R. v. Quantex Technologies Inc., 2018 ONCJ 546

CITATION: R. v. Quantex Technologies Inc., 2018 ONCJ 546 DATE : June 26, 2018 Court File No. 4460 999 17 25840 01 & 02 ONTARIO COURT OF JUSTICE IN THE MATTER OF THE PROVINCIAL OFFENCES ACT R.S.O. 1990 HER MAJESTY THE QUEEN v. QUANTEX TECHNOLOGIES INC. & MARCO DALLA-NORA ******** PROCEEDINGS AT PLEA OF GUILTY BEFORE HIS WORSHIP JUSTICE OF THE PEACE M. CUTHBERTSON on June 26, 2018 at 20 Weber Street, KITCHENER, Ontario ******** Appearances: Ms. J. Rosenberg Provincial Crown Mr. N. Adamson Provincial Crown Mr. S. Berger Counsel Mr. H. Crossner Counsel Mr. M. Dalla-Nora In Person ******** TUESDAY , JUNE 26, 2018

MS. ROSENBERG: Good afternoon Your Worship, my name is Jessica Rosenberg I'm here with my co-counsel Nick Adamson, we're here to speak to the matter of the Queen against Quantex Technologies Inc. and Marco Dalla-Nora. I understand Mr. Berger will be speaking on behalf of the defendant. MR. BERGER: Yes that's correct along with my colleague Mr. Howard Crossner and Mr. Dalla-Nora will be appearing on behalf of the corporation. THE COURT: All right thank you counsel. How are we proceeding today Miss. Rosenberg? MS.

ROSENBERG: I'd like to advise the Court that we've reached a resolution in this matter which I'd like to present today. Anticipate a guilty plea from Quantex Technologies Inc. to count six and eight of the first information and to count two of the second information. THE COURT: All right. Whenever you're ready Madam Clerk if you'd kindly arraign on those three counts.

CLERK OF THE COURT: Quantex Technologies Incorporated stands charged on or about the 20th day of January in the year 2016 at 260 Shoemaker Street in the City of Kitchener, Regional Municipality of Waterloo and elsewhere in the Province of Ontario did commit the offence of permitting subject waste to pass from the generators control or to leave the waste generation facility without completing a manifest in accordance with the manual and regulation 347 R.R.O. 1990 as amended contrary to section 19(1)(

a) of said regulation made under the Environmental Protection Act R.S.O. 1990

chapter E19 as amended thereby committing an offence under section 186(1) of the said act, to this charge and on behalf of the company how do you plea? MR. BERGER: Guilty. CLERK OF THE COURT: Quantex Technologies Incorporated stands further charged on or about the 20th day of January in the year 2016 at 260 Shoemaker Street in the City of Kitchener, Regional Municipality of Waterloo and elsewhere in the Province of Ontario did commit the offence of transferring characteristic waste or a listed waste that pursuant to

section 75, 77 or 79 of regulation 347 may not be land disposed to a receiving facility without giving notice to the receiver before or at the time the waste was received at the receiving facility contrary to section 84(1) of regulation 347 R.R.O. 1990 as amended made under the Environmental Protection Act R.S.O. 1990

chapter E19 as amended thereby committing an offence under section 186(1) of the said act, to this charge on behalf of the company how do you plea? MR. BERGER: Guilty. THE COURT: And I can just verify that's count six and eight, correct counsel? MS. ROSENBERG: Correct. MR. BERGER: Yes. THE COURT: Thank you, please go ahead. CLERK OF THE COURT: Quantex Technologies Incorporated stands charged on or about the 15th of August in the year 2016 at 260 Shoemaker Street in the City of Kitchener, Regional Municipality of Waterloo did commit the offence of causing or permitting to be caused the emission of any air containment to such extent or degree as may cause discomfort to persons contrary to

section 54(

a) of regulation 419/05 as amended made under the Environmental Protection Act R.S.O 1990

chapter E19 as amended thereby committing an offence under section 186(1) of the said act, to this charge and on behalf of the company how do you plea? MR. BERGER: Guilty. THE COURT: And again that is count two on this information, correct counsel? MS. ROSENBERG: Correct. MR. BERGER: Yes Your Honour(sic). THE COURT: Okay, thank you. Are these fully informed pleas Mr. Crossner pursuant to section 45(3) of the Provincial Offences Act. MR. CROSSNER: Yes they are Your Worship. THE COURT: All right, thank you. One moment please. And Miss Rosenberg what are you relying on in terms of facts please? MS.

ROSENBERG: Just before I get to that I wanted to state on the record that we acknowledge that you were the pre-trial Justice presiding over all the pre-trials and we are amenable to you hearing the guilty plea today. THE COURT: And that also holds true for the defense? MR. CROSSNER: That’s correct. MR. BERGER: Absolutely. THE COURT: Thanks very much. Go ahead please Ma'am. MS. ROSENBERG: Thank you Your Worship. There's an agreed statement of facts that I would like to file as an exhibit, I understand

you have a copy in front of you and I further understand that you've had an opportunity to read through the agreed facts. THE COURT: And defense, is that agreeable? MR. BERGER: Yes it is. The facts are agreed too. I didn't want to state on the record and I should indicate we would get a transcript of these proceedings ordered afterwards and one of the reasons for that is if you look at the agreed statement of facts I don't want there to be any misunderstanding at any point later on.

If you look at paragraph 12 of the agreed statement of facts and paragraph 11 there's some indication that the manifesting was inaccurate and fail to describe adequately the nature of the load that was delivered. So that there's no misunderstanding going forward and we appreciate that this will ultimately be a matter of ongoing discussions between the abatement staff and Mr.

Dalla-Nora and Quantex, I guess on a case by case basis but it's important that we clarify that the generator as its described in the registration manual that the Ministry has used since 2009 and the most current one in 2016 defines a generator as including and I won't go through the whole definition, but is including the operator of the facility and subsequent generators that are involved in the chain of custody, that would include Quantex and so it is up to Quantex subject of course too as I say discussion with the Ministry on a case by case basis if there's a problem or Quantex to use its discretion and the generator manual makes that clear as to how waste is characterised.

So while we agreed in substance to paragraph 12 and paragraph 11 that there may have been some mischaracterization of the manifest for the purposes of plea. We do not agree that all of the characterizations were inaccurate and the reason we say that is because if you look at the little chart, paragraph 13 and just as an example it says "any K residual bottles". Well it's my understanding those bottles were empty.

The clients that Quantex has are using the most conservative classification in terms of how they categorize by way of manifesting and simply adopting the characterization and manifesting of the client is not the way Quantex conducts its business.

It independently analyzes in accordance with the registration manual the receipt of the load to determine either on the basis of its previous knowledge which is how the registration manual talks about it in paragraph 39 – sorry page 39 of the current registration manual and lab testing as appropriate in other cases at page 40, it determines on it's own as required because it is a generator what the characterization should be. So the manifest in a number of cases, were correct according to Mr. Dalla-Nora and according to Quantex in terms of how they characterize and classify that waste.

And, we disagree with the idea that you just simply, you know automatically assume that whatever the client has sent is characterized correctly in the manifest that they sent. So, I just wanna make that clear because otherwise I guess the Ministry could pounce on Quantex tomorrow and say well you agreed that all of your characterizations were wrong and the way we want you to characterize is according to how your clients send it to you and that's just not the way they operate their business. So... THE COURT: All right... MR. CROSSNER: ...we don't want there to be any misunderstanding. THE COURT: Mr. Adamson. MR.

ADAMSON: If I could just respond. I don't think we have a disagreement on this point. It's not the Ministry of the Environments positon that because waste arrives at Quantex's facility classified in a certain way on a manifest by the generator of that waste that Quantex is obliged to accept that classification as accurate and send the waste on under that same classification; I don't think we're disagreeing on this point.

It's certainly true that a facility like Quantex that brings in waste and then sends it back out can and indeed is obliged to examine what the waste is and if it finds that it has been misclassified by the company that sends it too Quantex when it sends it out the manifest that Quantex fills in can have something different on it from what came in.

But for purposes of the plea today the Crown's point and I don't think this is in dispute is that at least some of the waste that came in and were put in this bin, even if you look at the chemistry of how Quantex analyzed it should not have gone out classified as they were; that's all we're saying, some of. MR. BERGER: And for the purposes of the plea we accept that. THE COURT: All right thank you. Then that provides the basis. So I do accept the agreed statement of facts as exhibit one in these matters. I have read and digested all of them so I'll accept that.

So there will be pleas of guilt entered on counts six and eight on the information dealing with the matters from January 2016 and there will be a finding of guilt on the information dealing with the matters from August 15, 2016 count number two. Now counsel could I have submissions on penalty please. MS. ROSENBERG: Sure and I just wanted to ensure that the agreed facts have been marked as an exhibit? THE COURT: Yes, I'd... MS. ROSENBERG: Thank you very much. THE COURT: ...already said it was an exhibit Ma'am. MS. ROSENBERG: Just wanted to make sure.

THE COURT: Yes and Madam Clerk if you'd stamp that as an exhibit, I noted exhibit one on it and I'd like a copy of that please, if it can be scanned and emailed to me please. CLERK OF THE COURT: Yes Your Worship. EXHIBIT NUMBER 1 : Agreed Statement of Facts - produced and marked MS. ROSENBERG: Your Worship the Crown and the defendant have agreed on a joint submission with respect to penalty. The joint penalty contemplates a fine amount as well as the imposition of a probation order.

With respect to count six of the first information the Crown and the defendant are jointly seeking a fine in the amount of $45,000 plus the victim fine surcharge. With respect to count eight of the first information the Crown and the defendant are jointly seeking a fine in the amount of $45,000 plus the victim fine surcharge

and finally with respect to count two of the second information the Crown and the defendant are jointly seeking a fine in the amount of $50,000 plus the victim fine surcharge. The total fine would amount to $140,000 plus the victim fine surcharge. The Crown on consent will be seeking to have a probation order imposed as well. I do have draft probation orders here to hand up for Your Worship. THE COURT: Thank you. And these probation orders Mr. Berger – Mr. Dalla-Nora representation, they've all been reviewed and there's an agreement on all the terms and conditions? MR. BERGER: There is, that's correct. MS.

ROSENBERG: If I may just explain... THE COURT: Go ahead. MS. ROSENBERG: ...the probation order. The statutory requirements for imposing this probation order pursuant to

section 72 of the Provincial Offences Act are satisfied in this case. Specifically the conditions that we propose the Court prescribes in this probation order are authorized pursuant to the section 72(3)(

c) of the POA. In our joint submission the terms that would be imposed by the probation order are appropriate as they will contribute to the rehabilitation of the defendant and are appropriate to prevent similar unlawful conduct. The draft probation order also includes appendix "A" with addition terms and it further details how the statutory requirements are satisfied. THE COURT: Counsel, can we go off the record for just one moment please? MS. ROSENBERG: Yes. (CLERK MONITOR’S NOTE: OFF RECORD ) (CLERK MONITOR’S NOTE: RETURN TO RECORDED RECORD ) CLERK OF THE COURT: And we're back on record.

THE COURT: All right, thank you. So I momentarily interrupted the proceedings. Where were we Miss Rosenberg? MS. ROSENBERG: I was just walking through the draft probation order which you have in front of you and which I understand you've had an opportunity to review. THE COURT: Indeed I have. MS. ROSENBERG: And we're currently just waiting for a print outs of that probation order but I had proposed that I continue with my sentencing submission. THE COURT: Go ahead Ma'am. MS. ROSENBERG: I would submit that the fine along with the probation order are appropriate in light of the facts of the cases before the Court.

The proposed fine and probation order take into account the defendant's previous convictions. The proposed fine is an escalation of the last fine imposed by this honourable Court when the additional requirements of the probation order are considered, the probation order contemplates a prohibition on bulking hazardous wastes for a period of six months as well as the installation of an embedded auditor. The fine is considerate of the relevant sentencing principles including deterrence.

It also takes in to account relevant mitigating and aggravating factors including the fact that an adverse effect resulted in count two; information two and the defendant's guilty plea and the continued efforts in arriving at this resolution. I would finally submit that the proposed fine is an appropriate penalty given the range of fines imposed in similar cases and it respects the principle of totality. THE COURT: Mr. Berger? MR. BERGER: Well, I would say that the defendants in this case have been remorseful, they've been cooperative throughout.

There certainly was some dispute about some of the facts and I'll say that – well I'm not gonna go through the agreed statement of fact in detail; you have it before you. Just on the last point about adverse effects on the second count, count two of the second information.

I can just indicate that the minute that literally instantaneously as soon as the – as Quantex determined from a complaint that there was an odour they did what they normally do and in accordance with their environmental compliance approval and shut down that particular transfer and the adverse impact as indicated in the agreed statement is - was transitory, it did not last anymore than the amount of time it took to shut down so one could say that it was de minimis; I know one of your sister Judges sometime ago, it's in the materials that I presented today, a Judge that I use to appear in front of years ago when I was with the Ministry of the Environment, Justice of the Peace Woodworth in a case called UBA on facts that were much worse that this found de minimis and acquitted the company of an offence even though there was some indication that one of the emergency responders had suffered some irritation of the eyes and that the roads had been - it was a spill.

That the road had been blocked off for a period of time, you'll find it in your material...

THE COURT: Yes. MR. BERGER: ...if you wanna look at it. So, I think that demonstrates the degree to which this defendant has sort of taken responsibility for its actions in this case and can ensure the Court that it intends to operate in a – in a responsible fashion in the future. THE COURT: All right thank you. MS. ROSENBERG: May I – if I just may make one... THE COURT: Go ahead Ma'am MS. ROSENBERG: ...final response.

The Crown's view is that these facts are not de minimis – de minimis would be a defense and the defendant has pleaded guilty to this count so the Crown's view that the facts as outlined are not in fact de minimis. Reasons for Judgment CUTHBERTSON, J. P. (Orally): 1 ) First of all I'll say the defense has clearly and unequivocally accepted the agreed statement of facts; we've dealt with that. So while I appreciate Mr.

Berger's comments on another case that was considered de minimis it really doesn't have an impact on my sentencing decision in this case rather I've heard from both sides in this matter. 2 ) I agree with Miss. Rosenberg that the agreement that has been reached in terms of both the significant fines as well as a very comprehensive probation order including the use of an embedded auditor provides a high level of both general and specific deterrence; I'll come back to that in a moment. 3 ) I think the fact that the company is pleading guilty today is a sign of remorse.

We had set some four weeks plus for a trial starting later this fall. That trial has now, by the decisions made in terms of pleading today, been made unnecessary. That shows remorse on part of the defendant and I consider it to be so even though it's taken several pre-trials to get to an early plea.

A lot of hard work has gone into this. 4 ) I note that the company did indeed plead before me on somewhat similar offences a couple of years ago and we've talked about that in the Judicial pre-trial process. 5 ) What I particularly want to note as a high indication of the company's desire to do things better and the Ministry's willingness to work with the company to see it do better in the future is the agreement as I noted in Appendix A, to the probation order.

The concept of an embedded auditor is unique I think, to this proceeding under the Provincial Offences Act, It's a concept that is recognized in the Criminal Code of Canada but is new to the Provincial Offences area. What it does is allow Quantex, having admitted its guilt today, to take very concrete steps to have someone who is independent both from Quantex and from the Ministry, take a look at its practices and procedures and identify any potential areas of problems and provide guidance on how to do things better in the future.

That speaks well in my mind of the company's intentions to set a new standard in the hazardous waste industry as to how things should be done. 6 ) I also want to commend the counsel from the Ministry of the Environment and Climate Change for its willingness to consider and agree to the embedded auditor concept.

In my view it recognizes that an embedded auditor can be a valuable tool to do exactly what I've already said; help a company identify any potential problems and to make recommendations for changes for the future as opposed to simply being caught in the trap of the defendant making mistakes in the future without the benefit of trying to find positive ways to identify and change those circumstances. 7 ) The Crown has shown that it is willing on behalf of the Ministry of the Environment to work with Quantex through the concept of an embedded auditor to achieve better results in the future for the Province and its citizens and frankly, I applaud both sides for the very thoughtful way you've constructed this agreement. 8 ) The fines are significant, they are an increase from the previous conviction when I look at both the fines themselves and the costs to Quantex of the embedded auditor and any steps that may be necessary to be taken once it has had a chance to digest the report and consider which steps it needs to take should it choose to do so, to do a better job in the future.

9 ) So, the penalty is clear, the general and specific deterrence is clear, the company gets the message as well as you have set a significant standard for other corporations and players in the hazardous waste industry. As I said, I applaud both sides for your efforts and I very greatly appreciate them. 10 ) So I will accept the joint submissions of counsel. The fines on count six and eight on the first information from January 2016 - count six will be $45,000 plus appropriate court costs and surcharges and a probation order which I'll come to in a moment, it will be for 15 months.

Count eight the fine will be $45,000 plus appropriate court costs and surcharges with a probation order running concurrent for 15 months. On count two of the second information from August of 2016, the fine on count two will be $50,000 plus appropriate court costs and surcharges with a probation period of 15 months concurrent to the other two probation orders from – perhaps I'll just list the information number, from information 25844/17. Now for the defense, how long does the corporation need to pay these fines please? MR. BERGER: We’ve asked for two years please.

THE COURT: All right, does the Ministry have any comments? MS. ROSENBERG: Ministry does not comment on that. THE COURT: These are significant fines; I recognize the weight of those fines on the corporation plus additional costs of hiring and paying the embedded auditor and any consequences of the final report so I will grant two years for the corporation to pay these fines. MR. BERGER: Might I ask, I know that I believe Miss. Rosenberg addressed this before but that the outstanding charges be withdrawn... THE COURT: I was just about to get to... MR. BERGER: ...formally... THE COURT: ...that sir. MR.

BERGER: Thank you. THE COURT: So Miss. Rosenberg on the other counts on the information from January of 2016 please – January/February 2016 I believe, it is including any against Mr. Dalla-Nora. MS. ROSENBERG: The Crown would request that all remaining counts against both defendants, Quantex Technologies Inc. and Marco Dalla-Nora be withdrawn on both informations. THE COURT: On both informations, all right thank you they are. Now in terms of the probation order itself and for the purposes of the record counsel have a very detailed Appendix "A" to the actual probation order.

I've already said it's for 15 months from today's date and it's in addition to fining the defendant. Do I need to read this into the record counsel or simply tender one of the probation orders as an exhibit? MR. BERGER: That would be fine with me as it were. MS. ROSENBERG: Yes, that's acceptable. THE COURT: All right, thank you. So counsel this acknowledged probation order and its exhibit "A" that will be entered as an appendix – sorry as an exhibit number two and if you would kindly note that Madam Clerk, here's a copy and I'll sign the documents.

So my order includes appendix "A" of the probation order and I'm signing that as well. MR. BERGER: I don't know if we need to do this or not but I'm assuming that we should formally request that or application before Justice Anderson be withdrawn? THE COURT: Thank you. So that raises two issues, one is the decision on the motion that counsel brought before Justice Anderson earlier, that is now to be withdrawn on consent of both side? MS. ROSENBERG: Yes Your Worship. MR. BERGER: Yes. THE COURT: All right thank you, it is.

And as well the trial dates that had been set for later this fall they can all now be vacated, correct counsel? MS. ROSENBERG: Correct. MR. BERGER: That’s correct.

THE COURT: All right thank you. Madam Clerk please notify the trial coordinator and the Regional Senior Justice of the Peace office, all those trial dates are to be vacated. So is there anything else we need to do on these matters counsel? MS. ROSENBERG: I would just – oh sorry... MR. BERGER: No, go right ahead. MS. ROSENBERG: I would just note that the defendant needs to be given a copy of this probation order signed by Your Worship by personal service today.

THE COURT: Correct and I will be signing copies of these orders that I've made today for all parties and will be providing those as soon as we go off the record, is that agreeable? MR. BERGER: That's agreeable. THE COURT: Any thing else further counsel? MR. BERGER: Not from me. THE COURT: Thank you all very much for your hard work. MR. BERGER: Thank you Your Worship. MR. CROSSNER: Thank You Your Worship. MS. ROSENBERG: Thank you. THE COURT: You're more than welcome.

Exhibit 2