Contaminant Discharge – What is Due Diligence?

The discharge of a contaminant into the natural environment is an offence under the Environmental Protection Act. As with most other environmental offences, this offence is one of strict liability which requires a defendant to prove that all reasonable steps were taken to prevent the particular event giving rise to the charge in order to avoid conviction. Where the precise cause of the discharge remains unknown, can a defendant establish the defence of due diligence?

The Ontario Court of Appeal recently considered this issue upon an appeal by a defendant of a conviction resulting from the discharge of gasoline into the natural environment following a pipe failure. Even though the evidence at trial established the defendant had safety systems and procedures in place to prevent pipe failure and to detect and remediate the effects of a discharge if it should occur, the trial judge convicted the defendant on the basis that the defendant could not demonstrate reasonable care where the cause of the pipe failure remained unknown. In allowing the appeal and setting aside the conviction, the Court of Appeal referred to earlier case authority determining that the due diligence defence is available if the defendant “took all reasonable steps to avoid the particular event”.

However, in coming to this conclusion, the Court emphasized that, absent evidence with respect to the cause of the pipe failure, to establish due diligence the defendant will be required to demonstrate the taking of all reasonable care to avoid any foreseeable cause. The Court held:

    “I do not think that the law requires the accused to prove precisely how the discharge came about – in this case precisely why the pipe failed – in order to avail itself of the due diligence defence. On the other hand, in a case where the accused can do this, it may be able to narrow the range of preventative steps that it must show to establish that it took all reasonable care. However where, as here, the accused cannot prove the precise cause of the pipe failure the due diligence defence is not rendered unavailable as a result. That being said, it must be emphasized that to invoke the defence successfully in such circumstances, the accused must show that it took all reasonable care to avoid any foreseeable cause.”

Thus, the defendant’s inability to identify the cause of a discharge will not necessarily defeat a defence of due diligence. However, in such a case, the onus clearly remains upon the defendant to establish not only installation of necessary equipment and implementation of appropriate procedures but also that these measures constitute reasonable care to avoid the discharge regardless of how it occurred.

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