R. v. Twin Mountain Construction Limited

R. v. Twin Mountain Construction Limited Court Supreme Court Date 2004-05-19 Citation 2004 NSSC 101 Docket SK 213070 Judge/Registrar/Adjudicator Gruchy, David W. (Honourable Justice) Document Type Decision Relations Library Sheet - R. v. Twin Mountain Construction Limited - 2004 NSSC 101 - 2004-05-19 - Library Sheet Decision Content IN THE SUPREME COURT OF NOVA SCOTIA Citation: Twin Mountain Construction Limited v. R., 2004 NSSC 101 Date: May 19, 2004 Docket: SK213070 Registry: Kentville Between: Twin Mountain Construction Limited Appellant v. Her Majesty the Queen, in right of the Province of Nova Scotia Respondent Judge: The Honourable Justice David W. Gruchy Heard: April 21, 2004, in Windsor, Nova Scotia Written Decision: May 19, 2004 Counsel: G. Bernard Conway, for the Appellant Richard M. Hartlen, for the Respondent Gruchy, J. : [1] The appellant was charged with an offence under the Environment Act of the Nova Scotia Statutes, 1994-95, specifically that it did: on or about the 14th day of December, 2001, at, or near 106 Chase Road, Berwick, PID #55144570, in the County of Kings, Province of Nova Scotia, did commence or continue the operation of a pit where ground disturbance or excavation was made for the purpose of removing aggregate without the use of explosives without having obtained the required approval contrary to Section 50(2) of the Environment Act. [2] The trial was held on October 9, 2003, and the learned Provincial Court Judge delivered his written decision on November 24, 2003, whereby he found the appellant guilty. As the learned trial judge found the facts to be “largely undisputed”, I now refer to a portion of the decision which sets forth what appears to be some of his findings of fact, and I refer specifically to paras. 2 to 7 of his decision. [2] The facts are largely undisputed. The subject property is located at South Berwick, Nova Scotia, and it is on land owned by David Filmore. Mr. Filmore is a farmer and has a poultry and meat operation nearby. He was interested in developing a portion of his land to erect a storage facility, and as a result contacted the Defendant. The contour of the subject land was steep and presumably difficult to develop. It was described as a “knoll” or large soil deposit. The pine trees located on it were removed some several years beforehand. [3] Mr. Filmore wanted the land levelled and the Defendant agreed to undertake this project. The Defendant was not paid. The only consideration was the Defendant could retain the fill or aggregate that was removed. [4] The subject site is between two and four acres. The Defendant was actively removing the fill for a period of approximately eight months - less than a year - on an almost continuing basis. [5] When the Department of Environment inspector was on site in December 2001, he noticed large trucks which were capable of carrying 30 tonnes of fill. There was also an excavator on the subject site. The Defendant was removing the fill or aggregate and either selling it directly to customers or using it in its own operation or transporting the same to another site five kilometres away where it was either stored or refined, i.e., screened to produce higher grade sand. [6] Mr. Filmore was quite clear that he did not want to “operate a pit” and that his only purpose in allowing the project was to have his land levelled. He appeared to be familiar with the Regulations. Michael Newman was either retained or employed by the Defendant to handle among other things approval and regulatory requirements. He was familiar with the Regulations and Guidelines and was of the opinion that in this situation the “primary purpose” of the excavation was for development and not for the production of fill or aggregate. [7] Both parties agreed that the matter is governed by the Activities Designation Regulations made under the Environment Act and the Nova Scotia Department of Environment Pit and Quarry Guidelines. [3] The learned trial judge then set forth and examined certain of the applicable legislation. In particular, he referred to s-ss. (1) and (2) of s. 50 of the Environment Act which reads: 50 (1) No person shall knowingly commence or continue any activity designated by the regulations as requiring an approval unless that person holds the appropriate approval. (2) No person shall commence or continue any activity designated by the regulations as requiring an approval, unless that person holds the appropriate approval. [I notice that essentially the two subsections are identical with the exception that in s-s. (2) the word “knowingly” is removed.] [4] Section 13 of the Activities Designation Regulations refers to the operation of a pit as follows: 13. The construction, operation or reclamation of ... (e) a pit where a ground disturbance or excavation is made for the purpose of removing aggregate without the use of explosives;... ...is designated as an activity. [5] There are no legislative definitions of the words or phrases “construction, operation or reclamation”, “purpose”, or “aggregate”. [6] The Nova Scotia Department of the Environment prescribed certain Pit and Quarry Guidelines in 1999. Those Guidelines define “pit” as “an excavation made for the purpose of removing aggregate without the use of explosives”. These Guidelines set forth their application as follows: II. Application (1) These guidelines apply to all pit and quarry operations as defined under Division V part 2 (e) and (f) of the Activities Designation Regulations. (2) Notwithstanding subsection II(1), an approval is not required in relation to ... (c) where the primary purpose of aggregate removal is for development and not for aggregate production. [The syntax of that particular sentence leaves a lot to be desired.] [7] The Division V, part 2 (e) and (f) of the Activities Designation Regulations are contained in s. 13 set forth above. There is no definition of the word “development”. [8] I am uncertain of the legislative status or significance of the Guidelines, but whatever that might be, it is clear that the Department relied upon them and the public also accordingly had the same right. [9] The learned trial judge identified the “issue in this proceeding” is whether the “primary purpose” of the aggregate removal is for development or for aggregate production. He concluded that in taking a contextual approach by examining the surrounding circumstances of the aggregate removal, the area excavated, the time involved, and the volume and scale of the activity, the primary purpose was for the production of the aggregate. In this regard, the learned trial judge reached certain conclusions or opinions as follows: [24] Here, in my opinion the real or primary purpose of this pit is to allow for the production of aggregate. Mr. Filmore, in my opinion, only had a vague notion of how he wanted his land developed. He was not paying for the excavation specifically. He had no specific development plans or schedule, particularly as it related to the erection of the building or to the excavation. He had removed the trees years beforehand. It was not clear how and when he was intending to develop the land. It could not be said, in my opinion, that the primary purpose was to develop the land. [25] I am satisfied that the primary purpose was to allow for the production of the removed aggregate or fill. [10] Mr. Filmore expressed his intention in his testimony before the learned trial judge. On direct examination by the crown, Mr. Filmore said: A. Well, this is where the steep hill was in the back, and we logged it off and it was very, very steep, and we needed some storage area and stuff, and that’s where I proposed to locate one of these coverall type buildings, we were investigating. [11] He described to the crown his arrangement with the appellant as follows: Q. What were the arrangements you had with Twin Mountain Construction in terms of what work they would do? A. Their job was to make it level. Q. And what were the terms of your agreement with Mr. Carty or Twin Mountain Construction to make it level? A. To remove – remove the hill. He could have whatever was there. It was of no value to me. Q. And how much did you pay Twin Mountain Construction for this? A. Removing it? Q. Yes. A. Nothing. Q. So you didn’t pay Twin Mountain Construction anything for removing the hill? How would you describe the actual consistency of the land or the dirt that we see connected to this land? A. Basically a sand hill. Q. Anyone from Twin Mountain Construction ever tell you what they did with the material they were taking away? A. Never discussed it, that I recall. Q. Now, did you or Willowdale Farms Incorporated get an approval from the Ministry of Environment for a pit? A. No. Didn’t want a pit. THE COURT: I’m sorry? MR. FILMORE: I didn’t want a pit. I made it very clear when I started that I did not want a pit of any description on my land. BY MR PARKER: Q. And a pit to you, how would you define what a pit is? A. Normally, that is something that’s got a screener in it or mixing, blend it a little bit and things like that. Just, I started from day one that I wouldn’t allow them on the property if it was going to be (inaudible) pit. Q. And that’s how you defined what a pit was? A. Yeah. [12] Essentially, this testimony confirmed a statement which Mr. Filmore prepared in which he said: We wanted the steep hill on our property prepared for development purpose. We found someone, Twin Mountain Construction, who would develop the land for us. Where the sand went when it left my property was not my concern. [13] On cross-examination Mr. Filmore described the primary purpose of the development in the following terms. He said: A. ...And I didn’t want to call it a pit. I wanted to call it what it was. Q. And that was a development? A. Yes. Q. And the primary purpose of this development was for excavation of the land to get rid of this steep hill, isn’t that correct? A. Yeah. Q. So the primary purpose of this actual removal of sand was for the development of your property and not to establish a pit? A. Yeah. Q. The primary ... A. No interest in pits at all. Q. Pardon? A. I have no interest in pits. Q. No. A. And I didn’t have from day one, and I tried to do everything I could to not have (inaudible). [14] He described his primary purpose of this arrangement with the appellant as follows: Q. All right, and isn’t it true, sir, that you and Mr. Carty [the principal of the appellant] reviewed that, those guidelines, and you both felt that the primary purpose of this removal was not for a pit but for to remove the steep hill so that you could expand your mink operation? A. No. Q. That’s not true? A. No, not – we were preparing the piece of land to make it useful, and the only intent I ever had for it was a coverall storage building. Q. Okay. But – but it was for expansion of your – I shouldn’t have said mink operation, but it was for expansion of your operation, your farming operation? A. Right. [15] On re-direct examination by the crown, Mr. Filmore confirmed his purpose as follows: Q. So when My Friend asked you about your purpose, your purpose was to remove the hill, correct? A. Yes. Q. As for Twin Mountain Construction’s purpose, you can’t say that? A. I don’t understand. Q. Your purpose – when My Friend was asking the question he was merging different purposes together here. Your purpose, I take it, was you wanted the hill removed, correct? A. No, I – what I wanted to do is build one of these coverall buildings there for storage, and I needed that piece of ground to do it on. That’s basically it. Q. But you don’t know what Twin Mountain Construction’s purpose was? A. I mean, I could guess, but I don’t really know. [16] The learned trial judge said that Mr. Filmore had no specific schedule for the creation of a building. I respectfully disagree that he only had a vague notion of how he wanted the land developed. In the absence of an adverse finding of credibility with respect to certain crucial facts, it seems from Mr. Filmore’s testimony that he had a clear intention to develop his land for the purpose of putting a coverall building on it. It was certainly not Mr. Filmore’s intention to produce aggregate, while that was clearly the intention of the appellant. Mr. Filmore did not say that he had any particular schedule for the development of the land, but on the other hand he was never asked that question. [17] There were therefore two purposes involved in the activity in question: the development of Filmore’s land in accordance with his intention; and the extraction of aggregate for the appellant’s use. With these two purposes in mind, it is necessary to examine s. 160 of the Environment Act which is as follows: Unless otherwise provided in this Act, no person shall be convicted of an offence under this Act if the person establishes that the person (a) exercised all due diligence to prevent the commission of the offence; or (b) reasonably and honestly believed in the existence of facts that, if true, would render the conduct of that person innocent. [18] The evidence established that the appellant, through its employee Newman, accepted Filmore’s stated intention, and having assumed the development of the land was Filmore’s primary purpose and not aggregate production, concluded that para. II (2)(c) of the Guidelines applied and a permit was not required. The Crown’s position is that to assess an individual’s purpose for the activity is an error and that the “primary purpose” must be examined in relation to the activity in question. With respect, I disagree with that position. The word “purpose” implies a consideration of intention and it was the intention of both Filmore and the appellant to develop a flat piece of land suitable for building. A by-product of that activity was the extraction of aggregate. The activity in question was the aggregate removal, but the underlying purpose was the development of the land to a usable state. [19] I conclude that the underlying purpose - the levelling of the land - was also the primary purpose of the activity and therefore no permit was required. Those conclusions of fact render the appellant innocent. [20] The learned trial judge concluded that the appellant was mistaken about the primary purpose of the aggregate removal and that mistake was not one of fact but of law. With respect, I disagree. A finding of purpose is a finding of fact. If the appellant reasonably and honestly believed that Filmore’s intention or purpose was to level the land, then s. 160 (b) applies. That intention was stated by Filmore in his capacity as a crown witness and was not contradicted by any other evidence. In the circumstances, the statement of intention and purpose was reasonable. The parties had considered the Guidelines and had concluded an approval was not required as the aggregate removal was for development. [21] I am persuaded that the appellant has made out his first ground of appeal. I specifically do not address the matter and ground of due diligence and if forced to do so, would have to express some considerable doubt about that ground. On balance, however, I conclude that the appellant has succeeded in ground 1 of his appeal and I allow the appeal. J.