R v. Northland Properties et al. Date:, 2014 BCPC 251

Citation: R v. Northland Properties et al. Date: 20140807 2014 BCPC 0251 File No: 93703-1 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. NORTHLAND PROPERTIES CORPORATION ROBERT JOHN GAGLARDI ROBERT THOMAS GAGLARDI ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.R. HARRISON Counsel for the Crown: Mr. D.r. Kier, Q.C.

Counsel for the Defendant: Mr. R. Bruneau Place of Hearing: Kamloops, B.C. Dates of Hearing January 13, 14, and 15, April 14 and 15, and June 13, 2014 Date of Judgment: August 7, 2014 [1] THE COURT: The defendants, Northland Properties Corporation ("Northland"), Robert John Gaglardi ("Bob Gaglardi"), andhis son Robert Thomas Gaglardi ("Tom Gaglardi"), are each charged with two counts of unlawfully carrying on a work or undertakingthat resulted in the harmful alteration, disruption or destruction of fish habitat along the foreshore of Kamloops Lake. These offences arecharged under ss. 35(1) and 40(1)(

a) of the Fisheries Act, R.S.C. 1985, c. F-14, as amended. [2] The work that gives rise to these charges took place on a parcel of land I will refer to as the Gaglardi property. That propertyconsists of seven adjacent lots extending along 700 feet of Kamloops Lake frontage near Savona, British Columbia. The shoreline thereruns on a northeast-southwest axis, though for the sake of convenience this line was more often referred to during the trial as runningeast-west, with the Gaglardi property said to be south of the lake.

In these reasons, I will use these latter compass references forconvenience. [3] The first count arises from land clearing which took place on the Gaglardi property between April 1, 2010, and January 25,2011. The second count arises from the placement of fill material between the same dates on the same property. The offences chargedare regulatory in nature; they are strict liability offences for which no mens rea need be proven by the Crown: R. v. Pierce Fisheries Ltd., (SCC), [1971] S.C.R. 5, and R. v. City of Sault Ste.

Marie, (SCC), [1978] 2 S.C.R. 1299. [4] The corporate defendant, Northland, is a large commercial property developer and owns and operates about 200 businesses,including many hotels and restaurants. It employs about 12,000 people. Northland is headquartered in Vancouver and has more than100 employees working in the head office. [5] Bob Gaglardi is a founder and principal of Northland. When asked what he does at Northland, Bob Gaglardi said heendeavours to run the company. Tom Gaglardi is the president of Northland, and both men are actively involved in the day-to-day workof Northland.

Bob Gaglardi reserves to himself signing authority over Northland building permit applications. [6] The Crown alleges that the work concerned in this case was performed unlawfully by Northland's servants in accordance withdirection from both Bob and Tom Gaglardi. It is alleged that this resulted in significant damage to fish habitat. [7] The defendants Northland and Tom Gaglardi concede that both counts have been made out against them. However, they denyallegations that the damage done was intentional on their part or that the work carried out was just as they directed.

They assert that theproject supervisor for the work, Jim Parks, exceeded the directions he had been given on the project regarding landscaping, which is atthe root of the complaint. The responsibility admitted by Northland and Tom Gaglardi is limited to their failure to exercise proper duediligence with respect to the work done, that this failure resulted in some harm to fish habitat, and the consequent contravention of thespecified sections of the Act. [8] No such admission is made with respect to Bob Gaglardi. Counsel for Mr.

Gaglardi submits that Bob Gaglardi was onlybriefly and peripherally involved in the work, and not at all with respect to any of the changes which resulted in harmful alterations offish habitat. [9] Counsel submits that the charges against Bob Gaglardi have not been made out and that he is entitled to be acquitted. [10] The burden, of course, lies upon the Crown to prove its case, including any aggravating circumstances upon which they rely, tothe traditional criminal standard of proof beyond a reasonable doubt. [11] Jim Parks, a key witness for the Crown, was originally charged as a co-defendant.

His charges were stayed by the Crown. Mr.Parks cooperated in the investigation and prosecution of this matter. He was not required to plead guilty to any charge. [12] In the course of his evidence, Mr. Parks admitted antipathy towards the defendants. He said that Northland did not provide himwith the legal assistance he felt he had been promised, nor had he received the further work he had expected after the project on theGaglardi property concluded. Mr. Parks said that he had suffered financial and personal loss as a result.

He had concerns, he said, thathe would be scapegoated by the other defendants. [13] Although Mr. Parks gave the impression of being a generally reliable witness, given these circumstances it will be prudent toweigh his evidence with some care. [14] I turn now to the project. Bob Gaglardi gave evidence that he believed that he was the legal owner of the Gaglardi property. This parcel of land had been used over decades by the extended family for summer recreation. Located almost in the centre of theproperty, there was a three-bedroom bungalow with a view across Kamloops Lake.

The building was commonly referred to as "theshack" or "Tom's shack". Bob Gaglardi had built the shack himself in the 1950s, though it had fallen into disrepair in more recent years. [15] A decision steered by Tom Gaglardi was made to rebuild the shack and to add on an adjoining structure with additionalbedrooms; ultimately, five more bedrooms in two storeys. This was referred to as "the addition". The extent to which the contours of theland and covering vegetation were to be altered is very much in issue.

The project was commenced in the spring of 2010, and was still inprogress on January 25, 2011, when officers and a biologist from the Department of Fisheries and Oceans ("the DFO") attended theproperty and stopped the work.

[ 16 ] Jim Parks was hired on and paid by Northland as the contracted on-site project superintendent at the Gaglardi property in the spring of 2010. He had previously worked on a number of Northland projects. Tom Gaglardi had met Jim Parks at a Northland construction site where Mr. Parks had been an assistant superintendent. [ 17 ] Northland was the vehicle through which the work on the Gaglardi property was performed. A number of Northland's systems, employees, and contractors were used on the project.

The Northland employees included Dennis Zinger, Mark Lloyd, and Ted Rohoff, all senior managers, and Scott Harwood, a draftsman, who also held the title "building technologist/ coordinator", who has been with Northland for more than 11 years. [ 18 ] Mr. Parks gave evidence to the effect that Tom Gaglardi did not give him regular instructions on the work, but told him near the start of his involvement that the Northland draftsman, Scott Harwood, was in charge. Mr. Harwood, who reported to Mr. Rohoff, described himself as a liaison between Northland and Mr. Parks. Mr. Harwood forwarded the plans to Mr.

Parks as they were developed at Northland. Mr. Parks was responsible for implementing those plans. [ 19 ] The plans themselves were sent via email by Scott Harwood to a Kamloops printer, Universal Reproductions, who would then print the large plan drawings for collection by Mr. Parks. Between July 2010 through April 2011, 17 sets of plans for the work at the Gaglardi property were sent to Mr. Parks through Universal Reproductions. [ 20 ] Mr. Parks said that the work was closely supervised by the head office in Vancouver. He said he spoke with Mr. Harwood almost daily by telephone or email. Mr.

Parks set up an email account to maintain close communications with Northland. He said he regularly took photographs of the land and buildings to send to Northland to show the progress being made. Mr. Harwood did not agree that he received photographs of the property beyond the progress on the shack renovations and the addition. [ 21 ] Mr. Parks said he was not authorized to hire contractors on the project; that was done out of the Northland head office. [ 22 ] Mr. Parks said that the project on the Gaglardi property was initially described to him as being "a small reno", but the job grew as the plans came in.

In time, it became a much larger project. Tom Gaglardi said in evidence that he believed the eventual cost of the project was somewhere between one and two million dollars, including the cost of remediation, which he put between 80 and $85,000. [ 23 ] At the start of the project, as described by witnesses and as shown in the photographs, the Gaglardi property was well, and in some places thickly, vegetated with trees, shrubs, and bushes. There were a number of tall, deciduous trees close to the water, east and west of the shack and below the shack.

Mature cottonwood trees were prominent, as was a large willow close to the shack which had been planted many years before by Bob Gaglardi. The west end of the property was a thicket of trees, bushes, and shrubs that contained within it an overgrown and neglected orchard. [ 24 ] Tom Gaglardi attended the property and indicated his preference to Mr. Parks that a number of tall trees along the beach below the shack, and another group of tall trees further east, should come down. Some of the trees below the shack may have been dangerous, but no formal assessment was done.

The trees came down. [ 25 ] In October 2010, in the course of the work which forms the subject of the complaint, Mr. Parks had a crew clear out all the trees except the willow, and nearly all the vegetation of any size on the property. Many of the tall trees located closest to the water, like the willow, would have been in or overhanging the lake at high water in late spring. Photos exhibited show the by-then lone willow overhanging the water in June 2011.

These trees and others further up the beach would have contributed to the fish habitat of Kamloops Lake. [ 26 ] At the start of the project, the Gaglardi property behind the shack rose fairly steeply up a grassy slope or embankment towards the access road south of the property. In the course of the work, fill was cut from this hill. The cutting of the hill created sufficient room behind the shack for parking and the passage of cars.

The hill cutting continued and the fill was used to raise the level of the property on both sides of the shack out to the boundaries. [ 27 ] On the east side, the fill material was used to level the property and to create a berm which sloped from the edge of the levelled area down to the beach. This slope was shorter and steeper than the natural slope of the beach and was covered with riprap cladding, a protective layer of larger rock. The berm was bisected by a boat ramp. [ 28 ] Photographs exhibited, many of them taken by Mr.

Parks, showed the Gaglardi property before, during, and after various stages of construction and the changes that were made. [ 29 ] I will now turn to the lot grading or 600 plan. [ 30 ] One set of plans was drawn and sent by Mr. Harwood directly to Mr. Parks, sometimes referred to in trial as the 600 plan. The lot grading plan showed the entire Gaglardi property with the planned grades across the property, according to Mr. Parks. The plan did not arrive through Universal Reproductions, but by email from Mr. Harwood with the plan attached as "A-1.01 site plan.pdf".

This document was produced following conversations Scott Harwood had with Bob Gaglardi. Mr. Gaglardi had made a rough diagram on a piece of paper. The email itself was addressed to Mr. Parks' Gmail account, sent from Mr. Harwood's Northland email account. It was subject headed, "Overall Site Plan", and read as follows [as read in]: Jim, here is the overall lot grading plan. Bob and I worked on this for about five days, making sure everything equalled out so we could make all the lots around the shack useful.

I will have prints made for you, then we can talk about where we are putting the cut and fill. [ 31 ] The grading plan was imprinted with the Northland name and logo. It was labelled "Grading Plan", and it bore Mr. Harwood's name. The computer-assisted design ("CAD") drawing showed the planned elevations across the length and breadth of the Gaglardi property, according to Mr. Parks. It showed a lane or driveway behind the shack with room there to park 12 vehicles at a 90-degree

angle. [ 32 ] As shown on the plan, the lane extended west towards the west end of the Gaglardi property. There were another 35 parking spaces shown along the length of the lane west of the lot. This was sometimes referred to in the trial as "the parking lot". [ 33 ] The email and its attached plan was, on the face of it, an instruction emanating from Scott Harwood after close consultation with Bob Gaglardi. Mr. Parks said that he started following the plan after he received a telephone call from Scott Harwood saying to proceed.

The lots were to be cleared of vegetation to make them "useful" in accordance with the grading plan, and the land south and west of the shack was to be readied for the parking lot. There was a large copy of the plan in use, Mr. Parks said. [ 34 ] Photographs taken by Mr. Parks on October 4 and 5, 2010, show some vegetation has already been removed. By October 22nd, another photo shows the land west of the shack to be effectively cleared of green matter. The cut-and-fill operation started before the end of the month.

A photograph taken October 29th depicts a dump truck in the process of dropping fill material along a line west of the shack. [ 35 ] The defendants have taken the position that Mr. Parks exceeded his instructions and authority, that the clearance of vegetation, lot levelling, and bringing riprap onto the property was neither authorized nor wanted. [ 36 ] I will now turn to the evidence of Mr. Harwood. [ 37 ] Mr. Harwood gave evidence that he had worked for Northland for more than 11 years. On the Gaglardi property project, he was the liaison between Northland and Jim Parks, the project superintendent.

He drew the plans as they came forward and sent them on to Mr. Parks. He said he did one preliminary landscaping plan, the focus of which was to provide room for some 90-degree parking and vehicle movement behind the shack. [ 38 ] The lot grading or 600 plan came about, he said, after a brief conversation he had with Bob Gaglardi. Mr. Gaglardi provided him with a small sketch and gave him instructions as to what he wanted. Mr. Harwood produced a preliminary plan which he left on Bob Gaglardi's desk to be dealt with at his convenience. Mr. Gaglardi made annotations and returned the plan to Mr. Harwood's desk. Mr.

Harwood incorporated the changes and returned the updated plan to Bob Gaglardi. This process took place over five days. [ 39 ] According to Mr. Harwood, Bob Gaglardi's input amounted to "a few tweaks" to ensure sufficient room for vehicles behind the shack. Mr. Harwood said he made the changes requested, and when it came back from Bob Gaglardi again he was told it was fine. He thought this was in June 2010, but could not be sure. [ 40 ] Mr.

Harwood said that the overall site plan email which attached the 600 plan, and in particular the sentence, "Bob and I worked on this for about five days, making sure everything equalled out so we could make all the lots around the shack useful", was not intended to suggest that five days' worth of work had been put into the 600 plan drawing. In fact, he said, it was about 10 minutes' work total. [ 41 ] Mr. Harwood said that all Bob Gaglardi did was to show the aisle and stalls behind the house.

He said that the further parking spaces, 35 of them according to the drawing, and the lane extending west of the shack were his doing. He said of the additional parking spaces he added, "That was my fault, I put them in and, you know, Bob Gaglardi had never asked me to or told me to put the stalls in. I just did it, figuring that it was something he wanted, but it wasn't." [ 42 ] Counsel asked Mr. Harwood what his idea was in putting into the lot grading plan all the parking spaces extending west of the shack to the western boundary. Mr.

Harwood answered that he did not know, "I was just trying to float it in there, maximize the number of stalls they could potentially get in there." [ 43 ] Mr. Harwood agreed that he used the term "overall lot grading plan" in the email. Mr. Harwood said that the word "grading" referred to "pushing around a little dirt, that's all I know about grading." He seemed to say he was just talking about enlarging the 15 feet of space behind the shack, in spite of the breadth of the parking shown on the plan. [ 44 ] Mr.

Harwood was asked what he had meant when he had written that they were "making sure everything equalled out so we could make all the lots around the shack useful." He said in evidence that he did not mean all the lots, he just meant that the elevation at the site of the addition had to be raised 21 inches and that the fill to do this would come from cutting into the hill at the rear of the shack. [ 45 ] Mr. Harwood said that the reference in the email to having prints made was a reference to engaging the services of Universal Reproductions.

The witness also said that his email reference to "then we can talk about where we are putting the cut and fill" was a reference to the grading of fill cut from the hill behind the shack towards the site of the addition. [ 46 ] The elevations recorded on the 600 plan were taken from an Underhill & Underhill topographical survey of the site, so Mr. Harwood said. A copy of the Underhill survey was included in Exhibit 5. To the east of the shack, two parallel lines perpendicular to the shoreline extended from Kamloops Lake southwards up the beach. Mr.

Harwood described these as existing boat rails, part of a boat ramp. [ 47 ] Mr. Harwood agreed that the boat rails and ramp shown on the 600 plan are located on Lot 40, the lot just east of the shack. In the Underhill survey, the rail and boat ramp are situated in Lot 41. Mr. Harwood denied a number of times that the change in the ramp location was a design element added by him, and said that it was an AutoCAD error. Mr. Harwood said that he took it upon himself to send a grading plan as an attachment with a covering email to Mr. Parks. He also copied it to Tom Gaglardi. Mr.

Harwood said that Tom Gaglardi contacted him and said this was, "Very, very, very conceptual. None of this work is supposed to go ahead any time soon. Make sure that Jim Parks knows this." [ 48 ] Mr. Harwood said he called Mr. Parks and explained the situation in conformance with Tom Gaglardi's clear instructions. Mr. Harwood said he made Tom Gaglardi's views clear, and Mr. Parks said he understood. This acknowledgment is important because it

cuts across the grain of the submission that Mr. Parks was motivated to exceed his authority on the project because he very much wantedto impress Tom Gaglardi. [49] Mr. Harwood said that he never had any discussions with Mr. Parks approving changes to the grade or any other portion of theGaglardi property beyond the area around the shack and addition, preparing any parking stalls west of the shack or constructing a berm,boat ramp, or riprap on the property. Mr. Harwood said he received photographs of the shack construction from Mr. Parks, but recallednone of the landscaping.

He said he regularly got emails from Mr. Parks that he did not understand, so he would just delete them andwait for Mr. Parks to call. [50] Mr. Harwood stated that when DFO officers arrived at the site, Mr. Parks called him to say, in effect, that they were all going tojail. Mr. Harwood admitted that in spite of his belief that he had done nothing wrong, his reaction to this information was to send Mr.Parks an email about 10 minutes later, on January 26, 2011, at 2:51 p.m., instructing Mr. Parks to rip Mr. Harwood's name and theNorthland logo from all current drawings. Mr.

Harwood said he had in mind specifically the 600 plan. [51] Tom Gaglardi was copied with this email. If Mr. Gaglardi responded to Harwood, there was no copy of any reply contained inthe emails adduced through Mr. Parks. Mr. Gaglardi said he did not countermand the direction given by Mr. Harwood. [52] Ten minutes after Mr. Harwood requested Mr. Parks to destroy evidence linking him and Northland to the 600 plan, Jim Parkssent an email to Tom Gaglardi, Scott Harwood, and Mark Lloyd at Northland advising that DFO had been on the Gaglardi property theday before, providing updated information, and seeking direction.

Mr. Gaglardi responded to Mr. Parks at 3:14 p.m. with a series ofquestions. [53] At many points, Mr. Harwood's evidence caused me concern. The plain meaning of the words used by him in the email to Mr.Parks attaching the 600 plan were contradicted by his oral evidence. Was this the overall lot grading plan or was it not? Had he workedon it with Bob Gaglardi for five days or 10 minutes? Had they made sure everything equalled out so they could make all the lots aroundthe shack useful? There was nothing tentative or conceptual about Mr. Harwood's email to Mr. Parks. [54] In Bradshaw v.

Stenner, 2010 BCSC 1398, at paragraph 186, Madam Justice Dillon summarized some of the factors to beconsidered in assessing witness credibility. She said: Credibility involves an assessment of the trustworthiness of a witness' testimony based upon the veracity or sincerity of a witness and theaccuracy of the evidence that the witness provides (Raymond v. Bosanquet (Township) (SCC) . . .).

The art ofassessment involves examination of various factors such as the ability and opportunity to observe events, the firmness of his memory, theability to resist the influence of interest to modify his recollection, whether the witness' evidence harmonizes with independent evidencethat has been accepted, whether the witness changes his testimony during direct and cross-examination, whether the witness' testimonyseems unreasonable, impossible, or unlikely, whether a witness has a motive to lie, and the demeanour of a witness generally (Wallace v.Davis, [1926] 31 O.W.N. 202 (Ont.H.C.); Farynya v.

Chorny, (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.); R. v. S.(R.D.), (SCC), [1997] 3 S.C.R. 484 at para.128 S.C.C.). Ultimately, the validity of the evidence depends on whetherthe evidence is consistent with the probabilities affecting the case as a whole and shown to be in existence at the time (Farnya at para.356). [55] Applying these considerations to the evidence of Mr. Harwood, I have very little confidence in the truthfulness of his evidence. It frequently seemed contradictory, implausible, or improbable. My assessment of his reliability as a witness was not improved by hisdemeanour while giving it.

Neither was I impressed by Mr. Harwood's commitment to the truth when he admitted that his first responseto news that DFO was investigating was to direct Mr. Parks to destroy evidence that would tie Mr. Harwood and his employer to the 600plan. [56] I will now turn to the evidence relating to the boat ramp and the riprap. [57] Mr. Parks gave evidence that at the site, Tom Gaglardi introduced him to a man named Big Al. It appears that this person wasAlan Novakowski, who later gave evidence here. Mr. Novakowski was assisting Mr. Gaglardi to get a boat dock for the Gaglardiproperty. Mr. Gaglardi told Mr.

Parks, according to Mr. Parks, that he was to take direction from Big Al on the slope of the boat ramp. He did so and reduced the slope. Mr. Parks said that it was at Big Al's suggestion that he put in a request to Mark Lloyd, a Northlandhead office manager, for riprap to guard the banks or berms near the boat ramp. Jim Parks said that that was necessary, as he did nothave the authority to contract either the riprap or the hauling. [58] Mr. Novakowski gave evidence and agreed he had been out to the property and spoken with Jim Parks.

However, he deniedbeing at the site with Tom Gaglardi over this time period or giving Mr. Parks any advice on the boat ramp or the benefits of riprap toprevent high water erosion. Tom Gaglardi also disagreed that he had asked Mr. Parks to build a boat ramp or to take advice from Mr.Novakowski on the boat ramp or riprap. [59] I will turn now to the case against Bob Gaglardi. The Crown submits that Bob Gaglardi is as responsible as Tom Gaglardi andNorthland were for the harmful alteration and destruction of fish habitat. It is argued that Mr.

Gaglardi was the chief executive officer ofNorthland during the term of the work. He owned the property and he signed the building permit application for the site, albeit after theharm to fish habitat had been done. [60] The Crown relies on the Harwood email attaching the 600 plan, which states that, "Bob and I worked on this for about fivedays making sure everything equalled out, so we could make all the lots around the shack useful." [61] Mr. Harwood's evidence, to recap, was to the effect that it was not five days' worth of work, but 10 minutes' worth over fivedays.

He said that the plan went to Bob Gaglardi twice, but his input was only as to the cut and fill close by the shack and the addition.

[62] Bob Gaglardi gave evidence, although he was the legal owner of the parcel, that the Gaglardi property was a family property. The project to renovate the shack and put the addition on was left to Tom Gaglardi and was not one in which he was involved. Theexception was what he described as a brief involvement with the draftsman, Harwood, unrelated to the area of damage caused to the fishhabitat. [63] Bob Gaglardi said Scott Harwood approached him with a single problem: material was required for fill at the site of theaddition. Mr. Gaglardi suggested that fill should be cut from the bank behind the shack.

This would provide the required fill and someroom for parking spaces behind the shack. He said he may have roughly sketched out his ideas for Mr. Harwood. [64] Contrary to the evidence of Mr. Harwood, Bob Gaglardi said that he was never shown Mr. Harwood's lot grading plan, the 600plan, at all. Although Tom Gaglardi was copied with the 600 plan by Mr. Harwood, Bob Gaglardi was not. Indeed, Bob Gaglardi doesnot appear to have been copied with any of the project emails exhibited on this trial. [65] Jim Parks gave no evidence regarding Bob Gaglardi's involvement in the project.

He said Bob Gaglardi visited the Gaglardiproperty once when he was there, and that they did not discuss the project. [66] Assuming that the Harwood email attaching the 600 plan is evidence directly admissible against Bob Gaglardi, it must beconsidered in light of all the evidence. The evidence of a deeper involvement by Bob Gaglardi in the planning and execution of the workwhich resulted in the destruction of fish habitat does not, in my view, rise beyond suspicion. [67] The well-known case of R. v.

D.W., (SCC), [1991] 1 S.C.R. 742, has application here, particularly the first twolimbs of the instruction to triers of fact. First, if you believe the evidence of the accused, you must acquit. Secondly, if you do notbelieve the testimony of the accused, but you are left in reasonable doubt by it, you must acquit. [68] With respect to the charges against Robert John Gaglardi, as a result of this evidence, I am left in a state of reasonable doubt asto his guilt and accordingly he is acquitted on both counts. [69] I now turn to the case against Northland and Tom Gaglardi.

Counsel for these defendants submits that they failed to meet theirobligations to exercise due diligence to ensure the work done at the Gaglardi property was carried on lawfully and did not result, as it did,in the harmful alteration, disruption, or destruction of fish habitat along the foreshore. [70] Counsel is content to have convictions entered against both defendants on that basis, but submits that it should not be on thebasis that these parties intentionally broke fisheries laws in order to achieve the changes in the landscaping obtained by Jim Parks. [71] In consideration of all the evidence heard in the case, I am satisfied that the Crown has made out the case substantially on thebasis of the evidence given by Jim Parks.

That evidence has persuaded me to the standard of proof beyond a reasonable doubt that JimParks was substantially carrying out the will of these parties when he cleared out the vegetation and used fill material to level the lots, socausing the damage complained of. [72] The email of Scott Harwood and the attached plan 600 is evidence which strongly tends to support the evidence of Mr. Parks. The viva voce evidence given by Mr. Harwood, the person at Northland most responsible for giving instructions to Mr.

Parks, wasilluminative, as well, and struck me as an attempt to reinterpret events that were perfectly clear. [73] Tom Gaglardi gave evidence that he was apoplectic when he heard the orchard had been removed, yet he did not dismiss Mr.Parks who worked on for months after. Despite his apoplexy, he was seemingly uninterested as to how this event could have come topass. [74] Tom Gaglardi gave evidence to the effect that this project, his project, was a very small job and one which he did not followclosely.

Although the money concerned, one to two million dollars, he said, may have been small in comparison to other Northlandprojects, this was not about the money. This was a family property owned by his father and his grandmother before that. It involvedrenovation of the bungalow his father had built himself as a young man. [75] Given the 17 plan drawings sent to Mr. Parks from Northland through Universal Reproductions over the period July 2010through April 2011, the project was plainly the object of a good deal of work and attention at Northland.

It strains credit to believe thatTom Gaglardi was not actively involved in the project over that period. [76] I conclude that if Tom Gaglardi and Northland did not intend the harm to fish habitat that resulted with this project, theycertainly did nothing to inform themselves of their obligations or to engage in processes that might have presented challenges orhampered progress.

There was an element of wilfulness here, a desire to get the job done and, if necessary, to seek forgiveness later. [77] I find Northland Properties Corporation and Robert Thomas Gaglardi guilty on both counts in the information. [78] I have been asked to deal with the issue of harmful alteration to the fish habitat at this stage of the proceedings and the extent ofthat harm. The Crown has submitted that a massive amount of highly-productive fish habitat was torn out and damaging fill placed ontop to a very extensive degree.

The defence submitted that the amount of actual harm done is vague and difficult to quantify, butacknowledges some harm done. [79] I accept the evidence of the two experts called. Dr. Rosenau is an expert on fresh water fish habitat and salmonid species, withparticular knowledge of the Kamloops, Shuswap, and Little Shuswap Lakes and associated salmon runs, such as the massive AdamsRiver sockeye run.

David Pehl is a very experienced fisheries biologist who was on the scene when DFO officers first arrived on site. [80] These two expert witnesses gave evidence of the role that the shoreline vegetation plays in sustaining immature fish onKamloops Lake, particularly during seasonal high water. The damage to the fish habitat along the Gaglardi property was over asignificant area of the 700-foot beach. The impact is all the more serious, given the relatively few places along the banks of Kamloops

Lake where such mature cottonwood grows for sustenance and protection to immature salmonids and the length of time it takes to replace a mature stand. [ 81 ] Such damage as occurred here tends to be long-lasting in its effect. Mr.

Pehl stated that in three or four decades of assessing restoration activities in this hot, dry climate, he had yet to see a project result in a mature stand of trees at 60 centimetres in diameter, the size of some of the stumps left behind by the work on the Gaglardi property. [ 82 ] This is not a situation where 80 or $85,000 in remediation can restore what has been lost, except over a long period of time. [ 83 ] Dr. Rosenau compared the changes wrought as going from a very good fish habitat to a moonscape.

Despite the fact that the damage to the fishery is very hard to analyze quantitatively, the available evidence establishes that the destruction of this fish habitat at this location is a significant and long-lasting loss. [ 84 ] Those are my reasons and my findings. (REASONS CONCLUDED)