July 13/2007

Moncton Times & Transcript 

Court upholds pollution convictions
by Craig Babstock

A Moncton judge has upheld the pollution convictions of a New Brunswick engineering consulting firm.

Fredericton-based Gemtec and former president Robert G. Lutes were convicted in April 2006 of two counts each of violating the Fisheries Act. The charges were that Gemtec and Lutes unlawfully deposited or permitted the deposit of leachate, a deleterious substance, into both Jonathan Creek and the Petitcodiac River.

The company was hired by the city in 1993 to come up with a plan to close the old dump on the banks of the Petitcodiac River and Lutes was the project leader.

The pollution of the creek and river first came to light in November 2000, when the Petitcodiac Riverkeeper organization made a complaint to Environment Canada about leachate entering the waterways. Samples were taken from where the pollutant was flowing into the creek and river and tests found them to be lethal to aquatic life.

Gemtec and Lutes pleaded not guilty to the charges and went to trial, but Judge Yvette Finn found them guilty. The judge ruled that while Gemtec didn’t create the environmental hazard, it didn’t do everything it could to stop it.

Also, a local scientist twice warned company officials the plan didn’t comply with the Fisheries Act, but the plan was not changed. Finn said Gemtec and Lutes failed to act with due diligence and were “willfully blind” to the requirements of the Fisheries Act.

The defendants were fined on the Petitcodiac River charge but given an absolute discharge on the Jonathan Creek charge.

In June 2006, Finn fined Gemtec $5,000 and ordered it to pay $10,000 to the Environmental Damages Fund, which is administered by Environment Canada. The company was also ordered to pay a $10,000 penalty to the Jonathan Creek Committee, to be used for the purpose of restoring and enhancing the creek.

Lutes was fined $1,000, ordered to pay $1,000 to the environmental fund and another $1,000 to the creek committee.

Gemtec and Lutes appealed their convictions on several grounds, while the Crown prosecutor appealed the sentences imposed. A hearing was held in Moncton’s Court of Queen’s Bench in February before Justice Stephen McNally and the judge recently delivered a written decision.

Robert Kenny represented Gemtec and Lutes, while Paul Adams represented the Crown. They were the same lawyers involved in the original trial.

Along with other grounds, Kenny argued that his clients did not create the dump site, place the garbage there or control the operation of the site. They were simply consultants hired to make recommendations on how to close the landfill.

The judge agreed with the trial judge, saying the appellants made no recommendation about collecting leachate and even installed a 400-metre long pipe to bring the pollutant directly to Jonathan Creek.

Besides denying the Gemtec and Lutes appeal, McNally also denied the Crown’s appeal of the sentence. Adams had argued that the $28,000 in fines was “demonstrably unfit and clearly inadequate considering the nature and extent of the offences.” He also argued not enough weight was given to both specific and general deterrence and said the fines should be in the $70,000 to $80,000 range.

But McNally said the fines handed down don’t amount to a slap on the wrist. He said Gemtec is an employee-owned New Brunswick company with 40-50 staff members, not a large national or multinational company.