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Another Ontario court has waived the unreasonably high minimum environmental fines for relatively minor offences that the Environmental Protection Act sometimes now imposes.

In R. v. Union Gas Ltd., 2014 CarswellOnt 18380, a backhoe excavating a water and sewer line at a private residence inadvertently dropped a rock, which struck an exposed gas line and caused a leak. The general contractor quickly contacted Union Gas, which shut off the gas and contacted police and fire departments. Five residences were evacuated.

None of the general contractor, the excavating company, or Union Gas reported the incident to the Ministry of the Environment and Climate Change’s Spills Action Centre. (If notified, the MOECC would not have had any additional expertise to contribute.) All three companies pled guilty to failing to report the gas leak forthwith to the MOECC as a “spill” under s. 92 of the EPA.

The MOECC sought the minimum environmental fines of $50,000 for Union Gas, which had a prior conviction, and $25,000  for each of the contractor and the excavating company.

Section 59(2) of the Provincial Offences Act allows judges to waive minimum fines in “exceptional circumstances”. The contracting and excavating companies argued that they were both small, family-run businesses and that the minimum fines would cause undue hardship, that they had made no attempts to evade responsibility and were simply unaware that they were expected to report a gas leak to the Ministry of Environment and Climate Change as a “spill” (and had since modified their procedures to do so). Union Gas argued that they were not present on site and did not cause the leak, and that they had acted promptly to alert the police and fire department (and had also since modified their procedures to treat gas leaks as “spills”).

The court agreed, and fixed the fines at $5000 each for the contracting and excavating companies, and $7,500 for Union Gas, plus the usual 25% Victim Fine Surcharge.

I’m glad to see the courts making more use of s. 59(2) to offset the unreasonable harshness that the minimum environmental fine regime can create.

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