Dump Trucks are not Ubers

AS PREVIOUSLY PUBLISHED IN THE RURAL VOICE:

A case decided in the Ontario Court of Justice in 2024 holds some valuable lessons for landowners and commercial trucking operators.  The decision resulted in convictions for a trucking company under the Environmental Protection Act – that was the quasi-criminal part of the story.  In the background, it is likely that the circumstances of the case will also give rise to civil claims against some of the parties involved.  The landowner is now confronted with huge potential costs.

Back in 2020 or so, the owner of a 36-acre rural property obtained a permit to fill in a low-lying area of his property to expand the workable land for agricultural purposes.  It’s not clear what initiated this, but the common-law partner of the owner was approached by the principal of a landscaping company offering to source fill to be used on the property.  The “soil broker” proposed a formal agreement to the landowner.  The landowner didn’t sign the agreement initially, wanting to wait to see what material was delivered to his property.  The landowner viewed the first few dump truck loads that came in and the fill appeared to be clean fill – exactly what he wanted.  That was on October 30, 2020.

The landowner was away on business on November 5 and 6 when more trucks arranged by the soil broker came to the property.  On November 6, the owner’s partner called him in a panic to explain that personnel from the Ministry of the Environment, Conservation and Parks (“MECP”) had attended at the property and told her that the material that was being delivered was not appropriate for the site.  The owner arrived back at the property late at night on November 6.  He went out to the fill area with a flashlight and could see that the material deposited contained rubber, tires, building debris, pink plastic from insulation, shoes, wood, metal and various pieces of garbage.

The evidence before the Court showed that some of the fill brought to the site was clean but much of the fill was waste from a particular property where there had been a historic unapproved landfill and where old industrial waste was mixed with the soil.  That source property could not be developed by its owner until the waste was eliminated.  Apparently, the soil broker was going to help that owner solve its problem with the historic waste by moving the waste to the 36-acre property and using it to fill in the low-lying area.  In all, 199 truckloads of material were brought to the landowner’s property through trucking arranged by the soil broker.  The landowner testified that, as of the date of the hearing before the Court, 167 loads-worth of waste-containing material probably remains.  He’s afraid he’ll go bankrupt if he has to haul the material away to a proper waste-disposal site.

The hearing before the Ontario Court of Justice was a trial on charges laid against the soil broker and the trucking company that had delivered the waste material to the landowner’s property.  Both parties were charged under the Environmental Protection Act with depositing waste on land that is not a waste disposal site and with operating a waste management system (which would include transporting waste) or waste disposal site without authorization under the Act.  The soil broker did not attend the trial, which proceeded on an ex parte basis against him.  He was convicted on both charges in respect of the November 5 and 6 delivery dates. 

The trucking company that delivered the waste to the landowner’s property did attend the trial and contested the charges.  The trucking company argued that other trucking companies were involved, that the MECP could have done more to stop the dumping, that the landowner should have been charged, etc.  One final argument made by the trucking company was that “the dump truck industry operates like Uber, renting out trucks and drivers to customers and that the responsibility of the trucking company is limited only to providing the trucks and drivers and has nothing to do with what is being hauled.”

The Justice of the Peace conducting the trial rejected all of the trucking company’s arguments as to why it should not be convicted.  She explained:

Dump trucks are not Ubers. There is a legal and regulatory framework that applies to dump trucks that choose to transport and dump waste. A dump truck company is expected to know what these legal requirements are and to ensure that they obtain the appropriate authorizations if they engage in this activity. If they do not, they should be taking steps to ensure they do not transport waste. This is their obligation under the law. Full stop. They cannot simply excuse themselves from legal and regulatory requirements by ignoring them. They bear the legal risk if they choose to do so.

The lesson for trucking companies is clear – ignorance of what is being hauled is no defence to a charge for transporting waste without proper authorization.  The lesson for landowners might be to refuse the importation of any fill to a property without personally ensuring that the fill is appropriate and can legally be deposited.  There will no doubt be a cost to achieving that level of assurance.  However, the cost of having your property turned into an illegal waste dump will be far higher.

The Mythical Inoperable Tractor

AS PREVIOUSLY PUBLISHED IN THE RURAL VOICE:

This month’s article doesn’t have much to do with farming, but I couldn’t pass on the opportunity to share a farming-related analogy at the centre of a recent impaired driving case.  A “mythical inoperable tractor” served as the basis for the initially (but not ultimately) successful defence of the charge. 

The facts of the case are simple.  A driver was involved in a single motor vehicle accident in the early morning hours one day in December, 2019 in the City of Toronto.  The sound of the accident had been overheard by a witness who happened to be walking home at the time. When that witness arrived at the scene, he found a vehicle stationed under a streetlight and off the travelled portion of the road and noted that the vehicle was not running and had its four-way flashers engaged.  There was a man behind the wheel of the vehicle and there was a female present outside the vehicle.  The witness did not see the accident and there were no other witnesses who had seen any accident. 

The man in the driver’s seat was arrested for impaired operation of a motor vehicle on the basis of two breath samples showing his blood alcohol over the legal limit.  At his trial in June, 2022, the accused did not call any evidence or testify in his own defence.  Instead, he relied on an expert report that was entered into evidence with the consent of the Crown.  The expert report confirmed that the accused’s vehicle was completely inoperable at the time it was discovered and was immobile.

The accused was acquitted at trial.  The trial judge accepted that the vehicle was inoperable and immobile when the accused was found sitting in the driver’s seat with a blood alcohol level above the legal limit.  There had been an accident, but it was not proven beyond a reasonable doubt that the accused was driving the vehicle at the time of the accident.  The accused was found sitting in the driver’s seat and could be found to have had the “care and control” of a “conveyance” necessary to support a conviction for impaired driving.  However, the trial judge ruled that “care and control” of a “conveyance” had not been proven beyond a reasonable doubt in spite of the following presumption set out at Section 320.35 of the Criminal Code: “In proceedings in respect of an offence under s. 320.14 or 320.15, if it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a conveyance, the accused is presumed to have been operating the conveyance unless they establish that they did not occupy that seat of position for the purpose of setting the conveyance in motion.”

The trial judge likened the situation to that of the “mythical inoperable tractor” found in the middle of a farmer’s field: could an individual seen drinking alcohol in a rusted-out old tractor with no windows or tires be convicted of impaired driving?  Would it not be unreasonable to convict where there was no realistic or even speculative risk of danger and no evidence of intent to put the tractor in motion?  The trial judge accepted that where it had been proven that a vehicle was inoperable and immobile and posed no apparent danger to the public, and there was no evidence of an intent on the part of the accused to drive the vehicle, the presumption in Section 320.35 of the Criminal Code did not provide the “care and control” of a “conveyance” necessary for a conviction.

The acquittal of the accused was appealed by the Crown to the Superior Court of Justice.  On appeal, the acquittal was overturned and the matter remitted to the Ontario Court of Justice for a new trial.  Although the appellate judge saw some “appeal” to the accused’s argument (and the trial judge’s reasoning) about the “mythical inoperable tractor”, the judge found nothing in the language of Section 320.35 of the Criminal Code that suggests that the presumption of “care and control” can be rebutted simply by establishing that a vehicle was inoperable and posed no risk to public safety.  The definition of “motor vehicle” in the Criminal Code does not exclude an inoperable vehicle.  If Parliament wished to make such an exclusion, it could through an amendment to the Code. 

What the trial judge got wrong in his decision was that there was an onus on the accused to show that he was not sitting in the driver’s seat “for the purpose of setting the conveyance in motion.”  It was not for the Crown to prove the intention; it was for the accused to prove the absence of an intention to drive the vehicle.  As the accused called no evidence at trial (save for the expert report that went in on consent), there was no evidence of an absence of intention.  The “mythical inoperable tractor” got the accused part way in rebutting the presumption of “care and control” of a “conveyance”, but not far enough.

Read the decision at: 2024 CanLII 24885 (ON SC).

Court not convinced that area is wetland – farmer acquitted

AS PREVIOUSLY PUBLISHED IN THE RURAL VOICE:

Conservation Authorities in Ontario are authorized by the Conservation Authorities Act (the “Act”) to make regulations “prohibiting, regulating or requiring the permission of the authority for straightening, changing, diverting or interfering in any way with the existing channel of a river, creek, stream or watercourse, or for changing or interfering in any way with a wetland”.  Authorities can also make regulations “prohibiting, regulating or requiring the permission of the authority for development if, in the opinion of the authority, the control of flooding, erosion, dynamic beaches or pollution or the conservation of land may be affected by the development”.  There is almost no area within Southern Ontario that is not subject to a regulation passed by a local or regional Conservation Authority.  However, generally, these regulations can only apply to river or stream valleys, hazardous lands or wetlands – “regulated areas” or “zones”.   

What constitutes a regulated area or zone is not always obvious.  For instance, a river or stream valley doesn’t actually have to contain a watercourse – the regulations can apply to areas with “depressional features associated with a river or stream”.  The Act defines “hazardous land” as “land that could be unsafe for development because of naturally occurring processes associated with flooding, erosion, dynamic beaches or unstable soil or bedrock”, but doesn’t define what might be unsafe.  To be considered “wetland” under the Act, land must meet the following four highly technical requirements (and not fall under the exception):

(a)            be seasonally or permanently covered by shallow water or have a water table close to or at its surface,

(b)          directly contribute to the hydrological function of a watershed through connection with a surface watercourse,

(c)           have hydric soils, the formation of which has been caused by the presence of abundant water, and

(d)            have vegetation dominated by hydrophytic plans or water tolerant plants, the dominance of which has been favoured by the presence of abundant water, but not be periodically soaked or wet land that is used for agricultural purposes and no longer exhibits a wetland characteristic referred to in clause (c) or (d).  [emphasis added]

The regulation of development also applies to “other areas where development could interfere with the hydrologic function of a wetland, including areas within 120 metres of all provincially significant wetlands and areas within 30 metres of all other wetlands.”

In a prosecution by a Conservation Authority for development in a regulated area without a permit or for interference with a wetland, the Authority must establish beyond a reasonable doubt that the activity carried out by the party charged occurred within a regulated area.  The Ontario Court of Justice recently dismissed charges against a farmer related to clearing work carried out in 2019 because the Conservation Authority failed to prove beyond a reasonable doubt that the area cleared was a wetland, as was alleged by the Authority.  The farmer had removed trees and vegetation from a “wooded area” located between tile-drained cultivated land to the north and east and intersecting drainage ditches to the south and west.  The land was cleared to extend the tile drainage system and bring the land under cultivation.  After receiving an anonymous complaint about trees being removed from the farmer’s property and conducting a further investigation, the Conservation Authority laid various charges, including a charge for interference with a wetland. 

At trial, both the Conservation Authority and the farmer called expert witnesses to testify on the question of whether the area cleared was, in fact, a wetland.  The Authority called one of its employees who had taken soil samples from the cleared area a few months after the clearing work was completed and took photos.  She confirmed that on her visit to the site in the midst of the spring thaw in April, 2020 she did not observe water on the cleared area.  She confirmed that she did not encounter the water table in any of her examinations of the area.  However, the Conservation Authority’s expert witness did say that the clay soil and “orange soil” she encountered could be indicators of hydric soils.  Also, she observed vegetation that she considered to be “hydrophytic plants” adjacent to the cleared area and in the piles of cleared vegetation or “slash piles”.  The Authority’s expert’s opinion was that the cleared area met the statutory definition of a wetland.

The farmer’s expert witness dug two 1-metre-deep pits just outside the cleared area to assess the soil in the cleared area.  His opinion was that hydric soils must contain gley soil, a rich grey clay-like soil.  The farmer’s expert did not encounter any gleys.  While he did find that the soils were imperfectly drained and opined that imperfectly drained soil could be considered hydric soil depending on the vegetation present, his conclusion was that the cleared area was not a wetland within the meaning of the term used in the Act.

The Justice of the Peace presiding over the case observed that there was no evidence that the cleared area was seasonally covered by water, that any hydric soils present were caused because of an abundance of water in the area, or that hydrophytic or water tolerant plants dominated the area (as favoured by an abundance of water).  As such, three of the four requirements for a “wetland” under the Act were not met and the wetland interference charge had to be dismissed.

Road Access Act saves landlocked neighbour from conviction on trespassing charge

Landowner W was charged with trespass, a provincial offence under the Trespass to Property Act, after he used a road he had constructed through a neighbour's property to reach his own landlocked property.  In her decision acquitting W of the charge, Justice of the Peace MacKinnon described the properties involved as follows:

This case involves three parcels of land, two of which front on Highway 609. Highway 609 is a two lane secondary highway in a rural area of Northwestern Ontario and runs in an east-west configuration.

On the south side of Highway 609 there is a parcel of land belonging to [M]. The west side of the [M] property fronts on the Wabigoon River. To the east of the [M] property is property belonging to [B] which is the North part of Lot 5, Concession 5. Its north boundary is Hwy 609, and its south boundary is on the north side of the defendant’s ([W]’s) property.

The defendant’s property is to the south of both the [M] and [B] properties. Its western boundary includes grasslands and the shore of the Wabigoon River. North is the [B] property and east is another property.

It is not disputed that the defendant purchased his lot as a landlocked property. He arranged for an easement over the [M] property from Highway 609, and received authority from the province for an entrance from the highway. He built a road south from Highway 609 through the [M] property but eventually turned southeast onto the [B] property and crossed it to his lot. [emphasis added]

A dispute arose surrounding the portion of this road on the [B] property.

At trial, W admitted that he had purchased his landlocked property as having water access only; it was his intention to purchase access from his neighbours (which he did from neighbour M, but not neighbour B).

The fact that W had constructed a road in part on lands owned by B and the fact that W had used that road were not in dispute.  What was at issue in the trial was whether W had a right or authority conferred by law which allowed W to go on the road through B's property.

Justice of the Peace MacKinnon examined whether W had a right or authority based upon the Road Access Act.  She noted:

The Act sets out strict prohibitions against landowners taking matters into their own hands and blocking or obstructing access roads, and requires an application to a Superior Court judge for an order closing the road. Landowners may only block a road when there is an alternate route for the landlocked owner to access their land. Such alternate routes must be in existence contemporaneously. A charge against a landowner who violates the Act, is a provincial offences matter with fines of up to $5,000 (s.61 POA).

MacKinnon, J.P. then found that W's road through B's property was a "road" for the purposes of the Road Access Act, meaning that W had a legal authority to use the road at the time for which he was accused of having trespassed.  The road was not owned by a municipality or dedicated as a public highway.  The road served as an access to landlocked property.  W had a "limited and temporary statutory right to use the road".  In fact, MacKinnon J.P.'s decision says that until such time as a closing order is obtained by B from the Superior Court as required by the Road Access Act, W would not be a trespasser on the road.

On top of the prosecution for trespass, W also faced (or faces) a civil claim from B related to the road through B's property.  It would be interesting to know how the decision to dismiss the trespass charge will affect the civil proceeding.  Was it correct to find that W could establish a right to trespass on B's property by building his own road, even after he had asked for and was denied permission to do so? The Road Access Act may protect use of existing roads, but does it effectively empower a landlocked landowner to use a new road as long as that landowner can manage to get the road built on the neighbour's lands?  And will the court hearing the civil claim be bound by the ruling made by the Justice of the Peace in the trespass case, even if it is incorrect?

Read the decision at: R. v. Weber.