R. v. Beusekom (J.) et al., 2003 ABPC 158

• Judge: Jacobson, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: October 23, 2003
• Citations: 2003 ABPC 158;(2003), 345 A.R. 214 (PC)

R. v. Beusekom (J.) (2003), 345 A.R. 214 (PC)

MLB headnote and full text

Temp. Cite: [2003] A.R. TBEd. DE.023

Her Majesty the Queen (plaintiff) v. Jerry Beusekom, Annette Beusekom, Carolyn Van Hierden, Janet Van Hierden, Peter Van Hierden, Bert Van Hierden and Paragon Livestock Exchange Inc. (defendants)

(020778692P101001-003; 2003 ABPC 158)

Indexed As: R. v. Beusekom (J.) et al.

Alberta Provincial Court

Jacobson, P.C.J.

October 23, 2003.

Summary:

Paragon Livestock Exchange (Paragon) operated a truck wash facility. Paragon's customers were truck drivers who, after transporting livestock, required their trailers to be cleaned of manure and then washed and disinfected. Effluent escaped from Paragon's lagoon. Paragon was ordered to, inter alia, stop all washing activity. To enable Paragon to continue operations pending construction of a new lagoon, a plan was implemented to dispose of waste from the existing lagoon. Paragon reopened the facility. A neighbouring property owner appealed. The Public Health Board concluded that the impugned order was reasonable, but varied it. Condition 2 of the varied order imposed a deadline for construction of the new lagoon. Condition 3 required Paragon to prepare and have approved a manure management plan. Condition 4 provided that if conditions 2 and 3 were not satisfied, Paragon was to cease all washing operations. Paragon, its directors and its shareholders (the defendants) were charged with breaching condition 4. A minority shareholder was charged with contravening s. 71 of the Public Health Act. Section 71 prohibited obstructing, hindering or interfering with a person in the execution of his duties under the Act. The defendants challenged the validity of the Public Health Board's order.

The Alberta Provincial Court held that the Public Health Board order was valid and had been breached. The court convicted Paragon and one minority shareholder of breaching condition 4. The court convicted the same minority shareholder on the s. 71 charge. The court dismissed the charges against the remaining defendants.

Administrative Law - Topic 574

The hearing and decision - Decisions of the tribunal - Collateral attack - Effluent escaped from the lagoon of Paragon Livestock's truck wash facility - An order was issued under the Public Health Act requiring that Paragon stop all washing activity -To permit Paragon to continue operations pending construction of a new lagoon, a plan was implemented to dispose of waste from the existing lagoon - Paragon reopened - A neighbouring property owner appealed - Paragon participated fully in the appeal - The Public Health Board concluded that the impugned order was reasonable, but varied it - The Public Health Act did not provide for a further appeal - Paragon, its directors and its shareholders (the defendants) were charged with breaching the Board's order - The defendants challenged the order - The Alberta Provincial Court held that, with a proper foundation, a collateral attack on the validity of administrative orders under the Act might be a defence in some penal proceedings - However, that foundation was not present -The defendants had not established that their attack was based on considerations foreign to the Board's expertise or "raison d'etre", that the court was the appropriate forum or that the legislature had deprived them of an opportunity to assert their rights - See paragraphs 128 to 151.

Company Law - Topic 2663

Shareholders - Liability of shareholders - General - Criminal or regulatory offences -A corporation's premises was the subject of an order under the Public Health Act, as amended by the Public Health Board - The order referenced the obligations of the corporation and a minority shareholder (Beusekom), but not the role of the directors and remaining shareholders - Beusekom was the corporation's directing mind and had the actual or apparent control of the premises - The corporation, the directors and the shareholders were charged with breaching the order - The Alberta Provincial Court convicted the corporation and Beusekom - The court dismissed the charges against the others where it was not established that they had a primary liability, or that there was a nexus between the actus reus and their corporate status and responsibilities - See paragraphs 157 to 161, 169 and 170.

Company Law - Topic 4189.1

Directors - Liability of directors - Criminal or regulatory offences - [See Company Law - Topic 2663 ].

Health - Topic 1206

Public health legislation - General - Orders - Service - A corporation's premises was the subject of an order under the Public Health Act, as amended by Public Health Appeal Board - The corporation, its shareholders and its directors (the defendants) were charged with contravening the order -The Alberta Provincial Court rejected an assertion that the orders were null and void for non-compliance with the service requirements of ss. 62 and 68 of the Act - The defendant Beusekom, a minority shareholder who controlled the corporation's facility and its day to day operations, was aware of the orders and their contents and had taken steps to comply with the orders - There were also many meetings between Beusekom and authorities concerning the Board's decision - Even though the defendants were not properly served, they were or should have been aware of the contents of the orders - See paragraphs 155 and 156.

Health - Topic 1207

Public health legislation - General - Orders - Collateral attack - [See Administrative Law - Topic 574 ].

Health - Topic 1248

Public health legislation - Offences - Owner defined - A corporation's premises was the subject of an order under the Public Health Act, as amended by the Public Health Board - The order referenced the obligations of corporation and a minority shareholder (Beusekom), but not the role of the remaining shareholders and the directors - The corporation, directors and shareholders (the defendants) were charged with breaching the order - The issue arose respecting who were "owners" under the Act - The Alberta Provincial Court held that the corporation, as the registered owner of the premises in question, was an owner - Beusekom, who was the corporation's directing mind and had the actual or apparent control of the premises, was also an owner - The other shareholders and the directors were not shown, either collectively or individually, to be owners - See paragraphs 124 to 127.

Words and Phrases

Owner - The Alberta Provincial Court considered the meaning of "owner" as set out in s. 1(ff) of the Public Health Act, R.S.A. 2000, c. P-37 - See paragraphs 124 to 127.

Cases Noticed:

R. v. Canadian Dredge & Dock Co. et al., [1985] 1 S.C.R. 662; 59 N.R. 241; 9 O.A.C. 321; 45 C.R.(3d) 289; 19 C.C.C.(3d) 1; 1985 CarswellOnt 96, refd to. [para. 64].

Lennard's Carrying Co. v. Asiatic Petroleum Co., [1915] A.C. 705, refd to. [para. 65].

R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299; 21 N.R. 295; 40 C.C.C.(2d) 353; 3 C.R.(3d) 30, refd to. [para. 68].

R. v. 974649 Ontario Inc. et al., [2001] 3 S.C.R. 575; 279 N.R. 345; 154 O.A.C. 345; 159 C.C.C.(3d) 321, refd to. [para. 69].

R. v. Wholesale Travel Group Inc. and Chedore, [1991] 3 S.C.R. 154; 130 N.R. 1; 49 O.A.C. 161; 67 C.C.C.(3d) 193; 8 C.R.(4th) 145; 84 D.L.R.(4th) 161, refd to. [para. 70].

R. v. China BBQ Specialty, 1999 ABPC 166 (Prov. Ct.), refd to. [para. 71].

R. v. Kraus (H.) (1997), 203 A.R. 132; 53 Alta. L.R.(3d) 139 (Q.B.), refd to. [para. 72].

Sullivan and Sullivan Farms Ltd. v. Desrosiers et al. (1986), 76 N.B.R.(2d) 271; 192 A.P.R. 271; 40 C.C.L.T. 66 (C.A.), refd to. [para. 78].

R. v. Chapin, [1979] 2 S.C.R. 121; 26 N.R. 289, refd to. [para. 79].

R. v. Molis, [1980] 2 S.C.R. 356; 33 N.R. 411, refd to. [para. 80].

R. v. General Scrap Iron & Metals Ltd. (2002), 322 A.R. 32; 2002 ABQB 665 (Q.B.), refd to. [para. 81].

R. v. Goebel (W.) (2003), 338 A.R. 201; 2003 ABQB 422, refd to. [para. 82].

R. v. Glenshiel Towing Co. (2001), 154 B.C.A.C. 310; 252 W.A.C. 310; 157 C.C.C.(3d) 335; 90 B.C.L.R.(2d) 289 (C.A.), refd to. [para. 83].

Kosmopoulos et al. v. Constitution Insurance Co. of Canada et al., [1987] 1 S.C.R. 2; 74 N.R. 360; 21 O.A.C. 4, refd to. [para. 87].

Montreal Trust Co. of Canada et al. v. ScotiaMcLeod Inc. et al. (1995), 87 O.A.C. 129; 26 O.R.(3d) 481 (C.A.), refd to. [para. 87].

804977 Alberta Ltd. et al. v. Lowrie et al., [2003] A.R. Uned. 134; 2003 ABQB 234, refd to. [para. 87].

Degenstein et al. v. McDiarmid et al. (1993), 144 A.R. 386; 13 Alta. L.R.(3d) 332 (Q.B.), refd to. [para. 87].

Curtis v. Curtis, [1994] B.C.J. No. 2666 (S.C.), refd to. [para. 88].

Clarkson Co. v. Zhelka et al., [1967] 2 O.R. 565; 64 D.L.R.(2d) 457 (H.C.), refd to. [para. 89].

Blacklaws et al. v. 470043 Alberta Ltd. (2000), 261 A.R. 28; 225 W.A.C. 28; 187 D.L.R.(4th) 614; 84 Alta. L.R.(3d) 270 (C.A.), refd to. [para. 89].

Colborne Capital Corp. et al. v. 542775 Alberta Ltd. et al., [1999] 8 W.W.R. 222; 228 A.R. 201; 188 W.A.C. 201; 69 Alta. L.R.(3d) 265 (C.A.), refd to. [para. 89].

Sylvan Lake Golf & Tennis Club Ltd. v. Performance Industries Ltd. and O'Connor (No. 2) (2000), 255 A.R. 329; 220 W.A.C. 329; 185 D.L.R.(4th) 269 (C.A.), refd to. [para. 89].

R. v. Boyle (K.P.) et al. (2001), 290 A.R. 201; 2001 ABPC 18, refd to. [para. 90].

R. v. G.B. et al. (No. 2), [1990] 2 S.C.R. 30; 111 N.R. 31; 86 Sask.R. 111; 56 C.C.C.(3d) 200, refd to. [para. 92].

R. v. Sutherland (T.) (1997), 204 A.R. 241 (Prov. Ct.), refd to. [para. 95].

R. v. Consolidated Maybrun Mines Ltd. et al., [1998] 1 S.C.R. 706; 225 N.R. 41; 158 D.L.R.(4th) 193; 123 C.C.C.(3d) 449, refd to. [para. 96].

R. v. Klippert (Al) Ltd., [1998] 1 S.C.R. 737; 225 N.R. 107; 216 A.R. 1; 175 W.A.C. 1; 158 D.L.R.(4th) 219; 67 Alta. L.R.(3d) 243, refd to. [para. 96]

Statutes Noticed:

Public Health Act, R.S.A. 2000, c. P-37, sect. 1(ff) [para. 62].

Authors and Works Noticed:

Ewaschuk, Criminal Proceedings and Practice in Canada (2nd Ed.), vol. 3, pp. 9-57, 9-59, para. 9:12100 [para. 94].

Counsel:

Robert T. O'Neill, for the Crown;

C. Michael Smith, for the accused.

This matter was heard by Jacobson, P.C.J., of the Alberta Provincial Court, who delivered the following judgment at the District of Lethbridge/Macleod, on October 23, 2003.