ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 135-14AP
DATE: 2014-12-12

BETWEEN:

Canada (Fisheries and Oceans)
Plaintiff (Respondent)

– and –

Ontario (Ministry of Transportation)
Defendant (Appellant)

John Petrosoniak, for the Appellant

Emilie Taman, for the Respondent

HEARD: May 27, 2014

DECISION ON SUMMARY CONVICTION APPEAL

HENNESSY J.

Background

[1] In the spring of 2008, there was a road washout on Highway 518 in the District of Parry Sound. The appellant, the Ministry of Transportation of Ontario (MTO), had made a number of unsuccessful efforts to drain the snow melt which had been building up in a deep valley along one side of the road. The road washout was likely caused by a blocked culvert.

[2] In January 2008, the MTO identified the problem of the potentially blocked culvert and the rising water levels. They monitored the situation through the winter. As the spring thaw caused the water to rise again in March, the MTO engaged a contractor to pump the water over the road. The pumping did not resolve the problem and the water levels remained close to the top of the road. The contractor also made efforts to auger out the blocked culvert. On April 7, 2008, the water flooded over the highway causing the road and embankment to washout.

[3] The road washout caused erosion and a high volume of flood water containing road and embankment debris to be deposited into a small tributary and downstream waters of the Seguin River and Isabella Lake. As a result, there was significant damage to fish habitat and the water was rendered harmful to fish.

Findings at Trial

[4] The MTO was convicted of two counts under the Fisheries Act, R.S.C. 1985, c. F-14, (“the Act”) for the harm that resulted from the spring road washout.

[5] The trial took place over 10 non-consecutive days. The parties called a total of 26 witnesses, including seven experts. The trial judge delivered his reasons orally on June 13, 2013.

[6] At the end of the Crown’s case, the appellant brought a motion for a non-suit. On April 3, 2012, the trial judge dismissed the motion with reasons. He ruled that the road and culvert could be considered a ‘work or undertaking’ under the Act. He went on to say that in any event, the actions taken by the appellant in January to control the water levels constituted a ‘work or undertaking’ as contemplated by the Act.

[7] In his final ruling, at the end of the trial, the trial judge confirmed and adopted his reasons on the issue of a work or undertaking.

[8] The trial judge found that the washout resulted from a malfunctioning culvert situated 11.5 meters below the surface of the road. The exact cause of the culvert blockage was never determined.

[9] The trial judge considered the common law and the statutory defence of due diligence raised by MTO and rejected the due diligence defence. In his reasons, the trial judge noted the following:

• notwithstanding the risk these culverts posed and the significant cost to repair any resulting damage, the appellant did not have special protocols in place to deal with deep fill culverts;

• the appellant was unable to properly assess and deal with the matter as an emergency;

• the appellant should have been aware of the seriousness of the situation in January or February 2008;

• the appellant should have taken further and other steps to alleviate risk of flooding or to mitigate the effects of the rising water; and

• the appellant could have done more to prevent the flooding.

Issues on Appeal

[10] The appellant raises the following two grounds of appeal:

1. The trial judge erred in law and/or mixed fact and law in finding that the MTO had not made out the defence of due diligence.

2. The trial judge erred in law and/or mixed fact and law in finding that a highway was a ‘work or undertaking’ as set out in s. 35(1) of the Fisheries Act, or in the alternative, by failing to apply the Kienapple principle.

Statutory Provisions

[11] The relevant provisions of the Act are set out below.

Serious harm to fish

35. (1) No person shall carry on any work, undertaking or activity that results in serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or to fish that support such a fishery.

Deposit of deleterious substance prohibited

36. (3) Subject to subsection (4), no person shall deposit or permit the deposit of a deleterious substance of any type in water frequented by fish or in any place under any conditions where the deleterious substance or any other deleterious substance that results from the deposit of the deleterious substance may enter any such water.

Due diligence defence

78.6 No person shall be convicted of an offence under this Act if the person establishes that the person

(a) exercised all due diligence to prevent the commission of the offence; or

(b) reasonably and honestly believed in the existence of facts that, if true, would render the person’s conduct innocent.

Standard of Review

[12] The standard of review was not in dispute at the hearing of the appeal.

[13] The availability of the defence of due diligence is determined by an application of a legal standard to facts in evidence. It is a mixed question of fact and law for which the standard of review is a palpable and overriding error. If the trial judge has made an error in respect of a question of law or made an extricable error in principle with respect to the characterization of the standard or its application, the standard of review is correctness: see Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 37.

[14] The proper interpretation of a phrase in a statute is a question of law and subject to a standard of correctness on appeal: see Duchesne v. St-Denis, 2012 ONCA 699, 112 O.R. (3d) 378, at para. 7.

[15] The issue of whether the Kienapple principle should or should not have been applied in this case is a question of law and subject to the standard of correctness: see Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 37; and Canada (Minister of Transport) v. Delco Aviation Ltd., 2003 FCT 733, 237 F.T.R. 279, at para. 12.

Due Diligence

[16] The appellant does not take issue with the trial judge’s interpretation of the legal test for due diligence.

[17] The appellant submitted that the trial judge failed to properly apply the test for due diligence and that his conclusion was not supported by the evidence and was not feasible in the circumstances.

[18] The appellant argued that the trial judge misapprehended the evidence with respect to

• the receding water levels in January, which the appellant argued demonstrated that the culvert was still functioning;

• what a hydrologist could do when he found that the MTO could have engaged a hydrologist; and

• the lack of a special protocol for deep fill culverts when there was no evidence that deep fill culverts should be treated differently.

[19] The respondent submitted that the appellant was effectively seeking a re-trial. The respondent further argued that the trial judge clearly appreciated the factual issues in play and was entitled to accept the evidence that negated the due diligence defence.

[20] The trial judge properly cited the following five factors to be considered when assessing a due diligence defence:

1. the gravity of potential harm;

2. the likelihood of harm;

3. the degree of knowledge or skill expected of the accused;

4. the alternatives available to the accused; and

5. the extent the accused could control the causal elements of the offence.

See R. v. Placer Developments Ltd. (1983), 13 C.E.L.R. 42 (Y.T. Terr. Ct.), at para. 26; and Regina v. Gonder (1981), 1981 3207 (YK TC), 62 C.C.C. (2d) 326 (Y.T. Terr. Ct.) at para. 22.

[21] The trial judge then reviewed some of the evidence on each of these factors.

[22] The first two factors were not really in dispute. The trial judge addressed the gravity of the harm and the inevitability of the grave harm that was certain to result if the cause of the blocked culvert was not addressed. He commented that the cost to repair the road was in the range of one million dollars and that there was no way to avoid the risk without early intervention.

[23] The trial judge then focused on the third factor. He found that the appellant did not have or did not apply the necessary expertise to assess the situation as required or to recognize the emergency situation in a timely way. The trial judge accepted evidence that he was entitled to accept that the road collapse was inevitable when the MTO did not take the necessary steps to determine the cause of the blocked culvert early in the season before the situation deteriorated with the spring thaw. He linked this failure to act with the absence of protocols within the MTO.

[24] With respect to the fourth factor, the appellant argues that there was no evidentiary support for the conclusion reached by the trial judge. The real focus here by the trial judge was not the alternative interventions available to deal with the water once it rose up to the level of the road surface, but the alternate strategies available to the MTO to determine the cause of the blockage. When the trial judge listed the suggested alternatives, he commented: “In my view these are all possible solutions but are premature given the fact that, in my view the central issue here was the condition of the opening of the culvert upstream and that any such decisions with respect to mitigation strategies would have had to await a determination as to what was causing the blockage.”

[25] In his discussion of the fifth factor, the trial judge was critical of the lack of efforts undertaken by the appellant, in particular their failure to take actions to determine the cause of the rising water in January and February 2008. The Trial judge based his assessment of these efforts on his acceptance of evidence that the MTO’s efforts demonstrated a failure to fully appreciate the seriousness of the situation. This lack of appreciation was, in the opinion of the trial judge, a result of a lack of expertise or resources which the appellant brought to the problem from the outset.

[26] The appellant argues that the trial judge’s reasons show a lack of understanding of the mitigation strategies. However, it is clear from his reasons why the judge rejected the adequacy of the appellant’s response to the situation. He was entitled to reject this evidence and to accept the evidence that was critical of the MTO’s efforts.

[27] On appeal, this court cannot re-assess that evidence in the absence of a palpable and overriding error. No such error was identified by the appellant, nor is one obvious on a close reading of the reasons.

[28] The finding that the appellant did not make out the defence of due diligence is entitled to significant deference.

Carrying on a Work or Undertaking

[29] The appellant argued that the trial judge erred in finding that the road and culvert infrastructure was ‘carrying on a work or undertaking’ for the purpose of s. 35 of the Act. The appellant further argued that the trial judge erred in finding that the two charges of depositing a deleterious substance into fish-bearing waters and creating a hazardous alteration, disruption or destruction of fish habitat were not sufficiently similar to be subject to the Kienapple principle.

[30] The appellant submitted that by finding that the mere existence of the road was a ‘work or undertaking’, the court chose an interpretation of the statute that:

• was out of context with the purpose of the legislation;

• did not reflect the legislation’s intent; and

• produced an absurd result.

[31] In particular, the appellant argued that to interpret this road as a ‘work or undertaking’ for which the MTO remained liable after the permit for the construction of the road had been deemed complete, would render the permit system absurd. The appellant suggested that the liabilities under the Act terminated at the time of completion of the construction of the road and culvert.

[32] Finally, the appellant argued that the protocol agreement between the three levels of government, which covered the responsibilities of each level of government in the case of emergency, is inconsistent with the interpretation found by the trial judge.

[33] The respondent submitted that the phrase ‘carrying on a work or undertaking’ was properly construed by the trial judge to apply to a physical thing in accordance with established jurisprudence: see Montreal (City) v. Montreal Street Railway, 1912 352 (UK JCPC), [1912] A.C. 333 (J.C.P.C.), at para. 15.

[34] The respondent argued therefore that the trial judge was correct in finding that the Act applied in the circumstances.

Analysis

[35] There is a discussion of the meaning of ‘work or undertaking’ in Eastmain Band v. Canada (Federal Administrator) (C.A.), 1992 14828 (FCA), [1993] 1 F.C. 501, at para. 81, leave to appeal to the S.C.C. refused [1993] S.C.C.A. No. 23. In that case, the Federal Court of Appeal considered that the construction stage of a project existed in time before the project became a work or undertaking (…this may indicate that when Parliament referred to ‘carrying on’ in s. 35 it did not intend to include ‘construction’).

[36] In R. v. Leveque (2001), 90 C.R.R. (2d) 137 (Ont. S.C.), at para. 39, O’Neill J. looked at the ordinary meaning of the words ‘work or undertaking’ and defined them as follows:

In the Canadian Oxford Dictionary, Oxford University Press 1998, one of the definitions for the word “work” is: … “a thing done or made by work; the result of an action; an achievement, a thing made…” In that same text, the word “undertaking” is defined as follows: “work etc. undertaken; an enterprise…”

[37] O’Neill J.’s definition of “work or undertaking” in Leveque has since been cited in the following Ontario Superior Court cases: see R. v. Sutherland, 2010 ONSC 2240, 51 C.E.L.R. (3d) 163 at para. 22, aff’d 2011 ONCA 239, [2011] O.J. No. 1295; and R. v. Zuber (2004), 2004 2549 (ON SC), 122 C.R.R. (2d) 82, at para. 13.

[38] In Québec (P.G.) c. Patry, 2006 CarswellQue 14641 (C.Q. crim. & pén.), the Court held that the phrase ‘carry on a work’ or in French ‘exploiter un ouvrage’ found in s. 35 of the Fisheries Act encompasses more than the completion of the work; it also includes the continuation of the work by the way of maintenance works to continue doing, pursuing or operating the work. After reviewing eight different definitions of the words ‘carry on’ and ‘exploiter’ from both English and French dictionaries, Benoit J. came to the following conclusion at paras. 21-22:

Cette revue des définitions contenues dans quelques dictionnaires tant de la langue française qu'anglaise laisse voir quelques constances. Ainsi, on y retrouve des notions de continuation, d'exercice et d'utilisation en vue d'en tirer un avantage et de continuité. Le sens ordinaire de l'expression « exploiter » se doit d'être coloré par le contexte législatif de la disposition à interpréter ainsi que par les objets de la loi.

À mon avis, les expressions utilisées : « exploiter et carry on » visent non seulement la réalisation de l'ouvrage en tant que tel mais englobe la continuation et le maintien de l'utilisation de l'ouvrage tant dans sa conception originelle que dans toutes nouvelles vocations susceptibles de perturber, détériorer ou détruire l'habitat du poisson.

[39] In Eastmain Band, Patry and Leveque, the courts have held that the phrase ‘carrying on a work or undertaking’ found in s. 35 of the Act includes more than the construction of a work; it also includes its operation.

[40] The purpose of the Act includes, among others, the protection of fish habitat and the allocation of responsibility for harm to or destruction of fish habitat. The MTO has a responsibility to maintain the road infrastructure once it is constructed. It makes common sense that part of the maintenance of the road infrastructure is to maintain the road so that it does not fail and, in failing, harm or destroy fish habitat. It would be contrary to common sense to interpret s. 35 of the Act so that the MTO’s responsibility to protect against harm or destruction to fish habitat ended upon completion of construction of the road. If that were the case, the ongoing obligation to maintain the road, an obligation that exists outside of the Act, could be carried out or ignored without regard to any obligations under the Act.

[41] The trial judge specifically rejected the argument, made again on this appeal, that the MTO had no further obligations with respect to fish habitat upon completion of the road construction. The interpretation given to the words ‘carrying on a work or an undertaking’ is supported by the jurisprudence on the interpretation of this phrase and by any purposive approach to statutory interpretation.

[42] The interpretation is correct. The trial judge did not err in his interpretation.

Kienapple Principle

[43] The appellant submitted that the trial judge erred in failing to stay count two in accordance with the Kienapple principle. The appellant argued that the two counts arose from the same facts and that there is no distinguishing element between the offences.

[44] The respondent argued that the trial judge correctly held that the principle does not apply so as to bar conviction under both ss. 36(3) and 35(1) of the Act.

[45] The respondent underscores the difference in the provisions: one addresses protection of fish habitat, while the other is aimed at preventing pollution/preserving water quality. The respondent submitted that the purpose of these provisions differs with respect to fish and habitat; that one section addresses fish habitat and the other addresses harm to water quality where there are fish.

[46] I note that the difference between the sections is somewhat subtle, but I am satisfied that there is a difference. Although the trial judge dismissed the issue summarily, he did not, in my view, err in his finding that the Kineapple principle did not apply.

[47] In the result, the appeal is dismissed.

The Honourable Madam Justice Patricia C. Hennessy

Released: December 12, 2014

2014 ONSC 7071

COURT FILE NO.: 134-14AP
DATE: 2014-12-12

ONTARIO
SUPERIOR COURT OF JUSTICE

Canada (Fisheries and Oceans)
Plaintiff (Respondent)

– and –

Ontario (Ministry of Transportation)
Defendant (Appellant)

Defendant (Appellant)REASONS FOR JUDGMENT

Hennessy J.

Released: December 12, 2014