The B.C. Supreme Court sent a strong message to polluters this summer: there will be a heavy fine to pay for anyone who is caught negligently polluting.
In R v. University of British Columbia, 2020 BCSC 1126, the Court upheld a $1.155 million dollar fine against the University of British Columbia ("UBC") for its role in allowing for the discharge of ammonia into a storm drain outside of its Thunderbird Arena. UBC tried to argue on appeal that it was not responsible for the actions of CIMCO Refrigeration – the contractor it hired to repair the arena's refrigeration system who had physically discharged the ammonia into the storm drain. The B.C. Supreme Court dismissed these arguments, finding that the University's lack of due diligence was "remarkable". Justice Neena Sharma of the B.C. Supreme Court reprimanded UBC for having a pollution prevention policy but failing to extend it to the arena, and for its complete failure to report the discharge to the authorities despite knowing that an enormous amount of a well-known toxic substance had been discharged into a storm sewer outside of its arena.
Those in the business of toxic substances should note the following take-aways from this case:
- Ensure you have a prevention pollution policy in place that works – the defence of due diligence, i.e. you did everything you could to prevent the pollution from occurring, only works if you can show that you took all reasonable steps and care to ensure your system is effective and the pollution occurred despite your best efforts to stop it. This means making sure your employees are adequately trained on the system and that they understand their obligations under Canada's and your province's environmental legislation.
- Confirm those you contract with also know their environmental obligations and have adequate pollution prevention policies in place. The fact the pollutive act was committed by an independent contractor is not a sufficient defence.
- If you pollute, report it right away. UBC's failure to report resulted in a $50,000 fine alone.
The 2014 Incident
On September 12, 2014, a refrigeration mechanic employed by CIMCO came to the Thunderbird Arena to repair the refrigeration system which had broken down the day before. In the presence of the Chief Engineer for Thunderbird Arena, the CIMCO mechanic discharged an ammonia solution into a storm sewer outside of the arena. A few hours following the initial discharge, two members of the public separately noticed a strong smell of ammonia coming from a culvert downstream from the storm sewer and notified the authorities. Environment Canada conducted an investigation and took samples from water in the culvert which revealed strong concentrations of ammonia at levels toxic to fish and fish habitat. The initial sample showed a concentration level that was 304 times higher than the minimum for toxicity to fish. Two days later, investigators for Environment Canada discovered 70 dead fish in Blooming Ground Creek.
UBC and CIMCO were charged with offences under the Fisheries Act for permitting the deposit of a deleterious substance into waters frequented by fish under section 36(3) and for failing to notify officials of the incident without delay under section 40(3).
The B.C. Supreme Court Finds UBC's Lack of Due Diligence "Remarkable"
At trial in provincial court, the judge found that UBC was responsible for the discharge of the ammonia substance, based on the actions of the Chief Engineer who oversaw the CIMCO employee's actions and directed him to use the storm drain rather than the sanitary drain inside the arena. Based on the evidence and the lack of another toxin present in the culvert or the creek, the trial judge also inferred (that the ammonia discharged into the storm drain caused the death of the 70 fish in the creek. Lastly, the judge rejected UBC's due diligence defence: there was no pollution prevention system in place at the arena so the University could not claim to have taken all reasonable steps and care to prevent the pollution as required under the defence.
Justice Sharma dismissed UBC's appeal of its conviction, finding no reason to overturn the trial judge's decision. 15 days into the trial in provincial court, CIMCO pleaded guilty and received an $800,000 fine. As a result, it was only UBC's conviction which was the subject of the appeal.
On appeal, UBC argued that it was incorrect for the trial judge to infer that by the time the water from the culvert reached the creek, it still contained levels of ammonia high enough to be toxic to fish and fish habitat. However, Justice Sharma held that the trial judge had ample evidence to support this inference. Evidence at trial demonstrated that 1/10 of the ammonia concentration found at the culvert would have killed the fish in the creek in less than 40 minutes; 5 hours after the initial discharge, the concentration of ammonia at the culvert was still 75 times higher than the minimum levels deadly to fish. Justice Sharma found that "no other inference could be reasonable given the body of evidence and applying common sense."
Justice Sharma also emphatically dismissed UBC's due diligence defence. UBC argued that the only foreseeable risk of ammonia entering the storm sewer was from ammonia vapour, not ammonia liquid, and it had a system in place to address such risk. The judge dismissed this submission as having "no grounding in legal authority or common sense". The chiller at the arena contained 2700 pounds of liquid ammonia and six months before the incident in question, liquid ammonia was dumped near the storm sewer, killing the grass in the area. Further, UBC had a pollution prevention policy but had failed to apply it to the Athletics Department at the time of the incident. The discharge was not unintentional or accidental – the Chief Engineer directed the CIMCO employee to dispose of the ammonia into the storm drain.
Justice Sharma concluded by finding ammonia to be a well-known toxic substance and that UBC allowed for an enormous amount of it to be discharged into a storm sewer. The fact that UBC had a pollution prevention policy indicated it knew of the importance of preventing pollution into storm sewers and could not provide a reason for why this policy had not been extended to the arena. UBC knew of the environmental risk ammonia posed but failed to take steps to mitigate that risk. Finally, the judge found that the sentence was appropriate given the seriousness of the offence and the extreme nature of the pollution caused by UBC's deliberate actions.
Due Diligence Less Costly Than Fines (and Legal Fees)
R v. University of British Columbia serves as a reminder to any businesses or individuals involved with the handling of toxic substances to stay on top of their prevention pollution policies and immediately report any accidental discharges. The Fisheries Act is just one of a number of environmental laws that requires strict compliance so it is crucial to perform your due diligence and ensure that your business operations are not at risk of violating environmental regulations. This includes ensuring that your employees are adequately trained on any environmental management policies and checking the environmental policies of others before agreeing to do business with them. Taking these steps could save you $1.155 million.
Originally published by MLT Aikins, October 2020
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