r v. 3723259 CANADA INC., 2017 QCCQ 5290

Director of Public Prosecution c. 3723259 Canada Inc. 2017 QCCQ 5290 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF GATINEAU LOCALITY OF GATINEAU Criminal and Penal Division No. 550-61-042455-150 DATE: May 15, 2017 ______________________________________________________________________ PRESENT: CHRISTINE LAFRANCE, PRESIDING JUSTICE OF THE PEACE ______________________________________________________________________ DIRECTOR OF PUBLIC PROSECUTION Prosecutor v. 3723259 CANADA INC.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] In the spring of 2011, environmental inspectors visited the address of 3723259 Canada Inc. (hereinafter “the Company”) four times to perform inspections. The Company’s business is trucking and snow removal. [ 2 ] During the inspections, they noted that there was a deposit of hazardous materials on the property and a spill into a stream adjacent to the property.

Essentially, the materials in question were petroleum hydrocarbons with the characteristics of used materials. [ 3 ] An inspection was also carried out on March 14, 2012, and the inspectors made essentially the same observations as in 2011. CONTEXT [ 4 ] The owner of the Company is James Young.

The Company operates on the property and in the garage behind the residence of the Company owner’s parents. [ 5 ] During the 2011 inspections, photographs of the area were taken and samples were collected. [ 6 ] On May 20, 2011, a notice of offence was sent to the Company. [ 7 ] On March 14, 2012, the inspectors visited to check whether the Company had taken corrective action following the notice of offence.

They took photographs of the area and samples. [ 8 ] Following the 2012 inspection, the Company was prosecuted for having emitted, deposited, discharged or released a hazardous material into the environment or allowed the emission, deposit, discharge or release therein (Environmental Quality Act , C.Q.L.R. c. Q-2, sections 70 and 109 ; Regulation respecting hazardous materials , c. Q-2, r. 32, sections 8 and 142). [ 9 ] The Company presents a defence of due diligence and, subsidiarily, it invokes the maxim of minimis non curat lex , in other words, that the pollution in question was minimal.

QUESTIONS IN DISPUTE 1. What level of diligence did the Company have to demonstrate to be discharged from the offence? 2. Did the Company demonstrate due diligence under the circumstances? 3. Did the deposits and spills have negligible or minimal effects on the environment, such that the maxim of minimis non curat lex applies? ANALYSIS 1. What level of diligence did the Company have to demonstrate to be discharged from the offence? [ 10 ] To successfully present a defence of due diligence, a defendant must demonstrate, on a balance of probabilities, that all

necessary precautions were taken to avoid committing the offence. [1] [ 11 ] Professors Fortin and Viau state the rule as follows: [ TRANSLATION ] The conduct of the accused must therefore be assessed against the standard of a reasonable person in his position. The test for determining fault is objective in the sense that the accused is judged on the basis of the prudence, knowledge and abilities that he is supposed to possess as a reasonable person.

As such, he must show what precautions he took in carrying out the activity that gave rise to the offence. [2] [ 12 ] In environmental law, the degree of diligence required varies depending on the risk to the environment and the nature of the defendant’s activities. [ 13 ] Author Paule Halley framed the flexible nature of the standard of due diligence in the following terms: [ TRANSLATION ] The abstract standard of a reasonable person is objective, but not, however, inflexible: it varies in intensity to adapt to the nature of the activity and the circumstances surrounding the offence.

Some activities call for greater prudence than others. The standard of diligence shifts between two standards: that of an ordinary person and that of an expert. . . . The test for evaluating the level of diligence of conduct is not that of an ordinary person, but that of a person versed in the facts of the company’s activities and applying the care and attention required to prevent violation of the law. The duty of due diligence is a demanding obligation of means, but it does not go so far as to require proof of perfect conduct or superhuman effort because there is no such thing as zero risk.

The duty of diligence does not require employing all means to prevent pollution, but all reasonable means. . . . Two series of factors influence the standard of diligence imposed on a polluter in particular. They are the environmental risks inherent to the company’s activities and the specific circumstances in which the activities occur. [3] [ 14 ] The Company submits that, on the continuum of due diligence, it is an ordinary person. It is not a specialist in processing used hydrocarbons. [ 15 ] James Young is a trained mechanic and does the maintenance on his company’s vehicles.

Every three months, he changes the oil on his four dump trucks and his loader. [ 16 ] Subsequently, the used oil is placed in small tanks [4] before being poured into larger tanks located outside the garage.

Two tanks were photographed by the inspectors. [5] When the big tanks are full, the Company contacts Safety-Kleen Canada, [6] which collects the used oil. [ 17 ] Although the Company does not specialize in processing used hydrocarbons, it is more than a simple ordinary person who changes the oil on a vehicle. [ 18 ] We are dealing with a company that performs a number of oil changes on a number of vehicles every three months.

Although the evidence does not reveal the quantity of oil generated by the maintenance on these vehicles, it has to be admitted that it is more than that generated by the one or more personal vehicles of an ordinary person who does not have a transportation company. [ 19 ] Proof of this is that an ordinary person does not call upon a company to collect used oil.

An individual takes it to the places prescribed by the municipality or to a business that agrees to receive it. [ 20 ] Moreover, Exhibit D-8 shows clearly that the Company’s system for managing its waste is more elaborate than that of an ordinary person. [ 21 ] The question is thus to evaluate the actions of the Company with respect to the way it dealt with used oil, in comparison with the actions of a transportation company that, like Mr. Young’s company, maintains its vehicles. 2. Did the Company demonstrate due diligence under the circumstances? [ 22 ] The central dimension of due diligence is prevention.

In R. v. Sault Ste. Marie , [7] the Supreme Court said: “The defence will be available . . . if he took all reasonable steps to avoid the particular event.” [ 23 ] The Company was therefore required to identify the risk of pollution that could flow from its activities and the oil changes on its equipment every three months. [ 24 ] First, we will consider the way the used oil was stored. [ 25 ] In his testimony, Mr. Young affirmed that the oil tanks were closed. He said that there was a rubber plug for the red tank. [8] The plug is not attached to the tank.

He presumed that the plug was there because there had never been an oil spill on his property.

[ 26 ] He said that the yellow tank has a plastic sign covering the intake opening with a weight on top. [9] Since there had never been an oil spill, he thought it was sufficient. [ 27 ] Clearly, these two tanks are not appropriate. First, they are not watertight. When the inspectors visited in 2011, there were no plugs on the tanks, so rainwater could accumulate in them and they could overflow. The inspectors also noted that the tanks were full. [ 28 ] In addition, there is a 2276-litre diesel fuel tank [10] that is problematic.

The ground under the tank is stained and gives off a strong smell of diesel fuel. [ 29 ] Mr. Young did not check that his tanks had no leaks, saying that there had never been an accident and thus everything was compliant. [ 30 ] In 2011, the inspectors also noted a strong smell of hydrocarbons.

They observed scrap metal, a bucket with used oil filters and oily mechanical parts [11] on the ground. [ 31 ] Snow from roadways and a steel rim were found in the stream, and there were odours of hydrocarbons. [12] Traces of oil were shining on the water on the ground [13] and the residue was oily to the touch. [ 32 ] Following the findings in the stream on the extreme right-hand side of the property, [14] the inspectors placed an absorbent boom in the stream as a preventive measure to absorb the hydrocarbons that were spilled there. [ 33 ] On April 20, 2011, samples were taken from the three following places: a puddle in the yard (C-1), at the sewer drain (C-2) and in the stream (C-3). [15] On April 21, 2011, two soil samples were also taken near the wheel loader (MS-1 and MS-2). [ 34 ] A liquid tracer poured into the puddle (C-1) confirmed that the water ended up in the stream. [16] [ 35 ] During the last inspection in 2011, the absorbent boom was retrieved.

There were black stains on it and it smelled strongly of hydrocarbons.

White foam was stuck on the absorbent boom; Inspector Hayes described the foam as a heavier hydrocarbon, such as grease or motor oil. [ 36 ] The colours of the rainbow appeared on the surface of the water, consistent with an oily film. [ 37 ] A notice of offence was sent to the Company on May 20, 2011. [17] [ 38 ] The following year, on May 14, 2012, the property was inspected to check on the corrective measures taken by the Company. [ 39 ] The inspectors found that there were traces of hydrocarbons in the runoff water [18] and there were odours of hydrocarbons and diesel fuel. [ 40 ] There was a puddle of oil in front of a trailer and a bucket one quarter full of used oil.

The bucket was not covered and rain was falling into it. [19] Behind the trailer, there were puddles of hydraulic fluid. [20] [ 41 ] Snow from roadways was pushed into the stream and there were odours of hydrocarbons. A motor located in a green trailer was open to the weather. Oily matter was flowing from the bin of a truck. The colours of the rainbow could be seen.

Oily parts were on the ground, as was an oily scum. [21] [ 42 ] Samples were taken from the same places as in 2011: from a puddle of water in the yard (M-1), at the sewer drain (M-2) and in the stream (M-3). [22] [ 43 ] A liquid tracer poured into the puddle of water (M-1) confirmed that the water still ended up in the stream. [23] [ 44 ] During his testimony, Mr.

Young referred to three events to explain why there were hydrocarbons on the property: his friend’s Dodge Dakota truck had had a transmission fluid leak, a garbage truck had broken down and leaked on the road in front of his residence and his trailer’s hydraulic system had broken, which had caused a mess on his property. [ 45 ] The first two events occurred in 2011. Mr.

Young said that, two or three days before the inspection on April 20, 2011, a friend’s truck had had a transmission fluid leak. [24] [ 46 ] He also said that three or four weeks before the April 20, 2011 inspection, a garbage truck had broken down in front of his residence and oil had flowed into the stream and onto the road. [ 47 ] He said that the oil mixed with the snow on his property. When he cleared the snow from his driveway, the oil ended up in the snow pushed into the stream. [25] [ 48 ] His trailer’s hydraulic system broke in 2012. [26] Mr.

Young thought that one of the Company’s employees (his father or a person named Terry) had hung the bucket on the trailer. He noticed it only at the time of the inspection. [ 49 ] In 2011, Mr. Young was really unlucky. In the days and weeks before the inspection, he experienced the Dodge Dakota and garbage truck incidents. [ 50 ] The Court has doubts about the truth of the garbage truck incident. Mr. Young said that there was quite a large oil spill on the road.

According to him, it was big enough for the oil to run into the stream and to be found on the road shoulder. [ 51 ] At no time did he notify the authorities. He said that he did not concern himself with it because he was working. He then contradicted himself in his explanations by saying that he was leaving his property in his truck when he saw the incident. He was unable

to say whether the truck was repaired on site or whether it was towed. [ 52 ] He said that the incident left black stains on the road. He circled the stains on the aerial photograph. [27] However, he was unable to see the stains on the photograph taken by the inspectors on April 20, 2011; [28] he said they had dried up. [ 53 ] The aerial photograph was clearly taken in the summertime. There are two possibilities: either it was taken in the summer of 2010, and it would have been impossible to see the stains since the incident occurred, according to Mr.

Young, three to four weeks before April 2011. [ 54 ] Or it was taken in the summer after the incident, which makes it unlikely that Mr.

Young would be able to see the stains on a photograph taken several months after the incident, given that he claimed that they were not visible at the time of the inspection. [ 55 ] The Court concludes that the garbage truck incident is not credible and raises no doubts. [ 56 ] Even if the Court were to take that incident as proven, it, combined with the Dodge Dakota incident, cannot explain the scope of the inspectors’ findings concerning the presence of hydrocarbons on the property and in the stream in 2011, and even less in 2012. [ 57 ] According to the expert report by Luc Rivard, forensic chemist, samples C-1, C-2 and C-3, taken in 2011, [TRANSLATION] “testify to the presence, in the water samples, of significant quantities of hydrocarbon petroleum products, in other words, in concentrations that entail acute or chronic toxicity for aquatic organisms”. [29] [ 58 ] The expert concluded from samples MS-1 and MS-2 that the level of soil contamination from hydrocarbon petroleum products [TRANSLATION] “. . . could contribute to the contamination of the surface water by runoff of those contaminants into the hydrographic network, just as they could compromise, by percolation, ground water quality”. [30] [ 59 ] Samples M-1, M-2 and M-3, taken in 2012, have the same characteristics as those taken in 2011. [31] In addition, when stream samples C-3 and M-3 were compared, it was found that the concentration of hydrocarbons in M-3 (2012) was 20 times higher than that in C-3 (2011). [32] [ 60 ] Lastly, the Court concludes that it is unlikely that the breaking of the trailer’s hydraulic system in 2012 was the cause of the increase in the concentration of hydrocarbons in the stream.

In fact, it was a minor spill limited to beneath the trailer. [ 61 ] Given the inspectors’ observations in 2011 and 2012, it is clear that the Company does not care about the environment. Despite the notice of offence sent on May 20, 2011, it did not take the corrective action necessary with respect to management of its activities. [ 62 ] In 2012, there were signs of hydrocarbons everywhere on the property. [33] The inspector mentioned that the hydraulic systems of the trailers were leaking, in particular the one identified in photograph 3 of Exhibit P-7. [ 63 ] Mr.

Young said that the oily matter leaking from the bin of a truck [34] was not oil. Instead, it was a metal plate that is darker in colour and reinforces the box of the truck. The blue colour noted by the inspectors could be, according to Mr. Young, ketchup or Kool- Aid! [ 64 ] This explanation is farfetched. The line of the metal plate is visible in photograph 6. [35] Its square shape can be seen clearly. The oil extends beyond the metal plate and there is also some on the ground. The colours of the rainbow can also be seen in the photograph. The Court does not believe Mr.

Young’s explanation and it raises no reasonable doubt. [ 65 ] In light of the foregoing, the Company in no way identified the risk of pollution entailed by its activities and the oil changes on its equipment every three months. Oil is a hazardous material that all companies of that type must treat as such. [ 66 ] Mr. Young’s comment to the effect that the inspectors “got all excited about a little oil” is a clear illustration of his nonchalance with respect to the handling of hazardous materials. [ 67 ] As Mr. Young admitted in his testimony, the used oil was not stored appropriately outside the garage in 2011.

He believed that depositing the snow from roadways in the stream was a good idea. Now he is better informed. [ 68 ] At the time, he was unaware of the law and relied on common sense. He ran his company in the same way as a friend, who also had a garage. [ 69 ] The Company remained passive day after day as it carried out its activities. It remained passive even after the notice of offence in 2011. The fact that there had never before been a complaint cannot justify the Company’s conduct. [ 70 ] Although the testimony of Aline Lavigne Young, mother of Mr.

Young, indicates that the Company is now better equipped to dispose of waste, that diligence exercised after the events is not relevant because it is not preventive. [ 71 ] Given the foregoing, the Company has not demonstrated due diligence. 3. Did the deposits and spills have negligible or minimal effects on the environment, such that the maxim of minimis non curat lex applies? [ 72 ] The Company claims that the stream is dry in the summer and that there is no damage to the environment.

The pollution is therefore very minimal and not significant. [ 73 ] As author Halley has pointed out, [36] the law [TRANSLATION] “does not prohibit the discharge of all substances, only the fact of adding harmful substances to the environment. Generally, the definition of the harmful nature of a substance avoids giving an absurd meaning to the law without needing to employ the maxim minimis non curat lex ”.

[ 74 ] In Le procureur général c. 139452 Canada inc ., [37] the Court, referring to Ontario v. Canadian Pacific Ltd. , [38] concluded that the maxim [TRANSLATION] “ minimis non curat lex is now admissible in legal debates concerning contaminant spills when ‘only minimal or negligible danger to the environment is created’”. [ 75 ] As previously mentioned, the evidence adduced shows that there were traces of hydrocarbons in a number of places on the property. [ 76 ] The inspectors’ photographs and observations speak volumes. There was no unique, isolated spill.

The concentrations of hydrocarbons in the stream increased considerably from 2011 to 2012. [39] The fact that the stream dries up during the summer therefore cannot eliminate the harm to the environment. [ 77 ] The conclusions of the expert, Rivard, support these observations: [40] [TRANSLATION] Consequently, I find that, according to the aforementioned analysis results, the water sampled contains substances at concentrations that could be toxic or alter the quality of the environment and have an impact on aquatic plants and animals owing to their properties, and some at concentrations significantly exceeding the relevant quality criteria for surface water mentioned above in this opinion, and therefore those substances can be defined as contaminants.

I also find that, after examination of the analysis results, samples L016183-01 to L016183-03 and L019878-01 to L019878-03 contain substances that are hazardous materials, namely, mineral oils. Samples L016183-01 to L016183-03 and L019878-01 to L019878-03 were also found to contain other substances, that is, diesel fuel, giving them also at least one more of the properties of hazardous materials defined in

section 3 of the Regulation respecting hazardous materials (C.Q.L.R., c. Q-2, r. 32), since that substance meets the definition provided under subparagraph 3 of the paragraph titled “toxic material” in

section 3 . Consequently, it is my view that the substances found in samples L016183-01 to L016183-03 and L019878-01 to L019878-03 are hazardous materials and endanger health and the environment owing to their properties.

Moreover, my view is to the effect that the aforementioned hazardous materials do not show the characteristics of a manufactured product, but instead those of used or discarded materials, since the substances sampled are mixtures with no apparent precise specifications and/or they have been altered and are difficult to re-use without re-refining for the use for which they were initially intended.

These observations lead me to consider that the substances identified in samples L016183-01 to L016183-03 and L019878-01 to L019878-03 are residual hazardous materials. [ 78 ] Given the inspectors’ observations and the expert’s conclusions, the presence of the contaminants is neither minimal nor negligible with respect to the environment. [ 79 ] Therefore, the maxim minimis non curat lex does not apply. [ 80 ] The prosecutor has proven beyond a reasonable doubt that the Company emitted, deposited, discharged or released a hazardous material into the environment or allowed the emission, deposit, discharge or release therein.

FOR THESE REASONS, THE COURT: DECLARES the defendant guilty of the alleged offence. __________________________________ CHRISTINE LAFRANCE PRESIDING JUSTICE OF THE PEACE Mtre. Sophie Ouellette Prosecutor for the Crown Mtre. Denis Turcotte Counsel for the defendant

Dates of hearing: October 18 and 19, 2016