R. v. Stelco Inc., 2011 ONCJ 471

Citation: R. v. Stelco Inc. , 2011 ONCJ 471 IN THE MATTER OF AN APPLICATION for a declaration on whether the correct or wrong defendant has been charged under the Environmental Protection Act, R.S.O. 1990, c. E.19 Between Her Majesty The Queen In Right Of Ontario As Represented By The Ministry Of The Environment Moving Party/Prosecutor and Stelco Inc., now operating as U.S. Steel Canada Inc. Responding Party/Defendant and Hamilton Steel GP Inc. Responding Party and Hamilton Coke GP Inc. Respondent Party Ontario Court of Justice Hamilton, Ontario Quon J.P.

Reasons for Ruling on Application Charges : (1) failed to control the quality of an effluent stream contrary to s. 17 of Ontario Regulation 214/95 , made under the Environmental Protection Act, R.S.O. 1990, c. E.19 , thereby committing an offence under s. 186(1) of the Act. (2) having failed to control the quality of an effluent stream, did failed to orally and in writing report an exceedence to the Director, as soon as reasonably possible contrary to s. 39(3) of Ontario Regulation 214/95 , made under the Environmental Protection Act, R.S.O. 1990, c.

E.19 , thereby committing an offence under s. 186(1) of the Act.

(3) failed to comply with condition of amended certificate of approval contrary to s. 186(3) of the Environmental ProtectionAct, R.S.O. 1990, c. E.19, thereby committing an offence under s. 186(1) of the Act. Motion Argued: January 13 and March 8, 2011. Ruling Released: August 26, 2011. Counsel: J. Herlihy, counsel for the Ministry of the Environment, the moving party. D. R. Thomson and C. A. Wayland (McCarthy, Tetrault LLP), counsel for responding party, Stelco Inc., now operating as U.S.SteelCanada Inc. No counsel appeared for responding parties, Hamilton Steel GP Inc. or Hamilton Coke GP Inc.

Cases Considered or Referred To: 724597 Ontario Inc. (c.o.b. Appletex) v. Ontario (Minister of the Environment and Energy), [1994] O.E.A.B. No. 17 (QL) (On. Env.App. Bd.), per members, Swaigen, Jackson and Siller. Aluminum Co. of Canada v. Toronto (City), (SCC), [1944] S.C.R. 267 (S.C.C.). Army & Navy Department Store Ltd. v. Minister of National Revenue, (SCC), [1953] 2 S.C.R. 496 (S.C.C.). Beazer East Inc. v. British Columbia (Environmental Appeal Board), 2000 BCSC 1698 , [2000] B.C.J. No. 2358 (QL)(B.C.S.C.). Border Enterprises Ltd. v. Beazer East, Inc., 2003 BCSC 49 , [2003] B.C.J. No. 36 (QL) (B.C.S.C.).

Boucher v. The Queen, (SCC), [1955] S.C.R.16 (S.C.C.). Bristol Metal Industries of Canada Ltd. v. Ontario (Director, MOE], [1991] O.E.A.B. No. 64 (QL) (On. Env. App. Bd.), per members,Levy, Dickman, and Robb. Canada Life Assurance Co. v. C.I.B.C. (1974), (ON CA), 3 O.R. (2d) 70 (O.C.A.), per Gale, C.J.O., Evansand Dubin, J.J.A. Elevated Construction Ltd. v. Nixon et al., (ON SC), [1970] 1 O.R. 650 (Ont. H.C.J), per Osler J. Goudie v. Ottawa (City), 2003 SCC 14 , [2003] 1 S.C.R. 141, [2003] S.C.J. No. 12 (QL) (S.C.C.). Grant v. Ontario (Min. of Env.), [2009] O.E.R.T.D. No. 50 (QL) (Ont. Env. Rev.

Trib.) per Muldoon, Vice-Chair.

Gregorio v. Intrans-Corp. (1994), (ON CA), 18 O.R. (3d) 527 (O.C.A.), per Goodman, Doherty and Laskin JJ.A. Haskett v. Equifax Canada Inc. (2003), (ON CA), 224 D.L.R. (4th) 419 (O.C.A.), per Feldman, MacPherson andArmstrong JJ.A. Haughton Graphic Ltd. v. Zivot, [1986] O.J. No. 288 (QL), 33 B.L.R. 125 (Ont. H.C.J), per Eberle J. Kosmopoulos v. Constitution Insurance Co., (SCC), [1987] 1 S.C.R. 2 (S.C.C.). McKenna v. Gammon Gold Inc. (2009), (ON SC), 94 O.R. (3d) 735 (Ont. S.C.J.), per Lax J. Miazga v. Kvello Estate, 2009 SCC 51 , [2009] 3 S.C.R. 339, [2009] S.C.J. No. 51 (QL) (S.C.C.). Montague v.

Ontario (Min. of Env.), (ON SCDC), [2005] O.J. No. 868 (QL) (Ont. S.C.J. (Div. Ct.)), per Mallow,Lack and Heeney JJ. Ontario (Min. of Labour) v. Ivaco Inc. (2001), (ON SC), 53 O.R. (3d) 675 (Ont. S.C.J.), per Heeney J. Ontario (Min. of Labour) v. Thomas Fuller Construction Co., [2008] 0.J. No. 4004 (QL) (O.C.J.), per Wake J. P & L Tire Recycling Inc. v. Director, Ministry of the Environment, [1992] O.E.A.B. No. 21 (QL) (On. Env. App. Bd.), per members,Swaigen, Henry, Hyer. R. v. Antunes, [2004] O.J. No. 4898 (QL), 2004 ONCJ 352 (O.C.J.), per Halikowski J. R. v. Arnold, [2002] O.J.

No. 3835 (QL) (O.C.J.), per Brophy J. R. v. Bauer Inc., [1999] O.J. No. 1198 (QL) (O.C.A.), per Finlayson, Austin and Feldman JJ.A. R. v. Beare; R. v. Higgins, (SCC), [1987] S.C.J. No. 92 (QL), [1988] 2 S.C.R. 387 (S.C.C.). R. v. Beaulieu (2001), 2001 NWTSC 46 , 40 C.E.L.R. (N.S.) 212 (N.W.T.S.C.). R. v. Bjelland, 2009 SCC 38 , [2009] 2 S.C.R. 651, [2009] S.C.J. No. 38 (QL) (S.C.C.). R. v. Bolender, 2010 ONCJ 622 , [2010] O.J. No. 5711 (QL) (O.C.J.), De Filippis J. R. v. Canron Inc., [1995] O.J. No. 4311 (QL) (Ont. Ct. of Jus. (Prov. Div.)), per Leclerc J.P.

R. v. Continental Cablevision Inc. (1974), (ON SC), 5 OR. (2d) 523 (Ont. Prov. Ct.), per Greco J. R. v. Corbeil & Associates Ltd. (1984), 27 M.V.R. 227 (Ont. Prov. Ct.), per Langdon J. R. v. Coté, (1977), (SCC), 33 C.C.C. (2d) 353 (S.C.C.). R. v. Dunlop, (SCC), [1979] 2 S.C.R. 881 (S.C.C.). R. v. Fontaine (2004), 2004 SCC 27 , 18 C.R. (6th) 203 (S.C.C.). R. v. Fell (1981), (ON CA), 34 O.R. (2d) 665 (O.C.A.), per Arnup, Martin and Thorson JJ.A. R. v. Flying Saucer Drive-In Ltd., [1992] O.J. No. 3912 (QL) (Ont. Ct. of Jus. (Prov. Div.)), aff‘d [1993] O.J. No. 4390 (QL) (Ont.

Prov.Ct.) at paras. 38-41, rev'd on other grounds (ON CA), [1995] O.J. No. 2275 (QL) (O.C.A.), per Galligan, Austin andLaskin JJ.A. R. v. Gill (2009), 203 C.R.R. (2d) 138 (Alta. Prov. Ct.). R. v. Haussecker, [1998] A.J. No. 1101 (QL) (Alta. Prov. Ct.). R. v. Helsdon (2007), 2007 ONCA 54 , 216 C.C.C. (3d) 1 (O.C.A.), per O'Connor A.C.J.O., Rosenberg and Cronk JJ.A. R. v. Hynes, 2001 SCC 82 , [2001] 3 S.C.R. 623, [2001] S.C.J. No. 80 (QL) (S.C.C.). R. v. Ingram, [2005] A.J. No. 448 (QL) (A.Q.B.). R. v. Kapoor (1989), (ON SC), 52 C.C.C. (3d) 41 (Ont. H.C.J.), per Watt J. R. v. Kimberly-Clark Canada Inc., [1995] O.J.

No. 2940 (QL) (Ont. Prov. Div.), per Bice J. R. v. Lopes (1988), 3 C.E.L.R. (N.S.) 78 (Ont. Dist. Ct.), per German J. R. v. Lopes (1996), 18 C.E.L.R. (N.S.) 299 (Ont. Ct. of Jus. (Prov. Div.)), per Lane J. R. v. Lorenzo, [2002] O. J. No. 4850 (QL), per Quon J.P. R. v. MBB Helicopter Canada Ltd. (2006), (ON SC), 212 C.C.C. (3d) 401 (Ont. S.C.J.), Ratushny J. R. v. March (1986), 60 Nfld. & P.E.I.R. 256 (Nfld. S.C.T.D.).

R. v. Morgan (1993), (ON CA), 80 C.C.C. (3d) 16 (O.C.A.), per Krever, Labrosse and Doherty JJ.A. R. v. NMC Canada Inc., (ON CA), [1995] O.J. No. 2545 (QL), 85 O.A.C. 232 (O.C.A.), per Finlayson, Abella andLaskin JJ.A. R. v. Osborne, (NB CA), [1975] N.B.J. No. 84 (QL), 11 N.B.R.(2d) 48 (N.B.C.A.). R. v. Paul Magder Furs Ltd., (ON CA), [1989] O.J. No. 531 (QL) (O.C.A.), per Lacourciere, Houlden and MordenJJ.A. R. v. Pete's Frootique, [1999] N.S.J. No. 357 (QL) (N.S. Prov. Ct.). R. v. Peavoy (1974), (ON SC), 15 C.C.C. (2d) 97 (Ont. H.C.J.), per Henry J. R. v.

Portillo (2003), (ON CA), 176 C.C.C. (3d) 467 (O.C.A.), per Carthy, Doherty and Rosenberg JJ.A. R. v. Power, (SCC), [1994] 1 S.C.R. 601, [1994] S.C.J. No. 29 (QL) (S.C.C.). R. v. Regan, 2002 SCC 12 , [2002] 1 S.C.R. 297, [2002] S.C.J. No. 14 (QL) (S.C.C.). R. v. Roach (2004), (ON CA), 192 C.C.C. (3d) 557 (O.C.A.), per Weiler, Borins and Simmons JJ.A. R. v. Rochon (2003), (ON CA), 173 C.C.C. (3d) 321 (O.C.A.), per MacPherson, Simmons and Gillese JJ.A. R. v. Sault Ste. Marie, (SCC), [1978] 2 S.C.R. 1299, 40 C.C.C. (2d) 353 (S.C.C.). R. v. Michael D. WaIters, unreported (Sept. 20, 1994) (Ont. Prov.

Div.), per Megginson, J. R. v. F. W. Woolworth Co. (1974), (ON CA), 18 C.C.C. (2d) 23 (O.C.A.), per Kelly, Dubin and Martin, JJ.A. Salomon v. Salomon, [1897] A.C. 22 (H.L.). Smith, Stone & Knight Ltd. v. Birmingham Corp., [1939] 4 All. E. R. 116 (K.B.). Stelco Inc. (Re), [2006] O.J. No. 276 (QL) (Ont. S.C.J.)), per Farley J. Stelco Inc. (Re), [2006] O.J. No. 593 (QL) (Ont. S.C.J.), per Farley J.

Stelco Inc. (Re), [2007] O.J. No. 4234 (QL) (Ont. S.C.J.), per Pepall J. Thermoset Thermoplastic Custom Moulder Ltd. v. Ontario (A.G.), [1992] O.J. No. 2455 (QL) (Ont. Ct. Jus. (Gen. Div.)), per Caswell J. Toronto Board of Education v. Brunei Construction 2000 Ltd., [1997] O.J. No. 3783 (QL) (Ont. Ct. Jus. (Gen. Div.)), per Kitely J. United Canadian Malt Ltd. v. Outboard Marine Corp. of Canada (2000), (ON SC), 48 O.R. (3d) 352 (Ont. S.C.J.),per Nordheimer J. Transamerica Life Ins. Co. v. Canada Life Assurance Co. (1996), (ON SC), 28 O.R. (3d) 423 (Ont. Ct. Jus. (Gen.Div.)), per Sharpe J.; aff d [1997] O.J.

No. 3754 (QL) (O.C.A.), per Robins, McKinlay and Carthy JJ.A. Witco v. The Corporation of Oakville, (SCC), [1975] 1 S.C.R. 273 (S.C.C.). Statutes, Regulations and Rules Cited:

Canada Business Corporations Act, R.S.C. 1985, c. C-44, ss. 184, 186(e). Companies' Creditors Arrangement Act, R.S.C. 1985, c. C-36. Criminal Code, R.S.C. 1985, c. C-46, s. 507.1, 548. Environmental Protection Act, R.S.O. 1990, c. E.19, ss. 1(1), 186(1), 186(3). Limited Partnerships Act, R.S.O. 1990, c. L.16, s. 13(1). Provincial Offences Act, R.S.O. 1990, c. P.33, ss. 23(1), 24(1), 34, 36, 36(2), 45.1, 77. Ontario Regulation 214/95 (Effluent Monitoring And Effluent Limits — Iron And Steel Manufacturing Sector), ss. 1(1), 17, 39(3). Reference material considered: Archibald, T., Jull, K., and Roach, K.

Regulatory And Corporate Liability: From Due Diligence To Risk Management (Aurora, Ontario:Canada Law Book Inc., 2007). Benidickson, J. Environmental Law, Third Edition (Toronto, Canada: Irwin Law Inc, 2009). Bryant, A.W., Lederman, S.N. and Fuerst, M.K. Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 3rd ed. (Markham,Ontario: LexisNexis Canada Inc., 2009).

Gall, G. L. The Canadian Legal System, Third Edition (Toronto, Canada: Carswell – A Division of Thomson Canada Limited, 1990). Leonetti, C. When the emperor has no clothes: A proposal for defensive

summary judgment in criminal cases, 84 S. Calif. Law Rev. 661 (Spring). Ontario Ministry of the Attorney General, Criminal Law Division. Crown Policy Manual , March 21, 2005, online: Ontario Ministry of the Attorney General website < http://www.attorneygeneral.jus.gov.on.ca/english/crim/cpm/2005/ChargeScreening.pdf >. Paciocco, D.M. and Stuesser, L. The Law of Evidence, 5th ed. (Toronto, Ontario: Irwin Law Inc., 2008). Salhany, R.E. Canadian Criminal Procedure , 4ed. (Aurora, Ontario: Canada Law Book Inc., 1984), p. 165. Sossin, L. Civil Litigation ( Toronto, Canada: Irwin Law Inc., 2010), p. 210. 1.

INTRODUCTION [ 1 ] If, as in the present case, a person or entity has been charged with a quasi-criminal or regulatory offence, but adamantly believes that they have been charged erroneously for committing that offence, for the simple reason that a different person or corporation should have been charged instead of them, and the prosecutor will not stay or terminate the proceedings, or withdraw the charges, then what legal remedy, if any, is available to that person or entity, short of waiting for the prosecution to conduct a long and expensive trial and having to wait for the close of the prosecution’s evidence or case at trial before being able to make a mid-trial motion for nonsuit? [ 2 ] This issue has arisen in the context of a prosecution by Ontario’s Ministry of the Environment (“M.O.E.”) of Stelco Inc., which is now operating as U.S.

Steel Canada Inc. (“Stelco/U.S. Steel Canada”), under the Environmental Protection Act , R.S.O. 1990, c. E.19 (“EPA”), in which the M.O.E. alleges in two separate informations that Stelco/U.S. Steel Canada has committed three regulatory offences under that Act. In one information sworn on July 18, 2008, the M.O.E. alleges that Stelco/U.S.

Steel Canada on February 20, 2007, in the City of Hamilton, committed two offences by first failing to control the quality of an effluent stream being discharged and secondly for failing to notify the Director orally and in writing, as soon as reasonably possible, about the effluent stream that had been discharged having exceeded the statutory limit under the Municipal/Industrial Strategy for Abatement Regulation, Ont. Reg. 214/95 (the “MISA charges”). In the second information sworn on August 28, 2008, it charges that Stelco/U.S.

Steel Canada had committed an offence during the period from February 22 to March 2 in 2007, for not complying with the conditions in an amended Certificate of Approval by failing to ensure toxic emissions were less than a specific allowable amount (the “Certificate of Approval charge”). The MISA Regulation ( Ont.

Reg. 214/95) requires the effluent from iron and steel mills to be sampled and tested for lethality limits and chronic toxicity, while Certificates of Approval are required for industrial sewage systems that release or discharge, store, or transport contaminants to ground and surface water. [ 3 ] At the first judicial pre-trial conference held on April 8, 2009, Stelco/U.S.

Steel Canada informed the M.O.E. that the wrong defendant was named on the two informations and further indicated that the correct defendant should have been an entity named Hamilton Steel GP Inc., which at the time of the alleged offences was a wholly-owned subsidiary of Stelco/U.S. Steel Canada. However, even though Stelco/U.S. Steel Canada had provided documentary evidence to the M.O.E. to substantiate their claim about the wrong company being charged and named on the two informations, and despite four judicial pre-trial conferences being conducted, the M.O.E. and Stelco/U.S.

Steel Canada were still unable to resolve that contentious issue of whether Stelco/U.S. Steel Canada was indeed the correct or wrong defendant. Furthermore, the pre-trial court would not permit the scheduling of trial dates for the three charges until that issue had been resolved between them, and it was during the discussions at one of these judicial pre-trial conferences that the pre-trial court intimated that if this issue could not be resolved between them, then it should be dealt with in a preliminary motion.

Ergo, the impasse regarding the issue of whether the wrong defendant had been charged, along with not being permitted to set a trial date until that preliminary issue had been resolved, is what necessitated this application being brought by the M.O.E. in order to move this matter forward and end the seemingly unbreakable logjam. [ 4 ] Moreover, although it is the M.O.E. that has actually initiated or brought this unusual pre-trial application, the remedy or relief sought by both the M.O.E. and Stelco/U.S.

Steel Canada is in essence the same, in that they are both are asking this court to decide at the pre-trial stage whether the correct or wrong defendant has been charged and to also declare whether Stelco/U.S. Steel Canada is or is not the proper defendant.

[ 5 ] Briefly, the main thrust of Stelco/U.S. Steel Canada’s wrong defendant argument is that in February and March 2007, when the offences were allegedly committed, the business and the premises in question were not legally owned by Stelco Inc., but were owned by a different corporate entity named Hamilton Steel GP Inc., and as such, Stelco Inc., now operating as U.S. Steel Canada Inc., had been named incorrectly in the two informations as the defendant.

However, the business and premises where the alleged offences occurred had been once owned by Stelco Inc., but had been legally transferred on March 31, 2006, to Hamilton Steel GP Inc., as part of a Plan of Arrangement that had been approved by Justice Farley of the Superior Court of Justice on February 14, 2006 (see Stelco Inc. (Re) , [2006] O.J. No. 593 (QL) ) , pursuant to court-supervised creditor protection proceedings under the Companies' Creditors Arrangement Act , R.S.C. 1985, c. C-36 (“CCAA”) and pursuant to the

Canada Business Corporations Act , R.S.C. 1985, c. C-44 (“CBCA”). As such, Stelco/U.S. Steel Canada contends that clearly the wrong defendant had been charged as Stelco/U.S. Steel Canada was not the legal owner or in charge of the plant or property in question at the time the alleged offences were committed. Moreover, Stelco/U.S.

Steel Canada contends that this unusual request to determine and declare whether the wrong defendant has been named in the two informations can be properly dealt with in this pre-trial motion because of the exceptional and unique factual circumstances and evidence that clearly shows the wrong defendant has been charged. [ 6 ] In reply to Stelco/U.S.

Steel Canada’s contention that the wrong defendant has been charged, the M.O.E. submits that, despite the corporate restructuring or transfer in the legal ownership of the plant or property involved to other corporate entities and the service agreements between Stelco/U.S.Steel Canada and its subsidiary companies, Stelco/U.S.

Steel Canada is nevertheless appropriately named as the defendant on both informations, as it was effectively or still factually responsible for the wrongful acts or omissions under the EPA , since it still had the charge, management, or control of the environmental operations and the source of the contaminant or the plant in question during the period of the alleged offences. In addition, the M.O.E. contends that liability also inures to Stelco/U.S. Steel Canada, for being a party to the offences.

As for proof of who still had the defacto charge, management, or control of the premises where the alleged offences occurred, the M.O.E. contends there is sufficient evidence for these charges to be proven against Stelco/U.S. Steel Canada, and as such, this matter should properly proceed to trial for a final determination of the facts at issue and requests a declaration that Stelco/U.S.

Steel Canada is properly named as the defendant on the two informations and that the matter be scheduled for trial. [ 7 ] Accordingly, if it is not inappropriate in law or policy at this preliminary stage to decide whether the wrong defendant has been charged, despite the lack of a common law or statutory mechanism to provide for the relief being sought by both parties in this dispute, and it is then determined that the wrong defendant has been charged, then Stelco/U.S. Steel Canada seeks to have the two informations declared nullities or to have its name removed from the informations.

And, in the event that this court does determine that the wrong defendant has been charged, then the M.O.E. applies, in the alternative, to have the two informations amended pursuant to s. 34 of the Provincial Offences Act , R.S.O. 1990, c. P.33, to add the names of two other corporations as defendants, namely, Hamilton Steel GP Inc. and Hamilton Coke GP Inc., as the entities who appear to be the legal owners of the assets that are the subject of these charges during the period of the alleged offences.

Furthermore, in the M.O.E.’s request for an amendment of the two informations to add these two corporations as defendants in the event that the wrong defendant has been charged, Stelco/U.S. Steel Canada did not wish to make any submissions in that regard, although it did comment or suggest that service of the Notice of Application on an employee of Stelco/U.S.

Steel Canada on December 10, 2010, seeking to add the two other corporate entities as defendants by way of amendment to the two informations, had not been properly served on Hamilton Steel GP Inc. and Hamilton Coke GP Inc., as both of these corpora tions were dissolved on September 30, 2008, and the employee had mistakenly accepted service of the Notice of Application documents. [ 8 ] Lastly, this application that seeks a determination and a declaration on whether the correct or wrong defendant has been charged was heard and argued on January 13 and April 8, 2011.

After arguments were completed, the matter was then adjourned until September 2, 2011, for my ruling on the application. However, it became necessary to release this ruling prior to that date and will be released on August 26, 2011 These, therefore, are the written reasons of that ruling: 2. THE CHARGES [ 9 ] The first information was sworn on July 18, 2008, and charges Stelco/U.S. Steel Canada with committing the following two offences under the EPA (the “MISA charges”) at the Hilton Works steel production facility in Hamilton, Ontario : Stelco Inc. now operating as U.S.

Steel Canada Inc. on or about 20th day of February, 2007, at 386 Wilcox St., City of Hamilton, and elsewhere in the Province of Ontario, did commit the offence of failing to control the quality of an effluent stream to ensure that each Rainbow Trout acute lethality test performed on a grab sample collected at MISA sampling point Stelco Hilton Works 0200 Northwest outfall, resulted in mortality for no more than 50 per cent of the test organisms in 100 percent effluent, contrary to Sec. 17 of Regulation 214/95, made under the Environmental Protection Act, R.S.O. 1990, c.

E.19 , as amended, thereby committing an offence under section 186(1) of the said Act. AND FURTHER THAT, Stelco Inc. now operating as U.S. Steel Canada Inc. on or about February 20, 2007 at 386 Wilcox St., Pier 16 to

18 in the Port of Hamilton, City of Hamilton and elsewhere in the Province of Ontario having failed to control the quality of an effluent stream to ensure that each Rainbow Trout lethality performed on a grab sample collected at MISA sampling point Stelco Hilton Works 0200 Northwest outfall, resulted in mortality for no more than 50 per cent of the test organisms in 100 per cent effluent, did commit the offence of failing to orally and in writing report the exceedance to the Director, as soon as reasonably possible contrary to Sec. 39(3) of Regulation 214/95, made under the Environmental Protection Act , R.S.O. 1900. c. 19. as amended, thereby committing an offence under Sec. 186(1) of the said Act [ 10 ] The second information was sworn on August 28, 2008, and charges Stelco/U.S.

Steel Canada with committing the following offence under the EPA (the “Certificate of Approval charge”) at the Sinter Plant located at the Hilton Works steel production facility in Hamilton, Ontario : Stelco Inc. now operating as U.S.

Steel Canada Inc. during the period beginning on or about 22nd day of February, 2007 and ending on or about 2nd day of March, 2007, at 386 Wilcox Street, City of Hamilton, and elsewhere in the Province of Ontario, did commit the offence failing to comply with condition 2(2) of amended certificate of approval Air number 4449-57KRDV, issued by the Director on July 19, 2002, by failing to operate the facility in such a manner as to ensure that the international toxic equivalent emission of Dioxins and Furans from the existing Sinter Plant stack were less than 500 picograms per dry cubic metre normalized to reference conditions, contrary to Sec. 186(3) of the Environmental Protection Act, R.S.O. 1990, c.

E.19 , as amended, thereby committing an offence under section 186(1) of the said Act. 3. BACKGROUND (

A) THE NAMED DEFENDANT: STELCO INC., NOW OPERATING AS U.S. STEEL CANADA INC. [ 11 ] Before 1344973 Alberta ULC (an unlimited liability corporation incorporated in Alberta ), which is a wholly-owned subsidiary of t he United States Steel Corporation, had acquired Stelco Inc. in a share purchase completed on September 19, 2007 , and renamed U.S. Steel Canada Inc. on October 31, 2007, Stelco Inc. was a federally incorporated Canadian corporation in the steel production business, which among other holdings, had plants and operations in Hamilton Ontario. This Canadian company had been incorporated in 1910 as The Steel Company of Canada, Ltd., but had changed its name to Stelco Inc. in 1980. (

B) THE DEMERGER OF STELCO INC. INTO NINE WHOLLY-OWNED LIMITED PARTNERSHIPS [ 12 ] Because Stelco Inc. and four of its wholly-owned subsidiaries had been in financial difficulties, it filed for protection from its creditors on January 29, 2004, and obtained such protection under the Companies' Creditors Arrangement Act , R.S.C. 1985, c. C-36 (“CCCA”). [ 13 ] While under court protection, Stelco Inc. attracted new equity investors, including the Province of Ontario.

The s takeholders of Stelco Inc. were then engaged in protracted negotiations after Stelco Inc. had entered CCAA protection, and on December 9, 2005, a proposed Plan of Arrangement or Compromise, known as the Third Amended and Restated Plan of Arrangement, had been devised and agreed upon. [ 14 ] This proposed Plan of Arrangement or Compromise under the CCCA was devised with the financing providers and plan sponsors, Tricap Management Limited, Sunrise Partners LP, and Appaloosa Management LP, and approved of by the stakeholders on December 9, 2005, to break up Stelco Inc. or demerge it into smaller companies in order to make Stelco Inc.’s business or assets more attractive or marketable for sale as smaller individual businesses than as a single company.

This Plan proposed that Stelco Inc. would be reorganized and operated as nine separate businesses. [ 15 ] In particular, the Plan of Arrangement or Compromise involved creating and forming nine limited partnerships, with a general partner having 0.01% stake or interest in the units in the limited partnership and the limited partner having the remaining 99.99% stake or interest in the units in each of the limited partnerships.

Stelco Inc. would also be the sole owner of the nine corporations created to be the respective nine general partners in the limited partnerships, as well as holding the remaining 99.99% interest in the limited partnership units in each of the nine limited partnerships. The nine corporations that are the general partners in the respective nine limited partnerships were incorporated on February 3, 2006.

[ 16 ] Furthermore, the nine limited partnerships that were formed and registered under the governing legislation and the corresponding general partner for each of the limited partnerships were the following:

(1) Hamilton Coke Limited Partnership - Hamilton Coke GP Inc.

(2) Lake Erie Coke Limited Partnership - Lake Erie Coke GP Inc.

(3) HMLTN Energy Limited Partnership - HMLTN Energy GP Inc.

(4) Lake Erie Energy Limited Partnership - Lake Erie Energy GP Inc.

(5) Hamilton Land Limited Partnership - Hamilton Land GP Inc.

(6) Lake Erie Land Limited Partnership - Lake Erie Land GP Inc.

(7) Hamilton Steel Limited Partnership - Hamilton Steel GP Inc.

(8) Lake Erie Steel Limited Partnership - Lake Erie Steel GP Inc.

(9) HLE Mining Limited Partnership - HLE Mining GP Inc. [ 17 ] By law, the general partner in each of the limited partnerships is the legal owner of the assets of each of the nine limited partnerships. In addition, Stelco’s assets, permits, certificates of approval, contracts (as much as possible), management and unionized employees were transferred from Stelco Inc. to the nine limited partnerships.

Furthermore, the Plan of Arrangement also established that each limited partnership would have its own Board of Directors and management, its own logos, its own letterheads, its own telephone numbers, its own websites, and its own plant signs reflecting its new names. [ 18 ] Although the Plan of Arrangement entailed that each of the nine limited partnerships would have its own board of directors, management, and employees, it appears that these positions in the new entities were occupied by people who had been or still were part of Stelco Inc.

In addition, Stelco Inc. and the nine limited partnerships entered into service agreements for Stelco Inc. to provide consulting services to the limited partnerships, as the Plan provided that either Stelco Inc. or some employees from Stelco Inc. would provide these consulting services to these nine limited partnerships under service agreements. [ 19 ] Therefore, t he corporate reorganization of Stelco's business, which had been within a single corporate entity, was completed when its business and assets were legally transferred to these wholly-owned nine limited partnerships.

Moreover, under the Plan of Arrangement the “Hamilton Steel” unit of Stelco Inc. would be carried on by the Hamilton Steel Limited Partnership. The premises or plant where the three alleged offences occurred would have been part of the business and assets transferred to Hamilton Steel GP Inc., the general partner in the Hamilton Steel Limited Partnership. [ 20 ] Finally, for Stelco Inc. to exit the creditor protection proceedings, both the Plan of Arrangement or Compromise under the CCCA

and the reorganization of Stelco Inc. under s. 192 of the CBCA required court approval. On January 20, 2006, the Plan of Arrangement in regards to the CCCA was approved and sanctioned by Farley J. of the Superior Court of Justice ( Stelco Inc. (Re) , [2006] O.J. No. 276 (S.C.J.) ) , which would allow Stelco Inc. to emerge from this restructuring with its debt reorganized. In addition, before both the Plan of Arrangement or Compromise under the CCCA and the reorganization of Stelco Inc. under s. 192 of the CBCA were approved by Justice Farley on February 14, 2006 ( Stelco Inc. (Re) , [2006] O.J. No. 593 (QL) (Ont.

S.C.J.) ) , Stelco Inc.’s creditors, debt holders and stakeholders, which included the Ontario Government through the Ministry of Financial Services, unions, and the finance provider were represented at numerous court proceedings presided over by the Superior Court of Justice.

The transfer of Stelco Inc.’s business and assets to the nine limited partnerships were effectively transferred on March 31, 2006. [ 21 ] Ergo, the demerger of Stelco Inc. into the nine limited partnerships and the transfer of the business and assets from Stelco Inc. to the general partner named Hamilton Steel GP Inc. related to the three offences allegedly committed in February and March 2007, were legally transferred on March 31, 2006. On that date, the nine limited partnerships effectively became subsidiaries of Stelco Inc.

As well, the transfer of the legal ownership from Stelco Inc. to one of its wholly-owned subsidiaries of the business and plants related to the three alleged offences had occurred before the three offences had allegedly occurred . Hence, the three offences were allegedly committed after Justice Farley had approved the Plan of Arrangement and after Stelco Inc.’s business and plants were legally transferred to the nine limited partnerships on March 31, 2006. (

C) ACQUISITION OF STELCO INC. THROUGH A SHARE PURCHASE BY 1344973 ALBERTA ULC, THE WHOLLY- OWNED SUBSIDIARY OF THE UNITED STATES STEEL CORPORATION [ 22 ] The plan to sell the Stelco Inc. business in whole or in smaller parts came into fruition when the United States Steel Corporation through its wholly-owned subsidiary, 1344973 Alberta ULC, agreed to acquire all the business units of Stelco Inc. through a share purchase of Stelco Inc.

The acquisition of Stelco Inc. was completed on September 19, 2007, and had occurred before the two informations in question were sworn on July 18, 2008, and August 28, 2008, respectively. [ 23 ] Hence, a Second Plan of Arrangement under the CBCA was then devised so that 1344973 Alberta ULC, an unlimited liability corporation incorporated in Alberta and wholly-owned by the United States Steel Corporation, could purchase the outstanding shares of Stelco Inc. This Second Plan of Arrangement was agreed upon by the United States Steel Corporation, 1344973 Alberta ULC, and Stelco Inc. on August 26, 2007.

Furthermore, 1344973 Alberta ULC’s acquisition of Stelco Inc. was completed on September 19, 2007. However, this S econd Plan of Arrangement also required court approval and was obtained from Justice Pepall on October 30, 2007. It then came into effect on October 31, 2007 (see Stelco Inc. (Re) , [2007] O.J. No. 4234 (QL) (Ont. S.C.J.) ) . [ 24 ] After the acquisition of Stelco Inc. was completed, Stelco Inc. was renamed U.S.

Steel Canada Inc. by Articles of Amendment filed on October 31, 2007. [ 25 ] Subsequently, the Hamilton Steel Limited Partnership was dissolved on December 14, 2007, while Hamilton Steel GP Inc., the general partner in the Hamilton Steel Limited Partnership, was dissolved on September 30, 2008, after a month and two days after the information for the Certificate of Approval charge had been sworn and about two months and 12 days after the MISA charges information had been sworn. (

D) HISTORY OF THE REGULATORY PROCEEDINGS [ 26 ] The M.O.E. alleges that Stelco/U.S. Steel Canada committed the two MISA charges on February 20, 2007, and the Certificate of Approval charge between February 20, 2007 and March 2, 2007. All three charges were alleged to have been committed in the City of Hamilton. [ 27 ] The information for the MISA charges was sworn on July 18, 2008, and the information for the Certificate of Approval charge was sworn on August 28, 2008. [ 28 ] Stelco/U.S.

Steel Canada made its first appearance in court to answer to the MISA charges on August 5, 2008, and then made a first appearance to answer to the Certificate of Approval charge on September 18, 2008 . Next, there was an appearance on October 22, 2008, for the MISA charges and an appearance on November 20, 2008, for the Certificate of Approval charge. The three charges were then set together for a judicial pre-trial conference to be conducted on January 28, 2009, but the pre-trial did not commence on that date.

Subsequently, there were three judicial pre-trials for the three charges set and conducted on April 8, 2009; August 19, 2009; and

December 16, 2009. The pre-trial court that conducted these judicial pre-trial conferences would not allow these matters to be set down for a trial until the issue about the correct or wrong defendant being charged had been resolved between the M.O.E. and Stelco/U.S. Steel Canada . Three more appearances then followed on January 4, 2010; April 6, 2010; and May 27, 2010, without the matter being set down for trial or the issue about the wrong defendant being charged resolved by the parties in question.

A fourth judicial pre-trial conference was then conducted on September 8, 2010, when the date for this preliminary motion was scheduled and set to be heard on January 11, 2011. [ 29 ] Although these three charges were laid in July and August of 2008, the M.O.E. submits that counsel for Stelco/U.S. Steel Canada had waited until the first judicial pre-trial conference held on April 8, 2009, to raise the issue of whether Stelco /U.S. Steel Canada had been correctly named as the defendant on the two informations. [ 30 ] The M.O.E. then indicated that at a subsequent pre-trial, counsel for Stelco /U.S.

Steel Canada specified that he would provide the M.O.E. with a document in support of the claim that Stelco /U.S. Steel Canada was not the correct defendant’s name. However, the M.O.E. said that they had received nothing from Stelco /U.S. Steel Canada by the date of the third pre-trial on December 16, 2009. Furthermore, the M.O.E. indicates that its position during this time, as stated on the record at the third judicial pre-trial, was that if Stelco /U.S. Steel Canada led evidence at trial that the name of the defendant on the two informations should be something other than Stelco Inc., now operating as U.S.

Steel Canada Inc. , the Crown would then invite the court to amend the information in accordance with the evidence taken at trial pursuant to s. 34 of the Provincial Offences Act , R.S.O. 1990, c. P.33. Moreover, the M.O.E also conveyed that it had expressly noted to the pre-trial court that the issue about the wrong defendant being named on the two informations was an issue for Stelco /U.S. Steel Canada to deal with and was not an issue for the M.O.E. to deal with. [ 31 ] Furthermore, the M.O.E. indicated that in a letter that they had sent to Stelco /U.S.

Steel Canada, which set out their pre-trial position, expressly indicated that if Stelco /U.S. Steel Canada still contended that it is not the correct defendant and objected to being named on the two informations, then Stelco /U.S.

Steel Canada should be the moving party on any motion to deal with that issue. [ 32 ] Moreover, the M.O.E. indicated that this letter had also explicitly stated that the M.O.E. had “no intention of bringing any motion with respect to the name of the defendant at this time” and that the M.O.E. would only “move to amend the information when, and if, the evidence supports such a motion.” [ 33 ] The M.O.E. also indicated that on December 22, 2009, the trial coordinator had provided several dates to both the M.O.E. and counsel for Stelco /U.S. Steel Canada for the scheduling of this preliminary motion.

In response to the trial coordinator’s request for dates for the preliminary motion, counsel for Stelco /U.S. Steel Canada acknowledged that the M.O.E would not be bringing a motion to amend the information and indicated that he needed instructions from Stelco /U.S. Steel Canada as to whether to bring a motion to quash the information or set dates for trial. Moreover, the M.O.E. also indicates that counsel for Stelco /U.S.

Steel Canada in this acknowledgment also erroneously suggested that the M.O.E.’s decision not to pursue a motion to amend the information is the cause of the ongoing delay in these proceedings. [ 34 ] Furthermore, the M.O.E. indicates that despite its request to Stelco /U.S. Steel Canada that it notify the court of its intentions by January 4, 2010, neither a date for the motion to quash the informations had been set nor had trial dates been obtained. [ 35 ] The M.O.E. also indicates that as a result of the unwillingness of Stelco /U.S.

Steel Canada to seek a motion quashing the informations and their inability to obtain trial dates for these matters, the M.O.E. agreed at the fourth judicial pre-trial conference held on September 8, 2010, to bring this preliminary motion for a determination of whether the informations wrongly named Stelco /U.S. Steel Canada as the defendant.

Moreover, the M.O.E. asks that these matters be moved forward towards trial where complete evidence can be heard for a final determination of this issue. [ 36 ] Hence, this pre-trial application has been brought by the M.O.E., although it suggests that it ought to have been more properly brought by Stelco /U.S. Steel Canada . To reiterate, the reason the M.O.E. has commenced this pre-trial application was its concern about the slow progress of the proceeding and that it had reached an impasse and necessitated that they become proactive in moving the matter forward.

And, the reason that they were at an impasse is that the pre-trial courts would not permit the matter to be set down for trial until all preliminary issues were resolved. Both Stelco /U.S. Steel Canada and the M.O.E. were at odds in resolving the issue on whether the correct defendant had been charged.

However, as neither party could push this matter forward or resolve the seemingly irresolvable issue of whether the correct defendant had been charged, this matter became stuck in limbo. [ 37 ] The issue that has caused the impasse is that Stelco/U.S.Steel Canada contends that the wrong or incorrect defendant had been charged for committing the three offences in the two information before this court. However, the M.O.E. does not agree and submits

that unresolved factual or legal issues have to be resolved at trial on which evidence and testimony can be tendered and tested under cross-examination and that it is for the trier of fact and law to decide disputed issues on their merits. [ 38 ] This pre-trial motion was heard and argued on January 13 and April 8, 2011. No witnesses testified at the hearing and both parties relied solely on affidavit evidence and legal argument. The matter was then adjourned for the ruling to be rendered. 4.

RELEVANT STATUTORY PROVISIONS [ 39 ] The definition of “person responsible” in regards to the Certificate of Approval charge is set out s. 1(1) of the Environmental Protection Act , R.S.O. 1990, c. E.19 [ emphasis is mine below ]: 1(1) In this Act, … “person responsible” means the owner , or the person in occupation or having the charge, management or control of a source of contaminant; (“personne responsable”) … [ 40 ] The general offence

section of the Environmental Protection Act , R.S.O. 1990, c. E.19, is set out in s. 186(1) , which provides : 186

(1) Every person who contravenes this Act or the regulations is guilty of an offence. [ 41 ] The offence, as it was in 2007, for failing to comply with a Certificate of Approval is set out in s.186(3) of the Environmental Protection Act , R.S.O. 1990, c. E.19 [ emphasis is mine below ]: Offence re approval, licence or permit, etc. 186(3) Every person who fails to comply with a term or condition of a certificate of approval , provisional certificate of approval or certificate of property use or of a licence or permit under this Act or who fails to comply with the terms of a report under

section 29 is guilty of an offence. [ 42 ] The definition for “discharger” in regards to the MISA charges is contained in s. 1(1) of Ontario Regulation 214/95 (Effluent Monitoring And Effluent Limits — Iron And Steel Manufacturing Sector) [ emphasis is mine below ]: 1(1) In this Regulation, …. “discharger” means an owner or person in occupation or having the charge, management or control of a plant to which this Regulation applies; [ 43 ] The MISA charge for failing to control the quality of an effluent stream is set out in s. 17 of Ontario Regulation 214/95 (Effluent Monitoring And Effluent Limits — Iron And Steel Manufacturing Sector) [ emphasis is mine below ]: Lethality Limits

17. Each discharger shall control the quality of each stream at the discharger’s plant for which a sampling point is listed in

Schedule 6, to ensure that each rainbow trout acute lethality test and each Daphnia magna acute lethality test performed on any grab sample collected at a sampling point listed in

Schedule 6 for the plant, results in mortality for no more than 50 per cent of the test organisms in 100 per cent effluent . [ 44 ] The MISA charge for having failed to control the quality of an effluent stream, did failed to orally and in writing report an exceedence to the Director, as soon as reasonably possible , is set out in s. 39(3) of Ontario Regulation 214/95 (Effluent Monitoring And Effluent Limits — Iron And Steel Manufacturing Sector) [ emphasis is mine below ]: Reports to the Director — Compliance with

Section 6 and

Part IV 39(1) Each discharger shall report to the Director any incident in which effluent that would ordinarily flow past a sampling point established under this Regulation is discharged from the discharger’s plant without flowing past that sampling point.

(2) Each discharger shall report to the Director any loading or other result that exceeds a limit prescribed by

section 16 or 17 .

(3) A report required under subsection (1) or (2) shall be given orally, as soon as reasonably possible, and in writing, as soon as reasonably possible . … 5. ISSUES [ 45 ] The following are questions that have arisen in this preliminary motion and may need to be resolved in order to make a proper ruling. However, depending on how some of these questions are resolved not all of the questions may need to be addressed at this time in order to rule on this application: (

a) Has the Crown charged the correct or wrong defendant? (

b) What is the nature of this pre-trial motion? (

c) Does this court have the jurisdiction or authority in a pre-trial application to determine whether the Crown in a regulatory proceeding has charged the correct or wrong defendant for committing the offences in question? (

d) Is it appropriate in law or policy to decide whether the Crown has charged the correct or wrong defendant in a preliminary motion, when there is no legal mechanism for conducting such a proceeding to determine this issue? (

e) Is the question of whether the Crown has charged the correct or wrong defendant a proper determination for this court to make in a pre-trial motion considering that factual disputes should be resolved at trial? (

f) Is there a principle in law that would justify allowing a pre-trial motion for defensive

summary judgment in a quasi- criminal proceeding? (

g) Is there a triable factual issue that can only be resolved at trial? (

h) Is the issue of which person or entity had at the time the alleged offences were committed the charge, management, or control of the business, source of the contaminant, or plant where the alleged offences occurred a factual issue that should be decided at trial?

(

i) Based on the particular circumstances or facts, is this an exceptional case where factual disputes may be adjudicated in this type of pre-trial proceeding rather than at trial? (

j) Is this dispute about the correct or wrong defendant being charged more properly dealt with within a judicial pre-trial conference? (

k) If it is not improper to deal with the question of whether the Crown charged the correct or wrong defendant, then what test, inquiry, or pre-trial device should be used to resolve the issue in dispute? (

l) If it is not inappropriate to decide the issue about the correct or wrong defendant being charged in this pre-trial proceeding, then who has the burden of proof in this proceeding? (

m) If it is not inappropriate to decide the issue about the correct or wrong defendant being charged in this pre-trial proceeding, then what is the standard of proof required? (

n) Would the role of Crown counsel or prosecutor be usurped if the court in a pre-trial proceeding determines who the wrong or correct defendant should be for the offences in question? (

o) Was there a defacto merger or amalgamation of the nine limited partnerships and U.S. Steel Canada Inc., which by happenstance makes U.S. Steel Canada Inc. the proper defendant, considering the general partners and the limited partnerships were all dissolved? (

p) Was there a defacto merger or amalgamation of the subsidiary companies into the parent company that would dispose of the wrong defendant argument and make that argument moot or no longer valid? (

q) Did the legal distinction or separation between Stelco/U.S. Steel Canada, as the parent corporation, and its nine wholly- owned subsidiaries cease to exist when the nine subsidiaries were legally dissolved and did the liabilities and assets then become vested with the parent? (

r) Did the legal distinction or separate legal personality between the parent Stelco/U.S. Steel Canada and its subsidiary, Hamilton Steel GP Inc. disappear on December 14, 2007 or September 30, 2008? (

s) Did Stelco/U.S.Steel Canada, as the limited partner in the nine limited partnerships, take

part in the management of the limited partnerships or act on behalf of the limited partnerships, causing it to become a general partner in the limited partnerships? (

t) In the circumstances, is Stelco/U.S. Steel Canada, as a parent corporation liable for its subsidiary’s alleged wrongdoing? (

u) For the circumstances, should the corporate veil between Stelco/U.S.Steel Canada and its subsidiaries be pierced? (

v) Was Stelco/U.S. Steel Canada a party to the offences? (

w) If the wrong defendant has been charged then should the two informations be amended to add two other corporate defendants?

(

x) Would amending the two informations by adding two other corporate defendants be done without prejudice or injustice occurring? (

y) Has there been proper service of the Notice of Application to amend the two informations on the two corporations who are being sought to be added as defendants? 6. DISCUSSION [ 46 ] Stelco/U.S. Steel Canada contends that the wrong defendant had been charged for committing the three offences, as well as being incorrectly named in the two informations before this court, and that the proper defendant should have been Hamilton Steel GP Inc., who at the time in question had been the legal owner and operator of the business or plant where the offences were allegedly committed.

As such, Stelco/U.S.Steel Canada asks this court to declare that the wrong defendant has been charged and that the two informations be declared nullities or that its name be removed from the informations. [ 47 ] On the other hand, the M.O.E., as the moving party in this application, ironically asks this court to dismiss the application summarily for the reason that unresolved factual or legal disputes should be decided at trial where evidence and testimony can be tendered and tested under cross-examination.

However, in the event that this court does not dismiss the application summarily, then the M.O.E. seeks a determination and a declaration that Stelco/U.S.Steel Canada is properly or correctly named as a defendant on the two informations and that actual trial dates be obtained and scheduled for the present matter. [ 48 ] Furthermore, if this court does determine that Stelco/U.S.Steel Canada is not the correct defendant named in the two informations, then the M.O.E. alternatively requests the information for the MISA charges be amended to add “Hamilton Coke GP Inc.” as a defendant, and that the information for the Certificate of Approval charge be amended to add “Hamilton Steel GP Inc.” as a defendant, and then to set dates for the trial of this matter. [ 49 ] However, before ruling on this motion, in view of the novelty of this pre-trial application and the question at issue of whether the correct or wrong defendant has been charged, it will have to be first determined what is the nature of the inquiry that has to be undertaken; whether deciding if Stelco/U.S.Steel Canada is the wrong or correct defendant is a triable issue that should be resolved at trial or an issue that can be properly and legally decided in a pre-trial motion; and if this question can be properly decided in a pre-trial motion, then who should have the burden of proof in this application and what the test should be in deciding whether the proper defendant has been charged; and finally, what the standard of proof should be in deciding the question at issue. [ 50 ] Moreover, a dilemma arises in addressing these questions or issues in this pre-trial motion.

In the case that this court decides that it is not appropriate legally or for policy reasons to decide and declare whether Stelco/U.S. Steel Canada is the wrong or correct defendant named on the two informations in the context of a pre-trial motion, then this court should not appear to have decided or made findings of fact related to those questions where the facts would be contentious or that would have to be properly proven in a trial.

Thus, unless required, an effort will be made by this court to tread carefully, use neutral language, and not make any factual findings in relation to the factual or legal issues in dispute. Specifically, since one of the central arguments relied on by both parties on whether the correct or wrong defendant has been charged is related to who had the actual “charge, management or control” of the business and the plant or premises where the alleged offences occurred, c are will also be made in this ruling not to make findings of credibility or findings of fact on that contentious issue. (

A) WHAT IS THE NATURE OF THE INQUIRY TO BE UNDERTAKEN? [ 51 ] First of all, both parties have acknowledged that there is no statutory or common law mechanism at the pre-trial stage to specifically deal with this extraordinary application for determining whether the correct or wrong defendant has been charged.

Nevertheless, b oth parties rely simply on affidavit evidence and legal argument to support their request for relief. [ 52 ] Despite the lack of a legal mechanism for determining the question in this motion, Stelco/U.S.Steel Canada contends that the circumstances particular to this case are factually exceptional and unique, and that the evidence clearly shows the wrong defendant has been charged, and as such, provides the basis for granting this extraordinary relief at the pre-trial stage and to dispose of this matter without the need for a trial.

[ 53 ] Ergo, because of the novelty of the present application, a review will be undertaken of other procedural devices and of other pre- trial and mid-trial motions that are used for obtaining relief, along with their purposes, corresponding legal or evidential burdens of proof, standards of proof, and tests, to determine whether the decision or relief being sought through this pre-trial motion would be appropriate in law and policy.

And, if this is a proper matter to decide and deal with at this time, it will then be determined who should have the burden of proof and what the standard of proof should be for this inquiry, and what is required to be proven in determining whether the correct or wrong defendant has been charged. [ 54 ] Now, in regards to the nature of this pre-trial inquiry, it would seem at first glance to be more formal and adjudicative than what would normally occur in a judicial pre-trial conference, but less formal or adversarial than a preliminary inquiry that is held to test the sufficiency of evidence.

In other words, the nature of this pre-trial inquiry within the framework of criminal or quasi-criminal proceedings, in regards to the relief being sought, is something like a super pre-trial conference or a quasi-preliminary inquiry. It would also seem to be more evidential in nature and more complex than a pre-trial motion to quash an information for a defect on the face of the information, since the dispute in the present inquiry concerns the sufficiency of the proof of the allegations for the charges.

Additionally, the determination of the question at issue in this pre-trial inquiry is also akin to applying the test that is used to determine whether a matter should be bound over for a trial after a preliminary inquiry is completed. On the other hand , when looking at pre-trial devices or inquiries used in both criminal and civil proceedings, then the nature of the present inquiry would seem to be most similar or analogous to a pre-trial motion for

summary judgment used in a civil proceeding, which is permitted to rely solely on evidence from affidavits and has the appearance of a quick paper trial on the merits. [ 55 ] As such, if the question at issue of whether the correct or wrong defendant has been charged is a proper inquiry to be made at the pre-trial stage, despite the lack of a legal mechanism to conduct the inquiry, then deciding who has the legal or evidential burden of proof and what the standard of proof should be for the present inquiry will have to be determined.

(1) Standards and Burdens Of Proof For Particular Situations In Criminal Or Civil Proceedings [ 56 ] In regards to who bears the legal burden of proof in this pre-trial motion, Stelco/U.S. Steel Canada contends that they have the onus to prove on a balance of probabilities that the M.O.E. has indeed charged the wrong defendant, since they are the party claiming that it has been erroneously charged.

On the other hand, the M.O.E., as the moving party, contends that it only has an evidential burden that is analogous to the test or standard required in a motion for nonsuit, and as such, only needs to show there is an arguable issue to be decided at trial to succeed in this application. [ 57 ] On the issue of burden and standards of proof, D.M. Paciocco and L.

Stuesser in their textbook entitled, “The Law of Evidence, 5th ed.” (Toronto, Ontario: Irwin Law Inc., 2008), at p. 526, describe "burden of proof" in the terms of who it is that has the obligation of satisfying the adjudicator on the factual matter in issue and that the "standard of proof" as the degree to which they must convince the adjudicator in order to discharge their burden [ emphasis is mine below ]: The law relating to burdens of proof and presumptions is particularly complex because terminology is not used uniformly.

Speaking generally, there is agreement that the term "burden of proof" is apt to describe who it is that has the obligation of satisfying the adjudicator on the factual matter in issue .

The term "standard of proof" is understood to describe the degree to which she must convince the adjudicator in order to discharge her "burden ." … [ 58 ] As for the difference between a legal burden of proof and an evidential burden, in the archetypical evidence textbook entitled, “Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 3rd ed.” (Markham, Ontario: LexisNexis Canada Inc., 2009 ), the authors, at p. 88, describe “evidential burden” as the responsibility of a party to ensure that there is sufficient evidence of the existence or non-existence of a fact or an issue on the record to pass the threshold test for that particular fact or issue, while the “legal burden of proof” on a party means they have the obligation to prove or disprove a fact or issue to the criminal or civil standard [ emphasis is mine below ]: The term “evidential burden” means that a party has the responsibility to insure that there is sufficient evidence of the existence or non- existence of a fact or an issue on the record to pass the threshold test for that particular fact or issue .

As Lord Devlin in Jayasena v. R., to satisfy an evidential burden a party is not required to prove anything: Their Lordships do not understand what is meant by the phrase “evidential burden of proof” … It is doubtless permissible to describe the requirement as a burden, and it may be convenient to call it an evidential burden. But it is confusing to call it a burden of proof. Further, it is misleading to call it a burden of proof, whether described as legal or evidential or by any other adjective, when it can be discharged by the production of evidence that falls short of proof. …

In contrast, the term “persuasive (legal) burden” means that a party has an obligation to prove or disprove a fact or issue to thecriminal or civil standard. The failure to convince the trier of fact to the appropriate standard means that party will lose on that issue. Because the evidential burden and the persuasive burden will on occasion be distributed between the parties, it is essential that theissues to be tried, and the underlying facts in support of the issues, be clearly identified. (

a) Standard of Proof in Motion for Nonsuit in Quasi-Criminal Proceedings [59] The M.O.E. contends that it only has an evidential burden of proof in this pre-trial motion, similar to the test in a motion for nonsuit. The modern test for determining whether the prosecution has met its evidential burden in making a prime facie case in regards to amotion for nonsuit in a criminal or quasi-criminal proceeding is now found in the Supreme Court of Canada’s decision in R. v.

Fontaine(2004), 2004 SCC 27 , 18 C.R. (6th) 203, at para. 53, which requires the prosecution to adduce sufficient evidence upon which aproperly instructed jury could rationally conclude that the accused is guilty beyond a reasonable doubt: the case against the accused cannot go to the jury unless there is evidence in the record upon which a properly instructed jury couldrationally conclude that the accused is guilty beyond a reasonable doubt. [60] Furthermore, D.M. Paciocco and L.

Stuesser in “The Law of Evidence, 5ed.”, at p. 538, noted that there has been an evolutionof the test used in deciding whether the prosecution has made out a prime facie case and concluded that the Supreme Court of Canadahas improved the classic test established in the United States v. Sheppard case by removing the ambiguity from that classic test onwhether the Sheppard test required some evaluation of the sufficiency of proof: In R. v.

Fontaine the Supreme Court of Canada said that there is no prima facie case "unless there is evidence in the record upon whicha properly instructed jury [can] rationally conclude that the accused is guilty beyond a reasonable doubt." This standard represents both an evolution of, and improvement on, the classic test from the United States v. Sheppard.

The ambiguously worded Sheppard testhad been understood by some as leaving no room for evaluation of the sufficiency of proof; there would be a prima facie case if therewas "any" evidence, no matter how weak, on each of the things the Crown had to prove in order to gain a conviction. Others acceptedthat the Sheppard test required some evaluation of sufficiency but that in undertaking that evaluation the judge should avoid considering the criminal standard of proof. Fontaine and another Supreme Court of Canada decision, R. v.

Arcuri have now pushed much of theuncertainty aside. [61] Moreover, a motion for nonsuit is brought by an accused after the prosecution closes its evidence or case, which challenges thesufficiency of the prosecution’s evidence that has been adduced to prove the charge against an accused. It is in effect a motion to dismissthe charges for the reason that the prosecution has failed to adduce sufficient evidence on each element of the charge. [62] In addition, D. M. Paciocco and L.

Stuesser, at p. 526, in “The Law of Evidence, 5ed.”, point out that in a criminal case, theCrown must demonstrate a prima facie case in order to have an accused person committed to stand trial after a preliminary inquiry andthat this prima facie case standard is an example of an “evidential” burden of proof and that it is used as a screening process to seewhether it is justifiable and sensible to have a case go to the trier of fact [emphasis is mine below]: 3.2) Standards of Proof Rules of law assign the relevant standards of proof.

In a criminal case both the common law and the Charter require the Crown to provethe guilt of the accused beyond a reasonable doubt. In other words, the trier of fact can convict only if, at the end of the case on the basisof all admissible evidence, the trier of fact is left without a reasonable doubt on each of the elements of the alleged offence, in spite of anydefences raised by the accused. … To say that the Crown bears the burden of proof in a criminal case, or that the plaintiff has the burden of proof in a civil case, issomething of a simplification.

In fact, the burden of proof can shift from party to party during the course of a trial, depending on thespecific matter in issue at the time. For example, if the accused wishes to exclude evidence because it was unconstitutionally obtained,the burden will be on the accused to prove, on the balance of probabilities, that the Charter violation occurred. If the evidence is"conscriptive" in nature and the accused meets that burden, the Crown will then have to establish that the evidence would have beendiscovered in any event, failing which it will be excluded.

Thus, even though the Crown always has the "ultimate burden" of proving theguilt of the accused beyond a reasonable doubt at the end of the case, there may be other burdens of proof that have to be considered.

… 3.5) The Prima Facie Case Standard The prima facie case standard is an important example of an "evidential burden." It is used as a screening process to see whether it is justifiable and sensible to have a case go to the trier of fact who is designated by law to give an ultimate factual decision on the matter. In a criminal case, the Crown must demonstrate a prima facie case in order to have an accused person committed to stand trial after a preliminary inquiry . The party seeking to extradite a subject to a foreign jurisdiction to stand trial there must present a prima facie case.

At the end of the Crown's case, accused persons are entitled, on application, to a directed verdict of acquittal, if the Crown has not presented a prima facie case. In R. v. Fontaine the Supreme Court of Canada said that there is no prima facie case "unless there is evidence in the record upon which a properly instructed jury [can] rationally conclude that the accused is guilty beyond a reasonable doubt. " … Before explaining precisely what the application of the prima facie test entails, it is helpful to consider the implications of a finding that there is no prima facie case.

A judge who rules that there is no prima facie case prevents the case from getting to the tribunal that is, according to law, supposed to be deciding the case on its merits . A preliminary inquiry judge who refuses to commit an accused person to trial will, subject to the power of attornies general to issue direct indictments, be depriving the trial court of the ability to decide the case . An extradition judge who refuses to extradict will be preventing a trial from occurring in a foreign jurisdiction. A judge who directs a verdict of acquittal is preventing the jury from deciding the case.

The operation of the prima facie case standard is therefore influenced heavily by rules that seek to keep the judge who is adjudicating whether there is a prima facie case from doing the job that another tribunal is supposed to be doing. The first restriction, then, is that a judge deciding whether there is a prima facie case is to assume that all of the evidence he hears is true . He is not to trouble himself about whether he believes the witnesses or not. It is the job of the trial court, or foreign court, or jury, to decide whether witnesses are believed.

For a judge to refuse to find a prima facie case because he does not believe the witnesses is to usurp the function of the relevant body. The second restriction is that the judge deciding whether there is a prima facie case is not to "weigh" the reliability of the evidence . She should not, for example, discount the testimony of a witness because the witness had a poor opportunity to observe and could be mistaken, or has poor eyesight, or is inexperienced. The judge is to assume that the witness is not only trying to be truthful but is succeeding in being accurate .

Where there is "direct" evidence on every one of the things that the Crown must prove, the prima facie case standard is therefore simple. Since the judge must treat the testimony as true and accurate there will necessarily be evidence "in the record upon which a properly instructed jury could rationally conclude that the accused is guilty beyond a reasonable doubt ." Where the only evidence on one or more of the essential elements of the offence is circumstantial , things are more complex.

The judge will have to engage in a restrained evaluation of the sufficiency of the circumstantial case , an evaluation the Supreme Court of Canada has described as a "limited weighing" : In performing the task of limited weighing, the preliminary inquiry judge does not [actually] draw [ultimate] inferences from facts. Nor does she assess credibility. Rather, the judge's task is to determine whether, if the Crown's evidence is believed, it would be reasonable for a jury to infer guilt . Thus, this task of "limited weighing" never requires consideration of the inherent reliability of the evidence itself.

It should be regarded, instead, as an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence. [ 63 ] Furthermore, a motion for nonsuit is a mid-trial motion for relief. It could be used as a remedy against a purported flawed information that charges the wrong defendant, but the accused person would still have to wait for the trial and the end of the prosecution’s case before the motion for nonsuit could be brought. (

b) Enforcement Officer Deciding to Lay Charges Must Have Reasonable And Probable Grounds

[ 64 ] As set out in s. 23(1) of the Provincial Offences Act , R.S.O. 1990, c. P.33, before an enforcement officer lays an information alleging an offence they must have “reasonable and probable grounds” in believing that a person or entity has committed an offence: I nformation 23

(1) Any person who, on reasonable and probable grounds, believes that one or more persons have committed an offence, may lay an information in the prescribed form and under oath before a justice alleging the offence and the justice shall receive the information. (

c) Justice Receiving Information For Confirming Or Issuing Process [ 65 ] Then, as provided for in 24(1) of the Provincial Offences Act , R.S.O. 1990, c. P.33, the justice who receives an information from an informant, in considering whether the summons issued by an enforcement officer at the scene of the offence should be confirmed, or that a summons be issued, should be satisfied that the informant’s allegations about a named person or entity, who they believe on reasonable and probable grounds has committed an offence, have been made out: Procedure on laying of information 24(1) A justice who receives an information laid under

section 23 shall consider the information and, where he or she considers it desirable to do so, hear and consider in the absence of the defendant the allegations of the informant and the evidence of witnesses and, (

a) where he or she considers that a case for so doing is made out , (

i) confirm the summons served under

section 22, if any, (ii) issue a summons in the prescribed form, or (iii) where the arrest is authorized by statute and where the allegations of the informant or the evidence satisfy the justice on reasonable and probable grounds that it is necessary in the public interest to do so, issue a warrant for the arrest of the defendant; or (

b) where he or she considers that a case for issuing process is not made out, (

i) so endorse the information, and (ii) where a summons was served under

section 22, cancel it and cause the defendant to be so notified. Allegation of offence

(2) Each count in an information shall in general apply to a single transaction and shall contain and is sufficient if it contains in substance a statement that the defendant committed an offence therein specified . …

Sufficiency

(7) No count in an information is insufficient by reason of the absence of details where, in the opinion of the court, the count otherwise fulfils the requirements of this

section and, without restricting the generality of the foregoing, no count in an information is insufficient by reason only that, (

a) it does not name the person affected by the offence or intended or attempted to be affected; (

b) it does not name the person who owns or has a special property or interest in property mentioned in the count; (

c) it charges an intent in relation to another person without naming or describing the other person; (

d) it does not set out any writing that is the subject of the charge; (

e) it does not set out the words used where words that are alleged to have been used are the subject of the charge; (

f) it does not specify the means by which the alleged offence was committed; (

g) it does not name or describe with precision any person, place, thing or time; or (

h) it does not, where the consent of a person, official or authority is required before proceedings may be instituted for an offence, state that the consent has been obtained. … [ 66 ] On the other hand, if the justice is not satisfied that the case has been made out by the informant then the justice is required to cancel the summons and cause the defendant to be notified that the summons was cancelled.

Nevertheless, this particular pre-trial check against an improper, insufficient or unwarranted charge from proceeding to trial is subject to a low threshold or standard for the justice to decide whether to confirm process or for issuing process. In this process, the justice only has to consider the informant ’ s “ reasonable and probable grounds ” in believing that a particular defendant has committed the offence described in the information along with the informant providing a

summary of the allegations pertaining to the offence to decide whether the case has been made out. Furthermore, in this hearing to confirm or issue process, the accused person named in the information does not attend or participate in this particular pre-trial process. [ 67 ] As such, this particular pre-trial safeguard would not likely prevent informations with wrongly named defendants from being screened out or stopped from continuing.

(2) Pre-enquete Hearings For Privately Laid Charges [ 68 ] Another pre-trial mechanism available in criminal proceedings that acts as a check against frivolous or unwarranted charges from proceeding to trial is the pre-enquete hearing for privately-laid charges contained in s. 507.1(1) of the Criminal Code , R.S.C. 1985, c. C- 46.

Before deciding whether to compel the appearance of an accused on a privately-laid information to appear in court to answer to the charge, the justice presiding over the pre-enquete hearing in considering whether a case is made out has to hear and consider the allegations of the informant and evidence of any witnesses: Referral when private prosecution 507.1(1) A justice who receives an information laid under

section 504, other than an information referred to in subsection 507(1), shall refer it to a provincial court judge or, in Quebec, a judge of the Court of Quebec, or to a designated justice, to consider whether to compel the appearance of the accused on the information. Summons or warrant

(2) A judge or designated justice to whom an information is referred under subsection (1) and who considers that a case for doing so is made out shall issue either a summons or warrant for the arrest of the accused to compel him or her to attend before a justice to answer to a charge of the offence charged in the information.

Conditions for issuance

(3) The judge or designated justice may issue a summons or warrant only if he or she (

a) has heard and considered the allegations of the informant and the evidence of witnesses; (

b) is satisfied that the Attorney General has received a copy of the information; (

c) is satisfied that the Attorney General has received reasonable notice of the hearing under paragraph (a); and (

d) has given the Attorney General an opportunity to attend the hearing under paragraph (

a) and to cross-examine and call witnesses and to present any relevant evidence at the hearing. … [ 69 ] This particular pre-trial mechanism to safeguard against frivolous charges is a hearing in which the accused person is not present nor open to the public. However, the hearing is attended by the private informant, the informant ’ s witnesses, if any, and Crown counsel. Furthermore, testimony about the alleged offence is given by the private informant and any of their witnesses under oath and they are also subjected to questioning from both the court and Crown counsel.

In deciding whether to issue process for summoning the accused person named in the information to come to court to answer to the privately-laid charge, the court also uses the low threshold of reasonable and probable grounds that a criminal offence has been committed by that accused person. [ 70 ] However, if process is issued and a summons is issued for the accused person to appear in court to answer to the privately-laid charge, the Crown can still intervene and use their prosecutorial discretion to withdraw the privately-laid charge at that first appearance and stop that private prosecution, or to take it over and conduct the prosecution themselves.

The intervention to stop the prosecution will be based on Crown counsel satisfying themselves after a review of the allegations that the proceedings are frivolous, vexacious, an abuse of the criminal process, or not in the public interest.

However, when Crown counsel intervenes and assumes carriage of a private prosecution it would have been based upon a review of the allegations and being satisfied that it is necessary in the public interest that they do so and that there is a realistic prospect of conviction. [ 71 ] Furthermore, this pre-trial proceeding is analogous to grand jury hearings convened in the United States to consider issuing an indictment.

(3) Judicial Pre-Trial Conferences [ 72 ] The dispute over whether Stelco/U.S.Steel Canada is the correct or wrong defendant could not be resolved between them nor resolved through a judicial pre-trial conference.

Section 45.1 of the Provincial Offences Act , R.S.O. 1990, c. P.33, allows for a judicial pre-trial conference being held for the purpose of considering and making decisions on matters that would promote a fair and expeditious trial, which would be better decided before the start of the proceedings : Judicial pre-trial conferences 45.1

(1) On application by the prosecutor or the defendant or on his or her own motion, a justice may order that a pre-trial conference

be held between the prosecutor and the defendant or a representative of the defendant. 2009, c. 33 , Sched. 4, s. 1 (38). Matters for consideration

(2) The court, or a justice of the court, shall preside over the pre-trial conference, the purpose of which is to, (

a) consider the matters that, to promote a fair and expeditious trial, would be better decided before the start of the proceedings and other similar matters; and (

b) make arrangements for decisions on those matters. 2009, c. 33 , Sched. 4, s. 1 (38). [ 73 ] In general, the function of judicial pre-trials or pre-hearing conferences is to assist in narrowing the issues and to ensure the efficient use of court time.

The pre-trial court may also inquire about the anticipated length of trial, the completeness of disclosure, the making of admissions, arguments concerning the admissibility of evidence, severance applications, possibility of a guilty plea to a lesser charge, and applications for Charter remedies. [ 74 ] However, the issue of whether Stelco/U.S.Steel Canada is the correct or wrong defendant or being liable under the EPA for the offences in question, at first glance, is not as straightforward or simple as deciding liability based on who the legal owner was of the plant or premises where and when the alleged offences were committed.

For the purposes of the EPA and the offences in question, ownership is just one of the conditions in which liability can inure to a person or entity. The EPA also provides for liability to attach when the person or entity charged was the person or entity that had the “charge, management, or control” of the source of the contaminant or the plant where the offence allegedly occurred. In determining who actually had the “charge, management, or control” of the premise or plant where the alleged offences occurred are both factual and legal questions.

Thus, these issues would not have been easily resolved in the context of a judicial pre-trial conference when the issue is one of fact and law. [ 75 ] Furthermore, there is further indication in the present case, which has been shown by the complexity of the legal issues regarding the scope of liability for the alleged offences, to the volume of documents that had been submitted in this application, and to the sizeable amount of corresponding legal argument on the issue of liab

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