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.

Unauthorized fill on properties found to violate zoning and site-alteration by-laws

The Township of Uxbridge went to Court over unauthorized site alterations and contraventions of the zoning by-law concerning property use.  In one case, the alleged alterations had left half of the property unsuitable for agricultural purposes, with that land now being used to store vehicles, equipment and debris from an excavation and haulage business.  In the other case, the allegation was that fill was illegally deposited on a former farm field, converting the field into an "industrial soil screening and mixing operation".  The same respondents were connected to both properties.

The zoning for the properties was "Rural", which allowed for non-residential uses such as "conservation, forestry and reforestation" and "a farm or nursery farm and greenhouse associated therewith".  The evidence of the owner of the properties was that the first property was being used only for residential use and that the second property was being used for a "farm or nursery farm and greenhouse associated therewith".  The Court disagreed, finding that the uses of both properties fell outside of the permitted uses under the zoning by-law.  Storage of landscaping materials and equipment was not permitted as farming or nursery farming.  The Court also rejected the argument that the use of each property should be permitted as a "legal non-conforming use".

On the issue of illegal site alterations, the Court dismissed the Township's application with respect to the first property because it had insufficient evidence to show that any by-law was breached.  With respect to the second property, the Court found that the Township had proven that more than 1,000 cubic metres of soil products were stored on the property in breach of the site alteration by-law.  The Court commented on the evidence:

"However, I do not accept that this is the extent of the soil material on the [G] property.  It is suspicious, to say the least, that [T] first indicated that he was unsure how much soil had been brought onto the property and placed in the "illegally filled area".  He then indicated that it was 240 truckloads, and only after hearing that an amount in excess of 1,000 cubic metres would require Council's approval of the permit, did he revise his application to indicate 880 cubic metres."

Based on its rulings on the zoning by-law infractions and the illegal site alteration, the Court made several injunctive orders restraining the respondents from continuing their illegal uses of the properties.

Read the decision at: The Corporation of the Township of Uxbridge v. Talbot.