A recent decision by the Court of Queen’s Bench in Envirogun Ltd. and Clint A. Kimery v The Majesty the Queen, 2016 SKQB 258 (“Envirogun“) has opened up a new avenue by which the validity of Environmental Protection Orders (“EPOs“) may be challenged.

We had reported in a previous MLT Insight (“New Risks for Directors of Companies for Environmental Remediation Costs“) that under The Saskatchewan Environmental Management and Protection Act, 2010, SS 2010, c E-10.22 (“EMPA, 2010”) the Ministry of the Environment (“MOE“) has increased powers to issue EPOs against a corporate director or officer (“D&O“), as a “responsible person.” We also advised in that posting that a significant problem arises once an EPO is issued against a D&O as EPOs are only appealable on questions of law, not on questions of fact (EMPA, 2010, s.63). Therefore, according to the legislative scheme itself, once an EPO is issued against a D&O there is little recourse.

While the powers of the MOE to issue EPOs increased in EMPA, 2010, the scheme for appealing EPOs that was in the previous legislation, The Environmental Management and Protection Act, 2002, SS 2002, c E-10.21 (“EMPA, 2002“) at s.54 remained substantively unchanged in EMPA, 2010 (s.63). This is relevant as the EMPA, 2002 appeal scheme was in issue in Envirogun.

The background facts leading to the Envirogun decision are as follows. In January, 2011, the MOE issued an EPO against both Envirogun Ltd. and its sole shareholder and director, Clint A. Kimery. The order gave directions for a reclamation and decommissioning plan for the site on which Envirogun Ltd. had operated a transfer station that was involved in the collection, containment, storage and treatment of hazardous waste. When neither the company or Mr. Kimery complied with the directions in the EPO both were charged with failing to comply with a Ministerial Order. At trial in Provincial Court both were convicted with failing to comply with the EPO. Both the company and Mr. Kimery then appealed the conviction to the Court of Queen’s Bench.

The key issue on which the appeal was determined was whether the underlying validity of the EPO could be challenged in the criminal proceedings. Madam Justice Schwann of the Court of Queen’s Bench determined that it could be, precisely because the appeal provisions in the statutory scheme provided no opportunity for an accused to bring into question the accused’s individual rights or the substantive merits of the Minister’s directions.

Justice Schwann determined that because of the severity of the penal consequences under EMPA, 2002 (which are even more severe under EMPA, 2010) and the potential for criminal liability of an individual director that there must be some method for an independent substantive review of the EPO in question. Further, Justice Schwann determined that as the legislature chose not to set out such an appeal mechanism in EMPA, 2002 (and, we add, they also chose not to in EMPA, 2010), then an accused must be given the ability to do so at trial. Finally, Justice Schwann also indicated that if an accused challenges the validity of an EPO in subsequent penal proceedings then it is the Crown that should bear the burden of proof, on the beyond a reasonable doubt standard, of the legal correctness of the EPO.

This decision, unfortunately, does not change the very limited and restricted ability to appeal an EPO pursuant to EMPA, 2010. It does, however, provide some ability for an accused to challenge a the validity of an EPO once charges have been laid and once the matter has proceeded to trial.