Judgments

T-2274-00

2003 FC 1518

Her Majesty the Queen (Applicant)

v.

Ipsco Recycling Inc. and General Scrap & Car Shredder Ltd., now known as Jamel Metals Inc., carrying on business as partnership under the firm name and style of General Scrap Partnership and XPotential Products Inc., Jacob Lazareck and Melvin Lazareck (Respondents)

Indexed as: Canada v. Ipsco Recycling Inc. (F.C.)

Federal Court, Dawson J.--Winnipeg, April 3, 4, 7, 8, 9, June 23, 24; Ottawa, December 23, 2003.

Environment -- Crown application for permanent, mandatory injunction under Canadian Environmental Protection Act, s. 311 -- Respondents in recycling business -- Product of automobile shredding, ASR, stored in piles -- Material containing over 50 parts per million (ppm) of PCBs defined as "PCB material", must be dealt with in accordance with Storage of PCB Material Regulations -- Environment Canada testing respondents' ASR for PCB levels -- Departmental testing indicating level exceeded -- Testing by respondents' experts indicating not exceeded -- Remedial actions proposed to be taken by respondents not satisfactory compliance plan -- Department seeking injunction all ASR in certain piles, cells deemed PCB material unless, until areas below limit identified, separated -- Sampling, analysis to be done by third party under departmental supervision, at respondents' cost -- Application denied -- Requirements for injunctive relief under Act, scope of s. 311(1) -- Requisite standard of proof -- Necessity for reasonable, probable grounds -- Whether injunction available in case of past act having present, ongoing effect -- English, French versions of provision -- Contextual factors, scheme of Act considered -- Act provides comprehensive code for pollution prevention -- Provides for substantial fines, imprisonment -- Court concerned Crown avoiding procedural safeguards by seeking injunction, not prosecuting -- Review of expert evidence whether ASR was PCB material -- Analysis of evidence -- Court presented with two different views of common set of facts -- Central dispute: whether average of entire cell, pile or smaller areas within cell ("hot spots") used to determine if 100kg of ASR having PCB level over 50 ppm -- Validity of Departmental data, use of individual results -- Use of statistical analysis -- Conflicting methodologies explained -- Whether Regulations permit use of averages -- Meaning of "aggregate" in PCB Regulations -- Characterization of ASR question to be answered by science -- Mean or average PCB concentration relevant where heterogeneous substance -- Department taking position contrary to what sworn by own expert witness -- Statistical analysis relevant, required to interpret data -- Mean PCB concentration below limit -- ASR not PCB material.

Injunctions -- Environment Minister seeking permanent, mandatory injunction under Canadian Environmental Protection Act, 1999, s. 311 -- Automobile shredder residue said to exceed limit imposed by Storage of PCB Material Regulations -- Requirements for injunctive relief under s. 311(1) -- Respondent arguing Act enacted under Parliament's criminal law jurisdiction, injunction granted only in exceptional cases -- At common law, Attorney General may seek injunction to secure compliance with law only in exceptional cases -- Otherwise where injunction authorized by statute -- Need not show damages inadequate, irreparable harm if denied -- No requirement other enforcement measures tried -- Court retains discretion to deny if inequitable, of doubtful utility -- Requisite standard of proof -- Necessity for reasonable, probable grounds -- Unnecessary for Court to determine whether mandatory injunction may issue to prevent continuation of offence in view of Court's assessment of scientific evidence of expert witnesses.

This was an application by Her Majesty, as represented by the Minister of the Environment, for a permanent, mandatory injunction under Canadian Environmental Protection Act, 1999, section 311. This was the first such application to come before a court.

Respondents, General Scrap Partnership and XPotential Products Inc., are in the recycling business. The former shreds automobiles; the latter combines material supplied by General Scrap with waste plastics in the manufacture of various products. One of the products of General Scrap's shredding operation is automobile shredder residue or "ASR", non-metallic material, which it supplies to XPotential. ASR is a heterogeneous material composed of plastic, foam and other materials. Some 20,000 metric tonnes of ASR is stored at the General Scrap site. XPotential has a vast amount of ASR at its place.

Under the Storage of PCB Material Regulations, material containing over 50 parts per million (ppm) of PCBs are defined as "PCB material" and must be dealt with in accordance with the Regulations. Non-compliance is a statutory offence.

When, in September 1997, Environment Canada notified respondents that they were to be subjected to investigation to determine PCB levels in their ASR, they retained their own experts to conduct sampling and analysis. The report prepared for respondents indicated that PCB levels were not exceeded, but reports prepared by the Department in 1997 and 1999 said that they were. Respondents advised Environment Canada as to what they intended to do about the problem but the Department took the position that respondents had failed to submit a satisfactory compliance plan and launched this application rather than resorting to other statutory enforcement options. In seeking an injunction, the Department's position was that all of the ASR in General Scrap's East and West Piles and all that in Cells 4, 5 and the Drying Cell at the XPotential facility was considered to be PCB material, unless and until any areas below the limit were identified and separated. Any sampling and analysis protocol would have to be carried out by a third party under Departmental supervision but at respondents' cost. The remaining PCB material had to be dealt with in accordance with the PCB Regulations.

Held, the application should be denied.

The first issue for consideration was the requirements for injunctive relief under Act, subsection 311(1) and the scope of that provision. Respondents suggested that the Act was enacted pursuant to Parliament's criminal law jurisdiction and that a court ought grant an injunction in aid of criminal law only in the most exceptional of cases. They argued that the exercise of this exceptional jurisdiction has been confined to cases where a law has been repeatedly flouted and statutory enforcement provisions have proven ineffective. The cases relied upon by respondents were distinguishable. At common law, the Attorney General may, in exceptional cases, seek an injunction to secure compliance with the law. But, where an injunction is authorized by statute, the Court's discretion is more fettered. In such cases, applicant need not show that damages are inadequate or that irreparable harm will result should an injunction be denied. Nor is there a requirement that other enforcement procedures have been attempted. Even so, the Court does retain a discretion to deny an injunction if of doubtful utility or inequitable.

An ordinary reading of subsection 311(1) suggests that, for an injunction to issue, the Court must be satisfied either that respondent has done an act amounting to an offence or an act directed toward commission of an offence or is about or likely to do an act that constitutes an offence or is directed thereto. If so satisfied, a court may issue a prohibitory or mandatory injunction.

The language of the provision does not support respondents' submission that there is a requirement for proof beyond a reasonable doubt. It speaks of where "it appears to a court" rather than "where it is established that" an offence has been committed. In this regard, the wording of section 311 may be compared with that of section 39 which indicates the necessity for a higher degree of proof. Use of the word "appears" would suggest that not even proof at the high end of the civil standard is required. The Court could not, on the other hand, accept applicant's submission, that it need not establish reasonable and probable grounds. As moving party, the onus is on the Minister to satisfy the Court that it appears that an offence has been or is about to be committed. It is necessary that the Court at least arrive at a bona fide belief, on a balance of probabilities, that a serious possibility exists that an offence has, or is likely to be, committed. The Court's belief must be based on credible evidence.

While the subsection is aimed at preventing offences, applicant argues that where a past act has a present and ongoing effect, a court may by injunction require that a respondent discontinue the unlawful conduct. While the English version is not explicit as to an ongoing situation, the French version of the provision makes it clear that one may be ordered to abstain from actions capable of perpetuating the offence. Indeed, it was applicant's submission that the offence of improper storage of PCB materials constitutes an offence of a continuous nature within the contemplation of Act, section 276. In determining whether subsection 311(1) authorizes issuance of a mandatory injunction to remedy an existing situation, it was helpful to turn to contextual factors such as the scheme of the Act.

The Act provides a comprehensive code regarding pollution prevention and environmental protection. The Act makes provision for a fine of up to $1 million per day or up to 5 years' imprisonment. Additional orders may be made by a court upon conviction of an offence. In particular, under paragraph 291(1)(a), a court may prohibit any act that may result in "the continuation" of the offence. Respondents pointed out the absence of explicit reference in the English version of section 311 to prevention of the continuation of an offence. Respondents further argued that it is anomalous that the same relief be available under subsection 311(1) when it merely "appears" that an offence has been committed as is available following conviction under section 291. The procedural safeguards available in a prosecution can indeed be avoided by the Minister electing to proceed for injunctive relief and the Court was concerned by the potential to use section 311 to prosecute rather than section 291. But, in view of the Court's assessment of the evidence, it was not necessary to reach a final conclusion as to whether a mandatory injunction may issue to prevent the continuation of an offence by remediation of an existing situation.

Justice Dawson proceeded to review the expert, scientific evidence as to whether the ASR was PCB material. For a summary of this, see the Editor's note. The Judge then analysed the evidence, noting that from the materials filed by the parties, it seemed that there were two different cases before the Court in that it was presented with two entirely different views of a common set of facts. While certain matters were not in dispute, the central dispute was as to whether the average of an entire cell or pile, or smaller individual areas within a pile or cell referred to as hot spots, should be used to determine whether there is 100 kg of ASR with a PCB concentration above 50 ppm.

Refer to the Editors note for a summary of the Court's consideration of the validity of the Environment Canada data and of the use of individual results.

Turning to the use of statistical analysis, applicant's position was that the applicability of the mean, standard deviation and confidence intervals for entire cells and piles were irrelevant to the issue of compliance. The methodology developed by respondents' experts involved the identification of each entire pile or cell as a sampling unit, an approach said to be consistent with the 1992 EPA Report. Applicant argued, however, that the language found in the Regulations does not support the use of averages and that respondents' reliance upon an "average" contradicts the word "aggregate" used in the Regulations. The submission was that "aggregate" in the context of the PCB Regulations was the opposite of "average". The Court could not agree that use of the word "aggregate" was inconsistent with the use of statistical averages. Respondents' submission, that what was first required was that the suspect material be categorized and if some was found to be PCB material, it had then to be determined whether it amounted to 100 kg or more, was accepted. The proper characterization of ASR was a question to be answered by science. In dealing with a heterogeneous substance such as ASR, the mean or average PCB concentration is relevant. Applicant's witness, Dr. Fingas, swore that his duty was to design and implement a methodology yielding results "representative of each entire cell". Applicant now, however, takes the position that what is relevant is smaller areas within each pile. Furthermore, in the 1997 and 1999 Reports, Dr. Fingas' results were expressed as an average for each entire pile or cell. This was contrary to the argument now advanced by applicant. The Court was persuaded by the opinion of Merks, that a statistical analysis was relevant and accepted that a statistical analysis was required to properly interpret the data. Also accepted was Merks' opinion that the mean PCB concentration fell below the limit and that respondents' ASR did not constitute PCB material.

statutes and regulations judicially

considered

Canadian Environmental Protection Act, 1999, S.C. 1999, c. 33, ss. 2(1)(i), 17, 22, 29, 39, 217, 218, 235, 238(1), 239(1), 243-268, 272(1)(a), 273(2), 274(1), 276, 290, 291(1), 311.

Fisheries Act, R.S.C., 1985, c. F-14, s. 78.1 (as enacted by S.C. 1991, c. 1, s. 24).

Storage of PCB Material Regulations, SOR/92-507, s. 2 "PCB solid", "PCB substance".

cases judicially considered

distinguished:

Gouriet v. Union of Post Office Workers, [1978] A.C. 435 (H.L.); Ontario (Attorney General) v. Ontario Teachers' Federation (1997), 36 O.R. (3d) 367; 44 O.T.C. 274 (Gen. Div.); Ontario (Attorney General) v. Hale (c.o.b. Hale Sand and Gravel) (1983), 13 C.E.L.R. 19; 38 C.P.C. 292 (Ont. H.C.); Prince Edward Island (Minister of Community and Cultural Affairs) v. Island Farm and Fish Meal Ltd. (1989), 79 Nfld. & P.E.I.R. 228 (P.E.I. S.C. (A.D.)).

considered:

Ontario (Minister of the Environment) v. National Hard Chrome Plating Co. (1993), 11 C.E.L.R. (N.S.) 73 (Ont. Gen. Div.); Biolyse Pharma Corp. v. Bristol-Myers Squibb Co., [2003] 4 F.C. 505; (2003), 226 D.L.R. (4th) 138; 24 C.P.R. (4th) 417; 303 N.R. 63 (C.A.).

referred to:

Maple Ridge (District) v. Thornhill Aggregates Ltd. (1998), 162 D.L.R. (4th) 203; [1999] 3 W.W.R. 93; 109 B.C.A.C. 188; 54 B.C.L.R. (3d) 155; 47 M.P.L.R. (2d) 249 (B.C.C.A.); Shaughnessy Heights Property Owners' Association v. Northup (1958), 12 D.L.R. (2d) 760 (B.C.S.C.); Manitoba Dental Association v. Byman and Halstead (1962), 34 D.L.R. (2d) 602 (Man. C.A.); Canada (Canadian Transportation Accident Investigation and Safety Board) v. Canadian Press, [2000] N.S.J. No. 139 (S.C.) (QL); Saskatchewan (Minister of the Environment) v. Redberry Development Corp., [1987] 4 W.W.R. 654; (1987), 58 Sask. R. 134; 2 C.E.L.R. (N.S.) 1 (Q.B.); Capital Regional District v. Smith (1998), 168 D.L.R. (4th) 52; 115 B.C.A.C. 76; 61 B.C.L.R. (3d) 217; 49 M.P.L.R. (2d) 159 (C.A.); Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84; (2002), 208 D.L.R. (4th) 107; 37 Admin. L.R. (3d) 252; 18 Imm. L.R. (3d) 93; 280 N.R. 268.

authors cited

Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.

U.S. Environmental Protection Agency. EPA Manual SW-846. Test Methods for Evaluating Solid Waste, Physical/Chemical Methods, 3rd ed. Washington: U.S.G.P.O., looseleaf.

APPLICATION for a permanent, mandatory injunction under Canadian Environmental Protection Act, 1999 in respect of piles of automobile shredder residue, said to contain PCB material. Application denied.

appearances:

Duncan A. Fraser and Joel I. Katz for applicant.

James G. Edmond and John D. Stefaniuk for respondents.

solicitors of record:

Deputy Attorney General of Canada for applicant.

Thompson Dorfman Sweatman, Winnipeg, for respondents.

Editor's Note:

The Executive Editor has determined that these 96-page reasons for order should be reported in the abridged format as authorized by Federal Courts Act, subsection 58(2). This case is of significance as the first in which a court has had to deal with an application for injunctive relief under Canadian Environmental Protection Act, 1999, subsection 311(1). The legal issues are here published in full text but much of the facts and conflicting scientific evidence have been omitted. Brief editor's notes replace the omitted portions.

The following are the reasons for order and order rendered in English by

[1]Dawson J.: In this application Her Majesty The Queen, as represented by the Minister of the Environment (applicant or Environment Canada), seeks a permanent, mandatory injunction against the respondents pursuant to section 311 of the Canadian Environmental Protection Act, 1999, S.C. 1999, c. 33 (Act). The injunction sought is one which would require the respondents, and their agents and servants, to store all PCB material at the business premises of General Scrap & Car Shredder Ltd. and XPotential Products Inc. that is currently lying in open piles or otherwise improperly stored, in containers that provide sufficient durability and strength to prevent the PCB solids and PCB substances from being affected by the weather or released.

[2]These reasons are lengthy. In them I conclude that upon the totality of the evidence Environment Canada has failed to meet its burden to establish on a balance of probabilities that it appears that the respondents have committed an offence under the Act by improperly storing PCB material. In consequence, the application for injunctive relief is dismissed.

Editor's note (replaces part of paragraph 2 to paragraph 44):

Respondents, General Scrap Partnership and XPotential Products Inc. are in the recycling business. General Scrap was Canada's first automobile shredder, having commenced business at Winnipeg in 1967. In the shredding process, ferrous metals are separated f rom non-ferrous materials including metals (copper and aluminum) and automobile shredder residue or "ASR". The latter is made up of plastic, foam, rubber, carpet and glass. The chunks of this ASR may exceed one foot in size.

PCBs were banned in Canada in 1977. Prior to then, this now prohibited substance was found in automobiles and household appliances. So, when older vehicles are shredded, PCBs remain in the ASR in low concentrations. But just 500 grams of PCBs can contaminate up to 10 tonnes of ASR in a concentration exceeding the regulatory limit of 50 parts per million (ppm). The prohibited substance is found in varying amounts in ASR storage piles.

General Scrap has 20,000 metric tonnes of ASR in three piles. This ASR was generated between 1969 and 1978. Respondent, XPotential, recycles ASR with post-consumer waste plastics to manufacture such products as fence posts and railway ties. Its operation is located one mile away from General Scrap and consists of a plant and storage cell area. Since 1996 it has received some 125,000 tonnes of ASR from General Scrap. It has 6 ASR storage cells and a drying cell. Environment Canada is concerned about the ASR in cells 4 and 5 as well as that in the drying cell. Some of the ASR in these cells had been stored at General Scrap for several years.

The Storage of PCB Material Regulations, SOR/92-507 define material containing more than 50 ppm of PCBs to be "PCB material". Such material in the amount of 100 kg or more has to be stored and handled in accordance with th e Regulations and non-compliance is an offence.

When Environment Canada notified respondents that they were to be inspected and ASR samples taken for analysis to ascertain PCB levels, respondents engaged Wardrop Engineering to conduct sampling and analysis for them. Its report indicated levels below the regulatory threshold. But the Environment Canada report found the limit exceeded at three locations: the West Pile at General Scrap and storage cells 5 and 6 at XPotential. Wardrop prepared a second report, based on its analysis of duplicate samples, indicating that the limit was not exceeded. Environment Canada did not, however, undertake enforcement action since its report was based upon an analytical protocol other than that referenced in the Regulations. But within a few months, the Department took more samples and in 1999 issued a new report to the effect that two ASR piles at General Scrap and three of the four storage areas at XPotential exceeded the legal limit. General Scrap advised the Department of its plans to deal with the problem but was found not to have provided a detailed compliance plan with specific steps and time frames. Respondents retained Dillon Consulting and another expert to design a sampling program that would yield the most accurate results but the Department was unwilling to comment on the proposed sampling and analysis procedures. These proceedings were instituted by applicant without first resorting to other enforcement options available under the Act. It seeks an injunction on the basis that all of the ASR in General Scrap's East and West Pile and that in XPotential's Cells 4, 5 and Drying Cell are PCB material unless and until areas under the limit are separated. The injunction would further require that sampling, analysis and identification of non-PCB material be done by a third party at respondents' cost but under Departmental supervision. The remaining PCB Material would have to be stored or disposed of in accordance with the PCB Regulations.

II. THE ISSUES

[45]In order to determine whether the injunction requested should issue, the following issues must be considered:

(i) What are the requirements which must be met in order to be entitled to obtain an injunction pursuant to subsection 311(1) of the Act and what is the scope of subsection 311(1)?

(ii) Is some or all of the ASR PCB material as defined in the Regulations so that some or all of the respondents are in breach of the Regulations?

(iii) If so, which respondents are in breach of the Regulations? and

(iv) Should the Court grant the requested injunction?

III. ANALYSIS

(i) What are the requirements to be met in order to obtain injunctive relief under subsection 311(1) of the Act and what is the scope of subsection 311(1)?

[46]Counsel advise that this is the first occasion on which a court has considered a request for injunctive relief under subsection 311(1) of the Act. Section 311 of the Act is as follows:

311. (1) Where, on the application of the Minister, it appears to a court of competent jurisdiction that a person has done or is about to do or is likely to do any act or thing constituting or directed toward the commission of an offence under this Act, the court may issue an injunction ordering any person named in the application

(a) to refrain from doing any act or thing that it appears to the court may constitute or be directed toward the commission of an offence under this Act; or

(b) to do any act or thing that it appears to the court may prevent the commission of an offence under this Act.

(2) No injunction shall be issued under subsection (1) unless 48 hours notice is given to the party or parties named in the application or the urgency of the situation is such that service of notice would not be in the public interest.

(a) Is subsection 311(1) to be limited to exceptional cases?

[47]The respondents' fundamental argument with respect to the application of section 311 is that the Act in its entirety is enacted pursuant to Parliament's jurisdiction over criminal law matters. It follows, they submit, that the jurisdiction of the Court to grant an injunction in aid of criminal law is a jurisdiction to be used with caution and only in the most exceptional of cases. Reliance is placed upon authorities such as Gouriet v. Union of Post Office Workers, [1978] A.C. 435 (H.L.); Ontario (Attorney General) v. Ontario Teachers' Federation (1997), 36 O.R. (3d) 367 (Gen. Div.); and Ontario (Attorney General) v. Hale (c.o.b. Hale Sand and Gravel) (1983), 13 C.E.L.R. 19 (Ont. H.C.). The respondents say that the exercise of this exceptional jurisdiction has been confined to cases where a law has been repeatedly flouted, the alleged breach of law is clear, and the enforcement provisions of the statute in question have proven ineffective.

[48]With respect, I find the authorities relied upon by the respondents to be distinguishable. In the cases cited by the respondents there was either no specific legislative provision which authorized injunctive relief, or, as in Hale, supra, the statutory provision which provided for injunctive relief was not applicable. Therefore, in all of the cases what was in issue was the right of an attorney general to sue at common law in order to attempt to enforce a law by way of injunction.

[49]The nature of an injunction available at common law to an attorney general in order to enforce public rights is well described by Justice MacPherson in Ontario Teachers' Federation, supra. This remedy reflects the role of the attorney general in securing compliance with the laws of the land. Courts have held this to be a remedy granted in exceptional cases.

[50]There is, however, a significant distinction between an injunction authorized by statute and an injunction available to the attorney general at common law. This distinction is aptly illustrated in Ontario (Minister of the Environment) v. National Hard Chrome Plating Co. (1993), 11 C.E.L.R. (N.S.) 73 (Ont. Gen. Div.). There, the statutory provision with respect to the granting of an injunction contemplated an injunction to "restrain" contravention of the statute. The Court concluded that because the statute only provided a basis for the issuance of a prohibitory injunction, a mandatory injunction was only available at common law at the request of the Attorney General suing in the public interest. Such common law relief was available only where the law was being flouted and the legislation was inadequate to protect the public interest.

[51]On the basis of the authorities cited by the parties I am satisfied that where a statute provides a remedy by way of injunction, different considerations govern the exercise of the court's discretion than apply when an attorney general sues at common law to enforce public rights. The following general principles apply when an injunction is authorized by statute:

(i) The court's discretion is more fettered. The factors considered by a court when considering equitable relief will have a more limited application. See: Prince Edward Island (Minister of Community and Cultural Affairs) v. Island Farm and Fish Meal Ltd. (1989), 79 Nfld. & P.E.I.R. 228 (P.E.I. S.C. (A.D.)); Maple Ridge (District) v. Thornhill Aggregates Ltd. (1998), 162 D.L.R. (4th) 203 (B.C.C.A.).

(ii) Specifically, an applicant will not have to prove that damages are inadequate or that irreparable harm will result if the injunction is refused. See: Shaughnessy Heights Property Owners' Association v. Northup (1958), 12 D.L.R. (2d) 760 (B.C.S.C.); Manitoba Dental Association v. Byman and Halstead (1962), 34 D.L.R. (2d) 602 (Man. C.A.); Canada (Canadian Transportation Accident Investigation and Safety Board) v. Canadian Press, [2000] N.S.J. No. 139 (S.C.) (QL).

(iii) There is no need for other enforcement remedies to have been pursued. See: Saskatchewan (Minister of the Environment) v. Redberry Development Corp., [1987] 4 W.W.R. 654 (Sask. Q.B.).

(iv) The court retains a discretion as to whether to grant injunctive relief. Hardship from the imposition and enforcement of an injunction will generally not outweigh the public interest in having the law obeyed. However, an injunction will not issue where it would be of questionable utility or inequitable. See: Saskatchewan (Minister of the Environment) v. Redberry Development Corp., supra; Maple Ridge (District) v. Thornhill Aggregates Ltd., supra; Capital Regional District v. Smith (1998), 168 D.L.R. (4th) 52 (B.C.C.A.).

(v) It remains more difficult to obtain a mandatory injunction. See: Canada (Canadian Transportation Accident Investigation and Safety Board) v. Canadian Press, supra.

(b) The constituent elements of subsection 311(1)

[52]Having rejected the respondents' argument that relief pursuant to section 311 of the Act is only available upon proof that the law has been repeatedly flouted and that other enforcement provisions of the statute have proven ineffective, I turn to consider what must be established in order to permit the Court to issue a mandatory injunction.

[53]The starting point for the interpretation of subsection 311(1) of the Act is the following well-known and accepted statement of principle:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

See: E. A. Driedger in Construction of Statutes (2nd ed. 1983), at page 87 as cited in Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84, at paragraph 27.

[54]This approach requires a court to attribute to a legislative provision the meaning that best accords with both the text and the context of the provision. While neither can be ignored, as the Federal Court of Appeal observed in Biolyse Pharma Corp. v. Bristol-Myers Squibb Co., [2003] 4 F.C. 505, at paragraph 13, the clearer the ordinary meaning of the provision, the more compelling the contextual considerations must be in order to warrant a different reading.

[55]Before beginning this analysis it is convenient to again set out the text of subsection 311(1) of the Act:

311. (1) Where, on the application of the Minister, it appears to a court of competent jurisdiction that a person has done or is about to do or is likely to do any act or thing constituting or directed toward the commission of an offence under this Act, the court may issue an injunction ordering any person named in the application

(a) to refrain from doing any act or thing that it appears to the court may constitute or be directed toward the commission of an offence under this Act; or

(b) to do any act or thing that it appears to the court may prevent the commission of an offence under this Act.

1. The Text--Grammatical and Ordinary Sense

[56]An ordinary reading of subsection 311(1) leads to the interpretation that for an injunction to issue it must appear to a court that either:

(i) the respondent has done any act or thing constituting an offence under the Act, or done any act or thing that is directed toward the commission of an offence; or

(ii) the respondent is about to do, or is likely to do, any act or thing that constitutes an offence under the Act or is directed toward the commission of an offence.

[57]If so satisfied, the court may:

(i) issue a prohibitory injunction restraining the respondent from doing any act or thing that it appears to the court may constitute or be directed toward the commission of an offence; or

(ii) issue a mandatory injunction requiring the respondent to do any act or thing that it appears to the court may prevent the commission of an offence.

The Text as it Speaks to the Requisite Standard of Proof

[58]The respondents argue that the Act requires proof beyond a reasonable doubt of the facts giving rise to the commission of an offence. In my view, the language used in subsection 311(1), read in its grammatical and ordinary sense, does not support this conclusion. I so conclude because the provision speaks to the situation where "it appears to a court" that an act or thing has occurred or is about to occur or is likely to occur, and that act or thing constitutes or is directed toward the commission of an offence. If proof beyond a reasonable doubt of the commission, or likely commission, of an offence was required it is reasonable to infer that Parliament would have used more specific language in the nature of "where it is established that a person has done or is about to do or is likely to do any act or thing constituting an offence".

[59]Further, the court may restrain any act or thing that "appears to the court may constitute or be directed toward the commission of an offence". The court may order anything to be done that "may prevent the commission of an offence". This wording again falls short of requiring proof beyond a reasonable doubt that an offence has occurred or is about to occur or is likely to occur.

[60]Moreover, the wording used in subsection 311(1) is to be contrasted with that found in section 39 of the Act. Section 39 permits a person who suffers, or is about to suffer, loss or damage "as a result of conduct that contravenes any provision of this Act" to apply to a court for injunctive relief. Section 39 therefore requires that the court be satisfied that loss or damage results from conduct that "contravenes the Act" in order to grant injunctive relief. The use of wording in subsection 311(1) which only requires that it "appears" that an offence has occurred, or is about to or likely to occur, must be taken to reflect Parliament's intent that a lower degree of proof is required under section 311 than is required under section 39. That lower degree of proof would not equate to proof beyond a reasonable doubt, or even proof at the high end of the civil standard.

[61]In so concluding, I have considered the respondents' argument that section 29 of the Act supports the conclusion that section 311 requires proof to the criminal standard. Section 29 provides:

29. The offence alleged in an environmental protection action and the resulting significant harm are to be proved on a balance of probabilities.

[62]The respondents argue that because section 311 and related provisions contain no similar provision invoking the civil standard, the standard of proof must be intended to be the criminal standard.

[63]However, it is significant, in my view, that an environmental protection action referenced in section 29 may only be brought by a person who has applied to the Minister for an investigation of an offence and the Minister has either failed to investigate and report as required or has responded unreasonably to the investigation. An environmental protection action is therefore a form of substitution for a proper investigation of an alleged offence. The gravamen of the action is proof of an offence. In that circumstance, the need for clarification of the standard of proof is apparent. Viewed in this context I am not prepared to infer from the absence of a similar provision applicable to section 311 that the criminal standard of proof was intended to apply to section 311.

[64]To conclude on this point, I also observe that nothing in section 311 indicates that the application commenced by the Minister is criminal in nature so as to attract the criminal standard of proof.

[65]On the other hand, Environment Canada asserts that it need only establish that there is reason to believe that a violation of the Act is occurring. It is said by Environment Canada that in the absence of an express statutory requirement it is not necessary for it to prove reasonable and probable grounds for that belief. In the words used in Environment Canada's written submission:

31. Environment Canada need only prove that they [sic] have reason to believe a violation of the Act is occurring. Unless the statute indicates otherwise, reasonable and probable grounds for such belief or actual proof of the violation is not required.

Prince Edward Island (Minister of Community and Cultural Affairs) v. Island Farm and Fish Meal Ltd. (1989), 79 Nfld. & P.E.I.R. 228 (P.E.I.C.A.)

[66]While I reject the respondents' submission that what is required is proof beyond a reasonable doubt of facts giving rise to the commission of an offence, I also reject the submission of Environment Canada that it is not necessary for it to establish reasonable and probable grounds upon which to base a belief that a violation of the Act has occurred, or will occur, or will likely occur.

[67]The ordinary meaning of the words used in subsection 311(1) places the onus on the Minister, as moving party, to satisfy a court of competent jurisdiction that it appears that an act or thing constituting or directed toward the commission of an offence has occurred or is about to occur or is likely to occur. If so satisfied the court may enjoin any act or thing that it appears may constitute or be directed toward the commission of an offence. Alternatively, the court may mandate any act or thing that it appears may prevent the commission of an offence. While the language used falls short of requiring proof that an offence has occurred or will occur, it is necessary for the court at least to come to a bona fide belief, on a balance of probabilities, that a serious possibility exists that an offence has been committed, or is likely to be committed, or conduct directed toward the commission of an offence has occurred or will likely occur unless an injunction is issued. Unless the court is so satisfied, the Minister will have failed to establish the existence of facts that make the commission of an offence or conduct furthering an offence appear likely. The court's belief must be based on credible evidence, and any inferences that such evidence properly supports. The onus is upon the Minister to meet that burden.

[68]I do not find the Island Farm and Fish Meal Ltd. case relied upon by Environment Canada to assist its position. This case turned upon the wording of the specific provincial legislation which expressly allowed a ministerial order to be issued simply where the Minister had reason to believe that a violation had occurred. The case is not authority for any broader proposition applicable to subsection 311(1) because of differences in the language used in each statute.

The Text as it Speaks to the Prevention of Offences

[69]Environment Canada submits that the language of subsection 311(1) when read in its entirety is directed toward the prevention of offences under the Act. I agree. It does so by allowing a court to prohibit acts or things that may constitute or be directed to the commission of an offence and by allowing a court to order that any act or thing be done where it appears that the resulting effect of the order may prevent the commission of an offence.

[70]For example, in the case of a single discrete act that constitutes or may constitute an offence under the Act, on proper evidence the court could enjoin the act or could order that any act or thing be done so as to prevent the occurrence of the offence. However, if that single, discrete act had already taken place, there would be no scope for the application of subsection 311(1) because there would be no act to restrain and no way to prevent the commission of an offence after the fact.

[71]What then of the case where a past or present act has a present and ongoing effect? For example, if the ASR at issue now constitutes, in whole or in part, PCB material can prohibitory or mandatory injunctive relief be granted?

[72]Environment Canada argues that in such a situation a court may (pursuant to paragraph 311(1)(a) of the Act) by injunction require a respondent to discontinue acting in a manner that constitutes or is directed toward the commission of an offence. The ordinary meaning of the words used in paragraph 311(1)(a) support that submission in the following manner.

[73]The offence at issue in this case is the alleged failure to store PCB material in conformance with the Regulations. This is an offence pursuant to paragraph 272(1)(a) of the Act, which makes it an offence to contravene a provision of this Act or the regulations. Paragraph 311(1)(a) would therefore apply where, to paraphrase the language of the provision, it appears to the court that a person has stored PCB material in contravention of the Regulations. In that circumstance, the court could order that the respondents refrain from storing PCB material in contravention of the Regulations because this non-compliant form of storage would constitute the commission of an offence. While the English version is not explicit with respect to an ongoing situation, the French version of paragraph 311(1)(a) expressly provides that one may be ordered to abstain from all acts capable of continuing or perpetuating an offence. Thus, the use of the phrase "de s'abstenir de tout acte susceptible [. . .] de perpétuer le fait".

[74]In this type of situation, the court could as well order pursuant to paragraph 311(1)(b) that the material be stored in accordance with the Regulations if satisfied that this would "prevent the commission of an offence".

[75]In this connection, Environment Canada argues that the offence of improper storage of PCB materials is an offence of a continuous nature as contemplated by section 276 of the Act. Section 276 provides:

276. Where an offence under this Act is committed or continued on more than one day, the person who committed the offence is liable to be convicted for a separate offence for each day on which it is committed or continued.

[76]It follows in the present case, in the submission of Environment Canada, that while any offence of failing to comply with the Regulations occurred before the proceeding was commenced, it continues to occur. So long as PCB material remains stored in a manner inconsistent with the Regulations, Environmental Canada argues that the offence continues and a fresh, separate and discrete offence occurs each day. Thus, a mandatory injunction may issue requiring PCB material to be stored as stipulated in the Regulations in order to prevent the commission of a fresh, separate offence.

[77]In response, the respondents argue that section 276 of the Act does not in its language provide that the continuation of an offence is itself a separate offence. Rather, the section provides that "the person who committed the offence is liable to be convicted for a separate offence for each day on which it is committed or continued". This is said to allow for the multiplication of penalties and for the continuation of any limitation period. The wording used in section 276 is contrasted by the respondents with section 78.1 of the Fisheries Act, R.S.C., 1985, c. F-14 [as enacted by S.C. 1991, c. 1, s. 24]. The environmental provisions contained in the Fisheries Act are noted by the respondents to be administered by Environment Canada. Section 78.1 of the Fisheries Act provides:

78.1 Where any contravention of this Act or the regulations is committed or continued on more than one day, it constitutes a separate offence for each day on which the contravention is committed or continued.

[78]The Fisheries Act pre-dates the Act and therefore could provide support for the respondents' submission that the wording used in section 276 means something other than the continuation of a contravention of the Act constitutes a separate offence for each day it persists. Notwithstanding that submission, section 276 of the Act does expressly state that the continuation of an offence over more than one day renders the offender liable to be convicted for separate offences.

[79]It is at this point helpful to turn to the contextual factors that aid in the interpretation of subsection 311(1) and that specifically should aid in interpreting whether subsection 311(1) permits the issuance of a mandatory injunction in order to remedy an existing situation.

2. The Context

The Scheme of the Act

[80]The Act may be described as being a comprehensive code respecting pollution prevention and the protection of the environment.

[81]Part 2 of the Act deals with public participation in the administration and enforcement of the Act. An individual who is at least 18 years of age and a resident of Canada may request an investigation of an alleged offence under the Act (section 17). As referred to above, should the responsible Minister fail to conduct an investigation, or respond unfavourably, and if there has been significant harm to the environment, then the individual who requested the investigation may proceed with an environmental protection action (section 22). Subsection 22(3) of the Act provides that in such an action the individual may claim any or all of the following relief:

22. (3) . . .

(a) a declaratory order;

(b) an order, including an interlocutory order, requiring the defendant to refrain from doing anything that, in the opinion of the court, may constitute an offence under this Act;

(c) an order, including an interlocutory order, requiring the defendant to do anything that, in the opinion of the court, may prevent the continuation of an offence under this Act;

(d) an order to the parties to negotiate a plan to correct or mitigate the harm to the environment or to human, animal or plant life or health, and to report to the court on the negotiations within a time set by the court; and

(e) any other appropriate relief, including the costs of the action, but not including damages. [Underlining added.]

[82]Of significance is the explicit reference in paragraph 22(3)(c) to an order "requiring the defendant to do anything that . . . may prevent the continuation of an offence" under the Act (underlining added).

[83]Section 39 of the Act, also previously referred to, allows a person who suffers, or is about to suffer, loss or damage as a result of conduct contravening the Act to seek an injunction. Such an injunction may require the contravener to refrain from doing anything that it appears causes or will cause the loss or damage, or may require the contravener to do anything that it appears prevents or will prevent the loss or damage.

[84]Part 10 of the Act deals with the enforcement of the Act and provides extensive enforcement powers. The responsible Minister may designate enforcement officers who have peace officer powers (section 217). An enforcement officer may enter and inspect any place where there are reasonable grounds to believe there might be a substance or activity regulated under the Act (section 218). During the course of an investigation or search, an enforcement officer may issue an Environmental Protection Compliance Order (EPCO) where there are reasonable grounds to believe that any provision of the Act or regulations has been contravened by a person who is continuing the commission of the offence. Section 235 deals with EPCOs and is, in material part, as follows:

235. (1) Whenever, during the course of an inspection or a search, an enforcement officer has reasonable grounds to believe that any provision of this Act or the regulations has been contravened in the circumstances described in subsection (2) by a person who is continuing the commission of the offence, or that any of those provisions will be contravened in the circumstances described in that subsection, the enforcement officer may issue an environmental protection compliance order directing any person described in subsection (3) to take any of the measures referred to in subsection (4) and, where applicable, subsection (5) that are reasonable in the circumstances and consistent with the protection of the environment and public safety, in order to cease or refrain from committing the alleged contravention.

(2) For the purposes of subsection (1), the circumstances in which the alleged contravention has been or will be committed are as follows, namely,

. . .

(b) the possession, storage, use, sale, offering for sale, advertisement or disposal of a substance or product containing a substance;

. . .

(3) Subsection (1) applies to any person who

(a) owns or has the charge, management or control of the substance or any product containing the substance to which the alleged contravention relates or the property on which the substance or product is located; or

(b) causes or contributes to the alleged contravention.

(4) For the purposes of subsection (1), an order in relation to an alleged contravention of any provision of this Act or the regulations may specify that the person to whom the order is directed take any of the following measures:

(a) refrain from doing anything in contravention of this Act or the regulations, or do anything to comply with this Act or the regulations;

(b) stop or shut down any activity, work, undertaking or thing for a specified period;

(c) cease the operation of any activity or any part of a work, undertaking or thing until the enforcement officer is satisfied that the activity, work, undertaking or thing will be operated in accordance with this Act and the regulations;

(d) move any conveyance to another location including, in the case of a ship, move the ship into port or, in the case of an aircraft, land the aircraft;

(e) unload or re-load the contents of any conveyance; and

(f) take any other measure that the enforcement officer considers necessary to facilitate compliance with the order or to protect or restore the environment, including, but not limited to,

(i) maintaining records on any relevant matter,

(ii) reporting periodically to the enforcement officer, and

(iii) submitting to the enforcement officer any information, proposal or plan specified by the enforcement officer setting out any action to be taken by the person with respect to the subject-matter of the order. [Underlining added.]

[85]An EPCO may therefore direct that a person who is continuing the commission of an offence to "do anything to comply with this Act or the regulations".

[86]A person to whom an EPCO is directed shall immediately on receipt of the order comply with it (subsection 238(1)). An EPCO is valid for up to 180 days (subsection 235(7)). The affected person may make representations to the enforcement officer before the order is issued, or seek review of the order by an independant review officer (sections 243-268). The order remains in effect until the review officer otherwise rules. An appeal from that decision lies to the Federal Court. Where a person fails to take any measures specified in an EPCO an enforcement officer may cause those measures to be taken (subsection 239(1)).

[87]The maximum penalty under the Act for an offence is a fine of up to one million dollars per day or up to 5 years' imprisonment (subsections 273(2) and 274(1)). A court can also levy a fine equal to any profits earned as a result of the offence (section 290). Subsection 291(1) of the Act provides that upon conviction for an offence under the Act the court may make additional orders. Subsection 291(1) is as follows:

291. (1) Where an offender has been convicted of an offence under this Act, in addition to any other punishment that may be imposed under this Act, the court may, having regard to the nature of the offence and the circumstances surrounding its commission, make an order having any or all of the following effects:

(a) prohibiting the offender from doing any act or engaging in any activity that may result in the continuation or repetition of the offence;

(b) directing the offender to take any action that the court considers appropriate to remedy or avoid any harm to the environment that results or may result from the act or omission that constituted the offence;

(c) directing the offender to prepare and implement a pollution prevention plan or an environmental emergency plan;

(d) directing the offender to carry out environmental effects monitoring in the manner established by the Minister or directing the offender to pay, in the manner prescribed by the court, an amount for the purposes of environmental effects monitoring;

(e) directing the offender to implement an environmental management system that meets a recognized Canadian or international standard;

(f) directing the offender to have an environmental audit conducted by a person of a class and at the times specified by the court and directing the offender to remedy any deficiencies revealed during the audit;

(g) directing the offender to publish, in the manner directed by the court, the facts relating to the conviction;

(h) directing the offender to notify, at the offender's own cost and in the manner directed by the court, any person aggrieved or affected by the offender's conduct of the facts relating to the conviction;

(i) directing the offender to post any bond or pay any amount of money into court that will ensure compliance with any order made under this section;

(j) directing the offender to submit to the Minister, on application by the Minister made within three years after the date of conviction, any information with respect to the offender's activities that the court considers appropriate and just in the circumstances;

(k) directing the offender to compensate the Minister, in whole or in part, for the cost of any remedial or preventive action taken by or caused to be taken on behalf of the Minister as a result of the act or omission that constituted the offence;

(l) directing the offender to perform community service, subject to any reasonable conditions that may be imposed in the order;

(m) directing that the amount of any fine or other monetary award be allocated, subject to the Criminal Code and any regulations that may be made under section 278, in accordance with any directions of the court that are made on the basis of the harm or risk of harm caused by the commission of the offence;

(n) directing the offender to pay, in the manner prescribed by the court, an amount for the purposes of conducting research into the ecological use and disposal of the substance in respect of which the offence was committed or research relating to the manner of carrying out environmental effects monitoring;

(o) directing the offender to pay, in the manner prescribed by the court, an amount to environmental, health or other groups to assist in their work in the community where the offence was committed;

(p) directing the offender to pay, in the manner prescribed by the court, an amount to an educational institution for scholarships for students enrolled in environmental studies; and

(q) requiring the offender to comply with any other reasonable conditions that the court considers appropriate and just in the circumstances for securing the offender's good conduct and for preventing the offender from repeating the same offence or committing other offences. [Underlining added.]

[88]Relevant are paragraphs 291(1)(a), (b) and (f). Paragraph 291(1)(a) allows a court to prohibit any act that may result in "the continuation" of the offence, paragraph 291(1)(b) allows the court to order that an offender take any action considered by the court appropriate to remedy any harm to the environment resulting from the offence and paragraph 291(1)(f) allows the court to direct an offender to have an environmental audit conducted as prescribed by the court and to further direct the offender to remedy any deficiencies revealed during the audit.

[89]The respondents argue that a review of the legislative scheme contained in the Act reveals that where Parliament intends the Act to be directed to continuing offences it uses express language in that regard. Thus, paragraph 22(3)(c) of the Act authorizes a court to require a defendant to an action to do anything to "prevent the continuation of an offence", subsection 235(1) enables an EPCO to be issued where there are grounds to believe the Act or its regulations have been breached "by a person who is continuing the commission of the offence" and paragraph 291(1)(a) allows a court to prohibit an offender from doing any act that may "result in the continuation . . . of the offence". The absence of explicit reference in the English version of section 311 of the Act to prevention of the "continuation of an offence" is said to reflect Parliament's intent that section 311 not apply in that circumstance.

[90]The respondents also argue, inferentially, that orders issued pursuant to sections 22 and 291 ordering a defendant to do anything that may prevent the continuation of an offence or refrain from any activity that may result in the continuation of an offence are issued following judicial determination that an offence under the Act has occurred. As noted above, on a proceeding under subsection 311(1) of the Act it is not necessary for the Minister to prove that an offence has occurred, but only that it appears that a person has done, is about to do, or is likely to do an act or thing constituting or directed toward the commission of an offence under the Act. The respondents argue, and I accept, that it is to some degree anomalous for the same relief to be available pursuant to subsection 311(1) when it "appears" that an offence has occurred or may occur as is available after conviction of an offence under section 291 of the Act. However, an EPCO may issue ordering someone to refrain from contravening the Act or to comply with the Act simply where an enforcement officer has reasonable grounds to believe that the Act or its regulations have been contravened. While an EPCO is of limited duration, an EPCO may nonetheless direct a person to comply with the regulations and an enforcement officer may cause the measure to be taken. This reflects a legislative intent that sweeping remedial measures may be ordered on less than proof that an offence has occurred.

[91]The anomaly asserted by the respondents does result in the situation that the procedural safeguards which would be available on a prosecution for an offence under the Act can be avoided where the Minister elects to bring proceedings for injunctive relief under subsection 311(1) of the Act. The safeguards available to a person prosecuted for an offence include the right to full and proper disclosure from the Crown, the presumption of innocence and the right to be proven guilty beyond a reasonable doubt. Proceedings under subsection 311(1) of the Act, commenced in this Court by application, carry with them no right to discovery of the Crown, no presumption of innocence and, I have found, a civil standard of proof.

[92]This anomaly and the potential for abuse would be avoided by interpreting section 311 to be prospective and pro-active in nature, operating to maintain the status quo by restraining future acts or directing future acts so as to prevent the commission of an offence, other than one that has occurred and is ongoing. Under this interpretation section 311 would not be available to prevent an offence which has already been committed whether or not it is a continuing offence. In that circumstance, the issuance of an EPCO or the commencement of a prosecution would be appropriate enforcement options.

[93]Such an interpretation would not, the respondents argue, be inconsistent with the objects and intent of the Act.

[94]The objects of the Act may be taken from the preamble to the Act. There, Parliament expressed the commitment of the federal government to, among other things, "pollution prevention as a national goal" and to "implementing the precautionary principle that, where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation". Those principles are said to be consistent with interpreting subsection 311(1) as applying to the prevention of offences and not to the remediation of already existing situations. The contrary interpretation is not necessary in order for there to be effective remedial tools. The provisions of the Act with respect to environmental protection actions, EPCOs and the scope of an order that may be made on conviction for an offence would provide full enforcement options and remedies.

(c) Conclusion with respect to the scope of subsection 311(1) of the Act

[95]The use of inconsistent language in the Act makes it, in my respectful view, more difficult to attribute meaning to section 311 in the case of an existing and continuing situation. The failure to consistently and expressly refer to the prevention of the continuation of an offence and the use of language in section 276 which differs from that found in section 78.1 of the Fisheries Act do provide a basis for the interpretation urged by the respondents.

[96]I am concerned at the potential to use section 311 as an alternate to a prosecution under section 291 and so deprive a respondent of his or her rights to disclosure of the Crown's case, the presumption of innocence, and to proof of the Crown's case beyond a reasonable doubt.

[97]However ultimately, in light of my assessment of the evidence, it is not necessary to reach a final conclusion as to whether a mandatory injunction may issue to prevent the ongoing continuation of an offence where what is sought is the remediation of an already existing, static situation. The language used in paragraph 311(1)(b), when read in conjunction with section 276, is capable of supporting the interpretation that each day the offence continues is a new offence that may be prevented by the issuance of a mandatory injunction. My analysis will proceed on this basis.

Editor's note (replaces paragraphs 98 to 132):

The Court then reviewed the evidence as to whether some or all of the ASR was PCB material, considering first that supporting the application. Dr. Fingas, who holds a Master of Science Degree in Chemistry and a doctorate in Environmental Sciences, deposed in his affidavit that for statistically reliable results it was necessary to test samples from a sufficient number of locations in each ASR cell or pile. An excavating device was used to procure samples at all depths. PCB concentrations at both respondents' facilities were over the limit . His opinion was that the improper storage of this PCB material posed a risk to human, plant and animal health and safety. He disagreed with Dillon's methodology, explaining that by mixing many samples it indicated lower levels of PCB.

David Clark gave an affidavit in opposition to the application. He is a managing partner with Dillon and holds a Master's Degree in environmental engineering. His findings were that the ASR did not contain mean concentration of PCBs over the limit. He had taken three sets o f ASR samples from XPotential's cell 5 in order to test the precision of three field sampling protocols. The one adopted by Environment Canada had the highest variance and was, in Clark's opinion, the least appropriate of the three. He explained why the pr otocol utilized in preparation of the Dillon Report was to be preferred. Jan Merks, an expert in statistical analysis and sampling design, was of opinion that statistical analysis of the data in the departmental reports did not reveal that any cell or pile of ASR had a mean PCB concentration that statistically differed from the 50 ppm regulatory threshold. Dillon's use of stratified systematic sampling was the most appropriate methodology for sampling material such as the ASR in question. It allows for a mo re rigorous statistical analysis of the data generated by the sampling. In Merks' opinion, the 1999 Environment Canada Report was mistaken in indicating that procedures analogous to those recommended by the United States Environmental Protection Agency had been followed. Other expert witnesses explained why the Departmental findings were unreliable. Dr. Donald Davies, a toxicologist, had attended at the General Scrap site to prepare a preliminary health and environmental risk assessment. His conclusion was that the PCBs were not such as to constitute a risk to the environment, the general public, employees, visitors or area wildlife. He was of that opinion regardless of whether the Dillon or the departmental concentration level findings be accepted.

(c) Analysis of the Evidence

[133]In oral argument counsel for the applicant observed that having read the materials filed by the parties it appears that there are two different cases before the Court, reflecting two completely different views on a common set of facts. This is very much the case.

[134]In order for the applicant to succeed in this application Environment Canada must establish, on a balance of probabilities, that it appears that the ASR contains PCB material in a sufficient quantity that the Regulations require it to be labelled and stored in a particular fashion.

[135]The analysis of the evidence logically begins with what is not in dispute. That is:

1. For the Regulations to apply the ASR must be "PCB material". This requires that the ASR be a "PCB solid" or "PCB substance", as those terms are defined in the Regulations [section 2]. This in turn requires that the ASR contain more than 50 mg of PCBs per kilogram (or more than 50 ppm), and there must be 100 kg or more of the PCB solid or substance.

2. Neither the Act nor the Regulations prescribe any particular sampling strategy or methodology.

3. In the present context a sampling strategy is the process which determines how many individual samples will be taken from each ASR cell or pile, and the locations at which they will be taken. Based on the analysis of those samples, inferences can be drawn about the ASR cell or pile as a whole, or about the other non-sampled portions of the ASR cell or pile. What is at issue is what is contained in the ASR which has not been analysed.

4. Environment Canada does not take issue with the individual analytical results which were obtained as a result of the respondents' sampling program, as reported by Dillon. Environment Canada takes issue with the respondents' interpretation and analysis of those results.

5. The respondents take issue with the individual analytical results obtained by Environment Canada and with the analysis and interpretation of those results by Environment Canada.

6. The central dispute between the parties is whether the average of an entire cell or pile, or smaller individual areas within the pile or cell referred to as hot spots should be used to determine whether there is 100 kg of ASR with a PCB concentration above 50 ppm.

Editor's Note (replaces paragraphs 136 to 176):

Three reasons had been given by respondents's experts as to why the Departmental data ought to be rejected: (1) it was based on an insufficient number of samples and an inappropriate sampling system; (2) the sampling plan was depa rted from, at least in the case of General Scrap's West Pile; and (3) use of an inferior sample selection method.

Under cross-examination, Dr. Fingas confirmed his heavy reliance on a 1992 United States Environmental Protection Agency (EPA) Report in calculating the number of samples needed. The opinion of respondents' witness, Merks, was that the Department's method of stratified random sampling was appropriate for such applications as statistical quality control of consumer products while Dillon's strati fied systematic sampling protocol was more precise for bulk materials. It was noteworthy that Merks was not cross-examined on this issue. Dr. Fingas acknowledged that, while the 1993 EPA Report on sampling with respect to scrap metal shredders recommended the taking of 20 samples from each pile, he had taken far fewer samples than that. He relied upon the 1992 EPA Report which concerns solid waste and not ASR. The Court was convinced that use of an appropriate sampling plan was of crucial importance in evaluating the PCB content of ASR. As noted in the 1992 EPA Report relied upon by Dr. Fingas "analytical data generated by a scientifically defective sampling plan have limited utility, particularly in the case of regulatory proceedings". On the question of th e more appropriate sampling plan, the evidence of Merks was preferred over that given by Dr. Fingas in view of the former's recognized expertise. He has written a text on this subject and been qualified as an expert witness in numerous court and administra tive proceedings.

Applicant conceded that it departed from its own sampling plan in the case of the West Pile, from which only surface samples were taken, using a shovel, from a small portion. Its plan contemplated use of a back-hoe to obtain samples from randomly selected locations and varying depths. The idea was that each sample be "representative of a slice through the entire pile". The departure was necessitated because scrap metal had been placed on top of the pile rendering parts of i t inaccessible. In the result, the accuracy of the Departmental findings regarding the West Pile had to be discounted.

The next question was whether the Department had employed an inferior sample selection method. Both sides agreed that it was important that the primary increment be homogenized to the greatest extent possible. Merks' evidence was that respondents' use of a machine called a riffle splitter carefully homogenized the primary samples while the Departmental method homogenized samples in a hapha zard manner. Witnesses Clark and Bertram agreed that the Departmental method was less reliable. Their opinion evidence was not shaken upon cross-examination. The 1992 EPA Report explained why a haphazardly selected sample was not a suitable substitute for a randomly selected sample. Under the former method, the person collecting the sample might consciously or subconsciously favour the selection of certain units of the population thereby causing the sample to be unrepresentative. Here, the Departmental method resulted in collecting finer material from the bottom of the pit which has higher PCB levels. The Court was concerned that the Departmental method would result in higher PCB levels being reported. According to applicant, the Dillon method serves to conceal the true character of the material contained in a cell and that use of the interleaving riffle split protocol artificially produces the lowest possible result. Yet applicant chose not to cross-examine Merks--the one who prescribed the interleaving proto col. The 1992 EPA Report stressed the importance of collecting and analysing a large number of composite samples; there was no evidence that Dillon failed to comply with that recommendation. The Court preferred the evidence of Merks, that compositing samples through interleaving was an appropriate procedure. The Court was not convinced that it was adopted to artificially yield the lowest possible PCB levels.

[177]To summarize my conclusions with respect to the validity of the Environment Canada data, I conclude that:

1. The sampling plan implemented by Dillon is preferable to that implemented by Environment Canada because of Dillon's use of stratified systematic sampling and because of the greater number of samples it took.

2. Environment Canada departed from its sampling plan with respect to the West Pile.

3. Dillon's method of sample selection was superior in that samples were carefully homogenized with the riffle splitter and were randomly and objectively selected.

4. It was appropriate to composite samples for analysis.

[178]I turn now to consider the use which can be made of the individual test results, particularly those obtained by Dillon.

[178]J'aborde maintenant la question de l'utilisation qui peut être faite des résultats des tests individuels, en particulier ceux obtenus par Dillon.

Editor's Note (replaces paragraphs 179 to 193):

Respondents submitted that the individual sample results are no basis for conclusions as to the characteristics of a given volume of ASR. Clark's evidence was that it could not be assumed from the individual test results that PCBs were uniformly distributed within each two-litre sample; they might be contained in a very small portion thereof. Sampling error arises due to the fact that not all of the material in the primary sample is analysed and there is thus variability from one sample to another. The Court preferred the evidence of respondents' expert witnesses to that of Dr. Fingas as to the use which may be made of individual sample results. Applicant's premise, that it is undisputed that the analytical results reveal the content of each two-litre sample, had to be rejected. I t having been demonstrated that samples taken from the same primary sample can yield different analytical results, one result from a primary sample cannot logically be extended to a larger area such as the material in a 20-litre back-hoe bucket, or the entire mass of a hole. Dr. Fingas admitted that sampling and measurement errors are inherent in dealing with ASR because of its heterogeneous nature and that different results might be obtained from samples taken just two feet apart. EPA's authoritative 1992 Report states that "the term `representative sample' can be misleading unless one is dealing with a homogeneous waste from which one sample can represent the whole population". The conclusion reached by EPA was that it is best to consider a representative data base and that danger lies in placing reliance upon one sample.

3. The Use of Statistical Analysis

[194]The nub of the dispute between the parties is characterized by Environment Canada as being whether the average of an entire cell or pile or of smaller individual areas within the pile or cell (known as hot spots) should be used to determine whether there is 100 kg of ASR with a PCB concentration of 50 ppm or more.

[195]Environment Canada takes the position that statistical inferences (the applicability of the mean, standard deviation and confidence intervals for entire cells and piles) are irrelevant to the issue of compliance with the Regulations.

[196]The respondents, however, take the position that the relevant question is whether there is PCB material. This is stated to be essentially "an exercise in hypothesis testing". In order to determine whether particular ASR is PCB material the respondents' experts developed a sampling and analytical program and determined that the appropriate approach in order to characterize the ASR was by identifying each entire pile and cell at issue as a sampling unit. This approach is said to be consistent with the 1992 EPA Report.

[197]Environment Canada relies upon the evidence of Dr. Fingas. He testified on cross-examination that:

(i) If one looks at the literature, the distribution of the PCBs in the ASR is not in a normal or logged normal or other known distribution. It is a very random distribution. Therefore, one should not by any form of science use statistics on that type of data.

(ii) It is well-known scientifically that it is inappropriate to apply statistical methods to non normal data.

(iii) Notwithstanding the reference to statistical applications in the 1992 and 1993 EPA Reports in order to analyse sample data, those statistical applications could not be made to ASR.

(iv) Dr. Fingas also took issue with the following statement from the 1993 EPA Report (the field manual to provide sampling guidance for scrap metal shredders):

Because of the sampling error and laboratory error, it is not possible to determine exactly the concentration of toxic substances. However, by using the methods in this section, you will be able to make statements such as, "As a result of our study, we are 95% certain that the concentration of PCBs in this pile of stored fluff is between 40 and 100 ppm".

The basis for Dr. Fingas' disagreement with this statement was his view that statistics could not be applied to material that is not normally distributed.

[198]In addition to relying upon the evidence of Dr. Fingas, Environment Canada argues that the language of the Regulations does not support the use of averages. In material part, the Regulations provide:

3. (1) Subject to subsections (2), (4) and (5), these Regulations apply in respect of any of the following PCB material that is not being used daily:

(a) PCB liquids in an amount of 100 L or more;

(b) PCB solids or PCB substances in an amount of 100 kg or more;

. . .

(3) For the purposes of subsection (1), the amount of PCBs, PCB liquids, PCB solids or PCB substances, as the case may be, shall be considered to be the following:

(a) in the case of a person who owns, controls or possesses PCB material that is in or on a property or on a parcel of land, the aggregate of all amounts of PCBs, PCB liquids, PCB solids or PCB substances, as the case may be, owned, controlled or possessed by that person

(i) in or on the property,

(ii) on the parcel of land, including the parcel of land on which the property referred to in subparagraph (i) is located,

(iii) on any parcel of land adjoining the land referred to in subparagraph (ii), and

(iv) within 100 m of any point situated on the outer limits of the land referred to in subparagraph (ii) and of the adjoining land referred to in subparagraph (iii); and

(b) in the case of a person who owns or manages a property in or on which PCB material is located or a parcel of land on which PCB material is located, the aggregate of all amounts of PCBs, PCB liquids, PCB solids or PCB substances, as the case may be, located

(i) in or on that property,

(ii) on that parcel of land,

(iii) on any parcel of land owned or managed by that person adjoining the land referred to in subparagraph (ii), and

(iv) within 100 m of any point situated on the outer limits of the land referred to in subparagraph (ii) and of the adjoining land referred to in subparagraph (iii). [Underlining added.]

Environment Canada argues that the respondents' reliance upon an "average" as the basis for determining whether the PCB Regulations apply, contradicts the word "aggregate" used in the Regulations. This is said to be so because the word "aggregate" in the context of the PCB Regulations is effectively the opposite of the word "average". To aggregate is to collect only similar units together, where as to average is to collect all dissimilar units together.

[199]The respondents rely upon the affidavit and expert report of Mr. Merks whose report was based upon statistical analysis of the test results. The respondents argue that statistical methods and applications are crucial to proper interpretation of the sampling data.

[200]Dealing first with the applicant's argument flowing from the use of the word "aggregate" in the Regulations, I disagree, respectfully, with the submission that the use of the word "aggregate" is inconsistent with the use of statistical averages. I accept the submission of the respondents that what is first required is that the suspect material be categorized. If some or all is categorized to be PCB material, then one must consider if the amount of PCB material when added up equals 100 kg or more.

[201]As to the exercise of characterizing suspect material, the Act is express in paragraph 2(1)(i) that in the administration of the Act the Government of Canada is to apply science and technology to identify and resolve environmental problems. Dr. Fingas was express in his affidavit that his task was to implement a program so "the results would scientifically determine" whether the ASR in question was PCB material. The proper characterization of ASR is therefore a question to be answered by science.

[202]Before one considers the conflicting evidence of Dr. Fingas and Mr. Merks it is necessary to deal with the argument that the opinion of Mr. Merks is irrelevant because his evidence relates to the calculation of the average concentration of PCBs in each cell or pile. I am unable to conclude that when dealing with a heterogeneous substance such as ASR the mean or average PCB concentration in each pile is irrelevant for the following reasons.

[203]First, Dr. Fingas swore that he was required to design and implement a methodology that would provide results that would be "representative of each entire cell". This is inconsistent with the position that Environment Canada now takes that what is relevant is smaller individual areas within each pile or cell.

[204]Second, in the 1997 and 1999 Environment Canada Reports, Dr. Fingas' results were expressed as an average for each entire cell or pile. Thus, for the 1997 and 1999 reports, the results were:

Average     Average

(1997 Report)     (1999 Report)

General Scrap

East pile             33.4 ppm                     59.7 ppm

Central pile         35.9 ppm                     41.2 ppm

West pile             85.4 ppm                    54.6 ppm

XPotential

Cell                5 61.3 ppm                    50.7 ppm

Cell                 6 96.7 ppm                    42.0 ppm

On the basis of the 1999 Environment Canada Report, Dr. Fingas swore that "at the minimum, the east and west ASR cells at General Scrap, and both storage cells 4 and 5 and the drying cell at XPotential have average PCB concentrations in excess of 50 ppm, and are therefore properly considered PCB Material" (underlining added).

[205]In addition to Dr. Fingas' evidence, the affidavit of Shannon Kurbis, the Environment Canada enforcement officer, speaks to the use of average concentrations. At paragraphs 74 and 76 she states:

The Emergencies Science 1999 Report indicates that two ASR piles at General Scrap and three of the four storage areas at XPotential had average PCB concentrations that exceeded 50 ppm.

. . .

The average results taken from the Emergencies Science 1999 Report reflect the minimum PCB concentration. The letter accompanying the Emergencies Science 1999 Report states that General Scrap should take immediate steps to ensure that all PCB Material is stored in compliance with the PCB Regulations.

[206]This use by Environment Canada's own expert and enforcement officer of the average concentration of each entire cell or pile in order to characterize whether the cell or pile is PCB material belies this argument now advanced by Environment Canada that the average concentration is irrelevant.

[207]Finally, as Ms. Kurbis' affidavit shows, Environment Canada determined whether or not to bring enforcement proceedings on the basis of the average pile and cell concentrations set out above. Thus in February of 1998, Environment Canada advised the respondents that the General Scrap West Pile, and cells 5 and 6 at the XPotential site contained quantities of PCB in excess of the regulatory limit. On the basis of the 1999 Environment Canada Report the applicant asserts that both the East and West Pile at General Scrap and the drying cell and cells 4 and 5 at the XPotential site contain PCB material.

[208]In sum, Environment Canada (through Dr. Fingas) designed a sampling plan to provide results representative of the whole of each pile or cell and calculated the average concentration per pile and cell, then used the average concentrations as a basis for enforcement proceedings, and adduced evidence in this proceeding in terms of these average concentrations. I therefore do not now accept Environment Canada's submission that the average concentration per cell or pile is irrelevant.

[209]Having determined that average concentrations are relevant, what then of the conflicting opinion of Dr. Fingas and Mr. Merks as to the appropriateness of applying a statistical analysis?

[210]Mr. Merks was not cross-examined on his opinion, Dr. Fingas was. The following extract from Dr. Fingas' cross-examination is, in my view, telling:

393.     Q And you keep coming back to that and we've had a lot of questions around that. So you're saying the application of statistics just doesn't apply with this type of material.

A That's correct.

394.     Q And what's your authoritative source for that, other than yourself? Do you have a source that you can point me to that says statistical applications don't apply with ASR?

A Yes. Every textbook says one should not use normal statistics or statistics of that type on heterogenous non normal distributions.

395.     Q ASR, do you have--in any publications, because I've only got one and the one I've got says you should do it. So you show me the publication that says you can't do statistical application with ASR to determine whether it meets a regulatory threshold, because that's the issue we have before the Court today. Where's your authority? I'd like to see it.

A Well I have the authority in the sense that it's authority well known scientific principal one does not do normal statistics on non normal samples. This is you know, the first page of statistic textbooks.

[211]Unfortunately no specific texts or articles were identified by Dr. Fingas nor did he demonstrate that these were non normal samples. The reference by counsel in the extract quoted above to the publication dealing with ASR was to the 1992 EPA Report which specifically dealt with ASR and which stated that because of sampling and analytical errors "we must use statistical analysis" to obtain confidence intervals and levels of confidence.

[212]As noted, the 1992 and 1993 EPA reports deal extensively with the use of statistics. Environment Canada, however, submits that there is no evidence before the Court that the EPA reports are appropriately considered "best practices" for ASR sampling. Therefore, Environment Canada says that they ought not to be used to support or challenge the appropriateness of any sampling plan.

[213]My difficulty with this submission stems from the fact that the 1999 Environment Canada Report specifically lists both the 1992 and 1993 reports as references. Dr. Fingas agreed in cross-examination that the EPA is a recognized, reputable environmental regulatory authority, and stated that he specifically referenced reports in his 1999 Environment Canada Report that he used very heavily in his preparation. Dr. Fingas sent his sampling plan to the EPA for review where a statistician looked at it. This was presumably done because Dr. Fingas had no prior experience with the sampling and characterization of ASR.

[214]Further, by letter dated September 11,1997 Environment Canada responded to questions put forward on the respondents' behalf and stated that "[i]n response to your questions regarding sampling and analysis methodology, Environment Canada will be following standard sampling procedures as outlined in Test Methods for Evaluating Solid Waste, Chapter 9, Sampling Plan, Environmental Protection Agency, 1992. Analysis of all samples will be carried out according to the test methods specified in the Storage of PCB Material Regulations," as more specifically defined in the letter. The document referenced as being Test Methods for Evaluating Solid Waste, Physical/Chemical Methods, Chapter 9, "Sampling Plan" is the document which is described in these reasons as the 1992 EPA Report.

[215]In light of this use of the 1992 EPA Report and Dr. Fingas' reliance, in part, upon the EPA, I am persuaded that it is relevant to consider what the 1992 EPA Report says about the use of statistics.

[216]The following extracts from that Report are relevant:

This section of the manual addresses the development and implementation of a scientifically credible sampling plan for a solid waste and the documentation of the chain of custody for such a plan. The information presented in this section is relevant to the sampling of any solid waste, which has been defined by the EPA in its regulations for the identification and listing of hazardous wastes to include solid, semisolid, liquid, and contained gaseous materials. However, the physical and chemical diversity of those materials, as well as the dissimilarity of storage facilities (lagoons, open piles, tanks, drums, etc.) and sampling equipment associated with them, preclude a detailed consideration of any specific sampling plan. Consequently, because the burden of responsibility for developing a technically sound sampling plan rests with the waste producer, it is advisable that he/she seek competent advice before designing a plan. This is particularly true in the early developmental stages of a sampling plan, at which time at least a basic understanding of applied statistics is required. Applied statistics is the science of employing techniques that allow the uncertainty of inductive inferences (general conclusions based on partial knowledge) to be evaluated.

9.1.1 Development of Appropriate Sampling Plans

An appropriate sampling plan for a solid waste must be responsive to both regulatory and scientific objectives. Once those objectives have been clearly identified, a suitable sampling strategy, predicated upon fundamental statistical concepts, can be developed. The statistical terminology associated with those concepts is reviewed in Table 9-1; Student's "t" values for use in the statistics of Table 9-1 appear in Table 9-2.

. . .

9.2.2.1 Statistics

A discussion of waste sampling often leads to a discussion of statistics. The goals of waste sampling and statistics are identical, i.e., to make inferences about a parent population based upon the information contained in a sample.

Thus it is not surprising that waste sampling relies heavily upon the highly developed science of statistics and that a sampling/analytical effort usually contains the same elements as does a statistical experiment. [Underlining added.]

[217]The evidence of Dr. Fingas and Mr. Merks as to the appropriateness of statistical analysis are opposed. Mr. Merks was not cross-examined on his opinion, which opinion (for the reasons set out above) I have found to be relevant. The 1992 EPA Report which Dr. Fingas states he relied upon contemplates the use of statistics for the purpose of making inferences about a parent population based upon the information generated from a sample. Shannon Kurbis advised the respondents that Environment Canada would be following the standard sampling procedures outlined in the 1992 EPA Report. Dr. Fingas did not point to any specific article or book that would provide support for his view that statistics could not be applied to ASR, nor did he give evidence that he did any calculation to determine whether there was in fact a normal distribution.

[218]For these reasons, I find the opinion of Dr. Fingas to be less persuasive on this point than the opinion of Mr. Merks. I therefore accept the opinion of Mr. Merks that a statistical analysis is relevant, and for the reasons given by the respondents' witnesses and in the 1992 EPA Report I also accept that a statistical analysis is required in order to interpret properly the data.

[219]Having concluded on the evidence adduced in this application that a statistical analysis is required in order to interpret properly the data, it follows that I accept the opinion of Mr. Merks that the mean PCB concentration in each of the sampling units is lower that the regulatory threshold and that the ASR does not constitute PCB material. In accepting Mr. Merks' opinion I have regard to the fact that Environment Canada did not challenge any of the primary data he relied upon, and did not challenge the propriety of his actual statistical analysis. Rather, Environment Canada challenged the appropriateness of the use at all of statistical applications.

[220]In so concluding, I have considered the submission of counsel for the applicant that the statistical analysis is an exercise performed by "mathemagicians" and its "poof and all the high numbers are gone". While an evocative image, logically all of the low numbers vanish as well. I accept on the evidence that recourse to the mean concentrations is appropriate in view of the error that is inherent in individual sample results.

[221]In this regard, I think that it is of some assistance to compare the results Dr. Fingas obtained in his 1997 and 1999 reports as set out above at paragraph 204. The sampling plan and methodology did not differ significantly between the two reports. While the analytical chemical protocols differed (in that 1/RM/3 was used in 1999 and 1/RM/31 was used in the 1997 report), Dr. Fingas testified that some studies showed that there was no difference in qualification between using the two different analytical protocols. The results therefore may properly be compared.

[222]Comparing the results, in 1997 Environment Canada determined the areas containing PCB material to be the West Pile at General Scrap and cells 5 and 6 at XPotential. In 1999, the East Pile at General Scrap was said to contain PCB materials, but cell 6 at XPotential did not. In 1997 Environment Canada reported that the East Pile had an average PCB concentration of 33.4 ppm compared with 59.7 ppm in 1999. The West Pile was reported to have a PCB concentration of 85.4 ppm in 1997 and 54.6 ppm in 1999. No new ASR had been added to either pile after around 1994. An Environment Canada publication in evidence states that PCBs do not decompose or biodegrade significantly in the natural environment.

[223]On the basis of logic and common sense, it would seem that a scientifically valid and reliable methodology ought not to produce such disparate results for the East and West Piles.

[224]I have also considered the submissions of the applicant that the EPA Final Rule (1998) (Final Rule) provides support for the Environment Canada approach.

[225]The Final Rule is a statutory instrument, an extract of which was put in evidence, by consent, as a result of questions addressed to Mr. Clark by the Court. No other witness or affidavit referred to the Final Rule.

[226]Mr. Clark advised that under subpart R the Final Rule prescribes procedures for developing representative samples. The 1993 EPA Report is specifically referenced in the Final Rule as one of the methods to be used and followed for determining the PCB concentration of samples. Mr. Clark relied upon the Final Rule with respect to sample size, subsampling and the concept of compositing samples.

[227]Environment Canada argues that there is no reference in the Final Rule to any statistical analysis and so it is persuasive evidence of how analytical results ought not to be applied to PCB contaminated ASR. Environment Canada also asserts that it is informative that the Final Rule makes no mention of the 1993 EPA Report and only mentions the 1992 EPA Report in addressing laboratory protocols. Environment Canada also relies upon portions of subpart N of the Final Rule.

[228]Given the limited use of the Final Rule by Mr. Clark, and the fact that no other witness referred to the document I am not prepared to give any significant weight to the document.

[229]No evidence was adduced as to the applicability of subpart N to the situation at issue and it was not suggested to Mr. Clark that subpart N was applicable. No evidence was adduced as to the interrelationship, if any, between the 1992 and 1993 EPA Reports and what is apparently a statutory instrument.

[230]Further, if in 1998 the EPA departed in a significant manner from views or positions expressed in the 1992 and 1993 EPA reports it is reasonable to infer that Dr. Fingas would have referenced this either in his report of January 1999, or in his affidavit sworn in 2000 in this proceeding, or in his oral evidence. He did not refer at all to the Final Rule, but specifically referenced in his report and his testimony the 1992 and 1993 EPA reports.

[231]One final argument advanced by Environment Canada must be considered. That is its submission that if the appropriate method for determining compliance is the statistical calculation of the average concentration and the confidence intervals for the cell or pile as a whole, the respondents' data establishes that the drying cell and cell 5 at XPotential and the West Pile at General Scrap are PCB materials. This is said to be so because these cells and this pile returned averages which, combined with the statistical confidence intervals, have the upper limit of the confidence interval over 50 ppm. Environment Canada relies upon the following extract from the 1992 EPA Report:

If the upper limit is less than the threshold, the chemical contaminant is not considered to be present in the waste at a hazardous levels; otherwise, the opposite conclusion is drawn.

[232]However, close examination of the relevant portion of the 1992 EPA Report shows that in that report the applicable equation for determining the confidence interval determined an 80% confidence interval. The numbers relied upon by Environment Canada in the respondents' data were determined at an 95% confidence level. If the respondents' data is recalculated at an 80% confidence level (which is the level contemplated by the EPA Report, and which calculation was done in Court) the upper limit of the confidence interval is less than the regulatory threshold. Therefore, the data does not support the contention that the two cells and pile contain or constitute PCB material.

III.     IF SOME OR ALL OF THE ASR IS PCB MATERIAL, WHICH RESPONDENTS ARE IN BREACH OF THE REGULATIONS?

[233]My finding that Environment Canada has failed to establish that some of the ASR is PCB material makes it unnecessary for me to deal with this. However, even if some ASR at the General Scrap site was PCB material, I see no basis in the evidence for any liability on the part of either individual respondent or on the part of Jamel in respect of the General Scrap site.

[234]Mr. Lazareck's evidence was clear and unchallenged that IPSCO now owns 100% of General Scrap, that Jamel provides employee services to General Scrap, but Jacob and Melvin Lazareck are no longer involved in the day-to-day operations of General Scrap. The only evidence of the nature of the employment services provided by Jamel was that the payment of the General Scrap payroll is handled through Jamel.

[235]The obligation imposed by the Regulations with respect to PCB material is placed upon a person who owns, controls or possesses PCB material.

[236]On the evidence none of Jamel, Melvin Lazareck or Jacob Lazareck own, control or possess PCB material at the General Scrap site.

IV.     CONCLUSION, ORDER AND COSTS

[237]In view of my findings on the evidence, I see no reason to consider whether in the ultimate exercise of the Court's discretion an injunction should issue.

[238]For the reasons given, the application for injunctive relief is dismissed. It follows, and the parties agree, that the interim consent order should be set aside.

[239]As requested by counsel the issue of costs is reserved. Before January 31, 2004 counsel for the respondents should contact the Registry to request a teleconference for the purpose of discussing how the outstanding issue of costs is to be dealt with.

ORDER

[240]IT IS HEREBY ORDERED THAT:

1. The application for injunctive relief is dismissed.

2. The interim consent order issued in this proceeding by Madam Justice Heneghan is set aside.

3. The issue of costs is reserved for further submissions.