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The recent Ontario Court of Justice appeal decision in R v AJL Janssen Landscaping Ltd has offered some guidance as to the definition of “pit” under section 1(1) of the Aggregate Resources Act (“ARA”).

AJL Janssen Landscaping (“AJL”) is a landscaping, road building, excavation, drilling, and blasting company. In 2012, it approached a landowner to purchase and remove rocks on the landowner’s property. The rocks had fallen from an abutting cliff. In exchange for the rocks, AJL paid $300 per load to the landowner, levelled his field, and constructed a fence so that the property could be used as pasture. AJL planned to use the rocks for its landscaping business.

The Ministry of Natural Resources got wind of the removal of the rocks and investigated. It decided to prosecute AJL for contravening section 7(1) of the ARA, which prohibits the operation of a “pit” except in accordance with, and under the authority of, a licence.

At first instance, a Justice of the peace convicted AJL of unlawfully operating a pit without a permit, contrary to section 7(1). The company was fined $500 for each of the four days that it removed the rocks.

On appeal, the Court focused on the statutory interpretation of the term “pit” under the ARA. Per section 1(1) of the ARA, “pit” is defined as,

[L]and or land under water from which unconsolidated aggregate is being or has been excavated, and that has not been rehabilitated, but does not mean land or land under water excavated for a building or structure on the excavation site or in relation to which an order has been made under subsection.

The Court found that the primary purpose behind the removal of the rocks was to build a fence for the landowner. Since a fence is a structure, the Court reasoned that the excavation was exempt from the definition of “pit.” As such, AJL was not operating a “pit,” and the Justice of the Peace had erred in finding it guilty of doing so. It overturned the conviction.

Interestingly, the Court upheld the Justice of the Peace’s finding that the removal of the rocks could be subject to the ARA’s licensing scheme. AJL had argued that the ARA’s licensing requirements had not been invoked because the removal of the rocks had not impacted the land such that rehabilitation would be required. It argued that the definition of “pit” contemplates land requiring rehabilitation in order to trigger the licensing requirements.

The Court disagreed. Rather, although no environmental destruction had resulted from the removal of the rocks—and therefore there had been nothing to rehabilitate—this alone did not shield AJL from the ARA’s licensing scheme. The court found that the definition of “excavation” contemplates activities such as the removal of rocks from the surface of the land. Under section 1(1) of the ARA, to excavate “includes the preparation of land for excavation and removal of hills, sand dunes, knolls, stones and rocks other than metallic ores from the general surface of the ground.”

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