R. v. Corporation (City of Thunder Bay), 2011 ONCJ 852

COURT FILE No.: Thunder Bay DATE: 2011·08·16 Citation: R. v. Corporation (City of Thunder Bay) , 2011 ONCJ 852 ONTARIO COURT OF JUSTICE BETWEEN: Her Majesty the Queen in Right of Ontario (Ministry of Environment) — AND — The Corporation of the City of Thunder Bay Before Justice of the Peace R.A.

Zuliani Heard on Feb 28, and June 6, 2011 Reasons for Judgment released on August 16, 2011 Brian A Blumenthal ........................................................................................... for the prosecution Rosalee Evans ...................................................................... for the defendant City of Thunder Bay JUSTICE OF THE PEACE ZULIANI: The Corporation of the City of Thunder Bay, hereafter “the City” stands charged with the following: 1) On or about April 14, 2010 at Part of Mining Location 7, Savigney’s Survey, City of Thunder Bay being the holder of Permit to Take Water Number 4321-6RVR23. 2) By failing to provide a copy of the permit to a person authorized by the Permit Holder to take water under the permit did commit the offence of failing to comply with condition 1.2 of Permit to Take Water Number 4321-6RVR23, contrary to section 34 (8) (

c) of the Ontario Water Resources Act R.S.O. 1990, c. O.40 as amended, hereafter “the Act . 3) Further by failing to keep a copy of the permit available at all times at or near the site of taking, did commit the offence of failing to comply with condition 1.6 of Permit to Take Water Number 4321-6RVR23, contrary to the Act. 4) Further by taking water from the Current River in such a manner that caused interference with downstream use of water or with the natural function of the stream, did commit the offence of failing to comply with condition 5.2 of Permit to Take Water Number 4321-6RVR23, contrary to the Act.

Evidence Heard at Trial 5) In evidence as exhibit #1 is a Permit to Take Water Number 4321-6VR23, hereafter PTW, at Boulevard Lake located on the Current River, issued by the Ministry of the Environment to the City of Thunder Bay dated 2006. This permit is current and was in effect at the time of the occurrence. This permit outlines the terms and conditions for taking water. Both the Prosecution and Defence agree there is no question of the validity of this permit.

The PTW is the governing document and where any conflict occurs it takes precedence. 6) Included in exhibit #1 is a copy of the lease agreement between the City and Mr. Robert Whiteside outlining the expectations and responsibilities of both parties with respect to the operation by Mr. Whiteside of the hydro plant located on the Current River below the dam on Boulevard Lake. This is a commercial arrangement between the two parties and the admission of Mr. Matson, Manager of the Environment Division for the City is that this relationship was strained.

7) At exhibit #10 is a letter to Mr. Robert Whiteside from J. Vander Wal the chief of the Water Resource Assessment Technical Support

Section of the Ministry of the Environment, hereafter MOE, dated June 26, 1984 which grants approval in principle to Mr. Whiteside’s application for a permit to Take Water from Boulevard Lake but withholds the issuing of the permit until a formal operating agreement has been established. There is no evidence before the court with respect to this permit being issued. 8) Included in exhibit #1 is the Water Management Plan, hereafter the WMP, for the Boulevard Lake Dam and generating station on the Current River.

This plan is approved by the signatories for the City and the Ministry of Natural Resources, hereafter MNR, and was in effect at the time of the occurrence.

This WMP sets out legal enforceable provisions for the management of flows and levels on the river within the values and conditions identified in the WMP. 9) In exhibit #2, a letter from Mr Scott Sherrif, District Supervisor for MOE, is evidence that reports the fact that on the 13 th of April 2010 an event occurred downstream of the hydro generating plant that resulted in a reduced flow of water in the Current River causing a high mortality in the spawning smelt. 10) At exhibit #12 is the operating statistics from the generating plant showing hourly operations on a 24 hour cycle for the entire month of April 2010.

The normal operating method employed by the station is called a pulse mode which means that the water supply to the turbine is shut down for a period of time to allow the build of the water head at the dam then the water is allowed the flow through the turbine for a period of time allowing the turbine to generate power. This has been the mode of operation since the generating station started in 1984.

During the period of 1130 Pm on the 12 th of April to 0700 AM on the 13 th of April the plant was not running. 11) The WMP defines the limits to which Boulevard Lake can be drawn down and still maintain the three priority uses of the Lake. Specifically in order, first is the recreational use, second is use for power generation and third is for the operation of the fish ladder. There is evidence from the testimony of Mr.

Cory Halverson that the North Shore Steelhead Association had concerns that during low water events the minimum flow did not support the operation of the fish ladder and had attended meetings with representatives of the MNR, the City and the MOE to address their concerns.

The MNR had committed to investigating a better definition of minimum flow rate. 12) In appendix #1 of the PTW at page 140 in exhibit #1 recognizes only the excess flow above the 3.9 cubic metres per second flow that is required to maintain Boulevard Lake’s recreational function and the operation of the hydro-electric generating station is allocated for the operation of the fish ladder, and that the fish ladder would not be operational during the periods of low flow. 13) In Mr Whiteside’s testimony he states that when the station is operating it is drawing 3.9 cubic metres of water per second and when not operating he maintains a flow of 0.7 metres per second going through the station.

Whether the turbine is operating or not there is in addition a small amount of flow continually moving downstream that either seeps through or over the stop logs in the dam. 14) There is no definition, either in the PTW or the WMP, quantifying what the minimum flow is to be. 15) By his testimony Mr. Whiteside takes advantage of the higher rates for electricity in the peak hours by operating the plant during those peak hours of early morning to late evening.

Therefore there is only flow of 0.7 cubic metres during the late evening early morning hours through the generating station. 16) The smelt spawning run occurs in the spring during the late evening to early morning hours. It is acknowledged by Mr.

Merrit, Regional Investigation Supervisor with the MOE, that in the spring of 2010 there were unusually dry conditions in the region and that water levels were generally lower than normal. 17) Condition 1.2 of the PTW requires the permit holder provide a copy of the permit to any person authorized by the permit holder to take water and to take all reasonable measures to ensure that any such person complies with the condition of the permit. 18) Condition 1.6 of the PTW requires the permit holder to keep this permit available at all times at or near the site of the taking and to produce it immediately for inspection by a Provincial Officer upon his or her request.

19) Mr.

Matson in his testimony identifies that the City held a copy of the PTW at the city office at Front and Egan Street which is a five minute drive from the site of taking. 20) Condition 5.2 requires that the taking of water (including the taking of water into storage and the subsequent or simultaneous withdrawal from storage) shall be carried out in such a manner that the stream flow is not stopped and is not reduced to a rate that will cause interference with the downstream uses of water or with the natural function of the stream. 21) There is evidence before the court that the downstream flow of the water in the Current River, specifically the reach from below the generating station to the shore of Lake Superior had been disrupted on the date in question as is outlined in the testimony of Mr.

Merrit, who testified that he was fishing on the night in question at the mouth of the Current River and had observed a number of smelt stranded in shallow pools or puddles and appeared to be landlocked. He testified that the fish were in various stages from being stranded on land dying or dead or landlocked in small pools or puddles. Positions Taken 22) The position of the Defence in respect of count one, failing to provide a copy of the PTW to a person authorized to take water under the permit, is that Mr.

Whiteside, who by the authority of a lease agreement with the City, is the person authorized to take water was of the belief that Mr Whiteside had prior authorization to take water as the operation of the hydro station predated either of the PTW issued in 1992 and subsequently in 2006 as he had been operating the plant since 1984. They rely on the letter from the MNR dated 1984(exhibit # 10) to support this position. 23) The position of the Crown in respect of count one is that the PTW is the authoritative document which clearly outlines in

section 1.2 the requirement of the Permit Holder to provide a copy of the permit to a person authorized to take water. This is a strict liability offence and the requirement, which is governed by the condition of the permit, is precise and that the defendant is in clear violation of this requirement. There is evidence before the court from Mr. Whiteside’s testimony that he was never provided with a copy of the PTW. This is not contradicted by any other evidence. 24) The position of the Defence to count two is that the permit is to be kept at or near the site of the taking.

There is no requirement in the Act that the permit be posted at the site. The permit was held at the Egan Street office which is a five minute drive from Boulevard Lake. This is a City building with a public service counter where any interested party could access the PTW. The City has submits it therefore complied with condition 1.6 of the permit. 25) The position of the Crown is that by the testimony given by Kerry Marshal, Manager of the Environmental Division for the City of Thunder Bay, the Permit was not available at the site. Mr.

Whiteside or any other interested party therefore did not have access to it and therefore the City was in contravention of condition 1.6 of the PTW 26) The position of the Defence with respect to count three, the interference with the downstream use of water contrary to

section 5.2 of the PTW, is that the City acknowledges that the event took place but contends that it relied on a belief that this was a once only event, the dam at Boulevard Lake had been operating since 1984 and there was never a reported occurrence of this kind prior to or since this event. The dam had always operated in a pulse mode which allows water to be built up behind the dam then water is taken to address the three priorities of the WMP.

The water is taken in accordance with the standard operating procedures outlined in the WMP which allows the water to be drawn down to 0.15 m below the level set by the City. There is always a continuous flow of water through and/or over the top of the stop logs which maintains a minimal flow of water downstream. This flow had always been believed to be sufficient to not interfere with the downstream use of the river. Once the city had knowledge of the event the city took the immediate action to shut down the operation of the generating station by closing the supply valves to that operation.

The City contends that they had relied on a mistaken set of facts that had they been true the event would not have occurred. They are relying on the first branch of a due diligence defence.

27) The position of the Crown with respect to count three, the interference of the downstream use of water contrary to section5.2 of the PTW, is that the City should have foreseen the possibility of the event in that it was an unusual spring as the normal springfreshet did not occur and that the water levels were generally lower than normal that year. The city had a strained working relationshipwith Mr. Whiteside, the owner of the generating station, and had previous concerns with flow levels through the dam with respect to theoperation of that station.

Specifically, the City had difficulty in obtaining information with respect to flow levels from Mr. Whitesidewhich they needed to include in their annual report as imposed by the Permit to Take Water. By Mr. Whiteside’s testimony he was notforthcoming with the information as he did not trust people in authority at the City or MNR.

The Crown is relying on the position thatthe abnormally dry conditions in the region should have triggered a response by the City in respect to foreseeing a possible problem withtheir PTW from Boulevard Lake and the City was negligent in that it should have taken a proactive stance to avoid a foreseeableproblem. Findings 28) The City is the holder of the PTW from Boulevard Lake as is outlined in the permit issued in 2006. By virtue of theexisting agreement between Mr Whiteside and the City of Thunder Bay in with respect to the commercial operation of the hydro electricstation Mr.

Whiteside is a person authorized to take water. There is no challenge to the validity of the permit. It is the governingdocument and clearly outlines at condition 1.2, the responsibility of the permit holder to provide a copy of the permit to a personauthorized to take water. The court is satisfied that the Crown has proven beyond a reasonable doubt all the essential elements of countone in that the City was the holder of the PTW, Mr.

Whiteside is a person authorized to take water and the City failed to comply withcondition 1.2 of the permit which directs that a copy of the permit be provided to a person authorized to take water under that permit.Therefore there will be a finding of guilt and a conviction registered on count one. 29) Justice Walker in the case R v Bouclin (1983 (SK KB), Carswell Sask 364, 27 Sask. R. 86,

(1983) W.C.D.226) finds that: “near” has no precise meaning. It is not a restraining word but expanding word. It is a relative term. It is a generaldescription. It may be extended as far as reasonable in the circumstances.”The court is swayed by this reasoning and finds that the Cityof Thunder Bay has met condition 1.6 of the Permit to Take Water which requires the permit to be held at or near the site of taking byhaving the permit available at the Egan Street location. This is a public building with a service counter accessible to the general publicand is a five minute drive from the site of the taking.

Therefore there will be an acquittal on count two of failing to have a copy of thepermit at or near the site of taking. 30) The Supreme Court of Canada sets out the test for due diligence in relation to strict liability offences in R. V. Sault Ste. Marie(City) (1978), (SCC), 40 C.C.C. (2d) 353 (S.C.C.) 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 that on the balance of probabilitiesthat he has a defence of reasonable care. ...the doing of a prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took allreasonable care. This involves consideration of what a reasonable man would have done in the circumstances.

The defence will beavailable if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if hetook all reasonable steps to avoid the particular event. 31) Both branches of the due diligence defence were recently analyzed in R. v MacMillan Bloedel Ltd. (2002) 2002 BCCA 510 , 220 D.L.R. (4th) 173 (B.C.C.A.) involving an unanticipated diesel fuel leakage from underground pipes which resulted in thedeposit of a deleterious substance contrary to s. 36 of the Act. After repeating the last sentence from the Sault Ste.

Marie passage quotedabove, and stressing the word “or”, Smith J.A. stated as follows:

47) Thus, there are two alternative branches to the due-diligence defence. The first applies when the accused can establish that he did not know and could not reasonably have known of the existence of the hazard. The second applies when the accused knew or ought to have known of the hazard. In that case, the accused may escape liability by establishing he took reasonable care to avoid the “particular event”. This point is elucidated in the reasons of Dickson J in Sault Ste.

Marie at pp 365-66, where after referring to cases in which the offences turned on the unlawful status of a person or place he said: In such cases, negligence consists of an unreasonable failure to know the facts which constitutes the offence. It is clear, however, that in principle the defence is that all reasonable care was taken. In other circumstances, the issue will be whether the accused’s behaviour was negligent in bringing about the forbidden event when he knew the relevant facts.

Once the defence of reasonable mistake of fact is accepted, there is no barrier to acceptance of the other constituent part of the defence of due diligence. In assessing the application of either branch of the defence, it is critical for the court to consider the conduct in the proper context. Immediately after reproducing passages from Sault Ste. Marie supra, Smith J.A. in . v.

MacMillan Bloedel supra, stated as follows: The important point to be drawn from the discussion is that whether the accused’s conduct was “innocent”, under the first branch of the defence, or whether the accused took “all reasonable steps” under the second branch, must be considered in the context of the “particular event”. 32) The court has assessed the positions of both the Defence and the Crown.

The dam at Boulevard Lake has been in operation since the mid 1980’s and the spring freshet has varied during that time frame. 2010 was an abnormal year in that the spring freshet was minimal and the result was low water levels in the region. 33) The operating procedures at the dam have remained unchanged since commencing operations in that it has always run on a pulse mode that is controlled by the conditions of the WMP that defines the limit to which water can be drawn to namely 0.15 m below the level set by the City. 34) The City had engaged in discussion with the MNR and other interested parties in February seeking to identify the minimum flow needed not to cause interference with the downstream use of the river.

They had not received this information as of the time of this hearing. 35) Having turned its mind to the existing climatic conditions and the operation of the dam the court assesses these to be two independent issues. The operation of the dam in pulse mode is related to the climatic conditions in so much as the spring freshet in 2010 was absent or abnormally low would affect the operation of the dam by increasing the time required to build up the water head. 36) The city has been in a strained relationship with the operator of the hydro station for many years.

The strain in the relationship revolves around the priority of use for the water as well as the difficulty in obtaining information from Mr. Whiteside with respect to flow rates that the City needed to complete its annual report to MOE. The commercial relationship between Mr. Whiteside and the city is not at issue in this trial; however the delegated stewardship to comply with the conditions of the PTW is an issue. 37) Since the beginning of the operation of the dam there have never been any reported incidents of fish mortality as a result of reduced downstream flow.

There has always been a minimal flow through and/or over the stop logs at the dam. “Due diligence” requires anticipation of possible risk factors (abnormally dry conditions) and their potential impact on responsibilities. Anticipating an unusually dry spring, in February the City was engaged in discussions with the MNR, NSSA and other interested parties trying to determine among other things what a the minimal flow requirements should be so as not to interfere with the downstream use.

The City had in place a WMP that anticipated the three uses of the water and contained directions that controlled the amount of water that could be taken from Boulevard Lake (0.15M below the level of the top stop log) 38) On April 13 the natural function of the downstream use of the water was been interrupted as is shown by the evidence of Mr. Merrit who testified that he observed many smelt stranded in shallow pools or puddles and appeared to be landlocked. The city took immediate action in shutting down the water supply to the operating station once it became aware of the incident.

This action confirms the point that Mr. Whiteside was not operating the hydro facility within the City’s established expectations and that the city was acting out of concern for the environment once aware of the facts. 39) Given that the unusually dry conditions at the time were widely known and that they were having trouble gaining information with respect to flow rates from Mr. Whiteside thus impeding their ability to effectively monitor the generating operation it is reasonable to assume that the City should have anticipated its potential effect on Boulevard Lake with respect to water levels and overflow.

Due diligence requires “reasonable” anticipation of events with known consequences and to take active measures to mitigate or prevent their occurrence. The City was in fact in the process of doing exactly this though consultative meetings with other stakeholders and by continuing to pressure Mr.

Whiteside to conform to requests for information. 40) The court is satisfied that the defence has established that the City did not know or reasonably could have known that the incident would occur based on their belief that the dam had operated successfully since it opened with no reported incidents of this nature and that the minimal flow maintained by seepage was adequate to maintain a flow that would not interfere with the downstream use.

The court has found that the City has established on a balance of probabilities that it believed in a set of facts that had they been true the event would not have occurred and that they were alive to the anticipated dry spring conditions and acted reasonably in making inquiries as to minimal flow levels thereby exercising due diligence. Once the facts were brought to the attention of the City the immediate action of turning off the valves to the generating station was undertaken to remedy the effect downstream.

Since the incident a detailed monitoring of the operation has been undertaken and there have been no subsequent incidents of a similar nature reported. Based on the totality of the evidence before the court there will be an acquittal on count three of the information.

Released: August 16, 2011 Signed: “Justice of the Peace R.A. Zuliani”