Jan 28 2005

Kingston Whig-Standard   January 28/2005

Supreme Court rejects city’s Belle Park appeal

by Derek Baldwin

The Supreme Court of Canada has declined to hear a City of Kingston appeal of three environmental convictions linked to the old dump on the Cataraqui River.

Environmentalists are jubilant.

City officials are not.

Yesterday’s decision dashed the city’s hopes of overturning a series of 1998 lower-court convictions that found the municipality guilty of allowing contaminants from the former Belle Park dump off Montreal Street to pollute the river.

The city, however, can still appeal to the Ontario Superior Court of Justice the degree to which the city will be required to meet the lower court cleanup order.

Kingston insists an order to contain pollutants with a impervious clay cap – a measure some claim could cost millions – is unnecessary.

The municipal dump operated from 1950 until 1974, when an estimated three million tonnes of garbage gradually formed a 44-hectare land bridge from the western shore of the river easterly to Bells Island.

The site is now Belle Park Fairways, a city-owned, nine-hole golf course.

The decision from Ottawa was welcomed by former Kingston environmentalist Janet Fletcher, who began the struggle eight years ago to hold the city accountable for decades of pollution leaching from the dump.

In December 1996, environmental lawyer Mark Mattson and Fletcher collected leachate samples from a seep of rusty water that was staining the ice along the edge of Belle Park.

In laboratory toxicity tests, juvenile rainbow trout and water fleas died in less than an hour when they were immersed in the leachate, which was found to contain benzene, chlorobenzene, ammonia and heavy metals.

Later samples collected on site by the Ministry of Environment revealed polychlorinated biphenyls, better known as PCBs, at levels 10 times higher than allowed by provincial water-quality standards.

Fletcher and the Sierra Legal Defence Fund laid four private environmental charges against the city that were soon followed by four companion charges by the Ministry of Environment.

On Feb. 24, 1999, justice of the peace Jack Bell fined the city $150,000 for “depositing deleterious substances into water frequented by fish.”

The fine was later reduced to $30,000 through a series of appeals that eventually reduced eight convictions under the federal Fisheries Act to three instigated by the environment ministry.

Bell’s sentence ordered the city to come up with a plan to seal off the former landfill with a water-resistant cap and to begin monitoring the site.

The city has since balked at the call for a cap, but has spent $5 million to meet the monitoring order while it rigorously filed appeals, arguing that the Belle Park leachate wasn’t harmful to the environment.

The city has reportedly spent more than $500,000 fighting the convictions in court.

In an interview from Halifax yesterday, Fletcher said “it’s time for them to clean up their act and do something right. Cleaning up that waterfront can only be good for Kingston.”

Fletcher said she wasn’t surprised it’s taken this long to force the city to act.

“Usually the way polluters go, they won’t fix the problem until the fines become more expensive than the solution and then they realize it’s cheaper to fix this now,” she said.

For years, Fletcher said, the city has thumbed its nose at judgments, most notably since last May, when the Ontario Court of Appeal upheld the lower court convictions.

The city argued that the court erred in its judgment, so the city filed an application for leave of appeal to the Supreme Court. That application was declined yesterday.

“They’re acting pretty strangely for a municipality,” Fletcher said. “You just don’t expect them to behave like that. The city is saying, ‘We don’t like what you said, and we don’t like what they said.’ They tried to circumvent the process.”

Fletcher was disappointed yesterday that the city will pursue an existing appeal on file of the 1999 containment order by justice of the peace Bell.

“I find it appalling that they will not do the right thing and clean up this mess,” she said. “It’s in the interest of the public, the city. What’s wrong with them? They’re just looking for more ways to getting around what they’re supposed to do.”

Colleague Mattson said he was overjoyed by the Supreme Court decision and wasn’t surprised that Kingston will pursue an appeal of Bell’s ruling.

“This is a common reaction to these things,” Mattson said. “Municipalities don’t want to be told that they have to invest in their waterfront. They don’t want to be told they will have to pay for mistakes other generations made.

“Both of those aren’t legal defences. Clearly they’re being held to account now because people see the importance of clean water.”

Mattson has worked recently for Lake Ontario Waterkeeper, an environmental organization for water quality. He investigates cities across the province suspected of polluting.

Thanks to yesterday’s “landmark” ruling, Mattson said the legal message is clear: If cities violate the federal Fisheries Act, there’ll be consequences.

Under other Canadian environmental laws and regulations, Mattson said, the burden of proof that an environmental offence has been committed has traditionally required evidence that the environment has been damaged.

That’s been done in the Belle Park matter, Mattson said.

Kingston lawyer Peter Doody defended the city against the charges in a five-week trial in the summer of 1998.

He reiterated his arguments and testimony the city’s expert witnesses that leachate from the dump didn’t become harmful to fish once in the river.

With the Supreme Court ruling, Doody said the city is moving to address an outstanding appeal against the fines and order as imposed by justice of the peace Bell.

Doody said while the city can no longer appeal the convictions, it can still revisit an appeal of sentencing at the lower provincial Superior Court of Justice.

The sentence appeal was never heard but is still on file, Doody said, and the Supreme Court decision yesterday automatically revives the outstanding sentence appeal.

Now that the “convictions have been restored, that revives the sentence appeals,” Doody said. “We will have to schedule a hearing and argue it.”

The grounds for the sentencing appeal at the lower level, Doody said, is that the city feels a cleanup plan and clay capping at the former dump is unnecessary.

Doody said some estimates obtained by the city claimed it could cost $13 million to cap the area.

An engineering plan could cost $1.3 million, he said, or 10 per cent of the overall project.

“There was no evidence led of any sort which suggested that the cap was necessary or appropriate,” Doody said.

“No witnesses at the trial testified that a cap was needed. It’s not necessary.”

Mayor Harvey Rosen said the “city doesn’t have a choice as to what’s next.

“We go back to the summary convictions appeals court, being the Superior Court of [Justice] and deal with the sentence appeals on the three convictions that were maintained.”

Rosen said the sentencing appeal is necessary to convince the court that the capping order isn’t appropriate.

“We want the court to become completely aware of the implications of the original sentence, which we will submit, I believe, is entirely inappropriate,” he said, “and look for a sentence that is both in the interest of the city and of the province and the environment in terms of the situation at Belle Park.”

Rosen said the city has done much work at the former dump to stem pollution, but noted not everything in the original sentence is needed.

“There were certain elements of the sentence relating to the treatment of the site which the city will be addressing,” he said.

Ministry of Environment spokesman John Steele said from Toronto yesterday that the city and province will meet to discuss the next steps.

Steele couldn’t speak to a sentencing appeal still on file from the Crown attorney on behalf of the environment ministry.

When the city was sentenced by justice of the peace Bell, the ministry appealed, noting that it wanted stiffer penalties.

The ministry appeal could still be brought forward.