| | To avoid a conviction under EPEA and the Fisheries Act, an operator must have acted with due diligence in running the operation and in carrying out the activity at issue.
Whether an operator acted with due diligence is decided by the courts on a case-by-case basis. Generally, the courts have indicated that to act with due diligence, one "must take all reasonable steps to avoid harm. However, that does not mean [one] must take all conceivable steps".1 In addition, the courts have established that, "reasonable care and due diligence do not mean superhuman efforts. They mean a high standard of awareness and decisive, prompt and continuing action".2 In considering whether an accused acted with due diligence, the courts, "...examine what was done, what controls were in place, what was the state of technology that existed through the evidence of lay and expert witnesses to determine if the accused acted reasonably in the circumstances".3
Some of the things a court may examine in determining whether environmental due diligence has been exercised are:
- Did the farm operator establish and monitor pollution prevention system? For example, is there a reasonable nutrient management plan for the operation?
- Did the operator ensure that he instructed employees to:
- set up the pollution prevention system so the operation complies with the industry practices and environmental laws, and
- report to the manager if the operator was not complying with the system? For example, if soil-testing analysis indicated high nitrate levels, making it dangerous to apply more manure, was the manager told?
- Was the operator aware of the industry standards regarding environmental pollutants and risks?
- Did the operator address problems immediately and in a timely fashion?4
In addition, a court may examine whether a corporation has an environmental management system, what the environmental management system contains, how detailed it is, and whether it is followed by the corporation, to determine whether the corporation acted with due diligence in carrying out the activity in question.
Environmental Management Systems
Environmental management systems are used by corporations to establish and implement policies and procedures for operating an environmentally sustainable business. An environmental management system examines the corporation's operations:
- to determine how these operations impact the environment,
- what policies and procedures can be implemented to lessen or eliminate the operation's environmental impacts,
- what environmental standards and laws the corporation must follow, and
- whether the corporation is following these standards and laws.
The environmental management system will then put into place the policies and procedures to reduce the operation's environmental impacts and to properly train its employees to meet and maintain the applicable environmental standards and laws. Finally, an environmental management system will provide for a periodic re-evaluation of these environmental policies and procedures.
A farm operator who develops an environmental farm plan is taking the first steps toward developing an environmental management system. For more information on Alberta's Environmental Farm Plan (EFP) program, call toll-free 1-866-844-AEFP (2337), or visit the EFP website.
1. R. v. British Columbia Hydro and Power Authority (1997) B.C.J. No. 1744, paragraph 55.
2. R. v. Courtaulds Fibres Canada (1992), 9 C.E.L.R. (N.S.) 304 at 313 (Ont. Prov. Ct.)
3. R. v. Northwood Pulp and Paper (1992) 9, C.E.L.R. (N.S.) 289 at p. 293.
4. R.v. Bata Industries Ltd. (1992) O.J. No. 236 at page 24 - 25 (Ont. Prov. Div.) online: QL (O.J.), rev'd in part on other grounds 14 O.R. (3d) 354, rev'd in part on other grounds 127 D.L.R. (4th) 438.
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