R. v. EnviroGun Ltd. et al., 2015 SKPC 18

• Judge: Henning, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: February 05, 2015
• Jurisdiction: Saskatchewan
• Citations: 2015 SKPC 18;(2015), 468 Sask.R. 106 (PC)

R. v. EnviroGun Ltd. (2015), 468 Sask.R. 106 (PC)

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. FE.024

Her Majesty the Queen v. EnviroGun Ltd. and Clint A. Kimery

(Information Nos. 24153718; 24153718; 2015 SKPC 18)

Indexed As: R. v. EnviroGun Ltd. et al.

Saskatchewan Provincial Court

Henning, P.C.J.

February 5, 2015.

Summary:

EnviroGun Ltd. operated a hazardous waste transfer station. EnviroGun and its owner, Kimery, were charged that they failed to comply with an Environmental Protection Order issued on January 11, 2011, and thereby committed an offence contrary to s. 74(1)(c) of the Environmental Management and Protection Act.

The Saskatchewan Provincial Court found that the defence of due diligence was not established and EnviroGun and Kimery were guilty of the offence.

Editor's Note: For prior decisions in this matter see (2011), 394 Sask.R. 21 (Q.B.), (2012), 399 Sask.R. 69; 552 W.A.C. 69 (C.A.), (2013), 434 Sask.R. 83 (P.C.) and (2014), 440 Sask.R. 93 (P.C.).

Pollution Control - Topic 8074

Land - Waste disposal - Waste treatment or disposal facility - [See second Pollution Control - Topic 9341 ].

Pollution Control - Topic 9127

Offences - Strict liability offences - Defence of due diligence - [See second Pollution Control - Topic 9341 ].

Pollution Control - Topic 9310.1

Enforcement - General - Compliance orders - [See both Pollution Control - Topic 9341 ].

Pollution Control - Topic 9341

Enforcement - Orders - General - EnviroGun Ltd. operated a hazardous waste transfer station on property in the Rural Municipality (RM) of Sherwood - On January 11, 2011, the Minister of the Environment issued an Environmental Protection Order (EPO) to EnviroGun and its owner, Kimery, pursuant to s. 47 of the Environmental Management and Protection Act (EMPA) - The Minister gave a number of directions which were ordered to be completed by March 31, 2011 - Kimery and EnviroGun were charged with failing to comply with the EPO, thereby committing an offence contrary to s. 74(1)(c) of the EMPA - The Saskatchewan Provincial Court found Envirogun and Kimery guilty of the offence - The court stated, inter alia, "The first Defence position argued, was that the EPO was triggered by overpayment of taxes without relief, that the tax enforcement proceedings precipitated the closure of the business, and that the persons charged did not create pollution or contamination of the site when forced to leave it. Much of the argument addressed alleged the operation of the waste disposal site, and the justness of the dispute between the RM and Mr. Kimery. However, this line of argument addresses the issue of whether the EPO should have been made, and that is not the issue in this case" - See paragraph 44.

Pollution Control - Topic 9341

Enforcement - Orders - General - EnviroGun Ltd. operated a hazardous waste transfer station on property in the Rural Municipality (RM) of Sherwood - On January 11, 2011, the Minister of the Environment issued an Environmental Protection Order (EPO) to EnviroGun and its owner, Kimery, pursuant to s. 47 of the Environmental Management and Protection Act (EMPA) - The Minister gave a number of directions which were ordered to be completed by March 31, 2011 - Kimery and EnviroGun (the accused) were charged with failing to comply with the EPO, thereby committing an offence contrary to s. 74(1)(c) of the EMPA - The RM had foreclosed on the property because of failure to pay property taxes and had taken possession of the property - The Saskatchewan Provincial Court found that the defence of due diligence was not established and Kimery and EnviroGun were guilty of the offence charged - Kimery took no steps to decommission the site in accordance with the legislation in spite of the fact his operation was clearly going to cease due to the lawful actions of the RM - Kimery had received an October 21, 2010 Notice of Intent from the Ministry of the Environment which was a requirement precedent to the issue of an EPO - Kimery did not act upon the Notice with respect to the EPO that was eventually issued - There was no evidence of any attempt at compliance with any of the requirements before the deadline in the EPO - A lack of financial incapacity did not constitute due diligence - No details of the financial state of either the company or Kimery was presented - There was no communication of any reason for non-compliance to the Ministry during the time set out in the EPO, nor was there a request for any extension of time - The court did not find any sincere, reasonable or diligent intention or attempt to comply with the EPO - See paragraphs 44 to 65.

Pollution Control - Topic 9346

Enforcement - Orders - Persons responsible - EnviroGun Ltd. operated a hazardous waste transfer station on property in the Rural Municipality (RM) of Sherwood - The Minister of the Environment issued an Environmental Protection Order (EPO) to EnviroGun and its owner, Kimery, pursuant to s. 47 of the Environmental Management and Protection Act (EMPA) - The Minister gave a number of directions which were ordered to be completed by March 31, 2011 - Kimery and EnviroGun were charged with failing to comply with the EPO, thereby committing an offence contrary to s. 74(1)(c) of the EMPA - The RM had foreclosed on the property because of failure to pay property taxes and had taken possession of the property - The defence argued that this was not an abandonment of the site, but an involuntary transfer and therefore the environmental obligations were transferred with the land - The Saskatchewan Provincial Court stated that the provisions of the EMPA did not support the contention that an involuntary transfer of land relieved the original owner who carried on environmentally hazardous activity from environmental obligations - The EMPA might permit a subsequent owner to be also held liable, but it did not follow that the original operator of a hazardous site subject to the EMPA is relieved of liability - The true question in this case was whether EnviroGun and Kimery, the sole owner and directing mind of the company, employed due diligence in complying with the EPO - See paragraphs 45 to 46.

Trials - Topic 1172

Summary convictions - Strict liability offences - Defence of due diligence or error of fact - [See second Pollution Control - Topic 9341 ].

Cases Noticed:

R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299; 21 N.R. 295, refd to. [para. 6].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266, refd to. [para. 7].

R. v. Churchbridge 211 (Rural Municipality) et al. (2005), 273 Sask.R. 29; 2005 SKQB 524, refd to. [para. 50].

R. v. Pikowicz (D.C.) (2003), 237 Sask.R. 191; 2003 SKPC 120 (Prov. Ct.), refd to. [para. 51].

R. v. Consolidated Maybrun Mines Ltd. et al. (1996), 89 O.A.C. 199; 28 O.R.(3d) 161 (C.A.), refd to. [para. 52].

R. v. Klein (Robert) Enterprises Inc. (2004), 245 Sask.R. 161; 2004 SKPC 31, refd to. [para. 53].

Counsel:

Peter Hryhorchuk, for the Crown;

David MacKay, for the accused.

This matter was heard at Regina, Saskatchewan, before Henning, P.C.J., of the Saskatchewan Provincial Court, who delivered the following judgment on February 5, 2015.