The Rural Voice, 1999-03, Page 57Agrilaw
Environmental liability - when
By Paul G. Vogel
The Ontario Water Resources
Act (OWRA) prohibits the discharge
of material into water that may impair
water quality. For conviction under
the Act, is it necessary that the
discharge
material be
harmful to the
environment or
anything in the
water or
anything which
may come in
contact with the
water?
In considering
this issue, our
courts have
concluded that,
for conviction
under the Act,
the impairment
of water quality need not be harmful;
aesthetic impairment is sufficient to
found a conviction. In a case in which
a dairy processing company had
discharged cream into a nearby
stream, the Court concluded that a
change in the colour of the water,
combined with the aroma of sour milk
or cream, constituted impairment of
water quality to justify conviction.
The court determined that an
undetected crack in the processing
equipment had caused a release of
cream which entered a central
drainage well. The defect in the
processing equipment had not been
anticipated by the company. As
described by the Court:
` ... it has got all the values and
other paraphernalia on the unit to
prevent damage to the unit and to
ensure proper pasteurization, but it
is clear on the evidence also•that, if
spillage occurred, that there was no
warning device in place; there was
no containment, and there was no
diversion. In other words, unless
someone is actually looking at that
well — and the Court is satisfied
that nobody was doing that as they
should have been on a regular basis
— there was no way of telling that
there is a'discharge into that well . .
This discharge obviously would
Impairment
of water
quality need
not be
harmful
Ls water quality impaired?
go into the centre well and directly
to the outtall, into the ditch and the
stream, and the company would be
unaware of this."
The Court found that the Crown
had proved that there had been a
discharge into a body of water, that
there was an aesthetic impairment,
and that the material discharge came
from the company's premises. In
considering the burden on the
company to demonstrate that it had
taken all reasonable precautions to
establish a defence of "due diligence",
the Court held:
"It is a situation where the
company knew or should have
known that the potential existed for
spillage ... and it is clear that the
company had not put into place any
protective devices in the event that
spillage did occur. The company
obviously went a considerable
distance with that machine ... but
they did not go the whole distance.
And when it gets right down to it,
the company had not demonstrated
on balance, that they took all
reasonable precautions ... and the
Court. is now satisfied that all
elements of the offence have been
proven, and proven beyond any
reasonable doubt. 1 find the
company guilty as charged."
In view of the substantial fir.:s
which may be imposed for causi.ig
impairment of water resources,
farmers and those involved in
agricultural processing must ensure
that they have thoroughly reviewed
their operations and put in place all
reasonable precautions to prevent or
contain the possible discharge. The
fact that the material which may be
discharged may not be harmful to the
environment will not prevent
prosecution and conviction under the
OWRA. Any impairment of water
quality, including aesthetic
impairment, will attract liability under
the Act.O
Agrilaw is a syndicated column
produced by the full service London
law firm of Cohen Highley Vogel &
Dawson. Pau! G. Vogel, a partner in
the firm, practises in the area of
commercial litigation and
environmental lair. Agrilaw is
intended 10 provide information to
farmers on subjects of interest and
importance. The opinions expressed
are not intended as legal advice.
Before acting on any information
contained in Agrilaw, readers should
obtain legal advice with respect to
their own particular circumstances.
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MARCH 1999 53