Canadian Consulting Engineer

By John Tidball, Miller Thomson, LLP   

Held Responsible

Engineering

A recent decision in a provincial court in New Brunswick tells a cautionary tale for engineers. An engineering firm and its principal environmental engineer were both convicted on two counts of breach...

A recent decision in a provincial court in New Brunswick tells a cautionary tale for engineers. An engineering firm and its principal environmental engineer were both convicted on two counts of breaching subsection 36(3) of the Fisheries Act for their consulting and supervisory work on a closed municipal landfill site.

The convictions are currently under appeal.

After the landfill was closed, the consultant was retained to develop the closure plan, to identify sources of funding for the project and to develop a budget.

The landfill is located adjacent to the Petitcodiac River. It produced leachate at an estimated rate of 140,000 cubic metres per year, all of which ended up in the river, as the landfill had been developed without any means of collecting the leachate. The consulting engineer considered two approaches to closure. Option 1 included no leachate collection. Option 2 included leachate collection, at an additional cost of $3,330,000. The consultants concluded in the closure report that the extra expenditure was not justified, on the basis that the leachate discharged to the Petitcodiac River, a body of water that is affected by tides, was sufficiently diluted to meet the relevant government water quality guidelines.

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The consultant recommended option 1, despite concerns raised by a university professor that such a closure plan would not comply with the federal Fisheries Act prohibition against depositing deleterious substances into water frequented by fish.

The consultant was then retained to implement the closure plan under the direction of a steering committee that included officials from the city of Moncton and the provincial Department of Environment. The province provided one half of the funding to close the landfill. The closure plan was implemented over the last half of the 1990s. In 1998, in order to remediate some unsightly leachate seepage, the consultant recommended and directed the installation of a pipe to collect the seeping leachate and drain it directly to Jonathan Creek, which flowed into the Petitcodiac River.

In the summer of 2000, two representatives of the Petitcodiac Riverkeepers, a local environmental group, collected samples of leachate from a landfill seep and the new collector pipe. Analysis proved that the leachate was acutely lethal to aquatic life. A complaint to Environment Canada led to similar government sampling, and similar results.

A year later, at a cost of $10,000, the new leachate collector pipe was diverted to connect to the municipal sewage treatment plant.

Environment Canada then charged the consultant firm, its principal environmental engineer, the city of Moncton, and the city’s commissioner of engineering and public works, with two counts of depositing or permitting the deposit of a deleterious substance into Jonathan Creek and the Petitcodiac River. The city pled guilty and was fined $35,000 and ordered to implement a remediation plan. The charges against the city’s commissioner were withdrawn. The charges against the consulting engineer and its principal environmental engineer proceeded to trial.

There was no dispute that the landfill leachate was a “deleterious substance” or that the Petitcodiac River and Jonathan Creek constituted “water frequented by fish.” The defendants disputed the allegation that they had deposited or permitted the deposit of leachate. They also argued that they had exercised all due diligence to prevent the commission of the offence and that they were entitled to be acquitted based on the defence of “officially induced error.” Such a defence can be used when an accused party relies upon erroneous advice provided by a public official.

The trial judge rejected the argument that the consultant had nothing to do with the deposit of the garbage that was the source of the leachate. The court also rejected the consultant’s argument that the ultimate control rested with its client and the regulator, ruling that the consultant had exercised a large measure of influence and control on how the landfill closure was managed.

On the due diligence issue the trial judge ruled that the defendants at best did not know, or at worst were willfully blind, as to the requirements of the Fisheries Act. The fact that they had been warned by the university professor about the very issue was significant to the trial judge. The fact that the direct discharge was stopped for an expenditure of only $10,000 was also a significant issue in the court’s ultimate determination of the case.

On the issue of officially induced error, the trial judge focused on the lack of any contact with Environment Canada. The fact that Environment Canada and Fisheries and Oceans staff had reviewed the consultant’s annual monitoring reports, which contained detailed water quality information, was not sufficient to establish the defence. The consultant and its principal environmental engineer were convicted.

The decision has been hailed by the Waterkeepers as a landmark because it is the first time that an engineering firm has been held accountable for knowingly drafting and implementing a plan that may not comply with the Fisheries Act.

As noted, the convictions are currently under appeal. But whether or not the decision is upheld in the appeal court, this case should be cause for sober reflection in the environmental engineering community.

John Tidball is a certified specialist in environmental law with Miller Thomson LLP in Markham, Ontario. E-mail jtidball@millerthomson.com

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