Blaine Lake, No. 434 (Rural Municipality) v. Geransky Brothers Construction Ltd., 2011 SKQB 88

• Judge: Goldenberg, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: February 23, 2011
• Jurisdiction: Saskatchewan
• Citations: 2011 SKQB 88;(2011), 376 Sask.R. 83 (QB)

Blaine Lake v. Geransky Bros. Constr. (2011), 376 Sask.R. 83 (QB)

MLB headnote and full text

Temp. Cite: [2011] Sask.R. TBEd. MR.030

Geransky Bros. Construction Ltd., 529 Centennial Drive, Martensville SK S0K 2T0 (appellant) v. Her Majesty The Queen (respondent)

(2009 Q.B.C.A. No. 1; 2011 SKQB 88)

Indexed As: Blaine Lake, No. 434 (Rural Municipality) v. Geransky Brothers Construction Ltd.

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Goldenberg, J.

February 23, 2011.

Summary:

A construction company obtained discretionary use development permits from a rural municipality to operate gravel pits. The permits contained conditions respecting, inter alia, the hours of operation, the measuring of the amount of gravel excavated, and the provision of a letter of credit as security for reclamation. The construction company allegedly failed to provide the letter of credit, failed to accurately measure the excavated gravel, operated outside the permitted hours, and constructed an approach to the public highway without municipal approval. The company was charged with eight offences for violating the discretionary use development permits, the rural municipality's bylaw respecting gravel pits, and the Planning and Development Act. The company was also charged with violating s. 381(c) of the Municipalities Act relating to the construction of the approach. The company submitted that the rural municipality had no jurisdiction to enforce an alleged violation of a provincial statute. The company also submitted that the offences were strict liability offences and that it exercised due diligence. Alternatively, the company alleged that the rural municipality acted in bad faith throughout.

The Saskatchewan Provincial Court, in a judgment reported (2008), 327 Sask.R. 91, found the company guilty on eight of the nine charges. One of those eight convictions was stayed (Kienapple). The rural municipality had jurisdiction to prosecute both violations of permits and its bylaws and provincial statute violations relating to municipal affairs. The company failed to exercise due diligence and there was no bad faith on the part of the rural municipality. The company was fined a total of $105,000 ($15,000 per offence) and a $21,000 victim fine surcharge.The company appealed against conviction and sentence.

The Saskatchewan Court of Queen's Bench allowed the conviction appeal in part. Two convictions and the fines associated with them were set aside. Another conviction was set aside and remitted to the trial judge for proper determination. The convictions on the five other charges were affirmed, but the sentences were varied to the maximum fine allowable under the bylaw ($5,000 per offence) plus a surcharge of $1,000 per offence.

Courts - Topic 584

Judges - Duties - Duty to determine issues - A construction company was convicted of an offence under the Planning and Development Act for allegedly failing to file a report by a geological engineering technician respecting a gravel pit it operated - The company testified that the report was sent - The municipal official in charge of the matter testified that he did not receive it - The Saskatchewan Court of Queen's Bench set aside the conviction - The trial judge was not alive to the issue of credibility between the company and the municipal official and failed to determine the credibility issue - See paragraphs 27 to 34.

Criminal Law - Topic 6714

Operation and effect - Commencement, duration and repeal - Retrospective and retroactive enactments - Retrospective or retroactive operation - Criminal or penal legislation - A construction company was found guilty of three counts of breaching s. 243(1)(a)(ii) of the Planning and Development Act (2007 Act) - One count involved conduct between January 1 and December 31, 2006, prior to the 2007 Act coming into force on March 21, 2007 - The other two counts covered the period from January 1 to December 31, 2007 - The Saskatchewan Court of Queen's Bench entered an acquittal on the count that predated the coming into force of the 2007 Act, as "an accused must be tried and punished under the law in force at the time the offence is committed" - The court rejected the company's argument that, since a portion of the time period over which it was alleged to have committed those offence predated the 2007, it was also entitled to acquittals on those two counts - The evidence established that those offences were continuing offences involving a failure to comply with the 2007 Act each day in 2007 - It necessarily followed that the company failed to comply with the 2007 Act from March 21 to December 31, 2007 - The court amended the information to substitute March 21 for January 1 - See paragraphs 11 to 26.

Municipal Law - Topic 411

Councils - Resolutions - Quashing of - Grounds - Bad faith - [See Trials - Topic 1172 ].

Municipal Law - Topic 3982

Bylaws - Enforcement or prosecution - Nature of - A construction company obtained discretionary use development permits from a rural municipality to operate gravel pits - The permits contained conditions respecting, inter alia, the hours of operation, the measuring of the amount of gravel excavated, and the provision of a letter of credit as security for reclamation - The construction company allegedly failed to provide the letter of credit, failed to accurately measure the excavated gravel, operated outside the permitted hours, and constructed an approach to the public highway without municipal approval - The company was charged with eight offences for violating the discretionary use development permits, the rural municipality's bylaw respecting gravel pits, and the Planning and Development Act - The company was also charged with violating s. 381(c) of the Municipalities Act relating to the construction of the approach - The company submitted that the rural municipality had no jurisdiction to enforce an alleged violation of a provincial statute - The trial judge rejected the submission, finding that "it is an offence to contravene a [rural municipality] bylaw or bylaws. Such a contravention may constitute an offence as being contrary to the enforcement provision of the RM bylaws. It may also constitute an offence as being contrary to other provincial statutes. In this case, the offences alleged are contraventions of: the Zoning Bylaw of the RM [charge #9]; s. 381(c) of the Municipalities Act [charge #8]; and, s. 243(1)(a)(ii) of the Planning and Development Act [charges #1-7]." - The Saskatchewan Court of Queen's Bench substantially agreed with the trial judge's conclusion that the rural municipality "does have the legal authority to prosecute and enforce the offences for which the [construction company] was convicted" - See paragraphs 8 to 10.

Trials - Topic 1172

Summary convictions - Strict liability offences - Defence of due diligence or error of fact - A construction company obtained discretionary use development permits from a rural municipality to operate gravel pits - The permits contained conditions respecting, inter alia, the hours of operation, the measuring of the amount of gravel excavated, and the provision of a letter of credit as security for reclamation - The construction company allegedly failed to provide the letter of credit, failed to accurately measure the excavated gravel, operated outside the permitted hours, ignored stop work orders, and constructed an approach to the public highway without municipal approval - The company was charged with eight offences for violating the discretionary use development permits, the rural municipality's bylaw respecting gravel pits, and the Planning and Development Act - The company was also charged with violating s. 381(c) of the Municipalities Act relating to the construction of the approach - The trial judge rejected the defences of due diligence (on eight of nine counts) and bad faith by the municipality council for the strict liability offences - The company disagreed with the municipality's requirements, which it felt were unfair and unjustified and deliberately failed to comply because it felt singled out and discriminated against by a municipal council acting in bad faith - A conscious decision to ignore requirements that were disagreed with did not constitute due diligence - Council clearly acted in good faith in providing specific restrictions in attempting to regulate gravel pits - The fact that no other pit operator was charged, and were not all subject to the same restrictions, did not provide a defence - The company had the option of seeking declaratory relief in the Court of Queen's Bench if it disagreed with what it was required to do - The Saskatchewan Court of Queen's Bench held that the trial judge did not err in rejecting the defence of due diligence or in rejecting the allegation of bad faith - See paragraphs 54 to 100.

Cases Noticed:

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, refd to. [para. 3].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 2000 SCC 15, refd to. [para. 6].

Gamble v. R., [1988] 2 S.C.R. 595; 89 N.R. 161; 31 O.A.C. 81, refd to. [para. 13].

R. v. J.Y. (1996), 141 Sask.R. 132; 114 W.A.C. 132 (C.A.), refd to. [para. 13].

R. v. J.E.B. (1989), 94 N.S.R.(2d) 312; 247 A.P.R. 312; 52 C.C.C.(3d) 224 (C.A.), refd to. [para. 19].

R. v. K.M., [2008] O.T.C. Uned. 179 (Sup. Ct.), refd to. [para. 19].

R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299; 21 N.R. 295, refd to. [para. 62].

Equity Waste Management of Canada et al. v. Halton Hills (Town) (1997), 103 O.A.C. 324; 35 O.R.(3d) 321 (C.A.), refd to. [para. 87].

R. v. Vanguard Hutterian Brethren Inc., [1979] 6 W.W.R. 335; 5 Sask.R. 376, refd to. [para. 88].

Ashby, Adam and Siwak v. Prince Albert (City), [1984] 6 W.W.R. 93; 35 Sask.R. 30 (Q.B.), refd to. [para. 89].

R. v. Gugulyn (1982), 17 Sask.R. 404 (Dist. Ct.), refd to. [para. 101].

Corman Park No. 344 (Rural Municipality) v. Saskatoon Berry Farms Ltd. (1994), 121 Sask.R. 212 (Q.B.), affd. (1995), 137 Sask.R. 259 (C.A.), refd to. [para. 103].

Counsel:

Robert F. Thornton, Q.C., for the appellant;

Tiffany M. Paulsen, Q.C., for the respondent.

This appeal was heard before Goldenberg, J., of the Saskatchewan Court of Queen's Bench, who delivered the following judgment on February 23, 2011.