May 14 2004

Kingston Whig Standard    May 14/2004

Belle Park could be landmark case

by Jennifer Pritchett

The court decision to uphold three convictions against the City of Kingston for allowing a former dump to leak “toxic soup” into the Cataraqui River is a precedent-setting case for Ontario, says a Toronto environmental lawyer.

“It could become one of the more famous environmental decisions in decades,” Mark Mattson told The Whig-Standard yesterday.

On Wednesday, three Ontario Court of Appeal judges unanimously upheld the city’s three convictions under the federal Fisheries Act for allowing pollutants to seep out of the old landfill underneath the Belle Park golf course and into the river.

Their decision should make it easier to prosecute polluters and to enforce environmental laws, said Mattson, president of the Lake Ontario Waterkeeper, an organization that fights for clean water across Lake Ontario.

“The important thing about the case is that it has found that you don’t need to show an environmental impact to show that you can’t put these ‘deleterious substances’ in the water,” he said.

“And that’s really important because if we wait until there are impacts in the river, it’s usually too late. That’s why the Fisheries Act was designed so that you don’t have to wait until there are fish floating in the bay before there is a charge.”

In other words, he said, if you pour oil into Kingston’s inner harbour, all you have to do is show that oil is toxic to fish. You don’t have to show that the oil you poured into the harbour was toxic to the fish in the harbour. The appeal, which took place in Toronto last December, came down to a question of which laws – provincial or federal – should take precedence.

The judges had to decide whether the Ontario Water Resources Act should be a factor in deciding a conviction using the federal Fisheries Act, under which the charges were laid.

Under the Fisheries Act, establishing the pollutant as a “deleterious substance” is enough to earn a conviction. Under the OWRA, the substance must be deemed either “inherently toxic” or the substance must have the potential to impair water quality.

Mattson said proving that a pollutant had a detrimental effect on the water to which it was introduced is often a difficult and expensive task.

“It’s important that the offence is that you can’t put these toxic substances into water frequented by fish as opposed to saying you can put as much in as you want until someone shows there is an environmental impact, which is what the city was arguing and that’s what they lost on,” he said.

Wednesday’s ruling follows a seven-year court battle between the city, the Ministry of the Environment and a private citizen, who lodged the initial complaint about the pollution problem at Belle Park.

Janet Fletcher, who then lived in Inverary, lodged a private citizen’s complaint about the garbage discharge that was leaking from the old dump in 1997. The following year, the city was convicted on seven counts under the Fisheries Act.

In June 2002, a Superior Court judge overturned the convictions and ordered a new trial, which took place in December 2003.

Five months later, the Ontario Court of Appeal upheld only three of the seven convictions, leaving the prosecution the option of taking the four private citizen charges to court again.

Mattson said the Fletcher charges were overturned because the samples she had collected weren’t tested with the same quality of laboratory tests as the ministry samples were put under.

Essentially, Fletcher’s samples were more simplistic and didn’t garner the same level of detail as the ministry samples did.

The city, originally ordered to pay a $150,000 fine for the seven convictions, still faces a $30,000 fine for the three Environment Ministry convictions. The four Fletcher convictions weren’t upheld, so the city no longer has to pay the $120,000 in fines levied for those convictions in 1999. Over the course of the court battle, the city’s legal bills have totalled $431,000.

It’s unclear whether the municipality will appeal the Court of Appeal decision.

Mayor Harvey Rosen didn’t return calls from The Whig yesterday.

City solicitor Hal Linscott said lawyers for the municipality are still reviewing the ruling and will be making recommendations to city council on the matter.

The city has spent roughly $2 million on cleaning up the old dump site since Fletcher’s complaint was lodged seven years ago.

Despite public demands for action and studies that showed that the site was a serious concern before charges were laid, the city did little to address the environmental problems caused by the former dump.

In operation from the early 1950s to the early 1970s on the west shore of the Cataraqui River, the former landfill was turned into a recreational area for families shortly after it closed.

It’s been the city-run golf course for about 25 years.

Much of the remediation work done at the Belle Park site has followed the 1999 court decision that ordered the city to come up with a plan within a year for sealing the garbage underneath the park with a water-resistant cap. Justice of the Peace Jack Bell also ordered that the city within three months begin long-term monitoring and inspection of the site, which prosecution lawyers in 1999 estimated was leaking 200,000 litres a day.

Since then, cleanup efforts have included a series of pumps that draw leachate out of the dump and away from the river.