IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           The Defendant in this case is a group of companies operating as a Saputo Dairy Products Canada, General Partnership, so I will simply refer to the defendant as “Saputo”.  Saputo has been charged under s. 36(3) of the Fisheries Act of unlawfully depositing or permitting the deposit of a deleterious substance in water frequented by fish or in any place under any conditions where the deleterious substance or any other deleterious substance that results from the deposit of the deleterious substance may enter any such water.

[2]           Information #82211 alleged six counts, but I acquitted Saputo of Count #1 in my earlier ruling on a no evidence motion.  Accordingly, 5 counts remain for consideration.

[3]           The charges arise from an incident that occurred on Sunday, April 21, 2013 at a dairy plant operated by Saputo in Abbotsford, B.C.  That morning, a coupler joining two sections of stainless steel pipe on Saputo’s new waste water treatment plant pulled apart.  As a result, 76,000 litres of waste water spilled from the treatment facility onto a parking lot and into a storm catch basin which led to a creek across the road from the plant.  This was an unfortunate event, but no fish appeared to have died as a result of the spill.

[4]           The coupler failed because the piping system was not in angular alignment.

[5]           Section 36(3) of the Fisheries Act is a strict liability offence.  The Crown must prove beyond a reasonable doubt that Saputo has committed the prohibited act, but it need not prove any intent or mental element.  Accordingly, my first task is to determine whether Saputo has deposited or permitted to be deposited a deleterious substance in the places and under the conditions set out in s. 36(3), as alleged in the 5 remaining counts.

[6]           Even if the prohibited acts are proven, Saputo can still avoid liability if it establishes on a balance of probabilities that it exercised due diligence or reasonable care.  Section 78.6 of the Fisheries Act expressly provides for this defence.  Saputo submits that the coupler failure was not foreseeable, or alternatively, that it exercised all reasonable care to avoid the coupling failure.

[7]           I thank all counsel for providing able submissions in this matter with reference to the pertinent facts.  This trial lasted some 17 days, not including preliminary motions, and I set out below only key aspects of the evidence rather than a complete summary.  I would note that most of the facts in this case are not really in contest.

[8]           Saputo operates a dairy plant at Riverside Road in Abbotsford, B.C. that manufactures hard cheese and whey.

[9]           Due to the manufacturing of dairy products, and the frequent cleaning of the plant, the plant generates waste water which is treated before being released into the Abbotsford City sanitary sewer system.

[10]        In 2010, prior to the construction of a new treatment facility, Saputo’s waste went to a small underground grit trap which allowed for some removal of sediment and some self-neutrality of the pH.  The waste water then carried on to the City sanitary sewer system.

[11]        Saputo decided to construct a new waste water treatment facility for 2 reasons:

[12]        Regarding the plant expansion, Ivano Pazzia was the project leader for Saputo in its environmental affairs department, and he was responsible for overseeing the construction of the waste water treatment facility.  In 2011, Saputo retained Conestoga-Rovers & Associates (“CRA”) to design the waste water treatment facility at the Saputo plant.  CRA, now known as GHD, was an engineering firm with considerable experience in the design and construction of waste water treatment plants.  CRA had designed similar treatment facilities or provided advice about such facilities for other large multi-national corporations such as General Motors, Ford, Kraft and Heinz.  Mr. Pazzia testified that he relied on their technical expertise.

[13]        Allan McMurray was the lead engineer on the Saputo project.  He is a senior process engineer and was the head of CRA’s industrial waste water treatment division.  Of course, engineers from other disciplines such as structural, mechanical and electrical were involved at various stages.

[14]        Mechanical engineers including Ben Samuell and Jessica Larmer were responsible for detailed mechanical designs, including all the mechanical components.  Mr. Samuell was the head of CRA’s mechanical engineering department and he and Ms. Larmer had considerable experience on the design of waste water treatment facilities.

[15]        CRA received information from Saputo about various parameters that needed to be taken into account in designing the waste water treatment system.  Such information included the waste water volume and the pH ranges for the waste water.  Because of the wash cycles, the waste water could be neutral, acidic or caustic, but overall the waste water tended on the caustic side, i.e. a pH above 7.

[16]        CRA prepared a design package for the waste water system which included the civil, electrical and mechanical drawings prepared by the appropriate engineers.  The 95% design package was peer reviewed by a CRA engineer not involved on the project.

[17]        CRA issued tender drawings for the waste water system to various potential contractors and ultimately, CRA recommended that Saputo retain Strohmaier Excavating Ltd. as the general contractor.  Strohmaier retained various subcontractors for the construction of the waste water treatment center.  Strohmaier retained Coast Water Systems Inc. to supply and install the stainless steel piping used in the treatment facility.

[18]        Between 2011 to September, 2012, the waste water treatment facility was constructed.  CRA was responsible for the day to day supervision of the construction and Mike Weighley carried out that supervision.  Mr. Pazzia was on site from time to time.

[19]        A geotechnical engineer attended the area where the treatment facility would be constructed and pilings were installed under the pad where the 2 major settling tanks were situated.  No pilings were placed under the adjoining lift station which was an underground structure.

[20]        CRA obtained the necessary permits from the City of Abbotsford, and Mr. Samuell, a B.C. professional engineer, signed and sealed the Assurance of Professional Design and Commitment for Field Review dated October 7, 2011.  Once construction of the waste water treatment system was completed, Mr. Samuell signed, sealed and filed with the City an Assurance of Professional Field Review and Compliance.

[21]        No evidence was led that Saputo ever informed CRA there was a creek near the Saputo plant.  Saputo did not have any significant secondary containment measures concerning the waste water treatment system, but there were spill kits on site.  CRA did not recommend secondary containment measures, because there was no regulatory requirement for secondary containment.  The waste water was not technically a hazardous substance.  On a rotating basis, certain Saputo employees received spill awareness training, and spill notification procedures are in particular locations at the Saputo plant.

[22]        Coast Water was of the view that it was not feasible to fabricate the large diameter piping arrangement offsite because the measurements of relativity long pieces of piping needed to be exact.  Coast Water proposed that the pipes be brought to the Saputo plant in sections and connected on site.

[23]        The piping could have been connected by welds or couplers.  Coast Water advised Mr. Pazzia that the welding would be problematic as it would have to be done outside in conditions that could compromise the weld.  Coast Water wanted to use couplers.

[24]        Mr. Pazzia had no issue with the use of couplers provided it was approved by CRA.  He says he received no warnings about the use of couplers, and he was not aware of any advantage to welding.  He believed the couplers had the same integrity as a welded pipe, based on advice received.  Mechanical engineers from CRA, Mr. Samuell and Ms. Larmer, considered the use of the Teekay Axilock Couplers.  Coast Water submitted shop drawings to CRA which included the proposal to use 8 inch Teekay Axilock couplers.  Ms. Larmer concluded that the couplers conformed with the system requirements and specifications.  The pressure rating for the couplers exceeded the pressure the waste water treatment facility would generate.  The Saputo waste water treatment system operated at a relatively low pressure.

[25]        Ian Scott, a mechanical engineer with CRA, was qualified as an expert in this trial.  Mr. Scott testified that the total axial force (the “pulling apart” force) on the couplers created by the operation of the treatment facility would only be 2,414 newtons, whereas the coupler was rated for 241,382 newtons.  He also indicated that the pressure of the fluid in the treatment facility was in the range of 10 - 18 psig (pounds per square inch gauge), whereas the coupler was rated for pressure up to 609 psig.

[26]        Mr. Scott explained how the coupler functioned in holding together pieces of piping with mechanical restraint rings which dug into the piping.

[27]        No one at Saputo or CRA was aware that there were any installation problems with the above ground piping in the waste water treatment system.  The life expectancy of the pipes was over 100 years.

[28]        As stated above, the waste water from the Saputo plant is treated by flowing through a waste water treatment system and then exiting into the City of Abbotsford sanitary sewer system.  The system is designed to allow various neutral, caustic and acidic waste water solutions to mix together and self-neutralize, with the additional ability to add C02 to lower the pH if necessary.

[29]        Generally speaking, waste water from the new cheese department, the transformation plant and the whey plant flows by gravity to a large underground container called the lift station.  Some of the waste water first encounters a grit trap but all the waste water ends up in the lift station.  Some self-neutralization occurs in the lift station.

[30]        After collecting the waste water, the lift station then pumps the waste water through a pipe into the first of two tanks, known as Tank 1.  It is this pipe which failed so as to cause the spill.  The purpose of Tank 1 is to mix waste of various pH levels to achieve further self-neutralization.  The waste water in the tank is agitated.  Tank 1 has a pH probe.

[31]        The waste water in Tank 1 then flows through a pipe into a second treatment tank, Tank 2.  In Tank 2, carbon dioxide can be added to lower the pH if necessary.  From Tank 2, the water flows by gravity into the city sanitary sewer system.

[32]        The lift station and the treatment tanks are situated on the Saputo parking lot which slopes towards a storm water catch basin that leads to a creek across the road.

[33]        The waste water treatment system had some fail safe measures to mitigate the harm of an overflow of Tank 1 or Tank 2, such as an automatic overflow in the lift station to allow the waste water to flow directly into the city sewer system, and high level shut off switches.

[34]        The waste water treatment system went into operation in about September, 2012.  Certain Saputo employees were trained as to how the system worked.  CRA also prepared an operations manual for the system.

[35]        The manual does not mention the need for daily maintenance or inspection of the above ground piping or couplers.  However, Ms. Nechvolodoff - Saputo’s environmental, health and safety co-ordinator and production supervisor - did carry out almost daily visual inspections of the treatment facility including the above ground piping.  I need to point out that the piping between the lift station and Tank 1 was covered in insulation so the steel piping and couplers were not themselves readily visible.

[36]        It must be borne in mind that the Saputo plant produces well over 1 million litres of waste water each day.  The waste water is derived from two processes: cleaning and production.  Insofar as cleaning is concerned, every 20 hours each piece of equipment in the plant is rinsed with a caustic solution to remove fats and then an acidic solution to remove minerals, and there is a rinse in between with city water.  The cleaning is done continuously, with various pieces of equipment being washed at various times.  As referenced earlier, the water generated is a combination of neutral, acidic and caustic solutions but the waste water tends to be caustic.

[37]        Waste water also results from the production of dairy products, and the Saputo plant is always in operation.

[38]        Just east of the Saputo plant, along Riverside Road, there is a creek.  It is clear that the spill in this case entered the storm sewer catch basin on Saputo’s property and went under Riverside Road to the creek.  The creek flows between the road and certain railway lines, and it is a tributary of Marshall Creek which ultimately reaches the Fraser River.

[39]        I understand the small creek tributary to the east of the Saputo plant is sometimes known as Shamrock Creek.  In any event, I am satisfied beyond a reasonable doubt that the creek is a body of water frequented by fish.  In 2014 and possibly 2015, biologist Tim Adam participated in a fish salvage just upstream from the Saputo plant and caught 1 Coho and II cutthroat.  In the Fall of 2014, Dylan Wood of Environment Canada had observed dead lamprey and salmonid species in the creek adjacent to the Saputo plant.  All creeks and streams of this type are vitally important to the Fraser watershed and the fisheries in the Lower Mainland.

[40]        On Sunday, April 21, 2013, at about 10:08 a.m., two sections of stainless steel piping connecting the lift station and Tank 1 broke apart.  One of the Teekay Axilock couplers pulled apart from the sections of the pipe it was connecting.

[41]        As a result of the break, 76,000 litres of waste water spilled from the treatment facility.  The waste water flowed across the parking lot and into a storm water catch basin.

[42]        Once in the catch basin, the waste water overflowed into the storm sewer and entered a creek directly across the road from the plant.  About 500 litres of waste water remained in the catch basin and was later pumped out.

[43]        About 36,000 litres of waste water being pumped through the pipe from the lift station mixed with 40,000 litres of waste water being siphoned back from Tank 1 into the break in the pipe. 

[44]        At the start of the spill, the pH probe in Tank 1 reached a pH of 11.8.  Defence counsel challenges the accuracy of that probe, and the tank may have had a different pH at a different level.  Ms. Nechvolodoff testified that one cannot predict the pH level of the waste water in the lift station based on the pH readings in Tank 1, because the lift station is continually receiving waste water.

[45]        There was no pH probe in the lift station, and the pH probe connecting the lift station to Tank 1 was not working properly.  A lab tested sample collected from the lift station on April 22, 2013 was found to have a pH of 9.49, and a field test conducted on the same date and in the same lift station recorded a pH of 8.83.

[46]        From all accounts, it was raining at some point on Sunday morning and the storm sewer with catch basin could have some rain water.  The catch basin is also connected to an underground water system on the Saputo property that was transporting additional rainwater collected from a number of other storm drains.  There is also an underground water course from which Saputo was licensed to draw for cooling purposes.  But for a spill event, the underground water course does not ordinarily mix with any waste water.

[47]        An acid wash had started at the Saputo plan at about 8:00 a.m. on the day of the spill.  At 9:00 a.m., a caustic wash cycle started.

[48]        On June 4, 2013, Ian Scott, an engineer from CRA provided a memorandum to document the investigation respecting the spill and a mechanical inspection of the piping system.  The report concluded that the piping system was not in angular alignment at the coupling which failed.  The misalignment was 3.5 degrees, and the piping was about 2 inches lower at the elbow than it was at the coupler.  The maximum angle of the deflection that this Teekay Axilock is designed to work under is 2 degrees.

[49]        The root cause of the misalignment of the coupler could not be definitively attributed to a single source.  The 2 most likely causes of misalignment were said to be as follows:

[50]        Mr. Scott ultimately made some recommendations which included welding the piping together as opposed to using the coupler.  Ultimately, the coupler was removed and welds were used instead.

[51]        The spill occurred at 10:08 a.m. and, at that time, Tank 1 contained about 75,000 litres of waste water according to Saputo records.  Within the first 3 minutes of the pipe breaking, Tank 1 lost about 15,000 litres of waste water.

[52]        Saputo employee, Bill Koo, eventually arranged to shut off the pump in the lift station but waste water continued to pour out of Tank 1.  To stop that spillage, Mr. Koo had to get a ladder, climb up to a chain controlling a valve to Tank 1 and pull a manual valve.

[53]        However, waste water was continuing to pour into the lift station from a current wash cycle, so that triggered a second pump to turn on in the lift station around 10:25 a.m.  This waste water pumped out of the lift station to the break in the pipe.  Ultimately, Mr. Koo was able to turn off the second pump.

[54]        For the next couple of weeks, all waste water from the Saputo plant bypassed the treatment facility (which included the lift station and Tank 1) and went directly to the City sanitary sewer.

[55]        Saputo did not inform the provincial Ministry of Environment about the spill until 12:32 a.m. on April 21, 2013.  An anonymous report was made earlier to the Ministry of Environment.  A senior environmental emergency response officer, Harold Riedler, was informed of the incident and he arrived at the plant at approximately 1:20 p.m.  Mr. Leclerc, the plant manager with Saputo, arrived at the plant at 1:30 p.m. and Cody Ambrose, a field agent with the B.C. Conservation Office Service, arrived about 10 minutes later.

[56]        Mr. Leclerc explained to Mr. Reidler how the waste water treatment centre worked and that, as a result of the spill, all waste water from the Saputo Plan was bypassing the treatment centre and going straight into the City’s sanitary sewer.

[57]        Mr. Riedler was personally responsible for notifying the appropriate agencies about the spill.  These agencies included public works for the City, the James sewage treatment plant, the Fraser Health Authority, Environment Canada and others.  Although he had sampling bottles, he did not take any samples of the fluid anywhere in the treatment facility, in the storm catch basin or in the creek.  He also did not take a pH reading of the spill solution at any location.  Instead, Mr. Riedler directed that Saputo retain a consultant to come to the Saputo plant and collect samples.  Saputo did arrange for Deacon Liddy from CRA to attend the spill site to take samples.  Mr. Riedler also agreed that Saputo should retain a septic truck to remove about 500 litres of spill solution from the storm catch basin.

[58]        Mr. Ambrose took some photographs of the spilled effluent but did not take any samples of the spill solution as that was not his function.  The effluent on the pavement from the waste water tanks to the storm drain contained white chunks which were cheese curds.

[59]        Mr. Liddy from CRA arrived on site around 5:00 p.m. on April 21, 2013.  Mr.Riedler and Mr. Liddy discussed where to take samples and what the parameters of the samples were to be.  It was agreed that samples should be taken at the lift station and various locations in the adjacent creek.  Mr. Riedler asked Mr. Liddy to obtain both lab samples and to take field readings with an electronic probe.  Mr. Liddy advised that he did not have an electric probe so he would return the next day to carry out those readings.

[60]        Mr. Liddy focussed on getting samples from the creek as that task was most pressing given the creek flow.  The intention was to return the next day to retrieve a sample from the lift station given that the solution there was stationary.

[61]        On the day of the spill, Mr. Liddy took 5 samples from the creek, including at the outfall from the catch basin, upstream and downstream.  The next day, being April 22, 2013, Mr. Liddy obtained 2 more samples from the creek and one from the lift station.  Mr. Liddy also recorded field parameters at these locations and 2 more downstream.

[62]        The sample from the lift station was lab tested and found to have a pH of 9.49 and the field tested sample from the lift station was found to have a pH of 8.83.  The lab samples from the creek ranged from a pH of 7.69 and 7.93.  The field testing of creek samples had a pH range from 6.97 to 7.61.

[63]        Overall, Mr. Liddy’s report dated May 17, 2013 concludes that about 76,000 litres of non-treated waste water from Saputo’s plant was released into the adjacent creek.  Saputo had cleaned up the immediate area and manholes and hand washed visible curds from the outfall area.  Based on the water sample results, the concentrations of all creek locations were within safe parameters for the protection of aquatic life.  Accordingly, Mr. Liddy concluded that no further investigation or remediation work was required.

[64]        This was indeed an unfortunate event but no fish appeared to have died as a result of the spill.  No one reported seeing any dead fish.

[65]        Rod Shead, an environmental co-ordinator then with the City of Abbotsford, took water quality readings either on April 22 or 23, 2013 about 300 meters downstream from where the spill would have entered the creek.  The flows were clear and there was no evidence of any residual material from the spill.  He observed no fish mortalities and, in fact, fish were swimming in the creek.

[66]        In 2010, there was a spill of milk in the receiving bay of the Abbotsford Saputo plant and some of the milk spilled did enter the nearby creek.  Saputo has experienced other spills in the past.  In a voir dire, I admitted this prior spill evidence but indicated that its weight was very much at issue, and such evidence could in no way be used to show propensity to commit an environmental offence.

[67]        Craig Buday was qualified as an expert witness in the areas of environmental toxicology and the toxicity of substances, chemicals and effluents to fish and other Canadian aquatic organisms.  He is a regulatory toxicologist with Environment Canada.  He confirmed that pH is the measurement of how acidic or basic a water solution is.  The pH scale ranges from 1 to 14, where a pH of 7 is considered neutral and a pH of less than 7 is acidic and a pH of greater than 7 is basic.

[68]        The pH scale is a logarithmic scale based on multiples of ten.  In other words, to dilute a substance with a pH of 14 to a pH of 13, about 10 times the amount of water would need to be added.

[69]        Mr. Buday has been involved with a toxicity test called the LC 50.  The test involves exposing fish to a test substance at various concentrations to determine the concentration of a substance that causes 50% mortality in the test organisms in 96 hours.

[70]        During his employment, Mr. Buday oversaw a project aimed at collecting additional evidence of the pH effect on fish, particularly salmonids.  In that LC5O study, salmonids were exposed to a variety of pH levels ranging from pH 11.5 to pH 10 in increments of 0.25, to determine what pH level was lethal to 50% of fish within 96 hours of exposure. 

[71]        Ultimately, the LC5O pH measurement where 50% of fish died in 96 hours was pH 10.54.  This was a statistical average reached after the test was repeated 3 times.

[72]        Mr. Buday defines acutely lethal to mean when mortality occurs, i.e. at 10.54 pH.  In his opinion, a substance between 11 - 12 pH is acutely lethal to fish.  He also opined that if an equal amount of water was added to a substance with a pH of 11.5, the pH would still be above 10.54 and therefore deleterious to fish.

[73]        Craig Buday also made reference to the B.C. Water Quality Guidelines and the Canadian Water Quality Guidelines specific to pH.  These guidelines indicate that pH levels greater than 11 are rapidly lethal to fish; and pH levels values between 10.5 and 11 are lethal to salmonid species which include salmon and trout.

[74]        Mr. Buday was never provided with samples of liquid from the spill at the Saputo plant.  He simply gave the opinion that if trade waste during the spill had a pH of approximately 11.5 to 12, such trade waste would be acutely lethal to fish.

[75]        As I said in the introduction, my first task is to determine whether the Crown has proven beyond a reasonable doubt that Saputo has deposited or permitted to be deposited a deleterious substance as alleged in counts 2 to 6.  The Crown contends that the spill incident caused a deposit of a deleterious substance into certain places under conditions where that deleterious substance, or any other deleterious substance that results from the deposit of the initial deleterious substance, may enter water frequented by fish, i.e. the creek adjacent to the Saputo plant. 

[76]        The places of deposit are alleged to be the lift station (count #2), Tank 1 (count #3), the wastewater plant pH control system (count #4), the pipe connecting the lift station and Tank 1 (count #5), and the storm water catch basin (count #6).

[77]        A violation of s. 36(3) of the Fisheries Act is a strict liability offence as defined by the Supreme Court of Canada in R. v. Sault Ste. Marie [1978] 2 SCR 129.  This principle is confirmed for example, at paragraph 69 of R. v. BHP Diamond 2002 NWTSC (2003) 2002 NWTSC 74 (CanLII), 6 WWR 282.  I also note that s. 40(5)(a) of the Fisheries Act states that “a deposit” takes place whether or not any act or omission resulting in the deposit is intentional.

[78]        Section 36(3) of the Fisheries Act reads as follows:

[79]        Our Court of Appeal has considered the intent behind what is now s. 36(3) of the Fisheries Act in R. v. MacMillan Bloedel (Alberni) Ltd. (1979) 1979 CanLII 495 (BC CA), 47 CCC (2^nd) 118 (leave to the SCC refused).  The Court there said as follows at paragraph 12:

[80]        It is clear that the prosecution under s. 36(3) does not have to prove harm to the waters, the fish in the waters or the water habitat.  It simply must prove the deposit of deleterious substance in any place or under any conditions where that substance or another deleterious substance resulting from the deposit of that substance may enter any water frequented by fish.

[81]        Section 36(3) does allow for 2 modes of committing any offence (see R. v. Western Stevedoring Co. [1984] BCJ No. 1450 (CA).  The first mode is the actual deposit of a deleterious substance into water frequented by fish.  Count 1 in this proceeding is specifically worded to follow this mode of the offence.  In my ruling on the no evidence motion, I concluded there was no meaningful evidence as to the pH of the waste water at the point it enters the creek.  Accordingly, Saputo was acquitted on Count 1.

[82]        However, counts 2 to 6 are worded much more broadly, and they fall into the second mode of committing a s. 36(3) offence.  The second mode is the deposit of a deleterious substance in a place, under conditions where it may enter water frequented by fish.  My analysis will focus on whether the Crown has proven that Saputo committed this second mode of the offence beyond a reasonable doubt.

[83]        I agree with the Federal Crown that section 36(3) and in particular the second mode of committing that offence, is intentionally stricter that it could have been.  See R. v. MacMillan Bloedell (Alberni) Ltd. cited above.  As the Western Stevedoring Co. case emphasizes, the substance need not even enter the water, i.e. the creek.  The fact it may enter the water is sufficient to prove the offence.

[84]        The identity of the defendant, the date of the alleged offence and the place of the alleged offence are admitted.  As I have indicated earlier, I am also satisfied beyond a reasonable doubt that the creek adjacent to the Saputo plant is a body of water frequented by fish.

[85]        Further I am satisfied beyond a reasonable doubt that it was the defendant, Saputo, which deposited or permitted the deposit of certain waste water in certain places.  As a result of the break in the pipe connecting the lift station and Tank 1, 76,000 litres of waste water flowed across a parking lot and into a storm water catch basin.  Most of the effluent then travelled under the road to the creek.  About 36,000 litres was discharged from the lift station and another 40,000 litres spilled from Tank 1.

[86]        I am also satisfied beyond a reasonable doubt about the conditions that led to this deposit of waste water.  The evidence clearly showed that the coupling connecting the pipe from the lift station to Tank 1 failed.  It was out of alignment.  Once the coupling failed, waste water spilled out of the lift station and it was siphoned out of Tank 1.  The spill then naturally flowed to the storm basin and the creek.

[87]        The truly contested issues are as follows.  First, I must be satisfied that the waste water liquid which was deposited in specific locations was a “deleterious substance”.  Secondly, I must engage in some analysis of the component of the offence requiring proof that the deposit “may” enter water frequented by fish.

[88]        The term “deleterious substance” is broadly defined in section 34(1) as follows:

[89]        I am satisfied that the B.C. Court of Appeal case of R. v. MacMillan Bloedel (Alberni) Ltd., cited above, remains the seminal case for the test for deleteriousness.  That case holds that what is being defined is the substance that is added to the water rather than the water after the addition of the substance.  In that case, once it is determined that the bunker c oil is a deleterious substance, and that it has been deposited, the offence is complete, without ascertaining whether the water itself was thereby rendered deleterious.

[90]        The Ontario Court of Appeal in Fletcher v. Kingston, 2004 Carswell, Ontario. 1860, follows the MacMillan Bloedel case.  That case further states at paragraph 65 that a “deleterious substance does not have to render the water into which it is introduced poisonous or harmful to fish; it need only be likely to render the water deleterious to fish.”  It also held that the words “any water” in section 34(a) is not the receiving water.  Rather, it is any water to which the impugned substance is added, after which it can be determined whether the quality of that water is rendered deleterious to fish.

[91]        There are some cases which appear to heighten the proof required to establish the deposit of a deleterious substance.  The Newfoundland Provincial Court Case of R. v. Abitibi Consolidated Inc., 2000, Carswell, Newfld. 163, holds that the Crown must prove that the deposit is of such a level of concentration as to be of itself potentially deleterious.  The court appeared to make this test distinctive for a certain type of substance which is not of itself deleterious.

[92]        Likewise, the case of R. v. Pacifica Papers Inc., 2002 BCPC 265, held that the Crown was required to prove beyond a reasonable doubt that the substance deposited was deleterious at the time and place of the deposit through direct evidence, or reliable expert evidence.  The court further held that the Crown was required to prove that a substance that is not inherently deleterious is deleterious at the point it enters the receiving environment because of the levels of the concentration.

[93]        The court there appears to rely on R. v. Posselt, 1999, Carswell, B.C., 1108, which dealt with a different offence of harmful alteration to fish habitat.  Moreover, I note that the Ontario Court of Appeal in Fletcher v. Kingston, cited above, respectfully disagrees with the Pacifica and Abitibi cases to the extent that those cases stand for the proposition that when a substance is not inherently deleterious, the substance’s nature and concentration must be proven to be deleterious at the point it enters the receiving environment.

[94]        The Fletcher v. Kingston case has been followed in several provinces, including in British Columbia in the case of R. v. British Columbia, 2006 BCPC 73.  Like Judge Dollis in that case, I conclude that as a general legal principle the Crown in a case of this kind is not required to prove that the substance was deleterious at the point it entered the receiving environment.  I would also note that Judge Dollis specifically did not follow the Pacifica case.

[95]        I reiterate that the Crown does not have to prove that a deleterious substance actually entered water such as a creek.  It is sufficient for the Crown to prove that it was deposited into a place where it may enter water frequented by fish.  See again the Western Stevedoring Co. case cited above.

[96]        I must analyse the evidence in this case bearing in mind the broad definition of “deleterious substance” discussed above.  That being said, I am acutely aware that there is essentially only one piece of evidence about the pH levels of the waste water at the time of the spill.  This one piece of evidence is the pH probe reading in Tank 1 of 11.8.

[97]        Before analyzing that piece of pH evidence, I need to first establish if there is sufficient evidence for me to determine when pH levels are so high that they are deleterious to fish.  Craig Buday was the only expert I heard on this subject.  Based on his work with a LC50 study involving salmonids, fifty percent of fish died in 96 hours when the pH of the water was 10.54.  This value was the statistical average reached after the test was replicated three times.  Mr. Buday also gave the opinion that if the trade waste water in this case had a pH of 11.5 to 12, such trade waste would be acutely lethal to fish.

[98]        Now it is true that Mr. Buday was never provided with actual samples of the spill solution from the Saputo plan.  Consequently, Mr. Buday agreed he would not be able to determine whether the actual waste water in this case had a pH of 10.54 or above so as to be deleterious to fish.  I nevertheless accept his opinion that a solution with a pH between 11.5 to 12 is deleterious to fish.  Mr. Buday also stated that the nature of the substance does not impact whether the pH level is deleterious or not.  I would note that his opinion is also in accordance with what is stated by the B.C. Ministry of Environment and the Canadian Water Quality Guidelines.  These guidelines state that the pH levels greater that 11 are rapidly lethal to fish, and pH levels of 10.5 to 11.0 are rapidly lethal to salmonid fish.

[99]        I also appreciate that Mr. Buday was criticized in the case of R. v. Pacifica Papers Inc., as cited above.  In that case, his conclusions were said to be scientifically unjustifiable because he did not actually place fish into an effluent and measure mortality rates.  It appears that Mr. Buday erred in that case because he did not wish to sacrifice fish to prove what he felt was an obvious conclusion.  The present case is different.  I accept Mr. Buday’s expert evidence about the LC50 studies and there is no expert opinion to the contrary.  Again, his general conclusions about pH accord with those of provincial and federal water quality guidelines. 

[100]     In conclusion, I am satisfied beyond a reasonable doubt that a solution with a pH of 10.54 and above is deleterious to fish.

[101]     The issue remains as to whether the Crown has proven a deposit of a substance with a pH of 10.54 or above.

[102]     The only hard evidence I have about the pH of the waste water at the time of the spill is simply this: the tank 1 probe measured a pH of 11.8.  On the day of the spill, neither Mr. Riedler from the Ministry of Environment nor Mr. Mr. Ambrose from the B.C. Conservation Office took any water samples from any location.  Mr. Riedler instead instructed Saputo to retain a consultant to take the samples.  That consultant was Mr. Liddy from CRA and he arrived about 7 hours after the spill.  His samples showed no problematic pH levels anywhere in the creek, and the next day, his samples showed no problematic pH levels in the lift station.

[103]     There is no direct evidence at the time of the spill about the pH levels of the solution in the lift station (Count 2).  Ms. Nechvolodoff, an employee of Saputo, offered to collect a sample from the lift station but was told not to do so.  The next day after the spill, the field tests within the lift station revealed pH levels of 8.83 and 9.49, below levels considered to be deleterious.

[104]     Likewise, there is no direct evidence at the time of the spill about the pH level of the substances in the pipe connecting the lift station to Tank 1 (Count 5).  This pipe precedes Tank 1.  As to count 6, there is again no direct evidence at the time of the spill about the pH level of substances in the storm water catch basin.  The catch basin was made up of water from the lift station, Tank 1 and likely rain water.  The contents of the catch basin were emptied into a septic truck with no sample being taken. 

[105]     Due to the lack of direct evidence about the pH levels, Count 2 (deposit at the lift station), Count 5 (deposit at connecting pipe), and Count 6 (deposit at the catch basin) can only be proven on the basis of inference and circumstantial evidence.  The same can be said for Count 4 (deposit in the entire waste water pH control system).  I will return to these counts once I have analyzed the evidence regarding the solution in Tank 1, which relates to Count #3.

[106]     Insofar as Tank 1 is concerned, I am satisfied beyond a reasonable doubt that Tank 1 had a pH probe reading of 11.8.  This means that at least some of the substance in Tank 1 was of a pH value deleterious to fish.  First of all, that is what the pH probe reading showed, and a pH reading of 11.8 makes sense in the context of what was occurring the morning of the spill.  A caustic wash had occurred that morning.  Secondly, Ms. Nechvolodoff from Saputo readily admits in her interview with Environment Canada that the pH was 11.8 at the time of the spill.  There is later some speculation that the Tank 1 pH probe may have “drifted”, but Mr. Pazzia from Saputo concedes that drift would be minimal.  I find that any notion of “drifiting” of the probe to be speculation, and in any event the pH of at least some of the solution of Tank 1 was well above 10.54, the point at which the solution is deleterious to fish.

[107]     As to count 2, the Crown submits that I can infer that the solution in the lift station was even higher in pH than the solution in Tank 1 because the pH readings in Tank 1 were going up.  Whatever substance was entering Tank 1 from the lift station was therefore of a higher pH.  The same logic is said is to apply to the broken pipe connecting the lift station to Tank 1.

[108]     In order for me to accept this logic, I must be fully satisfied that the pH readings were still going upwards after the spill.  In my view, the pH chart is too imprecise to read.  Ms. Nechvolodoff could not tell from the chart what kinds of fluids - caustic or acidic - were going into the lift station at 10:00 a.m. the day of the spill.  It may well be that the solution in the lift station was of even higher pH than the solution in Tank 1, but such an inference is not the only inference I could draw from these facts.  I cannot say with any certainty that the pH is still trending upwards.  I also know that the next day the pH in the lift station is considerably lower.

[109]     I also must take into account that Ms. Nechvolodoff stated that you simply cannot accurately predict the pH in the lift station based on the pH level in Tank 1.

[110]     The same concerns expressed above apply to the piping connecting the lift station to Tank 1 (count 5).  The piping precedes Tank 1 and contains wastewater of unknown pH but for a small section that is siphoning solution out of Tank 1.  There is also no way for me to logically infer the pH of the entire waste water pH control system which includes waste water in many components of unknown pH prior to Tank 1 (Count 4).

[111]     As to count 6, there is no way for me to logically infer the pH of the solution in the catch basin which consisted of rainwater, solution from the lift station and solution from Tank 1.  Rainwater could have diluted the waste water spilling from Tank 1, and the lift station solution was of unknown pH. 

[112]     In conclusion, the Crown has proven beyond a reasonable doubt that a deleterious substance was deposited in Tank 1 based on the pH recording of 11.8.  A substance with that level of pH is undoubtedly deleterious to fish.  Therefore, count 3 remains viable.  However, Counts 2, 4, 5 and 6 must be dismissed because I am not satisfied beyond a reasonable doubt that a deleterious substance was deposited in the lift station, the overall waste water pH control system, the connecting pipe and the storm catch basin.  I realize there is no formal requirement that the Crown have evidence of samples of the substance tested in each area, but without such evidence here, the Crown’s case falls short on those 4 counts.

[113]     Defence Counsel submits that the Crown must prove under the second mode of 36(3) that there was a real and foreseeable risk, not merely a speculative risk, that the waste water deposited may enter water frequented by fish.  I must be careful here not to add a mens rea argument to a strict liability offence.  I am analyzing the actus reus here, and any analysis of foreseeability would bring in an intent component.  Foreseeability is something usually considered in the defence of due diligence.

[114]     The defence speaks of a real and foreseeable risk component in the actus reus because of the wording in R. v. Northwest Territories (Commissioner) [1994] NWTJ No 39 (SC).  In that case, the court concluded that s. 36(3) of the Fisheries Act was not unconstitutionally vague, because to convict on the basis that a deposit “may” enter water frequented by fish, it must be established that the risk was “foreseeable and real, not merely speculative” (see paragraph 26).

[115]     From my review of the cases, courts in B.C. have not added in an additional burden of proof for the Crown in strict liability offences.  I am also of the view the court in R. v. Northwest Territories was not intending to bring in a true foreseeability test in s. 36(3).  The court was simply drawing a distinction between a real risk as opposed to an entirely speculative risk.  Consequently, when looking at the conditions under which a deposit may enter a creek, it is important to ensure that there was a real risk as opposed to a speculative one.

[116]     For example, if a spill of a deleterious substance occurred many kilometres from the nearest creek and there were no storm sewers nearby, it is only a very speculative risk that such a substance may enter a creek.  The actus reus is not proven in that case because the “may” requirement is not made out.

[117]     In the present case, the Saputo waste water treatment facility was designed so as not to allow any waste water to escape, except to the sanitary sewer.  I appreciate that various Saputo employees testified that they were surprised and shocked that the coupler failed as it did so as to cause a spill into the storm sewer.  Nevertheless, I accept that there was a “real” risk that if some of the above ground structures -- such as the piping or perhaps even the tanks -- had some sort of major failure, effluent may spill onto the parking lot, into the storm sewer and ultimately into the nearby creek.  Indeed, that is what occurred here.  A deleterious substance was deposited into Tank 1, and due to the failure of a coupling, waste water was siphoned out of the separated piping and ultimately entered the creek.  The risk of this happening was a real risk as opposed to a purely speculative one.

[118]     By finding that there was a real risk that a deleterious substance “may” enter water frequented by fish, I am by no means ruling that the spill in April of 2013 was foreseeable.  Foreseeability requires a much more nuanced analysis of the particular event, and I will engage in that analysis as part of the due diligence defence.

[119]     In Counts 2 to 6, the charges particularize the substance being deposited as “non-treated waste effluent”.  The defence asserts that the Crown cannot establish that “non-treated waste effluent” was deposited at any of the locations.  Of course, based on my analysis above, I am now only concerned with Count 3 which alleges that “non-treated waste effluent” was deposited in Tank 1.

[120]     The defence submits that the offence as particularized in the charges, must be proven.  Here, the Crown has used the words “non-treated waste effluent” and that is said to be not proven.  The raw waste water from the milk transformation plant and whey plant comingle before going to a grit trap.  The waste water from these two plants plus the new cheese plant then transfer to the lift stations.  Some self-neutralization occurs in the lift stations before being pumped into Tank 1 where more self-neutralization occurs.

[121]     With respect to Count 3, the defence is really saying that the waste water in Tank 1 cannot be “non-treated waste effluent” because some treatment has already occurred at the grit trap and in the lift station.

[122]     In my view, this argument is based on technical semantics.  The Crown perhaps could have been more precise by referring to the substance as “partially treated waste effluent”, but in any event the defence could not have been misled by the term “non-treated waste effluent”.  Even Saputo’s own reports from CRA refer to a “non-treated” waste water spill: see Exhibit 12, page 252.  Surely the defence knew the case it had to meet.  It is also debateable as to whether self-neutralization is an active form of treatment.

[123]     Based on the above analysis, I am satisfied beyond a reasonable doubt that Saputo deposited or permitted the deposit of a deleterious substance in Tank 1 under conditions where the deposit of that substance or any other deleterious substance resulting from that deposit may enter water frequented by fish.  The substance deposited in Tank 1 was deleterious to fish because at least some of the solution in that tank contained a pH of 10.54 or higher.  In short, the Crown has proven the actus reus for Count 3.

[124]     The Crown has not proven the actus reus for Count 2 (lift station), Count 4 (the waste water pH control system), Count 5 (the pipe connecting the lift station and Tank 1) and count 6 (the storm catch basin).  There simply was a dearth of evidence about the pH levels for those places, and inferences of guilt were not the only reasonable inferences to be drawn.

[125]     As I discussed in the introduction, Saputo can still avoid liability under Count 3 if it establishes on a balance of probabilities that it exercised due diligence.  The due diligence defence was first articulated in Sault Ste. Marie cited above at page 18 as follows:

[126]     Cases such as R. v. MacMillan Bloedel [2002] BCJ No. 2083 (BCCA) make clear there are 2 alternative branches of the due diligence analysis.  The first applies when the accused can establish that he did not know and could not reasonably have known of the existence of the hazard.  The second applies when the accused knew or ought to have known of the hazard but acted with all due care to prevent the particular event.

[127]     Section 78.6 of the Fisheries Act essentially codifies the due diligence defence under that Act by stating:

[128]     Both branches of the due diligence defence must be considered with regard to the foreseeability of “the particular event”.  As outlined in MacMillan Bloedel, 2002, the foreseeability analysis is a focus on the foreseeability of the particular event and not the cause of the event.  As well, the focus is on the foreseeability of the actus reus of the offence and not the general foreseeability of environmental contamination.  That all being said, although the focus is on the foreseeability of the ultimate event, the chain of events leading to the ultimate event can be examined.  In MacMillan Bloedel 2002, it was found that the chain of unforseeability went from the cause of the event to the event itself.

[129]     In the present case, the particular event is the deposit of a deleterious substance in Tank 1 under conditions where it may have entered the creek (Count 3).  However, the chain of events leading to the deposit trace back, of course, to the pipe coupling failure and I will deal with this aspect further below.

[130]     For the first branch of the due diligence defence, the accused must establish not only that he did not know, but also that he could not reasonably have known of the existence of the hazard.  This principle is found not only in cases such as MacMillan Bloedel 2002, but also other cases where the accused asserts a belief in a mistaken set of facts under the due diligence defence.  The belief must not only be honest, but also must be based on reasonable grounds.  The party must take reasonable steps and make reasonable inquiries to ascertain correct information.  See cases R. v. Tavares (1996) 144 Nfld & PEI Rep. 154 (NCLA) and R. v. Perry [2003] NJ No 24, 2003 Carswell Nfld 23 9 (NLPC).

[131]     In assessing whether an event is foreseeable, “the focus ought to be on what was actually done or not done by the accused at the time, rather than speculating on what might have been done, with the benefit of “hindsight”.  See R. v. BHP Diamonds 2002 NWTSC 74 (CanLII), [2002] NWTJ No 91 at paragraph 169.  The case of R. v. Northwood Pulp and Timber Co. [1995] BCJ No 2380 (SC) also emphasizes that to hold industries liable for occurrences they could not reasonably foresee, would be to reinstate the theory of absolute liability which is inappropriate.

[132]     I also note that the case of R. v. 310 Waste Ltd. 2011 OWCJ 808 makes clear that most spills are accidental and are probably never intended.  However, to avoid guilt, the accused must couple lack of consent with a behaviour which shows that it was neither blind to the consequence of the possibility of the event, nor to the consequent damages of the event.

[133]     In the present case, I conclude that the spill of a deleterious substance from Tank 1 under conditions where it may enter the creek was not reasonably foreseeable.  Put another way, the spill event was not foreseeable, nor was the coupling failure which led to the spill.  I am also of the view that Saputo made reasonable inquiries and took reasonable steps when constructing the waste water treatment system and it was not blind to the potential of a leak or spill.

[134]     My conclusion about unforeseeability is based on the following factors:

[135]     I want to be clear about the unforeseeability of the “particular event” in this case.  I have little doubt that Saputo could reasonably foresee that if there was a spill from above ground structures, like the tanks, that spill could eventually reach the creek.  That is not the issue here.  The issue here is the foreseeability of the “particular event,” the spill of a deleterious substance out of Tank 1 due to the failed coupler.  That particular spill was not reasonably foreseeable for all the reasons described above.  The use of a coupler was reasonably approved by engineers, and it worked for the first 8 months of operation.  The deleterious substance in Tank 1 was intended to be treated in that Tank and then Tank 2 before being discharged to a sanitary sewer.

[136]     As I am dealing with reasonable foreseeability of the spill at this stage, it is not necessary for me to comment on Saputo’s lack of secondary containment in the parking lot area where the tanks and storm catch basin were located.  However, I will say this much: CRA engineers told Saputo that secondary containment was not legally required, and furthermore, they did not foresee it as necessary.  Even large municipal waste water treatment sites do not have secondary containment.  Also, certain options such as a berm would have been ineffective in containing the spill in this case. 

[137]     Based on my conclusion that the particular spill was not foreseeable, it is not necessary for me to examine the second branch of the due diligence defence relating to reasonable care.

[138]     In summary, I conclude that the actus reus of this offence, the spill of a deleterious substance from Tank 1 onwards, was not reasonably foreseeable.  Saputo is acquitted of all counts under Information No. 82211.