Date: 19980923
Docket: T-344-98
BETWEEN:
IPSCO RECYCLING INC. and GENERAL SCRAP
& CAR SHREDDER LTD., now known as
JAMEL METALS INC., carrying on business as
a partnership under the firm name and style of
GENERAL SCRAP PARTNERSHIP and
XPOTENTIAL PRODUCTS INC.,
Applicants,
- and -
CHRISTINE STEWART (in her capacity as
Minister of Environment) and TERRY YOUMANS
(in his capacity as Head of
Enforcement and Compliance, Manitoba
Division, Environment Canada),
Respondents.
REASONS FOR ORDER AND ORDER
(Delivered from the bench by conference call on
Monday, September 21, 1998)
BLAIS J.
[1] The applicants ask for:
| 1) An order abridging time for the service for this notice of motion and supporting affidavit, granting short leave for the hearing of this motion, and dispensing with the Rules of Procedure requiring the filing of a record by the moving and responding parties prior to the hearing of the motion for a stay contained herein; |
| 2) An order strictly enjoining, prohibiting and restraining Environment Canada and any person acting on its instructions and or on its behalf from entering the applicants" premises for the purpose of sampling and testing certain substances or performing a regulatory inspection pursuant to its powers under section 100 of Canadian Environmental Protection Act ("CEPA") and the Storage of PCB Materials Regulations (the "PCB Regulations") until the matters at issue in the within application for judicial review have been heard and determined by this Honourable Court; |
| 3) An Order for the costs of this motion; and |
| 4) Such further or other relief as this Honourable Court deems just. |
[1] I understand that the applicant"s counsel does not raise and does not ask an order ruling that section 100 of CEPA is ultra vires the Parliament of Canada and therefore of no force and effect.
SERIOUS QUESTION TO BE TRIED
[2] We take for granted that there is a serious question to be tried without deciding it for the moment, as I mentioned earlier.
IRREPARABLE HARM
[3] Regarding the irreparable harm criteria; I totally disagree with the applicant"s approach on that. The reading of section 100 of the CEPA is clear:
| 100.(1) For the purpose of ensuring compliance with this Act and the regulations, an inspector may, subject to subsection (2), at any reasonable time enter and inspect any place if the inspector has reasonable grounds to believe that (a) there can be found in the place a substance to which this Act applies or a product containing such a substance; |
100.(1) Pour l"application de la présente loi et de ses règlements, l"inspecteur peut, sous réserve du paragraphe (2), à toute heure convenable, inspecter un lieu, s"il a des motifs raisonables de croire, selon le cas: (a) qu"il s"y trouve soit une substance visée par la présente loi, soit un produit contenant une telle substance; |
[4] The environment inspectors do not have the obligation to give notice of their inspection. It is the essence of this power that the spot check inspections could be made without any notice to allow inspectors full capacity to investigate.
[5] The fact that there has been another inspection last year is not relevant to the present situation. The inspection taking place today or tomorrow, as mentioned, is a routine inspection, and it should be done in businesses like the applicant"s business. There is no reason to force the Environment inspectors to face or to meet new obligations because this is a new inspection.
[6] The argument that they only have found traces or quantities of a substance to which this Act applies that are less than 50 p.p.m. in the materials located on the applicant"s premises, is an argument to allow them to reinspect.
[7] I cannot agree with applicant"s counsel when he says that the applicant should have the right to:
| ...require the advice of an expert in order to be able to collect sufficient evidence of their own to refute and defend themselves against such charges, they are entitled to be given sufficient time to secure such advice. |
[8] The applicant keeps all its rights under the Charter of Rights and Freedoms (the "Charter") and under the Act to face and to respond any request or allegation that is not supported by evidence and I cannot agree that this inspection would be in violation of section 8 of the Charter.
[9] The applicant will have all opportunity to prepare a defence, if necessary.
BALANCE OF INCONVENIENCE
[10] On the balance of inconvenience, it is clear that if the inspection is not allowed, the respondent will suffer the inconveniences.
[11] I disagree with the applicant"s argument that the applicant will have to move ten thousand tons of materials that are stockpiled over the material that has to be inspected. Doing otherwise it would open the door to anybody to stop inspections or investigations by making more difficult the inspectors" work.
[12] The two parties know that there is:
| A substance to which this Act applies or a product containing such a substance. |
on the applicant"s premises.
[13] The applicant should know that it could be facing other inspections in the future.
[14] It is true that there is no urgency to proceed with this new inspection, but the planned inspection is statutory and reasonable. There is no urgency required pursuant to the Act.
[15] The inspection is simply for the purpose of determining compliance, and I don"t see any reasonable argument to delay the inspection.
[16] With the result of the sampling and subsequent testing, I understand that the inspectors will know if the level is more or less the 50 p.p.m. and if the PCB Regulations on storage should apply or not.
CONCLUSION
[17] Since the two criteria on irreparable harm and balance of inconvenience are not met, it is my conclusion that the motion be dismissed with costs.
Pierre Blais
Judge
OTTAWA, ONTARIO
September 23, 1998