The Court du Québec recently examined a case where a defendant attempted to rely on two defences commonly used in environmental cases, the due diligence defence and the “officially induced error” defence, in a context where the defendant had sought, and obtained, directions from the Ministry of Sustainable Development, Environment and Parks (the “Ministry”) before deciding on an appropriate course of action. In this case, the defendant failed, but the decision should be used as a reminder of what to do (and perhaps, what not to do) when requesting, and relying on, advice from Ministry representatives.
The facts of Directeur des poursuites criminelles etpénales v. Ville de Louiseville (2013 QCCQ 675 (Canlii)) are as follows: the City of Louiseville had to undertake work in a zone that is flooded for a period of about 10 days each year. The City representative, being uncertain whether a certificate of authorization pursuant to the Environment Quality Act should be obtained for the work, called in an external consultant. The consultant was also uncertain, and it was decided that the consultant would call the Ministry to discuss the issue and obtain advice. Subsequently, the consultant had a brief telephone conversation with a Ministry representative, during which it was verbally confirmed that a permit was not required. This conclusion was unfortunately incorrect: a permit was required. The City was later charged with having carried out the work without having obtained the required permit.
As it often happens, the parties’ recollection of the key discussion differed: the judge believed the version of the Ministry representative, who maintained that the fact that the area was often flooded had not been discussed.
The reasons include many insightful comments with respect to the due diligence and officially induced error defences. Such comments should be borne in mind by businesses who intend to rely on informal discussions with Ministry representatives while making decisions potentially impacting their compliance with applicable laws.
With respect to the due diligence defense, the judge emphasized that the diligence required had to be appreciated in light of relevant circumstances, which included the professional experience of the City representative who made the decision not to apply for a permit. In this case, the City representative had been working at the City for close to 10 years. His doubts with respect to the potential requirement to obtain a permit were not cleared following a call to a consultant having 26 years of experience. Yet, the only precaution he took to clear that doubt was the short telephone conversation between the consultant and a Ministry representative. This, according to the judge, was not reasonable conduct: it would have been more prudent for the City to provide more information to the Ministry representatives, for example plans or other documentation, to ensure that the Ministry representative had all of the relevant information at hand in issuing its advice. The City could have, at a minimum, requested a written report from the consultant.
With respect to the officially induced error defence, the judge found that the City could not succeed because the error it alleged was not, in light of the circumstances, “sincere”, again emphasizing that the City’s decision to rely on a simple telephone conversation was unreasonable, especially considering that the Ministry representative consulted did not specialize in water environment issues, but in municipal issues. This portion of the decision could be interpreted in the future to put the onus on businesses to determine the competence of their interlocutor at the Ministry. This would be an unwelcome development and will have to be monitored moving forward. In this case, the judge appeared to be also influenced by the fact that the consultant had decided to call that specific representative because he knew her from previous files, not because of her specific competence of the issue.
One of the overriding factors that finally appears to have influenced the judge was that despite their doubts, and considering their knowledge that the work was to be undertaken in a “sensitive” area, neither the City representative nor the consultant brought their specific doubts to the Ministry representative’s attention. The advice given by the Ministry representative was therefore based on an incomplete set of facts and could not be relied upon.
This decision is a reminder of how businesses should proceed in obtaining advice from Ministry representatives. A suggested list of steps to take when obtaining advice from the Ministry, especially to leave open a possible defence of officially induced error, is as follows:
- Ask for the advice in writing;
- Provide all relevant documentation to the Ministry;
- If in doubt regarding specific issues, bring them to the Ministry’s attention;
- Ensure that you have the right interlocutor at the Ministry – in doubt, discuss the issue specifically;
- Ensure that you obtain the Ministry’s conclusion in writing, if possible. If not, document as much as possible.