R.v. SPEEDY EXCAVATING LTD. Date:, 2011 BCPC 107

Citation: R.v. SPEEDY EXCAVATING LTD. Date: 20110228 2011 BCPC 0107 File No: 182379-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SPEEDY EXCAVATING LTD. REASONS FOR SENTENCE OF THE HONOURABLE JUDGE W. G. MACDONALD Counsel for the Crown: J. MacAulay Counsel for the Defendant: J. Doyle Place of Hearing: Surrey , B.C. Date of Hearing: February 28, 2011 Date of Judgment: February 28, 2011 [ 1 ] THE COURT : With respect to this matter, perhaps we can ask the director here to stand up. Sir, you have heard all of the submissions from the Crown, I am sure you have gone over this case and the issues in it with your counsel many times. You are aware of exactly what

section of what Act you have now breached by taking out this hazardous material and transporting it in the manner in which you did. [ 2 ] The one before me all relates to a single incident which occurs on the 16th of December 2008, that is the actual movement or transportation of the hazardous waste, but the issue itself came up for several months before that time.

There were bids put in with respect to the demolition of these two homes in Surrey, and one of the things which came out in October was a report from a company called Astec, which indicated that there were hazardous materials in the gypsum board and that they would have to be dealt with accordingly. [ 3 ] You hired, apparently as a sub-contractor, this Mr. Moore, and he charged you a fair amount to sort of oversee this project on your behalf. It would appear that that may not have been money well spent in that the advice you got from him may not have been great.

Ultimately, of course, the difficulty is that the responsibility comes back to you and the company, you being the company, to make sure that you comply with the various regulations including disposal of hazardous material.

In this particular case I have no doubt that there was hazardous material in the buildings, as indicated in the Astec report, that is the evidence before the court, that it was removed by your company; that is the gypsum board was removed by your company, the hazardous material may well have been in the filling or the taping material, but it is kind of, at that point, attached to the gypsum board. [ 4 ] I am aware, as you are now, if you were not at the time, that while the material may not be of any danger to anybody sitting in the house on the wall, once you start demolishing it, tearing it down and disturbing it really, then it can become airborne and can become a real hazard for both the employees who remove it and thereafter anybody who handles it in transition. [ 5 ] In this particular case it would appear that your employees did not handle it in any way that you would expect someone to handle hazardous material; it was not put in any sort of lined bin, it was not contained in plastic bags, they were not, I do not believe, did not

have face masks and gloves and things of that nature, and therefore, the manner in which this destruction and demolition took place by your company put those employees at risk. [ 6 ] And then, rather than take the hazardous material to a location where it could be legally dumped, that would have involved transportation to Alberta and a cost of over $7,000 to dispose of the material in Alberta, it was disposed of for a few hundred dollars at a local New West Gypsum Recycling business, and as a result, those employees were put at risk and endangered by the fact that they were then handling hazardous material that they had no idea was hazardous material, it was not disclosed to them. [ 7 ] The Crown concedes that they cannot prove actual harm, they cannot prove that any of your employees today suffered any short- term or long-term loss or injury to their health as a result of the handling, but certainly the opportunity is there, the risk is there, and that is what this legislation is designed to protect.

They are hazardous materials, they have to be handled in an appropriate way; if they are not, people's lives are endangered. This is potentially life-threatening kinds of material that you are dealing with. [ 8 ] In this particular case your company comes before the court with a clean record. Your company has not been involved in anything of this type before so I do not have to sentence you as if you are a repeat offender. Also, in this particular case I am satisfied that you came forward and admitted your involvement relatively early on. You have pled guilty, those are both mitigating factors.

And it is not a case where I can find that you as a director, or the company, acted deliberately in order to deal with the hazardous material in this way. You may well have had some bad advice. [ 9 ] But it is also not one of those cases in which specific deterrence is the major consideration.

When dealing with environmental cases such as this, and I am not going to refer to all of the cases referred to by the Crown here, but in dealing with cases such as this, general deterrence, that is deterring others who might be inclined to engage in the demolition business in a similar manner, is what it is that the court is trying to discourage. [ 10 ] That is why the fine has to be more than a licence. It would be wrong just to say, "Well, I am only going to impose, for example, a $7,000 fine because that is what it would have cost this company to have it transported to Alberta." It is not as simple as that.

There has to be a deterrence, in other words, the fine has to be high enough and/or the penalties, whether it is a fine or a contribution, something has to deter people from being careless, if you will, not taking necessary care and precautions.

I am certain in future that you, being involved in this case, will take more care, but as I say, I am not speaking just to you, I am speaking to everybody in your business, everybody in the demolition business, everybody who handles hazardous waste, and saying to them that there is a considerable price to pay if you do not deal with the hazardous materials in the appropriate and legal fashion. [ 11 ] To that regard I have been told that there is a joint submission, your counsel and Crown counsel have agreed that a $1,000 fine and a $14,000 order of payment to the Habitat Conservation Trust Foundation would be an appropriate and significant penalty, and to that end I agree.

It seems to me that is a substantial penalty, it is way more than you ever would have made out of this contract by way of profit; I am told that that may have only been a couple of thousand dollars.

Even if it was more than that, it certainly would not have been a potential profit of $15,000, and now, both with legal fees and lost time and now these payments today, this will be an expensive lesson for you and your company and, as I say, hopefully a lesson to others in the community to abide by the rules with respect to transporting hazardous materials. [ 12 ] In this case, I am going to impose the suggested fine in the amount of $1,000.

If there is a victim fine surcharge I will waive it because of the manner in which this is to be structured, and that is that it encompasses a total penalty of $15,000. [ 13 ] I will make the order for payment of $14,000 to the Habitat Conservation Trust Foundation. That payment must be made within one year, so I am going to say by the end of February 2012 that payment must be made. [ 14 ] With respect to the fine, I am going to grant you three months time to pay that $1,000 fine, so we are at the end of February, that will make it, let's say the 1st of June 2011 to pay the $1,000.

So $1,000 by the 1st of June, the other amounts are payable within a year. And when I say "you", I mean the company. [ 15 ] Thank you. [ 16 ] THE CLERK: And the outstanding counts? [ 17 ] MR. MacAULAY: Yes, Your Honour, thank you. With respect to Surrey Information 183379 (sic) the Crown directs a stay of proceedings with respect to all accused, Counts 1 through 5 and 7 through 9, and with respect to Messrs. Sall and Dhillon on Count 6, so that leaves only the company remaining on Count 6. (REASONS FOR SENTENCE CONCLUDED)