Environmental liability – when is water quality impaired?

The Ontario Water Resources Act (OWRA) prohibits the discharge of material into water that may impair water quality. For conviction under the Act, is it necessary that the discharge material be harmful to the environment or anything in the water or anything which may come in contact with the water?

In considering this issue, our Courts have concluded that, for conviction under the Act, the impairment of water quality need not be harmful; aesthetic impairment is sufficient to found a conviction. In a case in which a dairy processing company had discharged cream into a nearby stream, the Court concluded that a change in the colour of the water, combined with the aroma of sour milk or cream, constituted sufficient impairment of water quality to justify conviction.

The Court determined that an undetected crack in the processing equipment had caused a release of cream which entered a central drainage well. The defect in the processing equipment had not been anticipated by the company. As described by the Court:

    “…it has got all the valve and other paraphernalia on the unit to prevent damage to the unit and to ensure proper pasturization, but it is clear on the evidence also that, if spillage occurred, that there was no warning device in place; there was no containment, and there was no diversion. In other words, unless someone is actually looking at that well – and the Court is satisfied that nobody was doing that as they should have been on a regular basis – there was no way of telling that there is a discharge into that well….This discharge obviously would go into the center well and directly to the outfall, into the ditch and the stream, and the company would be unaware of this.”

The Court found that the Crown had proved that there had been a discharge into a body of water, that there was an aesthetic impairment, and that the material discharge came from the company’s premises. In considering the burden on the company to demonstrate that it had taken all reasonable precautions to establish a defence of “due diligence”, the Court held:

    “It is a situation where the company knew or should have known that the potential existed for spillage…and it is clear that the company had not put into place any protective devices in the event that spillage did occur. The company obviously went a considerable distance with that machine…but they did not go the whole distance. And when it gets right down to it, the company had not demonstrated on balance, that they took all reasonable precautions…and the Court is now satisfied that all elements of the offence have been proven, and proven beyond any reasonable doubt. I find the company guilty as charged.”

In view of the substantial fines which may be imposed for causing impairment of water resources, farmers and those involved in agricultural processing must ensure that they have thoroughly reviewed their operations and put in place all reasonable precautions to prevent or contain the possible discharge. The fact that the material which may be discharged may not be harmful to the environment will not prevent prosecution and conviction under the OWRA. Any impairment of water quality, including aesthetic impairment, will attract liability under the Act.