R. v. Bird Construction Group, 2014 NSPC 33

PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Bird Construction Group, 2014 NSPC 33 Date: 2014/03/13 Docket: 2513364; 2513361 Registry: Dartmouth Between: Her Majesty the Queen v.

Bird Construction Group and Silverbirch No. 15 Holdings Judge: The Honourable Judge Theodore Tax, Heard: March 13, 2014, in Dartmouth, Nova Scotia Decision March 13, 2014 Charge: HRM By-Law S-600 369(1) Counsel: Josh Judah, for the Crown Kate Marshall, for the Defence By the Court: INTRODUCTION [ 1 ] On March 23, 2012, Silverbirch No.15 Holdings Ltd. (hereafter referred to as “Silverbirch”) contracted with the Bird Construction Group (hereafter referred to as “Bird”) to demolish the Citadel Hotel which was located at 1960 Brunswick Street, Halifax, Nova Scotia.

In turn, Bird contracted with Verhagen Demolition Limited (hereafter referred to as “Verhagan”) to do the demolition work on the hotel and to handle the waste management by removing the material from the worksite in accordance with applicable regulations. [ 2 ] On May 31 st , 2012, a Compliance Officer of the Halifax Regional Municipality (hereafter “HRM”) was monitoring the demolition of the former hotel and noted that debris from the hotel was placed in a Verhagen truck.

On that date, at about 3:30 PM, the Compliance Officer followed the Verhagen truck as it left the worksite and then took the demolished material outside of the HRM. She recorded the incident by taking a series of photographs, which established that the Verhagen truck had left the HRM in contravention of

Section 16.3 of HRM By-law S-600 which regulates the collection and disposal of solid waste. [ 3 ] As a result of the incident on May 31 st , 2012, the HRM charged Silverbirch, Bird, Verhagen and Vector Demolition Inc. with a violation of

section 16.3 of HRM By-law S-600 and an offence pursuant to section 369(1) of the Halifax Regional Municipality Charter , c. 39, SNS, 2008. Silverbirch, Bird and Vector entered not guilty pleas while Verhagen pled guilty to the charge before the Court. [ 4 ] The trial proceeded on September 4, 2013 with oral submissions being made on November 8, 2013. During those submissions, the Crown Attorney invited the Court to dismiss the charge against Vector Demolition Inc. [ 5 ] The issue to determine is whether Silverbirch and/or Bird were guilty of an offence under section 369(1)(

b) or 369(1)(

c) of the HRM Charter by virtue of them either failing to do anything required by the by-law or by permitting something to be done in violation of the by-law. POSITION OF THE PARTIES: [ 6 ] It is the position of the Crown that, given the guilty plea of Verhagen, there is no doubt that Verhagen, as the subcontractor of Silverbirch and Bird, violated

section 16.3 of the HRM by-law S- 600 [the Solid Waste Resource Collection and Disposal By-law] by hauling solid waste material from the former Citadel Hotel site outside the HRM on May 31, 2012. [ 7 ] The Crown acknowledges that the contractual agreements made between Silverbirch and Bird and then between Bird and Verhagen contain clauses which require the subcontractor to carry out the work in accordance with all HRM By-laws and any demolition permits.

While the Crown Attorney concedes that Bird did some monitoring of Verhagen’s activities, given the fact that Verhagen contravened the by-law, he submits that neither Silverbirch nor Bird exercised due diligence in supervising or monitoring Verhagen’s

work. The Crown submits that Silverbirch and Bird “permitted” Verhagen’s violation of the By-law and therfore, they should be found guilty of the offence under s. 369(1)(

c) of the HRM Charter . [ 8 ] Defence Counsel who represents both Silverbirch and Bird submits that, although s. 16.3 of the HRM By-Law S- 600 was contravened by their subcontractor on one occasion on May 31 st , 2012, her clients exercised due diligence in their contractual relationships and monitoring activities of Verhagen. The Defence acknowledges that Silverbirch and Bird had a duty to oversee the actions of the Verhagen, but Counsel submits that her clients exercised due diligence.

It is the position of the Defence that this incident was a one time, unexplained violation of HRM By-law S-600 by Verhagen on May 31, 2012, and that her clients exercised all reasonable care in the circumstances. [ 9 ] Moreover, Defence Counsel submits that her clients entered into a contract with Verhagen because of its expertise in demolition work and that the presence of an on-site manager and the monitoring of receipt slips from Verhagen represent very significant active steps being taken by her clients to exercise due diligence.

In addition, Defence Counsel submits that since the offence in question was actually committed when Verhagen took the waste material outside the boundaries of the HRM, once the waste material left the worksite on May 31, 2012, there was very little that her clients could do to prevent the violation on that occasion. TRIAL EVIDENCE: [ 10 ] In this case, the parties were in agreement on the large majority of the background facts in this case. As a result, the parties indicated that they planned to file affidavit evidence which the Court could review to determine any outstanding factual issues.

At the outset of the trial, affidavits were filed by representatives of the HRM [Laurie Lewis and Shari Dillman], Vector Demolition Inc. [Paul Kelly] and Bird Construction Group [Fred D’Alessio and Mark Bezanson]. The parties also agreed that the affidavit evidence would essentially be the affiant’s evidence on direct examination. Since there remained some factual disputes, the Court ordered that all persons who had filed affidavits be subject to cross examination, in court, on their affidavit evidence. [ 11 ] As a result, the affidavit evidence of representatives of the HRM (Ms. Laurie Lewis and Ms.

Shari Dillman), the representatives of Bird (Mr. Mark Bezanson and Mr. Fred D’Alessio) and the representative of the Vector (Mr. Paul Kelly) were filed as exhibits in this case. The affiants were present in court and were cross examined on their affidavit evidence and any other relevant matters.

Therefore, the evidence before the Court was the statements of the witnesses as contained in their affidavit, any attached exhibits and their viva voce evidence tendered on cross examination by the other parties in this trial. [ 12 ] Since Verhagen had previously entered a plea of guilty to the contravention of By-law S- 600, they did not file any affidavit evidence and the parties before the Court indicated that no representative of Verhagen was subpoenaed to be a witness in order to provide viva voce testimony.

Counsel who represented both Vector and Verhagen did, however, ask questions on the cross examination of other witnesses. 1) Contractual Relationships between the Parties : [ 13 ] At all material times, Silverbirch was the registered owner of the building [the Citadel Hotel] and property located at 1960 Brunswick Street, Halifax, Nova Scotia. Silverbirch acquired that building and property with the intention that the Citadel Hotel would be demolished and a new hotel would be built on that property.

Silverbirch entered into a contract with Bird to demolish the Citadel Hotel and to construct the new building. [ 14 ] In the contract signed between Silverbirch and Bird Construction on March 23, 2012, Bird was required to demolish the existing building and remove all of the waste materials and debris from the property in a diligent and careful manner and in accordance with all of the bylaws, demolition permits and any applicable laws of the Halifax Regional Municipality [see

Article 4 of the “Demolition Agreement” between Silverbirch and Bird Construction]. [ 15 ] On March 23, 2012, Bird Construction entered into a Demolition Subcontract agreement with Verhagen Demolition Limited, and pursuant to

article 4 which outlined the Scope of Work, Verhagen was responsible for performing all of the demolition work required by the contract documents, plans and specifications as well as being responsible for the removal from the site of all rubbish and materials from the demolished buildings. Moreover, in

article 4.3 of the Demolition Subcontract, the parties agreed that Verhagen was to remove all materials and dispose of them as per LEED requirements with copies of all logs and records to be forwarded to Bird Construction on a regular basis in accordance with the LEED documentation requirements. [ 16 ] In addition, in

article 4.7 of the Demolition Subcontract Agreement, the subcontractor [Verhagen] was required to conform to all rules and regulations related to the demolition of buildings. Verhagen’s requirements to conform with all laws, rules and regulations within the jurisdiction was also stipulated in

article 21 of the General Conditions of the Demolition Subcontract. 2) Meeting of the Parties on February 24, 2012: [ 17 ] On January 19, 2012, Ms. Laurie Lewis, the Diversion Planning Coordinator with the HRM, received an “anonymous report” that Verhagen would be receiving the subcontract from Bird to demolish the Citadel Hotel and that debris from the hotel would be taken outside of the HRM rather than having that debris material processed at one of the HRM’s licensed sites. This “anonymous report” was a “concern” to Ms.

Lewis and as a result, she convened a meeting with representatives of the HRM, Bird, Silverbirch and Vector on behalf of Verhagen on February 24, 2012. Ms. Lewis stated that the purpose of the meeting was to outline the requirements of HRM By-law S- 600 to the parties involved in the demolition of the building and that conducting a meeting of that nature was part of her standard operating procedure [ 18 ] During the meeting on February 24, 2012, Ms. Lewis advised the parties of the requirements of

section 16.3 of HRM’s By-law S-600 and that all waste materials from the demolition of the hotel were required to be processed at a licensed Construction and Demolition Recycling facility within the HRM. Ms. Lewis requested a work plan for the demolition to indicate the total quantity of waste for processing and its destination. She also stated, during the meeting, that there had been a past violation of that by-law by Verhagen. All parties acknowledged responsibility for complying with the provisions of that By-law and indicated that all materials from the

demolition site would be processed in the HRM. [ 19 ] Mr. Mark Bezanson, who is a project manager with Bird, attended this meeting as the representative of Bird. Mr. Bezanson advised Ms. Lewis that Bird would comply with all required By-laws of the HRM. He also indicated, during the meeting, that Verhagen would be handling the demolition work at the site of the former Citadel Hotel. Mr. Paul Kelly of Vector Demolition Inc. attended this meeting on behalf of Verhagen, as no official from Verhagen was able to attend on that date.

Vector Demolition Inc. had been retained by Verhagen to apply for the demolition permit in the HRM and to provide other services to Verhagen in relation to the demolition of the former Citadel Hotel. Mr. Ian Smith attended the meeting as the representative of Silverbirch. [ 20 ] On March 23, 2012 Silverbirch entered into a Demolition Agreement with Bird. On that same date, Bird entered into a Demolition Subcontract with Verhagen. Demolition work commenced shortly thereafter. 3) Monitoring of the Demolition Work Site by HRM Officials : [ 21 ] Ms.

Shari Dillman, who is a Waste Resource Analyst and Diversion Compliance Officer with the HRM conducted site visits to observe the demolition work being done during the month of May, 2012. She attended the worksite and took photographs of the demolition work on 3 occasions - May 11 th , May 23 rd and May 31 st ,2012. Ms. Dillman confirmed that, on each of her site inspections at the former Citadel Hotel, she did not contact or communicate with anyone working at that location, nor did she communicate with any of the truck drivers who came or left from the property with debris material. [ 22 ] Ms.

Dillman also confirmed that, on those occasions when she monitored the demolition of the former Citadel Hotel, both before and after May 31 st , 2012, she did not observe any violations of HRM By-law S- 600 . 4) Verhagen’s Removal of Demolition Debris outside the HRM: [ 23 ] On May 31 st , 2012, Ms. Shari Dillman conducted a site inspection of the demolition work of the former Citadel Hotel which was being conducted by Verhagen. Around 2:30 PM that afternoon, she arrived at the worksite in her vehicle and parked in a location where she could observe the demolition work.

One of her co-workers arrived a few minutes later to also monitor the work. Ms. Dillman joined her co-worker and from that location, she observed and took photographs of the demolition work. At about 3 PM, she observed and photographed an excavator demolish part of the building and place the debris, which included roofing material and wood in a Verhagen truck. After the debris was loaded onto the truck, it moved to the corner of the yard and parked there for approximately 30 minutes. [ 24 ] At about 3:30 PM on May 31 st , 2012, Mr.

Dillman observed the truck which she had been monitoring, leave the worksite at 1960 Brunswick St., Halifax, Nova Scotia. She decided to follow the truck. Ms. Dillman stated that she followed the Verhagen truck for approximately 30 minutes until it went past the Enfield exit off Highway 102, which is the boundary of the HRM. Ms. Dillman took several photographs of the truck as she travelled north on Highway 102.

She confirmed that the Verhagen truck had gone several kilometers past the boundary of the HRM, when she stopped following that vehicle. 5) Bird’s Supervision and Monitoring of Verhagen’s Demolition Work: [ 25 ] The affidavit of Mr. Mark Bezanson, who was the Project Manager with Bird Construction for the demolition of the Citadel Hotel and the construction of the new building, confirmed that prior to May 31, 2012, there were no problems with Verhagen’s compliance with the terms of the Demolition Subcontract. Furthermore, Mr.

Bezanson also stated that after May 31, 2012, Bird Construction had no problems with Verhagen’s work or with their compliance with the terms of the Demolition Subcontract. [ 26 ] The affidavit of Mr. Fred D’Alessio, who was the Site Superintendent with Bird Construction and his evidence in court, confirmed that he was the lead person on the worksite responsible for monitoring the demolition and removal of waste material by Verhagen. Mr. D’Alessio confirmed that he is a civil engineer and that he has been a site superintendent with Bird Construction since 1996.

He explained that his responsibility was the coordination of work between the various trades and to ensure that the trades fulfilled the obligations of their contracts. [ 27 ] Mr. D’Alessio confirmed that he maintained a regular log of activities performed by Verhagen at the worksite and also prepared regular LEED Waste Trip Log Forms for Bird Construction indicating the number of loads and type of waste material removed from the site.

He also indicated that he regularly received and reviewed invoices from recycling facilities within the HRM which were provided by Verhagen to compare them with his Waste Trip Log Forms. [ 28 ] From time to time during the day, Mr. D’Alessio would complete a routine inspection of the worksite. On May 31 st , 2012, he indicated that at about 10:30 AM, he was doing a routine inspection of the site and noticed some wood materials had been dumped on the property. Mr. D’Alessio did not believe that those wood materials were from the Silverbirch worksite.

After a conversation with Darcy Verhagen, he understood that the wood materials were from another location, but had been dumped at the worksite because the Verhagen truck was having some mechanical problems. Those wood materials were removed from the worksite around 1:30 PM on May 31 st , 2012. [ 29 ] Mr. D’Alessio did not specifically see the load of waste material that was removed from the property around 3:30 PM on May 31 st , 2012 and followed by Ms. Dillman.

He explained that, during the demolition of the former hotel, on several days, there were as many as 30 to 40 truckloads of waste material being removed from the demolition work site. He also noted that some of those truckloads contained backfill which did not have to go to the HRM’s C and D recycling facilities. As a result, he stated that he tracked the truckloads leaving the worksite with the invoices provided “as best as we can.” [ 30 ] When shown the photographs taken by Ms. Dillman of the material being loaded into the Verhagen truck around 3 o’clock on May 31, 2012, Mr.

D’Alessio confirmed that the waste material being loaded into the truck was part of the roof that had covered the old

restaurant of the hotel. [31] Mr. Paul Kelly, the president of Vector Demolition Inc., who is a professional engineer, indicated that he had been retained byVerhagen to provide them with certain services and assist in obtaining the Demolition Permit. Mr. Kelly also indicated that his companyhad worked with Verhagen on at least 10 other demolition projects. He stated that Verhagen had extensive experience in demolition, andin his opinion, “they knew what they were doing.” 6.) Applicable Provisions of the HRM By-Law No. S-600 and HRM Charter: [32]

Section 16.3 of By-Law No. S- 600 – Solid Waste Collection and Disposal states: “No person shall export or remove solid waste material generated within the Municipality outside the boundaries of the Municipality andall such solid waste shall be disposed of within the boundaries of the Municipality and in accordance with this by-law.” [33]

Section 369 of the Halifax Regional Municipality Charter provides as follows: “369(1) A person who (

a) violates a provision of this Act or an order, regulation or by-law in force in accordance with this Act; (

b) fails to do anything required by an order, regulation or by-law in force in accordance with this Act; (

c) permits a thing to be done in violation of this Act or of an order, regulation or by law in force in accordance with this Act; (

d) obstructs or hinders any person in the performance of their duties under this Act or under any order, regulation or by law inaccordance with this Act; is guilty of an offence.” [34] In this case, I find that there was no suggestion nor was there any evidence that either Bird or Silverbirch actually transportedany solid waste materials from the former Citadel Hotel outside of the HRM boundaries. In those circumstances, I therefore find thatneither Bird nor Silverbirch themselves “failed to do anything required by a by-law” and as such, I find that neither one of them actuallycontravened section 369(1)(

b) of the HRM Charter as neither one of them actually failed to take the actions required by

section 16.3 ofBy-law S-600. [35] However, as both the Crown Attorney and Defence Counsel noted during their submissions, the key issue for the court todetermine is whether Bird and/or Silverbirch had “permitted” something to be done in violation of a By-Law S-600, and if so, whethereither one or both of them committed an offence contrary to section 369(1) (

c) of the HRM Charter. ANALYSIS: GENERAL PRINCIPLES - STRICT LIABILITY & DUE DILIGENCE DEFENCE: [36] Both counsel acknowledge that the charge before the Court is a strict liability offence.

As such, if the Crown has proved theactus reus beyond a reasonable doubt, then a prima facie case is established by the Crown, but it is open to the Defence to avoid liability,by proving on a balance of probabilities, that the accused had exercised due diligence. [37] The classic statement of the principles of law applicable to strict liability offences and the due diligence defence is found in theSupreme Court of Canada decision in the case of R. v. Sault Ste.

Marie (City), (SCC), [1978] 2 SCR 1299, whereJustice Dickson (as he then was) said at p. 1326: “Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act primafacie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involvesconsideration of what a reasonable man would have done in the circumstances.

The defence will be available if the accused reasonablybelieved in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid theparticular event. These offences may be properly called offences of strict liability.” (Emphasis is mine) [38] In R. v. Chapin, (SCC), [1979] 2 SCR 121, Mr. Justice Dickson provided some further clarification on the duediligence defence.

Dickson J. stated at p.134: “An accused may absolve himself on proof that he took all the care which a reasonable man might have been expected to take in all ofthe circumstances or, in other words that he was in no way negligent.” (Emphasis is mine) [39] More recently, in Lévis (Ville) v. Tétreault, 2006 SCC 12, the Supreme Court of Canada reaffirmed the need for an existenceof an intermediate category of strict liability offences which had been recognized by the Court in the Sault Ste. Marie case.

Theunanimous court held, at para. 15, that under the approach previously adopted by the Court, the accused, in fact, has both the opportunityto prove due diligence and the burden of doing so. An objective standard is applied under which the conduct of the accused is assessedagainst that of a reasonable person in similar circumstances. [40] Therefore, the issue of whether or not Silverbirch and/or Bird exercised due diligence will be determined by a factual analysis ofwhether they took all the care that a reasonable person would have taken in similar circumstances.

Put another way, did the actions orany lack of actions taken by Silverbirch and/or Bird “permit” Verhagen to violate the provisions of

section 16.3 of By-law S-600. DID THE ACCUSED “PERMIT” THE VIOLATION OF THE BY-LAW? [41] In Sault Ste. Marie, supra, the City had entered into an agreement with the company for the disposal of garbage. The companycollected and dumped garbage in a sanitary landfill, but the waste material ultimately flowed into a creek and the resulting pollutioncontravened a provision in the Ontario Water Resources Commission Act. Both the City and the contractor were charged with thatoffence. The contractor was found guilty. The issue in relation to the City was whether this was a strict liability offence and whether the

Crown was required to establish mens rea with respect to whether the City had caused or permitted the pollution. [ 42 ] In that factual context, which is similar to the facts before me, Dickson J. noted in Sault Ste.

Marie , supra , at page 1329: “The prohibited act would, in my opinion, be committed by those who undertake the collection and disposal of garbage, who are in a position to exercise continued control of the activity and prevent the pollution from occurring, but fail to do so….The “causing” aspect centers on the defendant’s active understanding of something which it is in a position to control and which results in pollution.

The “permitting” aspect of the offence centers on the defendant’s passive lack of interference or, in other words, its failure to prevent an occurrence which it ought to have foreseen ….” (Emphasis is mine) [ 43 ] The Court also stated in Sault Ste. Marie , supra , at page 1330, that liability does not rest solely on the terms of any agreement by which a defendant arranges for eventual disposal. The test is a factual one based on an assessment of the defendant’s position with respect to the activity which it undertakes and which causes the pollution.

The Court noted that if the defendant can and should control the activity at the point where the pollution occurs, then it is responsible for the pollution. Whether the defendant “causes” or “permits” the pollution will be a question of degree, depending on whether it was actively involved at the point where the pollution occurs, or whether it merely passively fails to prevent the pollution. [ 44 ] Finally, the Dickson J. stated, in Sault Ste. Marie , supra , at page 1331 that the municipality cannot slough off responsibility by contracting out the work.

It is in a position to control those whom it hires to carry out garbage disposal operations and to supervise the activity, either through the provisions of the contract or by municipal bylaws. The Court warned that “It fails to do so at its peril.” I find that these comments also have application in the case of a corporate defendant who has contracted to have work done by contractors under the terms of an agreement. [ 45 ] In addition, the Supreme Court of Canada, also made comments about the issue of due diligence in the case of an employer or a corporate defendant who is charged as a result of

an act committed by an employee who was acting in the course of employment. The Court stated, in Sault Ste.

Marie , supra , at page 1331: “The due diligence which must be established is that of the accused alone… The question will be whether the act took place without the accused’s direction or approval, thus negating wilful involvement of the accused, and whether the accused exercised all reasonable care by establishing a proper system to prevent commission of the offence and by taking reasonable steps to ensure the effective operation of the system.” (Emphasis is mine) [ 46 ] The term “permits” is not defined in either the HRM Charter or in By-law S-600 respecting “Solid Waste Resource Collection and Disposal” which was in effect on May 31 st , 2012. [ 47 ] The term “permits” has, however, been judicially considered in the case of R. v.

Millar , 1953 CarswellMan 4 (Man.C.A.) at para. 62 , where the court held, in the context of a municipal by-law that: “Permit” is defined as “not to hinder.” Webster defines the word as more negative than “allow”; that imports only acquiescence or an abstinence from prevention. It involves no intent. It is mere passivity, indifference, abstaining from preventative action.” [ 48 ] The Millar case was cited by the Court in Sault Ste. Marie to assist in interpreting the word “permit” which is frequently found in public welfare statutes.

It would appear that Dickson J. relied, in part, on the definition provided by the Court in Millar when he defined “permitting” in Sault Ste. Marie , supra , at page 1329, as the “defendant’s passive lack of interference or, in other words, it’s failure to prevent an occurrence which it ought to have foreseen” [ 49 ] After analyzing the facts and circumstances of this case, the relevant legal principles and considering the definition of “permits,” I find that the Crown has not established that either Silverbirch or Bird “permitted” something to be done in violation of

section 16.3 of By-law S-600. I have come to this conclusion based upon the following factual findings:

A) Silverbirch contracted with Bird for the demolition and removal of the debris from the former Citadel Hotel located at 1960 Brunswick Street, Halifax, Nova Scotia in a Demolition Agreement dated March 23, 2012. In

article 4.6(

p) of that Agreement, Bird committed to carry out all work pursuant to the agreement in accordance with HRM by-laws, demolition permits and any applicable laws. In

article 4.8 of that agreement, Bird committed to furnish Silverbirch with such evidence of compliance with the applicable laws as may be reasonably required at any time by Silverbirch. In addition, Bird committed that it would be responsible for ensuring similar compliance by its subcontractors.

B) On March 23, 2012, Bird entered into a Demolition Subcontract with Verhagen and pursuant to

article 4, which outlined the Scope of Work for that subcontract, Verhagen was required to perform all demolition work as outlined in the contract documents, the plans and specifications to the satisfaction of the contractor [Bird], the architect, the engineer, the owner, and all authorities having jurisdiction. Pursuant to

article 4.3, Verhagen was required to remove and dispose of all materials in accordance with LEED documentation requirements. In addition,

article 4.7 of that subcontract required Verhagen to conform with all rules and regulations related to the demolition of buildings.

C) After reviewing the contractual agreements in place between the parties, I have no doubt that Silverbirch and Bird clearly stated their expectations relating to Verhagen’s performance of the Demolition Agreement. Furthermore, it was very clear from the Demolition Agreements in place between the parties that Verhagen and its employees would be exclusively responsible for the performance of the demolition work at the former Citadel Hotel and the removal of the debris in accordance with the by-law. The agreements also make it clear that Silverbirch and Bird would be monitoring and supervising Verhagen’s activities through the provisions of the contract.

D) Based upon the evidence of Mr. Mark Bezanson and Mr. Fred D’Alessio, I find that Bird actively monitored the demolition of the former Citadel Hotel by Verhagen on a daily basis. This finding is not only supported by the Daily Progress Report prepared by Mr. D’Alessio, but also Bird’s LEED Waste Trip Log Forms and invoices provided to Bird by Verhagen from the 2 licensed Construction and Demolition recycling facilities within the HRM. Those documents and invoices were reviewed on a regular basis by Mr. D’Alessio,

who was located at the former Citadel Hotel worksite as the on-site superintendent for Bird to observe and monitor the demolition of the building and the removal of the debris.

E) I have no doubt that Bird contracted with Verhagen, because that company was known to be very experienced in the demolition of buildings and the appropriate removal of the debris. In addition, I find that the evidence of Mr. Paul Kelly of Vector Demolition Inc. supported this finding. Mr. Kelly’s evidence established that he had worked closely with Verhagen on a number of occasions and he noted that Verhagen had extensive experience in demolition projects. Mr.

Kelly’s evidence also confirmed that he did not have any previous problems with Verhagen because they “knew what they were doing.” In these circumstances, I find that both Silverbirch and Bird contracted with an independent subcontractor who was known to have the necessary resources and appropriate experience to handle a demolition project of this magnitude.

F) Mr. D’Alessio’s evidence established that there were as many as 30 to 40 truckloads of waste material being removed from the worksite on a daily basis. The evidence of representatives of the HRM established that they had been monitoring the activities of Verhagen during the month of May, 2012 at the site of the former Citadel Hotel. Their evidence established that there was only one alleged violation of the applicable by-law which occurred on May 31 st , 2012 shortly after 3:30 PM

G) I find that the evidence established that, on May 31 st , 2012 at about 3:30 PM, a Verhagen truck left the former Citadel Hotel worksite and proceeded beyond the boundaries of the HRM without properly disposing of the waste materials within the HRM, as required by HRM By-Law S-600 . Although the evidence did establish that Verhagen violated the HRM By-Law, I find that no representative of Silverbirch or Bird had any prior knowledge nor could they reasonably foresee that that Verhagen truck would be leaving the HRM on that one occasion.

H) Moreover, I find that neither Silverbirch nor Bird actually “permitted” Verhagen’s violation of the by-law on May 31, 2012, as there is no evidence that any representative of Verhagen approached them to seek permission for that truck to leave the HRM. However, Mr. D’Alessio did receive some information, after the fact, that one of Verhagen’s trucks at the former Citadel Hotel worksite had some hoist problems.

In these circumstances, I find that it is reasonable to infer that the Verhagen truck which left the worksite on May 31, 2012, at about 3:30 PM, was the one which had the mechanical difficulties and that the truck driver made the decision to leave the HRM in order to obtain the necessary repairs, either on his own initiative or after consultation with one of the managers of Verhagen. DID SILVERBIRCH AND/OR BIRD EXERCISE “DUE DILIGENCE”? [ 50 ] As I have previously indicated, the facts do not support a finding that either Silverbirch or Bird themselves actually failed to do anything required by

section 16.3 of HRM’s By-law S-600 dealing with solid waste collection and disposal. While Verhagen has admitted that they contravened the By-Law on May 31 st , 2012, I have also found that neither one of the defendants “permitted” Verhagen to violate the by-law so as to be found guilty of the offence contrary to section 369(1)(

c) of the HRM Charter . [ 51 ] Having reached the conclusion that neither Silverbirch nor Bird “permitted” Verhagen to violate the By-Law in question, the only issue that remains is whether I am satisfied, on a balance of probabilities, that either one or both of them, on the evidence, exercised “due diligence.” [ 52 ] In terms of this analysis, as the Supreme Court of Canada said in Sault Ste. Marie , the Court is required to apply an objective standard by which the conduct of the accused corporations is assessed against that of a reasonable person in similar circumstances.

Put another way, the Court is required to assess whether the defendants took all the care which a reasonable person might have been expected to take in all the circumstances to avoid the particular event [the prohibited act]. [ 53 ] Applying that standard in this case, I find that Silverbirch and Bird put in place contractual terms which legally obligated Verhagen, as the subcontractor performing the demolition of the former hotel and the removal of the debris, to comply with all applicable laws, regulations and by-laws of the HRM.

By placing these requirements in the Demolition Agreement with Verhagen, I find that the defendants certainly acted as a reasonable person or corporation would act in similar circumstances. [ 54 ] However, it would appear from the comments of the Court in Sault Ste.

Marie , supra , at page 1329 that an individual person, corporation or municipality cannot simply contract out of the requirements of the by-law without supervising or monitoring the activities of the subcontractor to prevent an occurrence “which it ought to have foreseen.” On the other hand, I find that the Supreme Court of Canada, in making the statement, did not intend to make the defendant whether he or she be an individual person, a corporation, a municipality or a government an insurer for the subcontractor’s acts or lack of action. [ 55 ] In this case, I find that Silverbirch and Bird, through their contracts, had a system in place which allowed them to monitor and supervise the activities of Verhagen.

As I have indicated previously, the defendants did not sit back passively, nor were they indifferent to the actions of Verhagen. In fact, the defendants had a site superintendent (Mr. D’Alessio) located at the worksite, who monitored the activities of Verhagen on a daily basis and completed a Waste Trip Log Form to note what material was removed and which of the dump sites in the HRM were to be utilized by the Verhagen truck.

I find that the site superintendent noted any concerns in his daily log, and when he saw something out of place as he did on the morning of May 31, 2012, he took immediate steps to ensure that the issue was addressed. [ 56 ] Given the contractual arrangements in place and given the active monitoring of the activities of Verhagen, I find that Silverbirch and Bird exercised all reasonable care that a reasonable person would take in similar circumstances.

I find that Silverbirch and Bird established a reasonable system to prevent the commission of the offence and that they took all reasonable steps to ensure the effective operation of their system. Prior to or after May 31 st , 2012, neither Silverbirch nor Bird had any indication that Verhagen was not complying with bylaw S-600.

Furthermore, the Crown has not presented any evidence that, prior to May 31 st , 2012, the system of monitoring and supervision utilized by Silverbirch and Bird was not working. [ 57 ] In the final analysis, I find that Silverbirch and Bird took all reasonable steps to prevent the prohibited act which was committed by Verhagen. Given the fact that this offence only occurred well after the Verhagen truck left the worksite at the former Citadel Hotel on

Brunswick Street in, Halifax, Nova Scotia, and traveled several kilometers to go outside of the HRM boundaries, I find that it was not reasonable for the defendants to more closely supervise or monitor the activities of Verhagen. [ 58 ] In this case, the only way that the defendants could effectively ensure that Verhagen always dumped the materials in a accordance with the by-law, would be to have an individual from either Silverbirch or Bird accompany every single truck that was driven off the worksite.

To do so would, in my view, not be reasonable as it would, for all intents and purposes, defeat the purpose of engaging a subcontractor to perform the services.

In my view, the objective standard which has been developed by the Supreme Court of Canada was designed to prevent occurrences which the defendants ought reasonably to have foreseen, but does not elevate the defendant’s responsibility to taking all actions necessary to insure that the prohibited act could never occur in any circumstances. [ 59 ] Looking at all of the facts and circumstances in this case, I have found that neither Silverbirch nor Bird did, in fact, “permit” the violation of HRM By-Law S-600 on May 31 st , 2012.

In addition, I have also found that Silverbirch and Bird have established that they did, in fact, exercise “due diligence” and that they were not passively indifferent to the actions of Verhagen. In the final analysis, I conclude that the violation of

section 16.3 of HRM By-Law S- 600 by Verhagen on May 31 st , 2012 was the result of a largely unexplained, one-time event that could not reasonably have been foreseen by either one of the defendants in this case. [ 60 ] Having considered all the circumstances this case, I find that Silverbirch and Bird took all the reasonable steps that a reasonable person or corporation would have done in similar circumstances to avoid the prohibited act. As a result, I find both Silverbirch and Bird not guilty of the charge of violating

section 16.3 of the HRM By-Law S-600 , pursuant to section 369(1) of the HRM Charter . Theodore K. Tax, JPC