Canada v. IPSCO Recycling Inc.

Canada v. IPSCO Recycling Inc.
Court (s) Database
Federal Court Decisions
Date
2003-12-23
Neutral citation
2003 FC 1518
File numbers
T-2274-00
Notes
Reported Decision
Decision Content
Date: 20031223
Docket: T-2274-00
Citation: 2003 FC 1518
Ottawa, Ontario, Tuesday, the 23rd day of December 2003
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
- and -
IPSCO RECYCLING INC. and GENERAL SCRAP &
CAR SHREDDER LTD., now known as JAMEL METALS INC.,
carrying on business as a partnership under the firm name and style of
GENERAL SCRAP PARTNERSHIP and XPOTENTIAL PRODUCTS INC.,
JACOB LAZARECK AND MELVIN LAZARECK
Respondents
REASONS FOR ORDER AND ORDER
DAWSON J.
[1] In this application Her Majesty The Queen, as represented by the Minister of the Environment ("applicant" or "Environment Canada"), seeks a permanent, mandatory injunction against the respondents pursuant to section 311 of the Canadian Environmental Protection Act, 1999, 46-47-48 Eliz. II, c. 33 ("Act"). The injunction sought is one which would require the respondents, and their agents and servants, to store all PCB material at the business premises of General Scrap & Car Shredder Ltd. and XPotential Products Inc. that is currently lying in open piles or otherwise improperly stored, in containers that provide sufficient durability and strength to prevent the PCB solids and PCB substances from being affected by the weather or released.
[2] These reasons are lengthy. In them I conclude that upon the totality of the evidence Environment Canada has failed to meet its burden to establish on a balance of probabilities that it appears that the respondents have committed an offence under the Act by improperly storing PCB material. In consequence, the application for injunctive relief is dismissed. For ease of reference, the following is an index of the headings and sub-headings pursuant to which these reasons are organized, and the paragraph numbers where each section begins.
Index
I. Background Facts
(i) The Parties [3]
(ii) General Scrap and its Business [6]
(iii) XPotential and its Business [13]
(iv) PCB Materials [17]
(v) The Dispute Between the Parties [18]
(vi) The Current Status of the Material in Issue [41]
(vii) The Specific Order Sought [42]
II. The Issues [45]
III. The Analysis
(i) What are the requirements to be met in order to obtain injunctive relief under subsection 311(1) and what is the scope of subsection 311(1)? [46]
(a) Is subsection 311(1) to be limited to exceptional cases? [47]
(b) The constituent elements of subsection 311(1) [52]
1. The Text - Grammatical and Ordinary Sense [56]
-Text as it Speaks to the Standard of Proof [58]
-Text as it Speaks to the Prevention of Offences [69]
2. The Context
-The Scheme of the Act [80]
(c) Conclusion with respect to the scope of subsection 311(1) re existing and continuing situations [95]
(ii) Is some or all of the material PCB Material? [98]
(a) The evidence in support of the application [100]
1. Affidavit of Mervin Fingas [101]
2. Affidavit of Shannon Kurbis [107]
(b) The evidence in opposition to the application [108]
1. Affidavit of Jacob (Jack) Lazareck [109]
2. Affidavit of David Clark [113]
3. Affidavit of Jan Merks [118]
4. Affidavit of Michael Bertram [126]
5. Affidavit of Detlef Birkholz [130]
6. Affidavit of Donald Davies [132]
(c) Analysis of the Evidence [133]
1. The Validity of the Environment Canada Data [137]
-Is the 1999 Environment Canada Report based on insufficient samples and an inappropriate sampling system? [139]
-Did Environment Canada depart from its own sampling plan? [152]
-Did Environment Canada use an inferior method of sample selection? [155]
2. The use of individual test results [179]
3. The use of statistical analysis [194]
III. If some or all of the material is PCB Material, which respondents are in breach of the Regulations? [233]
IV. Conclusion, Order and Costs [237]
I. BACKGROUND FACTS
(i) The Parties
[3] The respondents General Scrap Partnership ("General Scrap") and XPotential Products Inc. ("XPotential") carry on recycling businesses.
[4] General Scrap is a partnership originally formed between IPSCO Recycling Inc. ("IPSCO") and Jamel Metals Inc. ("Jamel"). Jamel is the corporate successor of General Scrap & Car Shredder Ltd. It was the uncontradicted evidence of the only witness who has personal knowledge of the corporate structure of the respondents that currently IPSCO owns 100 percent of General Scrap. I accept this to be the case.
[5] Jacob and Melvin Lazareck are brothers who are the officers, directors and shareholders of Jamel. Jacob Lazareck testified, and I accept, that neither he nor his brother are now involved in the operation of the day-to-day business of General Scrap. Jacob Lazareck is the sole owner, officer, director and operator of XPotential.
(ii) General Scrap and its business
[6] In 1967, General Scrap & Car Shredder Ltd. began operation of the first automobile shredder in Canada on Springfield Road, in Winnipeg ("General Scrap site"). General Scrap continues to operate the shredder at this site.
[7] An automobile shredder is a large, industrial machine powered by a high-horsepower motor. Scrap (for example, automobiles or large appliances) is fed into the shredder opening. The high-horsepower motor turns a series of rotating discs at great speed. Fitted on the discs are a series of large steel hammers which physically shred the scrap fed into the shredder into fist-sized pieces. The shredded material then passes through a magnetic drum which separates the ferrous metals from the remaining non-ferrous material. Non-ferrous metals (for example, copper and aluminum) are recovered during further downstream processing. The remaining non-metallic material is known in the industry as automobile shredder residue ("ASR").
[8] ASR is very heterogeneous material. It is solid and generally medium to dark brown in colour. It is largely made up of plastic and foam but also contains pieces of metal, rubber, fabric, carpet, wood, wire, glass, dirt and other materials. Individual components of ASR vary in size from fine dirt to pieces of foam, fabric and rubber over one foot in size. Individual objects are generally identifiable in the material.
[9] PCBs were banned from use in Canada in 1977. Prior to this, components containing quantities of PCBs were used in the manufacture of automobiles and household appliances. PCBs were used as additives in paints, rubber, foam, sealants and plastics. Quantities of PCBs can be found in automobile ignition systems, household appliance capacitors, wiring and transformer components, electric motors, air-conditioners and hydraulic devices. When older vehicles and appliances are shredded, the PCBs that they may contain remain in the ASR in low concentrations. A small electrical component containing only 500 grams of PCBs can contaminate up to 10 tonnes of ASR to a PCB concentration above the regulatory threshold.
[10] Given the difference in materials that might comprise the shredder input from one load to another, the degree of contamination with PCBs varies in ASR. PCB contaminated ASR can be expected to be found in varying amounts and varying levels of contamination throughout ASR the storage piles. Mr. Lazareck acknowledged that there may be "hot spots" or small areas of concentration that could be over 50 ppm. As is discussed below, 50 parts per million ("ppm") is the regulatory threshold.
[11] Approximately 20,000 metric tonnes of ASR is stored at the General Scrap site. The ASR is located in three areas which have been identified by Environment Canada as the "East Pile", "West Pile" and the "Central Pile". Much of the material is located below the natural grade level because it was used as fill in low-lying areas. The elevation above grade level of each of the East and West Piles is approximately 2 metres. The Central Pile is not the subject of any complaint in this proceeding.
[12] The ASR in the three piles at the General Scrap site was generated from approximately 1969 to 1978. Since around 1994 no new ASR has been added to those piles. New ASR is transported directly to the XPotential site, as described below.
(iii) XPotential and its business
[13] XPotential was incorporated in order to take advantage of a new recycling technology which permits the combination of ASR with post-consumer waste plastics in order to produce saleable products such as parking curbs, landscape crossings, fence posts, railroad ties and non-structural timbers.
[14] XPotential operates a facility approximately one mile east of the General Scrap site ("XPotential site"). The site consists of a plant and a storage cell area. ASR supplied by General Scrap is stored in storage cells for later use as raw material. The Manitoba Department of Environment (now known as Manitoba Conservation) licensed the construction of the plant and the movement of ASR to the storage cells at the XPotential site. XPotential reports regularly to Manitoba Conservation with respect to groundwater monitoring wells maintained at the XPotential site. Manitoba Conservation has expressed no concern to XPotential about PCBs on its site, notwithstanding knowledge of this application brought by Environment Canada.
[15] Since July of 1996, XPotential has received approximately 125,000 tonnes of freshly produced ASR from General Scrap. This is stored in the storage cell area at the XPotential site. Newly produced ASR from General Scrap continues to be transported to the XPotential site where it is used in its manufacturing process.
[16] The storage cell area is essentially one large storage area divided into several compartments or cells. The cells are excavated to a depth of 2 metres below natural grade and native clay is compacted to construct 2 metre high berms between the cells and along the perimeter of the cells. The area of the cells is divided into 6 ASR storage cells, a drying cell (where ASR can be air-dried prior to processing) and a separate excess water retention cell. Environment Canada has advised that the ASR contained in cell 4, cell 5 and the drying cell are of concern. The ASR in each of these cells is comprised of ASR that had been stored at the General Scrap site for several years and newer material.
(iv) PCB Materials
[17] The Storage of PCB Material Regulations, SOR/92-507 ("Regulations") define material containing over 50 ppm of PCBs to be "PCB material". PCB materials in an amount of 100 kg or more must be stored, reported, labelled and handled in accordance with the Regulations. Failure to comply with the Regulations is an offence under the Act.
(v) The Dispute Between the Parties
[18] In September of 1997, Environment Canada informed the respondents that it was Environment Canada's intention to conduct inspections at the General Scrap and the XPotential sites and to take samples of ASR for analysis in order to determine the PCB content of the ASR.
[19] As a result, General Scrap and XPotential instructed Wardrop Engineering Inc. ("Wardrop") to conduct an ASR sampling and analysis program. The purpose of the program was to determine whether the ASR at both the General Scrap and XPotential sites were PCB materials within the meaning of the Regulations.
[20] In consequence of those instructions, Wardrop produced a report dated October 16, 1997 which described the collection and analysis of 24 samples of ASR that Wardrop collected at the XPotential and General Scrap sites. Wardrop concluded, among other things, that:
1. PCB concentrations in the samples analyzed ranged from 8 to 49 ppm.
2. At an 80% statistical confidence interval the PCB concentration of the ASR was between 20.9 and 27.5 ppm, which was below the regulatory threshold.
[21] These results were communicated to Environment Canada October 17, 1997.
[22] Environment Canada proceeded with its own investigation and collection of samples. Wardrop was engaged by General Scrap and XPotential to take duplicate samples from the locations at which Environment Canada took samples. Samples were taken from both sites over the period of October 20, 1997 to October 23, 1997.
[23] In a report dated September-December 1997 ("1997 Environment Canada Report"), Environment Canada identified PCB at mean concentrations above the regulatory limit of 50 ppm at three locations. They were the West Pile at the General Scrap site (85.4 ppm) and storage cells 5 and 6 at the XPotential site (respectively, 61.3 and 96.7 ppm). Wardrop was engaged by General Scrap and XPotential to have those duplicate samples that were taken alongside the Environment Canada samples for each of the West Pile and cells 5 and 6 analyzed for PCB concentration.
[24] The second report prepared by Wardrop as a result of this engagement concluded, among other things, that:
1. The concentration of ASR in the duplicate samples ranged from 10 to 42 ppm;
2. For the West Pile, the 95% statistical confidence interval placed the PCB concentration between 30.6 and 38.0 ppm;
3. For cell 5, the sole sample showed a PCB concentration of 34 ppm; and
4. For cell 6, the 95% statistical confidence interval placed the PCB concentration between 11.9 and 26.7 ppm.
[25] Wardrop concluded that the ASR in question did not have a PCB concentration above the regulatory threshold.
[26] In February of 1998, Environment Canada sent a letter to the respondents advising that on the basis of the 1997 Environment Canada Report it had determined that General Scrap and XPotential were storing PCB materials in violation of the Regulations. However, the analytical protocol used by Environment Canada which resulted in the 1997 Environment Canada Report was not the protocol referenced in the Regulations. Therefore, Environment Canada later concluded that it could not rely upon its 1997 report for enforcement purposes. Environment Canada therefore agreed to withdraw its determination that General Scrap and XPotential were storing PCB materials in violation of the Regulations.
[27] In September of 1998, Environment Canada advised that it would be conducting another round of sampling and analysis. Representatives of Environment Canada attended at the General Scrap and XPotential sites to conduct a sampling program from September 21 to September 25, 1998. The activities of Environment Canada were monitored by an environmental engineer employed by Wardrop and by staff of General Scrap and XPotential.
[28] By December of 1998, General Scrap and XPotential retained the services of Dillon Consulting Limited ("Dillon") in order to facilitate discussions with Environment Canada in an attempt to resolve the outstanding issues.
[29] In January of 1999, Environment Canada's final sampling report ("1999 Environment Canada Report") was issued. This report indicates that two ASR piles at the General Scrap site and three of the four storage areas at XPotential had average PCB concentrations that exceeded 50 ppm. The average PCB concentrations for the PCB contaminated piles, along with the 95% confidence (probability) ranges were as follows:
Average 95% Probability
(Absolute minimum) (lower value to upper value)
__________________________________________________________________
General Scrap
East pile 59.7 ppm 67.0 to 82.8 ppm
Central pile 41.2 ppm 46.3 to 57.1 ppm
West pile 54.6 ppm 61.3 to 75.7 ppm
XPotential
Cell 4 65.3 ppm 73.3 to 90.6 ppm
Cell 5 50.7 ppm 56.9 to 70.3 ppm
Cell 6 42.0 ppm 47.2 to 58.3 ppm
Drying Cell 50.8 ppm 57.0 to 70.5 ppm
[30] On February 8, 1999, the 1999 Environment Canada Report was forwarded by Environment Canada to General Scrap.
[31] In April of 1999, General Scrap and XPotential advised Environment Canada that:
1. General Scrap and XPotential would undertake a further sampling and characterization of the ASR identified by Environment Canada as PCB material;
2. General Scrap would implement a procedure to identify common sources of PCBs in its scrap and to take steps to control PCB imports by requiring its suppliers first to remove potential PCB sources from household appliances analytical equipment before delivery to General Scrap.
3. Soil and groundwater data would be assembled from the General Scrap and XPotential sites contiguous to ASR storage and would be provided to Environment Canada.
4. General Scrap committed to continue to monitor new and emerging practical, economically achievable technologies for low-level PCB removal from ASR.
[32] Environment Canada responded by letter dated April 30, 1999. In this correspondence Environment Canada took the position that General Scrap had failed to provide a detailed compliance plan with specific steps and time frames for putting this plan into effect. This was taken by Environment Canada to evidence a lack of commitment towards coming into compliance with the Regulations.
[33] Jan Merks of Matrix Consulting Limited was engaged by General Scrap and XPotential as an expert consultant to assist Dillon in the design of the sampling program and in the interpretation of the data generated from the sampling and analysis.
[34] In September of 1999, General Scrap and XPotential informed Environment Canada that Dillon had prepared a sampling program which it intended to initiate commencing on September 27, 1999. This program had been completed with the assistance of Mr. Merks.
[35] Dillon carried out the sampling plan between September 27 and October 8, 1999 and began by sampling cell 5 at the XPotential site. Dillon applied three different sampling methods with a view to determining which method would provide the most accurate results. The first method replicated Environment Canada's method of direct sample selection (for comparison purposes), the second method used a mechanically split discrete sample, and the third method used mechanically split interleaved, composite samples. On the basis of this sampling and the analysis of the resulting data Dillon subsequently recommended a protocol to be followed in the final sampling and analysis of ASR at the General Scrap and XPotential sites.
[36] On May 17, 2000, representatives of General Scrap, Dillon and XPotential met with an Environment Canada enforcement officer to review the results of the sampling and analysis of cell 5 and to advise that the remaining sampling analysis would proceed in accordance with the plan developed by Dillon.
[37] On June 14, 2000, Environment Canada advised that it was unwilling to provide any comments on the proposed ASR sampling and analysis procedures proposed by Dillon.
[38] General Scrap and XPotential instructed Dillon to proceed with the sampling and analytical protocol that Dillon proposed. In July of 2000, Environment Canada was advised that the remaining sampling and analysis was proceeding.
[39] Environment Canada commenced these proceedings on December 6, 2000. Prior to seeking injunctive relief no other enforcement options available under the Act were pursued by Environment Canada.
[40] The results of Dillon's sampling and analytical program are contained in a report prepared by Dillon dated January 2001. Dillon concluded that the ASR of concern to Environment Canada stored within the General Scrap - East Pile, General Scrap - West Pile, XPotential cells 4 and 5 and the XPotential drying cell, do not contain mean concentrations of PCBs above the federal or provincial regulatory threshold of 50 ppm.
(vi) Current Status of the ASR in Issue
[41] In response to an application for an interim injunction made by Environment Canada regarding the storage and handling of the ASR at issue pending the determination of this application, the respondents agreed to the terms of a consent order setting out the manner in which the ASR at issue would be dealt with. The consent order was entered into with no admission by the respondents that the ASR at issue is PCB material under the Regulations.
(vi) The Specific Order Sought by the Applicant
[42] The applicant says that it is not possible to determine visually which location in the problematic piles and cells have concentrations of PCB over 50 ppm. However, the applicant also says that regulatory compliance requires the PCB material to be identified and then stored, labelled, reported and handled in accordance with the Regulations.
[43] Accordingly, in its written materials the applicant seeks an injunction on the following terms:
a) All of the ASR in the East and West Pile at General Scrap, and all of the ASR in Cells 4, 5 and the Drying Cell at XPotential must be considered to be PCB Material, unless and until those areas that are under regulatory threshold are identified and separated from the Piles and Cells;
b) Any protocol for the sampling, analysis and identification of non-PCB Material must be carried out by a third party under the direction and supervision of Environment Canada and at the expense of the Respondents;
c) The remaining PCB Material must be stored or disposed of in accordance with the PCB Regulations.
[44] Alternatively, the applicant seeks an injunction on such other or further terms as the Court considers just. No such terms were suggested. The notice of application seeks an order compelling the respondents to store all PCB material as required by law.
II. THE ISSUES
[45] In order to determine whether the injunction requested should issue, the following issues must be considered:
i) What are the requirements which must be met in order to be entitled to obtain an injunction pursuant to subsection 311(1) of the Act and what is the scope of subsection 311(1)?
ii) Is some or all of the ASR PCB material as defined in the Regulations so that some or all of the respondents are in breach of the Regulations?
iii) If so, which respondents are in breach of the Regulations? and
iv) Should the Court grant the requested injunction?
III. ANALYSIS
(i) What are the requirements to be met in order to obtain injunctive relief under subsection 311(1) of the Act and what is the scope of subsection 311(1)?
[46] Counsel advise that this is the first occasion on which a court has considered a request for injunctive relief under subsection 311(1) of the Act. Section 311 of the Act is as follows:
311(1) Where, on the application of the Minister, it appears to a court of competent jurisdiction that a person has done or is about to do or is likely to do any act or thing constituting or directed toward the commission of an offence under this Act, the court may issue an injunction ordering any person named in the application
(a) to refrain from doing any act or thing that it appears to the court may constitute or be directed toward the commission of an offence under this Act; or
(b) to do any act or thing that it appears to the court may prevent the commission of an offence under this Act.
311(2) No injunction shall be issued under subsection (1) unless 48 hours notice is given to the party or parties named in the application or the urgency of the situation is such that service of notice would not be in the public interest.
311(1) Si, sur demande présentée par le ministre, il conclut à l'existence, l'imminence ou la probabilité d'un fait constituant une infraction à la présente loi, ou tendant à sa perpétration, le tribunal compétent peut, par ordonnance, enjoindre à la personne nommée dans la demande_:
a) de s'abstenir de tout acte susceptible, selon lui, de perpétuer le fait ou d'y tendre;
b) d'accomplir tout acte susceptible, selon lui, d'empêcher le fait.
311(2) L'injonction est subordonnée à la signification d'un préavis d'au moins quarante-huit heures aux parties nommées dans la demande, sauf lorsque cela serait contraire à l'intérêt public en raison de l'urgence de la situation.
(a) Is subsection 311(1) to be limited to exceptional cases?
[47] The respondents' fundamental argument with respect to the application of section 311 is that the Act in its entirety is enacted pursuant to Parliament's jurisdiction over criminal law matters. It follows, they submit, that the jurisdiction of the court to grant an injunction in aid of criminal law is a jurisdiction to be used with caution and only in the most exceptional of cases. Reliance is placed upon authorities such as Gouriet v. Union of Post Office Workers, [1978] A.C. 435 (H.L.), Ontario (Attorney General) v. Ontario Teachers' Federation (1997) 36 O.R. (3d) 367 (H.C.) and Attorney General for the Province of Ontario v. Hale (c.o.b. Hale Sand and Gravel), (1983) 38 C.P.C. 292 (On. H.C.). The respondents say that the exercise of this exceptional jurisdiction has been confined to cases where a law has been repeatedly flouted, the alleged breach of law is clear, and the enforcement provisions of the statute in question have proven ineffective.
[48] With respect, I find the authorities relied upon by the respondents to be distinguishable. In the cases cited by the respondents there was either no specific legislative provision which authorized injunctive relief, or, as in Hale, supra, the statutory provision which provided for injunctive relief was not applicable. Therefore, in all of the cases what was in issue was the right of an Attorney General to sue at common law in order to attempt to enforce a law by way of injunction.
[49] The nature of an injunction available at common law to an Attorney General in order to enforce public rights is well described by Justice MacPherson in Ontario Teachers' Federation, supra. This remedy reflects the role of the Attorney General in securing compliance with the laws of the land. Courts have held this to be a remedy granted in exceptional cases.
[50] There is, however, a significant distinction between an injunction authorized by statute and an injunction available to the Attorney General at common law. This distinction is aptly illustrated in Ontario (Minister of the Environment) v. National Hard Chrome Plating Co. (1993), 11 C.E.L.R. (N.S.) 73 (Ont. C. of J.). There, the statutory provision with respect to the granting of an injunction contemplated an injunction to "restrain" contravention of the statute. The Court concluded that because the statute only provided a basis for the issuance of a prohibitory injunction, a mandatory injunction was only available at common law at the request of the Attorney General suing in the public interest. Such common law relief was available only where the law was being flouted and the legislation was inadequate to protect the public interest.
[51] On the basis of the authorities cited by the parties I am satisfied that where a statute provides a remedy by way of injunction, different considerations govern the exercise of the court's discretion than apply when an Attorney General sues at common law to enforce public rights. The following general principles apply when an injunction is authorized by statute:
i) The court's discretion is more fettered. The factors considered by a court when considering equitable relief will have a more limited application. See: Prince Edward Island (Minister of Communications and Cultural Affairs) v. Island Farm and Fish Meat Ltd., [1989] P.E.I.J. No. 32 (P.E.I.S.C.); Maple Ridge (District) v. Thornhill Aggregates Ltd. (1998), 162 D.L.R. (4th) 203 (B.C.C.A.).
ii) Specifically, an applicant will not have to prove that damages are inadequate or that irreparable harm will result if the injunction is refused. See: Shaughnessy Heights Property Owners' Association v. North Up (1958) 12 D.L.R. (7d) 760 (B.C.S.C.); Manitoba Dental Association v. Byman and Halstead (1967) 34 D.L.R. (2d) 602 (Man. C.A.); Canada (Canadian Transportation Accident Investigation and Safety Board) v. Canadian Press, [2000] N.S.J. No. 139 (N.S.S.C.).
iii) There is no need for other enforcement remedies to have been pursued. See: Saskatchewan (Minister for Environmental Assessment Act) v. Redberry Development Corporation, [1987] 4 W.W.R. 654 (Sask. Q.B.).
iv) The Court retains a discretion as to whether to grant injunctive relief. Hardship from the imposition and enforcement of an injunction will generally not outweigh the public interest in having the law obeyed. However, an injunction will not issue where it would be of questionable utility or inequitable. See: Saskatchewan (Minister of Environmental Assessment Act) v. Redberry, supra; Maple Ridge (District) v. Thornhill Aggregates Ltd., supra; Capital Regional District v. Smith (1998), 168 D.L.R. (4th) 52 B.C.C.A.
v) It remains more difficult to obtain a mandatory injunction. See: Canada (Canadian Transportation Accident Investigation and Safety Board) v. Canadian Press, supra.
(b) The constituent elements of subsection 311(1)
[52] Having rejected the respondents' argument that relief pursuant to section 311 of the Act is only available upon proof that the law has been repeatedly flouted and that other enforcement provisions of the statute have proven ineffective, I turn to consider what must be established in order to permit the Court to issue a mandatory injunction.
[53] The starting point for the interpretation of subsection 311(1) of the Act is the following well-known and accepted statement of principle:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
See: E.A. Driedger in Construction of Statutes (2nd ed. 1983) at page 87 as cited in Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84 at paragraph 27.
[54] This approach requires a court to attribute to a legislative provision the meaning that best accords with both the text and the context of the provision. While neither can be ignored, as the Federal Court of Appeal observed in Bristol-Myers Squibb Co. v. Canada (Attorney General), 2003 FCA 180 at paragraph 13, the clearer the ordinary meaning of the provision, the more compelling the contextual considerations must be in order to warrant a different reading.
[55] Before beginning this analysis it is convenient to again set out the text of subsection 311(1) of the Act:
311(1) Where, on the application of the Minister, it appears to a court of competent jurisdiction that a person has done or is about to do or is likely to do any act or thing constituting or directed toward the commission of an offence under this Act, the court may issue an injunction ordering any person named in the application
(a) to refrain from doing any act or thing that it appears to the court may constitute or be directed toward the commission of an offence under this Act; or
(b) to do any act or thing that it appears to the court may prevent the commission of an offence under this Act.
311(1) Si, sur demande présentée par le ministre, il conclut à l'existence, l'imminence ou la probabilité d'un fait constituant une infraction à la présente loi, ou tendant à sa perpétration, le tribunal compétent peut, par ordonnance, enjoindre à la personne nommée dans la demande_:
a) de s'abstenir de tout acte susceptible, selon lui, de perpétuer le fait ou d'y tendre;
b) d'accomplir tout acte susceptible, selon lui, d'empêcher le fait.
1. The Text - Grammatical and Ordinary Sense
[56] An ordinary reading of subsection 311(1) leads to the interpretation that for an injunction to issue it must appear to a court that either:
i) the respondent has done any act or thing constituting an offence under the Act, or done any act or thing that is directed toward the commission of an offence; or
ii) the respondent is about to do, or is likely to do, any act or thing that constitutes an offence under the Act or is directed toward the commission of an offence.
[57] If so satisfied, the court may:
i) issue a prohibitory injunction restraining the respondent from doing any act or thing that it appears to the court may constitute or be directed toward the commission of an offence; or
ii) issue a mandatory injunction requiring the respondent to do any act or thing that it appears to the court may prevent the commission of an offence.
The Text as it Speaks to the Requisite Standard of Proof
[58] The respondents argue that the Act requires proof beyond a reasonable doubt of the facts giving rise to the commission of an offence. In my view, the language used in subsection 311(1), read in its grammatical and ordinary sense, does not support this conclusion. I so conclude because the provision speaks to the situation where "it appears to a court" that an act or thing has occurred or is about to occur or is likely to occur, and that act or thing constitutes or is directed toward the commission of an offence. If proof beyond a reasonable doubt of the commission, or likely commission, of an offence was required it is reasonable to infer that Parliament would have used more specific language in the nature of "where it is established that a person has done or is about to do or is likely to do any act or thing constituting an offence".
[59] Further, the court may restrain any act or thing that "appears to the court may constitute or be directed toward the commission of an offence". The court may order anything to be done that "may prevent the commission of an offence". This wording again falls short of requiring proof beyond a reasonable doubt that an offence has occurred or is about to occur or is likely to occur.
[60] Moreover, the wording used in subsection 311(1) is to be contrasted with that found in section 39 of the Act. Section 39 permits a person who suffers, or is about to suffer, loss or damage "as a result of conduct that contravenes any provision of this Act" to apply to a court for injunctive relief. Section 39 therefore requires that the court be satisfied that loss or damage results from conduct that "contravenes the Act" in order to grant injunctive relief. The use of wording in subsection 311(1) which only requires that it "appears" that an offence has occurred, or is about to or likely to occur, must be taken to reflect Parliament's intent that a lower degree of proof is required under section 311 than is required under section 39. That lower degree of proof would not equate to proof beyond a reasonable doubt, or even proof at the high end of the civil standard.
[61] In so concluding, I have considered the respondents' argument that section 29 of the Act supports the conclusion that section 311 requires proof to the criminal standard. Section 29 provides:
29. The offence alleged in an environmental protection action and the resulting significant harm are to be proved on a balance of probabilities.
29. Dans une action en protection de l'environnement, la charge de prouver l'existence de l'infraction et l'atteinte à l'environnement qui en découle repose sur la prépondérance des probabilités.
[62] The respondents argue that because section 311 and related provisions contain no similar provision invoking the civil standard, the standard of proof must be intended to be the criminal standard.
[63] However, it is significant, in my view, that an environmental protection action referenced in section 29 may only be brought by a person who has applied to the Minister for an investigation of an offence and the Minister has either failed to investigate and report as required or has responded unreasonably to the investigation. An environmental protection action is therefore a form of substitution for a proper investigation of an alleged offence. The gravamen of the action is proof of an offence. In that circumstance, the need for clarification of the standard of proof is apparent. Viewed in this context I am not prepared to infer from the absence of a similar provision applicable to section 311 that the criminal standard of proof was intended to apply to section 311.
[64] To conclude on this point, I also observe that nothing in section 311 indicates that the application commenced by the Minister is criminal in nature so as to attract the criminal standard of proof.
[65] On the other hand, Environment Canada asserts that it need only establish that there is reason to believe that a violation of the Act is occurring. It is said by Environment Canada that in the absence of an express statutory requirement it is not necessary for it to prove reasonable and probable grounds for that belief. In the words used in Environment Canada's written submission:
31. Environment Canada need only prove that they [sic] have reason to believe a violation of the Act is occurring. Unless the statute indicates otherwise, reasonable and probable grounds for such belief or actual proof of the violation is not required.
Prince Edward Island (Minister of Community and Cultural Affairs) v. Island Farm and Fish Meal Ltd. (1989), 79 Nfld. & P.E.I.R. 228 (P.E.I.C.A.)
[66] While I reject the respondents' submission that what is required is proof beyond a reasonable doubt of facts giving rise to the commission of an offence, I also reject the submission of Environment Canada that it is not necessary for it to establish reasonable and probable grounds upon which to base a belief that a violation of the Act has occurred, or will occur, or will likely occur.
[67] The ordinary meaning of the words used in subsection 311(1) places the onus on the Minister, as moving party, to satisfy a court of competent jurisdiction that it appears that an act or thing constituting or directed toward the commission of an offence has occurred or is about to occur or is likely to occur. If so satisfied the court may enjoin any act or thing that it appears may constitute or be directed toward the commission of an offence. Alternatively, the court may mandate any act or thing that it appears may prevent the commission of an offence. While the language used falls short of requiring proof that an offence has occurred or will occur, it is necessary for the court at least to come to a bona fide belief, on a balance of probabilities, that a serious possibility exists that an offence has been committed, or is likely to be committed, or conduct directed toward the commission of an offence has occurred or will likely occur unless an injunction is issued. Unless the court is so satisfied, the Minister will have failed to establish the existence of facts that make the commission of an offence or conduct furthering an offence appear likely. The court's belief must be based on credible evidence, and any inferences that such evidence properly supports. The onus is upon the Minister to meet that burden.
[68] I do not find the Island Farm and Fish Meal case relied upon by Environment Canada to assist its position. This case turned upon the wording of the specific provincial legislation which expressly allowed a ministerial order to be issued simply where the Minister had reason to believe that a violation had occurred. The case is not authority for any broader proposition applicable to subsection 311(1) because of differences in the language used in each statute.
The Text as it Speaks to the Prevention of Offences
[69] Environment Canada submits that the language of subsection 311(1) when read in its entirety is directed toward the prevention of offences under the Act. I agree. It does so by allowing a court to prohibit acts or things that may constitute or be directed to the commission of an offence and by allowing a court to order that any act or thing be done where it appears that the resulting effect of the order may prevent the commission of an offence.
[70] For example, in the case of a single discrete act that constitutes or may constitute an offence under the Act, on proper evidence the court could enjoin the act or could order that any act or thing be done so as to prevent the occurrence of the offence. However, if that single, discrete act had already taken place, there would be no scope for the application of subsection 311(1) because there would be no act to restrain and no way to prevent the commission of an offence after the fact.
[71] What then of the case where a past or present act has a present and ongoi