Her Majesty the Queen - v. –, 2015 SKPC 018

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 018 Date: February 5, 2015 Information: 24153718, 24153718 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and – EnviroGun Ltd. - and – Clint A. Kimery Appearing: Peter Hryhorchuk, Esq For the Crown David MacKay , Esq. For the Accused JUDGMENT B. D. HENNING , J CASE HISTORY AND BACKGROUND

[1] The corporate and personal accused persons in this case are charged with the identical offence that: “between the 31st of March 2011 and 9th of October 2012, at Regina they did fail to comply with an Order of the Minister pursuant to The Environmental Management and Protection Act, 2002 or the Regulations, to wit: an Environmental Protection Order issued the 11th day of January 2011and thereby commit an offence contrary to subsection 74(1)(

c) of The Environmental Management and Protection Act, 2002,

Chapter E-10, Statutes of Saskatchewan, 2002 (hereafter referred to as ‘EMPA’).” The penalty, if convicted, on

summary conviction is a fine notexceeding $1,000,000.00, imprisonment not exceeding three years or to both that fine and imprisonment. In addition, section 74(4) of theEMPA provides that the Court may make a wide range of orders against a person convicted requiring such person to, inter alia, makeremediation of conditions, cease and/or prohibit certain acts, ordering specific acts to be done, and payment of money in compensation ofacts taken by the Minister.

Relevant sections of the EMPA and Regulations thereunder are attached as Appendix 1A and Appendix 1B,respectively, to this judgment. [2] This case has had a complex history. The Environmental Protection Order (hereafter referred to as ‘EPO’) issued January11, 2011 had been the subject of an appeal to the Court of Queen’s Bench challenging its validity. That appeal was limited to a questionof law and did not include consideration of the many factual issues relating to the issue of the EPO.

In the decision of McMurtry J.upholding the EPO, cited as EnviroGun Ltd. v Saskatchewan (Environment), 2011 SKQB 339 , certain facts were given whichare not in dispute in this proceeding. The judgment of McMurtry J. is attached as Appendix 2 to this judgment. Some relevant portionsare as follows: [1] The appellant EnviroGun Ltd., operated a hazardous waste transfer station on property located in the Rural Municipality ofSherwood (“the RM”) from 1996 to 2010.

The business of EnviroGun Ltd. was to collect, contain, store and treat hazardous wastesincluding used oil, used anti-freeze, and autobody wastes. [2] On January 11, 2011, the Minister of the Environment (“the Minister”) issued an Environmental Protection Order (“EPO”)to EnviroGun Ltd. and its sole director, Clint Kimery (“the appellants”), pursuant to s. 47 of The Environmental Management andProtection Act, 2002, S. S. 2002, c. E-10.21, as am. (“the E.M.P.A.”). The EPO stated, in part: WHEREAS the Minister is of the opinion that Clint Kimery and EnviroGun Ltd.: 1.

Has (sic) done, or is (sic) doing anything or carrying out any activity and specifically the improper storage of hazardoussubstances and waste dangerous goods at the EnviroGun Ltd. facility that may cause, is causing, or has caused an adverse effect asdefined in The Environmental Management and Protection Act, 2002; and 2. Are a person (sic) responsible for a discharge as set out in

section 2(

w) of The Environmental Management and Protection Act,2002. [3] As a result of these findings, the Minister gave a number of directions to the appellants which were ordered to be completedby March 31, 2011. APPEAL [4] The appellants have appealed the whole of the EPO under s. 54 of the E.M.P.A. They claim principally that they wereentitled to be forewarned of the Minister’s concerns before the EPO was issued, as provided in s. 49(2) of the E.M.P.A.

Theyacknowledge receiving a Notice of Intent to Issue an Environmental Protection Order (“Notice of Intent”) on October 21, 2010,however, they assert it contained only some of the Minister’s concerns. Consequently, they say they were not given an adequateopportunity to meet those concerns and avoid the EPO. [5] The appellants also take issue with the timing of the EPO, arguing that it was made when they were no longer in control ofthe property that had been the site of the hazardous waste transfer station (“the property”).

In August, 2009, the RM foreclosed on theproperty because of the appellants’ failure to pay property taxes. On February 17, 2010, the RM took possession of the property. As aresult, the appellants claim they were forced to vacate and discontinue their business. Without access to the property, or resources fromthe business to pay for the measures demanded by the Minister, the appellants claim they could not comply with the EPO. [6] Finally, the appellants assert that they are not aware of any “discharge” within the meaning of the E.M.P.A. occurring on theproperty.

If there has been a discharge, it occurred after they had vacated the property and is, therefore, solely the responsibility of theRM. [3] McMurtry J. concluded that the EPO was validly issued by the Minister, and the scope of the appeal could not deal withcollateral issues relating to the merits of the Minister’s exercise of discretion that resulted in the making of the EPO. No errors of lawwere found with respect to the issue of the EPO which was based upon the foregoing facts.

[4] This proceeding results from an alleged failure to comply with the order. Mr. Kimery and the corporation at the outsetendeavoured to conduct a defence based upon the merits of the Minister’s discretion and the fairness of the making of the EPO. Asecond issue raised was the question of whether this proceeding required the Crown to prove full mens rea of the offence, or whether theoffence was one of strict liability.

A ruling on these issues was made by this Court which is Appendix 3, attached. [5] In the attached ruling, at paragraph 13, this Court concluded the regulatory scheme contained in the EMPA permitted aperson subject of an order to make representations to the Minister prior to the issue of the EPO, and request a hearing, although there wasno statutory right to a hearing. This was not done by the parties charged here. A subsequent wish by an appellant to turn an appeal onthe law, or the present trial of the failure to comply with the EPO, into a consideration of the merits of the Ministerial order, is notpermitted.

This is also referred to as consideration of collateral facts behind the making of the EPO. This Court also concluded atparagraph 16 in the Ruling, at Appendix 3, that this prosecution is one to which strict liability applies. [6] The effect is that the Crown does not have to prove full mens rea on the part of the persons charged, but only a failure to dothe acts required, which may be defended by the persons charged demonstrating due diligence, which is not permitted with offences ofstrict liability. This standard was established in the case of City of Sault Ste.

Marie v Her Majesty The Queen, (SCC),[1978] 2 SCR 1299, which was an environmental case under Ontario provincial legislation. Dickson J. at page 1325 concluded: The correct approach, in my opinion, is to relieve the Crown of the burden of proving mens rea, having regard to Pierce Fisheries and tothe virtual impossibility in most regulatory cases of proving wrongful intention. In a normal case, the accused alone will have knowledgeof what he has done to avoid the breach and it is not improper to expect him to come forward with the evidence of due diligence.

This isparticularly so when it is alleged, for example, that pollution was caused by the activities of a large and complex corporation. Equally,there is nothing wrong with rejecting absolute liability and admitting the defence of reasonable care. In this doctrine it is not up to the prosecution to prove negligence. Instead, it is open to the defendant to prove that all due care has beentaken. This burden falls upon the defendant as he is the only one who will generally have the means of proof. This would not seem unfairas the alternative is absolute liability which denies an accused any defence whatsoever.

While the prosecution must prove beyond areasonable doubt that the defendant committed the prohibited act, the defendant must only establish on the balance of probabilities thathe has a defence of reasonable care. I conclude, for the reasons which I have sought to express, that there are compelling grounds for the recognition of three categories ofoffences rather than the traditional two: 1.

Offences in which mens rea, consisting of some positive state of mind such as intent, knowledge, or recklessness, must be proved bythe prosecution either as an inference from the nature of the act committed, or by additional evidence. [Page 1326] 2. 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 properly be called offences of strict liability. Mr. Justice Estey so referred to them in Hickey’s case. 3. Offences of absolute liability where it is not open to the accused to exculpate himself by showing that he was free of fault. Offences which are criminal in the true sense fall in the first category. Public welfare offences would prima facie be in the secondcategory.

They are not subject to the presumption of full mens rea. An offence of this type would fall in the first category only if suchwords as “wilfully,” “with intent,” “knowingly,” or “intentionally” are contained in the statutory provision creating the offence. On theother hand, the principle that punishment should in general not be inflicted on those without fault applies. Offences of absolute liabilitywould be those in respect of which the Legislature had made it clear that guilt would follow proof merely of the proscribed act.

Theoverall regulatory pattern adopted by the Legislature, the subject matter of the legislation, the importance of the penalty, and theprecision of the language used will be primary considerations in determining whether the offence falls into the third category. [7] The standard of strict liability was also referenced in the case of Reference Re BC Motor Vehicle Act, (SCC),[1985] 2 SCR 486. It was concluded by the Supreme Court that

section 7 rights {The Canadian Charter of Rights and Freedoms,section7: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordancewith the principles of fundamental justice.} were inconsistent with absolute liability offences carrying mandatory imprisonment as apenalty. The Defendant in that case had argued that the impugned legislation did not permit a defence such as was outlined in City ofSault Ste. Marie v Her Majesty The Queen, supra (strict liability).

However, strict liability has been applied where the imposition ofserious penalties is possible since the case of Reference Re BC Motor Vehicle Act, supra, and are not considered to infringe

section 7Charter rights. This is in contrast to absolute liability. [8] Accordingly the trial of this matter proceeded on July 18, 2013, March 5, March 6, and 26, 2014, and June 4, 2014 on thebasis that it concerned an offence to which strict liability applied, and the issue was one of compliance with the EPO, and not the

reasonableness of making such an order. EVIDENCE AT TRIAL [ 9 ] The Crown evidence commenced with Mr. Alvin Yuen, who was employed by the Province of Saskatchewan as a ‘Senior Environmental Assessment Officer’. He indicated that he had dealt with Mr. Kimery and the company for twenty years. He inspected facilities, particularly ‘waste transfer facilities’ such as was operated in this case. Mr. Yuen indicated that the RM had obtained title by July 20, 2010, and that he had been to the site in September 2010.

He knew that the site had been in operation since 1996, and had inspected it annually or more often since that time. The site collected used oil and disposed of it to other hazardous waste recyclers. He was required to file reports of these inspections. Mr. Yuen did not know the date on which the operations at the business site ceased. [ 10 ] The business premises were located in the Rural Municipality of Sherwood (hereafter ‘the RM’) accessed from Pinkie Road east of Regina. He indicated that he had issued a ‘Notice of Intent’ to issue an EPO with a request for information.

He stated there were 30 days in which to comply and there was no response, so an EPO was issued. The EPO and covering letter were exhibited as P-1 and P- 2 respectively. He, and the Department of the Environment for which he worked, were aware that the land was owned by the RM due to tax arrears. He identified a 2008 inspection report which identified a number of issues with storage of substances, and asked for correction of issues. He stated that he had last inspected the business premises in 2009, possibly on December 17 th .

A self-inking carbon copy of a report of that date was produced by the Defence at cross-examination and marked Exhibit D-2. It identified a number of deficiencies and also stated that the site was under snow cover at the time of inspection, from which it may be inferred that not everything on the ground could have been observed. [ 11 ] Exhibit P-1 required the two accused persons to stop impairment of the environment by ordering six specific actions, identifying a number of non-compliances with their operating approval. The specific directed actions are as follows: 1.

By March 31, 2011, characterize all substances stored at the EnviroGun Ltd. facility; 2. By March 31, 2011, complete a National Classification System for Contaminated Site assessment for the EnviroGun Ltd. facility; 3. By March 31, 2011, remove all hazardous substances and waste dangerous good materials at the EnviroGun Ltd. facility in accordance with all provincial and federal legislation; 4. By March 31, 2011, carry out a Phase II site assessment acceptable to the Saskatchewan Ministry of Environment (Ministry) at the EnviroGun Ltd. facility; 5.

By March 31, 2011, provide the Ministry of Environment with a Corrective Action Plan or Risk Management Plan acceptable to the Ministry as described in the “Risk-Based Corrective Action for Petroleum Hydrocarbon Impacted Sites, 2009” for the EnviroGun Ltd. facility; and 6. Clint Kimery and EnviroGun Ltd. must comply with the terms and conditions of the Corrective Action Plan and Risk Management Plan. [ 12 ] Mr. Yuen stated that there were tanks for used oil. One tank was not registered. The Regulations under EMPA state in detail the nature of storage tanks that must be maintained for various hazardous materials.

He characterized the maintenance of the facility as “fair”, with some issues that needed remediation. It is difficult to state exactly what Mr. Yuen meant by this, but I conclude that the site when he saw it in operation, was not so deficient as to trigger action under EMPA. [ 13 ] Mr. Yuen stated that EnviroGun made a proposal for improvements and remediation in 2009, and that he had visited the site again in 2010. The RM had done little, and there were various containers on the site with drums of oil, and oil contained in larger tanks. There were also mixed materials in various containers.

Tanks were not labelled as required by the Regulations . Mr. Yuen said that the company was required to file annual reports. He had a report from 2008, but he stated the inventory part was incomplete. [ 14 ] Mr. Yuen went on to say that the Notice and EPO were the first that he had ever drafted. He indicated that a letter had been sent by the Ministry concerning security on the site, but no order was ever made against the RM who had by this time taken title and possession of a non-compliant waste management site.

The EPO against the parties to this proceeding was issued January 11, 2011. [ 15 ] In cross-examination, the Defence attempted to establish by inspection reports and/or the recollection of Mr. Yuen the state of the site at the time it ceased operations under the control of the persons charged in this case. Mr. Yuen’s testimony provides no definitive evidence to that effect, but his evidence and reports state that there were various aspects of the operation that failed to meet the standards for a waste management site as required in the EMPA and the Regulations thereunder.

However, it is apparent, that although there are provisions to take action for non-compliance and force compliance, no actions were taken with respect to this site prior to the cessation of operations by the persons charged. [ 16 ] The Defence continued with extensive questioning on the state of the site and remediation required. Mr. Yuen was aware of some communications with the RM, and he effectively adopted the contents of his affidavit of May 12, 2011 (Exhibit D-1), prepared with respect to the Queen’s Bench appeal that was exhibited as D-1.

He sets out in that affidavit that the property had been transferred to the RM on or about August 27, 2009, but the Ministry had not become aware of that until correspondence dated July 20, 2010 (Exhibit D-7) was received from the RM. He referred also to a letter from the RM in which they stated they had received an estimate in excess of $700,000.00 for remediation of the site. The RM enquired whether the Ministry could provide any assistance to carry out such remediation, and were advised that they could not.

He also described a site inspection on September 14, 2010 when numerous hazardous and unsafe storage practices were observed.

[ 17 ] At paragraph 16 of his affidavit (Exhibit D-1), Mr. Yuen stated he “issued Enviro-Gun’s most recent Approval to Operate an Industrial Effluent Works on May 30, 2008, to expire May 31, 2010. Attached as Exhibit “E” to this my Affidavit is a true copy of the Approval as well as my covering letter which requested the company review and provide the Ministry with a reclamation and decommissioning plan with proposed future cost estimates.” Mr.

Yuen in his affidavit further stated he inspected the site on May 6, 2008 and attended also on December 17, 2008 finding continuing issues with the method of storage and handling of materials that required improvements which were not carried out. Mr. Yuen in his affidavit went on to outline the decommissioning process for a site that was required under EMPA

section 17, set out in Appendix 1A. Mr. Yuen accepted that Exhibit D-2 as an inspection report from December 17, 2008 that he completed detailing a number of specific shortcomings with containers and materials. This is consistent with his testimony in court where he said compliance was only “fair” and went on to list various deficiencies. [ 18 ] The next Crown witness was Mr. Mark Dietz who provided as Exhibits P-3 and P-4 the corporation documents relating to EnviroGun Ltd. and Mr. Kimery’s involvement with the company. This was never an issue in the trial.

He also took a book of 39 photographs at the business site on October 9, 2012 which were contained in Exhibit P-5. He described the site and the depictions in specific photographs. [ 19 ] The next witness was Mr. Ronald Hilton who had been employed with the RM for three years ending in January 2012. He was familiar with the operation and Mr. Kimery. He stated that the RM changed the locks with respect to the site, and had stored some equipment at the site.

He was unaware if the Accused or their employees ever requested access to the site, but he stated he and the RM would have allowed access for the purpose of clean-up. He stated the RM had no intention of operating this site, and that it was sold to two persons. He stated that the RM had not removed anything from the site. [ 20 ] Mr. Hilton also testified with respect to a tax dispute that Mr. Kimery and EnviroGun Ltd. had with the RM.

RM Council Meeting Minutes of April 5, 2009 and a Resolution 180/11 passed by the Council were exhibited as D-8 and D-9 respectively which concerned the sale of the property to two persons. He also said that he told the purchasers that the Ministry was trying to get the former owner to clean up the site. [ 21 ] The next witness was Mr. Gerald Wudrich who stated he worked for the Ministry of the Environment as the Manager of Coal and Southern Operations. He said that he dealt with many facilities, mainly in the south part of the province. He was never contacted by Mr. Kimery or anyone on behalf of the corporation.

He went over the requirements in the EPO listed in paragraph 11 above. He explained some of the requirements, stating that a risk assessment had to be done by specialized and qualified engineers, and that such persons were available to his knowledge in Saskatchewan. He said he had been to the site on September 14, 2010, June 28, 2011 with other persons, and October 9, 2012. He observed no changes at the site during these visits. [ 22 ] On cross-examination, Mr. Wudrich indicated some changes had occurred, namely, some “products” had been sold and one tank containing oil had been disposed of.

He stated that he had signed the EPO pursuant to legislatively delegated authority. This later became an issue in a non-suit in a Ruling attached as Appendix 4. The court concluded that Mr. Wudrich did fall within the category of persons who could exercise delegated Ministerial Authority, and the non-suit was not granted. He elaborated upon the process of providing Notice prior to the issue of the EPO, and the requirements contained in the EPO.

At one point he was excused, but then recalled, to file a document that outlined delegated Ministerial authority in Saskatchewan, which became Exhibit P-7. [ 23 ] The final Crown witness was Mr. Robert Yaworski, one of two purchasers of the property. He described how a business partner of his had identified the property as available and had convinced him to purchase it as a joint investment. He was taken through the photographs, Exhibit P-5. He stated that they had rented it to a small ‘body-shop’ operation, and snow removal business. He had five tanks removed that contained oil, solvent or anti-freeze.

Another large tank was sold by his partner. He stated he had made no other changes. He was never approached by the Accused persons to do anything. [ 24 ] Mr. Yaworski stated that they paid $111,000.00 for the property, “as is”, but that he did not know of environmental issues at the time of purchase, although his partner who had completed the deal might have. His partner had handled the details of the purchase and had secured a rebate of taxes from the RM for a limited period of time.

He stated they did not have an undertaking from the RM that they would not be responsible for clean up, but he asserted that they had not accepted liability for it either. [ 25 ] The Defence evidence began with Mr. Gary Roy Miller who was a former Reeve of the RM. He was familiar with a tax issue between the persons charged and the RM. There had been an over-assessment by the assessing agency, and the company had overpaid taxes for a significant period of time, but this over-assessment had only come to light after the appeal period for the assessment had passed.

This situation and the question of giving some consideration to the company had been discussed with the RM administrator and council members. Mr. Miller had supported this, but others felt it would be a poor precedent to set, and the RM solicitor was consulted. In the end, the matter was never referred to council and no relief of overpayment was allowed. [ 26 ] On cross-examination, Mr. Miller was not sure of the amount of money involved in the over-assessment, but he said it was “maybe $100,000.00”. This is not a figure that is in any way clear or reliable. The details of the over-assessment were never provided.

I accept his evidence to the effect that some over-assessment was made with consequently higher taxes, for some unknown period of time, comprising an unknown total of money. It is possible that a close examination of tax and assessment records would have provided more exact information. [ 27 ] The next Defence witness was Mr. Garnet Cedar. He is the joint owner of the property with Mr. Robert Yaworski who had testified earlier. He gave more details of the purchase. It was sold by sealed bids, and hence the unusual sale price.

He stated that he and his partner bought the land with attachments, but not with the liability for contamination. He described the property and stated that there were “barrels strewn all over”. He stated to know that Mr. Kimery tried to sell some things by auction, presumably after title had long passed to the RM as he had no involvement at earlier stages. He also indicated he was in dispute with his partner, Mr. Yaworski. He confirmed that he had arranged the removal of some barrels, and “presumed” they had done the proper paperwork to do this.

His evidence adds little other than confirming that persons had access to the site and removed various materials in barrels or tanks. [ 28 ] The final witness was Mr. Clint Kimery. He confirmed that he was the sole owner and president of EnviroGun Ltd., which

was no longer in business. He began his evidence with a long explanation of the tax dispute with the RM which had begun in 2005-2006. He had withheld payment of taxes in this dispute, and was fully aware of the actions being taken by the RM for enforcement. His evidence focused on the equity of his dispute, and was vague and general on the details of tax enforcement by the RM. He was aware of the April 2009 resolution by the RM council to proceed with taking the property, but he continued with the operation of the company site.

He stated he felt there might still be some resolution of the issues, although he did not provide any reasons for believing this. [ 29 ] Mr. Kimery stated that even after title issued to the RM, he was continuing the operation. He indicated that title was taken in August 2009, and that when Mr. Yuen made his inspection on December 17, 2009, the operation was continuing. He had three employees at the time. He described the business in some detail. Mr.

Kimery’s solicitor had written to the RM on December 7, 2009 (Exhibit D-19), asserting that everything was satisfactory at the site at the time of the RM took possession, and further, that his client had no access to the site following that time. This was followed by a letter from the counsel for the Ministry dated December 10, 2009, taking issue with certain facts stated in Exhibit D-19, and stating access to the site to deal with obligations would be granted by the RM. The letter further stated that the EPO would be issued shortly. [ 30 ] Mr.

Kimery stated that he received another letter from the RM’s solicitor dated January 11, 2010 with a Notice to Vacate the property by January 30, 2010, and this letter became Exhibit D-17. He indicated he was shocked by this, but he knew in fact that he ceased to have title to the property on August 27, 2009. It is of note that the date of the EPO was January 11, 2010 as well. At one point he stated in evidence that he had been “strung along”, and it is apparent that he did not take the actions of the RM as serious and final before receiving D-17.

He had also stated he removed movable equipment some two weeks before the deadline to vacate. I conclude that he did not quit the premises until about that time. The letter referred to above as Exhibit D-19 from Mr. Kimery’s solicitor states that the RM took possession on February 17, 2010, but in fact the exact date was not given in evidence. [ 31 ] Mr. Kimery described some steps he took to remove equipment and material from the premises, but stated that in winter it was impossible to do certain things in cold temperatures, and he had no ability to do some close down procedures.

He stated that even at that point he thought he might get back into business again at that site. However, he did close down and lay off employees. He knew his authority to continue would end as set out in paragraphs 16 and 17 above, and he did leave the property before the deadline date of January 30, 2010. [ 32 ] After Mr. Kimery ceased his business operations and removed some materials, he stated he continued to have concerns regarding the site management. He said that he went out in August 2010 and noted that gates were open. The site appeared to be abandoned. There had been rain that left standing water.

He explained that water in certain areas would cause contaminants to be spread from large “pads” in which containers were situated, and it would also corrode containers and cause leakage. The “tank farm” had a cement floor and retaining wall, but water was in those tanks. He sent a letter to the RM, Exhibit D-18, after seeing these things and warning of maintenance that was needed to manage the site. He stated that he received no reply to this letter.

He considered that the RM had aggravated the situation that he had left, and made reference to the $700,000.00 cost of remediation that was suggested by the RM. [ 33 ] Mr. Kimery acknowledged that he had received the October 21, 2010 Notice of Intent from the Ministry of the Environment. He stated he was confused and could make no sense of references to improper storage, as there was nothing of that sort when he left the property. He again stated that he thought he would get back onto the site. He disputed the inadequacy of labeling. Mr.

Kimery admitted he received Exhibit D-4, and that he had 30 days in which to reply to the Notice (of intent to issue an EPO). Mr. Kimery stated that he did not know what this Notice meant. He again reiterated that when the RM took over everything was “satisfactory”. [ 34 ] Mr. Kimery referred the matter to his solicitor who sent a letter, Exhibit D-19, referred to above, which was setting out a position much as Mr. Kimery stated in his evidence described in the preceding paragraph.

This was replied to by the Ministry’s solicitor, Exhibit D-20, also referred to previously, confirming that the EPO would be issued shortly and that Mr. Kimery did have obligations with respect to the site in question. [ 35 ] Mr. Kimery then went through the requirements of the EPO which are set out in paragraph 10 above. With respect to item 1, he stated that had been complied with by filing Annual Reports. He did not interpret the requirement as having to provide an updated list of substances at the time of leaving the property. [ 36 ] With respect to item 2, Mr.

Kimery stated that was also complied with by their inventory, as that had included classification numbers. Again, that ignores any specifics of the system referred to or updating to the time of ceasing operations. [ 37 ] With respect to item 3, Mr. Kimery said such removal would require permits, and therefore rather than be in breach of permit requirements, he did nothing. In any event, the time of year when the site was under snow made it impossible to remove many items.

He did not address the fact that permits might be obtained even if other physical action was not possible immediately. [ 38 ] With respect to item 4, a Phase II site assessment, Mr. Kimery stated he had contacted a company in Calgary, and another in Saskatoon, and others, and found that the cost of Phase I & II assessments would vary between $8,000.00 and $60,000.00, and Phase III which would be remediation, could be $300,000.00.

He did not have the ability to pay these sums, and these were impossible in any event to do in winter by the required date. [ 39 ] With respect to items 5 and 6, production of a Remedial Action Plan or Risk Management Plan, and then compliance with such plan(s), this was impossible for the reasons stated already, both economic and weather related. Instead of complying with any of the above, Mr. Kimery chose to appeal which resulted in the decision set out in Appendix 2. [ 40 ] Mr. Kimery reiterated in his evidence that items 1 and 2 were complied with by his Annual Reports and the inspection reports of Mr. Yuen.

At one point in cross-examination he admitted, however, that his last Annual Report at the time of the EPO was two years old. He reasserted in court, though, that the Annual Report and Mr. Yuen’s inspections were compliance, but he never sent a letter stating that those dated reports were still current and to be considered as current in compliance with the EPO. He also restated that the costs were beyond his capacity to carry out the other assessments. He outlined steps he took to obtain information to comply with the EPO. Exhibits D-21, D-22 and 23 are materials from various consultants that show that Mr.

Kimery made some inquiries to establish costs for the requirements in the EPO, but they were beyond his means to proceed with. Lesser steps to remove materials were

impossible because of weather or access problems. [ 41 ] Mr. Kimery stated that his relations with Mr. Yuen were positive and he filed email correspondence from March 17, 2011, Exhibit D-24 outlining events relating to tax enforcement, and setting out arguments against the same. Nothing came of this correspondence, and in direct and cross-examination, various

interpretations of this correspondence were given by Mr. Kimery, or put to Mr. Kimery. The correspondence was filed in an attempt, I infer, to some degree of good faith, but much of the email concerned issues unrelated to the EPO. In the result, however, no concrete steps were taken by Mr. Kimery, nor was any change of position made by the Ministry. [ 42 ] Mr. Kimery was cross-examined about the statutory obligation (Appendix 1B,

section 17) to take steps to decommission a site such as this regardless of how or why the operation ended. Mr. Kimery said he was not decommissioning as he wanted his property back and he was “off the site”. He did not address the issue of the time that elapsed in the tax enforcement proceedings that inexorably resulted in him losing title and being required to cease operations and vacate the property. That could not have been any surprise, or an event which he did not have a great deal of notice with respect to its happening. Because this was involuntary, Mr.

Kimery felt that decommissioning was not necessary, and he addressed the failure to decommission with a reiteration of his tax dispute. He did not think he was losing the property or would be ceasing operations until he got the notice to vacate. That, however, was not a reasonable position to take under the circumstances. He knew his operation would be at an end months before it did end, and no steps at decommissioning were taken.

He had no basis for thinking that when the RM obtained title in August 2009 it was going to allow his business to continue indefinitely, and work out some settlement satisfactory to himself. The fact that he may have felt his dispute with the RM and the claim he is now making against them in the courts was and is just, but that belief, neither then or in the present, supports the contention he could continue with the business operation, and did not need to decommission the site. [ 43 ] Mr.

Kimery was cross-examined extensively on the history and issues concerning the steps leading to this prosecution, but without eliciting any further significant facts or explanation. Mr. Kimery did explain that when he had just two weeks left to vacate the property, he removed such equipment that he was able to. This included tools, desks, chairs, a condenser unit, lab equipment and maintenance equipment, but not hazardous materials.

ARGUMENT [ 44 ] At the outset it was ruled that a collateral attack on the validity of the EPO was not permitted in this case, and the prosecution is one to which the defence of due diligence must be established to escape liability. The first Defence position argued, was that the EPO was triggered by overpayment of taxes without relief, that the tax enforcement proceedings precipitated the closure of the business, and that the persons charged did not create pollution or contamination of the site when forced to leave it.

Much of the argument addressed alleged the operation of the waste disposal site, and the justness of the dispute between the RM and Mr. Kimery. However, this line of argument addresses the issue of whether the EPO should have been made, and that is not the issue in this case. [ 45 ] A further Defence argument is advanced that this was not an abandonment of the site, but an involuntary transfer and therefore the environmental obligations were transferred with the land. Therefore, there was no need to give notice of quitting the site and of conducting a decommissioning.

However, the charge is not failing to comply with decommissioning mandated by statute. Such a charge could exist in law, without issuing an EPO. However, one result of not taking the necessary decommissioning steps in this case was the issue of an EPO, and the failure to comply with the EPO is the basis of the present charge. The provisions of the EMPA do not support the contention that an involuntary transfer of land relieves the original owner who carried on environmentally hazardous activity is relieved from environmental obligations.

The EMPA may permit a subsequent owner to be also held liable, but it does not follow that the original operator of a hazardous site subject to the EMPA is relieved of liability. See definition sections 1, subsections (

u) and (

w) of the EMPA, Appendix 1A. In the latter definition subsection, a specific exemption of liability for contaminating discharges is given to a municipality taking title due to tax enforcement proceedings, unless the municipality is shown to be responsible for aggravating an existing condition. [ 46 ] I conclude that since the Accused left the site, that much material that comes under regulation of EMPA has been left in place on the site, but some has been removed, and some deterioration of the site may have occurred following cessation of the site operation when title was with the RM or the subsequent purchasers.

However, those facts do not affect the issue: was there due diligence in complying with the EPO? It is not contested that the EPO was not in fact complied with. The true question in this case is whether EnviroGun Ltd. and Clint A. Kimery, the sole owner and directing mind of the company, employed due diligence in complying with the EPO. The EPO was issued on or about the same time that the company ceased operations without decommissioning. There is also substantial evidence from Mr.

Yuen, which I accept, that deficiencies existed in the operation of the site even if action had not been taken at that time to force full compliance by the Ministry. [ 47 ] The requirements of the EPO are listed in paragraph 11 above, and were to be all complete not later than March 31, 2011. They may be more concisely stated as follows: 1. Characterize all substances stored; 2. Complete Classification System for the site following accepted terms and procedures in the industry; 3. Remove all hazardous substances and dangerous materials following safe legislated practices; 4.

Carry out a formal Phase II site assessment in accordance with environmental industry standards; 5. Provide to the Ministry a Corrective Action Plan in accordance with industry standards; and

6. Carry out and comply with the terms and conditions of the Corrective Action Plan. [48] The EPO carried deadlines for certain acts to be completed by March 31, 2011. Within the concept of due diligence, there is aquestion of what level of compliance would in this case constitute due diligence in attempting to comply. I accept Mr.

Kimery’s evidencethat some aspects of requirement six may not have been capable of being complied with by that date. [49] The Crown evidence that was not disputed, and which I accept, was to the effect that the inventory, classification and planswere all things that knowledgeable professionals were capable of providing, and that such professionals were available and utilizedwithin Saskatchewan.

Physical compliance is another issue, but it may be assumed that given sufficient resources that include diligence,finances, and time, that the proper development of inventory, classification and planning, and then compliance with same could beaccomplished. Mr. Kimery made inquiries to do certain of these tasks, and the cost was high, but he never gave evidence sayingcompliance was impossible, except due to weather and financial issues.

Very little was said in evidence about the time that might berequired to perform steps one to five, but in fact, no steps were taken. [50] Case law gives guidance as to what constitutes due diligence in a number of different contexts. In Rural Municipality ofChurchbridge 211, Leo Fuhr, Tom Werle, Darcy Kentel and Douglas Reetz v R, 2005 SKQB 524, the appellants were charged withviolating The Environmental Management and Protection Act and The Wildlife Habitat Protection Act, SS 1983-34, c W-13.3.

TheCourt discussed specific acts that might or might not constitute due diligence, observing: [44] On appeal, the appellants also argued the defence of due diligence which was not directly put to the trial judge. They submitthat they took all reasonable care to comply with the WHPA and that they reasonably believed they had complied with the legislation. Aswith the defence of officially induced error, the onus of proof for the defence of due diligence lies with appellants.

They must show, on abalance of probabilities, that they took all due care in the circumstances to avoid or prevent the offence taking place (see R. v. Chapin, (SCC), [1979] 2 S.C.R. 121, 7 C.R. (3d) 225, 45 C.C.C. (2d) 333, 8 C.E.L.R. 151, 95 D.L.R. (3d) 13).

I have reviewedthe lengthy trial transcripts and in my view, the evidence simply does not support such a finding, even on a balance of probabilities. [45] First and foremost, there is no direct or indirect evidence that the appellants took reasonable care to comply with the WHPA.There is no evidence that the appellants were aware that s. 7 of the WHPA mandated a special authorization for alterations to wildlifehabitat lands. There is no evidence that they inquired or even cared if anything other than usual permissions were required with respect tothese lands.

To the contrary, the evidence suggests that the appellants had no appreciation of how their objectives might collide withthose under the WHPA. As testified by Mr. Hoehn, a land agrologist for the Lands Branch of Sask Ag, the WHPA “has changed thedynamics of management of some of our lands” (Vol. 4, p. 846, 1. 5-7). According to Mr. Hoehn, WHPA lands are multiple use landswith the protection of habitat for wildlife being one such use.

He testified that from a WHPA perspective, if beaver dams and consequentflooding were affecting a lessee’s ability to graze his cattle on WHPA lands then “perhaps we would lower his rent rather than dosomething else, or we would set about a management program that would be compatible with all the Crown interest in the land” (Vol. 4,p. 847, 1. 1-8). Thus, when the lands are protected wildlife habitat, the considerations as to whether beavers are a nuisance and should bedestroyed are entirely different than with private lands or other Crown lands administered by Sask Ag.

Clearly, one would have to beaware that lands are designated as WHPA lands as well as the effect of such designation to realize that additional authorizations wererequired above and beyond these for non-WHPA Crown lands. [46] Also, if the appellants had exercised due diligence regarding the WHPA and these lands they would have known that therequired authorization must come from SERM and not from Sask Ag. They had made no application to SERM and had received noauthorizations of any kind from SERM. They suggest there was confusion as to who administers the WHPA.

They therefore argue that itwas reasonable for them to conclude that Sask Ag was responsible for authorizing the work. The trial judge found that the WHPA isadministered by SERM and that “no one contacted SERM requesting a permit under such act”. This finding is consistent with therelevant evidence and particularly that of Mr. Olson and Mr. Decker both of SERM and both of whom were very clear that it is theMinister of SERM who issues permits under the WHPA. There is no evidence that any individual involved with the WHPA had anydoubt as to the department responsible for authorizations under the WHPA.

If the respondents never checked with SERM, it is simplynot possible for this court to find due diligence. This is especially so given Fuhr’s response when the issue was squarely raised. Aconservation officer went onto NW 11-22-30 W1 while the work was being done and raised the issue of a permit under the WHPA. Fuhrrefused to have the work stopped to investigate if they really did have the authority that the appellants say they thought they had.

Areasonable person, a person who was exercising due diligence, a person who wanted to comply with the WHPA, would have stopped. [51] In the above case, the Court found that due diligence would have required taking specific and properly informed steps to dothings required to comply with applicable legislation. Instead, the Court found a total lack of attempt to take such measures. A similarsituation pertained in R v Pikowicz, 2003 SKPC 120 at para 47, 237 Sask R 191, where the Court also discussed specific facts that mightor not show due diligence, observing the following: [57] In determining whether Mr.

Pikowicz has shown that he exercised due diligence in his handling of the Waterhen River net, I haveconsidered a number of facts. These waters were unfamiliar to Mr. Pikowicz, and while he may have extensive general knowledge ofhow ice forms and develops, he did not have that knowledge concerning this portion of the river. His experience with trap netting in2000 was still new and limited, and he had already experienced difficulties in 1998 with trap nets freezing into Pierce Lake. That trouble surely showed him the dangers of leaving his nets in the water too late in the season. Mr.

Pikowicz noted the cold snap on the 12th of October 2000 and noticed ice forming when he returned to the river on the 17th of that month. In my opinion a reasonable person in allthe circumstances would recognize the need to pull the nets out of the river, considering that ice had begun to develop. The evidence has

clearly shown that Mr. Pikowicz had the opportunity to safely remove the net when he first noticed ice forming on the river, but chosenot to do so. In my opinion due diligence required that the net be taken from the water in these icing conditions. In the event that theriver thawed again, the net could have been reset and the season extended. That, in my opinion, is what a reasonable fisher would do inthe exercise of due diligence. All of the difficulties which Mr.

Pikowicz experienced as he struggled to extract the net from the ice couldhave been prevented had he chosen not to run the risk that the river would freeze more severely. The presence of an adjacent, illegallyset net does not alter the fact that the river was clearly beginning to freeze over and that all nets should have and could have beenremoved. Mr. Pikowicz assumed the risk that the net or his access to it would freeze, and in doing so did not exercise due diligence. [58] I find unreasonable Mr. Pikowicz’s belief that the lead could safely be left in the river without catching fish.

The assumption thata lead, left in the water unattached to a net, will perform like a curtain so that fish are able to swim around it, no longer applies once icebegins to form on and around the netting. The evidence has shown that this net began to freeze into the ice at several places along itslength, so that fish could no longer swim around it and instead it began to act as a trap.

A reasonable person exercising due diligencewould have realized this, especially a reasonable person who had already observed that this particular plastic netting was prone tofloating up and becoming embedded in surface ice. [52] Another specific application of due diligence may be found in R v Consolidated Mayburn Mines, (ON CA),28 OR (3d) 161, (Ont CA), the accused was charged with non-compliance with the Director’s order. The Court held that: The appellants faced charges of non-compliance with the Director's order.

To mount a due diligence defence they were bound to acceptthe validity of the order and show that they attempted to comply with it. They might have established due diligence if, for example, theydemonstrated reasonable, though unsuccessful efforts to comply, or an inability to comply because of weather conditions or lack ofresources. But they cannot show due diligence by claiming that the order is unreasonable and then refusing to comply with it.

Thatamounts to another form of collateral attack under the guise of due diligence. [no page or paragraph numbers available in report] [53] In R v Robert Klein Enterprises, 2004 SKPC 31, 245 Sask R 161, the accused had been charged with furnishing tobacco to ayoung person, after his corporation sold tobacco to an individual who was 17 years old. The Court found that: The accused corporation had a policy of compliance and had emphasized the need through their management system. All employeeswere given written and verbal instructions regarding compliance with The Tobacco Act.

Regularly though not necessarily daily to eachstore, phone calls were made to remind of need for compliance. Sanctions were in place for employees who were found not to becomplying with the corporation policy. The owner of the chain visited all stores daily or at least two or three times a week andemphasized compliance. A test shopper program, though limited in frequency, was in place. Signs were distributed and although thereis one count involving non-compliance with signage, signage was to be displayed and signs were distributed.

In total, I conclude that thiscorporation did exercise due diligence to comply with The Tobacco Act. [54] The foregoing cases illustrate that in order for the defence of due diligence to be successfully raised, the accused must showgood faith in doing, or attempting to do, the acts that would constitute compliance, or the avoidance of acts that would be incontravention of what was required. The accused may not exempt themselves from compliance by concluding an order or specificrequirement was not reasonable or valid based upon their own

interpretation of such requirements. There must be a genuine effort tocomply insofar as that is possible. [55] At all relevant times related in this prosecution, the controlling interest in the corporate accused, EnviroGun Ltd., and thedirecting mind of the company was Mr. Clint Kimery, who is the individual accused person. He alone determined what would or wouldnot be done. He knew the history and operation of the site in question, and the history of the dispute with the RM that resulted in August27, 2009 with transfer of title to the land to the RM.

Notwithstanding that last fact, for a significant period of time following loss of title,he remained in possession operating the oil recycling business. It has never been suggested that this business was not a for-profitenterprise. He had taken no steps to decommission the site in accordance with the legislation in spite of the fact his operation was clearlygoing to cease due to the lawful actions of the RM. Mr.

Kimery at several points in his evidence stated that he hoped to continue in thebusiness operation, and did not take the actions of the RM as being final. [56] He did continue the operation until January 2010. It is obvious Mr.

Kimery knew a good deal about the regulation of hisbusiness, but he did not refer directly to The Hazardous Substances and Waste Dangerous Goods Regulation, reproduced in Appendix1B, particularly sections 13 (maintaining information listing all hazardous goods, inspection and maintenance records, and reporting ofsame) and 17 (closing all or part of any storage site only with ministerial approval, abandonment, permanent closure anddecommissioning of a site). The EPO reflects some, though not all, of these requirements.

A reasonable person would not have felt thebusiness could continue, and would have known that decommissioning in accordance with the EMPA and Regulations were obligationsthat would have to be complied with. [57] The email that Mr. Kimery sent to Mr. Yuen dated March 17, 2011, further supports this conclusion, in my opinion. He wasquestioned on that email in which he again outlines what he believes is the unreasonableness of the actions by the RM, the fact that hewas or would be soon in litigation with them, and that he hoped to get his business and property back.

In the email he asserts theresponsibilities of the RM to manage the contaminants on the property. This was not correct in law, and was not a reasonable conclusion,and it appears to have coloured his actions throughout with respect to compliance with the EPO. [58] Mr. Kimery in evidence explained that he felt that some or all obligations would transfer to the RM. He also stated that he didnot consider his business operation to be at an end during the tax enforcement procedures, even when title was taken over by the RM, nor

even on March 17 th in the email referred to above, which was after he received formal notice to quit the property and the business had ceased. This belief was not reasonable. [ 59 ] Mr. Kimery had received the October 21, 2010 Notice of Intent from the Ministry of the Environment which was a requirement precedent to the issue of an EPO, which was duly issued and served on or about January 11, 2011. Mr. Kimery did not act upon the Notice with respect to the EPO that was eventually issued, and he made no inquiries regarding compliance with the EPO until after the deadlines had passed for compliance.

The only document filed with respect to these inquiries was D-23, dated much later, November 1, 2010. [ 60 ] Mr. Kimery gave explanations that have been outlined above to explain that compliance with the EPO was not possible, and that he was as diligent as he could be in complying with them. He stated that the first two requirements were complied with by filing the annual return and inspection reports by the Ministry.

The last returns filed for the company occurred in 2008, and the Defence filed the 2008 Annual Report of the Company, signed January 1, 2009, Exhibit D-3, all of which were seriously out-of-date by the time the EPO was issued. Further, the inspection reports completed in 2009 reveal issues with completeness. At a minimum, it would be necessary to state that those documents were being relied upon for compliance. It is neither reasonable nor diligent to argue that such reports and inspections could constitute compliance with the first two requirements of the EPO.

Without these lists, the next steps could not be taken as there would be no definitive knowledge of what was to be dealt with. I conclude that these first two requirements were the least onerous requirements of the EPO to carry out because the information needed was within the capacity of the Mr. Kimery and the company to produce as this information would have reflected the state of affairs at the site at cessation of operations. [ 61 ] Mr.

Kimery asserted that the other requirements (three to six) were too financially onerous for him to comply with, and also, some physical requirements under number three were impossible to comply with due to winter weather and the deadline for compliance. If, however, the first requirements of characterization and classification had been met and a proper inventory existed, initial steps in planning for requirement three, removal of materials, could have occurred. That planning would have included the obtaining of required permits.

Difficulties due to the snow cover and temperatures were never indicated to the Ministry and no request of further time for compliance was made. These concerns may be a sufficient reason not to comply with some parts of the EPO, but not all steps of the other requirements would have been impossible. It is possible that initial planning aspects of assessment and risk management under requirements four and five could have been started.

Until plans under requirements four and five were complete, the final remediation under requirement six would not have been possible. [ 62 ] A person who is alleging a defence of due diligence must show that “all reasonable steps” capable of being taken have been done. There is no evidence of any attempt at compliance with any of the requirements before the deadline in the EPO. While some items were removed from the site, these items included furniture, lab equipment, and similar items.

These items do not fall under the scope of the EPO, and this is not an attempt to fulfill the EPO. [ 63 ] I do not find that a lack of financial incapacity can constitute due diligence in compliance with the EPO. This was a for-profit enterprise, and no details of the financial state of either the company or Mr. Kimery was presented. Mr. Kimery had overpaid taxes, but the company had continued in operation for many years nonetheless. The land and assets had value, although the exact value was never indicated in evidence.

I do not find that the sale by the RM by sealed bid necessarily reflects the value of the property. The possibility of some compliance without large outlay of money, particularly with respect to requirements one and two existed. [ 64 ] Mr. Kimery never advised the Ministry that he could not comply for financial or any other reasons. There was no communication of any reason for non-compliance to the Ministry during the time set out in the EPO, nor was there a request for any extension of time. In the email referenced above, Mr. Kimery outlined to Mr. Alvin Yuen his complaints with respect to treatment by the RM.

He did not raise the issues of compliance with the EPO, but instead raised alleged inconsistencies between the way that the City of Regina had dealt with a contaminated site, and the way he was being treated. His points in the email do not suggest attempted compliance, but show his frustration with what he considered to be unreasonable treatment by the RM. It is not clear what he wishes from the Ministry of the Environment, but in any event, he does not refer to problems with compliance to the EPO, and the deadline for compliance was very close at hand. In the email and in evidence Mr.

Kimery was primarily focused on issues that related to the reasonableness of tax enforcement and the making of the EPO, and not upon compliance with the EPO. As stated in the case of R v Consolidated Mayburn Mines , supra , it is not possible to defend such an order with an attack on collateral issues. [ 65 ] I conclude that Mr. Kimery had no intention to comply with the EPO during the time frame set out, and that his explanations to establish due diligence lack reasonableness and credibility. I do not find that there was any sincere, reasonable or diligent intention or attempt to comply with the EPO.

I find the defence of due diligence is not established, and consequently, the corporate Accused and Mr. Kimery are guilty of the offence charged. Dated at the City of Regina, this 5 th day of February, 2015. _________________________ B.D. Henning, J

R. v. EnviroGun and Clint A. Kimery, Judgment February 5, 2015. Appendix 1A – Excerpts of The Environmental Management and Protection Act, 2002 ,

Chapter E-10 , Statutes of Saskatchewan, 2002.

An Act respecting the Management and Protection of the Environment

PART I

Short title and

Interpretation 1 This Act may be cited as The Environmental Management and Protection Act, 2002 .

Interpretation 2 In this Act: (a) “adverse effect” means impairment of or damage to the environment, or harm to human health, caused by one or any combination of any chemical, physical or biological alteration; ...... as a contaminated site by the minister pursuant to

section 11; (f) “department” means the department over which the minister presides; (g) “deputy environment officer” means a person appointed pursuant to

section 66; (h) “discharge” means a discharge into the environment and includes any drainage, deposit, release or emission into the environment; (i) “environment” means: (

i) air and the layers of the atmosphere; (ii) land, including soil, subsoil, sediments, consolidated surficial deposits and rock; (iii) water; (iv) organic and inorganic matter and living organisms; and (

v) the interacting natural systems and ecological and climatic interrelationships that include the components mentioned in subclauses (

i) to (iv); (j) “environment officer” means an environment officer appointed pursuant to

section 65, and includes a deputy environment officer, a member of the Royal Canadian Mounted Police or a member of a police service as defined in The Police Act, 1990 ; (k) “environmental protection order” means an order issued pursuant to

section 47; (l) “government agency” means: (

i) a department of the Government of Saskatchewan; (ii) a corporation that is an agent of the Crown in right of Saskatchewan; or (iii) any corporation, commission, board or other body whose members are appointed by: (

A) an Act; (

B) the Lieutenant Governor in Council; (

C) a member of the Executive Council; or (

D) any combination of

an Act and one or more of the persons mentioned in paragraphs (

B) and (C); (m) “ground water” means water beneath the surface of land; ..... (o) “hazardous substance” means a substance that:

(

i) because of its quantity, concentration or physical, chemical or infectious characteristics, either individually or in combination with other substances, is an existing or potential threat to the environment or human health; and (ii) is designated in the regulations as a hazardous substance; (p) “hazardous waste” means a waste that: (

i) because of its quantity, concentration or physical, chemical or infectious characteristics, either individually or in combination with other wastes, is an existing or potential threat to the environment or human health; and (ii) is designated in the regulations as a hazardous waste; ..... (s) “minister” means the member of the Executive Council to whom for the time being the administration of this Act is assigned; (t) “occupant” means a person or tenant, other than the owner, who is in actual possession of land; (u) “owner” , with respect to land, means: (

i) in the case of land in an area of Saskatchewan governed by The Land Titles Act : (

A) the registered owner of the land; or (

B) a purchaser of the land whose interest as a purchaser is shown on the certificate of title to that land; and (ii) in the case of land in an area of Saskatchewan governed by The Land Titles Act, 2000 : (

A) the registered owner of the land as defined in The Land Titles Act, 2000 ; or (

B) a purchaser of the land pursuant to an agreement for sale who has registered an interest based on the agreement for sale against the title to that land pursuant to The Land Titles Act, 2000 ; ..... (w) “person responsible for a discharge” , with respect to a substance, includes: (

i) an owner, or previous owner, of the substance; (ii) every person: (

A) who has or had possession, charge, management or control of the substance, including the manufacture, treatment, sale, handling, use, storage, disposal, discharge, transportation, display or method of application of the substance; and (

B) whose actions or omissions caused or contributed to the discharge; (iii) an owner, occupant or previous owner or occupant of land on which the substance is discharged; (iv) if a person mentioned in subclauses (

i) to (iii) is a corporation: (

A) any other corporation that is the result of a merger, continuance, acquisition or other fundamental change involving the corporation; or (

B) any other corporation that has or had the right of control of the land or substance; (

v) a person who acts as the principal or agent of a person mentioned in subclauses (

i) to (iv); and (vi) a successor, assignee, executor, administrator, trustee, receiver or receiver-manager of a person mentioned in subclauses (

i) to (v); but does not include: (vii) a municipality with respect to land shown on its tax arrears list prepared pursuant to The Tax Enforcement Act , unless after the date on which the municipality is entitled to take possession of the land or becomes the owner of the land, the municipality aggravates an existing adverse effect or discharges a new or additional substance into the environment that: (

A) may cause, is causing or has caused an adverse effect; or (

B) aggravates the adverse effect of the previous discharge of the substance on that land; (viii) a secured creditor of a person mentioned in subclauses (

i) to (v), unless the secured creditor participated in the day-to-day management or control of the land or through

an act or omission caused the discharge or aggravated an existing adverse effect; (ix) a person providing advice or assistance regarding the handling of the substance or the work of remedying land who exercised due diligence in providing advice or assistance unless any test, investigation or work conducted by that person caused an adverse effect or aggravated an existing adverse effect; (

x) a person who is or was an owner or occupier of land contaminated before the person became the owner or occupier and who could

not reasonably have been expected to know about or discover the existence of the substance at the time the person became the owner or occupier; or (xi) an owner of land for which surface rights have been acquired pursuant to The Surface Rights Acquisition and Compensation Act with respect to the activities for which the surface rights were acquired; (x) “prescribed” means prescribed in the regulations; .....

PART III Protection against Unauthorized Discharges and Pollution DIVISION 1 Unauthorized Discharges Prohibition on discharges 4

(1) No person shall discharge or allow the discharge of a substance into the environment in an amount, concentration or level or at a rate of release that may cause or is causing an adverse effect unless otherwise expressly authorized pursuant to: (

a) this Act or the regulations; (

b) any other Act, Act of the Parliament of Canada or the regulations made pursuant to any other Act or Act of the Parliament of Canada; or (

c) any approval, permit, licence or order issued or made pursuant to: (

i) this Act or the regulations; or (ii) any other Act, Act of the Parliament of Canada or the regulations made pursuant to any other Act or Act of the Parliament of Canada.

(2) No person shall discharge or allow the discharge of a substance into the environment in an amount, concentration or level or at a rate of release that is in excess of that expressly authorized by

an Act, Act of the Parliament of Canada, approval, permit, licence, order or regulations mentioned in subsection (1). Duty to report discharge 5

(1) A person who, in contravention of

section 4, discharges or allows the discharge of a substance into the environment that may cause, is causing or has caused an adverse effect shall, as soon as that person knows or ought to know of the discharge, report it to: (

a) the minister; (

b) if the person reporting is not the owner of the land on which the discharge occurred and knows or is readily able to ascertain the identity of the owner, the owner of the land; (

c) any other person to whom the person reporting reports in an employment relationship; (

d) if the person reporting is not the person having control of the substance and knows or is readily able to ascertain the identity of the person having control, the person having control of the substance; and (

e) any other person who the person reporting knows or ought to know may be directly affected by the discharge.

(2) If a person has control of a substance that is discharged into the environment and that may cause, is causing or has caused an adverse effect, that person shall, immediately on becoming aware of the discharge, report it to the persons mentioned in clauses (1)(a), (b), (

c) and (e). (3) Subsection (2) does not apply if the person having control of the substance has reasonable grounds to believe that those other persons already know of the discharge.

(4) A police officer or employee of a municipality or government agency who is informed of or who investigates a discharge of a substance into the environment that may cause, is causing or has caused an adverse effect shall immediately report the discharge to the minister. (5) Subsection (4) does not apply if the police officer or employee has reasonable grounds to believe that the discharge has been reported to the minister by another person.

Manner of reporting 6

(1) A person who is required to report to the minister pursuant to

section 5 shall: (

a) report in person or by telephone; and (

b) include the following in the report, if the information is known or can be readily obtained by that person: (

i) the location and time of the discharge; (ii) a description of the circumstances leading up to the discharge; (iii) the type and quantity of the substance discharged; (iv) the details of any action taken and proposed to be taken on the area affected by the discharge; (

v) a physical description of the area in which the discharge occurred and the surrounding area.

(2) In addition to a report pursuant to subsection (1), the person shall report in writing if required by the regulations.

(3) A person who reports pursuant to subsections (1) and (2) shall give to the minister any additional information with respect to the discharge that the minister requires. Duty to take remedial measures 7 Any person who discharges or allows the discharge of a substance into the environment in contravention of

section 4 shall: (

a) take all reasonable measures to: (

i) prevent, reduce and remedy the adverse effects of the substance; and (ii) remove or otherwise dispose of the substance in a manner that minimizes the adverse effects; (

b) restore the environment to a condition satisfactory to the minister; and (

c) take any other measures that, in the opinion of the minister, are necessary to protect or restore the environment. Investigation into discharge 8 The minister may make or cause to be made any investigation that the minister considers necessary with respect to the discharge of any substance that may cause, is causing or has caused an adverse effect including: (

a) the source and extent of the discharge; (

b) the effect of the discharge on the environment; and (

c) any advisable remedial action. When environmental protection order may be issued 9 If a person discharges or allows the discharge of a substance into the environment in contravention of

section 4 or fails to comply with

section 7 , the minister may issue an environmental protection order or an emergency environmental protection order directed to that person. ..... Remedial action plan 14

(1) In this

section and in

section 47 , “person directly responsible for a discharge” means a person to whom a written notice was given pursuant to clause 12(a).

(2) Every person directly responsible for a discharge shall, within a period specified by the minister: (

a) prepare a remedial action plan for the contaminated site; and

(

b) if there are any other persons directly responsible for the discharge, enter into a written agreement with those other persons directly responsible for the discharge that provides for: (

i) the remedial action that must be taken; and (ii) the apportionment of costs of taking that action.

(3) The person or persons directly responsible for a discharge shall submit the remedial action plan and any agreements for remedial action to the minister for approval.

(4) On receipt of a remedial action plan and an agreement pursuant to subsection (3), the minister may: (

a) approve the remedial action plan and any agreement; (

b) refuse to approve the remedial action plan and any agreement; or (

c) direct that changes be made to the remedial action plan and any agreement.

(5) On approval by the minister pursuant to subsection (4), every person who submitted a remedial action plan and agreement pursuant to subsection (3) shall comply with the terms of the approved remedial action plan and any approved agreement.

(6) The minister shall not issue an environmental protection order directed to any person who is carrying out a remedial action plan and any agreement approved pursuant to subsection (4) in accordance with its terms.

(7) If a person directly responsible for a discharge does not comply with subsection (5) within a period that the minister considers reasonable, the minister may order one or more persons directly responsible for the discharge to take any of the actions mentioned in

section 47 .

(8) With the approval of the minister, the persons directly responsible for a discharge may amend the approved remedial action plan or the approved agreement. ...... Environmental protection orders 47

(1) Subject to subsection 14(6), the minister may issue an environmental protection order directed to a person requiring that person to take any measures that the minister considers necessary to protect and restore the environment if the minister is of the opinion that the person: (

a) before, on or after the coming into force of this Act has done or is doing anything or carrying out any activity that may cause, is causing or has caused an adverse effect; (

b) before, on or after the coming into force of this Act has contravened or is about to contravene this Act or the regulations, whether or not that person has been convicted of that contravention; (

c) is a person directly responsible for a discharge who has failed to: (

i) prepare a remedial action plan as required by

section 14; (ii) enter into an agreement as required by

section 14; or (iii) comply with the terms of a remedial action plan or agreement approved by the minister pursuant to

section 14; or (

d) is a person to whom

section 9 applies.

(2) The minister shall cause the measures mentioned in subsection (3) to be set out in the environmental protection order.

(3) For the purposes of subsection (1), the minister may, in an environmental protection order, require a person to whom the environmental protection order is directed to do all or any of the following: (

a) investigate the situation; (

b) monitor a substance; (

c) lessen or prevent further discharge of a substance; (

d) contain a substance; (

e) remove a substance; (

f) store a substance and monitor its storage; (

g) destroy or otherwise dispose of a substance; (

h) minimize the effects of a substance on the environment;

(

i) remedy any adverse effect; (

j) restore the area affected by the discharge or presence of a substance and the environment to a condition satisfactory to the minister; (

k) maintain records on any matter relevant to: (

i) the discharge or presence of a substance; or (ii) the measures specified in any order made pursuant to this section; (

l) report periodically to the minister, a project manager appointed pursuant to

section 50 or a person designated by the minister with respect to: (

i) any matter related to the discharge or presence of a substance; or (ii) the measures specified in any order made pursuant to this section; (

m) cease or suspend any activity for a period specified in the order or permanently; (

n) take any measure, in addition to or other than one described in clauses (

a) to (m), that the minister considers necessary to: (

i) facilitate compliance with any environmental protection order; or (ii) protect or restore the environment.

(4) If the minister issues an order directed to a person requiring that a substance be contained or stored, the minister may subsequently issue an environmental protection order to that person to take, with respect to the substance, any of the measures described in subsection (3).

(5) An environmental protection order may specify: (

a) the manner in which the measures are to be carried out and the method or procedures to be used in carrying out the measures required by the order; and (

b) the period within which any measure required by the order is to be commenced and the period within which the order or any portion of the order is to be complied with. Service of environmental protection order 48 The minister shall cause an environmental protection order to be served on the person to whom the order is directed. Amendment, alteration or replacement of environmental protection order 49

(1) The minister may amend, alter or replace an environmental protection order, in whole or in part, if: (

a) the person to whom the environmental protection order is issued fails to comply with the terms of the order; or (

b) the minister considers it appropriate to do so.

(2) Before the minister issues an environmental protection order, or takes any action pursuant to subsection (1), the minister shall give to the person to whom the order is intended to be issued, amended, altered or replaced: (

a) written notice of the minister’s intention to issue the order, or to amend, alter or replace the order, as the case may be, and the reasons for doing so; and (

b) an opportunity to make written representations to the minister, within 30 days after the written notice mentioned in clause (

a) is served, as to why the environmental protection order should not be issued, or why the order should not be amended, altered, or replaced.

(3) The minister is not required to give an oral hearing to any person to whom a notice has been given pursuant to subsection (2).

(4) After receiving the representations mentioned in clause (2)(b), the minister shall issue a written decision: (

a) confirming the environmental protection order; (

b) amending, altering or replacing the environmental protection order; or (

c) revoking the environmental protection order.

..... Appeals to Court of Queen’s Bench re environmental protection order or certificate 54

(1) Any person aggrieved by an environmental protection order may appeal on a question of law to a judge of the Court of Queen’s Bench within 30 days after the date of the order.

(2) The record of an appeal pursuant to subsection (1) consists of: (

a) the environmental protection order; (

b) the written representations made to the minister by the person named in the environmental protection order; (

c) the minister’s decision pursuant to subsection 49(4); and (

d) the notice of motion commencing the appeal to the Court of Queen’s Bench.

(3) A person with respect to whom a certificate has been entered as a judgment pursuant to

section 53 may appeal against the amount of the costs and expenses set out in the certificate to a judge of the Court of Queen’s Bench within: (a) 30 days after the date of the filing of the certificate; or (

b) if the person has made representations to the min

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