Her Majesty The Queen in right of the Province of Ontario as represented by the Minister of the Environment and Climate Change v Thomas Cavanagh Construction Ltd., 2016 ONSC 2616
COURT FILE NO.: CV-10-279 DATE: April 25, 2016
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN in right of the Province of Ontario as represented by the Minister of the Environment and Climate Change Appellant
– and –
THOMAS CAVANAGH CONSTRUCTION LTD. Respondent
Counsel: Paul McCulloch, for the Appellant Don Sullivan, for the Respondent
HEARD: December 18, 2015
James J.
Endorsement
[1] This is a Crown appeal from the decision of the Honourable Justice Judith Beaman dated July 8, 2015 wherein she found the respondent not guilty of a charge under section 27(1)(d) of the Environmental Protection Act (“EPA”) with using, operating or establishing a waste disposal site without a Certificate of Approval, and pursuant to section 186(3) with disposing of waste and construction debris contrary to their Certificate of Approval for a Waste Management System on a site without having a Certificate of Approval for a Waste Disposal Site.
[2] These charges have resulted in three different trials. The first two were heard by justices of the peace and then remitted for re-trial on both occasions by different justices of the Ontario Court of Justice following successful appeals.
[3] This appeal follows the third trial which resulted in another acquittal.
[4] Crown counsel advises that if this appeal is successful, the prosecution is requesting that the charges not be re-tried a fourth time and that the charges be stayed instead.
[5] The basis of the appeal is that the trial judge erred in holding that the respondent’s approval for “collection, handling and transportation” included storage. Condition 10 of the Waste Management System Approval required that waste shall only be taken to an approved waste disposal facility. The respondent was not an authorized waste disposal site.
[6] Section 25 EPA defines waste management system as any facilities or equipment used in, and any operations carried out for, the management of waste including the collection, handling, transportation, storage, processing or disposal of waste, and may include one or more waste disposal sites.
[7] Section 41 EPA provides that:
Prohibition as to use of facilities, etc.
- No personal shall use, or cause, permit or arrange for the use of, any facilities or equipment for the storage, handling, treatment, collection, transportation, processing or disposal of waste that is not part of a waste management system for which a certificate of approval or a provisional certificate of approval has been issued and except in accordance with terms and conditions of the certificate. 1998, c.35, s.5.
[8] I accept the Crown’s position that the respondent’s approval only authorizes it to collect waste and transport it directly to an approved waste disposal site. Accordingly, the respondent was not permitted to stockpile or store waste at its Pakenham quarry because it was not an approved waste disposal site. To hold otherwise renders the reference to “storage” in the definition of waste management system and in section 41 EPA meaningless.
[9] I agree with the comment of Radley-Walters, J [^1] who heard an earlier appeal of the same charges when he said the respondent’s approval “specifically does not authorize the respondent to store, process or dispose of waste. Condition 10 of that provisional certificate of approval requires that waste only be taken to an approved waste disposal site or facility.”
[10] The use of the term “due diligence” in paragraph 122 of the decision under appeal is in reference to the respondent’s “stewardship of the land in question”. In order to be effective, a plea of due diligence in answer to a regulatory offence must relate to the commission of the prohibited act, not some broader notion of acting reasonably.
[11] In the result the appeal is allowed, the decision of the trial judge is set aside and a stay of proceedings is ordered as it would not be in the interests of justice to subject the respondent to any further proceedings in relation to these charges.
The Hon. Mr. Justice M. James
Released: April 25, 2016
Reasons for Decision
2016 ONSC 2616 COURT FILE NO.: CV-10-279 DATE: April 25, 2016 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN in right of the Province of Ontario as represented by the Minister of the Environment and Climate Change Appellant – and – THOMAS CAVANAGH CONSTRUCTION LTD. Respondent
REASONS FOR Decision James J.
Released: April 25, 2016
[^1]: R. v. Thomas Cavanagh Construction Ltd., 2014 CarswellOnt. 8436 (O.C.J.) at para. 16