Canada: Syncrude Sentenced For Waterfowl Fatalities

In April 2008, a late spring snowstorm resulted in the diversion of ducks from their flyway to a tailings pond (Aurora Pond) near Fort McMurray, Alberta, operated by Syncrude Canada Ltd. (Syncrude). The ducks landed on Aurora Pond and were killed by the toxicity of the pond. Syncrude was charged with two offences related to the deaths of 1,606 waterfowl: failing to store a hazardous substance in a manner that ensured that it did not come into contact with any animals, contrary to s. 155 of the provincial Environmental Protection and Enhancement Act (Alberta) (EPEA); and, depositing a substance harmful to migratory birds in an area frequented by migratory birds, contrary to s. 5.1(1) of the federal Migratory Birds Convention Act (Canada) (MBCA), a charge usually used to regulate bird hunting.

Over the course of a nine week trial, the Crown argued that migratory birds use the Aurora Pond every year, which is the reason why Syncrude typically installs sound cannons to deter birds from landing on Aurora Pond. Syncrude stated that the storm prevented it from installing these cannons.

Syncrude further argued that the charges brought against it were inappropriate as environmental legislation generally prohibits hazardous substances from being released into the environment. However, there was no release in these circumstances because the hazardous substances (mainly bitumen) were contained within the Aurora Pond. Syncrude also argued that the Aurora Pond was licensed by the Alberta Government and as a result the provincial Government authorized the Aurora Pond to be used to hold tailings, the hazardous substance involved in the offences. Finally, Syncrude contended that the Aurora Pond was not a natural nesting area for migratory birds and therefore could not fall within the purview of the MBCA.

The due diligence defence figured prominently. It was Syncrude's primary defence, however, Syncrude was unsuccessful in establishing due diligence. Provincial Court Judge Ken Tjosvold found the hazardous nature of the Aurora Pond foreseeable, and that Syncrude had not taken sufficient steps to ensure that birds would not be harmed. The Court found that Syncrude had reduced its deterrence measures and staffing with respect to bird protection and that there were reasonable legal alternatives to the measures employed by Syncrude that would have met the criteria of the due diligence defence.

The conviction decision was issued by the Alberta Provincial Court on June 25, 2010. Syncrude was found guilty pursuant to both the provincial and federal charges, with a sentencing hearing to follow. Counsel for Syncrude indicated that Syncrude intended to appeal the decision. However, Syncrude then changed counsel and commenced negotiations on a sentencing proposal. On October 22, 2010, the Alberta Provincial Court made a sentencing order accepting the arrangements struck between Syncrude and the Crown under which Syncrude agreed to a total penalty of $3,000,000 (the Sentence).

The Sentence includes both fines and additional penalties. The Crown and Syncrude negotiated the Sentence, taking into consideration s. 16 of the MBCA and s. 234 of the EPEA. These "creative sentencing" provisions authorize penalties in addition to the fines set out in these statutes. Typically, the additional penalties are used to fund education and environmental protection programs. A sentencing order issued pursuant to either of these provisions will consider the nature of the offence and the circumstances surrounding its commission to determine how the additional penalties may be directed consistent with the purpose of the statutes.

Syncrude was sentenced to the maximum fine available under the MBCA charge ($300,000 on summary conviction) and the maximum fine under the EPEA ($500,000), for a total of $800,000, of which $250,000 of the EPEA penalty will be applied towards the creation of a program for bird protection and monitoring, integrated with aboriginal training, at Keyano College in Fort McMurray, Alberta.

The additional penalties under the MBCA and EPEA totalled $2,200,000 to be applied to environmental projects: $1,300,000 to the University of Alberta for funding the Research on Avian Protection Project; and $900,000 to the Alberta Conservation Association to acquire land for the Golden Ranches Waterfowl Habitat Project. All of the projects include monitoring and accountability measures.

The Court did not issue reasons analyzing the proposal and the Sentence. The Court accepted the joint submission as sufficiently addressing the applicable sentencing principles. Accordingly, the Sentence may have less precedential value in future application to other cases however it demonstrates that a Court may apply the maximum fine in appropriate circumstances as well as further penalties given consideration of the nature and the surrounding circumstances of the offence.

This case demonstrates how important it is to exercise due diligence and take all reasonable precautions to protect wildlife from foreseeable environmental hazards created by business operations. Employing adequate preventive measures during the course of operations should ensure that a due diligence defence is available if similar charges are prosecuted.

It is important to note that historically charges have only been laid in similar circumstances pursuant to provincial authority. As the Crown was successful in also prosecuting the federal MBCA charge, there is now a heightened possibility of both federal and provincial charges being laid in environmental matters in the future for a single incident. Moreover, the Sentence indicates that maximum fines, and additional further penalties, may be applied pursuant to both federal and provincial environmental legislation.

The interesting legal issues raised by multiple environmental convictions (federal and provincial) for the same incident were expected to figure prominently on the appeal by Syncrude. However, the negotiated Sentence means no appeal will proceed.

Finally, it should be noted that Syncrude was charged prior to the new enforcement provisions for the MBCA, pursuant to federal Bill C-16 which received Royal Assent on June 18, 2009, but which are not yet in force. These much tougher enforcement provisions will see a "large company" (defined as $5,000,000 in annual gross revenue) facing a potential maximum fine under the MBCA of $4,000,000 (summary conviction) to $6,000,000 (indictable offence), with a minimum fine of $100,000 (summary) to $500,000 (indictment), as well as the additional penalties available under the creative sentencing provisions in the MBCA and used with Syncrude.

For further information or any related inquiries pertaining to environmental law, we invite you to contact the Borden Ladner Gervais Environmental Law Focus Group (the Group). Our national Group draws upon the extensive experience of its members so as to respond to the increasing number of individuals and corporations which need to take into consideration both the business and legal implications associated with environmental issues. The members of our Group have wide-ranging experience and expertise in this area. The Group is committed to providing responsive, cost effective and specialized services which can help you to take into consideration issues of environmental law.

About BLG

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
McCarthy Tétrault LLP
McCarthy Tétrault LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
McCarthy Tétrault LLP
McCarthy Tétrault LLP
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions