Another director of a company that violates Ontario’s environmental laws has landed in jail. Green Diesel Canada Ltd. of Burlington, Ontario, a company that transports wastewater generated from the processing of used cooking oil and grease, and its sole officer and director, were charged under the Environmental Protection Act (EPA) for depositing waste oil/grease into a municipal ditch in Hamilton, Ontario.
The company was convicted in January 2013 for depositing the oil/grease into a ditch on Swayze Road, on two separate occasions. At the time, the Ministry of Environment reported that it responded to reports of oil being dumped into the ditch. A truck registered to the company was later found to have been in the area. Thousands of litres of oil/grease were found in the ditch, which was later cleaned up by the City of Hamilton. The ditch reportedly flows into Sinkhole Creek, a tributary of Twenty Mile Creek that connects to Lake Ontario.
The second incident occurred about two months later when a City of Hamilton employee noticed a tanker truck stopped at the same location on Swayze Road. Upon checking the ditch, the employee found that thousands of litres of waste oil sludge had been dumped. Once again, the truck was registered to Green Diesel Canada, and the site had to be cleaned up by the municipality, at taxpayers’ expense.
In total, the City of Hamilton paid $25,371.11 to clean up contaminated soil. The company was ordered to pay restitution, plus a $120,000 fine. It didn’t pay. The company and its sole officer/director were then convicted under the EPA for failing to comply with the restitution order. Additional fines of $25,000 plus victim fine surcharges totalling $6,250 were levied on the company. The officer/director was personally fined $5,000 and sentenced to five days in jail. The jail term is to be served on weekends starting April 10, 2015.
We have previously blogged about jail terms for environmental offences and how the penalties continue to rise. Officers and/or directors need to be aware that when a company is ordered to do something under environmental laws, like the EPA and the Ontario Water Resources Act (OWRA), there are corresponding duties on officers and directors to take “all reasonable care” to ensure their companies comply with their legal obligations, including orders.
By way of example, the OWRA contains the following language under section 116:
Duty of director or officer
116. (1) Every director or officer of a corporation has a duty to take all reasonable care to prevent the corporation from,
(a) discharging or causing or permitting the discharge of any material, in contravention of,
(i) this Act or the regulations, or
(ii) a licence, permit or approval under this Act;
(b) failing to notify the Ministry of a discharge of any material, in contravention of,
(i) this Act or the regulations, or
(ii) a licence, permit or approval under this Act;
(c) contravening section 98;
(d) failing to install, maintain, operate, replace or alter any equipment or other thing, in contravention of a licence, permit or approval under this Act; or
(e) contravening an order, direction, notice or report under this Act, other than an order under section 84 or 106.1. 2005, c. 12, s. 2 (41).
Offence
(2) Every person who has a duty under subsection (1) and who fails to carry out that duty is guilty of an offence. R.S.O. 1990, c. O.40, s. 116 (2).
Onus
(2.1) If a director or officer of a corporation is charged with an offence under subsection (2) in connection with a specific contravention of the corporation, the director or officer has the onus, in the trial of the offence, of proving that he or she carried out the duty under subsection (1) in connection with that contravention. 2005, c. 12, s. 2 (42).
Liability to conviction
(3) A director or officer of a corporation is liable to conviction under this section whether or not the corporation has been prosecuted or convicted. R.S.O. 1990, c. O.40, s. 116 (3).