The Ontario city of Kingston ran a municipal dump on the shore of the Catarqui River for about 20 years. Rainfall percolated through the site and mixed with the waste products in the landfill to form a liquid called leachate that migrated into the river. The city eventually closed the dump and turned it into a recreational area. But it didn’t do anything to address the leachate problem. Tests later revealed that the leachate posed the risk of harm to fish in the river. Environmentalists and others called on the city to take action but their demands fell on deaf ears. It was never proven that the leachate actually harmed the water or any fish in the river. But the city and its environmental services director were still convicted of violating Sec. 36(3) of the federal Fisheries Act, which bars persons from depositing or permitting the deposit of a deleterious substance of any type in water frequented by fish or in any place where the substance may enter such water. An appeals court upheld the conviction. It ruled that the prosecution didn’t have to prove that depositing leachate into the river made the water toxic or harmed any fish [R v. Kingston (City)].
THE PROBLEM
Provincial clean water laws bar companies from discharging substances that impair or may impair the quality of water in streams, rivers, lakes and other waters. Companies that are located on or near water may assume that complying with their province’s clean water law is enough to protect them from liability. The Kingston case demonstrates that this assumption isn’t necessarily true. For example, had the city been charged under the Ontario Water Resources Act (OWRA) it might not have been convicted. That’s because to convict the city under the OWRA, the prosecution would have had to prove that the leachate from the site had the potential to impair the quality of the water in the river, based on how much was deposited and for how long.
But the city was charged not under OWRA but under the federal Fisheries Act (the Act). And the standards under the Act are stricter than the standards under the OWRA (and the clean water laws of many other provinces). More precisely, under the Act, the prosecution must only prove that: 1) the substance discharged into water frequented by fish is deleterious to fish—regardless of how much was deposited and for how long; and 2) when added to water, the substance was likely to render the water harmful to fish. In other words, a company can be guilty of a violation even if the prosecution doesn’t prove that the water’s quality was impaired or that any actual harm was done to fish. The city of Kingston learned this lesson the hard way.
THE EXPLANATION
The Act is one of the federal government’s most important pieces of environmental protection legislation. And as the Kingston case shows, it’s a zero tolerance law. Unlike under provincial clean water acts, the mere act of discharging a deleterious substance into water inhabited by fish is enough to make a company liable—even if the water doesn’t become deleterious as a result and no actual harm is done.
And that’s just the tip of the iceberg. The Act applies to all waters in the fishing zones of Canada, all waters in the territorial sea of Canada and all internal water of Canada. In Kingston, the site where the discharge occurred was located on the shores of a river populated by trout, salmon and other fish. But a company doesn’t have to be on top of a fishery to violate the Act. For example, if a company dumps a deleterious substance onto its property that runs off into a nearby stream which, in turn, empties into a trout-filled lake, the company could be charged with an environmental offence under the Act. Bottom line: Any time our company discharges a deleterious substance that may migrate its way into fish-populated waters protected by the Act, we incur the risk of liability under Sec. 36(3).
THE LESSON
The first lesson of the Kingston case is that complying with the province’s clean water laws may not be enough; the company must also ensure that it complies with the Act. The second lesson is even more important: Companies need to be proactive about avoiding water pollution and can’t wait until fish start going belly up in a nearby waterway to start worrying. In the words of the Kingston court: “Environmental measures must anticipate, prevent and attack the causes of environmental degradation.” The court criticized the city and its environmental services director for knowing that leachate was flowing into the river and ignoring the problem. It also noted that the city had no comprehensive plan to monitor the area for discharges.
To avoid liability, the company must take proactive measures to prevent the discharge of any potentially deleterious substances into water inhabited by fish or anyplace where it could migrate into such water, even if such discharge isn’t immediately harmful to the fish. To that end, you and your fellow officers and directors need to ensure that the company takes steps to:
- Reduce the risk of the deposit of any substances entering into waters inhabited by fish or any place where it may enter such water;
- Monitor the company’s property for any discharges of potentially deleterious substances; and
- Ensure that any substances that do enter into water inhabited by fish aren’t deleterious to the fish.
SHOW YOUR LAWYER
R v. Kingston (City), [2004] O.J. No. 1940, May 12, 2004
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