R. v. 310 Waste Ltd. et al., 2011 ONCJ 808

File No. 05-0170-01-07 Citation: R. v. 310 Waste Ltd. et al. , 2011 ONCJ 808 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN - v. - 310 WASTE LTD. ET AL. * * * * * * * * * R E A S O N S F O R J U D G M E N T * * * * * * * * * BEFORE HER WORSHIP JUSTICE OF THE PEACE G. FORREST on Monday, June 27, 2011 at NEWMARKET, Ontario * * * * * * * * * *

APPEARANCES J. Herlihy and D. Meuleman Counsel for Ministry of Labour R. B. Moldaver Counsel for the Defendant Monday, June 27, 2011 THE COURT: And in the meantime the remaining matter is Sansone, Titon, Hanna, 310 Waste and Rail Cycle Incorporated. May I see the information, please, Madam Clerk? CLERK OF THE COURT: Yes, Your Worship. THE COURT: Okay. Mr. Moldaver, are all the defendants here today? MR. MOLDAVER: They are. THE COURT: All right. Now gentlemen, if you can stand up, please and identify yourselves. ROBERTO SANDSONE: Roberto Sansone. EDMON HANNA: Edmon Hanna. GUIDO TITON: Guido Titon.

THE COURT: Thank you. After a lengthy trial, I have prepared my judgment in this matter. Before I do, is there anything that anybody would like to say? Mr. Moldaver, anything you need to add? MR. MOLDAVER: Thank you, no. MR. HERLIHY: No, thank you, Your Worship. MRS. MEULEMAN: No, thank you. THE COURT: All right. I hope you’ll bear with me. These judgments have a way of becoming more lengthy than originally intended. I have a feeling by the end of it you’ll all be tired of my voice.

R E A S O N S F O R J U D G M E N T FORREST, J.P. (Orally) The defendants are charged between October the 12 th , 2004 and ending on or about October the 28 th , 2004 at 10525 Keele Street, in the City of Vaughan, with the ongoing offence of discharging, or causing or permitting the discharge of a contaminant, namely smoke and odour into the natural environment that caused or was likely to cause and adverse effect, contrary to section 14(1) of the Environmental Protection Act , R.S.O. 1990, as amended.

The Facts Rail Cycle Incorporated held a Provisional Certificate of Approval issued to it by the then Ministry of the Environment and Energy on March the 21 st , 1994. The document evidences the conditional approval of the governing environmental ministry for Rail Cycle Incorporated to operate as a waste disposal processing and transfer site, provided certain conditions were met.

These conditions included, inter alia, the manner of storage, the volume of waste to be amassed at any one given time, records keeping and reporting, hours of operation, and required adherence to certain conditions concerning contingency and emergency response plans. In particular, the Provisional Certificate of Approval allowed for a maximum of 1500 tonnes of waste to be stored at the facility at any one given time. As well, the waste was to be stored in enclosures within the site.

The company allowed the piles of waste on site to grow, over time, to exceed the provisional maximums enormously. By October 2004, these piles grew to approximately 20 times that allowed, according to estimates by Ministry officials based on visual observation. The waste was not contained with enclosures as required. The piles of waste consisted of construction waste, drywall, cardboard, wood, and sundry junk. Machinery was used to compact the piles of waste. Photographs taken by the Ministry of the Environment personnel show the enormity of the waste piles with heavy machinery atop the piles.

Ministry of the Environment officials continued to monitor the site during this growth period. An order to comply requiring the removal of excess waste, ensued from the Ministry of the Environment in August of 2003. While temporary inroads in the reduction of waste from the site were made, the order was not complied with and ultimately the piles of garbage continued to grow. At least one offence notice was issued by the City of Vaughan, requiring abatement of the volume of waste. The notice did not result in significant abatement.

Fire officials conducting fire inspections grew concerned that these piles of waste were fire hazards. A fire safety inspection report was prepared by fire Prevention Inspector Guyette to 310 Waste and 2020700 Ontario Inc. on June the 29 th , 2004. The notice listed 13 violations of the Ontario Fire Code and required compliance with the Code by August the 19 th , 2004. Partial compliance was obtained and there remains no substantial amelioration of the volume of waste. Significant Fire Code infractions, especially regarding access routes by fire fighting personnel and water supply remained outstanding.

On September the 15 th , 2004, a fire erupted in a pile of combustible waste on site. The fire was fully extinguished by fire fighting personnel within two hours. The fire was determined by Fire Chief Senay to be caused by spontaneous combustion. This was caused by the compaction of and decomposing of waste, which caused a chemical exothermic (a heat causing response), igniting the combustible material. In the early morning hours of October the 12 th , 2004, fire broke out at a different location, although within the same pile on site.

The fire was major in its impact, lasting until October the 31 st before it was entirely extinguished. Numerous fire crews were dedicated to the site during the course of the fire. Thick black acrid smoke was emitted from the fire causing neighbours to remain indoors and interfering with the general use and enjoyment of their properties. According to Fire Chief Senay, the fire was caused by spontaneous combustion due to the decomposition of compressed and compacted combustible material causing an exothermic, chemical reaction. A thick black vein of charcoal was located deep within the pile.

Fire fighting crews attempted to expose this vein and follow it to the source of ignition. These efforts were hindered by the compaction of materials, which rendered the piles of waste impenetrable to water, and by the difficulties in removal of the exposed waste due to lack of space for replacement of the material once removed, due to the size and volume of waste relative to the area of the site. Fire access routes were cluttered and the machinery of the fire fighting crews could not, without difficulty, get close to the source of the flames. There was inadequate water supply internally.

The Defendants The original Provisional Certificate of Approval for a waste disposal site was issued to Rail Cycle Inc. on March the 21 st , 1994 to the address of the waste disposal site at 10525 Keele Street in the Town of Maple. The Provisional Certificate allowed for the taking in, sorting, and transferring of waste at this location.

Section 15(

e) of the certificate stipulates that “the total amount of incoming waste, residual waste, and processed material waste stored at the site shall not exceed 1500 tonnes at any time”.

Section 17 provided that “the operation was to cease accepting waste if the amount of waste should reach the limit of 1500 tonnes”.

Section 16 required that “all waste”, (except certain discreet types of waste), were to be kept enclosed in a steel building on the site and that waste excepted from the indoor storage provision was to be screened from view. The reasons for the implementation of the conditions in

section 16 and 17 are stated in an addendum to the certificate of approval at paragraph 6 of that document as, “To ensure that the site is operated in a manner which does not result in a nuisance or a hazard to the health and safety of the environment or of people.” 202780 Ontario Inc.[sic], 202700 Ontario Inc.[sic], 310 Waste Limited and Edmon Hanna On October 9 th , 2003, Rail Cycle Inc. sold its shares to 2020780 Ontario Limited to operate at the same location with Edmon Hanna as director of the corporation.

The property at 10525 Keele Street on which the waste management corporation held by 2020780 Ontario Limited was to operate, was held by another numbered company, 2020700 Ontario Inc. with Edmon Hanna as director in this company also. Land registry records as of the 22 nd of October, 2004, evidenced the conveyance of property to and charged to 2020700 Ontario Inc. from the principal of Rail Cycle Inc. On October the 13 th , 2003, the principal of Rail Cycle Inc. notified the Ministry of Environment of the sale of Rail Cycle to Hanna. On August the 14 th , Mr.

Hanna wrote to Steve Batton, of the Ministry of the Environment, evidencing the sale of the property on which the waste site operated to 2020700 Ontario Inc, the sale of the corporate owner of the business to 20207080 Ontario Inc., and the renaming of the corporation to “310 Waste”. At all material times, Mr. Hanna acted as operative owner of the corporations, corresponding with Ministry of the Environment officials and fire prevention officials in this capacity. He is listed as “sole director” on official Ministry of the Environment “change of director” documentation and corporate profile documents.

Robert Sansone and Guido Titon While legal corporate documentation does not reflect legal control over the premises by Mr. Sansone, he has been held out to be in actual control of the running of the premises to a large extent. In an official inspection visit to the site on June the 29 th , 2004 by Frank Guyette of the Vaughan Fire Department, Mr. Sansone was introduced as a consultant to the corporation. He possessed and distributed 310 Waste company cards with his imprinted name on them. Inspector Guyette testified that at all material times Mr. Sansone “appeared to be in charge”.

Frank Batton, an abatement officer with the Ministry of the Environment observed that Mr. Sansone often took the lead in discussions. Mr. Batton testified that in numerous discussions regarding a rail spur system that was planned for installation, it was generally Mr. Sansone who spoke for the corporation. When delivering an order to the corporation, it was first handed by Mr. Batton to Mr. Hanna and, “Hanna passed it to Sansone”.

Acting Deputy Fire Chief Duncan, the deputy in charge of fire prevention testified, that, in a meeting with the company concerning a “letter of commitment” and a deadline for compliance, which was fast approaching, it was Mr. Sansone who did most of the talking for the company. Fire Chief Senay met Hanna and Sansone regarding the site in August and September of 2004. He testified that Mr. Sansone was his primary contact person regarding plans for waste removal. Land Registry documents filed dated April the 21 st , 2004 evidence the transaction in which Mr.

Sansone is listed as “guarantor” to a charge in the amount of $320,000 against the corporation. Mr. Sansone completed an affidavit acknowledging that he was the

“president, vice president, manager, secretary, director authorized to act for 2020700 Ontario Inc.”, indicating “and as such, I have personal knowledge of the facts herein deposed to”. In the second last paragraph of the charge document, the words, “I, Robert Sansone have the authority to bind the corporation” appear. I am satisfied that although Mr. Sansone has been held out to be a consultant to the corporation, that he is also been held out to be an operator of the corporation and was to some extent responsible for the actions of the company. Guido Titon Mssrs. Guyette and Batton testified that Mr.

Titon also accompanied them on inspections. Mr. Titon possessed and distributed 310 Waste business cards with his name embossed in them. Mr. Titon continued to be seen on the site repeatedly and to be seen to be actively involved in the day-to-day operation of the company. All evidence on point remains unshaken on cross-examination.

The Law First the Environmental Protection Act section 14(1), “Despite any other provision of this Act or the Regulations, no person shall discharge a contaminant or cause or permit the discharge of a contaminant into the natural environment that causes or is likely to cause an adverse effect.”

Section 1 of the Act defines the elements of the offence; Person responsible “means the owner, or the person in occupation or having the charge, management or control of a source of contaminant.” “Discharge” when used as a verb includes add, deposit, leak or emit and, when used as a noun, includes addition, deposit, emission or leak.” “Contaminant” means “any solid, liquid or gas, odour, heat, sound, vibration, radiation, or combination of any of them resulting directly or indirectly from human activities that causes or may cause an adverse effect.” An “adverse effect” is defined as one or more of the following: “(

a) impairment of the quality of the natural environment for any use that can be made of it, injury or damage to property or to plant or animal life, harm or material discomfort to any person, an adverse effect on the health of any person, impairment of the safety of any person, rendering any property or plant or animal life excuse me, human use, loss of enjoyment or normal use of property, and interference with the normal conduct of business.” The parties agree that the offence is one of strict liability. In R. and Sault Ste.

Marie , (City), The Supreme Court of Canada classified the three types of offences; Mens rea offences “in which is necessary for the Crown to prove that the defendant possessed a requisite state of mind.” Absolute liability offences “in which it is not open to the accused to exculpate himself by showing that he was free of fault”.

And “offences in which there is no necessity for the prosecution to prove the existence of mens rea” . The doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in the mistaken set of facts which, if true, would render the act or omission innocent or if he took all reasonable steps to avoid the particular event.

These offences may properly be called offences of strict liability.” I must then, as a matter of law, determine whether the essential elements of the actus reas of the offence have been made out to the requisite standard of proof beyond a reasonable doubt. Person The Act does not limit responsibility to only those persons legally connected to a business or premise through ownership or official control. The Act, by its wording, envisions responsibility to the environment on behalf of all persons. I am satisfied that Mr.

Titon, Edmon Hanna and Robert Sansone are persons responsible to the environment for the purposes for the Environmental Protection Act.

It is clear that corporate bodies 310 Waste Ltd., Rail Cycle Incorporated, 2020700 Ontario Inc., and 20207080 Ontario Limited as corporate owners of the business and property are also persons responsible for the purposes of the Act to the natural environment. “ Natural environment ” is defined as “the air, land and water or any combination or part thereof of the Province of Ontario”. “Discharge a contaminant” Neighbours, firefighters and local school employees testified as to the nature and extent of the emissions.

Pictures taken by witnesses several day after the fire started showed an enormous quantity of grey smoke emanating from the piles of waste. The evidence is not contradicted. For almost three weeks, large quantities of smoke and odour were emitted into the natural environment. Such emissions constitute, by definition, a contaminant. Adverse Effect Were such contaminants “of a quality as to cause or be likely to cause an adverse effect”? Grace Renda testified that she recalled greyish black smoke from the site present for several days.

She attempted to go outside for a run but was prevented from doing so by the odour from the fire. She worried about the health effects of the fumes and recalled she did not run outdoors during the course of the fire. When she was required to go outside, she covered her mouth with her shirt. I’m satisfied that the smoke and odour impaired the environment for the purposes of Ms. Renda’s running out of doors. As such, she suffered a loss of enjoyment of normal use of her property and the neighbouring public properties.

Cosimo Modafferi was principal of Saint Joan of Arc Catholic High School a few blocks from the site. He recalled lots of smoke coming from the vicinity at which the site operated. He recalled a lingering residue of smoke outside the school. He was obliged to shut windows and turned off the ventilation system, which normally brings fresh air into the school. Due to the complaints by students and parents, outdoor Phys ed was cancelled but soon re-established when health officials reassured them that the fumes would not harm.

Alessio Barberi resided approximately half a block from the site and is the father of two children. He recalled driving his daughter to school instead of having her walk the four or five blocks because of fear the smoke would exacerbate her asthma. He testified that he loaded up on puffers and that the children were not allowed out to play for about three weeks.

While there is no expert evidence with respect to the medical mechanics of asthma and the effects of the smoke, and I’m not prepared to find that the fire actually affected the health of his daughter, I am satisfied that the existence of smoke presented a real and reasonable basis for the concerns that Mr. Barberi had for his daughter’s health and resulted in accommodations to his and his daughter’s routine.

While actual harm or material discomfort cannot be found in the absence of medical evidence, I am prepared to find that the smoke impaired the quality of the natural environment for the family’s normal use of it.

Julie Leal was a mother of two on maternity leave with her newborn. She was obliged by the foul nature of the smell to keep her windows and doors shut. She did not take her dog or baby for walks because of the smell and stayed indoors unless absolutely necessary. Out of concern for the safety of her children, particularly her newborn, she moved to Toronto to escape any harmful effects of the fire. There was no evidence that the health of Ms. Leal or her children was impaired. I’m satisfied, however, that her concerns for the safety of a vulnerable newborn reasonably led to her removing them to another location.

As such, the fire prevented her from enjoying a normal use of her property. Frank Zaffino kept his windows and doors shut, and did not cut the grass for the duration of the fire. Iris Marchese was a neighbour and mother of three children. She recalled the smell of “rotten eggs” and her children complaining about it. She recalled that she was prevented by the strength of the odour from walking the dog or taking exercise outside for about a week. She was concerned about the health of her son, who had had cancer earlier in his life.

Suzie Quadrini-Ferguson was the principal of Holy Jubilee Elementary School close by. She experienced very smelly black smoke. Outdoor recesses and Phys ed were cancelled. Windows and doors were kept shut and the dampers for the outside air exchange system were closed to prevent the odours from coming in. One staff member left early and a number of parents kept their children home from school.

While it’s not clear that the business of public education can be described as a business for the purpose of the Act, it is clear that the inhabitants, students, and teachers, were prevented from enjoying the normal use of the property. Vincenzina Portelli lived a few blocks away and kept windows and doors tightly closed. She recalled her children telling her that they were obliged to stay in at recess. Rick Raynor lived close to the fire site and worked from home. He was obliged to keep windows he normally would keep open, closed.

He did not allow his two-and-a-half year old daughter to play outdoors when the wind was blowing the smoke in the direction of his house. As previously indicated, it’s not necessary to establish that the fire caused real harm. I am satisfied that the fire did cause an impairment of the quality of the natural environment for normal purposes, which had previously been made of it, and that it resulted for many people, in the loss of enjoyment of normal use. As such, I am satisfied that the contaminant smoke and odour caused “adverse effect”.

Causation In its plainest meaning the Act requires that the event causing the contamination could have been prevented by the defendant, or that the contaminating events occurred because of acts committed by the defendant, or acts committed while the defendant had a responsibly for the premises, or omissions by the defendants, which either act or omission contributed in some way to the contaminating act. I’ll return to these issues later. The Defence 310 Waste, Sansone, Mr.

Titon, numbered companies, Edmon Hanna, Rail Cycle Incorporated are charged with the offences occurring between October the 12 th , 2004 and October the 30 th , 2004. It’s not disputed that on these dates smoke fumes were emitted into the environment, nor is it argued that the defendants are not responsible for the piles of garbage in excess of the amounts allowed by the Certificate of Approval. During the charging period, the defendant’s assisted, to the extent possible, the firefighting officials who had control of the premises.

There is no evidence of wrong doing on behalf of the defendants during the actual charging period and, therefore, it is submitted by the defence, the offence can't be made out. Moreover, since these infractions occurring within the pre-charge period have already been redressed by the laying of charges and numerous resulting convictions, the defendants should not be convicted again. The defence has asked me to adopt, in part, the rationale expressed by Justice Ratushny of the then Ontario Court (Provincial Division), in Regina and Amoco Fabrics and Fibers Limited , 9 O.R (3 rd ) at 306.

In this trial of first instance, the defendants were charged with the ongoing offence of pollution of the environment. The defendants had been storing industrial waste in waste storage lagoons, which, unknown to the defendants, had begun to leak toxic waste into the ground water. The defendants exercised due diligence in initiating internal evaluation of the company’s compliance with Provincial regulation and undertook voluntary compliance reviews. These reviews, which were not prompted by the authorities, resulted in an internal report highlighting the need for further investigation of

ground water leakage and plans to prevent future contamination. Plans were adopted to clean out the contaminated areas. The Crown argued that the defendant’s lack of preventative action prior to the charge period, (which ultimately caused the pollution), was the gravamen of the offence. This was rejected by the court. The prosecution was barred by statute of limitation from charging an offence for this lack of action. The court found that the offence was the continuation of the pollution into the environment and the defendants had exercised due diligence to curb it and remediate affected areas.

To reject the defence of due diligence would be to convert the offence to one of strict liability. Both the case before me and the Amoko case involve ongoing offences of continuing pollution. The court in Amoko was clearly satisfied with the defence of due diligence put forth by the defence. There is no such defence tendered here. It is not clear the extent to which the case would bind this court.

Nonetheless, I am not satisfied that the Amoko case stands for the assertion that ‘all events leading up to, but prior to the offence date, are not relevant to a determination of guilt during the offence period’, as is suggested by the defence. Whether or not a defence of due diligence were to be accepted by this court, an application of the Amoko rationale, as it is submitted by the defendants, would, at best, prevent the Crown from asserting evidence of lack of due diligence prior to the offence date as the basis for conviction.

In Amoko , the court found that the actus reas had occurred beyond all reasonable doubt. In doing so, the court relied on evidence of both pre-charge and charge period activity of the corporation. Amoko is distinguishable from the case at bar, as there is no evidence of due diligence on behalf of the defendants before me. Applied rationally to the present case, the Crown would be prevented from barring evidence of due diligence before the contamination. Since no such evidence is tendered on behalf of the defence, the issue of such an estoppell is not invoked.

In my view, the charge is adequately framed to highlight the date on which the emission occurred and I am not precluded from a consideration of the past causal actions of the defendant. To suggest that the defendants are not responsible because the fire department was forced to take over when the fire broke out would be to subvert the purposes of the Act, making prosecutions for fire related contamination offences impossible.

Furthermore, even if I were to find that only those acts which occurred within the time in which the defendants had control of the premises during the charging period are blameworthy, I would be satisfied that the defendants were in control of the premises in the morning hours of the 12 th of October, 2004, prior to the detection of the fire, and thereafter prior to the arrival of firefighting crews.

In my view, the offence could be made out even if I were to be limited to the consideration of this charging time period only, as fire and smoke were emitted into the natural environment in the early morning hours of October 12 th , 2004 before the fire crews arrived. The Effect Of Breaches Of Provisional Certificate Of Approval The defendants do not dispute that the site was in breach of the Provisional Certificate of Approval to a very great degree, nor do they dispute their failure to come into compliance with the fire code.

These deficiencies have been dealt with in other court proceedings, resulting in convictions and penalties. The mere fact of such non compliance does not result in liability under the Environmental Protection Act , but the actions of the defendant leading up to the impugned events are relevant to establish a causal connection between the fire and the defendants. Negligence And Foreseeablilty The Act concerns itself with breaches of a positive duty of care on behalf of all persons to the environment. To this extent, the duty of care resembles the duty of care as seen in tortuous negligence.

In such civil proceedings, a court must find, on a balance of probabilities, that foreseeable results ensued and are causally connected to the actions of the defendant, which can be said to be in breach of a duty of care, or, failure to act, where there is a positive duty of care. In offences of strict liability, as here, foreseeablity does not form part of the actus reas as an element which must be proven by the Crown as it does by the plaintiff in tortuous liability suits.

A lack of foreseeablity, may, however be invoked by the defendant in a due diligence defence to say that although the event occurred, it was ‘not something that I could have foreseen’. The success of such a defence would naturally depend on, among other things, evidence of efforts taken to identify and assess arising risks, and compliance with statues and protocols, whether self imposed, or externally statutorily imposed, to abate such identified risks.

The defendant’s arguments absorbed some of the rationale of tort law and this duty of care, insofar as I am asked to find, that the Crown has not established foreseeability of the causal connection, between their acts and inactions, and the fire, and of the resultant adverse emissions, on behalf of the defendant. And that I cannot, therefore, convict. I’m referred to the observations of the Honourable Justice

Gorewich, who, in reviewing the trial record and reasons for conviction of my sister Justice of the Peace Debartolo in the original trial, noted, in obiter, the failure of Her Worship to take into consideration the extent to which the fire was “foreseeable”. The defendants have asked me to adopt, as both a matter of law and of practicality, the direction annunciated by the Honourable Justice Gorewich in his capacity as appeal court on this issue. The defence asked me to find that the fire occurred within the charging period was unforeseeable by the defendants and for this reason the charge cannot be made out.

Specifically, I’m referred to a portion of the transcript of the original trial, of cross-examination of Fire Chief Senay, in which he was asked whether it was foreseeable that the fire occurring on the 15 th of September, 2004 could “re-ignite”, causing the fire and resultant emission of smoke into the environment on October the 12 th , 2004. I’m aware of no legal authority for the proposition that a re-trial court should be bound by the findings of an appeal court ordering a new trial.

Having no access to the evidence heard by my learned sister justice on the original trial, it would be impossible to understand the context within which certain of the appellate court’s findings and observations could be made. I take the comments of the Honourable Justice Gorewich as a suggestion to consider the submissions of the defence, (since no evidence was led), into consideration, as a request by the defence to consider that a defence of due diligence is inherently viable from the Crown-led evidence. I have, therefore, undertaken an assessment of the foreseeablity of the fire on October the 12 th , 2004.

I’ll refer to the original portion of the original trial transcript as put to Fire Chief Senay on cross-examination by the defendant in the present trial on the issue of foreseeablity of the fire on October the 12 th , 2004. The following is an excerpt from that proceeding. “Question”. And then the question was as follows, “Well was it foreseeable after the fire - fire crews left in September that the fire might re-ignite or might continue to live where it was?” And your answer was, “I’d say no.

If it had been foreseeable, we would have done something about it at the time.” “Do you remember giving that answer to the question? Answer: I do, sir. Question: And was that true at the time? Answer: Yes, sir.” And follows an exchange between the court and counsel and then picks up with a question. And then this question, “But they certainly have agreed that subject to the October fire, it may have stayed alive without anybody knowing?” And you said, “Answer: That’s correct. Do you remember answering that question that way? Answer: Yes, I’d think so, yes.” Question – and question, “Isn’t that true?”

And your answer was: “Yes, sir. Do you remember giving that answer to the question at the time? Answer: Mm-hmm. Question: Yes? Answer: Yes, sir. Question: And they – those answers were yes, sir. Okay, and finally, “Question: And including the site operators, isn’t that true?” Answer – your answer was: “That’s true, yes. Do you remember giving that answer to that question at the time? Answer: I’ll say yes. Yes. Question: Well, I have it here and – Answer: Sure. Q. Was it true then?” “A” – that’s “Answer: Mm-hmm. Question: And the – A. Yes, sir. Question: Those answers remain true now, isn’t that correct?

Answer: I’m going to say yes but I’m unsure of the context of the questions at the time but you have the transcripts and-“ And that finishes the excerpt from the transcript. Again, it’s impossible to assess the context within which the answers to the questions were given at the original trial. In the present trial there’s no evidence that the fire that occurred on the 12 th of October, 2004 was the same as that which broke out on the 15 th of September.

In this context, I have taken the comments of the fire chief to mean that, ‘If there had been a foreseeable risk that the fire would re-ignite, then we would have stayed. Since there was not, and we had the impression that it was fully extinguished, we left.’ It would seem that His Honour Gorewich was satisfied by the evidence before him that the fire, occurring on the 12 th of October, was the same fire as that on the 15 th of September, which had not been extinguished. Such was not the evidence before me.

In the event that I have drawn inferences on this point which I’m not entitled to, however, based on the evidence I heard, I will consider the alternative

interpretation that the two fires were one in the same fire, having become dormant, in the waste for a month.

At this stage my analysis merges with the consideration of subjective, versus objective foreseeability. The defence submits that the fire itself and its effect on the environment could not have been foreseen. Even if I accept the proposition that a re-ignition of the fires was not foreseen by Fire Chief Senay, or the firefighters on site, there is no evidence tendered by the defence, to suggest that the operators did not subjectively foresee the fire. I’m left to determine whether the fire was “objectively foreseeable”.

In Regina and Canada Brick Limited , [2005] O.J. no. 2978 , the court described the standard, and this is a quote, “...subjective foresight of the defendant respecting a hazard is a factor for consideration in a due diligence presentation but not to the exclusion of the overarching approach of an objective assessment of the reasonableness of the foresight of circumstances of harm or potential accident.” “Negligence...measures the conduct of the accused on the basis of an objective standard irrespective of the accused’s subjective mental state.

In other words, liability exists where a defendant knew or ought to have known of the dangerous work conditions.” In making an assessment of the reasonableness of the foreseeablity of fire at this site, and while being mindful of what has been termed by the courts as a possibility of “hindsight bias”, it’s not enough to find that ‘since the fire occurred that all actions by the defence prior to the fire date must have been inadequate’. To do so would in effect turn the offence into one of absolute liability.

I’m obliged instead to assess on an objective basis, the actions of the defendants in relation to the circumstances of their business, storing, and transferring waste materials. An offence of strict liability is made out once the Crown has succeeded in proving the actus reas of the offence beyond all reasonable doubt. It need not be established by the Crown that the act was intentional or consented to. In his work entitled “Environmental Law”, a publication of Carswell, 1984, pages 94, at paragraph 129, David Estrin summarized the decisions of various courts on the issue, including the decision in Regina and St.

Mary’s Cement and Regina and Aberdeen Paving Limited as follows: “An accused is not entitled to an acquittal based on section 33(8) merely because it did not willingly consent to a leakage, or it did not willingly open a valve or permit some similar event to occur. Most spills, leaks, or seepage are accidental and probably never intended.

But to avoid guilt the accused must couple lack of consent with a behaviour or consciousness, which in effect, shows that it was neither blind to the consequence of the possibility of the event nor to the consequent dangers of such an event.” It would fall to a defendant to satisfy a court, in defence, once the actus reas has been made out to the requisite standard, that everything reasonably possible had been done to avert the foreseeable event or that it was unforeseeable that the event could happen. “Wilfulness, intention or knowledge need not be established.” ( Sault Ste.

Marie supra, page 19, paragraph 3) The defence submits that even if the defendants were capable of acknowledging the potential risk, they could not have foreseen spontaneous combustion from within pile. The fire on September the 15 th , arising from spontaneous combustion, within the same massive pile of garbage must certainly have drawn the possibility of future similar episodes of fire to the attention of the defendants.

While it’s not been established to my satisfaction that the mechanical or chemical cause of the fire was made known to the defendants, I am satisfied that the defendants knew or ought to have known that the pile of garbage could catch fire. If not before September 15 th , 2004, then certainly after this event. The defendants should have foreseen, once it had been concretely demonstrated, that there existed within the pile of refuge in extant condition, the possibility of ignition and fire, that it could happen again.

Even if the fire was a remnant or re-ignition of the fire occurring of the 15 th of September, the same principles must be applied to that first fire, which eventually became a larger one. The question would be then, would a reasonable person have foreseen that a massive pile of combustible material, in excess of that

allowed by the authorities, pose a real risk of fire? I note the addendum to the Certificate of Approval, previously referred to, granted to the defendant, 310 Waste, which cites the purpose of the conditions within the Certificate of Approval regarding the limit of waste to be allowed on the site, as well as the manner of its storage. It reads as follows: “The reason(

s) for a condition 14, 15(b), 16, 17, 19, 20, 21, 22, 23 and 24 is to ensure that the site is operated in a manner which does not result in a nuisance or a hazard to the health and safety of the environment or people.” This notice was signed by the director of approvals under the Environmental Protection Act . The defendants knew,or ought to have known of the purposes of the Certificate of Approval and understood that noncompliance with the Certificate of Approval could subvert the purposes of this condition, namely that such noncompliance could result in a hazard to the environment.

The defence submits that it could not have foreseen the extent of the fire. While it would not amount to a defence in my view, it has been suggested that the defendants may have thought that any future fire could have been dispatched as expeditiously as that fire on September 15 th and therefore could not foresee the magnitude of the fire in October. I’m of the view that a reasonable person would instead have been alerted to the possibility that fire in a deeper or more inaccessible place would be more difficult to douse.

While evidence was tendered to show that the materials stored on site were combustible, it’s not clear to me that such characterization of the material as “combustible” was actually expressed to the defendants. But I am of the view that a reasonable person would understand that cardboard, wood, and construction waste, is combustible. The defendants, in the business of managing, storing and transferring such materials had an added responsibility to understand the nature of such materials and the inherent risks.

It should, therefore follow, that a reasonable person in such a position would understand that the larger the amount of such flammable material, the greater the potential size of any fire, given a source of ignition. The Vaughan Fire Prevention Department had attended at the site on numerous occasions to discuss fire prevention plans with the defendants. Frank Guyette, of the Vaughan Fire Department, performed a fire inspection of the site on June the 24 th . He advised Mr.

Sansone, the primary contact person, of the advisability of hiring a fire protection engineer and presented him with guidelines from the fire marshal for ‘fire prevention for recycling facilities’. He delivered an inspection checklist as a guideline tool to assist the defendants in creating a ‘fire safety plan’. On June the 24 th , he created and delivered a “fire safety inspection report” erroneously dated June the 29 th , 2004, which he delivered to Mr. Sansone and Mr. Hanna at the site. The document was created and signed by Inspector Guyette.

The report highlighted those areas of the site which did not satisfy fire code standards. The date set for compliance was August the 9 th , 2004. The defendants sought and obtained an extension, but by the date of the fire, the “order to comply” had not yet been complied with. By the compliance date of August the 9 th , the defendants had complied with some items but remained non-compliant with six others, these being the following: “(

a) A fire safety plan shall be prepared and implemented. Fire access routes shall be maintained so as to be immediately ready for use at all times by fire department vehicles.” Item number “9”, “Smoking shall be prohibited in wood chip areas.” Item number “10”, “The storage site shall be well drained and be levelled, solid ground or paved with asphalt, concrete or other hard surfaces.” Item number “11”,

“The ground surfaces between piles shall be kept free of combustible materials.” Item number 13, “Hose houses or cabinets shall be provided around the perimeter of chip piles at intervals not exceeding 120 metres.” It is clear that the gravamen of the offence at trial is not the failure of the defendants to comply with the order, but such a failure to comply is a factor for consideration in a determination of whether due diligence to prevent the risk of fire was employed. I will hear submissions as to whether such an non-compliance is an aggravating factor at sentencing.

Clearly the purpose of complying with the “Fire Code” is to minimalize the risk of fire and permit the expeditious access to fire by firefighting crews in the event of fire. The defendants had a legal obligation to comply with the code and they failed to do so. This is, of course, a factor in my consideration. Fire Chief Senay testified that the ability of firefighting equipment to access and extinguish the source of the fire was impeded by the lack of clear fire access routes. This is not disputed. The efforts were further impeded by the lack of water supply on site.

This resulted in the prolongation of the fire as it spread to surrounding combustible materials within the site. It cannot reasonably be said that the defendants could not have foreseen that the piles of garbage would constitute an impediment to firefighters in the event of fire, as these deficiencies were specifically pointed out to the defendants in the report. The defendants submit that they could not have foreseen that a fire would result in harmful emissions.

While, again, in my view it’s not necessary to establish that the defendants foresaw this effect, for reasons previously noted as well as others, I would find that the adverse nature of emissions should have been foreseeable. Fire, being foreseeable, smoke would be foreseeable. I have noted that the extent of the fire was or ought to have been foreseeable, as such, the defendants should have foreseen that a large fire would have yielded sufficient smoke to create adverse effects.

I find that the event of fire by spontaneous combustion from within the waste piles in its scope and magnitude, was foreseeable or should have been foreseeable to the defendants.

Given a lack of evidence of due diligence by the defendants in ameliorating these foreseeable risks, and the actus reas of the offence having been made out beyond a reasonable doubt, namely that the emission of contaminants, smoke, and odour into the natural environment, which in actuality impaired the quality of the natural environment surrounding the sites for normal use by its neighbouring citizens, and resulted in a loss of enjoyment and providing potential risk to the health of such citizens, I am entering a conviction. Would you like some time before sentencing? MR.

HERLIHY: Yeah, if we could set a date to come back? We have some evidence we would lead on sentencing, so.... THE COURT: Oh, I thought we had set the day aside for sentencing today. MR. HERLIHY: I don’t think we, at least in our minds, approached it that way. THE COURT: Oh, I see. That’s fine. How much time do you need? MR. HERLIHY: Last time – was it two days last time? MS. MEULEMAN: I think so, yeah. MR. HERLIHY: I think last time, you know, although there – there were more protracted proceedings throughout last time, I think the sentencing went on for two days but I think maybe one day would be enough?

I think Mr. Moldaver’s indicating he should – he thinks one day should be enough. THE COURT: All right. What date are you looking at?

MR. HERLIHY: We’re in the court’s hands he says, staring leftward. THE COURT: Yes, madam clerk has said, of course, that what we should do is bring the trial co-ordinator. [Reporter’s Note – At this time a date is canvassed. It is duly recorded but not transcribed.] THE COURT: All right. That’s fine. Adjourning this matter for sentencing to November the 25 th and thereafter to November the 28 th in courtroom T-4, 9:00 a.m.

Thank you and we’ll see you all then. ********** THIS IS TO CERTIFY THAT the foregoing is a true and accurate transcription from the digital recording in the Ontario Court of Justice, held at 465 Davis Drive, Newmarket, which is recording number: 270611-T2 which has been certified in Form 1 and was prepared to the best of my skill and ability. .................................... Helena Tsapoitis-Barbesin Court Reporter Transcript ordered.....................June 27, 2011 Transcript completed...................September 6, 2011 Transcript approved for release........November 16, 2011 As amended by Her Worship

THIS IS NOT A CERTIFIED COPY UNLESS ORIGINALLY SIGNED