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October 31, 2005

Ontario Court of Appeal Dismisses Obstruction Charge -Leaves Door Open To Charge Spill Reporters

The Court of Appeal recently held that a Provincial Officer cannot demand information by telephone under s. 156 (or s. 92 - spills). Provincial Officer inspection powers must be exercised during a "physical inspection". In this case the MOE Officer telephoned and demanded information. The company refused to supply the information unless an MOE Director asked for it in writing (acting on the advice of the company's lawyer). Rather than do so, MOE laid an obstruction charge. In R. v. Crompton (October 2005) Ontario Court of Appeal.

Issues: spill reporting, inspection, investigation, obstruction. S. 156 inspection powers can only be exercised during a physical inspection, not on the telephone. MOE can charge with obstruction if spill notification does not contain all the elements required under s. 92(1).

Crompton employees reported a spill of 400 litres of cooling liquid to SAC. SAC determined that no action was required and report stated "No adverse effects are anticipated."

Several days later the Provincial Officer phoned an employee and requested a written report showing quantity and quality of material spilled and any action the company had taken to prevent a recurrence. Acting on legal advice the employee refused to provide the written report unless required to do so pursuant to a written demand from an MOE Director under s. 92(3) of the EPA.

The Crown charged the company with obstruction. One of the issues on appeal was whether the Provincial Officer power under s. 156 could only be exercised during a physical attendance to carry out an inspection.

The CA held that the Provincial Officer did not have the authority to compel the company to provide information by means of a telephone request. S. 156 inspection powers contemplate a physical inspection. The Court stated "A physical inspection, by definition, cannot be conducted over the telephone.

The CA also held that s. 92(1) does not authorize a Provincial Officer to demand information. (MOE argued that the authority was implied by the provision).

Since the demand was not authorized, the obstruction charge failed.

In obiter the Court stated that s. 184(4) would support a charge of obstruction against a person who was required to notify MOE of a spill, and whose notification was "deficient as it failed to specify the circumstances or the spill and the action that the respondent intended to take in respect of the spill."