed acquittals on two counts of operating an all-terrain vehicle (ATV) in Pinery Provincial Park without written authorization, contrary to Ontario Regulation 347/07 under the Provincial Parks and Conservation Reserves Act.

The respondent owned a cottage on land bordering the park and claimed an "acquired rights" defence based on a 33-foot right-of-way that predated the park's establishment.

The trial court found the acquired rights defence available and acquitted the respondent.

The appellate court reversed, holding that the doctrine of acquired rights is a municipal law concept not applicable to provincial environmental legislation, and that the regulation of the right-of-way did not constitute an expropriation requiring compensation.

Appellants were convicted of two counts of hindering or obstructing a provincial offences officer contrary to section 42(1) of the Nutrient Management Act.

The appellants parked their truck directly in front of Ministry of the Environment inspectors' truck, blocking its exit, and refused multiple requests to move.

The appellants appealed their convictions arguing the actus reus was not proven and that they exercised due diligence.

The court dismissed both grounds of appeal, finding that the appellants' actions constituted obstruction and that they failed to establish a due diligence defence, as their belief that the officers were trespassing was based on a mistake of law and was not reasonably held in the circumstances.

Following convictions under the Occupational Health and Safety Act arising from a serious workplace fall that left a worker permanently paralyzed, the court imposed sentences on three defendants.

The supervisor received 45 days continuous custody based on her pattern of non-compliance with court orders and prior convictions under environmental statutes.

An employee received a $2,000 fine for obstructing an MOL inspector.

The corporate employer received a $75,000 fine.

The court emphasized deterrence as the paramount sentencing principle for OHSA offences and rejected arguments that the worker's intoxication or the company's inactive status should mitigate the sentences.

The Crown prosecuted Hernder Farms Limited and its director Gottfried Hernder under the Ontario Water Resources Act for operating an unapproved sewage system and discharging raw sewage into a tributary of Richardson's Creek.

The defendants installed a holding tank and leaching bed system without obtaining required approval from the Ministry of the Environment.

In June 2008, a crack in the pipe caused effluent to percolate to the ground surface and flow into the watercourse, causing visible discoloration.

The court found the defendants guilty of all charges, rejecting the defence arguments that approval had been granted, that the discharge was de minimus, and that the defendant exercised due diligence in operating the system.

The defendant corporation was charged with unlawfully disposing of oil field fluids in violation of the Oil, Gas and Salt Resources Act and related regulations.

The Crown sought to admit a Certificate of Analysis from Maxxam Analytics containing chemical analysis results of soil and vegetation samples collected from the defendant's well site.

The defendant objected to admission of the document as hearsay.

The court conducted a voir dire to determine admissibility under the business records exception to the hearsay rule under section 35 of the Ontario Evidence Act.

The court found that the Certificate of Analysis met all requirements for admission as a business record and admitted it into evidence.

Defendants were charged with failing to maintain a minimum distance for an accessory building (shed) from the property line, contrary to Town of Richmond Hill Zoning By-law 128-04, section 5.1.4(a), and the Planning Act.

The shed was located 18 inches from the rear lot line when the applicable setback requirement was significantly greater (either 4 feet under the predecessor by-law or 7.5 metres under the amended by-law).

The defendants argued the property was zoned "Residential" rather than "Urban," that they had been charged under the wrong by-law, and that they had relied on prior court proceedings and town approvals.

The court found the property was zoned "Urban," the applicable by-law was By-law 128-04, and the shed violated the setback requirements.

The court rejected defences based on res judicata, abuse of process, officially induced error, and legal non-complying use.

The appellant, a holder of an Ontario commercial fishing license, was convicted after trial of two counts of unlawfully failing to comply with a condition of the license by overfishing.

He was sentenced to fines totalling $4,000 and a ten-year prohibition from participating in commercial fishing activities.

On appeal, the appellant challenged the convictions on multiple grounds, including that he was not the operating mind of the business, that there was a breach of section 7 of the Charter and an abuse of process, that the trial court conducted the trial unfairly and with bias, and that crown counsel behaved improperly.

The appellant also appealed the sentence as harsh and excessive.

The appeal court dismissed all grounds of appeal and upheld both the convictions and the sentence.