May 13 2004

Kingston Whig-Standard    May 13/2004

City loses Belle Park appeal

by Jennifer Pritchett

In a decision considered a victory for environmentalists, the City of Kingston has lost its seven-year legal battle over a former dump that has been leaking contaminated water into the Cataraqui River.

Three Ontario Court of Appeal judges yesterday unanimously upheld the city’s three convictions under the Fisheries Act for allowing what has been described as a “toxic soup” to seep out of the former landfill underneath the Belle Park golf course and into the waterway.

The municipal dump, in operation from the 1950s to 1974, contains an estimated 2.9 million metric tonnes of garbage that sits about three metres high just below a soil cover.

The court case, the first of its kind in Ontario, has national implications because it upholds the power of the Fisheries Act – arguably the strongest Canada-wide pollution legislation – and how polluters can be prosecuted.

“For the environment, this is a huge victory affirming the legal test on the Fisheries Act because that was what was at risk here,” said Toronto lawyer Robert Wright, who represented the private citizen who lodged the first complaint against the city in 1997.

Janet Fletcher’s complaint led to a court case that resulted in the city’s conviction of seven counts under the federal Fisheries Act in 1998. Four of those convictions were based on Fletcher’s complaints and three were based on Ministry of Environment complaints.

In June of 2002, a Superior Court judge overturned the seven convictions against the city and ordered a new trial.

Yesterday’s decision comes nearly five months after the new trial was held for 25 days in Toronto last December.

The 18-page decision also ruled that the four convictions resulting from Fletcher’s private prosecution could be retried at a later date.

Though those convictions weren’t upheld yesterday, Fletcher, reached at her Nova Scotia home, was thrilled with the decision.

“I am really ecstatic,” she said. “I feel vindicated, regardless of whether my case went forward or not. The fact that the court supported the position that you need to prevent this kind of thing from happening – I see it as a huge victory for the environment.”

She added that “perhaps now we can get the city to actually do something really positive at Belle Park and get things under control.”

Fletcher doesn’t think she’ll take the case to court again.

“I feel that as long as things are in hand, there’s no need for me to be taking up the courts’ time and the taxpayers’ money going back to court to satisfy an ego thing, which is what it would be.

“Essentially, what has happened is the right thing – the Ministry of the Environment has charged them [and] they’ve gotten a conviction, something is going to happen. That’s all I wanted.”

The case has cost her enough already, she said, estimating that she has spent several thousand dollars of her own money to pursue the case.

“We’ve certainly invested a lot of money we don’t have to make this work over the last eight years,” she said.

Fletcher is waiting to find out if the city will appeal the decision and take the case to court yet again.

At City Hall last night, politicians were aware of the court ruling but weren’t commenting, saying it’s a legal matter that council will have to deal with in a private session. The city’s lawyer will advise how they ought to proceed. Council could launch another appeal or accept the judgment.

Mayor Harvey Rosen, a lawyer, said he was still working through the court decision.

“It’s 18 pages and I’m still reading it,” he said last night. “There are all sorts of possibilities.”

Deputy Mayor Leonore Foster also wouldn’t comment on what the city might do, but said she was happy that the conviction resulting from Fletcher’s private prosecution of the city wasn’t upheld.

“Frankly, I’m pleased that the personal part of this decision has been withdrawn,” she said.

Seven years after the initial complaint, the city has spent more than $2.5 million – at least $400,000 of it in legal fees – to clean up the former landfill. Some of the techniques used include a series of pumps that draw leachate out of the dump and away from the river.

The “garbage tea” is then pumped into the sanitary sewer system for treatment and the resultant sludge is sold for agricultural purposes.

The measures taken are largely the result of Justice of the Peace Jack Bell’s decision in 1999 ordering the city to pay $150,000 in fines and to come up with a plan within a year for sealing the garbage beneath the park under a water-resistant cap.

He also ordered the city within three months to begin long-term monitoring and inspection of the site, which prosecution lawyers estimated was leaking 200,000 litres a day.