Dec 1 2003

December 1/2003

City lawyers argue case in Belle Park appeal

by The City of Kingston

Beginning Tuesday, December 2, the City will present legal arguments before the Ontario Court of Appeal in Toronto asking that it uphold the Summary Conviction Appeal Judge’s decision which overturned seven convictions against the City under the Fisheries Act.

In 1997, the City was convicted by a Summary Conviction Trial Judge on seven counts under the Fisheries Act regarding groundwater discharges at the former Belle Park landfill site. The charges were filed by the Ministry of Environment (MOE) and private citizen (Janet Fletcher). The City was acquitted on one charge.

This latest appearance before the Court of Appeal comes after a June 7, 2002, decision in which the City successfully appealed those seven convictions before a Summary Conviction Appeal Judge – the original convictions against the City were overturned and a new trial was ordered.

Rather than proceed with a new trial, the Ministry of Environment (MOE) and Janet Fletcher appealed the June 7 decision to overturn the convictions against the City to the Ontario Court of Appeal.

In their appeals, the Province (MOE) and Janet Fletcher seek the setting aside of the overturning of the convictions against the City restoring the convictions and returning to the Summary Conviction Appeal Court the Province’s appeal on the sentence imposed against the City at trial. In addition, the Province is seeking a conviction on a charge that was acquitted at the original trial.

For more information on the history of Belle Park and the remediation efforts to date, review the attached backgrounder and visit the City Web site at www.cityofkingston.ca/bellepark.

BACKGROUNDER

In March of 1997, charges were laid against the City by a private citizen (Janet Fletcher) under the Federal Fisheries Act. The charges were laid after rusty seepages were noticed discharging from the shoreline along Belle Park. Mrs. Fletcher contended that the seepages were deleterious (toxic to fish) therefore, an infraction of the Federal

Fisheries Act had been committed. The Ministry of the Environment did not lay charges against the City until several months later. In all, eight charges were laid against the City by the Ministry of the Environment and Janet Fletcher. The Sierra Legal Defense Fund prosecuted the charges against the City on behalf of Janet Fletcher.

The charges filed against the City by both the Ministry of the Environment and Janet Fletcher were addressed concurrently in a trial presided over by a Justice of the Peace. In his decision, the Justice of the Peace found the City of Kingston guilty of seven of the eight charges laid. Total fines in the amount of $160,000 were levied against the City and the City was ordered to prepare a plan to cap the former Belle Park Landfill with an impervious clay cap. The City of Kingston consulted legal and environmental experts and decided to appeal the original convictions.

The City, in consultation with legal and environmental experts decided to appeal the decision of the Justice of the Peace for three key reasons:

1. First and foremost, the City disputed the correctness of the guilty verdict. The City, based on various expert opinions, disputed the assertion that Belle Park was releasing deleterious material into the water. The experts disagreed with the verdict because of the way the prosecution’s testing was conducted. The City maintained that the court did not consider the impact of this alteration, and therefore, improperly determined that the leachate was in fact harmful. This was not just a “technicality” – this is the critical piece of information that says whether the seepages were toxic or not. The City believed that the testing method used by the prosecution caused the sample to become toxic to fish and that the leachate actually present on the site is not toxic.

2. The second issue was that the Justice of the Peace ordered the City to produce a plan to cap the site with an impervious clay cap. No evidence was presented at trial to allow a determination that a clay cap would actually fix the problems observed at the former landfill site. In fact, the City, through consultation with experts in the field of environmental engineering and landfill management, believes that a clay cap alone would not be an effective solution for the site. If the trial court decision was allowed to stand, the City believed that the taxpayers of the community might be forced to pay up to $15 million dollars for a capping project that would not provide any substantial improvement for the Belle Park Landfill site. The City of Kingston is not adverse to capping where it is required – in fact, the former MacAdoo’s Lane Landfill site was closed using a compacted clay cap – but a cap at that location made good technical sense. While capping old landfill sites is an accepted and often used solution for preventing downward migration of rainwater, and thus, preventing leachate production; the Belle Park Landfill receives the majority of its leachate-producing waters from the flanks of the site because of the seasonal raising and lowering of Lake Ontario water levels.

3. The third issue concerned the future impact of accepting a guilty verdict. In the event the City were ever charged and convicted of an environmental offence in the future, the penalty would be assessed based on a number of considerations, one of which is any previous environmental conviction. Therefore, simply accepting the conviction, when the City felt it was not guilty, could negatively impact the City in the future.

On June 7, 2002, the Decision of Mr. Justice McWilliam, the Summary Conviction Appeal judge on the Belle Park Appeal was released. The City’s appeal of the seven convictions against it was allowed, the convictions were overturned and a new trial ordered.

The Court decision noted the central issue as being legal in nature related to whether or not the appropriate law was applied at trial for determining whether the offence of unlawfully depositing a deleterious substance in water frequented by fish had been committed. The Appeals Judge held that the test to be applied was whether the leachate was an “inherently toxic substance”. If it was held that it was not, it would then be necessary to consider the “quantity and concentration of the discharge as well as the time frame over which the discharge took place”.

(To paraphrase, whether the addition of the leachate to the Cataraqui River was actually harmful to fish in the river.) That legal test had not been applied at the original trial, and accordingly, the City’s appeals were allowed.

In June, 2002, staff from the Ministry of Environment (MOE) served the City a Notice of Application for Leave to Appeal and Notice of Appeal to the Ontario Court of Appeal appealing the overturning of the convictions against the City. Subsequently Janet Fletcher also served the City with such notices.

The Ministry of Environment (MOE) and the Sierra Legal Defense Fund appealed the June 7 decision on the grounds that the judge erred in law in interpreting charges under the Fisheries Act in accordance with the Court of Appeal decision in R. v. Inco Limited, a decision interpreting the provisions of the Ontario Water Resources Act.

In their respective appeals, the Province and Janet Fletcher sought the setting aside of the overturning of the convictions, restoring the convictions, imposing a conviction on the City for the one charge on which it was acquitted at trial and remitting to the Summary Conviction Court Judge the Province’s appeal on the sentence imposed against the City at trial.


In recent years, the City has spent approximately $2 million on a number of remediation controls (projects) at the site including:

  • An environmental impact study to determine if there are any risks to users of the site and the adjacent aquatic environment and recommend projects to improve environmental performance. ($300,000)
  • Installation of Leachate Control Systems, specialized wells, pumps and piping systems to capture ground water before it flows into the river. ($400,000)
  • Upgrades to the existing Leachate Control System improving the existing system and adding new well, pumps and piping to the system to increase the efficiency in capturing groundwater before it flows into the river. ($500,000)
  • Clean up of the Shoreline areas such as removal of unsightly trash and other debris that has littered the shoreline as well as the removal of illegally dumped garbage. ($10,000 per year)
  • Replacement of Clean Soil Cover which included identifying areas where insufficient soil cover exists, adding a new clean soil cover enhanced with landscaping, revegetation and shoreline improvements. ($300,000)
  • Removal of Derelict Underground Infrastructure such as old, unused underground piping and culverts that were channeling leachate-impacted groundwater towards the river. ($100,000)
  • Long term solution test site of poplar trees planted to determine if their natural growth can control groundwater flow. ($75,000)
  • Long term solution test site of a natural wetland to monitor how well wetlands remove groundwater contaminants. ($130,000)
  • Annual Monitoring of the Belle Park environment which includes semi-annual monitoring of groundwater, surface water and wastewater and weekly inspections of the shoreline area. ($100,000 per year)
  • Inner Harbour Environmental Data Compilation, a special project of the Kingston Environmental Advisory Forum (KEAF) to better understand the conditions of the Inner Harbour area and ultimately to develop a strategy for sound environmental management of the area. ($10,000)The City has remained committed to working with the MOE and the community to manage the Belle Park site in a manner that is publicly acceptable, environmentally responsible and financially sustainable. In the coming months, the City will ask the public to comment on and evaluate alternatives to provide a long-term solution for Belle Park.