R. v. Conestoga Rovers and Associates Inc., 2011 ONCJ 843

Citation: R. v. Conestoga Rovers and Associates Inc. , 2011 ONCJ 843 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN ) Laura Webber, Counsel for the ) Respondent -and- CONESTOGA ROVERS and ) John Buhlman, Counsel for the ASSOCIATES INC. ) Appellant ********** RESERVED REASONS ON APPEAL AUSTIN, J. The Crown appeals the following decisions of Her Worship Justice of the Peace Hoffman;

a) On June 18, 2010 granting the Defence motion for non-suit in relation to a charge of constructing a landfill gas utilization generation plant that may discharge a contaminant into the environment without a Certificate of Approval, and

b) On October 26 th , 2010, acquitting the Defendant in relation to a charge of altering a waste disposal site without the required approval. BACKGROUND FACTS

The Defendant (hereafter referred to as CRA) is an engineering firm that was hired as a consultant for a project to collect landfill gas from a landfill site and convert it to energy. Many parties were involved in this project including the County of Lambton and various energy and power distribution and generation corporations under the umbrella of Bluewater Power Distribution Corporation (hereafter called Bluewater).

The Defendant CRA entered a written contract for professional services with Bluewater as a client and the service performed under that contract included drafting and preparing applications for Certificates of Approval to the Ministry as required by the client, providing professional advice and conducting site inspections of work in progress. The CRA Construction Company was contracted to perform the construction related tasks and activities associated with this project. ISSUES ON APPEAL - ANALYSIS

a) Motion for Non-suit With respect to the motion for non-suit, the Crown takes issue with the conclusion of the Court that the construction of a landfill gas collection system in this case was a separate project from the landfill gas generation plant that was the ultimate objective of the overall project being constructed. The Crown also submitted the Court erred in narrowly defining and applying the term “construct” to the evidence in this case. While the landfill gas collection system was a necessary part of the landfill gas utilization generation plant, the reverse was not the case.

In this Court’s view, it was open to the Justice of the Peace in this matter to find that the landfill gas collection system was constructed first , as a separate and distinct project, in advance of the construction of the landfill gas utilization generation plant as a whole. While clearly these two components of the overall project were connected and designed to work in an integrated way as a whole when completed, they were not constructed simultaneously.

Rather, their construction was undertaken incrementally, in sequence, such that the gas generation plant construction followed, building upon and incorporating the landfill gas collection project once it was completed. It was only when the gas generation aspect of the project was undertaken that there could be the potential for discharge of a contaminant into the natural environment. In these circumstances, it was open to the Court to conclude as it did that there was no evidence of construction of a landfill gas utilization plant by virtue merely of construction of the landfill gas collection plant.

This conclusion was not the result of an error in law by too narrowly defining the term “construct”, but was a common sense conclusion available on the evidence. Otherwise there was no misapprehension of the evidence nor any incorrect application of any principle of law to the facts as found by the trial Justice.

b) Appeal against Acquittal The Crown further takes issue with the conclusions of the Court that, a. The Defendant was not in a position of control, charge or management of the project; b. The Defendant was not a party to the offence by aiding, abetting or encouraging the offence committed by the co-defendants. The Defendant company, CRA, was a consulting engineering firm with a contractual relationship to provide enumerated services at identified rates, as called upon by Bluewater.

The contract signed between the parties enumerated a range of services, some of which were performed and some of which were not performed, as determined by Bluewater. The contractual terms that permitted a greater and even a controlling role for CRA were never exercised or called upon, with the option or control in that regard resting with the client Bluewater, not with CRA. The services actually performed by CRA included the following; (

a) Preparing and submitting the application for Certificate of Approval (air and noise) required under s. 9 of the Environmental Protection Act. (

b) Providing Duncan Miller, an engineer in the employ of the Defendant, as a “Project Technical Information Contact” in relation to the Application. (

c) Providing health and safety training and quality control site inspections during construction. (

d) Preparing and submitting Applications to the Ministry of Environment for Certificates when instructed to do so. It is clear on the evidence that Tim Vanderheide and others involved in this project sought, received and relied upon the expertise, advice and

opinions provided by the CRA in general and Duncan Miller in particular from time to time during the relevant time period. It is common on the evidence of all witnesses that CRA advised Bluewater of the need for a Certificate before commencing construction. It is also in evidence that Mr. Miller provided some information with respect to the enforcement practices relative to other comparable projects CRA was involved in, in other parts of the province.

In particular, the import of this advice was that in the experience of CRA in relation to some other projects, the Ministry had relaxed enforcement practices by tolerating some construction before issuance of a Certificate where the plant was not running in any fashion. It is not the accuracy of this information that was an issue at this trial, but the sharing of it with Bluewater that is of concern to the Crown.

It is the position of the Crown that there was clear evidence of CRA’s exercise of control and influence, of aiding, abetting and counselling the commission of the offence demonstrated by the following actions of Duncan Miller on behalf of CRA;

a) The giving of this advice about other projects;

b) The failure to take action to stop Bluewater from starting the construction;

c) The minimization of the importance of the Ministry’s advice that an amendment would also be required. In this Court’s view, the trial Justice was not in error to have found otherwise for the following reasons: 1 . The contract provided an option for Bluewater/Vanderheide to receive management services from the Defendant CRA. However, there was no evidence that the CRA actually provided such services, was compensated for such services or was asked to provide such services. 2 .

Rather, the evidence supported the conclusion of the trial Justice that Tim Vanderheide of Bluewater made the decision and that CRA provided advice but did not play any role in the decision making. On behalf of Bluewater, he decided to embark upon the construction knowing the Ministry requirement existed, but taking the risk that enforcement might be relaxed or might not occur. It was reasonable for the trial Justice to conclude that it was Mr. Vanderheide who made the decision to assume the risk to commence construction without the requisite Certificate in place. 3 .

CRA had no individual or corporate connection or role in the decision-making structure associated with this project. Their role encompassing the design of the project, preparation of manuals, providing expertise and opinions and preparing and submitting the Applications for Ministry Certificates. None of these individually and collectively constituted part of the decision-making process. 4 . In addition, the Court was entitled to reject as it did, a narrow

interpretation of the meaning of Mr. Miller’s e-mail to Mr. Vanderheide in which he called the Amendment requirement “a minor paperwork item”. Although this e- mail characterized the amendment pre-condition as minor, the trial Justice was entitled to see this, in the context of what was going on, as a response to Mr. Vanderheide’s query about whether it warranted his assistant needing to do anything over the weekend while he was out of town. 5 .

On the evidence in this case, it was proper for the Court to distinguish between CRA Contracting and CRA and Associates as two separate entities with different and distinct contracts, roles and personnel. It was reasonable for the Court to view them as separate entities and not to attribute the actions of one to the other or to see them as operating in concert simply because of the common elements of the company names. It was reasonable for the Court to conclude that the advice, actions and role of CRA Contracting were not attributable to CRA Associates on the evidence at this trial.

The role of CRA as a consultant in relation to this project is different and therefore to be distinguished from the facts in the case of Montague v Ontario (Ministry of the Environment, (ON SCDC), [2005] O.J. No. 868, 12 C.E.L.R. (3rd) 271, R. v. Sault St.

Marie (City), (SCC), [1978] 2 S.C.R. 1299, and other cases where control was found “where one person hasthe ability to strongly influence the conduct of another.” The case of Montague v Ontario dealt with different circumstances that are distinguishable, where controlling roles were undertaken by“consultants” and where the evidence of the actual role of the Defendant clearly went beyond that of providing advice upon which adecision-maker relied.

The decision of Monague v Ontario does not stand for the proposition that liability is extended to consultantswho provide advice relied upon to the detriment of the person or Corporation charged with actual control and decision-making. If the Defendant actually performed a construction management function as the contract allowed for or if the evidence had supported aclear conclusion that the actions of CRA Construction Limited were the attributable CRA, the result would be different.

On the evidence in this case, the conclusion that there was no evidence of a controlling or a management role taken on by CRA nor anyinfluence in the decision-making process was a reasonable one, based upon the distinction drawn by the trier of fact between providingadvice and information used and relied upon by a decision-maker and actually assuming a role in managing, supervising, controlling orinfluencing the decision-making process.

It was not unreasonable on the evidence for the learned Justice of the Peace to find that therole of the CRA did not go beyond the provision of advice and that CRA did not counsel, aid or abet the commission of the offence. There was no misapprehension of the evidence nor any incorrect application of any principle of law to the facts in the decisions of Justice of the Peace Hoffman in this matter. As a result, the appeal is dismissed in relation to both the motion for non-suit and the acquittal. Dated at the City of Sarnia this 12th day of December, 2011 _________________________________ Madam Justice D. Austin