The University of British Columbia has lost its appeal of convictions and heavy fines related to the dumping of chemicals into a tributary of the Fraser River.
The convictions under the Fisheries Act will carry a penalty of more than $1.5 million.
The offences occurred in September 2014 when, according to court documents, a CIMCO Refrigeration mechanic at UBC’s Thunderbird Arena discharged an ammonia-containing solution into a storm sewer that eventually drained into Blooming Ground Creek.
Acting on public complaints of an strong ammonia odour, Environment Canada investigators collected water samples from a ditch leading to the creek that contained ammonia concentrations exceeding amounts toxic to fish by 304 times.
In the following two days 70 dead fish were found in the creek.
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Following a 15-day trial in 2018 CIMCO pleaded guilty to depositing a deleterious substance into waters frequented by fish, and was fined $800,000.
Because the arena’s chief engineer was present during the discharge, the university was also culpable. UBC was convicted on two of four charges under the Fisheries Act, including a failure to notify officials of the occurrence, with a combined fine of $1.55 million.
UBC lawyers appealed the conviction on the grounds of circumstantial evidence, conceding the ammonia in the ditch originated from the school, but citing a lack of testing to prove amounts lethal to fish had leaked into the creek.
In her reasons for judgement, Madam Justice Neena Sharma upheld the trial judge’s original decision.
“UBC is correct that there was no direct evidence as to the precise concentration of ammonia in the Creek,”Sharma wrote. “Instead, the trial judge had a large amount of uncontroverted evidence as to the presence and concentration of ammonia in the ditch. Based on that evidence and common sense, the judge inferred that the ammonia entered the Creek in an amount sufficient to be deleterious to fish.”
The trial for UBC and CIMCO was originally scheduled to conclude in one month, but scheduling conflicts between the two parties and the Crown prolonged the process by more than one year. UBC’s lawyers sought a stay of proceedings under the Canadian Charter of Rights and Freedoms to be tried under a reasonable amount of time but the trial judge ruled against the application, which UBC appealed.
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The appellate court sided with the Crown’s position, stating in part that the scheduling conflict was unavoidable and could not reasonably have been remedied. The Crown also argued UBC was complacent about the delays and did not seek to expedite the proceedings.
UBC also unsuccessfully appealed the sentence, asking for a reduced fine of $350,000 on the basis they should be penalized less than CIMCO.
“The trial judge appropriately took into account factors justifying a greater sentence for UBC than for CIMCO. UBC was convicted of a more serious offense so its culpability was higher. Also, CIMCO pleaded guilty and agreed to a joint submission, which conserved public resources,” Sharma wrote.
“Ammonia is a well-known noxious substance and an enormous amount was discharged into the storm sewer. UBC knew of the importance of pollution prevention into storm sewers and could not explain why it had not extended its own policies to the arena. The pollution was so extreme that people passing by the watercourse immediately noticed its impact on the air, and many fish died.
The Crown originally sought fines totalling $3 million against UBC.
