Kirkland Lake contractor wins appeal of Environmental Protection Act conviction

The Ontario Court of Justice has overturned the conviction of the owner of a Kirkland Lake contracting company for one offence he was found guilty of under the province’s Environmental Protection Act.

Jordash Trucking and Equipment and owner Timothy Swanson were convicted in Kirkland Lake in December 2022. The Ministry of the Environment received noise complaints about Swanson’s business, located on Government Road, between June and August 2018, and again between August and September 2019.

“Ministry staff observed heavy equipment and aggregates screening equipment and conveyors being operated at the site,” the province said in a news release in February 2023.

“Swanson was instructed that a ministry approval for the aggregates screening equipment was required.”

Orders issued in 2019

Orders were issued in June 2019 requiring Swanson to, among other items, submit a completed ministry approval application for the aggregates screening equipment.

“A ministry approval application was not received,” the release said.

“The ministry’s environmental investigations and enforcement branch investigated and laid charges, which resulted in two convictions.”

The convictions are for discharging a contaminant or cause or permit the discharge of a contaminant into the natural environment and for failing to comply with a ministry order by not submitting a ministry approval application.

Swanson appealed his conviction for “discharging a contaminant or cause or permit the discharge of a contaminant into the natural environment. In this case, the “contaminant” was noise from the equipment being operated by the company.

The company was fined $90,000.

“This amount results from the minimum $5,000 fine being applied to 18 dates on which the offence was found to have been committed,” according to the decision on the appeal from the Ontario Court of Justice.

Witness testimony

At the trial, Swanson testified he didn’t operate the equipment at the site after receiving direction from the province.

But witnesses on behalf of the Crown testified the equipment was being operated on multiple days, including by Swanson. The trial judge said she had difficulty accepting defence and Crown evidence, but nonetheless ruled the equipment was being operated on the 18 days in question and found Swanson guilty.

But the trial judge also wrote she was uncertain”what heavy equipment was being used … about who was using it; and … about what operation was taking place."

“The trial justice may well have had a compelling rationale that explains these, on their face, difficult to reconcile findings,” the appeals decision said.

“However, if she did have such a rationale, she did not provide it in her reasons.”

The appeals court doesn’t have enough information to review the reasoning process behind the decision, or why the court ruled the offence took place on 18 specific dates.

“Accordingly, the appeal is allowed,” the decision said.

“The finding of guilt and sentence on count 1 only are set aside, and a new trial is ordered on count 1 only.”