Canada: Robust Environmental Management System Serves To Fully Absolve Defendant: R v Control Chem Canada Ltd


On March 15, 2016, the Ontario Court of Justice ("OCJ") released its decision in R v Control Chem Canada Ltd.1 The company was charged with five offences pursuant to Ontario's Environmental Protection Act ("EPA") and the Ontario Water Resources Act (OWRA). The charges arose from the independent actions of the company's employee at the time.

Contrary to the company's environmental management system, the employee drained the liquid contents of four large totes to an outdoor storm sewer catch basin at the company's facility. The Court found that the discharged liquid caused the nearby creek to turn milky white and acidic, and posed a risk to fish in the creek.

Control Chem Canada Ltd. ("ControlChem") demonstrated that environmental management was inherent to its corporate culture. The company implemented policies, standard operating procedures and systems, and rigorous staff training to clearly discourage employees from disposing wastewater outside of the facility. ControlChem also engineered containment features to minimize the risk of environmental harm and eliminate the risk of spills. The company also had its own wastewater treatment system on site with a fully trained operator.

The OCJ found that the company took all reasonable care and was duly diligent. The Court dismissed all charges against the company, and held that the company's environmental management system was "broad, thorough, detailed, well-documented, understood by employees and subject to frequent internal and external compliance review."2

The case reaffirms the importance of a thorough environmental management system that incorporates measures to ensure continuous improvement of policies, procedures systems and training.

The Spill

On March 29, 2012, unbeknownst to and without the authority of ControlChem management, a ControlChem employee, Mr. Silva, discharged the liquid contents of four large totes (approximately 4,000 litres) to an outdoor storm sewer catch basin. The spill occurred in the loading dock of ControlChem's water treatment facility in Burlington, Ontario. At the time, the company president was out of the country on business.

Later that day, the Ministry of the Environment and Climate Change's ("MOECC") Spills Action Centre was notified about the discoloration of nearby Sheldon Creek. Investigations by MOECC, the City of Burlington and the local Conservation Authority traced the discoloration from the creek to the municipal storm sewer system and a catch basin at the rear of ControlChem's facility. The material discharged included aluminum chloride hydroxide sulphate ("ACHS") which reduced pH levels in the creek to lethal levels, and posed a risk of burning or damaging the gills of fish in the creek.

The Charges

ControlChem and Mr. Silva were each charged with five offences arising from the spill.3 Two of the charges were under the OWRA and the remaining three charges were under the EPA. The charges were for discharging or causing or permitting the discharge4, and for failing to report a spill forthwith. 5

ControlChem's Due Diligence Defence

During the course of a ten day trial in Fall 2015, ControlChem presented extensive evidence about its environmental management system including ControlChem's:

  • International Standards Organization ("ISO") 9001 certification and early adoption of ISO 14001
  • continual participation in the ISO 14001 audit process
  • participation in biannual environmental compliance audits conducted by an external environmental consultant
  • creation of its comprehensive ISO 14001 environmental manual
  • establishment of detailed standard operating procedures, including instructions for the disposal of waste, truck maintenance inspections and cleaning of reusable totes and drums
  • organization of regular production team meetings
  • dissemination of the company mantra that "nothing leaves the building", and
  • well documented and thorough staff training, including annual spills simulations.

Notably, ControlChem's standards and systems included mechanisms to identify and continuously improve any deficiencies.

In addition to policies, procedures, systems and training, ControlChem presented evidence that it had gone to great lengths to engineer and implement spill containment features at its production facility to ensure the containment of chemicals within ControlChem's production area. These included:

  • no sewer drains within the production area floor to eliminate the risk of spilled liquids entering the sewer system
  • a three inch lip around the walls and elevated doors with the capacity to contain up to 20,000 litres of liquid spilled on the chemical mixing and batching floor
  • securely constructed bulk inventory storage tanks with double walls
  • containment of all mixing stations and pumps
  • a closed heating system to eliminate the risk of open flame
  • installation and use of an ultra-filtration system to treat chemical water and ensure that no liquid waste was disposed outside the facility, and
  • installation of spill kits throughout the production facility containing equipment and materials to be used in the prevention and cleanup of spills.

ControlChem's Corporate Culture and Mr. Silva's Deliberate Spill

ControlChem demonstrated that environmental management was integral to its corporate culture. The company expressly prohibited all employees from disposing wastewater outside the facility. ControlChem submitted evidence that its employees were trained to understand specific risks relating to spills through emergency spills simulation training. Notably, Mr. Silva regularly organized and participated in spills simulations, including a simulation of an ACHS spill just months prior to the March 29, 2012 discharge.

ControlChem's president, Douglas Fast, testified that Mr. Silva was a production co-ordinator at ControlChem who had supervisory responsibility for the other production staff members. Mr. Silva had been a ControlChem employee for approximately twenty years with no prior misconduct. He participated in the creation and review of chemical formula sheets, operated and cleaned the ultra-filtration wastewater treatment system and understood that nothing was to leave the building. As recited by the Court from Mr. Fast's evidence, Mr. Silva had "...twenty years of outstanding performance and one day of horrible performance..."

The Court found that Mr. Silva had competent skills and knowledge, and that he adequately comprehended the company policies and procedures. During trial, Mr. Silva himself acknowledged that he understood the duty to report any environmental spill and that he was required to do so.

The Decision

The OCJ found that the Crown proved all elements of each of the five charges beyond a reasonable doubt. But, the Court acquitted ControlChem of all charges in finding that the company proved, on a balance of probabilities, that ControlChem exercised due diligence and took all reasonable care to prevent the March 29, 2012 discharge.

The Court found that Mr. Silva's aberrant action was not reasonably foreseeable:

The evidence reveals the Defendant (ControlChem) to have farsighted, thoughtful, methodical and well documented philosophy and standards to address environmental protection generally and specifically addressing the issue of spills avoidance/mitigation. ControlChem generally presents as an enterprise with a culture of strong commitment to proper environmental standards. Management recognized the high risk of severe harm that could follow from a spill or discharge of any materials employed and robust steps were taken to minimize this risk and harm.6

The Court recognized that ControlChem's steps to guard against environmental risks were proportionate to the serious risk to public safety and the natural environment. In addition, the Court noted the company's compliance with reasonable industry standards.

While no amount of due diligence can guarantee the prevention of an environmental incident, this decision highlights the importance for companies to implement and document meaningful prevention practices in support of an environmental due diligence defence. The bar is high to satisfy the Court that an accused should be absolved. R v ControlChem illustrates that the shift in the burden of proof to the defendant can lead to acquittal on the right set of facts.

This case shows that a successful, grand slam, due diligence defence requires not only the development of environmental policies, but a genuine commitment to environmental protection. This includes ensuring environmental policies are known and implemented at all levels of a company's operations. It also includes continuous improvements to company policies, procedures, systems and training to reflect or exceed current environmental standards. Anything less may negate the opportunity to successfully defend an environmental prosecution.


1 Unreported case. Court file No. Burlington 139537-01.

2 Ibid at page 36.

3 Mr. Silva took a plea bargain and was fined $5,000 for discharging hazardous waste into Sheldon Creek, contrary to s. 30(1) of the OWRA.

4 Counts 1, 3 and 5 were pursuant to s. 14(1) and s. 40 of the EPA and s. 30(1) of the OWRA.

5 Counts 2 and 4 were pursuant to s. 30(2) of the OWRA and s. 92(1) of the EPA.

6 Supra note 1 at page 34.

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

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

Marc McAree
Matthew Gardner
Giselle Davidian
Julia Paillé
In association with
Related Video
Up-coming Events Search
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

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