New trial ordered in case alleging violations of Environmental Protection Act
The Ontario Court of Justice has set aside the conviction of excavation contractor Jordash Trucking and Equipment and its owner, Timothy Swanson, for allegedly violating the Environmental Protection Act, ruling that the trial justice did not provide sufficient reasoning to support the decision.
The court has ordered a new trial on the charge related to the discharge of noise and odour that was alleged to have caused an adverse effect in the community of Kirkland Lake between June and November 2018.
Swanson had been found guilty in the Ontario Provincial Offences Court of contravening Section 14(1) of the act, which prohibits the release of contaminants that may cause harm. The trial justice determined that the offence occurred on 18 separate days, leading to a fine of $5,000 per day, totaling $90,000.
Insufficient trial reasons
Swanson’s appeal, led by Khalil Bheriani, associate lawyer with Kim Guillemette Law Professional Corporation, challenged the sufficiency of the trial justice’s reasoning, particularly regarding the findings from a Gardiner hearing, which determined the number of days the offence occurred. The Ontario Court of Justice ruled that the trial justice did not provide adequate justification for how the offence was found to have taken place on 18 specific dates.
“These reasons also fail, in view, to adequately explain to the appellant why it was found that the offence on count 1 occurred on 18 specific dates,” said Justice G. Maille in the decision.
The ruling noted that while the trial justice adopted the Crown’s written submissions to determine the number of offence days, she did not explain why she accepted that evidence while simultaneously expressing doubt about similar evidence in dismissing a second charge.
Conflicting findings on equipment use
Swanson had also faced a second charge under the Environmental Protection Act, which was dismissed due to uncertainties about the activities occurring at the site.
In dismissing that charge, the trial justice stated, “Based on my analysis, I have some concerns about the credibility and the consistency of the evidence provided by the defence about the nature of the activities where the operation is taking place on the said property. I am uncertain about what heavy equipment was being used or what operation was taking place and by whom, either Mr. Siebert or Mr. Swanson during the timeframe of the alleged offence.”
However, the trial justice still relied on Crown evidence for count 1 that identified Swanson as the operator of the equipment responsible for the noise and odour. The Ontario Court of Justice ruled that this contradiction was not addressed in the trial justice’s reasoning.
“The trial justice may well have had a compelling rationale that explains these, on their face, difficult to reconcile findings. However, if she did have such a rationale, she did not provide it in her reasons,” said Justice G. Maille.
New trial ordered
The Ontario Court of Justice concluded that the lack of clear reasoning prevented proper appellate review.
“Accordingly, I conclude that the reasons for the ruling on the Gardiner hearing do not adequately explain why the trial justice found as she did on that hearing, particularly given her previous reasons to dismiss on count 2. This, in my view, precludes a meaningful appellate review of her reasoning process in that regard,” the ruling stated.
With the conviction and $90,000 fine on count 1 set aside, the Ontario Court of Justice ordered a new trial on the charge. The case highlights the importance of clear judicial reasoning in regulatory offences, particularly in cases involving environmental and workplace safety regulations.
