In the Provincial Court of Alberta  
Citation: R. v. Edmonton (City of), 2006 ABPC 56  
Date: 20060217  
Docket: 030115406P1  
Registry: Edmonton  
Between:  
Her Majesty the Queen  
- and -  
The City of Edmonton  
Reasons for Decision of the Honourable Assistant Chief Judge J. Maher  
I.  
INTRODUCTION  
[1]  
The 2001 World Championships in Athletics (“the Games”) were held in the City of  
Edmonton in August that year. The major venue was Commonwealth Stadium (“the Stadium”),  
which was owned by the defendant. The defendant is a municipal corporation.  
[2]  
During the course of the Games there were a number of releases of polychlorinated  
biphenyls (“PCBs”) which had been contained in the overhead lights (“lights” unless the context  
otherwise indicates) lighting the Stadium. As a result of those releases, the defendant has been  
charged with nine counts of contravening various provisions of the Environmental Protection  
and Enhancement Act, S.A. 1992 c. E-13.3 (the “E.P.E. Act”).  
[3]  
One count is that the defendant unlawfully released or permitted the release into the  
environment of a substance in an amount, concentration or level or at a rate of release that causes  
or may cause a significant adverse effect, contrary to section 98(2) of the E.P.E. Act.  
[4]  
There is a set of four counts, each relating respectively to four alleged releases, that the  
defendant, having so released, caused or permitted such releases, where the substance may  
cause, is causing, or has caused an adverse effect, failed, as soon as it knew or ought to have  
known of the releases, to report them to the Director designated under the E.P.E. Act, contrary to  
section 99(1) of the E.P.E. Act.  
Page: 2  
[5]  
There is a second set of four counts, each relating respectively to the same four alleged  
releases, that the defendant, having had control of such a substance, as distinct from actually  
having released, caused or permitted such releases, failed immediately on becoming aware of the  
releases, to report them to the Director, contrary to section 99(2) of the E.P.E. Act.  
[6]  
Both Crown counsel and counsel for the defendant agree that if the defendant were to be  
found guilty of any count in the first set of four counts for failing to report, the corresponding  
count in the second set of four counts ought to be conditionally stayed since that count would be  
an included offence. In the result, while the defendant is charged with and may be found guilty  
of nine counts, it could only be properly convicted of at most five counts.  
[7]  
These are the reasons for my decision.  
II.  
PRELIMINARY COMMENTS  
[8]  
Some of the facts noted hereafter include implicit findings of fact based on credibility.  
Certain specific findings of credibility will be discussed in detail later in these Reasons. I  
acknowledge the occasional inconsistencies within the testimony of some witnesses; and  
between what some witnesses may have said or written beforehand, and their testimony in Court.  
However, I do at this time wish to make it clear that I am satisfied that all witnesses who testified  
did so honestly and to the best of their ability, even in the case of one expert about whose  
objectivity I have some concern. Many of the discrepancies, inconsistencies and conflicts in the  
testimony are explicable by an unreliability resulting from the passage of time, the unremarkable  
nature of certain events at the time of their occurrence, and the lack of any or any suitable  
written record contemporaneous with the events which would have assisted recollection. I do not  
propose to detail what would be a very lengthy analysis in explaining how I have come to the  
conclusion of many of the facts recited hereafter.  
[9]  
It seems that the only written notes, at all remotely contemporaneous to the events which  
occurred before August 8, 2001, of anyone employed by the defendant, are those of the  
defendant’s Director of Buildings and Facilities Maintenance, John Nicoll (“Nicoll”). No notes  
were made by anyone below his level of authority - the electricians, the electrical foreman or the  
electrical supervisor at the Stadium. The only written material authored below his level of  
authority is the occasional email correspondence. Nor do there seem to be any, but scant notes,  
which may have been authored at a level of authority higher than Nicoll. No notes seem to have  
been made by any other key player, besides the employees of Alberta Environmental Protection  
(“AEP”) (and then only after August 8, 2001), involved in the events in question. The reason  
there are no such notes is clear - no one at the time considered those events to be of any  
particular consequence.  
[10] This leads me to comment on the minutes of the defendant’s daily Corporate Committee  
meetings and its daily Community Services meetings. Minutes of all those meetings were  
Page: 3  
referenced extensively in questioning the defendant’s employees, in the pre-charge questioning  
by the AEP investigator, and in the questioning of those witnesses at trial by counsel. Minutes of  
meetings when they are made contemporaneously, may carry significant weight in terms of  
determining what may or may not have taken place at those meetings and as an aid in assessing  
the later recollection of persons who attended those meetings.  
[11] However, in this case I note that the reliability of the minutes of those various meetings is  
not as high as one might hope. First, there is no evidence that they were always read before the  
next meeting by those who were present at the meeting. Second, it is clear on the face of each  
subsequent meeting that the minutes of the prior meeting were never approved, adopted or, for  
that matter, even referred to. Third, those at the meetings were not always the same persons.  
There was an element of coming and going. Fourth, the minutes cover a wide and complex  
variety of topics which were discussed over a very short time frame, and it is clear that they are  
extremely summary in terms of what had to have been discussed. In fairness, they were never  
intended to represent a verbatim discussion of what took place at the meetings, but only a  
summary or synopsis of the information discussed at the meetings. Finally, it should be noted  
that most of those present at the meetings were from the defendant’s upper management, who  
would have had limited technical knowledge about the subject matter of the Stadium lighting or  
PCBs.  
[12] Nonetheless, the minutes of those meetings were of particular value in assisting me to  
determine the chronology of what occurred. The minutes provided me with an anchor in  
attempting to make sense of some of the testimony of Nicoll, who referred extensively in his  
testimony to the notes he made. It is clear to me, on a careful analysis of that testimony and the  
minutes of those meetings that, from time to time, counsel and he were one day out in relating  
the chronology.  
[13] I provide an example from a close study of those pages of notes. What was attributed as  
pages seven and eight of his notes for Sunday, August 5 (Exhibit 1 at Tab 6) make no sense in  
the context of that time, particularly with respect to a shutdown the preceding night, nor inquiries  
made that day from manufacturers. They do however make sense if they were made starting on  
the afternoon or evening of the next day, Monday, August 6 and I am satisfied that is when they  
were in fact made.  
[14] It is easy to understand how the confusion arose. I note that the handwritten notes of  
Nicoll were done on unbound notepaper, and it was evident during the trial that on at least one  
occasion, the notes were not necessarily in chronological order. I note as well that there was at  
least one occasion during the examination-in-chief of Nicoll where counsel and the court were  
confused about when his notes for a particular day began and when they ended. Moreover, there  
are indications that some notes which were made by Nicoll, may have been inserted by him some  
time later, rather than contemporaneously, albeit bona fide.  
Page: 4  
[15] It is also noteworthy, and somewhat surprising, that the first time anyone from the Local  
Organizing committee of the Games (“LOC”) was questioned by any AEP personnel was more  
than a year after the events.  
[16] I also want to say at the outset, as a matter of fairness, that I am satisfied that throughout  
all the events leading to this proceeding, the defendant, including all its employees, acted with  
the utmost good faith. I specifically note that such good faith extends to its candour within its  
organization and to those outside its organization.  
[17] While there is no doubt that the releases of insulating oil from the lights onto the Stadium  
stands immediately became a concern to the defendant, there is no question in my mind that the  
concern was very soon limited to the facts that the oil could and did land on spectators. Once the  
upper management of the defendant were apprised that there was no health or safety risk even if  
the oil did contain PCBs, any concern about a potential health or safety risk ended and remained  
outside the area of concern. The defendant’s actual and limited concern thereafter was in and of  
itself legitimate and reasonable in the context of both public relations and potential legal  
consequences. In particular, the understanding of the defendant that there was no risk to human  
health or safety even if the insulating oil which did drip on the spectators contained PCBs  
accounts for the defendant’s failure to flag the possible release of PCBs to either the LOC or to  
AEP before it was known that PCBs were in the insulating oil involved in one of the first two  
releases.  
[18] It would be most unfair to attempt to import anything more into that actual and limited  
concern by the defendant than the evidence would suggest. There is no basis for what some  
might interpret as indirect and oblique hints, suggestions or insinuations that the defendant, at  
various points in time as the events of this case unfolded, attempted to hide or conceal either  
what took place or the extent of the defendant’s concern about the potential presence of PCBs in  
the released oil.  
[19] I totally reject any suggestion that the possible presence of PCBs having been released  
was or might have been kept a secret from anyone. The initial innocent ignorance of the  
defendant’s Manager of Communications, David Schneider (“Schneider”), as to what PCBs are  
and their significance, and his failure to accurately understand what the defendant’s initial  
investigation disclosed, which ignorance and error persisted for several days, and which likely  
caused him to mislead himself, was neither the creation or perpetuation of a secret. The  
defendant’s preparation of a draft press release in anticipation of the potential presence of PCBs  
in the oil, is not evidence that the defendant knew before the oil was analyzed that PCBs were  
present. Witnesses frequently can and do honestly differ in their recollection of what may have  
occurred, even in terms of what may have been said in verbal discussion. Because one or more  
witnesses do not recall or even understand what may have been said, does not mean that it was  
not said or that it was said lacking in candour.  
[20] Finally, I am mindful that while the offences alleged are regulatory in nature, the onus of  
proof with respect to facts in issue remains with the Crown and that the standard of proof is  
Page: 5  
beyond a reasonable doubt. In matters of credibility the principles of reasonable doubt apply. See  
R. v. W.D., [1991] 1 S.C.R. 742.  
III.  
A.  
FACTS  
The Stadium  
1.  
The History of the Stadium  
[21] The Stadium was built from 1976 to 1978, for the purpose of hosting the opening and  
closing ceremonies related to, and the track and field competition of the 1978 Commonwealth  
Games. In the vernacular of international athletic events, the sports of track and field are referred  
to as “athletics”.  
[22] Thereafter, the Stadium’s prime tenant or occupant was the Edmonton Eskimo Football  
Club, although it was also infrequently used from time to time for other events.  
[23] The day to day maintenance of the Stadium was always performed by the defendant  
through its employees.  
2.  
The Stadium Configuration  
[24] The Stadium is an oval shape, with the longest sides of the oval running in a north-south  
direction, with “west” and “east” sides and “north” and “south” ends. It appears that about 90%  
of the seating is equally divided between the east and west sides. Both the east and west sides  
have two decks, a lower deck and an upper deck. The upper deck extends and hangs slightly over  
the lower deck.  
[25] The rows are numbered from the bottom row of the lower deck to the top row of the  
upper deck. Both sides are divided into sections, lettered consecutively A to M from south to  
north on the west side, and N to Z from north to south on the east side.  
[26] The main lighting of the Stadium is provided by two banks of lights, one over the west  
side and one over the east side, both extending along the full length of the sides. The banks are  
each located on a frame, which extends inward from the top of the outside of each of the west  
and east walls of the Stadium. The lights themselves, resting on the frames, are positioned  
vertically about 60 feet above the area from rows 70 to 75 on the upper decks. The frames each  
include a catwalk extending the length of the frames. The catwalks provide access to the lights  
for maintenance purposes. The catwalks are accessible by staircases from the top of the outside  
of Stadium wall on each side to the frame on that side.  
[27] There are 396 separate overhead lights, 198 per bank on each side of the Stadium.  
Page: 6  
[28] There is a separate electrical switch for each bank of lights. Both banks may be lit at the  
same time, or either side alone may be lit.  
3.  
Lighting Generally  
[29] There are two general types of lighting. The first, incandescent lighting, is the lighting  
one is usually accustomed to, the most common example being the light from a common light  
bulb.  
[30] The other type of lighting is arc lighting, the most common example being the light from  
fluorescent bulbs customarily found in offices and institutions. A second, but relatively  
uncommon, example of arc lighting is high intensity discharge lighting (“H.I.D. lighting”). All  
stadium lighting is H.I.D. lighting.  
[31] The major advantages of arc lighting over incandescent lighting are that the former uses  
less electricity and generates less heat.  
4.  
Capacitors, Transformers and Ballasts in H.I.D. Lighting  
[32] In the testimony and reports entered in evidence before me, the terms “capacitor”,  
“transformer” and “ballast” were used by different witnesses in different ways. I describe them  
and their purposes in providing electrical light in H.I.D. lighting, particularly in the Stadium, as  
follows.  
(a)  
Capacitor  
[33] For arc lighting to be economically useful, it requires something which can regulate the  
flow of an electrical current to one or more of the electrodes of the lamp of a light, so that there  
is no uncontrolled arcing within the lamp. Moreover, because the arcing is like lightening, it may  
be dangerous unless the flow of an electrical current is regulated.  
[34] The flow of an electrical current to the electrodes of the lamp of a light is regulated by a  
capacitor, which ensures that the voltage of the current is constant. In achieving this purpose, the  
capacitor prevents an excessive flow of current to the electrodes of the lamp, stores the excessive  
electricity, and then passes the stored electricity to the electrodes as recycled electrical current.  
In the result less electricity is actually used to light the lamp.  
(b)  
Transformer  
[35] The electrical current or voltage over power lines varies. It is economically useful to  
transmit electrical current at very high voltages over distance, and then because the voltage  
required at the end or user location is normally much lower, to transform the current by reducing  
the voltage or “stepping it down”. Similarly, transformers may also be used to increase voltage  
Page: 7  
for the purpose of transmitting it over power lines, or “stepping it up”. This stepping down or  
stepping up is accomplished magnetically through what are known as transformers.  
[36] Large transformers are frequently used to step up or step down very large transmissions  
of electrical current. Such transformers are located in various geographical sites, secured by high  
fencing preventing public access and noticeably marked by warning signs of an electrical danger.  
[37] However, even stepped down electrical current may be too high for arc lighting, and will  
require further stepping down or voltage reduction at the site of the electrical fixture. In  
particular, the voltage required for a lamp in H.I.D. lighting is less than that which is normally  
transmitted over the power lines providing electrical current to the end or user location.  
Therefore, in order to provide an even lower voltage for H.I.D. lighting, the electrical current  
supplied over normal municipal power lines must be stepped down or transformed. Small  
transformers are used for that purpose.  
(c)  
Ballast  
[38] In H.I.D. lighting the capacitor (or capacitors) for a light, and the transformer (or  
transformers) for that light, are often combined into a single unit called a ballast.  
5.  
The Lighting Configuration in the Stadium  
[39] Each of the 396 lights in the Stadium has its own lamp and its own ballast connected to  
that lamp.  
(a)  
The Stadium Ballasts  
[40] Each ballast consists of a metal housing. The housing is made up of a canister can and a  
canister tray. The canister can is about the size of and shaped like an inverted, office garbage  
can. It sits on the canister tray which is also round. On the outside circumference of both the  
canister can and the canister tray is a small lip or ridge, which situates the canister can on the  
canister tray. The canister can is attached to the canister tray by three metal clasps or clips which  
can be unsnapped or unclipped by the flick of one’s finger in order to detach the canister can  
from the canister tray so as to gain access to the contents of the ballast housing. By so attaching  
the canister can to the canister tray the can will not fall off the tray.  
[41] Housed in each ballast is a small transformer and a bank of three capacitors. The  
capacitors are configured so that they are wired together and wired to the transformer. The  
transformer and the capacitors (as configured) are placed so that they sit on the canister tray and  
the canister can is then placed on top of the canister tray and secured in place by the clasps or  
clips. They are separated from the inside of the canister can and the remainder of the canister  
tray.  
Page: 8  
[42] The flow of electrical current from the power lines supplying electricity to the Stadium  
goes to each ballast, and then, after passing through the transformer and the capacitors of that  
ballast, from the ballast to the lamp connected to that ballast. To disconnect the lamp from the  
ballast, and thereby stop the flow of electricity to the lamp from the ballast, one removes a  
junction box located between the ballast and the lamp. It is not necessary to gain access to the  
inside of the canister can in order to effect a disconnection of the lamp.  
(b)  
The Stadium Capacitors  
[43] For some unknown reason, at the time of the events in question, each ballast in the  
Stadium contained one capacitor manufactured by Westinghouse and two capacitors  
manufactured by Aerovox. The evidence indicates that all the capacitors were identical in  
appearance notwithstanding their manufacturer.  
[44] Each capacitor was very similar in shape and appearance to an ordinary soup can with  
both a bottom lid and a top cap or lid, except that it was slightly larger than a soup can, being  
about eight inches in length. The capacitor wall and both its lids (the“capacitor can”) were metal.  
Inside each capacitor can was a core consisting of two metal plates, the length of the capacitor  
can itself, wrapped in waxed paper. The plates acted as electrical conductors and were each  
wrapped in and separated from each other by the waxed paper. The core was then squeezed into  
the capacitor can, with terminals at the end of the conductor plates protruding out of the top of  
the top cap or lid.  
[45] Before being placed inside the capacitor can, the core is soaked in insulating oil. After  
the core is placed inside the capacitor can, nearly but not all of the space in the capacitor can is  
fully occupied by the core. The remaining space is filled with an insulating oil before being  
capped. In the result, there is no air in the capacitor can once capped.  
[46] Insulating oil serves several purposes. First, it, together with the waxed paper, insulates  
the two metal conductor plates from the wall and lids of the capacitor can and from each other,  
preventing the escape of electricity from the conductor plates. Oil is a better insulator than air.  
Second, it acts as a coolant. Oil dissipates the heat generated inside the capacitor can much more  
effectively than air.  
[47] The best evidence before me as to the quantity of insulating oil in any of the capacitors in  
the Stadium, is that an intact capacitor was found to contain an ounce of insulating oil. I will  
discuss later in these Reasons and in more detail the issue of the quantum of insulating oil in a  
capacitor.  
[48] It is important to observe that even if a capacitor ruptures, the light may function  
electrically for a period of time, until a short circuit occurs which causes a disconnection of the  
electrical current to the lamp. So long as there is an electrical current flowing from a source to  
the capacitor, and from the capacitor to the lamp, there will be light generated by the lamp.  
Page: 9  
[49] It is also important to note that a light can fail for reasons other than a failure of a  
capacitor, whether that capacitor failure is caused by a rupture of the capacitor or for other  
reasons. The evidence satisfies me that over the course of the Games there were failures of some  
of the lights which were not caused by or related to failed capacitors, or which, if they were  
caused by or related to failed capacitors, had nothing to do with ruptured capacitors.  
B.  
Polychlorinated Biphenyls (“PCBs”)  
1. PCBs in Capacitor Insulating Oil  
[50] With electricity there is always a risk of fire. For that reason insulating oil should be  
relatively non-flammable. Polychlorinated Biphenyls or PCBs came to be commonly used in  
insulating oil because they were particularly non-inflammable and because they were an  
excellent cooling medium.  
[51] In the late 19th century mineral oils started to be used as insulating oil in electrical  
equipment. Various types were refined and used until the 1930s when it became generally  
accepted that PCBs were the best insulating oil available. Thereafter PCBs were accepted as the  
electrical industry’s best choice, in large industrial transformers, voltage regulators, capacitors  
and any other equipment requiring insulating oil. For the next 40 years most insulating oil  
contained some concentration or percentage of PCBs.  
[52] In the late 1970s a concern about the environmental and health dangers of PCBs,  
particularly their high and persistent toxicity, led to their being banned in the future production  
and sale of industrial and commercial products throughout North America. However, that ban  
did not apply to existing installations. Existing equipment containing PCBs would thereafter be  
phased out or gradually eliminated, as that equipment was replaced or discarded over the course  
of time.  
[53] In order to effect that phasing out and at the same time provide for the identification, safe  
removal and disposal of existing electrical equipment which contained PCBs, governments  
throughout North America enacted regulations stipulating that electrical equipment  
manufactured after the ban date be clearly marked with an endorsement that it did not contain  
PCBs. Electrical equipment manufactured before then had no such endorsement. It thus became  
clear to those who handled electrical equipment, that absent such an endorsement, one ought to  
consider that there was a likelihood that the insulating oil in that equipment contained PCBs. I  
say ‘likelihood’ rather than ‘possibility’ because by then it was well recognized in the electrical  
industry that insulating oil used in the manufacture of electrical equipment containing PCBs was  
more common than not. This negative warning, signal or flag by way of an endorsement on  
electrical equipment of the absence of PCBs, was well understood.  
[54] In those cases where there was no such endorsement, in order to be definitive as to  
whether the insulating oil contained or did not contain PCBs, one had two choices: either check  
with the manufacturer of the equipment, or do a laboratory analysis of the insulating oil.  
Page: 10  
[55] The Stadium was built around the same time that the PCB ban came into effect. None of  
the capacitors in the Stadium ballasts were endorsed with the notation that they did not contain  
PCBs.  
[56] There is limited evidence before me as to the chemical composition of the insulating oil  
in the Stadium’s capacitors. At most only four of those capacitors were chemically analyzed to  
determine if they did contain PCBs, and it is clear that while all four did contain PCBs, there  
were differences in concentration and the particular PCB mixtures. It is also clear that there was  
also a fifth ruptured capacitor which itself resulted in a release of the same PCB mixture as was  
released on the three other occasions where it has been proven that there was a release.  
2.  
PCBs Generally  
[57] PCBs accumulate in the environment and enter the food chain. People are regularly  
exposed incidentally to PCBs in varying amounts through food, air and water. It is generally  
accepted that normal exposures are unlikely to have any harmful effects. However, more than  
incidental exposure to PCBs may result in harmful effects because not only are they toxic, they  
do not break down in the human body easily or quickly.  
[58] PCBs may enter the human body by ingestion (for example by eating food or drinking  
water), by skin exposure (for example bathing in water containing PCBs), or by inhalation  
(where PCBs are burned and there is only partial combustion, resulting in the creation of certain  
dioxins and furans in the air).  
[59] There are 209 different PCBs, each a different compound containing some amount of  
chlorine. After the chlorination has taken place the 209 different PCB compounds are known as  
PCB congeners, each congener being unique according to its amount of chlorine and the location  
of the chlorine atoms on the molecule formed after chlorination. Twelve of the PCB congeners  
are particularly toxic because they are dioxin/furan like. The 209 PCB congeners were used in  
various mixtures to provide a particular variety of PCB mixture, each mixture having different  
chemical properties. The different chemical properties of the mixtures resulted in their being  
used in the electrical industry for different purposes.  
[60] There are seven different commercial PCB mixtures or compounds manufactured by  
Monsanto which are known by the trade name Aroclor. There are a total of 132 different PCB  
congeners which are known to be in those seven Aroclor PCB compounds in different  
proportions, with as many as 130 PCB congeners in a given Aroclor formulation.  
[61] Once the particular PCB congeners in a mixture are determined, the toxicity of that  
mixture can be mathematically calculated according to factors related to the particular organism  
which has been or may be exposed. For instance there might be more or less toxicity in the same  
mixture for fish, birds or humans. The potential toxic effect of a mixture can be then calculated  
according to species.  
Page: 11  
[62] By different methods of chemical analysis, each Aroclor can first be detected; second, be  
identified according to its congener content; and, third, be measured according to its chlorine  
content, the chlorine being the toxic agent.  
[63] PCBs are unique when they enter any organism, including the human body. Some PCB  
congeners are eliminated or cleared rapidly, others are concentrated and clear more slowly. Due  
to different elimination (clearing) rates, the mixture of congeners in the organism changes over  
time. Those that persist, do so over time and bio-accumulate. If one knows enough about the  
time since the PCB mixture entered the organism, by a similar analysis, since the elimination  
rates of each PCB congener are known, one may be able to identify the contents of the particular  
mixture (including an Aroclor compound, if present) should there be enough PCB congeners  
remaining in the organism at the time of analysis.  
[64] PCBs do not burn or combust except at very high temperatures, which is one of the  
reasons why they were used in insulating oil. However, if the temperature is high enough, such  
as where an electrical current arcs, they may burn or combust. When PCBs do burn or combust,  
they combust into gaseous dioxins and furans, although that result is dependent on the congeners  
in the mixture, and the chlorine content of the congeners present. When released into the air,  
these dioxins and furans are particularly toxic if inhaled.  
C.  
The 2001 World Championships in Athletics  
1. Background  
[65] The Games are the world’s largest sporting event, second only to the summer Olympics.  
The 2001 Games were awarded to Edmonton after a bid by a society incorporated for the sole  
purpose of applying to have the event hosted in Edmonton. That bid was supported by the  
defendant. The Games began with opening ceremonies on the evening of Friday, August 3, 2001.  
The Games’ competition actually commenced with the opening ceremonies and lasted until the  
Games’ closing ceremonies on Sunday, August 12. While other facilities were used for support  
services, the Games’ site for both ceremonies and the competition was the Stadium.  
[66] The Games were operated by the LOC, which after Edmonton had been awarded the  
Games, was incorporated and registered under Part 9 of the Companies Act, R.S.A. 1980 c. C-  
20, as a Part 9 corporation whose objects were the organizing and operating of the Games.  
2.  
The Local Organizing Committee (“LOC”)  
[67] The LOC was funded in part by the three levels of government: federal, provincial and  
municipal (the defendant). Other funding sources included ticket sales, sponsorships, marketing  
and merchandising. It had a budget of $125 million and a staff of about 400 paid and contracted  
employees together with about 10,000 volunteers.  
Page: 12  
[68] The President and Chief Executive Officer was Richard LeLacheur (“LeLacheur”), who  
was hired and paid by the LOC. He was with the LOC from its inception and was responsible for  
its overall operation.  
[69] The LOC’s Vice President of Venue Operations was Robert McMahon (“McMahon”).  
He was responsible for the operation of all venues associated with the Games: the Stadium,  
practice sites and the villages where the athletes were housed. He was a paid employee of the  
LOC and was hired several months before the competition began.  
3.  
The Defendant and the Games  
[70] The defendant’s financial contribution to the Games was twofold. First, it leased athletic  
facilities and other venues associated with the Games to the LOC for nominal consideration. One  
such leased facility was the Stadium.  
[71] Second, it agreed to provide services, utilizing its own staff. The defendant’s employees  
so used to provide those services were not seconded to the LOC, but continued to work for the  
defendant and report in the normal course of their employment through customary channels  
within the defendant’s organizational structure. They remained at arm’s length from the LOC.  
The services provided by the defendant’s employees included particular services provided at the  
Stadium: police services, facility maintenance (grass, plumbing, carpentry, electrical) and  
cleaning of the facility.  
[72] All this amounted to an ‘in kind’ contribution from the defendant to the LOC and saved  
the LOC from building, buying or renting facilities and relieved it in part from the requirement  
that it hire its own paid staff to provide those services. This arrangement, where the defendant  
was a facility and service provider, was a commitment which a host city usually provides in the  
hosting of large international sporting events, and represents a contribution in kind.  
4.  
The Stadium Lease  
[73] By a written Lease (Exhibit 20) dated May 15, 2001, for a nominal consideration, the  
defendant leased the Stadium to the LOC for the purposes of hosting the Games. The Defendant  
agreed, that upon the LOC performing and observing the terms, covenants and conditions  
contained in the Lease, the LOC would have “peaceable, exclusive and quiet possession of and  
access to” the Stadium from April 1, 2001 to September 15, 2001, subject to a license back to the  
defendant to use it for certain scheduled events before July 21 and certain scheduled events after  
August 15.  
[74] The specific time period from July 21 to August 15 was referred to in the Lease as the  
“Games Period”. The “Director” under the Lease was an employee of the defendant, Douglas  
McLennan (“McLennan”), about whom more will be discussed later in these Reasons.  
[75] The Lease provided the following:  
Page: 13  
4. USE OF CITY FACILITY  
Use  
4.1  
The LOC shall only use the City Facility for the purpose of  
hosting the Games. If the LOC should desire to use the Facility for  
any other purpose, it shall obtain the written consent of the [City’s]  
General Manager to such change in use, which consent may be  
unreasonably and arbitrarily withheld.  
Prohibited Activities  
4.2  
Facility anything which shall:  
(a) result in the creation of a nuisance, or  
The LOC shall not do or permit to be done within the City  
(b) cause the loss exposure for any part of the City  
Facility to be increased, except where the LOC  
agrees to pay for the costs associated with any  
increase, which may include additional insurance  
premiums or loss control measures. Any additional  
costs will be determined by the General Manager  
acting reasonably.  
Emergency  
4.3 Notwithstanding any other term or condition of this Lease,  
the City, without limiting any other rights the City may have  
pursuant hereto or at law, shall have the right, but not the  
obligation, to enter the City Facility at any time in cases of  
emergency as determined by the Director.  
Inspection  
4.4  
Prior to the commencement of the Term, the Director and  
the LOC’s Representative shall jointly conduct a pre-occupancy  
inspection of the City Facility and shall determine the condition of  
the City Facility. Within three (3) days of the expiry of the Term,  
the Director and the LOC’s Representative shall jointly conduct a  
post-occupancy inspection of the City Facility and shall determine  
the condition of the City Facility.  
5. MANAGEMENT OF CITY FACILITY  
Management of City Facility  
5.1  
Prior to the commencement of the Games Period, the LOC  
will establish operational plans with respect to the hosting of the  
Games at the City Facility. The Director shall have the right to  
Page: 14  
review the draft operational plans of the LOC as they are being  
prepared and without limitation may request changes to those  
operational plans prior to finalization when, in the opinion of the  
Director, acting reasonably, changes are required in order to  
protect the City Facility or to protect spectators, participants and  
organizers.  
Use and Access  
5.2  
Except as otherwise stated in this Lease during the Games  
Period, the use of and access to the City Facility shall be under the  
control of the LOC and shall be restricted to persons accredited by  
the LOC and to spectators holding tickets issued by the LOC for  
the Games.  
City Access  
5.3  
The Director shall have the right, after notification to the  
LOC’s Representative to bring utilities, personnel and other  
maintenance personnel into the City Facility at any time during the  
Term for the purpose of effecting any repairs or performing any  
maintenance as the Director may consider necessary. During the  
Games Period, all such personnel must be accredited by the LOC,  
and in providing accreditation the LOC shall act reasonably.  
City Staff  
5.4  
The Director shall provide to the LOC a list of City staff  
that will be involved in the management and operation of the City  
Facility during the Term. During the Games Period all such staff  
must be accredited by the LOC, and in providing such  
accreditation the LOC shall act reasonably.  
City Services  
5.5  
During the Term the City will provide such services and  
will pay such costs in respect of the City Facility as have been  
agreed to by the City and the LOC pursuant to the Games  
Agreement  
6. CONDITION OF CITY FACILITY  
“As is, Where is”  
6.1  
There is no promise representation, or undertaking, binding  
upon the City with respect to the state or condition of the City  
Facility and the City Facility is deemed to be taken by the LOC on  
a strictly “as is, where is” basis.  
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No Liability  
6.2 The City shall not be responsible for any injury to any  
person or for any loss or damage to property belonging to the LOC  
or to employees, invitees or licensees of the LOC while such  
persons or property are on the City Facility and including, without  
limitation, any loss of or damage to any property caused by theft,  
vandalism or condition of the City Facility, except in the case of  
the negligence of the City or any person for whom the City is  
responsible at law.  
. . . . .  
8. REPAIR AND CLEANUP  
8.1  
The LOC shall, at its expense, repair any damage which  
may be caused to the City Facility as a result of the LOC’s  
negligent act or omissions during the use of the City Facility. All  
repairs shall be made to the extent necessary to restore the  
damaged portion of the City Facility to the condition in which it  
existed prior to the commencement of the Term, reasonable wear  
and tear excepted, or to such other condition as may be agreed to  
by the Director. Should the LOC fail to make the required repairs,  
the City may make the repairs and the LOC shall reimburse the  
City for any costs and expenses for making any repairs which have  
been caused by the LOC’s use of the City Facility. Any monies  
expended by the City in carrying out such repairs, shall become  
due from the LOC to the City and shall be payable within thirty  
(30) days of invoice by the City. The City shall obtain the  
agreement of its property insurer(s) to waive rights of subrogation  
as against the LOC in respect of damage resulting from terrorism,  
kidnapping/hostage-taking, or other similar occurrence.  
8.2  
Except as may otherwise be agreed to between the City and  
the LOC and in particular, as agreed to by the City and the LOC  
under the Games Agreement, during the Games Period the LOC  
shall at its sole cost and expense provide for the maintenance of  
the City Facility to standards for the City Facility as set by the  
LOC, provided that such standards shall not be below those  
standards as maintained by the City for the City Facility.  
. . . . .  
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15. GAMES AGREEMENT, CONFLICT AND ACTING  
REASONABLY  
. . . . .  
Acting Reasonably  
15.3 Unless specifically provided to the contrary, whenever the  
City or the LOC or a representative of the City or the LOC is to  
make a determination or whenever consent or approval of the City  
or the LOC is required under the terms of this Lease, such  
determination shall be made reasonably and such consent or  
approval shall not be unreasonably withheld or delayed. If either  
party withholds any consent or approval, such party shall on  
written request deliver to the other party a written statement giving  
the reasons therefor. Whenever the City is required to consider  
giving its consent pursuant to this Lease, the City shall be entitled,  
at its option, to rely solely on information provided by the LOC.  
Any consent given by the City to the LOC under this Lease shall  
not be operative against the City unless such consent has been  
given in writing.  
. . . . .  
17. DISPUTE RESOLUTION  
Reference to Senior Officers  
17. 1 Any dispute arising out of or relating to this Lease shall be  
referred to the City’s Manager and the Chief Executive Officer of  
the LOC (“the Senior Officers”), who shall attempt to resolve the  
dispute through good faith negotiations. No other dispute  
resolution proceedings (including, without limitation, litigation)  
shall be commenced unless the dispute remains unresolved after  
having been negotiated on at least two separate occasions by the  
Senior Officers.  
[76] With respect to the arrangement between the defendant and the LOC, it was  
contemplated that the LOC would make temporary and permanent modifications to the Stadium.  
The LOC agreed to remove all temporary modifications at its expense, and to restore the  
Stadium to the condition in which it existed prior to the commencement of the Games or to such  
other condition as might be agreed to. These were to be done by the LOC at its expense. The  
Lease provided that the defendant had approved those plans as well as a general plan for the fit  
out of the Stadium during the Games. None of these modifications or plans related to the  
Stadium lighting.  
Page: 17  
[77] I am satisfied that the parties did agree, outside the terms of the Lease, that the utility  
costs associated with the operation of the Stadium would continue to be the responsibility of the  
defendant.  
5.  
Agreement Between the Defendant As Service Provider and the LOC  
[78] One might have expected there to be a formal agreement between the defendant and the  
LOC setting out precisely what services the defendant was to provide to the LOC at the Stadium  
at the relevant times, and the respective obligations and duties the defendant and the LOC had  
with respect to those services. If there was such a formal agreement, it was not entered into  
evidence.  
[79] Nor was the “Games Agreement” which was referenced in the Lease entered into  
evidence.  
[80] I am left to attempt to determine what those services were and what the respective rights  
and obligations of the defendant and the LOC were with respect to those services, by reference  
to the evidence as to the conduct and the understanding of the employees of the defendant and  
the LOC.  
6.  
Interface Between the Defendant and the LOC at the Stadium  
(a) The LOC Presence at the Stadium  
[81] The LOC, as is customary in hosting large sporting events, organized each venue with a  
“Venue Team”, consisting of several representatives, whether volunteers or paid LOC staff, who  
met regularly and both planned the events of that site, and saw to their implementation. There  
were representatives from medical services, transportation services, security services,  
accreditation services, and broadcast services. The Venue Team at the Stadium had as many as  
20 members, although attendees at its meetings could swell to as many as 40 to 45 people.  
[82] Each Venue Team was headed by a site manager. In the case of the Stadium that was  
McMahon himself. Another paid staff employee of the LOC who was a member of the Venue  
Team at the Stadium, was the Director of Venue Fit Out, Guy Lodge (“Lodge”), who reported to  
McMahon and who was hired months before the Games competition began.  
[83] “Venue Fit Out” refers to the physical changes to a facility where a sporting event takes  
place, such as the sites of the Olympics, Commonwealth Games, World Soccer Championships  
and the World Championships in Athletics. Specifically with respect to the Games and the  
Stadium, the fit out included the construction of broadcasting and media facilities in the Stadium,  
the extensive construction of concession facilities involving major renovations to the Stadium  
itself, the setting up of temporary supplementary lighting to increase the lighting available for  
broadcasting television coverage of the Games events, the installation of a Jumbotron television  
screen in the Stadium, and some modification of the Stadium seating. These changes were all  
Page: 18  
done by and paid for by the LOC without any involvement of the defendant. At the end of the  
Games some of these changes were reversed, also by and at the expense of the LOC without the  
defendant’s involvement; and other changes remained and were left for the benefit of the  
defendant when the Lease expired and possession of the Stadium was returned to the defendant.  
[84] As the Director of Venue Fit Out, Lodge essentially lived on site at the Stadium before  
and during the Games competition, as well as following its conclusion. He was seen by others to  
be in charge of all the construction incidental to turning the Stadium into a suitable facility for  
the Games, and later the tear down of the fit out after the Games in order to return the Stadium to  
its primary pre-Games function - a football stadium.  
(b)  
The Defendant’s Stadium Presence During the Games  
[85] Customarily in the hosting of international sporting events, one of the representatives on  
the Venue Team is a representative from the existing facility staff. That person is present  
because of that person’s familiarity with the facility.  
[86] In this case, it was Douglas McLennan, the defendant’s Director of the Sports and Fitness  
Unit of the Community Services Department. Normally McLennan acted as the manager of the  
Stadium and another athletic facility, and was responsible for the Stadium and that other facility,  
and for what occurred in them. Relating to the Games, McLennan acted as the defendant’s on-  
site representative at the Stadium and liaised on behalf of the defendant with the LOC on matters  
pertaining to the services provided by the defendant at the Stadium during the Games.  
[87] McLennan’s contact with the LOC was with two persons, McMahon and Lodge. If  
McLennan had a problem with the LOC in terms of what was taking place at the Stadium, it was  
expected that he would take it up directly with McMahon or Lodge. In the result McLennan’s  
contact with McMahon was relatively infrequent and primarily focussed on a planning  
perspective. His contact with Lodge was operational and on a daily basis.  
[88] I conclude that the defendant provided staff to the LOC at the Stadium in two general  
categories. The first category I would describe as regular Stadium staff whose duties were non-  
technical or required no particular degree of expertise. To the extent that they performed  
maintenance services at the Stadium, that maintenance was general maintenance. In his normal  
duties McLennan supervised this staff, whether employed by the defendant or on contract.  
During the Games, these same normal services continued to be provided to the LOC by the same  
category of regular staff under the supervision of McLennan at the Stadium. However, during the  
Games it was anticipated that at least some of these staff would be on the Stadium site around  
the clock. These staff included personnel who would be expected to actually perform the  
physical task of turning the Stadium lighting on and off by activating or deactivating the two  
switches governing the banks of lights.  
[89] The second category of the defendant’s staff provided to the LOC at the Stadium, which I  
would describe as the seconded staff, were the technical staff, including qualified plumbers,  
Page: 19  
carpenters and electricians, whose presence at the Stadium was for the purpose of responding to  
any specific problems which might arise over the course of the Games requiring a degree of  
technical or skilled expertise. As responders or by being on standby, they were to be engaged in  
performing duties only on an ‘as needed, when needed’ basis. Their presence at the Stadium was  
for the purpose of ensuring that the Stadium’s specialized equipment was operational (i.e. that it  
worked) and, if that equipment failed over the course of the Games, to repair it as soon as  
possible so that the Games would still carry on in a manner satisfactory to the LOC. Their  
presence at the Stadium was determined by a pre-arranged schedule requested by the LOC  
before the Games began in anticipation of when it was thought specialized maintenance might be  
required. Presumably, if a problem arose requiring more staff with expertise, the defendant  
would then provide additional staff. It was not expected that this seconded staff would be present  
on site around the clock. As trouble-shooters, had there never been a problem while they were on  
site, the seconded staff would have performed no work.  
[90] McLennan acted as a liaison between the defendant and the LOC with both categories of  
staff. Concerning the seconded, specialized staff who were to provide the plumbing, carpentry  
and electrical services, McLennan’s contact with the defendant was through Nicoll.  
[91] Nicoll indirectly supervised the on site staff of electricians, plumbers and carpenters who  
were present at the Stadium during the Games competition. He was not on the Stadium site, and  
in fact the LOC did not provide him with accreditation to access the site. His supervision of  
electrical staff was through Richard Wright (“Wright”), a journeyman electrician who was the  
Electrical Supervisor and whose actual duties were administrative. Wright had access to but was  
not continuously on site at the Stadium. The on site electrical supervision at the Stadium was  
provided by Gary Luipasco (“Luipasco”), a master electrician who was the site electrical  
foreman and who gave direction to the crew of electricians at the Stadium as to their specific  
duties and job responsibilities. Luipasco was familiar with the Stadium, as were some of the  
electricians, who had performed electrical work there on earlier occasions.  
[92] As an aside, access to the Stadium was so restricted by the LOC that Nicoll considered it  
advisable to have the defendant’s staff, who were already accredited for access, accompany the  
AEP personnel initially involved in investigating the events which have led to these charges, in  
order to gain expedited access to the Stadium.  
(c)  
Other Areas of Liaison Between the Defendant and the LOC  
Concerning the Stadium  
[93] There were other areas of liaison between the defendant and the LOC besides the direct  
communications involving McLennan on behalf of the defendant and McMahon and Lodge on  
behalf of the LOC.  
[94] At the senior level there was liaison between LeLacheur and the Defendant’s City  
Manager, Alfred Maurer (“Maurer”), who was the highest administrative officer of the  
Page: 20  
defendant. During the course of the Games they met at least daily, whether formally or  
informally.  
[95] There is some, albeit scant, evidence that at the lowest level, the LOC had at the Stadium  
site either its own volunteers or its own hired electrical staff, and that there was communication  
between at least one LOC representative with electrical expertise and the defendant’s electrical  
personnel.  
7.  
The LOC and the International Amateur Athletic Association (“IAAF”)  
[96] The LOC had contractual obligations with the IAAF which itself provided a person on  
site before, during and after the Games, one of whose duties it was to liaise between broadcasters  
and the LOC. Lodge was the LOC contact with that liaison person.  
[97] While it is unclear the precise extent to which it may have been part of the contractual  
arrangement between the two, the LOC took it as a very important part of its mandate from the  
IAAF, that it showcase, including for television broadcasting purposes, the City of Edmonton,  
the Games competition and the Games facilities including the Stadium. As part of that  
showcasing, both parties considered it important that the Stadium provide an exemplary  
appearance. This is known in the hosting of international athletic events as “the look”.  
[98] LeLacheur was clear about the importance to both the IAAF and the LOC of the look. At  
pp. 1076 to 1078 of the transcript he said:  
Q Is it fair to say that the IAAF considered this to be an integral  
part of staging of the competition?  
A Yeah, television for a IAAF is a very large revenue, and it's the  
-- this event is the third highest rated sporting event in the world,  
so there is a great television audience to it.  
Q And in addition to a successful competition, the look of the  
venue is critical?  
A Yes.  
Q In fact, the look of the competition venues is fundamental in  
television presentation; you would agree with that?  
A Yes.  
Q That was the IAAF's position?  
A It was theirs. It was everybody's. Of course the look was  
important to all of us.  
Q If it was the IAAF's position, it had to be everybody's position,  
correct?  
A In their mind. Yeah, it was. They -- they certainly played a big  
involvement of wanting everything first-class to look good, so did  
we, but their -- all their rules and regulations we had to follow.  
Q Yes, "we" being the LOC?  
Page: 21  
A Yes.  
Q Is it fair to say that the IAAF required that it was very  
important that designers of the venues think of them as a television  
stage that compliments the performance of athletes and attracts the  
attention of the viewer?  
A That the IAAF says that?  
Q Yes.  
A Yes.  
Q And required that in turn of the Local Organizing Committee?  
A Yes.  
[99] Responsibility for the look was that of Lodge. He designed the look of the Stadium in the  
planning stages, he obtained the approval of the look from the LOC, he consulted with the IAAF  
liaison (before and during the Games) on the look, he implemented the look, and he executed the  
look throughout the course of the Games.  
8.  
The Stadium Lights and “The Look”  
[100] It would seem that one of the contractual obligations the LOC had to the IAAF, may have  
been to follow certain broadcast guidelines, and those guidelines may have included a  
commitment that the LOC was required to provide lights for television broadcasting at night, so  
that broadcasters from different time zones around the world could have a lit Stadium as a  
background for live or real-time broadcasts to those time zones. There is no direct evidence on  
the point, relating to the precise obligations which might indeed have bound the LOC. However,  
it is clear to me that whatever those obligations might have been, if any, the LOC, and in  
particular Lodge, without any notice to or consultation with the defendant, decided only several  
days before the Games actually began, to have the Stadium lighting lit 24 hours a day  
continuously without interruption. That decision was made for the purpose of enhancing “the  
look” of the Stadium so as to provide a backdrop to international television broadcasting from  
Edmonton, commencing days before, through and during the Games.  
[101] The stadium lighting decision came as a surprise to the defendant. First, it had no  
contracts with the IAAF. Second, any contractual obligations the LOC may have had with the  
IAAF did not come to the attention of the defendant, other than by a general assertion of their  
existence, until after Lodge had made the decision. Third, the defendant had in the 1978  
Commonwealth Games hosted a similarly international event, albeit on a smaller scale, without  
any prolonged light usage, let alone continuous light usage. Fourth, it was the defendant which  
was obliged to pay for the utility costs associated with continuous lighting, a factor which  
immediately caused concern to McLennan and about which he complained to Lodge. Fifth, there  
was no other reason for the lights being on continuously. The Stadium was not needed for the  
Games’ events at night, during the mornings and some of the afternoons and some of the  
evenings. Finally it was to be anticipated (accurately as it turned out) that the daytime weather  
conditions before and during the Games competition, were ideal for broadcasting without the  
necessity of Stadium lighting being lit. That the lights were lit during the daytime only made  
Page: 22  
sense in the context of the Stadium itself being showcased by the LOC. I am confident that the  
daytime lighting was in and of itself part of the Stadium’s “look”.  
[102] I conclude that there is nothing which would or should have alerted the defendant to  
anticipate that the lights would be on for the extraordinary length of time they turned out to be  
on, before and during the initial stages of the Games competition.  
9.  
Control Over the Use of the Stadium Lighting  
[103] It was suggested that notwithstanding the contents of the Lease relating to the Stadium,  
the defendant did retain some control over the Stadium lighting, and in particular its use  
immediately before and during the Games competition. I conclude such a view is inconsistent  
with the expectation of each of the parties, as well as how both of them treated issues over the  
Stadium lighting.  
[104] No employee or official of the defendant at any level expressed the view that the  
defendant’s presence in the Stadium immediately before or during the course of the Games was  
anything other than as a service provider to the LOC. Full control over the Stadium and what  
was done there, was seen by all of them to reside with the LOC. There is no evidence to suggest  
that from the defendant’s perspective the LOC was anything but in total and complete control of  
what went on in the Stadium over the relevant time frame.  
[105] Indeed, even the controlled access to the Stadium by the defendant’s employees was so  
restricted that Nicoll and other senior management personnel of the defendant required special  
permission to tour the Stadium the day before the Games’ opening ceremonies.  
[106] As to the expectation of the LOC, the testimony of its own personnel is consistent with a  
total lack of control by the defendant over the use of the lighting. Initially LeLacheur testified  
that the LOC “had exclusive use of the Stadium for a number of days before, during and after the  
Games, but not care and control”. However, he modified that position considerably during cross-  
examination, acknowledging that in each case the timing of the cleaning and lawn maintenance  
services provided by the defendant would ultimately be the decision of the LOC, and not that of  
the defendant. Specifically as to lighting he was cross-examined at pp. 1081 to 1083:  
Q And with respect to the lights, the City can't simply shut down the  
overhead lights if it wants to in the middle of a competition?  
A I think there would be trouble if they did.  
Q There would be trouble with the LOC?  
A For sure.  
Q And there would be trouble with the IAAF?  
A Yes.  
Q There would be trouble with a lot of people? Yes?  
A Yes.  
Page: 23  
Q I think you indicated earlier that if there was a problem though  
in the course of providing these services, you would expect the  
City personnel or their supervisor to bring it to someone in the  
LOC's attention, correct?  
A Correct.  
Q And this would include something along the lines of if there  
were a problem with the lights and they required some time to cool  
down, that's the kind of thing you would expect the City staff to  
bring to the attention of the LOC?  
A Correct.  
Q And the LOC would consider that request, weigh it against the  
obligations that it had to the IAAF, and in particular the TV  
delegate, and then either grant the request or refuse the request or  
modify the request?  
A Yeah, I think we would make requests based on what we  
needed.  
Q Well, actually it would be the maintenance provider, the City,  
requesting direction from the LOC, and ultimately, the LOC or  
their representative would provide that direction to the City?  
A It could be both ways, depending what it was.  
Q The ultimate call though is the LOC's?  
A On decisions to do with the championships, yes.  
Q Yes. And to do with something as particular as the shutdown  
schedule for the lighting.  
A Yes, the schedule of our gates opening, closing, lights, grass  
cutting, all of that.  
Q That's all directed by the LOC?  
A Yeah, it was all scheduled.  
. . . . .  
Q Okay. But fair to say it would be someone from the LOC that  
could make the ultimate call on whether those lights are to run or  
not?  
A Yes.  
Q And that person is most likely, I suggest to you, Guy Lodge,  
the Director of the Venue Fit Out.  
A Correct. He had the biggest relationship with the broadcaster,  
the host broadcaster.  
Q So if the broadcasters want the lights on, they are going to deal  
with Guy Lodge, correct?  
A Correct.  
Q And if Guy Lodge tells the City staff at the stadium that the  
lights are staying on, they are staying on, subject to maybe your --  
Page: 24  
A Yeah.  
Q Subject to maybe your intervention?  
A Yeah, or the board's or I guess if it was a real problem, on or  
off.  
[107] And again at pp. 1085 to 1087 LeLacheur testified:  
Q But when it came to broadcasting requirements, Mr. Lodge had  
the power and authority to tell Mr. McClennan [sic] what was to be  
done, and in particular, with respect to lighting?  
A I know they -- they communicated a lot. He had the ability to  
ask to do what was needed, or it may be in his personality to tell,  
but it got done.  
Q I'm sorry. He had more than the ability to ask that it be done.  
This is the LOC's obligation to provide the proper setting for the  
staging of the games, correct? You indicated that?  
A Correct.  
Q And Mr. Lodge is the person from the LOC in charge of that  
very issue on site at the stadium, correct?  
A Yeah, but it just wouldn't be broadcaster; it was everything. If  
the grass needed cutting for the look.  
Q Sure. Oh, I'm not indicating that Mr. Lodge was there solely to  
operate the lights?  
A Okay. Sorry. I got the miss -- okay.  
Q He is in charge of a large number of things at the stadium?  
A Correct.  
Q Lighting is one of them?  
A Yes.  
Q But ultimately if the broadcasters or the IAAF have a lighting  
requirement, they would work through Mr. Lodge, yes?  
A Yes.  
Q And Mr. Lodge --  
A And the host broadcaster, CBC staff.  
Q Absolutely.  
A Yeah.  
Q They would work through Mr. Lodge. Mr. Lodge had the  
power and authority to indicate to Mr. McClennan [sic] what  
needed to be done?  
A Yes.  
[108] McMahon was of the same view on the issue of control of the Stadium, particularly with  
reference to the Stadium lighting. At pp. 1161 to 1162 he testified as follows:  
Page: 25  
Q With respect to the City as a service provider for maintenance,  
it is fair to say that your expectation would be if there were a --  
was a problem with the lights, you would expect the City staff  
person to respond to that problem?  
A Correct.  
Q If a bulb burnt out, you would expect a City staff person to  
replace it?  
A Right.  
Q You wouldn't expect that City staff person to say, wow, there is  
a bulb out; I'd better ask someone if I can replace it?  
A Correct.  
Q And the same with any other malfunction. You would expect  
the City staff person to go up and investigate and try to deal with it  
if they could, yes?  
A Correct.  
Q But you are not saying that that devolution of power goes to the  
point of actual decision making in terms of operation of the  
facility, especially with respect to lights, correct?  
A Correct. If you take your, I think your point, it would not be  
within a City person's authority to say, Turn the lights off.  
[109] The reality is that it was the LOC, and only the LOC, which in fact did exercise control  
over the lights at the Stadium and their operation at all relevant times.  
[110] On taking possession of the Stadium and on its own initiative, the LOC replaced all 396  
lamps of the lights in anticipation of the Games. I conclude that this was done not for the  
purpose of ensuring that there would be maximum lighting available, but for the purpose of  
enhancing the look of the Stadium. The cost of this lamp replacement was borne by the LOC and  
the act of carrying out the replacement did not involve the defendant or its employees. The  
defendant was not even consulted, only learning of the replacement during Nicoll’s pre-Games  
tour of the Stadium the day before the opening ceremonies.  
[111] After the LOC took possession of the Stadium the defendant requested by the LOC, nor  
did it, inspect or work upon the lights until after the opening ceremonies of the Games. It did so  
at that time only because of its responsibility to maintain the electrical equipment, and after a  
direct request by a spectator on whom insulating oil had dropped.  
[112] As to the actual use or operation of the lighting, that too was clearly dictated by the LOC,  
and this is apparent at several stages in the chronology of events.  
[113] First, the decisions to turn the lights on days before the Games and to have them operate  
continuously without interruption, were made by the LOC, without any consultation with the  
defendant and were made only days before the opening ceremonies. I am satisfied that they were  
made after July 21, shortly after the commencement of the Games Period. When those decisions  
Page: 26  
were communicated by Lodge to the defendant through McLennan, and McLennan resisted,  
objecting on the basis that the decisions were unnecessary and needlessly costly. McLennan’s  
objections were ignored by the LOC and he was told by Lodge to keep the lights on. The  
objections were known not only to Lodge, they were communicated to other levels of the LOC,  
both LeLacheur and the LOC Director of Communications being aware of them before the  
Games actually began.  
[114] Notwithstanding McLennan’s objections, the lights were activated several days before  
the Games began and they remained on continuously at the direction of the LOC.  
[115] Second, days into the Games, and after the second release of insulating oil (which will be  
detailed later in these Reasons), McLennan was advised by the defendant’s electrical staff at the  
Stadium that they had concluded that the releases were being caused because the lights were  
being operated too long without being allowed to cool down by being shut off. McLennan was  
asked to approach the LOC to request that the lights be shut down for that reason. McLennan did  
approach Lodge either that night (August 4) or the next day (August 5) and explained the  
problem with the releases and what it was postulated as the cause, requesting shutdowns. Lodge  
exerted control by responding to McLennan that he would see what he could do to accommodate  
the request and advise McLennan in due course.  
[116] Third, eventually Lodge did respond to McLennan and the request for a shutdown, by  
advising McLennan that a series of shutdowns had been arranged and would be honoured.  
[117] Fourth, within 48 hours of so advising McLennan, one of the promised shutdowns was  
unilaterally revoked by Lodge himself, upon a request having been made to him by a broadcaster  
to leave the lights on when they were to have been off. Lodge personally instructed the  
defendant’s regular Stadium staff to leave the lights on. No notice of the revocation was given to  
McLennan by Lodge or anyone else connected to the LOC. Not only was the defendant’s request  
ignored, so too was its advice.  
[118] Finally, only after McLennan complained to Lodge about the failure to honour the  
promised shutdown and the need for longer shutdowns, and only after Maurer complained  
directly to LeLacheur about the need for shutdowns, did the LOC late in the day of August 7,  
commit to grant the request for extended shutdown periods.  
[119] I note that the Maurer expressed to LeLacheur the defendant’s concern that if the lights  
were not allowed to cool down significantly, there was a risk that all the Stadium lights might be  
lost before the end of the Games. I am sure that the substance of that concern was relayed to  
Lodge and was a factor in the LOC agreeing to provide thereafter comparatively more generous  
shutdown periods than had been the case before.  
[120] I found the testimony of Lodge at p. 2130 interesting:  
Page: 27  
Q Okay. Sir, can you tell me a little about the actual mechanics?  
You were describing a little of the division of the labour that's  
between you and the City, but I am thinking of the actual physical  
turning on and off of the lights. How is that accomplished, sir?  
A That would be purely by request of the facility's team with the  
City of Edmonton. They had a team that they kept on all the way  
through the games that basically worked with us as partners.  
Anything that required physical assistance of the venue, be it  
watering the grass, working on the track, et cetera, et cetera,  
including the lights, we would put the request through to them.  
We, at no time, can actually undertake to do any of those functions  
with the stadium.  
Q How come, sir?  
A Well, it is not part of our remit. I mean, they are like any  
contractor that would work for us, anyone under contract, we  
would just tell the contractor what we would want to do and the  
contractor would perform the duty. Partly, I would imagine, due to  
liability.  
[121] At pp. 2131 to 2132 he continued:  
Q When you indicate you are making this request to Mr.  
McClennan, [sic] fair to say that what you are actually providing  
Mr. McClennan [sic] with his directions as to what you would like  
done because that is what the broadcasters have told you they  
would like done?  
A Yes, on behalf of our client, that's a request we would make.  
Q The client calls the ball in these situations?  
A They do in terms of broadcast coverage and light levels.  
Q What they want, they get?  
A They would do, to a degree, I would say, unless it was  
something that we felt was detrimental to the operation.  
Q Fair enough. So if Mr. McClennan [sic] indicated to you that  
he didn't want to leave the lights on, at your request, I take it you  
would take issue with that?  
A If he didn't want to leave them on?  
Q Yes.  
A He would have to give us a reason why he couldn't run them.  
Q You would expect him to carry out your wishes to leave the  
lights on?  
A Yes, unless there was a good reason why he couldn't.  
Q And if push came to shove, you would be the decision maker to  
carry out the broadcaster's wishes?  
A I am certainly the conduit to put the request forward.  
Page: 28  
Q If there was a problem with Mr. McClennan, [sic] you would  
go up your chain of command presumably to Mr. LeLacheur and  
have it dealt with on the other side.  
A That's correct.  
Q You wouldn't expect the City, Mr. McClennan [sic] or anyone  
on behalf of the City, to simply turn the lights on and off at their  
will, without consulting you?  
A No, we wouldn't expect that to happen.  
Q In fact, you would be pretty upset if they did that, wouldn't  
you?  
A During live coverage it would be a big issue.  
Q Or tape delay coverage?  
A Tape delay coverage, I mean after competition time, you can  
get away with it, but during live coverage, it would be really  
problematic.  
Q You certainly couldn't get away with it if the broadcasters were  
expecting the lights to be on, after hours, to do their time zone  
differential broadcasting?  
A No, we wouldn't.  
Q You would have some pretty upset broadcasters?  
A They would certainly have a, they would get a query on the  
light levels. It wouldn't stop them broadcasting, but it certainly  
would give them some grievance on their cameras.  
Q The decision to run the light 24 hours a day, that was made at  
the outset of the games, I understand?  
A Pretty much. It was either just before or just around day one.  
Q That carried on for a few days?  
A Yeah, to the best of my recollection, I think we ran kind of  
three or four days in that format, as best as I can remember.  
Q It was some time during that period of time that Mr.  
McClennan [sic] approached you and indicated there was a  
difficulty with the overhead lights running too hot, but there was  
problems with the ballasts and that they required some shutdown  
time?  
A Correct.  
Q I take it that you weren't in a position to simply agree to his  
requests, you had to go back and deal with the broadcasters?  
A That's correct.  
Q Ultimately, I understand, a schedule that was satisfactory to the  
City was provided by you?  
A Correct.  
Q Do you remember speaking with Mr. LeLacheur prior to that  
final schedule being implemented?  
Page: 29  
A I don't recall the conversation, but I might have apprised Rick  
of it, the request, and the response from CBC.  
Q In fact, might Rick have contacted you to indicate that yes, this  
was a matter that required some attention and that arrangements  
should be made between the broadcasters and the LOC to allow for  
the shutdown?  
A Again, I can't recall it, but he might well have done.  
[122] It would seem that both LeLacheur and Lodge would disagree with any suggestion that  
the defendant’s regular Stadium staff or its specialized, seconded electrical staff on site at the  
Stadium had some form of control over the Stadium lighting because they may have had access  
to the “on/off” switches to the lights.  
[123] Such a suggestion deals with physical ability, not control. Any suggestion that access or  
physical ability to turn a switch amounts to control without more, makes as much sense as a  
suggestion that a courthouse janitor who has keys to the courthouse has control over the sitting  
hours of court because his keys allow him to control when the courthouse (or courtroom) is open  
or closed.  
[124] Crown counsel in her submissions relied on briefing notes made by Nicoll early on the  
morning of August 7 as indicative of the defendant having control over the use of the Stadium  
lights. In those notes Nicoll suggested that if the LOC did not shut down the lights he would  
instruct the defendant’s staff to do it. Those notes were made shortly after Nicoll had learned that  
Lodge had without notice to the defendant, unilaterally ordered that the lights not be shut down,  
contrary to what the LOC had promised. I view those notes as no more than an expression of  
Nicoll’s annoyance or frustration at the LOC. Nicoll knew he had no authority to order that the  
lights be shut down, that he could not do it himself because he had no access to the Stadium  
because he was not accredited, and that it was McLennan’s Stadium staff, over whom he had no  
authority, who actually performed the physical act of turning the light switches on and off. As  
importantly, Nicoll knew that for him to do so he needed authorization from a higher level of  
command within the defendant.  
D.  
The Releases of Insulating Oil  
[125] It is the theory of the Crown that there were four releases of insulating oil containing  
PCBs from the Stadium lights: on August 3, 4, 5 and 8 (which the Crown alleges actually began  
on August 6). I am satisfied that there were in fact only three such releases: on August 3, 4 and 8  
(and that the August 8 release did not begin any earlier). Additionally, it is agreed that there was  
a further, later release of insulating oil containing PCBs from the Stadium lights on August 12.  
There are no charges relating to that later release. I will discuss the evidence of all actual and  
alleged releases in chronological order.  
1.  
Capacitor Rupture #1 and Resulting Release #1 on Friday, August 3 - Over  
Section H  
Page: 30  
[126] Drops of insulating oil from a ruptured capacitor of one of the Stadium’s 396 ballasts, fell  
from that light onto three companion spectators seated in Section H, row 73, in three of seats 4 to  
7 inclusive, on the evening of Friday, August 3, during the Games opening ceremonies. There  
were two other companion spectators in the party of five persons, but there is no evidence that  
drops of insulating oil fell on them.  
[127] The capacitor which ruptured was manufactured by Westinghouse. The insulating oil  
contained in this, or a similarly ruptured Westinghouse capacitor discovered on August 4, was  
subsequently analyzed and found to consist of 300,000 parts per million of PCBs. That is to say,  
the PCB content of or concentration in the insulating oil was 30%. A chemical analysis indicated  
that the so ruptured capacitor contained a particular PCB mixture - Aroclor 1242.  
[128] The insulating oil of one of the other two capacitors attached to the ruptured  
Westinghouse capacitor, a capacitor manufactured by Aerovox, was also analyzed and found to  
be pure or 100% PCBs. A chemical analysis was also performed on that insulating oil and it too  
disclosed that the particular PCB mixture was Aroclor 1242.  
[129] The three spectators heard complaints of similar dripping from others nearby, and  
observed similar drops on concrete near where they were sitting, describing the drops as being of  
an oily texture, coloured blackish or brownish and containing particulates.  
[130] The first of the spectators testified that there were four drops which fell on his body: one  
on his neck, one on each of two fingers and one on his toe. There were also drops on his  
clothing, four on his shirt and one on his shorts. He indicated that no drop was more than about a  
millilitre in volume. He was able to wash off the oil from his body about an hour to an hour-and-  
a-half after the incident and later again when he showered on arriving home within four hours of  
the incident, except for some of the oil which had lodged beneath two fingernails. The  
discolouration from the oil could not be removed from the skin beneath those fingernails for  
about eight or ten days. The drops on his clothing disappeared after three or four washings.  
[131] The second spectator testified in his examination-in-chief that as many as six to 12 drops  
fell on his hands, that one to two drops fell on his face and that other drops landed on his  
clothing. In cross-examination he said that between two and six drops fell on his hands and that  
he was only certain (a 99% certainty) that one fell on his face. He was not interviewed by an  
AEP investigator until more than two years after the incident. He did not recall when he washed  
next or whether his clothing was stained.  
[132] The third spectator testified that a total of about 10 drops fell on his head and forearms.  
On cross-examination he conceded that the number of drops may have been between five and 10.  
He too was not interviewed by an AEP investigator until more than two years after the incident.  
He too felt no need to wash immediately. He was able to wash the drops off when he showered  
that night, using soap and a wash cloth. He saw no drops on his clothing.  
Page: 31  
[133] There is no evidence that any drop from this release came into contact with any food  
consumed by a spectator.  
[134] Any residue of the drops which fell onto the concrete was cleaned by the defendant’s  
contracted cleaning staff overnight as part of the routine Stadium cleaning, without any  
particular precaution.  
[135] Two of the spectators were familiar with the history of PCB use in electrical equipment.  
They joked at the time about whether the oil which fell upon them, and which they concluded  
had originated with one of the Stadium lights, contained PCBs. One of them was not overly  
concerned, concluding that the oil was condensation from the lights which had picked up dust  
and dirt before falling.  
[136] Notwithstanding a lack of any immediate concern about the oil containing PCBs, the first  
spectator, James Dykeman (“Dykeman”), was sufficiently concerned about the whole incident,  
as well as poor concession service, that upon arriving home later that night he telephoned the  
Stadium to complain. The next morning he made contact with McLennan, at which time he  
inquired whether the oil might contain PCBs. McLennan undertook to attempt to ascertain that  
and to so advise him.  
[137] Several days later, AEP investigators consulted the defendant’s electrical staff assigned  
to the Stadium, in order to identify specific areas where other drops of oil might have landed on  
the Stadium’s seats or concrete. The area so identified in Section H was that encompassed by  
rows 68 to 73 inclusive, and seats 1 to 8 inclusive.  
[138] Seven random samples were taken by or under the direction of AEP, from the area  
identified in Section H, on four separate occasions, from August 10 to August 16, as the clean up  
of the site progressed. The sampling sites were selected randomly because the defendant’s initial  
cleanup, before AEP became involved, rendered invisible the residue of any drops. The samples  
were taken from the seats and surrounding concrete stands.  
[139] The seven samples were analyzed and four disclosed the presence of the same particular  
PCB mixture, Aroclor 1242, above the allowable cleanup limit of less than 10 ug/100 cm². Those  
were found at row 72, seat 7 (11 ug/100 cm², on August 10), row 73, seat 5 (2000 ug/100 cm², on  
the morning of August 16), row 70, seat 5 (60 ug/100 cm², on August 16), and row 71, seat 4 (10  
ug/100 cm², on August 16). By “allowable clean up limit” I mean the criteria set by AEP.  
2.  
Capacitor Rupture #2 and Resulting Release #2 on Saturday, August 4 -  
Over Section F  
[140] Drops of insulating oil from a second ruptured capacitor of another Stadium ballast fell  
from that light onto a couple from Ontario who were seated in Section F, row 72, seats 16 and  
17, on the afternoon of Saturday, August 4, during the Games competition. Section F is two  
Page: 32  
sections south of Section H, both Sections located on the Stadium’s west side. This ruptured  
capacitor was also manufactured by Westinghouse.  
[141] The couple noted small black “dots”, one or two on the man’s hands, one on the woman’s  
arm which had been covered in suntan lotion, and others on their clothing including the man’s  
hat. When they looked around they observed similar dots on the concrete stairway beside them.  
Unable to immediately discern the source of the dots they gazed up and on seeing the Stadium  
lights concluded that the lights were source of the dots. The man concluded that there had been a  
mechanical misfunction with the lights or that particulates from some earlier lighting  
maintenance had fallen as drops.  
[142] The “dots” were further described as oily and a bit heavier than water.  
[143] There were no other spectators in their vicinity at the time.  
[144] The man wiped his hands and the one or two dots smudged. The woman brushed the dot  
off her arm with her hand. Both may have washed their hands before they showered that night.  
[145] The couples’ only concern at the time was about the damage to their clothing. They  
complained to a volunteer, and the matter soon came to the attention of McLennan the same  
afternoon. He sent another employee of the defendant under his supervision, to speak to the  
couple. Over the course of the next several days it became apparent that the couple’s clothing  
could not be properly cleaned, and the defendant compensated them for the damaged clothing  
before they left for Ontario on August 11. At no time before they returned to Ontario were the  
couple told about any possibility that the oil contained PCBs.  
[146] Again, there is no evidence that any of the drops from this release came into contact with  
any food consumed by a spectator.  
[147] As noted, several days later AEP investigators consulted the defendant’s electrical staff  
assigned to the Stadium, in order to identify the specific areas where other drops of oil might  
have landed on the Stadium’s seats or concrete. The area so identified in Section F was that  
encompassed by rows 68 to 74 inclusive, and seats 10 to 17 inclusive.  
[148] Again, seven random samples were taken from the area identified in Section F. They too  
were taken on four separate occasions, from August 10 to August 16, as the clean up of the site  
progressed. The sampling sites were similarly selected randomly because the defendant’s initial  
cleanup, before AEP became involved, rendered invisible the residue of any drops. These  
samples were also taken from the seats and surrounding concrete stands.  
[149] These seven samples from Section F were analyzed. Only one, taken the morning of  
August 16, disclosed the presence of any PCB mixture, also Aroclor 1242, above the allowable  
cleanup limit of less than 10 ug/100 cm². It was found at row 70, seat 6. It measured 8700 ug/100  
cm².  
Page: 33  
3.  
Capacitor Rupture #3 and Alleged Resulting Release #3 on Sunday, August 5  
[150] There is only vague evidence of a ruptured capacitor on Sunday, August 5, and it comes  
entirely from Nicolls’s recollection of two telephone calls which Wright made to him the same  
evening concerning ongoing problems with the Stadium lighting. Nicoll identified the day as  
Sunday, August 5. It is clear to me that Nicoll’s recollection is based largely on two pages of his  
notes for that particular day, namely pages 7 and 8 which, as I have already noted earlier in these  
Reasons, I have concluded refer to telephone calls made to Nicoll at the end of the next day,  
Monday, August 6.  
[151] Nicoll recalls that in the first telephone call, Wright advised of a light failure, but that the  
failure was not a capacitor failure. Therefore there would be no leakage of insulating oil.  
[152] According to Nicoll, the second telephone call (which Wright does not recall making)  
reported a capacitor rupture with resulting leaking from the capacitor. However, Nicoll indicated  
that he was confident that there was no leakage from the ballast. Nicoll took pains to describe the  
leakage from the capacitor as “weeping”, which amounted to nothing more than the escape of  
insulating oil from the interior of the capacitor which remained on or adhered to the outside of  
the capacitor.  
[153] Moreover, leakage of insulating oil from a capacitor does not equate to leakage of  
insulating oil from the ballast. It may leak from the capacitor but remain confined within or on  
the ballast where the capacitors are housed.  
[154] There is no precise evidence as to when the rupture was discovered, by whom it was  
discovered or how it came to be discovered. There is no evidence as to where in the Stadium this  
capacitor was located (and therefore not surprisingly, there is no evidence of the taking of  
random samples in a subsequent investigation which might confirm a release from the ballast).  
[155] While I conclude that this was a third rupture of a capacitor, the evidence falls far short  
of satisfying me that any insulating oil escaped the capacitor, let alone the ballast. The Crown  
has failed to prove a release.  
[156] As with the capacitors which ruptured and were discovered three and seven days later on  
August 8 and 12 respectively, leading to the third and fourth releases of insulating oil, there is no  
evidence at all as to the manufacturer of this capacitor or what thereafter happened to it.  
Accordingly, there is no evidence as to the chemical composition of the insulating oil contained  
in this capacitor which would lead me to conclude that it did contain PCBs or any other harmful  
substance. This is not insignificant because there is evidence that not all capacitors necessarily  
contain PCBs. Further, the evidence is that at the most, four out of the Stadium’s 1188 capacitors  
(396 lights multiplied by three capacitors per light) were chemically analyzed to determine  
whether their insulating oil contained PCBs. While those four analyzed capacitors all did contain  
Page: 34  
PCBs, the testing revealed at least two separate concentrations of PCBs and two different  
particular Aroclor mixtures.  
4.  
Pickard’s “Discovery”  
[157] Gary Pickard (“Pickard”) was an electrician employed by the defendant and part of the  
electrical staff assigned to the Stadium for the Games under the supervision of Luipasco.  
[158] In the early morning of August 4, perhaps in response to the complaints initiated earlier  
that night by Dykeman, Pickard was sent up to the west catwalk of the Stadium to locate the  
source of the oil dripping onto the stands from the first ruptured capacitor. He was able to do so  
by observing the visible residue of insulating oil on the ballast which contained the ruptured  
capacitor.  
[159] It was extremely windy, and concerned about his own personal safety in that condition  
and location, rather than removing the ballast or its contents at the time, and without opening or  
otherwise examining the ballast, Pickard disconnected the lamp of the light from the ballast at  
the junction box; and in order to prevent any dripping onto the stands below, bagged the entire  
ballast using duct tape and a large garbage bag, in anticipation that the ballast or its contents  
would be removed at a later time.  
[160] He went back to ground level and shortly thereafter went home for the weekend, to return  
to the Stadium on the morning of August 6.  
[161] In March, 2002, Pickard was interviewed by an AEP investigator. In that interview  
Pickard was asked about his activities on August 6. He said no more about those activities than  
that he had been instructed to patrol the catwalks looking for evidence of further leaks from  
ballasts, that he and his co-workers had been issued protective gloves, that he had learned that  
the insulating oil which had leaked from the first two ruptured capacitors might contain PCBs,  
that he removed the capacitors from the ballasts of two lights, and that he went on vacation at the  
end of his shift until September. At the end of his interview he was asked by the investigator if  
there was anything he wanted to add, to which he replied in the negative.  
[162] However, when testifying, Pickard added a great deal. He suggested that while patrolling  
the catwalks on August 6 he discovered two lights with problems. On cross-examination he  
conceded that the first discovery related to a light fixture which had not only failed some time  
earlier, it had been bagged earlier. He suggested that it might even have been the same ballast he  
had bagged days before.  
[163] Pickard added that his second discovery of a light with a problem occurred later that day.  
After examining the ballast of that second light, Pickard disconnected the ballast from the lamp,  
and bagged and removed the ballast contents. In doing so he followed the protocol developed  
earlier during the Games for the disconnecting, bagging and removal of ballast contents and the  
Page: 35  
cleaning of the ballast canister and tray, except that instead of being taken to the electrical room,  
he took them to one of the defendant’s trucks.  
[164] Pickard’s testimony is confusing in two significant respects. The first is as to which  
particular ballast contents he actually did remove; and specifically, whether they included either  
of the ruptured capacitors which were the source of the August 3 and 4 releases. Pickard’s  
testimony must be placed in the context of other testimony concerning the removal of the  
ruptured capacitors involved in the releases of August 3 and 4, as well as the testimony of Nicoll  
from which I conclude that around the same time frame there were other light failures which did  
not necessarily involve ruptured capacitors.  
[165] Luipasco testified that on the Saturday morning, August 4, the first ruptured capacitor  
involved in the release the earlier evening, together with its two attached intact capacitors, were  
removed from the ballast and taken to the ground. He also testified that the second ruptured  
capacitor involved in the release earlier that afternoon, together with its two attached intact  
capacitors, had been bagged that afternoon to prevent further dripping onto the stands and left in  
place for later removal; and later that night they were removed and taken to the ground.  
[166] I am satisfied that Luipasco was accurate when he testified that both the first and second  
ruptured capacitors were removed from the lights on the Saturday, and therefore Pickard was  
mistaken when he concluded that one of the ballast contents which he removed on August 6  
could have been from the ballast he bagged two nights earlier.  
[167] This finding is not inconsistent with the testimony of Wright or the electrician Charles  
Fougere as to their involvement with the first ruptured capacitor causing the release on August 3.  
A careful analysis of their testimony shows that that ruptured capacitor was in place in the ballast  
when Fougere examined it the next morning, and that it probably was not removed by Fougere.  
Fougere climbed up to the catwalk to retrieve information and data from the markings on the  
ruptured capacitor, not to retrieve the capacitor itself. His evidence is only consistent with his  
having left the capacitor in place for later removal. I conclude that he did leave it and it was  
removed later that morning as described by Luipasco.  
[168] That is not to say that Pickard did not remove a previously bagged ballast or its contents.  
It may well even be that what he removed was bagged equipment related to the already  
mentioned light failure which did not involve a ruptured capacitor which was reported by Wright  
to Nicoll and which Nicoll mistakenly attributed to the previous day.  
[169] Indeed, it may well be that the second discovery Pickard related having been made by  
him that same day, relates to the second report by Wright to Nicoll of a ruptured capacitor which  
did not leak. In that regard, while Pickard’s testimony establishes a leak of oil from a ruptured  
capacitor, it falls short of proof that there was a release of insulating oil from the ballast itself. It  
goes only so far. Leakage of insulating oil from a capacitor does not equate to leakage of  
insulating oil from the ballast because so long as it remains contained in or adhering to the  
ballast, it is secondarily contained and not released into the environment.  
Page: 36  
[170] Regardless of any speculation that Pickard’s discoveries were the basis of the reports by  
Wright to Nicoll which in my view Nicoll should have attributed to the same day, August 6, I  
repeat what I have said with respect to the alleged release of August 5.  
[171] First, again there is no evidence as to where in the Stadium this allegedly ruptured  
capacitor was located other than on the west side (and therefore not surprisingly, there is no  
evidence of the taking of random samples in a subsequent investigation which might confirm a  
release from the ballast). Second, I am not satisfied that any insulating oil escaped the confines  
of the ballast, let alone that any may have fallen into the Stadium. The Crown has failed to prove  
that Pickard’s evidence amounts to a release. Third, there is no evidence at all as to the  
manufacturer of this allegedly ruptured capacitor or what thereafter happened to it once it was  
removed by Pickard and placed in the truck. Fourth, there is no evidence as to the chemical  
composition of the insulating oil contained in this allegedly ruptured capacitor, which would lead  
me to conclude beyond a reasonable doubt that it did contain PCBs or any other substance  
capable of causing an adverse effect.  
[172] Finally, I comment on Pickard’s passing suggestion in his cross-examination that what  
attracted him to the ballast where he found the ruptured capacitor which had leaked insulating oil  
into the ballast canister tray and the inside of the ballast canister can, was smoke emanating from  
the ballast. The only other thing he said with respect to that observation was at pp. 1232 to 1233:  
Q What did you observe when you opened the canister?  
A I saw a ruptured capacitor. There was oil in the tray, and the oil  
had got on to the transformer which I believe caused the smoke.  
Q The transformer is a coiled unit located next to the capacitors,  
correct?  
A That's correct.  
Q It operates hot, I take it?  
A Yes.  
Q The transformer generates heat as the light is on?  
A Yes, especially when it's 30 above.  
Q The colour of the oil inside the canister?  
A Kind of a brownish black colour.  
Q My understanding is it's all over the inside of this canister,  
correct?  
A That's right, in the tray.  
Q In the tray and on the inside of the canister, as well?  
A Yes.  
[173] There was no expert testimony before me which would allow me to conclude, and I am  
not prepared to conclude in the absence of such evidence, that the smoke Pickard claimed to see,  
came from the burning or combustion of the insulating oil. It seems to me that any such smoke  
Page: 37  
may have been caused by the combustion of some other fuel which was involved in the  
construction of the transformer.  
[174] As will be noted later in these Reasons, there is evidence that at least one capacitor which  
ruptured during the Games contained insulating oil made up of a PCB mixture other than Aroclor  
1242; specifically it contained the PCB mixture, Aroclor 1016. The ruptured capacitor observed  
by Pickard on August 6 may well have been that ruptured capacitor which was later examined by  
Dr. Birkholz and found to have evidenced electrical arcing.  
[175] If it was, and even if the smoke actually was the by-product of the combustion of the  
insulating oil as distinct from some other fuel which may have been involved in the construction  
of the transformer, while it was examined for the presence of dioxins and furans by Birkholz,  
Birkholz gave no evidence as to the quantity of insulating oil in that capacitor which may have  
combusted. His evidence was limited to measuring the dioxin and furan weight produced by the  
combustion of one drop of that insulating oil. Nor did Birkholz testify that there was any risk of  
harm from the combustion of such oil, other than to note that the combustion of one drop of such  
oil, because it was Aroclor 1016, carried no risk of any toxic equivalency for dioxins or furans.  
[176] In conclusion, I am not satisfied beyond a reasonable doubt that on August 6 there was  
either a release from the ballast or, if there was a release, that it was a release of any harmful  
substance which might cause an adverse effect.  
5.  
The Logie/Stephen Incident  
[177] It is the theory of the Crown that the release over section T, actually began on Monday,  
August 6, but that it was not discovered until late on Wednesday, August 8. The factual  
underpinning of this theory is an incident described by Leslie Logie (“Logie”) and Julie Stephen  
(“Stephen”).  
[178] The two middle-aged friends attended the afternoon competition at the Stadium on  
Monday, August 6. Their tickets were located in Section T, row 58, seat 8 and a seat adjacent to  
seat 8. The ticket to seat 8 was produced at trial by Logie.  
[179] Logie was very clear, precise and certain about the date of the incident and about where  
she and Stephen were seated. She testified that when they arrived at the Stadium, because there  
were empty seats, they initially did not sit in their assigned ticketed seats. However, as the  
afternoon wore on and the Stadium began to fill with spectators, they “moved up” to their  
ticketed seats, in the upper deck, where they were seated at the time of the incident she and  
Stephen described. According to her they had been seated in their ticketed seats about an hour  
before the incident.  
[180] Section T is on the east side of the Stadium. That they were seated there is essential to the  
Crown’s theory concerning the incident.  
Page: 38  
[181] However, many significant parts of Logie’s testimony place her on the other side of the  
Stadium, almost directly opposite Section T. Logie indicated that at the time of the incident the  
sun “was behind my right shoulder”, which she agreed would place her on the west side. Further,  
she was most insistent that the area reserved for the media, was below her and to her right, and  
that the media area was clearly and plainly visible as such. This too would place her on the west  
side, of the Stadium, across from Section T. In addition, she placed the podium for medal  
presentations below her and to her right. The podium was in fact at the south end of the Stadium  
so that she would have been on the west side. When asked about her level of certainty as to these  
factors relating to her location at the time of the incident, she emphatically stated that “I am  
absolutely sure”.  
[182] Stephen was unable to place herself anywhere in the Stadium except by the ticket stub  
indicating she was in Section T and was seated next to Logie. She too insisted that they were  
seated at the time in the ticketed seats in Section T.  
[183] Not only does the evidence of Logie raise a doubt in my mind that the incident testified  
to occurred in section T, I think it is very probable that she and Stephen were seated on the other  
side of the Stadium.  
[184] Further, the only other evidence of a release of oil in Section T is that it fell onto rows 72  
to 75 in Section T, some 14 rows higher than their ticket seating. The lowest row anywhere in  
the Stadium where there is any evidence of any oil having fallen in any other release, is row 70.  
[185] I am confident that Logie and Stephen are not confused in their recollection of August 6  
with their second attendance at the Games two days later on Wednesday, August 8, where their  
assigned ticketed seats were in Section P, row 33. That ticketed location is even more remote  
from Logie’s recollection than the first ticketed location. Section P is also on the east side, but at  
the north end of the east side, and row 33 is on the lower deck.  
[186] There are other problems with linking the testimony of Logie and Stephen to a release of  
insulating oil. Both described the droplets they saw fall on them as clear. Logie suggested that  
there was a yellowish tinge, although she indicated that the tinge may have been caused by  
sunlight. Stephen at the time thought it was water. By contrast, the evidence relating to the other  
releases of insulating oil is that the drops which landed on persons, concrete and seats were  
brownish or blackish in colour.  
[187] The Crown sought to establish a link between what Logie and Stephen describe as having  
occurred and the fact that they both suffered a periodic but decreasing series of dissimilar rashes  
beginning, in the case of Logie, a month or two, and in the case of Stephen, probably a year after  
the incident. Logie testified that her rashes lasted a few days and would then disappear only to  
return on a different place on her body. Stephen described a rash that lasted months before  
disappearing, only to recur. Neither woman sought medical attention for the rash. It was  
described by Logie as an unusual rash but although she is a practising nurse she did not see fit to  
consult a medical doctor.  
Page: 39  
[188] Dr. Hansen (“Hansen”), a Crown witness whose testimony will be reviewed later,  
testified that these descriptions were consistent with exposure to PCBs. Hansen is not a  
dermatologist, let alone a medical doctor. Hansen not only did not examine any of rashes, he did  
not speak to either woman, relying only on the transcripts of their testimony in this trial.  
[189] Consistency with PCB exposure, in the absence of other evidence, does not mean  
inconsistency with other causes. Moreover, there is other evidence that there are no studies  
where a rash resulting from PCBs ever occurred from but a single exposure. In my view there is  
no medically reliable diagnosis of the rashes, let alone their etiology.  
[190] In advancing this theory, the Crown relies on the results of blood analysis conducted to  
determine the level of PCBs in the bodies of the two women from samples taken from them in  
December, 2003. Hansen testified that those results are consistent with PCB exposure. However  
there are no comparators indicating what their levels were at any time before the samples were  
taken, and absent base levels established before then, it is very problematic to draw any reliable  
inferences at all about the timing or extent of any PCB exposure they may have been subjected  
to.  
[191] The Crown also relies in advancing this theory on the testimony of a meteorologist to the  
effect that it was “unlikely” that there was any water precipitation which fell that afternoon at the  
Stadium, based upon meteorological measurements made only a few miles away. That  
unlikelihood does not make it likely that the drops Logie and Stephen may have observed were  
of insulating oil. As Stephen herself postulated at the time, it might have come from the activities  
of other spectators.  
[192] I note that neither Logie nor Stephen gave the incident they described any further thought  
until more than 18 months later when they learned from a newspaper of the laying of the charges  
in this case, and thereafter discussed it between themselves. I acknowledge that while that delay  
may offer an explanation as to why Logie might be mistaken when she clearly places herself on  
the west side of the Stadium, it at the same time makes the balance of her testimony unreliable.  
[193] I also observe that within six weeks of learning of the laying of the charges against the  
defendant, Logie contacted not only AEP, but also the defendant’s claims department making a  
claim for damages.  
[194] In the result, I am unable to attach any weight to the testimony of Logie or Stephen as  
that testimony may relate to the charges before me.  
6.  
Capacitor Rupture #4 and Resulting Release #3 on Wednesday, August 8 -  
Over Section T  
[195] Drops of insulating oil from a ruptured capacitor of a third Stadium ballast, fell from that  
light onto the Stadium stands in Section T, rows 72 to 75 inclusive, seats 5 to 12 inclusive, on the  
Page: 40  
evening of Wednesday, August 8 after the conclusion of the Games competition that day, and  
after the spectators had departed. Section T is on the east side of the Stadium, while Sections F  
and H are on the west side.  
[196] There is no evidence at all as to the manufacturer of this ruptured capacitor or what  
thereafter happened to it after the release.  
[197] There is no reliable evidence as to precisely when the drops fell other than that the  
defendant’s staff discovered it after the end of the Games competition that day, and following the  
departure of spectators. Nor is there any evidence as to who made the discovery or how it came  
to be made. That the release was discovered when it was discovered, and that the spectators had  
left, leads me to conclude that the release was discovered as a result of the inspection protocol  
which will be discussed later in these Reasons.  
[198] As noted, two days later AEP investigators consulted the defendant’s electrical staff  
assigned to the Stadium, in order to identify specific areas where other drops of oil might have  
landed on the Stadium’s seats or concrete. The area so identified in Section T was that  
encompassed by rows 71 to 76 inclusive, and seats 3 to 12 inclusive.  
[199] Again, random samples, 18 in number, were taken from the area identified in Section T.  
They were taken on six separate occasions, from August 10 to August 23, as the clean up of the  
site progressed. These sampling sites were similarly selected randomly, because the defendant’s  
initial cleanup, before AEP became involved, rendered invisible the residue of any drops. These  
samples also were taken from the seats and surrounding concrete stands.  
[200] The 18 samples from Section T were analyzed and 13 disclosed the presence of the same  
PCB mixture, Aroclor 1242, as had been involved in the first two releases, above the allowable  
cleanup limit of less than 10 ug/100 cm².  
[201] Three of the four samples taken on August 10 were over the allowable cleanup limit, and  
were located at row 72, seat 5 ( 44 ug/100 cm²), row 73, seat 10 (160 ug/100 cm²), and row 74,  
seat 7 (7,200 ug/100 cm²).  
[202] Two of the four samples taken on the morning of August 16 were above the allowable  
cleanup limit and were found at row 72, seat 12 (150 ug/100 cm²) and row 73, seat 6 ( 960  
ug/100 cm²).  
[203] Two later samples taken on August 16 were both higher than the allowable cleanup limit.  
They were located at row 73, seat 7 (20 ug/100 cm²) and row 74, seat 7 (1700 ug/100 cm²).  
[204] Both of the samples taken in the evening of August 16 exceeded the allowable cleanup  
limit, and were situate at row 72, seat 7 (60 ug/100 cm²) and row 74, seats 5 and 6 (5400 ug/100  
cm²).  
Page: 41  
[205] Three samples, taken early on August 23, all disclosed an excessive cleanup limit, and  
were found at row 74, seat 7 (1700 ug/100 cm²), row 74, seat 7 (630 ug/100 cm²), and row 75,  
seat 7 (80 ug/100 cm²).  
[206] Only one of the three samples taken later on August 23, after the concrete had been  
sealed, was over the allowable cleanup limit. It was found at row 73, seats 9 and 10, and  
measured 20 ug/100 cm².  
7.  
Capacitor Rupture #5 and Resulting Release #4 on Sunday, August 12 - Over  
Section N  
[207] Three drops of insulating oil from a ruptured capacitor of a fifth Stadium ballast fell from  
that light onto the Stadium stands in Section N, rows 70 to 72 inclusive, seats 11 to 15 inclusive,  
on the evening of Sunday, August 12 apparently after the conclusion of the Games closing  
ceremonies and after the spectators had departed. Section N, like Section T, is on the east side of  
the Stadium, but several sections to the north.  
[208] As is the case with the capacitor which ruptured over Section T, there is no evidence at  
all as to the manufacturer of this ruptured capacitor or what thereafter happened to it after the  
release.  
[209] There is no evidence as to precisely when the drops fell, as to who made the discovery or  
how it came to be made.  
[210] Several days later AEP investigators again consulted the defendant’s electrical staff  
assigned to the Stadium, in order to identify specific areas where other drops of oil might have  
landed on the Stadium’s seats or concrete in Section N. Again, random samples were taken from  
the area identified in Section N. These samples were analyzed and disclosed the presence of the  
same PCB mixture, Aroclor 1242 as had been released on the three earlier occasions.  
[211] The defendant has not been charged with any offence related to this capacitor rupture and  
resulting release.  
E.  
Identification and Continuity in Handling of Ruptured Capacitors  
[212] There are problems arising out of the absence of evidence of the continuity in the  
handling of the ruptured capacitors.  
[213] There is no evidence with respect to the releases of August 3 or August 4 as to who  
actually removed the ruptured capacitors from the lights to the ground. Only one of two  
electricians on duty at the Stadium on August 4 was interviewed by an AEP investigator and  
called to testify. On both occasions he was not asked whether he was involved in the removal.  
The other electrician on duty that day was neither interviewed by AEP investigators nor called to  
testify. There were yet two other electricians on duty on August 5, but they were neither  
Page: 42  
interviewed by AEP investigators nor called to testify. There was still another electrician on duty  
on August 6 besides Pickard, but he was neither interviewed by AEP investigators nor called to  
testify.  
[214] There is no evidence that the ruptured capacitors involved in the August 3 or 4 incidents  
were in any way marked or identified so as to indicate which related to which location or  
incident, either before or after their removal. Nor is there evidence that they were isolated from  
one another or from any other ruptured capacitor. There is no precise evidence as to where they  
were taken and stored. There is no precise evidence as to which of the two was delivered by the  
defendant to the laboratory (“Enviro-Test”) for analysis on August 7, other than Luipasco  
thought that was the one involved in the first incident.  
[215] I observe again that I have no idea from the evidence who manufactured the other three  
ruptured capacitors, particularly the two involved in the releases of August 8 and 12, who  
handled them, or what may have happened to them after their removal. There is no evidence that  
they were in any way marked or identified so as to indicate which related to which location or  
incident, either before or after their removal. Nor is there evidence that they were isolated from  
one another or from any two ruptured capacitors involved in the first two incidents.  
[216] Had there been evidence of continuity in the handling of the ruptured capacitors, perhaps  
Pickard’s testimony concerning his discoveries of August 6 would have been clearer.  
[217] The absence of evidence of continuity may well explain other seemingly inconsistent  
evidence. On August 10 Luipasco provided to an AEP investigator what Luipasco considered  
was the first ruptured capacitor and its companion intact capacitor involved in the August 3  
incident, and which Luipasco thought had been delivered to and returned from Enviro-Test after  
they had been there earlier in the week for analysis. This will be discussed later in these Reasons.  
Photographs were taken of the two capacitors by the AEP investigator. I accept Luipasco’s  
evidence that what was photographed was a ruptured capacitor and the intact capacitor which he  
had drilled to extract oil and then taken to Enviro-Test.  
[218] On August 16 the same AEP investigator asked Luipasco to surrender to him two  
capacitors. Luipasco testified that the two capacitors which he surrendered to the investigator  
were the same two capacitors (one ruptured and one intact) which had been photographed on  
August 10 by the AEP investigator. The investigator also thought that what was surrendered on  
August 16 were the same two capacitors he had photographed, although his own conclusion was  
that both were ruptured. I conclude that Luipasco was wrong, what was surrendered were two  
ruptured capacitors. The AEP investigator was correct about that, but wrong because they were  
not exactly what had been photographed on August 10. In making this conclusion I rely upon the  
opinion of Birkholz who expressed confidence that both the surrendered capacitors were  
ruptured and that neither was the ruptured capacitor which had been examined earlier when  
taken to Enviro-Test by the defendant.  
Page: 43  
[219] Regardless of anything else, the results of the analysis performed by Birkholz on the two  
surrendered capacitors establishes that one of them contained a totally different PCB mixture,  
Aroclor 1016, than the PCB mixture Aroclor 1242 which was released in each of the only four  
occasions where PCBs were proven to have been released: August 3, 4, 8 and 12. Clearly, that  
particular ruptured capacitor could not have been one of those analyzed on behalf of the  
defendant, which was related to either the August 3 or 4 rupture and release. As a result, one  
might speculate that it was the very one discovered by Pickard or someone else before there was  
a release.  
[220] Of considerable significance is the fact that the absence of continuity in the handling of  
the ruptured capacitors, leads to the further conclusion that the ruptured capacitor which was  
surrendered to the AEP investigator on August 16 and which did contain Aroclor 1242 in its  
insulating oil, is as capable of being the capacitor which ruptured and from which insulating oil  
was released into the Stadium on August 12, as being those from which insulating oil was  
released on August 3, 4 or 8. Indeed, the testimony of Birkholz that it certainly could not have  
been the one analyzed as a result of the August 3 or 4 releases, shortens the odds even further in  
favour of a conclusion that the surrendered capacitor was actually related to the August 12  
incident and not to any of the charges in this case. This is important in the risk assessment  
resulting from Birkholz’s analysis of that particular ruptured capacitor, as will be discussed later  
in these Reasons, because there is no evidence of burning or combustion in any of the other  
ruptured capacitors which have been proven to have contained the PCB mixture Aroclor 1242.  
F.  
Quantity of Insulating Oil Released  
[221] As I have said earlier in these Reasons, the best evidence before me as to the quantity of  
insulating oil in any of the intact capacitors in the Stadium, is that an intact capacitor was found  
to contain an once of insulating oil.  
[222] That evidence comes from the testimony of Luipasco on what he measured as the  
quantity of an intact capacitor. That measurement was made by him on the morning of August 7,  
when he drilled open an intact capacitor manufactured by Aerovox, drained from it the insulating  
oil contained in it and measured the quantity of the drained oil by sight. The purpose of draining  
the capacitor was to obtain a sample of insulating oil for analysis to determine if it contained  
PCBs. The purpose was not to measure the quantity of insulating oil in a capacitor. The evidence  
as to the quantity of insulating oil consists only of the following testimony at pp. 1317 to 1318:  
Q And what did you do after you drilled the capacitor?  
A I drilled a quarter-inch hole into one side of it, and then I  
squeezed all the liquid out into a little glass vial.  
Q My understanding, Mr. Luipasco, is that you didn't take an  
accurate measurement of the amount of oil that you were able to  
extract from the capacitor? You didn't use a graduated cylinder or  
anything?  
Page: 44  
A No, no, I squeezed it as much as I could until it stopped coming  
out.  
Q And your best estimate is that there was approximately an  
ounce of fluid?  
A About an ounce.  
Q Maybe up to an ounce and a half?  
A Possible, not much more than an ounce, though.  
Q And it was that vial, plus the two Aerovox capacitors, plus the  
Westinghouse capacitor that you submitted to Enviro-Test later  
that morning?  
[223] There is no other reliable evidence as to who else, if anyone, may have been present at  
the time Luipasco drilled out and drained the intact capacitor, or as to the quantum of insulating  
oil which was extracted.  
[224] From the statement he provided to the AEP investigator, one might infer that Nicoll was  
present during the extraction process, and that he actually observed the bottle containing the  
extracted insulating oil. In that statement he estimated the quantum at half an ounce to an ounce,  
comparing what he saw to a shot glass. However, in my view it could just as easily be inferred  
that his knowledge, both as to what took place and the quantity measured, was information given  
to him by Luipasco or Wright.  
[225] Nicoll was not specifically asked at trial whether he did in point of fact see the extraction  
process or the amount of insulating oil collected in that process. I am by no means satisfied that  
Nicoll was present when the insulating oil was extracted or that he later observed what had been  
collected.  
[226] Moreover, while Nicoll may have said on other subsequent occasions in his  
communications with AEP, that the quantity of oil released was as much as an ounce-and-a-half,  
he has, as will be noted later in these Reasons tended to overstate quantity. I find his estimates on  
quantity generally to be imprecise and, if anything, tending to express a worst case estimate  
when speaking informally.  
[227] There is no evidence before me of any other attempts to quantify the amount of insulating  
oil in a capacitor, ruptured or intact.  
[228] I recognize the limitation arising from the fact that the intact capacitor so measured was  
manufactured by Aerovox, and there is no evidence before me that one of the ruptured capacitors  
was an Aerovox capacitor. The only identification of a manufacturer of a ruptured capacitor  
related to ruptured capacitors manufactured by Westinghouse.  
[229] I further recognize that the estimate was an estimate only, and that lacks any scientific  
precision.  
Page: 45  
[230] Notwithstanding all those limitations, I conclude that the best evidence is that the  
quantity of insulating oil in each of the ruptured capacitors before the rupture, was one ounce.  
[231] That by no means leads to the conclusion that all of that quantity of insulating oil escaped  
from the confines of any of the ruptured capacitors when they did rupture.  
[232] Nor, for that matter, does it lead to the conclusion that all of the insulating oil in a  
ruptured capacitor which in fact did escape from the capacitor, likewise escaped from the ballast.  
Indeed, there is considerable evidence that some or all of the insulating oil which escaped the  
confines of a ruptured capacitor, on at least three other occasions remained in or on the ballast  
can and tray, although there is similarly no evidence as to the quantum of such residue other than  
that it was visible.  
[233] Nor in my view can one reasonably estimate by reconstruction, the total quantum of  
released insulating oil, based on any of the four occasions when the oil was released into the  
Stadium, by trying to speculate as to what amount, if any, might have fallen on all the spectators  
who did not testify at trial, and what amount, if any, might have been in the stands but gone  
undetected when the random samples were taken from the stands. That is, one cannot simply  
assume that only a small portion of the insulating oil was quantitatively accounted for, within the  
scope of all the relevant evidence, and that a substantial, or any, amount went undetected by  
spectators, cleanup staff or AEP investigators.  
[234] All that has been concretely proven is that a certain quantity did actually fall into the  
Stadium. This is based upon the evidence of the spectators’ own reconstruction as to the number  
of drops which fell on them, and based upon the quantity or residue of insulating oil which was  
found in the Stadium stands as a result of random sampling by or under the direction of AEP.  
This does not answer the question as to the total quantity of insulating oil released, although in  
my opinion, it does provide the best evidence upon which to base my opinion as to real or  
potential adverse effects in relation to the environment, and to individual spectators.  
[235] It should also be noted that there is evidence that at least one spectator attempted to wipe  
off drops, which might have accounted for some residue which landed in the Stadium seats or  
concrete and which was later discovered over the course of the random sampling. In other words,  
there might be double counting. I also note again issues over the reliability of the second and  
third spectators who testified as to the August 3 incident, bearing in mind that they were not  
interviewed until more than two years afterwards.  
[236] While it might be tempting to infer from the results of the random testing that there were  
in fact, by the nature of the randomness of the sampling, more drops released than evidenced, it  
seems to me that it would be dangerous to do so for the other reason that it would be impossible  
to determine how far the inference should extend. Should it be an additional one or two drops, a  
handful of drops, a dozen drops, two dozen drops, double the number evidenced, triple the  
number evidenced?  
Page: 46  
[237] In the result, I am left with much uncertainty as to what actually was the total volume of  
insulating oil which may have been released into the Stadium on each occasion. I can only  
conclude that it was on each occasion a matter of drops as evidenced by what has been proven to  
have landed on that occasion, and clearly that is in each occasion less than an ounce.  
G.  
Cause of Capacitor Ruptures  
[238] Dr. Winston Xu (“Xu”), an expert in electrical engineering, was called to testify by the  
Crown. It is clear from his testimony that there are many sub-specialties within the expertise of  
electrical engineering. His is in the area of electrical power systems: the generation, transmission  
and delivery of electrical power generally. His expertise is not specifically with respect to  
capacitors, transformers or ballasts, although they are all key components involved in the  
transmission and delivery of power. His opinions must be viewed in that context.  
[239] A capacitor may rupture or leak because of overheating, even with insulating oil. The  
passage of electricity through any medium produces heat. The two metal plates in a capacitor  
heat up as electrical current flows through them. That heat passes or dissipates to the insulating  
oil which in turn heats. As the insulating oil heats, its volume expands resulting in greater  
pressure on the interior of the capacitor can wall and lids. Eventually, if the heat continues to  
increase uncontrollably, or if it remains constant without cooling, so as to reduce the pressure on  
the inside of the capacitor, the pressure from the expanded volume of the contents of the  
capacitor becomes so great that the capacitor ruptures because it can no longer withstand the  
pressure. The rupture may be in two forms: either by an explosion or a gradual separation at the  
place of least resistance, usually at a seal where one of the lids meets the wall of the container or  
even at a place where the terminals protrude out from the top lid of the container.  
[240] With the rupture some of the insulating oil will leak out from the capacitor can, either  
explosively or gradually.  
[241] Xu indicated that an AEP investigator provided him with a capacitor from the Stadium.  
He gave no evidence and there is nothing in his report (Exhibit 9 at Tab 7) about its condition  
other than his report indicates that it leaked. As importantly, there is no evidence linking that  
capacitor to any of the capacitors which were in the Stadium during the Games, whether ruptured  
or intact. Similarly, there is no evidence that Xu examined any of the capacitors which ruptured  
in the instant case, either by direct viewing or by looking at photographs.  
[242] Notwithstanding all those limitations, Xu testified that it was his opinion that the primary  
cause of the capacitor ruptures in the instant case was the prolonged and uninterrupted use of the  
lights during the games resulting in overheating leading to the capacitors rupturing.  
[243] Xu also suggested that the hot ambient outside temperature at the time made it difficult  
for the capacitor to dissipate heat outside.  
Page: 47  
[244] Another contributing factor identified by Xu was age. Xu testified that typically the life  
span of a capacitor is 10 to 20 years. Xu noted that with age the waxed paper inside a capacitor  
deteriorates so that it becomes less insulating, which contributes to a greater heat generation  
within the capacitor as electricity flows through it. However, I also understand Xu’s evidence  
may mean aging in terms of actual use of the capacitor rather than the mere passage of time. Xu  
was unable to offer an opinion on the life span of any particular capacitor at the Stadium as  
measured by duty cycle or hours of use. For those reasons I am not able to attach too much  
weight to his testimony as to the typical life span of these, let alone any other capacitors.  
Moreover, it seems to me that such an opinion is outside his area of expertise. Further, there is  
no other evidence as to the normal life span of the capacitors used in the Stadium as measured by  
duty cycle or hours of use as distinct from their age. In point of fact the evidence suggests that  
since the building of the Stadium the lights were turned on only occasionally and even then only  
for a few hours at a time. Absent other evidence, particularly as to the life span of these  
capacitors as measured by their duty cycle or hours of use, I am not satisfied that the factor of  
aging by the mere passage of time was a contributor to the capacitors rupturing.  
[245] It seems self-evident to me that there may be a significant difference in the life span of  
any piece of electrical equipment, on the one hand where it is operated for a prolonged period of  
time without interruption (such as 24 hours a day, seven days a week, for as long as a week), and  
on the other hand where it is operated for the same cumulative duration of time but spread out  
with meaningful interruption (even of only a few hours a day).  
[246] Another factor identified by Xu was that the capacitor was overloaded. In his  
examination-in-chief Xu did not explain nor was he asked what that meant. In cross-  
examination he conceded that there was nothing in the evidence he had examined which would  
lead him to the conclusion that overloading occurred in this case.  
[247] Xu did opine that it was difficult to predict when a capacitor was going to fail.  
[248] There is no evidence that Xu was provided with any information on the historical use of  
the Stadium lights before or for that matter during the Games. There was however historical  
evidence before me that was provided by other witnesses.  
[249] I conclude that from the time the Stadium was built, the actual use of the lights was very  
limited. After the 1978 Commonwealth Games, the primary use of the Stadium was for football  
games involving the Edmonton Eskimo Football Club. Some of the afternoon games in the fall  
might have involved using the lights. The Stadium was only very occasionally used for events  
other than football games. Regardless, when the lights were used it seems that rarely were they  
on for more than five or six hours at a time, including one hour each pre-event and post-event,  
with obviously significantly large periods of time in between when they would have been  
allowed to cool down completely.  
[250] The evidence before me is disappointingly vague as to precisely when the lights were  
activated and left on continuously before the Games. Notwithstanding that lack of clarity, I do  
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conclude that they were on continuously, without interruption, from at least seven days before  
the Games opening ceremonies, and that such a state continued until about 2:00 a.m. on Monday,  
August 6.  
[251] That the lights were on continuously for such a duration was remarkably unusual at the  
time not only to the defendant which was responsible for the utility costs associated with the  
electrical consumption, but to others as well. At least one witness not connected to the defendant  
testified that he was struck by the fact that they were on seemingly for no purpose. Moreover,  
there is evidence that complaints were made by residents of adjacent neighbourhoods about the  
lights interfering with the ability to sleep at night. All these concerns were known to the LOC but  
were either ignored or not considered important enough to Lodge to override the demands of  
international broadcasters.  
[252] I conclude that the proximate cause of the capacitor ruptures was the prolonged,  
uninterrupted use of the lights 24 hours a day from at least a week before the opening ceremonies  
on August 3, through to the early morning hours of Monday, August 6 (by which time there had  
already been two releases of insulating oil from two ruptured capacitors), and their continued  
prolonged operation thereafter during the course of the Games events, particularly their second  
continuous uninterrupted use for at least 41 hours from as late as 8:00 a.m. on Monday, August 6  
until about 2:30 a.m. on Wednesday, August 8 (when they were reactivated until the Thursday  
morning). Such use of the lights was not merely unusual, it was extraordinarily so.  
[253] The evidence before me indicates the time when the insulating oil was released from the  
Stadium lights into the Stadium. It does not indicate with any certainty when any of the  
capacitors did in fact rupture, particularly in relation to when the insulating oil might have  
started to leak from the capacitor or as to when it may have been evident to the eye that there  
was a leakage. I concede that it might have been impossible to provide such evidence. I mention  
this because of the problem associated with issues of discoverability as to the fact of the rupture.  
[254] In other words, the capacitors which were involved in the releases of August 3 and 4 may  
well have ruptured many hours, even days before those releases.  
[255] I also mention it because it appears that the August 8 and 12 releases were not initially  
discovered, notwithstanding the inspection protocol which will be discussed later in these  
Reasons. I do conclude that the inspection protocol resulted in the discovery of the releases, but  
after it was too late and insulating oil had left the ballasts and landed in the Stadium.  
[256] I am satisfied that these releases were a consequence of capacitor ruptures caused for the  
same reasons as the earlier capacitor ruptures. As to the timing of those ruptures, I have some  
uncertainty. They may in fact have occurred earlier than their consequent releases. For instance it  
may well be that there was no leakage from the capacitor involved in the August 8 release,  
because although the capacitor had ruptured or was about to rupture, the shutdown of 13 hours  
from early that morning until late that afternoon was a sufficient interruption allowing for  
enough of a cool down that the capacitor rupture itself or, for that matter, the leakage from the  
Page: 49  
capacitor was delayed until the lights were again activated. This would be consistent with the  
analogy mentioned by Xu to a breakdown of the human body. In other words, the capacitor  
rupture may well have occurred before the lights were turned back on at 4:00 p.m. on August 8  
(even as early as 2:25 a.m. that morning when they were shut off) but not have been evident  
because there was no leakage before then and the leakage occurred only as a result of the  
reactivation of an electrical current that afternoon.  
[257] There is evidence that the outside or ambient temperature over the course of the days and  
nights of the Games was unusually hot. However, there is also evidence, such as it was, that the  
capacitors’ temperatures were being measured and that they were operating within their rated  
temperature capacity. I conclude that the ambient temperature heat may have been a contributing  
factor, but that if so, it was significantly lesser or secondary.  
H.  
The Defendant’s Handling of PCBs Generally  
[258] There was no specific program implemented by the defendant after the PCB ban in the  
late 1970s to replace all equipment containing PCBs so that the defendant would be PCB free  
thenceforth. Instead the defendant, as did others, replaced equipment containing PCBs with PCB  
free equipment, on an ‘as needed’ basis as that equipment failed or where there was a specific  
retrofitting energy conservation initiative. This approach was consistent with the regulation of  
PCBs in Canada. There was no contrary specific policy relating to the Stadium.  
[259] To properly effect that phasing in, the defendant developed a protocol on the  
identification and handling of electrical equipment which did or might contain PCBs and which  
was removed from service. Electrical equipment removed from service was to be examined for  
the endorsement that it did not contain PCBs. Absent such endorsement, the equipment was to be  
assumed to contain and handled as if it did contain PCBs until such time as the contrary had been  
established.  
[260] As an aid to helping to determine whether equipment without the endorsement, and  
which therefore was manufactured before the PCB ban came into effect, the defendant compiled  
and placed in each of its electricians’ trucks a list of the serial numbers and parts numbers of  
various pieces of common electrical equipment manufactured before the PCB ban, with an  
indication as to whether it did or did not contain PCBs. The list provided the electricians with a  
ready reference to compare the serial numbers, parts numbers or any other data retrieved from  
the electrical equipment, and to so determine the presence or absence of PCBs. There was no  
listing of electrical equipment in H.I.D. lighting because H.I.D. lighting was uncommon.  
[261] If it were known that the equipment contained PCBs, or if it were to be assumed that it  
contained PCBs, that equipment was itself to be contained, removed and securely stored in  
isolation from other waste, and was to be then removed to the Swan Hills Hazardous Waste  
Treatment facility for destruction. One of the ways of containment and isolation was the use of  
plastic garbage bags. Dedicated disposal barrels were used to provide isolated storage until the  
removal to Swan Hills.  
Page: 50  
[262] The defendant had properly and adequately instructed its electrical staff engaged in  
providing maintenance services at the Stadium during the Games in that protocol, and the  
electrical staff understood it.  
I.  
The Defendant’s Response to the Releases  
[263] The defendant’s response to the releases was primarily directed and managed by Nicoll.  
As the defendant’s director of Building and Facilities Management, he occupied a management  
position three levels below Maurer, the City Manager. In 1997 Nicoll assumed his current  
position, giving him responsibility for the maintenance of all of the defendant’s 850 buildings  
and facilities, including the Stadium. He supervised 143 employees (or full time equivalents) in  
several sections: carpentry, painting, mechanical and electrical.  
[264] In 2001 Nicoll had 28 years of experience as an electrical engineer. While he had only  
limited exposure to electrical lighting in university and in his career, he did know about the use  
of PCBs in the electrical industry before they were banned, why they were banned and how the  
ban was effected. He was familiar with the defendant’s protocol concerning the identification  
and handling of PCBs.  
[265] I accept Nicoll’s testimony that while he understood that there was a probability that  
capacitors manufactured before 1980 contained PCBs in the insulating oil, the “90%” probability  
he expressed before actually testifying, was not intended to be meant as a scientific measurement  
or considered reflection on the extent of the probability, but only a figure of speech intended to  
convey a likelihood or that it was more likely than not that there were PCBs in the insulating oil.  
[266] Nicoll’s out-of-court assertions of a 90% probability and that the quantity of insulating  
oil in a capacitor could be as much as an ounce-and-a-half, were not unlike his out-of-court  
assertions that if the lights were not shut down there might not be adequate lighting for the  
closing ceremonies, and that he would himself have the lights shut off if something were not  
done. They were in my view exaggerations expressed for the purpose of emphasizing a particular  
point, and must be taken in that context.  
[267] I also accept Nicoll’s testimony that he had no idea whatever the concentration of PCBs  
one might reasonably expect to be in the insulating oil, if it did in fact contain PCBs.  
[268] I conclude as well that Nicoll was in as good a position as anyone associated with the  
defendant to have a full and accurate knowledge of the potential for the presence of PCBs, and  
their concentration, if any, in the insulating oil which was released.  
[269] The defendant responded to the releases in five ways, by attempting to:  
(a)  
ascertain whether the released oil contained PCBs,  
Page: 51  
(b)  
ascertain the health or safety risk to a spectator onto whom  
the released oil dripped,  
(c)  
(d)  
reduce the risk of further capacitor rupture,  
reduce the risk of another release in the event of a future  
capacitor rupture, and  
(e)  
obtain replacement capacitors for those capacitors which  
had failed.  
1.  
Saturday, August 4, Morning and Early Afternoon  
[270] As noted, early Saturday morning on August 4, the first day of a long weekend, the  
Monday being a statutory holiday in Alberta, Dykeman, the spectator who complained about the  
insulating oil dripping upon him from the lights the evening before and about poor concession  
service, spoke to McLennan, raising the issue about the possible presence of PCBs in the oil.  
McLennan undertook to investigate and advise Dykeman in due course whether the oil contained  
PCBs. Around mid-morning the complaint and undertaking came to the attention of Nicoll.  
[271] Nicoll immediately concluded that the oil must have come from a failed capacitor, and  
that because of the Stadium’s age the query about the possible presence of PCBs was reasonable.  
He ordered his Stadium electrical staff to determine whether the failed capacitor did contain  
PCBs, by following the PCB identification protocol. By the end of the morning Nicoll knew that  
the ruptured capacitor had been manufactured before the PCB ban. He dispatched his Electrical  
Supervisor, Wright, and an electrician to an office to search the internet, using the data retrieved  
from the markings on the capacitor, to try to either confirm or eliminate the presence of PCBs.  
Notwithstanding a few hours searching on the internet early that afternoon, Wright and the  
electrician were unable to determine anything about the ruptured capacitor, other than that its  
manufacturer, Westinghouse, had gone out of business some years earlier.  
[272] A significant part of the defendant’s response to this first release was the other major  
initiative by Nicoll that morning. He contacted the defendant’s own Occupational Health and  
Safety consultant, Lionel Corrigan (“Corrigan”), to seek Corrigan’s advice as to what would be  
appropriate medical advice to provide to the spectator in the circumstances described by  
Dykeman, assuming that the oil which had dripped on him did contain PCBs. Nicoll related to  
Corrigan all the information the defendant had at the time, the complaint by Dykeman extending  
only to drops falling onto himself alone and not his companions. The defendant thereafter  
proceeded on the understanding that Dykeman was the only spectator who had been dripped on  
in the August 3 release.  
[273] Corrigan advised Nicoll that if there were a few drips of PCBs on the spectator himself or  
his clothing, the appropriate first aid treatment was to wash the area thoroughly with soap and  
water, and that a minor exposure of that nature was not considered a significant event. Corrigan  
also advised Nicoll that the health or safety effects from PCBs were related to long term, chronic  
skin exposure, inhalation of the products of PCB combustion, ingestion of PCBs or exposure of  
Page: 52  
PCBs to an open wound. Corrigan further advised Nicoll that he, Corrigan, had experience with  
PCB exposure to the skin.  
[274] By noon Saturday, Nicoll concluded from Corrigan’s advice that there were no health or  
safety concerns or issues arising from the release the night before, even if the released insulating  
oil did contain PCBs. On the information available to Nicoll at that time, there was no urgency,  
let alone emergency, justifying anything but a routine investigation to determine whether the oil  
contained PCBs.  
[275] Nicoll instructed McLennan that afternoon to contact Dykeman immediately, and advise  
Dykeman that it was presumed that the oil which had fallen on him had originated from the  
lights, that it was not known whether that oil contained PCBs, that the source of the oil was  
going to be tested to so determine that issue, that the defendant would advise Dykeman further as  
to the results of that testing, and that even if there were PCBs present in the oil, there should be  
no harm if Dykeman washed thoroughly. McLennan did so advise Dykeman that afternoon.  
[276] I conclude that the only concern Nicoll had at that time was a possibility that Dykeman  
might advance a claim for compensation arising out of the fact that insulating oil, whatever its  
content, had fallen on him.  
[277] As to the significance of the possible presence of PCBs in the oil that had landed on  
Dykeman, Nicoll’s concern was that Dykeman had specifically asked about the content of the  
insulating oil and that McLennan had undertaken to investigate and to report back the results of  
that investigation. I am satisfied that having regard to the quantity of oil which was known to  
have landed on Dykeman, that undertaking was the only reason Nicoll and the defendant  
investigated further the question of whether there were in fact PCBs present in the insulating oil.  
To follow through on an undertaking is elementary good public relations, particularly when an  
undertaking has been given by government to one of its citizens. Moreover, it is nothing more  
than common sense in addressing possible claims for compensation, regardless of any issue  
about PCBs.  
[278] I am by no means certain when the decision was made to have the ruptured capacitor  
analyzed by a laboratory for the purpose of determining with certainty the presence or absence of  
PCBs, other than that it was made by mid-afternoon on Saturday. If the failure of the internet  
search to determine the presence or absence of PCBs in the insulating oil was not the primary  
reason, it at least reinforced any earlier decision to have a laboratory analysis for that purpose.  
[279] It appears that no one at the time consciously addressed the issue of when the ruptured  
capacitor would be taken to a laboratory for analysis for the possible presence of PCBs, everyone  
assuming that it would be taken in the next business day, Tuesday, and that the laboratory would  
be closed for the long weekend. I am sure that the failure to address the issue of a possibly earlier  
analysis resulted from the advice Nicoll had received from Corrigan that there was no health or  
safety concern or issue, and consequently no urgency let alone emergency in having the question  
of the presence of PCBs resolved. Regardless, the assumption about the laboratory being closed  
Page: 53  
on the weekend was inaccurate; it was in fact open through a 24 hour per day, seven day a week,  
call answering service.  
[280] By mid-afternoon Nicoll was aware that the area of the Stadium where the insulating oil  
had dripped had been cleaned up the night before by staff contracted by the defendant for that  
purpose; and that the cleaning material and waste from the cleanup had been disposed of in the  
usual way non-hazardous material is customarily disposed of. This did not trigger any concern in  
Nicoll’s mind, presumably because of what he had been told by Corrigan.  
[281] It should be noted however that later on August 4, and thenceforth, the cleaning staff  
were instructed to and did isolate and dispose of the cleaning material related to the cleanup of  
subsequent releases following the usual protocol for handling hazardous material, including  
PCBs.  
[282] I note in passing that there is no evidence before me one way or another as to whether  
members of the crew who cleaned up the Stadium wore any form of protective clothing,  
including gloves, in their normal course of performing their duties. It would not be unreasonable  
to conclude, in the absence of contrary evidence, they may well have worn protective clothing of  
some sort on their hands.  
[283] By the early afternoon of Saturday, August 4, no one associated with the defendant had  
any concern about any possible future release of insulating oil from a ruptured capacitor. There  
had never been a capacitor rupture before at the Stadium. Luipasco, the electrical foreman on site  
and a master electrician who was familiar with the Stadium, had never before seen a ruptured  
capacitor. Nicoll, Wright and Luipasco all concluded that the incident was a one time, random  
occurrence or a unique event. With no known explanation for its happening, they reasoned there  
was no likelihood of recurrence. Consequently, at that time they saw no need to do anything to  
reduce the risk of a future capacitor rupture or to reduce the risk of a release in the event of such  
a rupture.  
[284] That lack of concern was however short lived, when the second release occurred later  
that afternoon and was immediately reported to the defendant’s on site employees.  
2.  
Saturday, August 4, Late Afternoon  
[285] Shortly after the occurrence of the second release, its source was located when Luipasco  
and an electrician climbed up to the catwalk over Section F and observed a residue of oil on the  
bottom of the canister tray of one of the ballasts. The ballast was bagged and sealed with duct  
tape to prevent further dripping into the Stadium and left in place for later removal.  
[286] Within hours the defendant’s personnel concluded that what had been earlier in the day  
perceived as a random, one time only event could no longer be considered such. Moreover, they  
concluded that the capacitor ruptures had been caused by the prolonged, continuous  
uninterrupted operation of the Stadium lights, causing the capacitors to overheat leading to their  
Page: 54  
rupturing. The lights were too hot, and were not being given an opportunity to cool down by  
being turned off.  
[287] Before the afternoon was over a proactive, two pronged, management plan was set in  
place, with the objectives of reducing the risk of further capacitor rupture, and reducing the risk  
of another release of insulating oil in the event of a future capacitor rupture.  
[288] The first part of the management plan was to attempt to secure shutdowns of the lights so  
that they could cool. McLennan was told that it was now being theorized that the Stadium lights,  
having been in operation for an extended period of time without any opportunity to cool down by  
being shut off, were overheating which caused the capacitors to rupture and that the insulating  
oil in the capacitors was dripping as a result. He was instructed to contact the LOC and request  
that it do whatever it could to try to have the lights shut off for periods of time so that they could  
cool down.  
[289] As has already been noted, McLennan did contact Lodge either that night or the next day.  
McLennan explained the problem with the releases and what was being theorized as their cause.  
He requested that Lodge provide shut down or cool down periods. Lodge responded by  
promising to do what he could and advised that he would get back to McLennan.  
[290] The second part of the management plan was to attempt to establish a protocol of  
inspection with a view to discovering capacitors which were so overheated that there was a risk  
of a rupture, and discovering any releases of oil from any rupture which had actually ruptured.  
Before the end of the evening the defendant had implemented a monitoring system where each  
ballast was inspected at least once every two hours by an electrician or other Stadium staff  
member walking continuously back and forth along the length of the catwalks on both sides of  
the Stadium, examining the ballasts and capacitors for signs of capacitor trouble and evidence of  
leakage of insulating oil. It was to be primarily a visual inspection, but those conducting the  
inspection were also encouraged to touch the ballast canister cans to determine whether there  
was a suggestion of excessive heat.  
[291] The inspection protocol included the use of gloves and instructions on disconnecting a  
ballast and bagging its contents in the event of an apparent problem.  
[292] I am satisfied that the primary reason for the management plan was a concern about  
further failures and the limited replacement parts the defendant had on hand to replace failed  
units, with an incidental concern over potential claims for compensation arising from a future  
release of insulating oil on spectators. The potential presence or absence of PCBs in the  
insulating oil plays no part in that incidental concern because of the advice of Corrigan.  
3.  
Saturday, August 4, Evening  
[293] During the course of the internet search conducted by Wright and the electrician earlier  
on Saturday in an attempt to ascertain the possible presence of PCBs in the insulating oil which  
Page: 55  
had dripped on Dykeman, they came across a website article sponsored by the Government of  
Saskatchewan, specifically Saskatchewan Labour, entitled Health and Safety. It was of no  
assistance in determining the issue. However that website was also accessed by Nicoll on his  
home computer that evening. Nicoll read the article, which provided advice concerning the  
potential of PCBs being found in fluorescent light ballasts, and specifically in the capacitors  
within those ballasts.  
[294] That article (Exhibit 1 at Tab 19) is significant for at least three reasons. First, it would  
have reinforced Nicoll’s determination that he should assume, until the contrary had been  
established, that the insulating oil did contain PCBs. Second, it would have confirmed that  
leaking fluid may contain PCBs, suggesting that the leaking fluid had an unknown concentration  
of PCBs if in fact PCBs were present. Third, under the heading “The dangers of PCBs”, it  
provided:  
The use of PCBs is restricted because of their threat to the  
environment. PCBs accumulate in the environment and may enter  
into the food chain. Humans are regularly exposed to tiny amounts  
of PCBs through food, air or water, but this level of exposure is  
unlikely to have harmful effects.  
Repeated or sustained exposure to considerable quantities causes a  
skin condition similar to adolescent acne. Liver damage is also  
possible. Exposure to small amounts of PCBs from damaged light  
ballasts is unlikely to have this effect.  
PCBs are suspected of causing cancer in humans, but this has not  
been confirmed. When PCBs reach high temperatures (e.g., in a  
fire) they may decompose into more toxic substances such as  
polychlorinated dibenzodioxins and dibenzofurans. Repeated  
exposure to some of these substances is a cancer risk to humans.”  
[Emphasis mine]  
[295] Nicoll concluded that the information described on the website was consistent with what  
he had been told earlier in the day by Corrigan.  
4.  
[296] The responses initiated by the defendant on August 4 continued over the next four days.  
(a) Risk Reduction of Future Capacitor Rupture by Light Shutdowns  
Sunday, August 5 to Wednesday, August 8 Inclusive  
[297] On Sunday afternoon, August 5, Lodge responded to McLennan’s request for cool down  
periods, as McLennan put it, by indicating that “the LOC had undertaken to allow the lights to be  
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off” for varying periods of time of between two and five-and-a-half hours each day during the  
early morning, for the remainder of the Games.  
[298] A proposed schedule was discussed, and McLennan made the Stadium staff under his  
supervision aware of the anticipated hours of shutdown so that they could physically turn the  
light switches off and on according to the schedule.  
[299] The first shutdown was for five-and-a-half hours on Monday morning, August 6, from  
2:00 a.m. to 7:30 a.m. As a result of this first shutdown in many days, the lights did cool down  
significantly, which was observed and reported to Nicoll on his arrival at work. He was told by  
his staff that the lights, which had before been too hot to touch, could now be handled and were  
substantially cooler. Nicoll concluded that the situation was now under control, that no further  
action was required, the cause of the overheating having been corrected. Nicoll so reported these  
results and his opinion to the defendant’s Corporate Committee meeting at 9:00 a.m. that  
morning.  
[300] Later that night Wright reported to Nicoll that the lights, even though they had been on  
for the day, were still running relatively cool.  
[301] The second shutdown was to have been implemented for the same duration, the next  
morning, Tuesday, August 7, over approximately the same time frame early in the morning.  
However, Lodge was requested by international broadcasters to leave the lights on, and without  
any notice to McLennan or Nicoll, Lodge personally countermanded the shutdown for that  
morning by instructing the defendant’s Stadium staff, normally supervised by McLennan, not to  
turn the lights off that morning. Acting on those instructions, the lights were left on, without any  
cool down period at all. McLennan learned of this on his arrival at the Stadium around 7:00 a.m.  
and immediately advised Nicoll.  
[302] Nicoll was very upset that the lights had not been turned off. He briefed his supervisor  
Terry Loat (“Loat”) who was to attend the Corporate Committee meeting that morning, since  
Nicoll would not be present himself. In particular Nicoll stressed his concerns over the failure by  
the LOC to follow through with its promised break from uninterrupted and continuous lighting,  
and what Nicoll perceived to be the need for extended shutdown periods even longer than the  
two to two-and-a-half hours the LOC had promised for later in the Games. Nicoll understood  
that Loat would take these concerns to the Corporate Committee meeting, and ask that they be  
pressed to the LOC by someone higher in the defendant’s corporate level of authority.  
[303] Nicoll’s concerns were discussed at the Corporate Committee meeting and it was agreed  
that the defendant’s liaison person with the LOC at its daily briefing meeting would take the  
matter up with Lodge. More significantly, the City Manager, Maurer, promised to convey  
Nicoll’s concerns to LeLacheur at a meeting of the LOC at 10:00 a.m. that day.  
[304] Maurer did in fact relay those concerns to LeLacheur at that later morning meeting,  
indicating to LeLacheur that it was a matter of some urgency that there be a significant shutdown  
Page: 57  
schedule for the lights in order to cool them down. LeLacheur understood this to be a “direct  
request to ... authorize this shutdown period” so that the lights could cool down. [see p.1092]  
[305] I am satisfied that Maurer’s request to LeLacheur was made on the basis of and framed to  
emphasize concerns that if the lights were not allowed to cool, there was a risk of further failures  
which, because the defendant could not secure replacement parts expeditiously, could affect the  
lighting which would be required, or the appearance of the Stadium, on the following Sunday  
evening during the Games closing ceremonies. While Maurer may have also expressed concern  
about liquid leaking from the lights and falling onto spectators in the Stadium stands, from his  
perspective at that time the problem was being adequately managed and controlled in terms of  
preventing further spills on spectators. However, he said nothing about the possible presence of  
PCBs because, as far as he was concerned, until the presence of PCBs in the insulating oil was  
confirmed, it was not an issue.  
[306] I am satisfied that as a result of those discussions between Maurer and LeLacheur, later  
that same evening Lodge contacted McLennan and informed him that there would be an  
extended shutdown period for the next day, Wednesday, August 8, between 2:45 a.m. and 4:00  
p.m., more than 13 hours. From those same discussions, McLennan concluded that it was  
expected that the same extended shutdown period would apply at least until the final two days,  
August 11 and 12.  
[307] Therefore, from Sunday, August 5, until the discovery of the capacitor rupture and  
resulting release of insulating oil late on August 8, with the exception of that period from early  
Tuesday morning until later that evening, the defendant, and in particular Nicoll, were  
reasonably content that the focus on reducing the risk of further capacitor ruptures was being  
successfully achieved because of the lighting shutdowns granted by and carried out by the LOC.  
[308] It should be noted that as early as Sunday morning the defendant’s Manager of  
Communications reported to a meeting of the LOC committee, the Multi-Party Communications  
Group, chaired by the LOC Vice-President of Communications, Joan Forge (“Forge”), that drips  
of insulating oil had leaked from the Stadium lights into the stands on the Friday evening. It is  
not clear to me whether the possibility of either the presence or absence of PCBs in the  
insulating oil were reported to any meetings of that committee. PCBs were a subject about which  
the defendant’s Manager of Communications was generally ignorant, and about which he was  
clearly mistaken when, later that Sunday morning, he thought that it had been determined that  
there were no PCBs in the insulating oil. He remained under that mistaken belief until  
Wednesday, August 8, when he was asked to review drafts of a press release and letter to  
Dykeman in anticipation of potential negative results from Enviro-Test analysis of the capacitors  
and oil which had been sent for testing. Regardless, it is clear that from Sunday morning on, the  
LOC was advised at the Multi-Party Communications Group daily meetings, of the ongoing  
concern with the Stadium lights, including leaks of oil from the lights and the inspection protocol  
undertaken to discover potential further leakages of insulating oil from ruptured capacitors, and  
to prevent actual releases of same into the Stadium stands. It is clear from the testimony of Forge  
Page: 58  
that the theorized cause of the leaking lights as being overheating was mentioned at least at one  
of the meetings.  
[309] As an aside, I note that the Stadium Light Schedule which was prepared by McLennan  
and which was part of Exhibit 33, as an attachment to an email message sent by McLennan to  
Wright at 1:05 p.m. on August 7, cannot be taken as accurate on its face. It must be read in the  
context of the accompanying email, another email sent by McLennan later that day, McLennan’s  
own testimony, and the testimony of other witnesses. First, it is clear to me that the “OFF  
HOURS” listed only make sense if they are in fact attributed to one day later than what is listed  
for them. For instance, the first listed “OFF HOURS” noted as 0200 to 0730, only make sense as  
having occurred on the Monday morning and not, as indicated in the Schedule, on the Sunday  
morning. The second listed “OFF HOURS”, which is blank, only makes sense as having  
occurred on that same Tuesday morning that the email was sent. Second, McLennan indicated  
that the document itself was prepared that same day, August 7, and was retrospective in terms of  
what had occurred before the email was sent, and prospective in terms of what he understood had  
been promised by the LOC from the time the mail was sent.  
(b)  
Risk Reduction of Future Capacitor Rupture by Inspection Protocol  
and Further Release in the Event of Future Capacitor Rupture  
[310] I am satisfied that the inspection protocol which was put into place on the Saturday night  
continued throughout to and including Wednesday, August 8. It is unclear whether the inspection  
protocol was conducted continuously, even when the lights shut down, which would have  
involved using the defendant’s Stadium staff normally supervised by McLennan, in addition to  
Nicoll’s own electrical staff; whether it was conducted only using Nicoll’s electrical staff while  
on duty; or whether it was conducted only when the lights were on.  
[311] Regardless, the inspection protocol was successful, at least up to the time insulating oil  
was released late on August 8. Reports until then indicated that the lights had cooled  
considerably as a result of the two shutdowns which did occur. More importantly light failures of  
several varieties were detected, including at least one capacitor rupture which I have already  
noted was discovered before there was a release. Nicoll and his superiors were confident, at least  
until late on Wednesday, August 8, that the risk of a future capacitor rupture resulting in a  
release was under control.  
(c)  
Determining Whether the Released Oil Contained PCBs  
[312] As had been contemplated, on the first business day after the long weekend, Tuesday,  
August 7 at about 11:45 a.m., Luipasco delivered to Enviro-Test, with whom the defendant had  
itself enjoyed an ongoing working relationship, one of the Westinghouse capacitors which had  
ruptured resulting in the release of insulating oil on August 3 or 4, a second, companion intact  
Aerovox capacitor which Luipasco had drained of insulating oil, and the vial containing that  
drained insulating oil. Instructions were given to Enviro-Test to test the items for the presence of  
PCBs and specifically as to the volume percentage of same. The testing was requested on an  
Page: 59  
emergency basis, as distinct from only a priority basis or for that matter an ordinary basis, with  
the expectation that the results would be available in the usual course of business no later than  
4:00 p.m. the next day, August 8. This was the earliest turn-around time available and carried  
with it a 100% surcharge fee. Luipasco asked Enviro-Test to “call a.s.a.p.”, and he provided two  
telephone numbers and an email address.  
[313] Notwithstanding the expectation of the analysis results being delivered to the defendant  
by the close of business the next day, Wednesday, August 8, I am satisfied that they were not.  
Enviro-Test did not telephone Luipasco on the Wednesday and while it sent an email at 4:22  
p.m. that afternoon addressed to Luipasco, it was incorrectly addressed and it seems that  
Luipasco had left work for the day. I conclude that it was not until the next morning, Thursday,  
that the defendant received by email the results of the laboratory analysis of the contents of the  
insulating oil in the two capacitors and vial of oil delivered two days earlier.  
(d)  
Determining the Health or Safety Risks to Spectators  
[314] The only complaint made to the defendant arising from the second release on August 4,  
seemingly was a concern by the Ontario couple that the insulating oil had landed on their  
clothing. There is no evidence that they complained that the insulating oil had landed on their  
skin.  
[315] Notwithstanding Nicoll’s own comfort level from his discussions with Corrigan on  
August 4 that there were no health or safety concerns or issues from PCBs having dripped on a  
spectator, as reinforced by what he read later that same evening in the internet article from the  
Government of Saskatchewan, after further discussions with Loat, Nicoll on the morning of  
August 5 again contacted Corrigan, who reassured Nicoll that there was no need to take any  
further steps by contacting other health authorities, including Alberta Occupational Health and  
Safety, or to take other steps to prevent or discover further leakages. Corrigan reiterated that the  
concerns with PCB exposure were with respect to open wounds, ingestion and chronic skin  
exposure over a number of years, and that what had occurred with respect to the two releases on  
August 3 and 4 were not a major concern, even if the oil contained PCBs. Corrigan advised  
Nicoll that Corrigan himself had experience with PCBs being exposed to people.  
[316] Very early on the morning of Tuesday, August 7, Corrigan made an unsolicited telephone  
call to Nicoll, confirming the advice he had previously provided to Nicoll, and further advising  
that he himself had consulted with the defendant’s Occupational Hygienist who confirmed that  
advice. He advised Nicoll that there was virtually no problem with skin exposure to PCBs, and  
that the real danger related to PCB exposure was with respect to the inhalation of the product of  
PCBs’ combustion.  
[317] On the morning of August 8, Corrigan again unsolicited, sent Nicoll an email attaching  
the very internet article from the Government of Saskatchewan website that Nicoll had accessed  
four days earlier, and which Nicoll understood confirmed the advice provided by Corrigan that  
the only health or safety risk concern with skin exposure was when that exposure was repeated  
Page: 60  
or chronic. Corrigan later that same morning sent to Nicoll by email two other documents  
retrieved from the internet, one apparently published by the United States Department of Labour,  
referring to effects from “occupational exposure” and the other from an unidentified source in  
Manitoba. Nothing in those publications was inconsistent with Corrigan’s advice, and Nicoll  
took the information in them as confirmation of that advice.  
(e)  
Searching For Replacement Parts  
[318] From August 5 to August 8 the defendant developed an additional response arising from  
a concern that if the two capacitor ruptures which had already occurred were a harbinger of  
things to come, the small number of replacement parts on hand and potentially available for the  
duration of the Games, another eight days would not be enough to provide adequate replacement  
during the Games. This concern heightened as a third capacitor ruptured and other parts of the  
electrical lights failed.  
[319] As Nicoll reported to the Corporate Committee, on Sunday, August 5, there were only six  
spare capacitor units on hand and it was not known at that time, the middle of a long weekend,  
whether the defendant’s local supplier had any more in stock. The local supplier was contacted  
later that day but did not have replacement parts.  
[320] Indeed, it would seem that this became the defendant’s primary concern since everything  
else, but for a supply of replacement parts, seemed to be largely under control. By the end of  
Monday, Nicoll knew that there were no replacement parts available in Canada, and that the  
search would have to expand to the United States. The inquiries made by the defendant searching  
for replacement parts extended to incidental questioning as to whether it was known by electrical  
suppliers whether the insulating oil in Westinghouse capacitors contained PCBs.  
J.  
The Decision to Report the Releases to Alberta Environment on August 9  
[321] Early on morning of Thursday, August 9, Nicoll and Luipasco obtained by email a  
written report setting out the results of Enviro-Test’s analysis of the ruptured Westinghouse  
capacitor, the intact Aerovox capacitor and the insulating oil from the intact Aerovox capacitor,  
all of which had been sent for analysis two days before. Both capacitors and the insulating oil  
contained the PCB mixture Aroclor 1242. The PCB concentration of the ruptured capacitor was  
30% and the intact capacitor 100%. Luipasco and Nicoll were initially confused about the  
meaning of the report and so Nicoll telephoned Enviro-Test, where the results were clarified for  
him. While Nicoll could not have been surprised by the fact that the oil contained PCBs, he was  
surprised by the concentration.  
[322] I conclude that this was the first confirmation the defendant had that any insulating oil in  
the Stadium capacitors contained PCBs and that it had been unable to obtain any earlier  
confirmation from Westinghouse or any other manufacturer that any ruptured or intact capacitor  
in the Stadium did in fact contain PCBs.  
Page: 61  
[323] Nicoll reported the results of Enviro-Test’s analysis, including the concentrations, to his  
own supervisor who in turn later that morning discussed the matter with Maurer, the defendant’s  
City Manager. Maurer suggested that the results of the laboratory analysis were such that, he  
thought it advisable that the releases should be reported to AEP, notwithstanding his general  
concern that AEP required over-reporting of releases.  
[324] Over the noon hour Maurer’s suggestion was discussed by Nicoll and his own supervisor.  
Nicoll had some reservation over whether there was a need to report the releases. First, he  
reasoned that there had not been a release because the oil had by and large been contained within  
the confines of the Stadium and had not escaped into the environment, there being no discernable  
resulting environmental impact. Second, he thought it not reportable because the quantity was so  
small.  
[325] Nicoll’s reservations about the need to report the release is understandable in the context  
of his background and experience in reporting releases of other hazardous material. The  
reporting to Alberta Environment about the release of liquids and gases on other occasions which  
Nicoll was aware of, involved quantities significantly greater than an ounce, and those releases  
had been clearly beyond the bounds of containment, either into a sewer or into the air where  
there had been a clear loss of control over the hazardous substance.  
[326] Regardless of his reservation it was decided that Nicoll would make the report, but that  
he would first contact the person in charge of the Environmental Section of the defendant’s  
Waste Management Branch, as a resource to assist making the report to Alberta Environment  
since Nicoll had never before been involved in personally making a report. Nicoll left for his  
office, went for a quick lunch on his way, and as soon as he arrived at his office attempted to  
contact the resource person. He did and received advice on how to make the report, actually  
telephoning Alberta Environment at about 2:00 p.m.  
[327] I am satisfied that the failure by the defendant to report the releases before that time was  
motivated by a number of reasons. As for Nicoll, he did not consider the releases reportable for  
three reasons. First, he did not think that there were releases into the environment, that is it was  
“contained”. Second, he believed, on the advice he had received from the defendant’s  
Occupational Health and Safety consultant, that there was no health or safety risk to anyone.  
Third, he considered the quantity which fell into the Stadium so small that it was not reportable.  
That there may have been uncertainty about the presence of PCBs in the oil was not a factor for  
Nicoll not reporting sooner.  
[328] However that factor, and I am sure the PCB concentration determined by Enviro-Test  
analysis, were the reasons which prompted Maurer’s suggestion to report, and that suggestion  
itself was the trigger in the defendant’s decision to report. It is clear that until the laboratory  
analysis determined that there were PCBs present, the defendant considered it was speculative as  
to whether the insulating oil was hazardous, but once it was known that the oil contained PCBs,  
and in the concentration that was present, for the defendant reporting was to err on the side of  
Page: 62  
caution even though the quantity involved was so minute there was a question over whether it  
required reporting.  
K.  
Nicoll’s Awareness on August 9 of Release # 3 on August 8  
[329] Nicoll learned of the discovery of the release on August 8 after the spectators had left the  
Stadium, the following morning, shortly before or around the same time that he received the  
results of the Enviro-Test analysis. He was told that there were no spectators involved, that the  
quantity of insulating oil released was consistent with what had been released on the two earlier  
releases of August 3 and 4. It seems that he was told little else.  
[330] As a result of this knowledge, Nicoll decided to escalate the defendant’s response to  
potential leaking from ballast canisters by silicone caulking every possible opening, hole and  
seam in the ballast canisters so that there could be no leakage from them. The caulking  
commenced that morning and was completed before the day’s competition began in the late  
afternoon.  
L.  
Reports to Alberta Environment Generally  
[331] Alberta Environment has implemented a system to handle the reporting of environmental  
concerns including releases.  
[332] The system includes a well publicized 1-800 telephone number which is operational 24  
hours a day, seven days a week. During business hours a caller to the 1-800 number reaches a  
live person, a call operator.  
[333] When a call operator is reached, that person records the information provided by the  
caller on a call sheet. The call operator also immediately at the end of the call physically  
transfers a copy of the call sheet to an investigator for the purpose of review and action as  
deemed appropriate.  
[334] Call Operators are trained primarily by monitoring and mentoring. However they are  
provided with written guidelines on how to perform their duties, including what they are  
supposed to ask for during any particular call.  
[335] Call operators are considered to be something more than scribes by Alberta Environment.  
Part of their job is to work cooperatively with the caller to ensure that Alberta Environment  
obtains as much accurate information as possible about the incident, recognizing that it is not  
uncommon that the caller may be unfamiliar with the mechanics of making a report.  
[336] Indeed, AEP published its own internal guidelines in 2000 in a document entitled  
Environmental Response Centre (ERC) Call Receiving and Handling Procedure, where the call  
operator is instructed to include in the call sheet under the heading “Call Comments”:  
Page: 63  
As much detail, as possible should be recorded. Additional  
verbiage can be continued on an investigative diary sheet.  
M.  
The Defendant’s Report to Alberta Environment on August 9  
[337] There are significant differences in the testimony of Nicoll and the call operator at  
Alberta Environment who took his telephone call reporting the releases, over precisely what  
Nicoll related. Not only do I not disbelieve Nicoll as to what was said in that telephone  
conversation, I prefer his testimony over that of the call operator.  
[338] It should be noted that AEP trains its call operators on how to take calls, including that  
they should solicit information and ask for clarification.  
[339] I find her testimony to be unreliable for a number of reasons. First, her experience as a  
call operator was limited to at most two months. Second, if indeed her experience was that long,  
she erred in a written signed statement given three months later and only six weeks after the  
occasion giving rise to the statement. This is an error I would not have expected. Third, I  
particularly would not have expected any error at that time because it is clear that she had  
already come under criticism from her superiors over her handling of the Nicoll call, and so this  
error shows a surprising lack of attention to detail. Fourth, she admits to some confusion over  
what was said about health or safety concerns in the Nicoll call. Fifth, she contradicted herself in  
her testimony. At one time she suggested that Nicoll had referred to laboratory results, and at  
another time suggested that it was not clear whether the information he provided was from a  
laboratory test or from the manufacturer. Clearly it would have been from a laboratory test.  
Sixth, while she noted that she had considerable familiarity with PCBs, a background in  
environmental sciences, and experience in public health, her failure to record either the fact of  
what the PCB concentration was or that it was not known, is most inconsistent with that  
familiarity, background and experience. I conclude that either she did not hear the concentration,  
if indeed she asked (which she surprisingly conceded she might not have), or failed to record it.  
Her claim that it was unusual that the concentration was unknown is inconsistent with her failing  
to note that fact. She acknowledged as much when she testified that if the concentration was not  
known, that was important information and that it was her duty to note important information.  
[340] There is another indication that the call operator failed to record detail if volunteered or  
asked for. While she claimed that the detail as to location of the incident should be much more  
specific than the mere notation “Commonwealth Stadium”, that is all that she recorded.  
[341] Moreover, the call operator’s apparent nonchalance in recording the call information,  
notwithstanding her claims that the release was unusual, carried forward to how she handled the  
call later. Although she knew it unlikely that the call sheet she filled out would be seen by the  
duty investigator until the next day, she did not bring it to the attention of another investigator or  
any one else. Nor did she flag the call sheet in any way as being an unusual report.  
Page: 64  
[342] Finally, the call operator was unusually defensive while testifying. That perhaps is not all  
that surprising. The AEP Director of the Northern Region became involved in the case earlier  
than he usually would, the day after Nicoll made his report to the AEP call operator, because the  
case was or had the potential to be a high profile case. It is also clear that the Deputy Minister of  
Alberta Environmental Protection was displeased that AEP senior officials learned of the  
releases only through back door channels instead of the usual reporting lines, and made it clear  
that this was not to occur again. There were verbal repercussions which, like water, flowed  
downhill through several levels of AEP, all the way to the call operator.  
[343] I accept the testimony of Nicoll as to what was said in his conversation with the call  
operator which he described as perfunctory, pleasant and professional. I accept that the call  
proceeded as a series of questions and answers and that he answered all the questions asked of  
him.  
[344] I conclude that Nicoll advised the call operator of the releases of August 3 and 4, that  
there were about 10 drops on each of those occasions, that the maximum amount of insulating oil  
contained in a capacitor had been measured at one-and-one-half ounces and of the Enviro-Test  
analysis results obtained earlier that morning including the concentrations.  
[345] I accept Nicoll’s testimony that he did not report the third release of the preceding  
evening, August 8, until the afternoon of the next day, August 10, when he provided that  
information to an AEP Director who had contacted him by telephone for clarification of the  
report Nicoll had made to the AEP call operator. There is no direct evidence as to why Nicoll did  
not report that release at the same time as the two others. No one asked him why he did not and  
he volunteered no explanation. However, counsel for the defendant did draw from Nicoll the  
facts that at the time of making the report to the AEP call operator, Nicoll did not know who had  
manufactured that particular capacitor, its age or its markings; that he knew that the known  
quantity was a few drops, consistent with the releases on August 3 and 4; and that there were no  
spectators present in the Stadium when the release occurred.  
[346] Notwithstanding some of the suggestions made by the AEP Director in his testimony that  
Nicoll was less than fully forthcoming about the third release of August 8 during his 32 minute  
first discussion on August 10, I am satisfied that Nicoll was totally candid about what he knew at  
the time. In my view throughout his several communications with him, the AEP Director failed  
to appreciate the significance of what he was told by Nicoll or failed to ask him for more  
appropriate clarification of what he had been told.  
[347] Moreover, it is clear from the fact that samples were taken that same afternoon on August  
10 in Section T by the AEP investigator, that AEP was made aware of the release that afternoon.  
N.  
Fallout  
[348] As a result of the report to AEP on August 9, and Nicoll’s discussions with the AEP  
Director on August 10, an AEP investigator attended the Stadium on the late afternoon of August  
Page: 65  
10. He and the AEP Director were both apprised of the efforts completed by the defendant the  
day before to caulk with silicone all possible openings on the ballasts so as to ensure the ballasts  
were sealed and could not allow the release of any more insulating oil from any other possible  
ruptured capacitor.  
[349] AEP did nothing more to prevent a possible recurrence, either directly or indirectly, by  
providing advice or instruction to the defendant, from which I conclude that AEP was satisfied  
that this further step would suffice to prevent further releases.  
[350] Regrettably, there was a further release. A “pinhole” in the caulking resulted in insulating  
oil from another ruptured capacitor of a light located over Section N being released into the  
Stadium on August 12. As with the capacitor which ruptured on August 8, there is no evidence at  
all as to the manufacturer of this capacitor, how it was handled after the release, who handled it  
or what became of it. All that is known is that random samples taken by or directed by AEP of  
the Stadium stands where it fell, disclosed that the insulating oil of that ruptured capacitor would  
have contained the PCB mixture Aroclor 1242.  
[351] When AEP learned of the release of August 8, it ordered the defendant to install peat  
moss in and around the ballasts so that should there be yet another capacitor rupture with a  
leakage of insulating oil that oil would be absorbed without falling into the Stadium. This further  
prevention step fortunately proved to be unnecessary as there was no further capacitor rupture.  
[352] Over the course of the next two months, cleaning operations of the Stadium, by way of  
remediation, were undertaken by the defendant acting on the advice of AEP, to ensure that there  
was no possible contamination of the Stadium. Attempts at normal hazardous waste cleanup of  
the Stadium proved to be unsatisfactory initially because the Stadium concrete absorbed the  
drops that had landed on it. Finally, AEP approved the sealing of the affected areas by the  
defendant to complete the site decontamination efforts.  
[353] In the fall of 2001 the defendant replaced all of the capacitors in the Stadium with new  
capacitors which did not contain PCBs.  
IV.  
A.  
EXPERT EVIDENCE  
Overview  
[354] The Crown led evidence from expert witnesses intended to show that the insulating oil  
containing PCB compounds caused or was capable of causing an “adverse effect”, as well as a  
“significant adverse effect” to the environment and to human health or safety.  
[355] It was incumbent upon the Crown to call expert evidence, because the quantity of the  
release, in the absence of expert evidence, was, if not de minimis, of such a small quantity that it  
would, in my view, preclude a finding of an “adverse effect”. The evidence shows that a small  
Page: 66  
amount of insulating oil was released. Some landed on spectators in the Stadium stands on  
August 3 and 4, and some landed in the Stadium stands on those dates without touching anyone.  
Some landed in the Stadium stands on August 8 without touching anyone. Insulating oil which  
did not fall on anyone presumably remained in the area of the stands, unless picked up and  
disposed of or dispersed elsewhere as a result of cleaning the stands.  
[356] The defendant led evidence intended to show that the PCBs in the insulating oil did not  
cause and were not capable of causing an “adverse effect” or a “significant adverse effect”.  
[357] The ultimate point of contention between the experts was whether the release of the  
PCBs into the Stadium was of a quantity and concentration which, in the entirety of the  
circumstances, could result in an actual or potential “adverse effect” or a “significant adverse  
effect” upon the environment or human health or safety of the spectators who were exposed, or  
who might have been exposed.  
[358] The main focus of the expert witnesses was the risk of harm to the health of spectators in  
the Stadium as a result of exposure to PCBs. As became clear through the testimony and reports  
of the expert witnesses, the assessment of risk of harm to human health or safety from an  
exposure to a toxic substance, or any foreign substance, involves a number of factors, including:  
(a)  
(b)  
(c)  
the nature of the substance;  
the concentration of the substance;  
the number of exposures, the greater the number the higher  
the risk;  
(d)  
the frequency of exposure, the more frequent then normally  
the greater the risk;  
(e)  
(f)  
the duration of the exposure;  
the pathway or pathways of exposure, whether absorbed,  
ingested or inhaled;  
(g)  
(h)  
in the case of absorption, the rate and extent of absorption;  
the category of species of the receptor, e.g., whether a fish,  
bird, reptile, mammal or other class of animal;  
whether the receptor is a human being; and  
if the receptor is a human being, the condition of  
that human being.  
(i)  
(j)  
[359] Based on the expert evidence, I first conclude that a major difficulty in this case, in  
assessing the risk to human health or safety from a small single event (i.e., “acute”) exposure to  
PCBs, is that there are no scientific studies that have measured the health risk of PCB exposure  
to human beings, or any living organism, which take into consideration all the factors which  
exist on the facts of this case. Second, there are no studies measuring risk to human beings  
except where there has been a catastrophic (typically occupational) exposure. Third, there are no  
studies whatsoever involving an acute (single dose) dermal (through the skin) exposure of  
Page: 67  
human beings to PCBs. In fact, there are no studies involving human dermal exposure of any  
quantity of PCBs.  
[360] The absence of direct, representative risk or exposure studies required the expert  
witnesses to undertake various hypothetical extrapolations in an attempt to quantify in a  
meaningful manner, the exposures which occurred here. The challenge facing the trier of fact is  
to determine whether the expert evidence is capable of proving, and whether it did prove, that the  
release of PCBs in the instant case met the test of causing either an “adverse effect” or a  
“significant adverse effect”.  
[361] In addition to the various factors that influence the factual question of whether a risk to  
human health or safety occurred, the expert evidence also indicated that there are significantly  
different standards against which such risk can be measured. The common scientific standards  
used in environmental toxicity assessment, which were referred to by the expert witnesses in this  
case are:  
1.  
2.  
3.  
Minimum Risk Levels (“MRLs”)  
No Observed Adverse Effect Levels (“NOAELs”)  
Lowest Observed Adverse Effect Levels (“LOAELs”)  
[362] These standards are not legal standards which one can equate or are even analogous to  
the categories of “effect” in the E.P.E. Act: “effect”, “adverse effect” and “significant adverse  
effect”. These standards employ quantitative exposure levels. They are scientific standards  
employed in risk assessment by environmental toxicologists. I describe each standard, in turn  
accepting the testimony of Dr. Robert F. Willes, who testified on behalf of the defendant.  
[363] A MRL represents an exposure level below which no “effect”, as it relates to a particular  
organism, such as a human being, exists or is expected. Thus, if an exposure is at or below an  
accepted MRL, no adverse effect will have been scientifically proven. For comparative purposes,  
this is considered the lowest level or standard, and is utilized most often to determine what are  
considered “safe” levels, prospectively in environmental planning. MRLs are set to ensure there  
will be no adverse effect.  
[364] Moreover, MRLs are almost always long term, chronic or repeated exposures as distinct  
from acute or single event exposures.  
[365] A no observed adverse effect level, or NOAEL, represents an exposure level below  
which no adverse effects as related to a particular organism, such as a human being, have been  
observed, and hence below which, no adverse effect will have been proven, given a chosen end  
point. This level or standard is a mid-level, higher than an MRL and lower than a LOAEL.  
[366] A lowest observed adverse effect level, or LOAEL, represents an exposure level at which  
adverse effects have been shown, and which presumably could be considered under the E.P.E.  
Page: 68  
Act to predict an adverse effect or perhaps even a significant adverse effect on the particular  
organism, such as a human being. This level or standard of risk is higher again than a NOAEL.  
[367] I have underlined the words “which presumably could be considered” because whether  
an effect is or is not, from a scientific perspective, “adverse”, depends upon the end point. For  
example, if the end point is a fluctuation in hormone levels, the presence of a fluctuation is  
deemed to be “adverse”. That does not address the issue of whether that fluctuation which, from  
the perspective of human health or safety, is certainly an “effect”, is also necessarily from the  
perspective of human health or safety an “adverse effect”.  
[368] It is important to understand that in terms of risk assessment to human health or safety,  
not only are there different levels or standards against which risk can be measured, the standards,  
and hence exposure levels vary according to the objective or chosen end point.  
[369] The terms “objective” and “end point” refer to the effect that is observed and measured,  
and which is expected (through hypothesis, observation, or both) from a controlled and measured  
exposure. At one extreme the end point is death. At the other extreme, the end point might be a  
temporary elevation in the white cell count or a short-term elevation in blood pressure of an  
organism. Although the latter may constitute an effect in terms of human health or safety, it is  
not necessarily considered “adverse” in terms of human health or safety. For purposes of  
environmental risk assessment, if that effect was the chosen end point in a given study, it could  
be considered an “adverse effect”, and its presence would indicate that the related LOAEL had  
been met or exceeded. This distinction is important, since an observable and replicable effect  
maybe considered an “adverse effect” in the language of scientists, whereas in ordinary  
language, it is merely an “effect”. There is a linguistic disconnect.  
[370] I also note that none of these three standards represent a “significant adverse effect”  
level. Hence, a “significant adverse effect”, when it pertains to human exposure to PCBs, must,  
by definition, be in excess of a LOAEL.  
[371] It should also be understood that the chosen objective or end point in a given toxicology  
experiment may vary according to the point in time following the last exposure at which the  
harmful effect is sought to be observed and measured; e.g., immediately, a week later, months  
later, or even years later. In this context, results apparently may be obtained through examination  
of the receptor, or though mathematical extrapolation from data obtained at an earlier point in  
time. The matter of timing of an end point, thus the persistence of an observable effect or the  
delay, if any, in an observable effect taking place, is relevant to the E.P.E. Act in its use of the  
phrases “causes or may cause” and “has caused, is causing and may cause” with respect to the  
causal result of a release of a substance that is alleged to have an adverse or significant adverse  
effect on the environment, or human health or safety or property.  
[372] There are other issues pertinent to a consideration of whether exposure to a substance  
results in an adverse effect on human health or safety. For example, the different standards or  
exposure risk levels (whether MRL, NOAEL or LOAEL) in toxicological risk assessment are  
Page: 69  
modified by the scientific community over time, as more research is carried out, testing  
procedures become more technologically refined, and new data is obtained concerning relevant  
factors such as background levels. The evidence before me indicates that PCBs are not  
considered to be as great a cancer risk as they were only a few years ago, but, on the other hand,  
are now considered to be a greater neurological risk.  
[373] I also note that one expert, Willes, described “less serious” vs. “serious” health effects as  
gleaned from the scientific studies which I did not find particularly useful in considering whether  
the exposures in this case could be characterized as either an “adverse effect” or a “significant  
adverse effect”.  
[374] As will be shown in the review of the expert’s opinions and evidence, significance, in the  
case of human exposure to toxic substances, relates to the qualitative and quantitative nature of  
the effect of the exposure on the human body.  
[375] I also note that the periodic and normally controlled “exposure” that is measured in the  
scientific studies is often referred to as a “dose,” since in experimental studies, non-human  
subjects (rats, for instance) are given measured doses of PCBs, or whatever other substance is  
being studied, in order to scientifically control the exposure.  
[376] In addition, the risk assessment methodology used by a given expert is chosen  
presumably for its utility in considering the assessment task or problem at hand, but methods for  
risk assessment vary widely in theoretical underpinnings as well as intended use. Here, the  
various experts employed different risk assessment methodologies. They also had differing  
opinions about the applicability and utility of applying the different measurement standards  
discussed above for considering risk.  
[377] I have attempted to outline the scope of the variables inherent in an expert evaluation of  
exposure to toxic substances, and to also note that PCBs are particularly problematic, especially  
on the facts of the instant case when the nature and level of exposure is considered. The task of  
determining whether there was either an adverse effect or a significant adverse effect (and  
whether the facts as interpreted by the expert witnesses in this matter met the statutory standard)  
was made even more difficult because there was, on the face of it, an extreme variation in  
opinion amongst the experts who testified in this matter. The experts disagreed as to which risk  
assessment methodology was most suitable in this case. The experts disagreed on the quantum of  
exposure. The experts disagreed on the rate of exposure. The experts disagreed on which studies  
were relevant. The experts disagreed on which endpoints were most suited to addressing the  
situation before them. The experts disagreed on which studies were representative of the facts of  
the case. The experts disagreed on how to extrapolate data from their chosen studies in order to  
render them representative under the facts and factors present here. The experts disagreed on  
factors appropriate to calculating exposure such as absorption rate and the quantity of the  
substance to which spectators were presumably exposed. The experts disagreed on which risk  
level is relevant to considering whether PCB exposure results in an “adverse effect” or a  
“significant adverse effect”.  
Page: 70  
[378] Finally, and on the basis of those disagreements, the experts’ conclusions also differ as to  
whether the exposures in the instant case can be characterized as falling within the statutory tests  
of “adverse effect” or “significant adverse effect”. This leads me to examine which expert, if  
any, offered an opinion that accurately and properly answers the essential question: whether the  
release of the PCBs as alleged has caused, is causing or may cause an “adverse effect” or a  
“significant adverse effect”, on the “environment or human health or safety”.  
[379] There is a fundamental underlying principle with respect to all expert evidence. The  
value of the science relied upon by each expert in providing an opinion is of no value to the  
outcome of a case if it is not based upon the proper evidentiary foundation. As underscored by  
Wenden, P.C.J. at para. 239 in R. v. Precision Plastics Ltd. (2003), 337 A.R. 210 (Alta. Prov.  
Ct.), whether or not an expert’s opinion will carry the weight necessary to determine a relevant  
issue is directly dependent upon how closely that opinion is tied to the factual underpinnings in a  
given case:  
[239] Before leaving the discussion on the issue of sampling, an  
observation on the use of science and expert scientific opinion is in  
order. Expert scientific opinion does not occupy a position of  
greater importance, nor ought it to be given any more weight as  
against the other evidence, simply because it is science, and that it  
is received as expert opinion (see R. v. Ratti, [1991] 1 S.C.R. 68;  
120 N.R.91; 44 O.A.C. 161; 62 C.C.C. (3d) 105). It is subject to  
the same scrutiny and weighing process as all the other evidence.  
To accord it a special status would mean that the courts would  
abdicate their role as triers of fact. Furthermore, expert opinion is  
only as good as the factual basis upon which it is founded. There  
must be a factual, evidentiary basis for an expert scientific opinion.  
See, e.g., R. v. Howard (1989), 96 N.R. 81; 34 O.A.C. 81; 48  
C.C.C. (3d) 38 (S.C.C.), reving. (1986), 15 O.A.C. 255; 29 C.C.C.  
(3d) 544 (C.A.). If this is present, then the expert opinion is  
grounded in fact. There must be a demonstrable relationship  
between the facts and the opinion.  
[380] In addition, I conclude that if an expert witness is found not to be sufficiently trained or  
experienced in an area he has testified in, Courts will disregard or attach limited weight to those  
portions of the testimony and opinion outside that witness’ expertise as may be necessary. See  
Reese v. Alberta (Minister of Forestry, Lands and Wildlife) (1992), 123 A.R. 241; 87 D.L.R.  
(4th) 1 (Alta. Q.B.) where McDonald, J., upon finding during cross-examination that an expert  
did not have expertise in a certain area of his testimony, at para. 88 rejected the same as adduced  
on direct examination:  
[88] In para. 3.1 Professor Carleton adopted Mr. Hammond’s  
opinion that (in Professor Carleton's words) “there are problems  
Page: 71  
with the timber resource inventory”. He continued: “Many of these  
problems derive from the use of indirect, remote sensing rather  
than estimation on the ground.” In cross-examination, he admitted  
that he is not an expert on inventory. I therefore disregard what I  
have quoted from his statement of opinion as to inventory, if that is  
offered as an opinion bearing on whether there will be a perpetual  
sustained yield.  
[381] I also note that I, as the trier of fact, may consider the evidence of experts and other  
witnesses as well as other evidence in ultimately determining the matter. In Begro Construction  
Ltd. v. St. Mary River Irrigation District (1994), 154 A.R. 1 (Alta. Q.B.), Power, J. held that in  
considering contradictory expert evidence, a court is free to determine the facts according to the  
most probable and proper theory of the case. Begro Construction also stands for the proposition  
that the consideration of expert evidence is not at the expense of other evidence in the case, and  
is not given more weight than any other form of evidence.  
[382] With these considerations in mind, the evidence of the experts is considered.  
B.  
Dr. Detlef Birkholz (“Birkholz”)  
[383] Birkholz was called to testify as a Crown witness with an expertise in environmental  
toxicology. I accept Birkholz’s description of environmental toxicology as being the study of the  
relationship between the effects of chemicals on people and the environment generally; and that  
it is a multi-disciplinary field requiring some knowledge of chemistry, biology, ecology,  
genetics, epidemiology and to some extent economics and the law.  
[384] While Birkholz was qualified as an expert in the very general area of environmental  
toxicology, I conclude that his expertise is particularly focused on analytical chemistry as it  
relates to the analysis of PCBs, dioxins and furans, and their physical and chemical properties. A  
very large portion of his evidence focused on the sampling, testing, chemical analysis and  
weighing of substances, addressing those factors with respect to the two ruptured capacitors  
which he personally examined, and the insulating oil in those capacitors. The results of the  
testing and analysis relating to those capacitors was used by him and the other experts in  
considering the quantitative and qualitative aspects of some PCB mixtures, as well as dealing  
with levels of exposure and formulating risk assessment. This does not mean that the other  
experts agreed with his conclusions however, or that all of his calculations were applied carte  
blanche.  
[385] To a considerably lesser extent, Birkholz has some expertise in terms of assessing the  
effects of PCBs, dioxins and furans on the human body, and still even less on the quantification  
of risk to humans as a result of exposure to those same substances. Although he has expertise in  
risk assessment as it may relate to the exposure of humans to chemicals in the environment, he  
has comparatively less so in relation to PCBs, dioxins and furans. His experience relating to  
these substances, and quantifying risk, is limited to one study concerning the effects of the  
Page: 72  
consumption of PCBs in meat, where he relied on data which had already been collected and  
analyzed in comparing exposures to exposure limits published by Health Canada and the United  
States Environmental Protection Agency (“EPA”).  
[386] The focus in that case was to determine whether persons could consume a specific  
quantity of meat per month without an adverse effect. The focus was not to determine what  
levels of PCBs were required before the meat would be unsafe to eat. However, standard levels  
of safety based on exposure do not necessarily equate to levels of “unsafe”, or pose a risk to  
human health or safety, whether those levels are published by Health Canada, the World Health  
Organization (“WHO”), the EPA, the United States Agency for Toxic Substances & Disease  
Registry (“ATSDR”) or the United States Centers for Disease Control.  
[387] Birkholz has no experience with dermal exposure modelling. He has never published in  
the area and his only formal education consists of two one-day seminars as an untested attendee.  
All of his testimony on the quantification of risk was limited to comparing the test results of the  
PCB, dioxin and furan content of two capacitors he examined to levels of risk assessment  
published by others, particularly Health Canada.  
1.  
Chemical Analysis by Birkholz  
[388] Birkholz is a principal of Enviro-Test, which is the laboratory which first became  
involved in the instant case when the defendant delivered to it one of the ruptured capacitors  
involved in either the August 3 or August 4 release, together with a drained intact capacitor and  
the vial of its drained insulating oil. Enviro-Test next became involved in this matter when the  
AEP took or oversaw the taking of samples from the Stadium stands beginning on August 10,  
and thereafter during the course of clean up, in order to determine the extent of the presence of  
PCBs in the stands. Birkholz was then retained by AEP around August 16 to perform a chemical  
analysis of two capacitors delivered to him by an AEP investigator.  
[389] Birkholz’s testimony was most helpful in establishing the chemical composition and  
toxicity levels of the PCBs in the insulating oil of the two capacitors which had been delivered to  
him, one of which the investigator understood would have been involved in either the August 3  
or August 4 release, as has already been noted..  
[390] I have already made comments earlier in these Reasons about the lack of evidence as to  
continuity in the handling of the capacitors which had ruptured at the Stadium from August 3 to  
12. Indeed, that issue is highlighted by Birkholz’s testimony that his examination of the two  
capacitors delivered to him, revealed that they contained respectively two different PCB  
mixtures, Aroclor 1016 and Aroclor 1242; and further, that neither had been the ruptured  
capacitor which Enviro-Test examined at the request of the defendant on August 6. I repeat for  
emphasis that there is no evidence that Aroclor 1016 was involved in any of the releases of  
August 3, 4, 8 or 12. It may have been that the capacitor examined by Birkholz containing the  
PCB mixture Aroclor 1242 was another ruptured capacitor, which was discovered by the  
defendant and removed from a Stadium ballast without there having been any release of any  
Page: 73  
insulating oil from that ballast. If the ruptured capacitor examined by Birkholz, and which  
contained the Aroclor 1242 mixture could not, on Birkholz’s testimony, have been the ruptured  
capacitor tested by Enviro-Test at the request of the defendant, and I accept Birkholz’s testimony  
to that effect, it may have been the other ruptured capacitor in the first two releases of August 3  
or August 4, or in the August 8 release. For that matter, it may have been the ruptured capacitor  
involved in the August 12 release, but the defendant is not charged with anything relating to that  
last release.  
[391] Birkholz concluded that burning or combustion of the PCBs had occurred in both  
capacitors he examined, and that this had resulted from an extremely high temperature such as  
that caused by electrical arcing. Chemical analysis of the capacitors performed by Birkholz  
confirmed the presence of dioxins and furans.  
[392] Birkholz was able to determine the weight of those Aroclor mixtures by factoring in the  
concentration of congeners in each of the two Aroclor PCB mixtures depending on which of two  
instruments were used to measure the weight. With that range of weight, knowing the specific  
gravity of each of those Aroclor mixtures, and assuming a rate of skin absorption, which in turn  
was based upon assuming that the smallest drop he could replicate had been in contact with the  
skin of a person, Birkholz was able to calculate the toxic equivalency (“TEQ”) of those Aroclor  
mixtures, which he would have expected to have entered the body of a person who had been  
exposed to such a drop.  
[393] Using a similar method of calculation Birkholz was able to calculate the TEQ of the  
dioxins and furans in each of the two Aroclor mixtures as well as that which could have been  
produced from the burning or combustion of that same quantity in each.  
[394] It should be noted that in providing his results of the analysis of those capacitors which  
were surrendered to the AEP investigator by the defendant, Birkholz testified that it was his  
opinion that, notwithstanding the results of the earlier tested ruptured Westinghouse capacitor  
examined by Enviro-Test at the request of the defendant, and showing a PCB concentration in  
the insulating oil of 30%, the concentration would in fact have been higher. Birkholz based his  
later opinions relating to risk to human health or safety on the assumption that the PCB  
concentration in the insulating oil was 100%.  
[395] It is important to note that at the conclusion of the examination-in-chief of Birkholz,  
Crown counsel stipulated that the Crown was relying solely upon a PCB concentration of 30% in  
the insulating oil. That was an appropriate concession for the Crown to make because of the  
evidentiary problems relating to continuity in the handling of the ruptured capacitors. Because  
Birkholz based his opinions on risk assessment on a concentration of PCBs in the insulating oil  
of 100%, one must discount his calculations by 70%.  
2.  
Risk Assessment by Birkholz  
Page: 74  
[396] Birkholz provided some general comments on risk assessment on the basis of an  
extensive compendium of over 2,000 pages, published by ATSDR, an agency of the United  
States Department of Health and Human Services, which sets out the toxicology of various  
chemicals, including PCBs. All three expert witnesses referred to this compendium. It was this  
document which served as the primary source for Birkholz’s examination of the toxicology of  
PCBs in preparation for his testifying in this case. The other Crown expert, Dr. Larry G. Hansen,  
was an independent auditor on the compendium, which Birkholz described as “the most  
comprehensive [he had] seen on the health effects related to PCBs.”  
[397] Birkholz described generally the potential health effects caused by exposure to PCBs,  
stating that acute PCB exposures as documented by ATSDR included, for example, various  
effects resulting from industrial accidents and explosions, such as increased blood pressure. He  
noted that workers who were exposed to “high levels of some of these chemicals” displayed  
“very visible effects on the skin such as chloracne,” which, as he explained, was like severe  
teenage acne, a form of skin rash. However, Birkholz did not identify, with any certainty, the  
specific human health or safety effects one would expect to see based on the level and nature of  
the single, acute, dermal exposures evident on the facts of the instant case. Rather, his evidence  
was generalized, being founded upon reference to annotations in the ATSDR compendium; with  
respect to human health or safety, his testimony was merely descriptive, and not specific to the  
persons who were actually exposed and who were called as witnesses in this matter (or others  
who might have been in the Stadium at the times of the releases), or with respect to the facts and  
factors regarding their presumed exposure.  
[398] Notwithstanding that, and the other limitations inherent in his inexperience which I have  
already spoken of, Birkholz was asked to provide specific opinions as to whether there was a risk  
posed to any of the spectators in the instant case. He did so, in a slightly more specific, but still  
general way, by comparing the results of his analysis of the two capacitors he had examined, and  
the PCB mixtures in those capacitors, and assuming a 14% dermal absorption rate as set out in a  
publication entitled PCB Risk Assessment Review Guidance Document, published by the EPA,  
against published recommended tolerable daily intake (“TDI”) levels for PCBs, particularly  
those set out by Health Canada.  
[399] Birkholz thereby offered the following opinions on risk to human health or safety. First,  
as to the Aroclor 1016 contained in the first capacitor he examined, Birkholz opined that Health  
Canada’s recommended TDI for a person weighing 70 kilograms would be exceeded if that  
person were exposed to the smallest liquid drop of that Aroclor which Birkholz was able to  
replicate, and depending upon the instrument used to weigh that Aroclor, by 69 to 74 times. That  
was based on an assumption of a 100% concentration of PCBs in the insulating oil. Applying a  
70% discount, the TDI is exceeded by 20.7 to 22.2 times.  
[400] As to the TEQs of the dioxins and furans which would have been in that liquid drop of  
Aroclor 1016 or which would have been produced by the burning or combustion of that same  
quantity of Aroclor 1016, Birkholz opined that there was no “adverse risk” to that same person  
according to the recommended levels established by the WHO.  
Page: 75  
[401] Again, it is important to note that there is no evidence that Aroclor 1016 was released on  
August 3, 4 or 8, either as a liquid or as a combusted PCB emission of dioxins and furans.  
[402] Second, as to the Aroclor 1242 contained in the second capacitor he examined, Birkholz  
opined that the Health Canada recommended TDI for a person weighing 70 kilograms would be  
exceeded if that person were exposed to the smallest drop he could replicate, and depending  
upon the instrument used to weigh the Aroclor, by 63 to 77 times. That too was based on a pure  
concentration of PCBs, and should therefore be discounted by 70% so that the recommended  
TDI level for that person was exceeded by 18.9 to 23.1 times.  
[403] As to the TEQ of the dioxins and furans which would have been in that liquid drop of  
Aroclor 1242, Birkholz opined that the dioxin/furan TEQ from that drop exceeded the daily  
levels recommended by the WHO by 3.3 to 13 times. That too was based on a pure concentration  
of PCBs and should also be discounted by 70% so that the recommended daily TEQ level for  
that person was exceeded, if at all, by at most 3.9 times the levels recommended by the WHO.  
[404] Birkholz further testified that there would have been a considerably higher daily TEQ for  
the Aroclor 1242 in the capacitor which he examined, produced by the burning or combustion of  
that same quantity. Birkholz opined that the resulting overall (PCB and dioxin/furan toxicity)  
daily TEQ exposure from that drop exceeded the levels recommended by the WHO by 106 to  
424 times. After discounting for a 30% concentration the ratio is reduced to 31.8 to 127 times.  
[405] However, again it is important to note that I have no way of knowing whether this was  
one of the capacitors which ruptured on either August 3 or 4, or whether it was the capacitor  
which ruptured on August 8, as distinct in each case from the capacitor which ruptured on  
August 12 or on any other date. Because I do not know that, I am unable to conclude that the  
capacitors which ruptured on August 3 or 4, or the one which ruptured on August 8, did in fact  
combust or burn insulating oil. They may not, in fact, have actually ruptured as a result of being  
blown or having exploded, as distinct from having simply had the capacitor lid merely lift or  
separate from the capacitor wall.  
[406] Birkholz testified that Health Canada’s recommended TDI was published in 1987, and  
that between that time and 2004, there had been a great deal of work done worldwide on PCB  
assessment. He indicated that there are now better methods available to determine exposure and  
that scientists currently have more definitive numbers than they did 10 or 20 years ago. He  
indicated that the ASTDR document recommended tolerable daily intake levels, which he  
concluded were equivalent to MRLs, which are much lower than Health Canada’s TDI, and that  
the EPA recommended TDI was less than 10% of Health Canada’s 1987 recommended TDI. He  
also noted that the EPA recommended even lower intake levels were low so as to ensure no  
adverse risk to the most sensitive population, presuming that the population was exposed to  
those levels daily, for an indeterminate amount of time, day after day.  
3.  
Environmental Impact  
Page: 76  
[407] Birkholz discussed the clean up criteria developed by Environment Canada and the EPA  
as they related to the PCB residue found in the stands from the samples taken or directed by  
AEP. However, Birkholz did not give an opinion as to whether the PCB residue found in the  
stands before the concrete in the stands was sealed, represented a level of contamination that  
would constitute an adverse effect pertaining to the environment. Moreover, it is clear that those  
criteria were MRLs associated with the clean up of contaminated sites and can in no way be  
indicative of the presence of an impairment of or damage to the environment.  
4.  
Conclusions Regarding Birkholz’s Evidence  
[408] My take of Birkholz’s evidence is that the recommended levels he used as comparators  
are all basically MRLs. MRLs are, by their very definition, not only much lower than no  
observed adverse effects levels (NOAELS), but lower yet than lowest observed adverse risk  
levels (LOAELS). MRLs appear to be non-determinative in terms of accurately determining  
levels which correlate with adverse effect, as the latter relates to a retrospective risk assessment.  
[409] This conclusion is consistent with an issue which arose during the trial as to the  
appropriateness of utilizing predictive risk assessment techniques as opposed to utilizing  
methods that are designed to analyze events that have already occurred. The latter deal with  
actual exposures, as distinct from hypothetical and general risks, that might be associated with  
PCBs in the environment. Birkholz testified that the EPA document which he relied upon was a  
“prospective risk assessment document”, and that its purpose was to standardize risk assessments  
for disposal options for remediation and non-remediation waste. He agreed the document was  
directed toward environmental site risk assessments used in planning facilities. For example, a  
risk assessment was done prior to the Swan Hills waste treatment facility being built.  
[410] When asked whether it was “not a document to be used for retrospective risk,” Birkholz  
replied: “[I]t’s a guidance document only ... and there may be other factors that have to be  
assessed in doing a risk analysis, and I would agree with you under some circumstance, this may  
not be the appropriate document to use.”  
[411] Also of significance is Birkholz’s evidence that there is a generally accepted 20 to 30  
percent error margin in analytical results relating to PCB analysis.  
[412] Further, Birkholz conceded that a recommended TDI is a standard for chronic ongoing  
exposure, occurring day after day, which could last a lifetime. He was not certain whether the  
standard represented a standard for a one-time, single acute exposure.  
[413] I mention that Birkholz relied on an assumed dermal exposure rate of 14%, based upon  
an EPA manual, a rate Birkholz characterized as more conservative than that used elsewhere.  
However, Birkholz conceded that his opinion on rate of absorption may not have accounted for  
variables relating to dermal exposure, including the duration of exposure and the dermal  
exposure pathway, which might be relevant.  
Page: 77  
[414] Birkholz’s conclusions that there was a risk of a significant adverse effect on the health  
of the spectators in the instant case were based only on the comparators noted. Moreover, those  
conclusions did not relate to any particular end point, or specify what that adverse effect might  
be, or predict its duration.  
[415] Nor did Birkholz testify as to the clearance rates of the congeners in the particular PCB  
Aroclor 1242 mixture and what, if any, effect those clearance rates might have on the Health  
Canada recommended TDI levels.  
[416] Defence counsel objected to Birkholz’s risk assessment evidence as being beyond the  
scope of Birkholz’s particular expertise in environmental toxicology; but both counsel agreed  
that this issue went to the weight to be given to that evidence.  
[417] Birkholz’s qualifications and the scope of his expertise in this matter aside, I found the  
several limitations in his evidence as mentioned above, prevented him from providing an  
accurate assessment of the risk to the health or safety of any of the spectators in the Stadium.  
Further, his opinion relating to risk assessment in the instant case fails to meet any legal standard  
of proof as to whether the releases of PCBs at any material time herein met the statutory test of  
“significant adverse effect” in section 98(2), or for that matter “adverse effect” as contemplated  
in section 99 of the E.P.E. Act.  
[418] I have concluded that Birkholz’s evidence regarding the quantification of risk of PCB  
exposure to human health or safety cannot be given any meaningful weight.  
C.  
Dr. Larry G. Hansen (“Hansen”)  
[419] Hansen testified for the Crown after being qualified as an expert in environmental  
toxicology. His evidence was offered to demonstrate that the quantity and concentration of PCBs  
released in the Stadium, at the material times, had an effect which could be characterized as a  
“significant adverse effect” as contemplated in section 98(2) and an “adverse effect” as  
contemplated in section 99 of the E.P.E. Act.  
[420] He described risk assessment as a process of comparing a presumed exposure limit to an  
estimated exposure.  
[421] He suggested that the exposure limits identified by him were based upon experimental  
studies that compared toxicity end points (i.e., observable effects on health or physiology) to  
LOAELs and to NOAELs that he considered relevant in the case. I note that he also stated in this  
context, that by using LOAELs and NOAELs, one could arrive at MRLs. This was the first part  
of the equation he used to quantify risk. Hansen testified that he had not relied on any studies for  
an acute single dermal exposure to establish exposure limits, due to the fact that there were no  
such studies available.  
Page: 78  
[422] Accordingly, he chose several representative studies based on chronic and intermediate  
durations for his risk assessment, and one double dose acute study. In addition, the studies he  
chose were based on ingestion (as opposed to dermal contact), with multiple doses as opposed to  
a single dose. As counsel for the defendant put it, Hansen tried to “... take the exposure limits  
from those studies to compare to a single dose, acute exposure, on a dermal application.”  
[423] Hansen testified that the intermediate duration study by Dr. Rice involved behavioural  
studies on monkeys, the monkeys having been dosed previously for immunological studies. The  
conclusions of the Rice study were that, at the dose administered, there were some learning and  
performance effects, and there was reduced perseverance, described as the inability to inhibit an  
inappropriate response. The Rice study went on for 20 weeks, or 140 days, and the animals were  
assessed up to five years after the study was completed. Willes pointed out that the congener mix  
used by Rice contained the “long half-life” materials and not those found in Aroclor 1242; he  
opined that it did not address the facts of this case at all. One reason was that instead of a sharp  
rise and then falling off, as resulted from one acute situation, there was a continuing rise in body  
burden lasting 20 weeks.  
[424] Hansen indicated that the exposure limits for the Rice study were based on LOAELs, but  
the opinion of Hansen actually involved relying on MRLs. I arrive at this conclusion from his  
testimony to the effect that LOAELs derived in the studies were multiplied by a certain value or  
factor which essentially served to convert the LOAELs to MRLs. Hansen conceded that MRLs  
are designed to protect against long-term over-exposure to PCBs.  
[425] As to the second comparator, Hansen described the second part of his risk equation as  
“potential or estimated exposure.” He used hypothetical examples (founded upon figures  
supplied to him by the Crown) to provide an opinion on the quantity and concentration of PCBs  
to which a given spectator in this case would have been exposed. The hypothetical answers were  
based upon quantitative factors including drop size, quantity available for release, and a  
presumed dermal absorption rate.  
[426] Hansen testified that the information which he was given with respect to the particular  
PCBs involved in this case consisted of the Enviro-Test analysis of the fluid that had been  
drained from one or two capacitors, and “also what was referred to as a solid sample from a  
capacitor that had blown and photographs of the capacitors.”  
[427] It appears that Hansen was retained by AEP shortly after the defendant reported the  
releases to AEP. Hansen’s report dated October 31, 2002 (Exhibit 9 at Tab 10) reveals that he  
received information from AEP about the instant case which, as it turns out, does not accord with  
the findings of fact which I have made. His opinions in that report reflect those inaccuracies,  
including the quantity of PCBs that could have been and were released from any ruptured  
capacitor. Hansen assumed 1.5 ounces of insulating oil was in each capacitor, and that 100%, or  
all of it, had escaped from the ballasts, and fallen into the Stadium. Many of the calculations in  
his Report and some of his testimony were based upon those inaccuracies.  
Page: 79  
[428] Apart, however, from those inaccuracies for which one can adjust by way of  
extrapolation, it is clear that other information was provided to Hansen. It would have been  
better not to have been provided, because it appears from the summary which he prepared for the  
purpose of introducing the report itself, that he may have adopted that information. That  
information includes prejudicial attribution of knowledge and motive to the defendant, which I  
have specifically rejected. That may well have coloured Hansen’s objectivity from the  
beginning. Indeed, as I listened to his testimony, it seemed to me that from time to time he  
assumed the role of an advocate rather than of an objective, dispassionate and independent  
expert.  
[429] Some of Hansen’s evidence was based on the assumption that there either was or had  
been a release in the instant case of Aroclor 1016. Even more of it was based on the assumption  
that the Aroclor which was released was of a concentration greater than that proven and  
stipulated by Crown counsel as being in fact 30% or 300,000 parts per million.  
[430] Adjustments can be made for those errors and attempts were made to adjust for those  
errors. However, there are other disconcerting problems with Hansen’s opinions.  
[431] In some aspects his testimony is vague and imprecise. An example is his testimony on the  
size of a “drop” as that word was used by the spectators. Hansen himself conceded that a drop  
was a relative term and that for a drop to be felt, it would have to be a reasonable size. He stated  
that he had done a lot of transferring of Aroclor, from one vessel to another, weighing it drop by  
drop. That experience informed him that a drop of Aroclor 1242 was usually one-half of a  
millilitre or larger. He testified that he had likely underestimated the drop size which he relied  
upon in giving his opinions, suggesting that estimating the quantity of one-half of a millilitre as a  
drop was very conservative. He assumed that this would reduce the estimated exposures. In my  
view, while Hansen could give testimony about drop size based on his own experience, he was  
certainly not qualified to give expert evidence in this respect.  
[432] Hansen made significant errors in mathematical calculations which he himself  
acknowledged. While those he acknowledged were corrected, I still have concern about the  
reliability of the remainder of his calculations.  
[433] In terms of absorption, Hansen testified that the most conservative estimate of absorption  
was through an ATSDR profile on PCBs, at a rate of about 33% within one-half hour. Hansen  
indicated that there was a general consensus among people to whom he had spoken that this was  
a fair estimate. He agreed, however, on cross-examination, that there was uncertainty inherent in  
the 33% rate, as it presumed much. He testified that he took this rate to represent the “worst case  
absorption”. He stated that the 33% rate presumed that someone was exposed and did not wash  
the substance off for eight, 10 or 24 hours. This 33% rate is contrasted with Birkholz’s  
significantly more conservative 14% rate. I note that Birkholz testified that even the 14% dermal  
absorption rate did not accommodate the factor of duration of exposure, and that other factors,  
which varied from case to case, included: drop size, vehicle of delivery, whether there was  
washing or removal of a substance, involvement of clothing or other material on the skin.  
Page: 80  
[434] Hansen’s calculations of risk to the spectators were also based on an assumed number of  
drops, which were not precisely in accordance with the actual testimony of the spectators.  
[435] As to any acute effects on the spectators involved in the August 3 release, I conclude  
from Hansen’s testimony that, in his view, they would be about the same as that for Dykeman. In  
Dykeman’s case, acute effects would very quickly dissipate, as the PCBs had a large area to be  
distributed over because of his body size, and the distribution would occur very rapidly, making  
the blood PCB levels elevated for only a brief time.  
[436] Hansen stated that no one would display an identical spectrum of possible effects, and  
that expected subtle effects would be influenced by physiology, diet and consumption of  
medications. In general, he opined that the effects would be subtle and might be attributed to  
aging. However, he also said the three spectators in the August 3 release all had size, age and  
apparent good state of health going for them. Although Hansen testified that he was “astounded  
at the increase in body burden” when “doing the calculations in his head,” he thought that they  
could probably “handle this in pretty good form.”  
[437] I note Hansen’s theory that chronic exposure can develop from an acute exposure, the  
body becoming a reservoir acting as a source of ongoing doses or exposures. I am not satisfied  
that this theory has gained the significant degree of acceptance in the scientific community that it  
can be considered reliable. Even so, it does not in my view assist in answering the issues raised  
in the instant case.  
[438] In terms of pinpointing actual or potential risk to human health or safety, resulting from  
the releases in the instant case, many of Hansen’s answers are difficult to understand and  
constituted something of a barrier in relying on his conclusions. Often his responses to questions  
posed to him as to what the actual effects might have been, with respect to the drops which may  
have fallen on a spectator, were simply a reiteration of the range of potential health effects as  
found in an ATDSR report, or in various experiments and published scientific studies. His  
answers did not, in my opinion, speak to the issues in this case, but rather were speculative and  
generally unresponsive to those issues. Frequently Hansen’s opinions addressed exposures in  
excess of MRL exposure limits, or standards of exposure.  
[439] Exposures in excess of MRL levels or standards do not necessarily indicate that there is a  
risk to human health or safety or the environment. The MRL is the minimum level below which  
there is no risk. The actual level of risk may well be considerably higher. An MRL is a safety  
measurement. It is not a harm measurement.  
[440] This was recognized by Hansen during his cross-examination. He agreed that in deriving  
an MRL, one hoped to hit an “ultimate low safety level for the most sensitive human”. He further  
agreed that just because one exceeded a MRL did not mean that there was going to be an adverse  
effect as marked by a selected end-point, such as an impact on thyroid hormone levels.  
Page: 81  
[441] NOAELs and LOAELs by contrast are correlated to measurable effects. Indeed as an  
objective, scientific yardstick, even an exposure in excess of NOAEL exposure levels or  
standards does not necessarily indicate a risk in terms of harm.  
[442] The Crown spent considerable time questioning Hansen on the results of the blood  
analysis of Logie and Stephen. Hansen had recommended that Logie and Stephen have their  
blood tested as a result of his being told by the Crown (prior to trial) that the two women had  
developed an “intermittent skin rash”, and “some possible health effects”. From a close  
examination of Hansen’s testimony and his second report dated February 9, 2004, I conclude that  
they are ambiguous as to whether it is Hansen’s opinion that at the time of testing, which was  
two years after the event forming the subject matter of the instant case, the women had actually  
been exposed to Aroclor 1242, although at first glance it may seem that it was his opinion. I take  
his evidence to be no more than an indication that the congener profile of the women was  
consistent with an exposure to Aroclor 1242 and that on a comparative basis it was more likely  
that they were exposed to Aroclor 1242 than to Aroclor 1016. This does not equate to a  
confirmation that they were exposed to Aroclor 1242, let alone by virtue of any exposure which  
is the subject of the instant case.  
[443] Moreover, even then, in his second report of February 9, 2004, Hansen placed the women  
“right in the middle of the minimal risk level (MRL) for acute and chronic exposures to PCBs,  
according to the average Canadian body burden in 1992”. This also provides an example where  
Hansen adopted an MRL as the appropriate exposure limit or standard of exposure in measuring  
risk, rather than a NOAEL or even a LOAEL.  
[444] In fairness, notwithstanding my impression that Hansen was suggesting that Logie and  
Stephen were the women he wrote of in that report, he was re-examined on the issue. However,  
his answers provide but one example of confusing and unresponsive answers to questions put to  
him. I really do not know what he was speaking of in those responses.  
[445] Further, as noted by Willes, the results of the blood congener analysis in isolation are  
meaningless, without some idea as to what the women’s body burden may have been just before  
the alleged exposure claimed in the instant case.  
[446] In conclusion, rather than present a risk analysis that was premised on a carefully defined  
exposure level, Hansen appears to have relied mainly on one study which he considered  
appropriate to addressing the facts in the instant case, as he understood those facts, the Rice  
study. However, it is clear that the Rice study had limited application on the facts before me.  
Attempting to assess Hansen’s evidence, particularly his reports, so as to arrive at tangible  
conclusions as to where his chosen toxicity analysis actually meets the facts of the instant case  
has proven to be extremely difficult.  
[447] Hansen made generalized statements about harm, and speculated about longer term or  
chronic exposures. But these statements do not constitute an opinion on the issue at hand, i.e.,  
Page: 82  
whether these exposures did cause an immediate or prospective adverse or significant adverse  
effect on the health of the spectators, or the environment.  
[448] Notwithstanding his methodology, I conclude that Hansen did not, in fact, conclude that  
there was an adverse effect, let alone a significant adverse effect, as a result of the acute  
exposures in this case, but rather that there is a general risk of an adverse effect as a result of  
chronic exposure emanating from increased PCBs in the instant case in the bodies of the affected  
spectators. His fundamental conclusion was that there was an increased body burden. I have  
already addressed his theory that an increased body burden is a source of further exposures, so as  
to create chronic exposures out of an acute exposure. Regardless, it seems that Hansen concluded  
in each of the spectators and the hypothetical issues related to them, that they could “handle this  
in pretty good form”, or, regarding the others, that the effects were likely “un-diagnosable”. That  
is far from saying that there was either a potential or actual adverse effect, or significant adverse  
effect.  
[449] I am left with serious doubt that his conclusions about adverse effects are either a correct  
conclusion about the behaviour of the PCBs present in the human body or bodies of the  
spectators who testified or for that matter any other person who might have been a spectator at  
the time, or that those conclusions are accurate conclusions concerning the potential results of  
the exposures.  
[450] With respect to environmental effects, Hansen stated in his report that “the greater impact  
would be on local atmospheric levels for a brief period and the creation of future reservoirs in  
vegetation. ... The environmental impact of this release will be real, but very difficult to  
quantitate [sic] within the context of ambient levels and other sporadic sources. It will also add  
to the PCB burden in the Arctic eventually.”  
[451] While Hansen referred in his report to what he termed “diffuse environmental effects”, he  
never did specify what these diffuse environmental effects were, or how they might be observed.  
He did not quantify or provide a relative comparison, quantitatively or qualitatively. He provided  
no evidence of factual support to justify this general conclusion and I reject his notion that there  
were in his words “real” or “diffuse” environmental effects.  
[452] For all of the above reasons, I am unable to place any reliance on Hansen’s conclusions  
as to an adverse effect as it may relate to the environment or human health or safety.  
D.  
Dr. Robert F. Willes (“Willes”)  
[453] Willes testified for the defendant and was qualified as an expert in environmental  
toxicology. He too was called to address the issue as to whether the PCBs released in the  
Stadium at the material times caused or were capable of causing a “significant adverse effect” as  
contemplated in section 98(2) and an “adverse effect” as contemplated in section 99 of the  
E.P.E. Act.  
Page: 83  
[454] Willes has particular expertise in human health and ecological risk assessment, both  
prospective and retrospective, including in the areas of chlorinated aromatics and hydrocarbons  
with an emphasis on PCBs, dioxins and furans - and all matters relating to such substance  
exposures to humans; exposure to the environment; and of risk to humans and the environment.  
Specifically his expertise extends to an analysis of blood sample data and quantification of risk  
to humans from that data which itself includes the specific area of pharmacokinetics,  
toxicokinetics, metabolism and biotransformation, and the integration of toxicological  
information with health end points in humans.  
[455] Unlike Hansen, Willes’ evidence was ordered, logical, rational, detailed and considered  
not only as to content but in presentation. It seemed rational and particularly well informed from  
a scientific perspective.  
[456] Willes explained that there are three factors which determine risk and that all three  
factors must be present at the same time and place for there to be a risk. Those factors are (1) a  
contaminant, (2) a receptor (such as a human being), and (3) exposure. Virtually all substances  
are capable of being poisons, but only if there is enough of an exposure will there be a risk.  
[457] Exposure (covered also by the term dose) has itself three components: (1) amount or  
level of exposure, (2) rate or frequency of exposure, and (3) duration of expose. Each of these  
variables affects the exposure.  
[458] Rate of exposure has its own variables which are classified as (1) acute, which is over  
one to 14 days and is usually a single dose or exposure; (2) intermediate, which is a repeated  
daily exposure between 14 days and a year; and (3) chronic, which is a repeated daily exposure  
for more than a year and usually a major portion of a lifetime.  
[459] Rates of exposure are also affected by the way in which the contaminant enters the body.  
All substances enter the body through three main pathways: ingestion, inhalation and dermal  
absorption.  
[460] A human receptor is also affected by variables: age, health, whether in vitro and whether  
lactating, being some of those. The receptor may also vary by the site of the receptor to be  
studied, e.g., bone, muscle, blood.  
[461] The contaminant is itself affected by how it is metabolized in or excreted from the body.  
The rate of metabolism therefore interacts with the rate of exposure making certainty of  
measurement of risk even more imprecise.  
[462] All human tissue is exposed over a period of time to a variety of toxins including PCBs.  
The body is able to metabolize or excrete those toxins so that no harm will occur. An effect from  
a toxin occurs when the exposure or dose for whatever reason exceeds the ability of the body to  
metabolize or excrete it. As exposures increase, the risk of adverse effects rises until such time as  
the tissue has an adverse effect. As exposures increase beyond that, there is a risk of a significant  
Page: 84  
adverse effect. Ultimately the most extreme significant adverse effect is death. In Willes’ view  
the critical issue in toxicological risk assessment in organisms is to determine how much of a  
known substance enters tissues of the organisms where adverse effects are known or expected to  
occur, thus the actual amount of an “internal effects dose”.  
[463] Willes described the purpose of risk assessment as being to identify when a particular  
scenario being assessed will produce an adverse effect. All of the above factors or variables are  
relevant to that determination. Because all substances have effect ranging from no effect, through  
to minor effects, through to death, if the dose is high enough, the task of doing a risk assessment  
is to identify where one is on the dose response continuum, and to determine the likelihood that  
the exposure/dose relationship was going to result in adverse effects.  
1.  
Willes’ Risk Assessment Methodology  
[464] Willes described the health risk assessment methodology he employs as essentially  
consisting of four steps. The first step is problem formulation which is internationally recognized  
as the proper starting point in risk assessment. Problem formulation involves four elements: (1)  
site characterization, (2) chemical screening, (3) receptor screening, and (4) exposure pathway  
screening.  
[465] The second step is exposure assessment. Exposure assessment involves obtaining the best  
information available on the magnitude and duration of the actual exposure (whether one time  
only or multiple) and calculating how those exposures vary from one receptor, such as a  
particular person, to another person or animal. This step requires using the information obtained  
during the first step.  
[466] The third step is toxicity assessment. Toxicity assessment focuses upon identifying  
acceptable exposure levels that are considered safe or which would not result in adverse effects.  
Toxicity assessment requires the use of experimental scientific studies that incorporate  
representative facts (having regard to the circumstances of the actual exposures) to assist in  
determining the actual health risk to the receptor. This step also requires using the information  
obtained in the first step.  
[467] The fourth step is risk characterization. Risk characterization compares the so determined  
exposure and toxicity assessments in the two preceding steps to arrive at estimates of the actual  
risk of adverse effects on receptors in a particular case (in the instant case, the spectators) as  
derived from the facts. Risk characterization represents the conclusions of the risk assessment  
and represents the core question asked of the experts in this matter.  
[468] As a final “step” Willes performs what he terms a “certainty analysis” which is designed  
to serve as a check on the results of the risk characterization analysis. Its purpose is to ensure  
that the assessor does not underestimate risk. In the instant case, for example, one would look at  
the margin between the values derived at the exposure assessment stage and the values at which  
an acute exposure would be cause for concern. If the numbers are relatively close then the  
Page: 85  
assumptions relied upon at the exposure assessment stage (values relating to dose, duration, etc.)  
are to be reconsidered.  
[469] More specifically, Willes explained that risk characterization requires him to consider the  
degree of certainty, and hence the degree of uncertainty, inherent in the assumptions and the  
conclusions being drawn. At pp. 2550 to 2551, Willes indicated that underestimating risk is the  
greatest concern in these types of assessments, “because they are all hypothetical calculations  
and you don’t really know what happens, so you are trying to backcast and predict what’s  
happening, and you don’t want to underestimate things.” He stated that he preferred to think of  
this challenge as a “certainty analysis.” He indicated at several points during his testimony that  
he went one step further in his risk assessment in the instant case in that he applied “reasonable  
worst case assumptions” and then asked, “how much would we have to be wrong before you  
actually got an effect that you didn’t want to avoid?” I note that Willes was the only expert  
witness who dealt with the issue of uncertainty analysis and his treatment of this issue gave  
credence to his conclusions.  
2.  
Problem Formulation  
[470] At the problem formulation stage, Willes considered the specific site characteristics. To  
this end, he visited the Stadium and gained an understanding of the configuration of the lights  
and their distance from the spectators. At this stage, he also considered the chemicals of concern  
(the specific PCB mixtures identified in the instant case) which included addressing the potential  
for impurities, and the impact of the potential for PCBs to be converted into various products  
through uncontrolled burning (or pyrolysis).  
[471] His first conclusion was that a very small amount of the PCB Aroclor 1242, described by  
him as a low volatility PCB compound with moderately chlorinated congeners, in the order of a  
small portion of the total of four to six ounces of insulating oil in the four ruptured capacitors,  
was available for release (having regard to the secondary containment inherent in the design of  
the light fixtures and the ballasts). He also concluded that it was unlikely that dioxins or other  
combustion by-products were created in this case since the evidence was that the capacitors  
experienced ruptures at 85ºC (with reference to the August 2001 report of the AEP Director), a  
temperature well below the 550ºC required to start the formation of such chemical by-products  
through pyrolysis. He also examined the Stadium lighting structure to ascertain possible  
dispersion patterns of the released insulating oil as it fell.  
[472] The receptor screening part of problem formulation included considering which receptors  
were at greatest risk for exposure. Willes’ main focus was the known spectators who were in the  
vicinity of the releases. Willes explained that the risk of adverse health effects from exposure to  
a substance is dependant on factors including the sensitivity of the receptor. Willes, therefore,  
not only considered the adult receptors who testified to having been exposed to drops, but also  
considered particularly sensitive receptors who might have been exposed, such as nursing  
mothers and their infants, toddlers and persons of all developmental stages. He also considered  
Page: 86  
spectators who might have been outside the Stadium, opining that the potential for exposure to  
receptors outside of the Stadium was extremely low.  
[473] In terms of exposure pathway screening, by careful analysis he concluded that the  
pathway of exposure of the insulating oil in the instant case was dermal exposure, but he also  
considered the possibility of the other two pathways, concluding for stated reasons why he did  
not consider them likely. Willes even reviewed the literature to ascertain the probable amount of  
exposure there would be through the skin if the PCBs had landed on clothing material worn by  
the spectators.  
3.  
Exposure Assessment  
[474] At the exposure assessment stage Willes relied upon the specific details of the reported  
PCB exposures as represented in the testimony of the trial witnesses, as the basis for defining  
four hypothetical scenarios. He used evidence to determine how much insulating oil had come  
into contact with a given spectator’s skin, and applied a precise absorption equation to calculate  
how much of that dose entered their bodies.  
[475] He used evidence provided by Dykeman during his testimony as to the amounts of oil  
that he believed he saw on his skin and clothing to make up the first two scenarios. Those  
scenarios differed in terms of the assumptions pertaining to the treatment of the drops; some  
were wiped off and some were not. The third scenario dealt with the drop sizes described by one  
of Dykeman’s companions, who indicated that there were six. In the fourth scenario, Willes  
doubled that companion’s drop number from six to 12. Scenario four was extended to cover a  
series of human life cycles: infant, toddler, child, adolescent, adult, and adult male, the latter  
being separated from the “combined adult” because males are usually of larger body weight.  
Willes stressed that in each scenario he was interested in how close the assumptions came to an  
exposure that was of concern; if the amounts were very close, he would go back and reassess all  
of the assumptions, asking whether they were reasonable.  
[476] These scenarios were impressively tailored to the relevant facts, as they were deposed to  
by the witnesses. For example, scenario one pertaining to Dykeman assumed that Dykeman was  
exposed to nine drops and assumed that the drops were approximately the thickness of a dime.  
Estimated thickness was based on site specific factors including temperature. Other assumptions  
applied in scenario one included the following: (1) the oil was on Dykeman’s fingers for one  
hour and on his foot for four hours; (2) 10% of the drop on the back of Dykeman’s neck  
remained for four hours after he wiped his neck with a napkin; (3) 10% of the material which  
had been on Dykeman’s clothing remained available for absorption to the skin for four hours;  
and, (4) 50% of the original material under his fingernails was there for a period of 10 days. The  
time frames were based upon washing and showering times and the fact that some of the oil was  
observable under the fingernails for a prolonged period.  
[477] Willes explained scenario one in some detail, explaining that the same principles applied  
to the other scenarios. I refrain from providing a comprehensive review of these scenarios.  
Page: 87  
However, I do note that he testified, for instance, that he applied the testimony of the witnesses  
relating to what the drops looked like using the assumptions noted above, and applying an  
equation based on a rat dermal absorption model, calculated the amount of PCBs absorbed by the  
body, to provide the subject’s body burden following exposure. He factored in the background  
body burden when calculating the impact of the exposure from the incident. In this context he  
explained that background body burden related to the level of PCBs that would normally exist in  
the body of an average person (because of environmental exposure and food consumption). He  
explained that immediately following the exposure, the body burden would start to fall back to  
background. The rate at which this occurred was tied to the half-life and excretion rate of each  
congener. Willes also calculated a maximum TEQ dermal dose for each of his scenarios.  
[478] Willes explained the variables influencing each of his calculations and reviewed the  
numbers which he derived in the end result. He also charted them in the risk characterization  
section of his report so that they could easily be compared to the LOAEL levels derived from his  
toxicity analysis. While I do not list those values, I emphasize that Willes explained how he  
arrived at these numbers in a concise manner. He was consistent in applying the same  
methodology to each scenario. He explained how and why he used certain constants such as skin  
absorption percentage; and, where his calculations varied, how they were influenced by the facts  
derived from the evidence of the witnesses.  
[479] As to factors which influenced the weight given to the accuracy of his calculations, I  
found it important that Willes rejected both Birkholz’s and Hansen’s formulas and basis for  
dermal absorption rate and, hence, their calculations as to an external dose. Willes testified that  
the equation used by Hansen was developed to predict PCB exposure through PCB  
contamination in water; it presumed that the body was entirely immersed and that there was an  
unlimited supply of contaminant. He also rejected it on the basis that more recent literature  
suggested that dermal absorption was variable and not constant as had been maintained by  
Hansen. Willes chose to rely on a dermal absorption percentage derived from rat studies,  
testifying that the variables inherent to the studies were more suited to addressing the  
circumstances before the court. In this context, Willes stated that the characteristics of rat skin  
made it unlikely that he was underestimating risk, as rat skin was two to 10 times more  
permeable than human skin.  
[480] Regarding Logie and Stephen, Willes performed detailed calculations, concluding that  
their blood analysis suggested PCB levels below the low end of the average Canadian population  
as published in 1998, and within the range of results published in the ASTDR in 2000. Willes  
testified at p. 2539 that:  
So what we concluded was that the maximum predicted body  
burdens following the incident would not be sufficient to result in  
any adverse health effects and that the results of the two spectators  
are consistent with that conclusion. ...  
Page: 88  
Willes also noted that the current blood results for Logie and Stephen were also consistent with  
them not having been exposed.  
4.  
Toxicity Assessment  
[481] For his toxicity assessment, Willes searched for PCB studies representing the durations  
and types of exposures that were present in the actual facts of the instant case. He tried to find  
studies evaluating effects of a single dermal dose. Willes indicated that the ideal situation would  
be to have a single dose human exposure study with some toxic end measurements. Because  
such a study involving PCBs does not exist, he had to rely on studies less directly applicable to  
the circumstances of the instant case; taking into consideration that the four main parameters  
factoring into the toxicity of a PCB exposure on an acute basis included: the type and  
concentration of the substance, the duration of exposure, the pathway and the particular PCB  
congener mixture (differing PCB congeners having different half-lives meaning that they were  
cleared from the body at different rates). He reviewed hundreds of studies in his search for  
appropriate comparators.  
[482] Willes provided detailed reasons why he considered the studies he chose as being capable  
of representing the facts of the instant case and did so in a manner that was clear and convincing.  
I conclude that the studies utilized by Willes, combined with the assumptions and calculations  
applied by him in considering the exposures in this case, constitute as representative a set of  
comparators and assumptions as were available.  
5.  
Risk Characterization  
[483] Willes went through a risk characterization for each of the exposure scenarios. After  
testifying as to the exposures which he had calculated for each of the four scenarios, and as to  
the toxicity end points which were based on the chosen studies, Willes stated at p. 2498:  
The next step now is to compare the exposures that we calculated  
in the four exposure scenarios, plus we did a series of scenarios on  
infants and mothers, etcetera. To compare those exposures to these  
toxicity end points that we have picked for a lowest adverse effect  
levels to then enable us to start characterizing, is there a likelihood  
of seeing adverse effects from the incident that occurred at the  
Commonwealth Stadium.  
[484] For example, in the case of Dykeman, Willes compared his absorbed dose as calculated  
in scenario one, to the LOAELs derived from his chosen toxicity assessment comparators, and  
concluded that there would be no adverse health risks associated with the PCB exposure  
resulting from scenario one. For the total TEQ, he made a comparison which included taking  
Dykeman’s calculated TEQ for the incident plus background. Willes concluded, regarding the  
TEQ, that there would be no adverse health effects associated with the TEQ exposure in scenario  
one. Regarding scenario two, Willes testified that the numbers for the incident plus background  
Page: 89  
were basically double those in scenario one. He concluded that there would be no adverse health  
effects expected with respect to scenario two. He reached like conclusions with respect to all of  
the other scenarios.  
[485] With respect to the extension of scenario four, which was meant to cover a series of  
human life cycles, Willes’ testimony included a statement that he had assumed 12 drops of a  
constant size for exposure, and calculated the resulting internal dose which would occur for each  
life stage. The correlated graph appearing in his report showed that in all cases, in background  
plus incident, the internal dose was significantly less than the reference LOAELs in his toxicity  
assessment comparators. Willes concluded that there would be no adverse health effects at any  
life stage had such hypothetical persons been exposed to PCBs at the Stadium. He also stated  
that because there were no reports of such persons being exposed, the calculation was  
completely hypothetical. With respect to TEQ, he converted all the exposures into toxic  
equivalencies and compared them to the same reference TEQ dose used in the other scenarios,  
concluding that all of the internal doses for background plus the incident, or from background,  
were significantly less than the reference dose.  
[486] In short, Willes concluded that there was no risk of adverse health effects associated with  
the releases in the instant case. He made reference to his certainty analysis throughout his  
testimony and was confident that he did not underestimate the risk. Ultimately, again, he stressed  
that in each scenario he was interested in how close the assumptions came to an exposure that  
was of concern; if the amount was very close, he reassessed all of the assumptions asking  
whether they were reasonable.  
[487] Of considerable assistance to me were Willes’ answers to questions pertaining to the  
practicality of his assessments. Willes was asked whether he would be concerned, had he been in  
the shoes, for example, of Dykeman on August 3, assuming that what had fallen on him were the  
drops of Aroclor 1242 which landed on Dykeman. Willes responded that he honestly did not  
think that he would be at all concerned about an adverse effect on his health. In this context, he  
stated at p. 2758:  
The occupational data is very, very clear on that, that there are  
people that wash their hands in PCBs, and this is well-documented,  
two or three times a week because it removes grease very, very  
effectively, and these people have been followed for many years  
and don’t have any adverse effects at all. So it requires prolonged  
exposure, repeated exposure before you get adverse effects.  
He stated that he would not be concerned, if he were Dykeman, with one event like this.  
[488] Willes also stated that if, instead of Dykeman, it were his child, whether an infant or  
someone between the ages of a toddler and an adolescent, provided it was a one event exposure,  
he would not be concerned. He said that he would come to the same conclusion, were he a  
pregnant or lactating woman, if it was a single exposure event. He did say that if he were even a  
Page: 90  
woman who was a very high fish consumer there would be no reason for concern, if it were a  
one event exposure, particularly if the PCBs were removed from the skin that day or four hours  
or so later.  
6.  
Environmental Impact  
[489] Willes concluded that there would be no adverse impacts in the environment surrounding  
the Stadium.  
7.  
Conclusions Regarding Willes’ Evidence  
[490] Willes approached the issues of risk assessment in the instant case in a structured and  
logical manner. He was able to clearly communicate his approach, methodology, calculations  
and comparative sample scientific studies. He provided detail as to each step he used in his risk  
assessment in the facts of the instant case, carefully explaining why he chose the data, values and  
other variables that he did in performing his analysis of risk assessment. His testimony was  
inherently consistent and consistent with the other proven facts of the instant case. Significantly,  
he satisfied me that he applied the most representative studies available to the circumstances of  
the instant case. He stood up well on cross-examination.  
[491] I accept Willes’ problem definition, risk assessment methodology, his choice of scientific  
reference studies to obtain baseline amounts and his resulting calculations and conclusions.  
Willes offered the most careful and comprehensive approach to consideration of the exposure to  
PCBs that occurred in this matter. I accept his risk characterization as applied to the facts in the  
instant case and under all scenarios.  
[492] I found Willes’ conclusions of considerable value in determining whether the PCBs  
released in the Stadium at the material times caused or were capable of causing a “significant  
adverse effect” as contemplated in section 98(2) and an “adverse effect” as contemplated in  
section 99 of the E.P.E. Act.  
E.  
Conclusions  
[493] Having considered the expert evidence adduced by the Crown in its entirety, and that of  
Willes, I was struck by the divergence to which real evidence played a role in the conflicting  
opinions of the experts. In particular, it appeared to me that the Crown’s position was partially  
informed by the assumption that PCBs are inherently dangerous regardless of circumstance. It is  
tempting to draw a direct correlation between the fact that some quantity of a substance, which  
has been documented to cause environmental and health effects, has escaped into the  
environment, and an assumption that adverse effects will necessarily flow. Courts have, on a  
quick reading of their reasons for decision, seemingly taken judicial notice of that fact,  
particularly in the context of considering factual situations where the facts are that a significant  
quantity of PCBs have escaped into the environment. However, the scientific evidence  
concerning PCBs demonstrated by Willes makes it clear that the quantity of release, and the  
Page: 91  
potential exposure, is critical to the assessment of potential effect, and that a threshold quantity is  
required before adverse effects actually become an issue. Willes made this point succinctly in  
pointing out that all substances had a range of effects ranging from no effects, through to minor  
effects, through to death, if the dose is high enough.  
V.  
THE CHARGES  
[494] The defendant is charged with nine counts that:  
Count 1: On or between the 3rd day of August and the 8th day of  
August, 2001, at or near Edmonton, in the Province of Alberta, did  
unlawfully release or permit the release into the environment of a  
substance in an amount, concentration or level or at a rate of  
release that causes or may cause a significant adverse effect,  
contrary to section 98(2) of the Environmental Protection and  
Enhancement Act.  
Count 2: On or between the 3rd day of August, 2001 and the 9th day  
of August 2001, at or near Edmonton, in the Province of Alberta,  
being a person who releases or causes or permits the release of a  
substance into the environment that has caused, is causing, or may  
cause an adverse effect, did fail, as soon as that person knows or  
ought to know of the release, report it to the Director, contrary to  
section 99(1) of the Environmental Protection and Enhancement  
Act.  
Count 3: On or between the 3rd day of August, 2001 and the 9th day  
of August 2001, at or near Edmonton, in the Province of Alberta,  
being a person having control of a substance that is released into  
the environment that has caused, is causing, or may cause an  
adverse effect, did fail, immediately on becoming aware of the  
release, report it to the Director, contrary to section 99(2) of the  
Environmental Protection and Enhancement Act.  
Count 4: On or between the 4th day of August, 2001 and the 10th  
day of August 2001, at or near Edmonton, in the Province of  
Alberta, being a person who releases or causes or permits the  
release of a substance into the environment that has caused, is  
causing, or may cause an adverse effect, did fail, as soon as that  
person knows or ought to know of the release, report it to the  
Director, contrary to section 99(1) of the Environmental  
Protection and Enhancement Act.  
Page: 92  
Count 5: On or between the 4th day of August, 2001 and the 10th  
day of August 2001, at or near Edmonton, in the Province of  
Alberta, being a person having control of a substance that is  
released into the environment that has caused, is causing, or may  
cause an adverse effect, did fail, immediately on becoming aware  
of the release, report it to the Director, contrary to section 99(2) of  
the Environmental Protection and Enhancement Act.  
Count 6: On or between the 5th day of August, 2001 and the 10th  
day of August 2001, at or near Edmonton, in the Province of  
Alberta, being a person who releases or causes or permits the  
release of a substance into the environment that has caused, is  
causing, or may cause an adverse effect, did fail, as soon as that  
person knows or ought to know of the release, report it to the  
Director, contrary to section 99(1) of the Environmental  
Protection and Enhancement Act.  
Count 7: On or between the 5th day of August, 2001 and the 10th  
day of August 2001, at or near Edmonton, in the Province of  
Alberta, being a person having control of a substance that is  
released into the environment that has caused, is causing, or may  
cause an adverse effect, did fail, immediately on becoming aware  
of the release, report it to the Director, contrary to section 99(2) of  
the Environmental Protection and Enhancement Act.  
Count 8: On or between the 8th day of August, 2001 and the 10th  
day of August 2001, at or near Edmonton, in the Province of  
Alberta, being a person who releases or causes or permits the  
release of a substance into the environment that has caused, is  
causing, or may cause an adverse effect, did fail, as soon as that  
person knows or ought to know of the release, report it to the  
Director, contrary to section 99(1) of the Environmental  
Protection and Enhancement Act.  
Count 9: On or between the 8th day of August, 2001 and the 10th  
day of August 2001, at or near Edmonton, in the Province of  
Alberta, being a person having control of a substance that is  
released into the environment that has caused, is causing, or may  
cause an adverse effect, did fail, immediately on becoming aware  
of the release, report it to the Director, contrary to section 99(2) of  
the Environmental Protection and Enhancement Act.  
VI.  
LEGISLATION  
Page: 93  
A.  
The Environmental Protection and Enhancement Act (“E.P.E. Act”)  
[495] The relevant sections of the E.P.E. Act are as follows.  
In this Act,  
1
. . . . .  
(b)  
(t)  
"adverse effect" means impairment of or damage to  
the environment, human health or safety or  
property;  
. . . . .  
"environment" means the components of the earth  
and includes  
(i)  
air, land and water,  
(ii)  
all layers of the atmosphere,  
(iii) all organic and inorganic matter and living  
organisms, and  
(iv)  
the interacting natural systems that include  
components referred to in subclauses (i) to  
(iii);  
. . . . .  
(ggg) "release" includes to spill, discharge, dispose of,  
spray, inject, inoculate, abandon, deposit, leak,  
seep, pour, emit, empty, throw, dump, place and  
exhaust;  
. . . . .  
(kkk) "substance" means  
(i)  
any matter that  
(A) is capable of becoming  
dispersed in the environment,  
or  
Page: 94  
(B)  
is capable of becoming  
transformed in the  
environment into matter  
referred to in paragraph (A),  
. . . . .  
2
The purpose of this Act is to support and promote the protection,  
enhancement and wise use of the environment while recognizing the  
following:  
(a)  
(b)  
the protection of the environment is  
essential to integrity of ecosystems and  
human health and to the well-being of  
society;  
the need for Alberta’s economic growth and  
prosperity in an environmentally responsible  
manner and the need to integrate  
environmental protection and economic  
decisions in the earliest stages of planning;  
(c)  
(d)  
the principle of sustainable development,  
which ensures that the use of resources and  
the environment today does not impair  
prospects for their use by future generations;  
the importance of preventing and mitigating  
the environmental impact of development  
and of government policies, programs and  
decisions;  
(e)  
(f)  
the need for Government leadership in areas  
of environmental research, technology and  
protection standards;  
the shared responsibility of all Alberta  
citizens for ensuring the protection,  
enhancement and wise use of the  
environment through individual actions;  
(g)  
the opportunities made available through  
this Act for citizens to provide advice on  
decisions affecting the environment;  
Page: 95  
(h)  
the responsibility to work co-operatively  
with governments of other jurisdictions to  
prevent and minimize transboundary  
environmental impacts;  
(i)  
(j)  
the responsibility of polluters to pay for the  
costs of their actions;  
the important role of comprehensive and  
responsive action in administering this Act.  
RELEASE OF SUBSTANCES  
96(1) In this Part,  
(a)  
"owner of a substance" means the owner of  
the substance immediately before or during  
the release of the substance;  
(b)  
"person having control of a substance"  
means the person having charge,  
management or control of the substance; ...  
Division 1  
Releases of Substances Generally  
97(1) No person shall knowingly release or permit the release of  
a substance into the environment in an amount, concentration or  
level or at a rate of release that is in excess of that expressly  
prescribed by an approval or the regulations.  
(2)  
No person shall release or permit the release of a substance  
into the environment in an amount, concentration or level or at a  
rate of release that is in excess of that expressly prescribed by an  
approval or the regulations.  
. . . . .  
98(1) No person shall knowingly release or permit the release  
into the environment of a substance in an amount, concentration or  
level or at a rate of release that causes or may cause a significant  
adverse effect.  
Page: 96  
(2)  
No person shall release or permit the release into the  
environment of a substance in an amount, concentration or level or  
at a rate of release that causes or may cause a significant adverse  
effect.  
(3)  
Subsections (1) and (2) apply only where the amount,  
concentration, level or rate of release of the substance is not  
authorized by an approval, a code of practice or the regulations.  
. . . . .  
99(1) A person who releases or causes or permits the release of a  
substance into the environment that has caused, is causing or may  
cause an adverse effect shall, as soon as that person knows or  
ought to know of the release, report it to  
(a)  
(b)  
the Director,  
the owner of the substance, where the person  
reporting knows or is readily able to ascertain the  
identity of the owner,  
(c)  
(d)  
any person to whom the person reporting reports in  
an employment relationship,  
the person having control of the substance, where  
the person reporting is not the person having control  
of the substance and knows or is readily able to  
ascertain the identity of the person having control,  
and  
(e)  
any other person who the person reporting knows or  
ought to know may be directly affected by the  
release.  
(2)  
The person having control of a substance that is released  
into the environment that has caused, is causing or may cause an  
adverse effect shall, immediately on becoming aware of the  
release, report it to the persons referred to in subsection (1)(a), (b),  
(c) and (e) unless the person having control has reasonable grounds  
to believe that those persons already know of the release.  
(3)  
A police officer or employee of a local authority or other  
public authority who is informed of or who investigates a release  
Page: 97  
of a substance into the environment that has caused, is causing or  
may cause an adverse effect shall immediately notify the Director  
of the release unless the police officer or employee has reasonable  
grounds to believe that it has been reported by another person.  
100(1) A person who is required to report to the Director pursuant  
to section 99 shall report in person or by telephone and shall  
include the following in the report, where the information is known  
or can be readily obtained by that person:  
(a)  
(b)  
the location and time of the release;  
a description of the circumstances leading  
up to the release;  
(c)  
(d)  
(e)  
the type and quantity of the substance  
released;  
the details of any action taken and proposed  
to be taken at the release site;  
a description of the location of the release  
and the immediately surrounding area.  
(2)  
In addition to a report under subsection (1), the person shall  
report in writing where required by the regulations.  
(3)  
A person who reports under subsections (1) and (2) shall  
give to the Director any additional information in respect of the  
release that the Director requires.  
. . . . .  
106  
The Minister may make regulations  
(a)  
classifying releases for the purposes of this  
Division and exempting any release or any  
class of release from the application of this  
Division, and attaching terms and conditions  
to any such exemption;  
(b)  
respecting the making of a written report  
under section 100(2) and its contents and  
providing for the waiver of a requirement to  
Page: 98  
make a written report where in the opinion  
of the Director no adverse effect is likely to  
occur as a result of the release or the adverse  
effect caused by the release has been  
adequately controlled.  
107(1) The Lieutenant Governor in Council may make regulations  
...  
(d.1) prescribing the concentration, including the  
maximum concentration, of a substance that  
may be released into the environment;  
(d.2) prescribing the amount, including the  
maximum amount, of a substance that may  
be released into the environment;  
(d.3) prescribing the level, including the  
maximum level, of a substance that may be  
released into the environment;  
(d.4) prescribing the rate, including the maximum  
rate, at which a substance may be released  
into the environment; ...  
. . . . .  
215  
No person shall be convicted of an offence under section ...  
98(2), 99(1) or (2), ... or ... if that person establishes on a balance  
of probabilities that the person took all reasonable steps to prevent  
its commission.  
B.  
Environmental Protection and Enhancement Act Release Reporting Regulation, AR  
117/93  
[496] The Environmental Protection and Enhancement Act Release Reporting Regulation,  
AR 117/93, is a regulation made by the Minister pursuant to section 106(1)(a) of the E.P.E. Act,  
and it provides:  
2
Sections 99 to 101 of the Act and this Regulation do not apply  
(a)  
to releases of substances that are regulated  
by the Oil and Gas Conservation Act or any  
regulation made under that Act, the  
Page: 99  
Dangerous Goods Transportation and  
Handling Act or any regulation made under  
that Act, or an approval, licence or permit  
granted under any of those Acts or  
regulations, or  
(b)  
to releases of substances classified as Class  
1 dangerous goods (explosives) or Class 7  
dangerous goods (radioactive materials) as  
set out in the Schedule to the  
Transportation of Dangerous Goods Act,  
1992 (Canada).  
3(1) Subject to section 2(a), where a release of a substance  
falling within the Class and Division set out in Column I of Table  
1 in Part IX of the Transportation of Dangerous Goods  
Regulations (SOR 85/77) under the Transportation of Dangerous  
Goods Act, 1992 (Canada) occurs and the release has caused, is  
causing or may cause an adverse effect, sections 99 to 101 of the  
Act and this Regulation apply in respect of the release only if  
(a)  
the release is at or in excess of the  
quantities or levels set out for the substance  
in Column II of that Table,  
(b)  
(c)  
the substance is released into a watercourse  
or into groundwater or surface water, or  
the substance is classified as Class 2  
dangerous goods.  
(2)  
Subsection (1)(b) and (c) apply regardless of whether the  
quantity or level of the release is at or in excess of the levels set  
out in Column II of the Table.  
4(1) A person referred to in section 99(2) of the Act who makes  
an oral report under section 100(1) of the Act shall within 7 days  
ensure that the Director is in receipt of a written report made by  
the person in accordance with subsection (3).  
(2)  
The Director may, on the request of the person reporting  
under section 100(1) of the Act, waive the requirement of  
subsection (1) of this section where, in the Director's opinion, the  
report provided under section 100(1) of the Act is satisfactory and  
Page: 100  
(a)  
(b)  
no adverse effects are likely to occur as a  
result of the release, or  
the adverse effects caused by the release  
have been adequately controlled.  
(3)  
A written report must include the following information,  
where reasonably available:  
(a)  
(b)  
(c)  
the date and time of the release;  
the location of the point of the release;  
the duration of the release and the release  
rate;  
(d)  
the composition of the release showing with  
respect to each substance  
(i)  
its concentration, and  
(ii)  
the total weight, quantity or  
amount released;  
(e)  
(f)  
a detailed description of the circumstances  
leading up to the release;  
the steps or procedures which were taken to  
minimize, control or stop the release;  
(g)  
(h)  
the steps or procedures which will be taken  
to prevent similar releases;  
any other information required by the  
Director.  
(4)  
Where the Director receives a written report the Director  
may require, by written notice given to the person who submitted  
the report, the submission of additional information specified in  
the notice by the time specified in the notice.  
(5)  
A person who receives a notice under subsection (4) shall  
comply with it in accordance with its terms.  
Page: 101  
VII. ISSUES  
1.  
2.  
Was there a “release” of a substance on August 3, 4, 5 or 8?  
If there was a release on any of those occasions, was such a release “into  
the environment”?  
3.  
If there was a release on any of those occasions, was the defendant “a  
person who did release or permit the release”, or a person who did release  
or cause or permit the release”?  
4.  
5.  
If there was a release on any of those occasions, was the defendant “a  
person having control of the substance”?  
If there was a release on any of those occasions, was the substance  
released in an amount, concentration or level or at a rate of release “that  
causes or may cause a significant adverse effect”?  
6.  
7.  
If there was a release on any of those occasions, was the release one “that  
caused, is causing or may cause an adverse effect”?  
If there was a release on any of those occasions, and if the defendant was a  
person who did release or cause or permit the release, when was the  
defendant obliged to report such release to the Director of AEP.?  
8.  
If there was a release on any of those occasions into the environment, and  
if the defendant was a person having control of the substance, when was  
the defendant obliged to report such release to the Director of AEP.?  
9.  
Has the defendant established the defence of due diligence with respect to  
the section 98(2) charge?  
10.  
Has the defendant established the defence of due diligence with respect to  
any of the section 99 charges?  
VIII. LEGAL ANALYSIS  
A. Overview  
1. Pollution  
[497] Not all releases of pollutants are prohibited under the E.P.E. Act. Some releases are  
allowed where there is an approval authorizing the release issued under the authority of the  
Page: 102  
E.P.E. Act, some releases are allowed where the release has been permitted by a regulation  
enacted under the E.P.E. Act, and still other releases are allowed where the release has been  
authorized by another enactment of Alberta or Canada. These regulated releases are allowed  
provided that they comply with the authority under which they have been authorized; that is to  
say, these releases are allowed - but according to regulated standards.  
[498] Section 97 of the E.P.E. Act addresses pollution in the case of regulated releases, where  
the amount, concentration or level or rate of release is in excess of that either expressly  
prescribed by an approval issued under the E.P.E. Act authorizing a release, or the regulations  
made under the E.P.E. Act. These regulated releases are prohibited where they fail to comply  
with the authority under which they have been authorized; that is to say, they did not accord with  
the regulated standards. Pollution of this sort is pollution by exceeding standards.  
[499] In the instant case there was no approval issued authorizing the release of the insulating  
oil or the PCBs in that oil from the lights of the Stadium. Nor was there a release allowed under  
any regulation made under the E.P.E. Act prescribing the amount, concentration or level or the  
rate of release of the insulating oil or any PCBs in that oil. Hence, the defendant could not be  
charged with contravening section 97.  
[500] By contrast, section 98 of the E.P.E. Act addresses pollution in non-regulated releases,  
where the amount, concentration or level or the rate of release has not been so prescribed by an  
approval or the regulations, or another enactment of Alberta or Canada. Pollution of this sort is  
pollution by environmental impact. The environmental impact in section 98 is described as  
“significant adverse effect”.  
[501] Both sections 97 and 98 of the E.P.E. Act prohibit the acts of pollution, specifically by  
prohibiting releasing the pollutant and by prohibiting permitting the release of the pollutant.  
They do not prohibit causing the release.  
[502] There are two prohibitions against polluting under section 98. Section 98(1) prohibits  
“knowingly” releasing or permitting the release of the pollutant. For a defendant to be found  
guilty of contravening this prohibition, the Crown is required to prove that the defendant  
wrongfully intended the release or wrongfully intended to permit the release. The Crown would  
have to prove the defendant had intended the polluting act, and would be obliged to prove the  
defendant had a mens rea. There is no suggestion by the Crown in the instant case that the  
defendant knowingly polluted.  
[503] Section 98(2) prohibits releasing or permitting the release of the pollutant where there is  
no wrongful intention or where the Crown cannot establish a mens rea. The act of releasing or  
permitting the release is sufficient to found a conviction if the other elements of the offence are  
made out, and there are no defences established by the defendant. As might be expected, there is  
a lesser penalty for an inadvertent polluter than there is for an intentional polluter.  
[504] Section 98(2) provides:  
Page: 103  
98(2) No person shall release or permit the release into the  
environment of a substance in an amount, concentration or level or  
at a rate of release that causes or may cause a significant adverse  
effect.  
2.  
Reporting Pollution  
[505] Environmental protection, particularly as it may pertain to pollution, is only as effective  
as the timeliness and accuracy of the information which is provided to environmental protection  
enforcement agencies. It is unreasonable to expect that polluters will always self-report their acts  
of pollution. For one thing, human nature being what it is, it is unduly optimistic to expect  
perfect self-reporting. For another thing, even the most trustworthy and law-abiding polluter may  
not be aware of the fact that he or she has polluted.  
[506] Moreover, it is not unreasonable to expect that environmental protection enforcement  
agencies would want to be made aware of activities which not only actually constitute pollution,  
but activities which may amount to pollution. Similarly, environmental protection enforcement  
agencies may wish to be aware of not only actually manifested pollution consequences, but  
potential pollution consequences as well.  
[507] It is clear to me that with that purpose in mind, it was the intention of the Legislature to  
establish a layered system of duties for the reporting of acts of pollution, certainly at least in the  
case of non-regulated releases and the consequences of such releases, far wider than the acts of  
pollution and the consequences of pollution as defined in section 98. That is reflected in section  
99 establishing different reporting duties relating to pollution. Section 99 provides:  
99(1) A person who releases or causes or permits the release of a  
substance into the environment that has caused, is causing or may  
cause an adverse effect shall, as soon as that person knows or  
ought to know of the release, report it to  
(a)  
(d)  
the Director, ...  
the person having control of the substance, where  
the person reporting is not the person having control  
of the substance and knows or is readily able to  
ascertain the identity of the person having control,  
and ...  
(2)  
The person having control of a substance that is released  
into the environment that has caused, is causing or may cause an  
adverse effect shall, immediately on becoming aware of the  
release, report it to the persons referred to in subsection (1)(a), (b),  
Page: 104  
(c) and (e) unless the person having control has reasonable grounds  
to believe that those persons already know of the release.  
(3)  
A police officer or employee of a local authority or other  
public authority who is informed of or who investigates a release  
of a substance into the environment that has caused, is causing or  
may cause an adverse effect shall immediately notify the Director  
of the release unless the police officer or employee has reasonable  
grounds to believe that it has been reported by another person.  
[508] There are a number of things to note about the reach of section 99, especially when  
compared to section 98(2).  
[509] First, the section not only increases the number of persons responsible for reporting, it  
creates a layered or hierarchal system of reporting obligations. At the top of the hierarchy,  
subsection (1) imposes a duty to report on the polluters themselves. This layer of reporting  
obliges reporting by the actors involved in the act of pollution.  
[510] Subsection (2) imposes a reporting duty not on the polluters, but on any person having  
control of the pollutant that has been released. “Person having control of a substance” is broadly  
defined by section 96(1)(b) of the E.P.E. Act:  
“person having control of a substance” means the person having  
charge, management or control of the substance;  
[511] By creating this second class or category of persons who are required to report besides  
the polluters, it was intended that reports would be made by those who may not have polluted  
themselves, but who became aware of the pollution because they had charge, management or  
control of the pollutant. Subsection (2) is intended to increase the likelihood that reports would  
be made where, whether through dishonesty, oversight or ignorance about the act or  
consequence of the pollution, the polluters have failed to report under subsection (1). Where self-  
reporting by the polluters fails to occur for whatever reason, this second reporting layer,  
increases the likelihood that the pollution will come to the notice of environmental protection  
enforcement agencies. This layer obliges reporting by persons who may have the charge,  
management or control the pollutant.  
[512] Subsection (3) creates a third layer of responsibility for reporting to environmental  
protection enforcement agencies, expanding yet again the pool of potential reporters. It imposes  
a duty to report on police officers or municipal employees, of both private and public authorities,  
who become informed of or investigate pollution. This is at the lower end of the hierarchy,  
establishing a residual reporting source. This layer obliges reporting by those persons who  
become aware of the act of pollution or consequences of pollution and who may also have a  
responsibility relating to the location where the pollution took place.  
Page: 105  
[513] Depending upon the facts of each case, these different layers of responsibility for  
reporting may cover the same person or some of the same persons. A polluter may be the same  
person who is responsible for the management of the pollutant; indeed that same person may fall  
in each of the three categories of reporter.  
[514] That there is a hierarchy is evident from the fact that a polluter is required to report to the  
person having control of the substance. Moreover, the obligation to report under subsection (2)  
does not arise if the person having control has reasonable grounds to believe that the person to  
whom the report must be made, already knows of the release. Similarly, the obligation to report  
under subsection (3) does not arise if there are reasonable grounds to believe that the release has  
been reported, and then the obligation to report is limited to reporting only to the Director.  
[515] Second, the definition of polluter for purposes of reporting is wider than the definition of  
polluter in the prohibition against polluting. Under section 98(2) the polluters are only those  
persons who release the substance or permit the release of the substance. Under section 99(1) the  
category of those persons who must report as polluters has been widened to include, in addition  
to those persons said to be polluters under section 99(2), any persons who, it might be said, has  
caused the release. The act of pollution may be committed in another mode, way or method. A  
polluter for purposes of reporting is anyone who may be responsible for the polluting act. The  
Legislature has this way cast a wider net encompassing more persons who might be said to have  
been involved in the activity which led to the pollution.  
[516] Third, reporting is expanded or widened by requiring the report to be made not just when  
the consequences of the pollution are limited to significant adverse effect. Reporting is required  
even when there may only be an adverse effect. It should not be surprising that the Legislature  
intended that reports would be made to environmental protection enforcement agencies more  
often than only where the results of the pollution resulted in a significant adverse effect. What  
appears to be not significant, may in fact be significant. What begins as not being significant,  
may become significant in the course of events. The earlier pollution is reported to  
environmental protection enforcement agencies, the sooner those agencies can prevent further  
incidents of pollution; and with respect to those incidents which have already occurred, the  
easier it is for those agencies to lessen the risk of an increased adverse effect and alleviate or  
remedy the adverse effects which are already manifested. Further, it facilitates the agencies’ role  
in the investigation and prosecution of environmental offences.  
[517] As will be discussed later in these Reasons, notwithstanding the objective of increasing  
the reporting of releases to more than those occasions when there has been a significant adverse  
effect, it is also clear that the Legislature did not intend to require the reporting of all releases, or  
for that matter all releases where there has been an adverse effect (let alone where there may be a  
significant adverse effect).  
B.  
“Release”  
Page: 106  
[518] One of the elements the Crown must prove beyond a reasonable doubt for a finding of  
guilt in all of the counts, is that the defendant did “release” the substance, insulating oil.  
[519] The term “release” is defined by section 1(ggg) of the E.P.E. Act as:  
"release" includes to spill, discharge, dispose of, spray, inject,  
inoculate, abandon, deposit, leak, seep, pour, emit, empty, throw,  
dump, place and exhaust;  
[520] In my view it is implicit from this definition that a release occurs only when there is a  
loss of either control or containment of or over the substance. The essence of a “release” is the  
loss of control over the substance. Until such time as a substance leaves its container or  
containers (if there is more than one container which acts or is capable of acting as a secondary  
source of containment by maintaining control over the substance), there can be no release. Until  
then control of or over the substance is maintained by reason of the containment and there is no  
release, Further, I am of the view that in the case of a liquid or solid substance, usually if not  
always, the total attachment or adhesion of that substance to the outermost container which is  
maintaining containment of the substance, still constitutes control of or over the substance. Until  
such a substance partially detaches from the container, it remains under control because it is  
capable of being immediately captured and controlled in some other manner.  
[521] I am satisfied beyond a reasonable doubt that there was a “release” with respect to the  
August 3, 4 and 8 incidents, but as will be apparent from my earlier remarks reciting the facts,  
the Crown has failed to satisfy me beyond a reasonable doubt that there was release on either  
August 5 or 6. The insulating oil which had left the capacitor on that occasion was still attached  
or adhered to the ballast, which was capable of secondary containment, and did not fall into the  
Stadium but was captured while still so controlled, by the defendant’s employees who were  
carrying out the inspection protocol for that very purpose. For these reasons alone, I dismiss  
Counts 6 and 7.  
C.  
“Environment”  
[522] One of the elements the Crown must prove beyond a reasonable doubt for a finding of  
guilt in all of the counts, is that the release of the substance, insulating oil, was into the  
“environment”.  
[523] It seems clear to me that once the insulating oil left the ballasts, falling through the air  
towards the Stadium seats, it was released into the environment. However the defendant argued  
that there was no release into the environment on August 3 or 4 because the word “environment”  
in the E.P.E. Act does not include people. Section 1(t) of the E.P.E. Act defines “environment”  
as:  
“environment” means the components of the earth and includes  
Page: 107  
(i)  
air, land and water,  
all layers of the atmosphere,  
(ii)  
(iii) all organic and inorganic matter and living  
organisms, and  
(iv)  
the interacting natural systems that include  
components referred to in subclauses (i) to (iii);  
[524] Counsel for the defendant relied on certain comments made by Davie, P.C.J. in the  
decision of R. v. Colt Engineering Corp. (1999), 254 A.R. 143. Those comments are not only  
obiter, it is clear at para. 32 that they are throw away comments prefaced by the words, “as an  
aside”. Further, it is clear that Davie, P.C.J. decided the case specifically on the grounds that  
there was no evidence of either a release of a “substance” or an “adverse effect”, finding that  
what was released in that case amounted to only an odour.  
[525] Regardless, I do not agree with those comments. In my view, people are included in the  
words “living organisms” (which in the scheme of the E.P.E. Act and in nature itself may be  
considered as components of the earth). I see no reason to differentiate people from other living  
organisms or living organisms from the other components of the earth mentioned in the statutory  
definition of “environment”.  
[526] The defendant further argued that there was no release into the environment on August 3,  
4 or 8, because the evidence indicated that it fell onto the defendant’s own property, the Stadium  
itself, and that because it was the defendant’s own property, it was not part of the environment.  
[527] I do not agree. The defendant’s own property is public property, to which members of the  
public enjoy broad access from time to time, including certainly from August 3 onwards both  
during and after the Games. Moreover, the “public” includes not only members of the public  
generally, but specifically, and during the same time frame, the defendant’s own employees. I  
also find this argument to be somewhat inconsistent with the defendant’s other contention that  
the defendant did not during that same time frame have possession or control over the Stadium.  
Finally, there is nothing in the extremely broad definition of “environment” which allows for any  
distinction between public property and private property.  
[528] Indeed the definition of “environment” is so wide that it is difficult to imagine what, if  
anything, within the earth’s outermost layer of atmosphere, is not included.  
[529] The focus of a “release into the environment” must not be on what or where the  
substance released landed or came to rest, but rather on the loss of control or containment which  
constituted the release.  
D.  
“Release or Permit the Release” / “Release or Causes or Permits the Release”  
Page: 108  
[530] One of the elements the Crown must prove beyond a reasonable doubt for a finding of  
guilt in Count 1 is that the defendant did “release or permit the release” of the insulating oil, and  
in each of Counts 2, 4, 6, and 8 is that the defendant was a person who did “release or cause or  
permit the release” of the insulating oil.  
[531] The phrases “release or permit the release” (found in section 98) and “releases or causes  
or permits the release” (found in section 99) are similar to the phrase interpreted in the seminal  
decision of the Supreme Court of Canada in R. v. The City of Sault Ste. Marie, [1978] 2 S.C.R.  
1299 dealing with regulatory offences.  
[532] In Sault Ste. Marie the City was charged that it “did discharge, or cause to be discharged,  
or permitted to be discharged or deposited materials” in a manner which might impair the quality  
of water, contrary to the Ontario Water Resources Commission Act. The facts in support of the  
charge as outlined by the Supreme Court, were that the City of Sault Ste Marie had entered into a  
contract with a disposal company to dispose of all refuse originating within the territorial  
jurisdiction of the City. Under the terms of the contract, the contractor was obliged to furnish a  
site and adequate labour, material and equipment. The site so chosen was adjacent to a  
waterway. The method of disposal was a sanitary landfill, where the garbage was spread out and  
compacted in layers which were covered daily by natural sand or gravel.  
[533] The site had earlier been covered with a number of fresh water springs which flowed into  
the waterway. The contractor dumped material to cover and submerge the springs and then  
placed the garbage waste over that material. The garbage and waste deposited over the course of  
time formed a high ground which sloped steeply towards and within 20 feet of the waterway.  
Pollution resulted. The contractor and the City were both charged and the contractor was  
convicted.  
[534] The City argued that it had nothing to do with the actual disposal operations, that its  
contractor was an independent contractor whose employees were not the City’s employees.  
[535] There were a number of issues before the Supreme Court. After categorizing the offence  
the City was charged with as a strict liability offence, Dickson, J. at pp.1329-31 enunciated the  
approach to be taken in assessing strict liability in environmental cases:  
As I am of the view that a new trial is necessary, it would  
be inappropriate to discuss at this time the facts of the present case.  
It may be helpful, however, to consider in a general way the  
principles to be applied in determining whether a person or  
municipality has committed the actus reus of discharging, causing,  
or permitting pollution within the terms of s. 32(1), in particular in  
connection with pollution from garbage disposal. The prohibited  
act would, in my opinion, be committed by those who undertake  
the collection and disposal of garbage, who are in a position to  
exercise continued control of this activity and prevent the pollution  
Page: 109  
from occurring, but fail to do so. The “discharging” aspect of the  
offence centres on direct acts of pollution. The “causing” aspect  
centres on the defendant's active undertaking of something which  
it is in a position to control and which results in pollution. The  
“permitting” aspect of the offence centres on the defendant's  
passive lack of interference or, in other words, its failure to prevent  
an occurrence which it ought to have foreseen. The close  
interweaving of the meanings of these terms emphasizes again that  
s. 32(1) deals with only one generic offence.  
When the defendant is a municipality, it is of no avail to it  
in law that it had no duty to pick up the garbage, s. 354(1)(76) of  
The Municipal Act, R.S.O. 1970, c. 284, merely providing that it  
“may” do so. The law is replete with instances where a person has  
no duty to act, but where he is subject to certain duties if he does  
act. The duty here is imposed by s. 32(1) of the Ontario Water  
Resources Commission Act. The position in this respect is no  
different from that of private persons, corporate or individual, who  
have no duty to dispose of garbage, but who will incur liability  
under s. 32(1) if they do so and thereby discharge, cause, or permit  
pollution.  
Nor does liability rest solely on the terms of any agreement  
by which a defendant arranges for eventual disposal. The test is a  
factual one, based on an assessment of the defendant's position  
with respect to the activity which it undertakes and which causes  
pollution. If it can and should control the activity at the point  
where pollution occurs, then it is responsible for the pollution.  
Whether it “discharges”, “causes”, or “permits” the pollution will  
be a question of degree, depending on whether it is actively  
involved at the point where pollution occurs, or whether it merely  
passively fails to prevent the pollution. In some cases the contract  
may expressly provide the defendant with the power and authority  
to control the activity. In such a case the factual assessment will be  
straightforward. Prima facie, liability will be incurred where the  
defendant could have prevented the impairment by intervening  
pursuant to its right to do so under the contract, but failed to do so.  
Where there is no such express provision in the contract, other  
factors will come into greater prominence. In every instance the  
question will depend on an assessment of all the circumstances of  
the case. Whether an “independent contractor” rather than an  
“employee” is hired will not be decisive. A homeowner who pays  
a fee for the collection of his garbage by a business which services  
the area could probably not be said to have caused or permitted the  
Page: 110  
pollution if the collector dumps the garbage in the river. His  
position would be analogous to a householder in Sault Ste. Marie,  
who could not be said to have caused or permitted the pollution  
here. A large corporation which arranges for the nearby disposal of  
industrial pollutants by a small local independent contractor with  
no experience in this matter would probably be in an entirely  
different position.  
It must be recognized, however, that a municipality is in a  
somewhat different position by virtue of the legislative power  
which it possesses and which others lack. This is important in the  
assessment of whether the defendant was in a position to control  
the activity which it undertook and which caused the pollution. A  
municipality cannot slough off responsibility by contracting out  
the work. It is in a position to control those whom it hires to carry  
out garbage disposal operations, and to supervise the activity,  
either through the provisions of the contract or by municipal  
by-laws. It fails to do so at its peril.  
[Emphasis mine]  
[536] The Crown’s written submission in the instant case quoted the following comments of  
Dickson, J., at pp. 1331-32, in ordering a new trial:  
The majority of the Ontario Court of Appeal directed a new  
trial as, in the opinion of that court, the findings of the trial judge  
were not sufficient to establish actual knowledge on the part of the  
City. I share the view that there should be a new trial, but for a  
different reason. The City did not lead evidence directed to a  
defence of due diligence, nor did the trial judge address himself to  
the availability of such a defence. In these circumstances, it would  
not be fair for this Court to determine, upon findings of fact  
directed towards other ends, whether the City was without fault.  
[537] The Crown’s submission then claimed that:  
By necessary implication, the Court had concluded that the actus  
reus had been established and that the City had been in a position  
of control.  
[538] While I agree with that general claim, one cannot conclude from the brief recitation of  
the facts by Dickson, J. that those facts alone as a matter of law amount to a degree of control  
which would found a conviction. Indeed, such is clear from the preamble to Dickson, J.’s factual  
recitation at p. 1304 where he said: “To relate briefly the facts, ....”  
Page: 111  
[539] Moreover, as Dickson, J. himself noted in the above quoted passages, each case depends  
on its facts.  
[540] A fuller recitation of the facts in Sault Ste. Marie is found in the earlier dissenting  
reasons in the Ontario Court of Appeal, reported at (1976) 30 C.C.C. (2d) 257, where  
Lacourciere, J.A. reviewed the facts found by the trial judge in convicting the City. Those facts  
included the contractual obligation of the City’s independent contractor to perform all the  
required operations of the disposal to the satisfaction of the City’s Engineer and Medical Officer,  
with the City having the right on seven days’ notice to enter the property and perform any work  
it deemed necessary to remedy defaults or defects in the operation contracted, including the right  
to discontinue that work. Lacourciere, J.A. reviewed evidence showing that City officers were  
aware months before the six month period covered by the charge, that the area where some  
dumping had taken place was dangerous, and that the City did nothing to remove what had been  
already dumped; and that after a later dumping took place the City failed to inspect and did  
nothing to remove the refuse in that later dump.  
[541] It seems to me that the essence of Sault St. Marie is that liability is found on the issue of  
a defendant’s control over the act of pollution, or control over the polluting actus reus or control  
over the activity which causes the pollution. That control is either directly over the activity itself,  
or indirectly over those who perform the activity. In the case of a municipality there may be  
more control because it may have legislative power over that act as well as under contracts  
involving any operations which it has undertaken. In other words, a municipality has an ability  
outside its contract with polluters to enact by-laws which control the polluters in their pollution  
activities.  
[542] Sault Ste. Marie does not stand for the bare proposition that a municipality is, by virtue  
of its being a municipality, vicariously responsible for the strict liability of its contractors, or for  
that matter its tenants. Even where the case involves a municipality, the case must still be judged  
by its facts, including the ability of that municipality, by reason of its legislative authority, to  
exert control.  
1.  
“Release or Permit the Release”  
[543] Applying the analysis set out by the Supreme Court in Sault Ste. Marie, on the evidence  
before me I am satisfied that the releases in the instant case were not direct acts of pollution by  
the defendant, either as the owner of the Stadium or in its capacity as a maintenance provider to  
the LOC.  
[544] The pollution, if any, was caused by a number of sequential events: an extraordinarily  
unusual use of the Stadium lights by another (the LOC), theretofore unknown capacitor ruptures,  
leaks of insulating oil from the ruptured capacitors, and the escape of that insulating oil, from the  
ballasts holding the ruptured capacitors into the environment. None of these were direct acts or  
activities of the defendant.  
Page: 112  
[545] The activity which started the chain of events was the extraordinarily unusual use of the  
lights, which on all accounts was an activity exclusively controlled by the LOC. The Stadium  
Lease and the understanding of the leasing parties (the defendant and the LOC) was that from  
July 21 through to mid-August, the LOC had the exclusive possession and control over the  
Stadium, a usage which the LOC exercised in fact relating to the lights. That usage by the LOC  
was without any consultation with the defendant until after the release of August 4. While the  
defendant had objected to that use before then, albeit for reasons unrelated to capacitor ruptures  
and resulting releases, its objections were ignored. The LOC and the LOC alone determined the  
extraordinary unusual use of the lights, which use was totally and reasonably unanticipated by  
the defendant.  
[546] With respect to the August 3 and 4 releases, they were entirely unforeseeable from the  
defendant’s perspective. There is no evidence at all as to the circumstances surrounding the  
construction of the Stadium, on which to find that the defendant had or should have had any  
inkling, at any time before July 21, that the lights would be required to be alight for more than  
half a day, for any event of any sort or description which might take place at the Stadium. I  
conclude that before then the defendant had no reason to know or even suspect that the lights  
would be required to be alight continuously without interruption for days.  
[547] It was that extraordinarily unusual use which resulted in the capacitor ruptures. There is  
no evidence that the defendant had any earlier experience with a capacitor rupture in H.I.D  
lighting; the only evidence is that it had no such experience.  
[548] There was nothing which the defendant ought to have foreseen before the second incident  
on August 4, for which it could be said that there was a passive lack of interference or failure to  
prevent, on the part of the defendant. In my view it was not unreasonable for the defendant to  
have considered the first incident a one time occurrence. While it might be argued that the  
unusual capacitor rupture, which came to the defendant’s attention on the morning of August 4  
ought not to have been considered a random event or a one-off, there was so little intervening  
time between then and the second incident later that afternoon, in terms of an opportunity to  
respond, that the two incidents should be considered in the same light in assessing the  
defendant’s response as to timeliness.  
[549] While the capacitor rupture and resulting release on August 8 were foreseeable after  
August 4, and in point of fact were foreseen by the defendant because of what had occurred  
earlier, the defendant did not passively do nothing in the interim. To the contrary it took steps to  
prevent further capacitor ruptures, to discover such ruptures if, as and when they might occur, to  
ascertain whether in the case of such ruptures any insulating oil leaked from the ruptured  
capacitors; and to prevent any insulating oil which had so leaked, from being released from the  
ballasts into the environment.  
[550] Specifically, the defendant did what it could to reduce the light usage, which was the  
activity which started the chain of events leading to the releases, immediately after the release of  
August 4, by attempting to persuade the LOC to shut down the lights based upon potential  
Page: 113  
capacitor failures and resulting releases of insulating oil into the Stadium. The fact of the matter  
is that the defendant was promised light shutdowns, only to have the promise unilaterally  
revoked by the LOC without any consultation or notice. Control over the light usage remained  
with the LOC. Only limited success was achieved, and then only over a period of time and as  
higher levels of persuasive authority were invoked by the defendant, and even then only the day  
before the last release which is the subject of the charges in the instant case. As has been noted  
earlier, by then it may have been too late already to have prevented the capacitor rupture which  
led to the August 8 release.  
[551] As importantly, with respect to the defendant’s other efforts after the second incident,  
which focussed on discovering further capacitor ruptures, leaks of insulating oil from such  
ruptures, and preventing so leaked insulating oil from being released into the environment, the  
inspection protocol seemingly worked successfully at least until the August 8 incident.  
[552] In my view it cannot be said that the defendant released or permitted the release of the  
insulating oil in any of the releases which are the subject of the charges in the instant case.  
[553] In my view the phrase “release or permit the release” must mean something narrower  
than the phrase “release or cause or permit the release”. I adopt the words of Kent, J. of the Court  
of Queen’s Bench of Alberta where she considered the E.P.E. Act in the case of R. v. Shell  
Canada Ltd. (2000) 35 C.E.L.R. (N.S.) 94 at paras. 26 to 28 she said:  
[26] There are two general considerations which govern the  
interpretation of the provisions of the Act in relation to the facts.  
First, the principles of statutory interpretation must be considered.  
There are several relevant presumptions of interpretation:  
(1) The legislature is a competent and careful user  
of language and skillful crafter.  
(2) Legislatures use simple, straightforward and  
concise language.  
(3) The legislature avoids superfluous or  
meaningless words and does not repeat itself or  
speak in vain.  
(4) The legislature uses language carefully and  
consistently so that the same words have the same  
meaning and different words have different  
meanings.  
[27] Since this Act is penal in nature, the rule that a penal  
statute ought to be construed strictly is also relevant. This rule,  
Page: 114  
however, is not absolute. Cory, J. in R. v. Hasselwander, [1993] 2  
S.C.R. 398 said at p. 413 after reviewing the history of the rule in  
relation to the provisions of the Interpretation Act:  
Thus, the rule of strict construction becomes  
applicable only when attempts at the neutral  
interpretation suggested by s. 12 of the  
Interpretation Act still leave reasonable doubt as to  
the meaning or scope of the text of the statute. As  
Professor Côté has pointed out, this means that even  
with penal statutes, the real intention of the  
legislature must be sought, and the meaning  
compatible with its goals applied.  
[28] Accordingly, before applying the rule of strict construction,  
I must be mindful of the purpose of the Act as articulated in s. 2.  
[554] Applying those presumptions of statutory interpretation, I conclude that the Legislature  
intended the two phrases to mean different things, and that the phrase “release or permit the  
release” is narrower than the phrase “release or cause or permit the release”, the former referring  
to only two methods, modes or ways of committing the offence of pollution, the latter referring  
to an additional method, mode or way of polluting. I note in particular that the limited phrase is  
used in both sections 97 and 98 prohibiting pollution, whether advertent or inadvertent. The  
wider phrase is used only in section 99 setting out the duties to report pollution.  
[555] I am not unmindful of the comments of Dickson, J. in Sault Ste. Marie on another issue  
in that case, namely, whether the charge was duplicitous or there was really only one offence  
which might be committed in different ways. In that case the charge was worded in language  
identical to the prohibition in the Ontario Water Resources Commission Act. At pp. 1308-09  
Dickson, J. said:  
In my opinion, the primary test should be a practical one,  
based on the only valid justification for the rule against duplicity:  
does the accused know the case he has to meet, or is he prejudiced  
in the preparation of his defence by ambiguity in the charge?  
Viewed in that light, as well as by the other tests mentioned above,  
I think we must conclude that the charge in the present case was  
not duplicitous. There is nothing ambiguous or uncertain in the  
charge. The City knew the case it had to meet. Section 32(1) of the  
Ontario Water Commission Act is concerned with only one matter,  
pollution. That is the gist of the charge and the evil against which  
the offence is aimed. One cognate act is the subject of the  
prohibition. Only one generic offence was charged, the essence of  
which was “polluting”, and that offence could be committed in one  
Page: 115  
or more of several modes. There is nothing wrong in specifying  
alternative methods of committing an offence, or in embellishing  
the periphery, provided only one offence is to be found at the focal  
point of the charge. Furthermore, although not determinative, it is  
not irrelevant that the information has been laid in the precise  
words of the section.  
I am satisfied that the Legislature did not intend to create  
different offences for polluting, dependent upon whether one  
deposited, or caused to be deposited, or permitted to be deposited.  
The legislation is aimed at one class of offender only, those who  
pollute.  
[556] In my view that the methods, modes or ways of committing an offence may be different,  
does not mean that any method, mode or way of committing that offence, in addition to the  
method, mode or way expressly prohibited by the Legislature, may constitute the offence  
charged. If the Legislature had intended to include that additional method, mode or way, it would  
have said so, especially where, as here, that additional method, mode or way has been expressly  
referred to in the very next section creating obligations to report pollution. The Legislature was  
instead silent when it came to the specific method, mode or way of “causing a release”.  
[557] Moreover, the additional method, mode or way of polluting is consistent with the  
Legislature expanding the sources of obligatory reporting to those who had an indirect  
responsibility for the act of polluting, even though they may not have been directly involved and  
did not control the polluting substance.  
2.  
“Release Cause or Permit the Release”  
[558] It may be useful at this point to discuss the phrase “release or cause or permit the  
release”, should I be mistaken in my view that it has a wider or more reaching meaning than the  
phrase “release or permit the release”. It is my view that there is still a reasonable doubt that it  
can be said that the defendant in the instant case actively undertook something which it was in a  
position to continuously exercise control over and prevent the pollution, but failed to do so,  
particularly viewed from the perspective of foreseeability. The net cast by the Legislature still  
does not describe as pollution what the defendant did or failed to do in the instant case.  
[559] The written Crown submission refers to a number of cases subsequent to Sault Ste.  
Marie, all of which ended in convictions, with extracted comments from the reasons of those  
cases. However, a close reading of the facts in each of those cases reveals significant elements of  
control by the defendant in each of those cases over the activity causing the release, which are  
not present in the instant case. It is noteworthy that in many of those cases, the polluting acts  
took place over an extended period of time, frequently well in excess of weeks, which would  
have allowed the defendants in those cases to exert what control they had; in other cases the  
Page: 116  
polluting act or its consequence were immediately known or apparent and the defendant did  
virtually nothing.  
[560] In R. v. Abitibi Consolidated Inc. et al (2000), 190 Nfld. & P.E.I.R. 326 (Nfld. Prov. Ct.)  
Abitibi was charged with contravening the Fisheries Act by depositing a deleterious substance,  
namely silt, into a lake which was frequented by fish, between October 5, 1997 and April 8,  
1998. The charge resulted from the construction of a hydro-electric project on lands owned by  
Abitibi.  
[561] Under the construction contract between Abitibi and its contractor, McNamara, dealing  
with an Environmental Protection Plan for the project, it was the contractor who was to be  
responsible for water quality and environmental planning. However, Abitibi itself retained  
certain environmental responsibilities, including all matters related to water quality, and  
specifically including the right of inspection and the right to consult and discuss with the  
contractor. The contract also provided that Abitibi would consult various governmental agencies,  
specifically regarding fish and fish habitat. Abitibi was to instruct the contractor and the  
contractor’s employees on requirements under the Environmental Protection Plan.  
[562] Abitibi had both an environmental consultant on site for part of the time as well as an on-  
site representative. The trial judge, LeBlanc, J. specifically found that Abitibi had taken on the  
role of monitoring environmental compliance. He found at para. 7:  
[7]  
... While they were able to observe and express concerns  
related to issues, they were unable to direct or exercise direct  
control over the contractor's employees. However, from the  
evidence, they did communicate concerns to the contractor and  
these were acted upon. In fact, any advice given by the owners was  
acted upon in a positive fashion by McNamara according to many  
of the witnesses called by the accused at trial.  
[Emphasis mine]  
[563] By mid-summer 1997, shortly after construction began, the defendant was aware of major  
run-off problems related to the construction activity and of discolouration of the water. In  
October, 1997 an environmental group made the defendant aware of concerns related to  
“extensive silting” in the water of the lake. At about the same time other similar concerns from  
governmental groups were expressed to the defendant. As a result the defendant had further  
communications with the contractor and extra measures were taken to attempt to control the  
sediment problem.  
[564] In December, 1997 the defendant hired a toxicologist to analyze the water for silt. While  
construction on the project was suspended between December, 1997 and March, 1998, during  
February and March representatives of the defendant and the contractor again discussed the issue  
of sediment control, as well potential problems resulting from the spring run-off.  
Page: 117  
[565] It was argued by the defendant that because the contract did not give the owners control  
of the project or project site, it could not be responsible for permitting the deposit of the silt  
which had been deposited by the contractor. The Crown’s position was outlined at para. 29:  
[29] The Crown argues that the accused as owners of the project  
are legally responsible for the actions of the contractor as it relates  
to environmental compliance issues. By virtue of their presence  
on-site, their ability to make suggestions and the positive response  
of the contractor to such advice, the accused could and did exercise  
sufficient control over the contractor to be responsible for  
noncompliance by the contractor. It also appears that the accused  
paid the contractor through progress payments, which payments  
could have been withheld in order to ensure compliance by the  
contractor to the contract requirements.  
[566] The defendant was found to have had sufficient control that it permitted the activity.  
LeBlanc, J. at paras. 32 and 33 said:  
[32] In the case before me, the accused are charged with  
permitting the deposit of a deleterious substance. As stated by  
Dickson, J., above, rather than requiring proof of active  
involvement by both accused, the Crown must prove beyond a  
reasonable doubt that the accused, as owners of the project, were  
passive in their lack of interference or failure to prevent the deposit  
in question. I have carefully reviewed all of the circumstances in  
this case including the nature and terms of the agreement between  
the accused and the contractor, the actions of the accused in having  
Mr. Gosse present on the site as the owners' representative, the  
apparent influence of Mr. Gosse over the actions of the contractor  
as was referred to in the evidence of Mr. Gosse and Mr. Cole  
specifically, the hiring of the environmental consultant by the  
accused in order to provide environmental monitoring and,  
generally, the activities of the partnership related to environmental  
issues. Based upon all of this, I am unable to conclude that the  
accused cannot be charged in this case because it is somehow  
contractually shielded.  
[33] Perhaps ironically, the fact that the accused took such an  
active role as a partnership in monitoring environmental concerns  
related to construction is what has contributed in a major way to  
my conclusion on this issue. The accused were clearly acting as  
though they were concerned with the issues related to sediment  
control and, indeed, brought their concerns, at times, to the  
attention of the contractor who generally acted upon them. This is  
Page: 118  
not a case where the owners had no involvement in the activity  
itself or no monitoring role. Yes the contractor was responsible for  
directing and controlling the construction activity, but, also in my  
view, the accused, as owners, had the ability to monitor and  
influence the contract in the prevention of such deposit. By being  
able to audit and monitor the extent of the sediment control  
problem, by acting to ensure that their concerns related to the  
necessary control measures were made known to the contractor  
and by the response of that contractor, the accused in this case  
played a sufficiently active role to have some potential  
responsibility for the actions of McNamara in the area of  
environmental compliance. Clearly, as the evidence indicates, the  
contractors were very responsive to the concerns and advice of the  
partnership representatives.  
[Emphasis mine]  
[567] By contrast, the evidence in the instant case, is that the defendant had no influence, let  
alone control over the use of the Stadium lighting, until very late in the day of August 5. By then  
there had already occurred the releases of August 3 and 4. The defendant’s influence thereafter  
was hardly significant in that the LOC, without any notice, unilaterally ignored the advice the  
defendant had provided, leaving the lights on without a second shutdown. It was not until very  
late in the day on August 7 that the LOC responded in any meaningful way to the concerns of the  
defendant about the use of the Stadium lights, and by then, unknown to anyone, the release of  
August 8 was imminent.  
[568] Similarly, the full facts are necessary to appreciate what the Court said in R. v.  
Nitrochem Inc. (1993), 14 C.E.L.R. (N.S.) 151 (Ont. Ct. Prov. Div.)). In that case a tanker truck  
owned by Nitrochem’s co-defendant Provost and operated by its employee, was being loaded  
with nitric acid which Nitrochem had sold to Provost, at a plant owned and operated by  
Nitrochem near the St. Lawrence River. Unknown to anyone, the valve on the bottom of the tank  
of the Provost tanker truck was made of a material which dissolves on contact with nitric acid.  
As the loading progressed, the valve began to leak, and the Provost driver, on instructions from  
an employee of Nitrochem, attempted to move the tanker truck from the loading area of the plant  
to the unloading area. He was not able to do so. Nitrochem’s employee then attempted to connect  
unloading hoses to the leaking valve but was unable to do so. The valve ultimately failed totally  
and 5,800 gallons of nitric acid spilled to the ground in the plant. Nitrochem had experienced  
previous spills at the loading dock, although not of the same magnitude.  
[569] Nitric acid gives off toxic fumes. In an attempt to mitigate the effect of those fumes,  
water hoses were brought to the scene and the nitric acid which had spilled to the ground was  
hosed down by Nitrochem’s staff. The resulting acid/water mixture went into the plant’s internal  
storm sewers and thence into a chemical recycling system which allowed the recapture of 97% of  
the spilled nitric acid. However, due to the magnitude of the acid/water mixture, the recycling  
Page: 119  
pond overflowed and the overflow left the plant, flowing through an underground discharge pipe  
into the middle of the St. Lawrence River.  
[570] Nitrochem was charged with two offences. First it was charged with causing or  
permitting the discharge of the nitric acid. Second, it was charged with being the owner of the  
pollutant and having the control of the pollutant, that caused or was likely to cause an adverse  
effect, it did fail to forthwith do everything practicable to prevent the adverse effect.  
[571] As to the issue of control, Nitrochem first argued that it was not the owner of the nitric  
acid at the time. Anderson, Prov. J. found that the loading activity had not been completed, and  
that therefore the property in the nitric acid remained with Nitrochem. He then referred to section  
81 of the Ontario Environmental Protection Act, which provided that:  
“person having control of a pollutant” means the person and his  
employee or agent, if any, having the charge, management or  
control of a pollutant immediately before the first discharge of the  
pollutant.  
[572] Anderson, Prov. J. commented on the issue of control of the nitric acid at the time of the  
spill at para. 21:  
[21] ... While it is acknowledged that Provost was an  
independent contractor responsible for the care and maintenance of  
its own vehicles, Nitrochem had over riding control over the  
loading operation. It selected the loading site, the staff that was  
available to assist the Provost driver, and determined what if any  
safety features and procedures would be available at the loading  
site in the event of a mishap. Having done so, in my view  
Nitrochem is precluded from subsequently avoiding censure by  
claiming that it was not in control at the time of the discharge  
giving rise to the prosecution.  
[573] On the issue of whether the defendant caused or permitted the discharge, Anderson, Prov.  
J. held that it did, at paras. 22 and 23:  
[22] Causation is in the usual course of things multifaceted.  
Nitrochem argues that the sole cause of the spill was the failure of  
the Provost valve. Clearly that was the immediate cause of the  
discharge of the Nitric Acid onto the ground of the Nitrochem  
plant. It was not however, the sole cause of any adverse effect on  
the St. Lawrence River or the natural environment in general. If  
Nitrochem would have had catchment basins in place at its loading  
dock such as it had at its unloading dock, or if it would have had  
the capacity to off load the acid from the top of the Provost truck  
Page: 120  
once the valve failure became apparent, any potential damage  
would have been prevented. I do not accept the argument that  
everything that occurred following the value failure was an effect  
of the spill, rather than a cause of the pollution.  
[23] The same reasoning applies to the issue of whether  
Nitrochem permitted the discharge. As set out in R. v. Sault Ste.  
Marie [p. 376]:  
The “permitting” aspect of the offence centres on  
the defendant's passive lack of interference or, in  
other words, its failure to prevent an occurrence  
which it ought to have foreseen.  
It is not sufficient, under the legislation, for a manufacturing  
facility to load a dangerous substance onto the track of an  
independent carrier and disavow responsibility even during the  
loading process. The occurrence in this matter was the pollution of  
the St. Lawrence River from the Nitrochem plant. The immediate  
cause was the valve failure, however Nitrochem in the manner in  
which it organized it's plant loading did permit the occurrence.  
[Emphasis mine]  
[574] Again, in the instant case the defendant had no direct control over the activity which  
resulted in the release, that activity being the continuous uninterrupted use of the Stadium lights,  
nor was that activity reasonably foreseeable.  
[575] In Canada (Environment Canada) v. Canada (Northwest Territories (Commissioner)),  
[1994] 8 W.W.R. 405 (N.W.T.S.C.) it was alleged that the seaward dyke of a sewage lagoon,  
under the control of the defendant, discharged the contents of the lagoon, raw sewage, into a lake  
frequented by fish, and that the defendant thereby “deposited or permitted the deposit of a  
deleterious substance” into the lake contrary to the Fisheries Act. At trial the defendant admitted  
that it owned and controlled the dyke. On that point the appellate justice, de Weerdt, J. said the  
following at paras. 60, 62 and 63:  
[60] Secondly, did the Commissioner control or should the  
Commissioner have controlled the lagoon's seaward dyke so as to  
prevent any overflow or, as events proved, a bursting of the dyke  
with the lagoon's contents being discharged beyond the dyke? This  
question, in turn, leads to the further question: whether the  
overflow and bursting of the dyke, with its consequences, were  
outside the control of the Commissioner. If there was only a  
reasonable doubt on that point, the Commissioner was entitled to  
Page: 121  
an acquittal on the ground that the Crown had failed to prove each  
element of the actus reus of the offence charged.  
. . . . .  
[62] The trial judge, on the evidence, did not find any  
reasonable doubt on the point. He rejected the Commissioner's  
submissions that the overflow and rupture of the dyke were caused  
either by modifications made by another federal department or  
agency to the slopes and drainage above the lagoon or by an Act of  
God in the form of exceptionally warm weather leading to an  
unusually sudden and heavy flood of water down those slopes,  
none of which (it was submitted on behalf of the Commissioner)  
was foreseeable or within the Commissioner's control.  
[63] Having reviewed the evidence, I hold that it was reasonably  
capable of supporting the trial judge's conclusion that the  
Commissioner in fact did passively permit what ultimately  
occurred when the dyke of the lagoon gave way, since the  
Commissioner was responsible for its control and was aware of the  
risk from an earlier instance of dyke failure in 1987.  
[Emphasis mine]  
[576] The same charge under the Fisheries Act of depositing or permitting the deposit of a  
deleterious substance in water frequented by fish, arose in R. v. Placer Developments Ltd.  
(1983), 13 C.E.L.R. 42 (Y.T.Terr.Ct.).  
[577] Placer owned the mining rights to a parcel of land. It contracted with Harrison to do an  
exploratory audit on the land. Fuel for the camp was stored in a fuel tank farm on the land,  
consisting of 10 fuel tanks, the largest three of which had a capacity of 10,000 gallons each.  
They were located at the top of a hill about 100 yards from a river, within a specifically  
constructed berm, lined with an impermeable synthetic liner to prevent leakages outside the berm  
and potential spilling into the river.  
[578] A plastic pipe was connected, at one end of the pipe, to one of the 10,000 gallon tanks in  
the fuel farm. The pipe was used to transport fuel over the berm and downhill to a smaller 500  
gallon tank which was only 10 yards from the river. The smaller tank, to which the other end of  
the pipe had been connected, was used as the source of daily fuel consumption at the camp. Fuel  
from the larger tank flowed to the smaller tank by operation of gravity feed.  
[579] Fuel leaked from the system connecting that 10,000 gallon tank to the smaller tank during  
the five-month winter shutdown of the camp, when the unlocked valve connecting the pipe to the  
lower and smaller fuel tank was left open and the plastic pipe was not disconnected for the  
Page: 122  
winter. There was no inspection system of the camp over the five-month shutdown. Eventually  
the leaking fuel made its way into the river.  
[580] The trial judge, Stuart, Terr. Ct. J., found that Placer was in a position to control or  
influence the activity which led to the pollution and therefore had a responsibility to do so. He  
did so on three grounds.  
[581] First, he found that Placer had initiated the project and there was no evidence to suggest  
that it could not, as owner of the property, have imposed on its tenant contractor the  
responsibility to exercise care in using and storing fuel. As such Placer was in an influential  
position.  
[582] Second, he found that there were contractual provisions imposed on Placer for the fuel  
system. It was one of Placer’s employees who specifically went to the site to take delivery of the  
fuel which was stored in the larger tanks. There were also contractual provisions which  
empowered Placer to influence the offending conduct. The contractor was to operate modern  
equipment in good condition and maintain it to the satisfaction of Placer’s engineer. That  
engineer was to have general supervision and direction of the work. He had the authority to stop  
or delay the start of the work whenever such stoppage or delay might be necessary to ensure the  
proper execution of the contract. He had the authority to reject all work and materials which did  
not conform to the contract, and decide questions in the execution of the work. All work and  
materials were subject to inspection by the engineer to determine compliance with the contract  
specifications. Placer agreed to supply or maintain fuel oil, gasoline and lubricants required for  
the work at no charge to the contractor.  
[583] Third, as noted by the trial judge, Placer had expertise. Stuart, Terr. Ct. J., said at para.  
23:  
[23] ... The accused was required to possess, and did possess,  
sufficient expertise to be aware of the potential risk to the  
environment posed by a fuel system in northern mining camps. At  
the very least, their expertise was sufficient for the accused to flag  
the risks in the contract.  
Further, the accused had the opportunity and knowledge in the  
field, ... to influence the offending conduct on the site. ...  
[Emphasis mine]  
[584] The Crown submission cites R. v. Canada Cellulose (1979), 2 F.T.R. 256 (B.C. Co. Ct.),  
for the proposition that even if a defendant is not responsible for the original release, liability  
may be imposed where that defendant fails to prevent the pollution from continuing. In that  
decision a PCB filled transformer owned by Canada Cellulose exploded. Canada Cellulose  
knowingly allowed the PCBs to remain in a storm drain for six days before commencing clean-  
up, which allowed some of the released PCBs to escape into a harbour and caused pollution.  
Page: 123  
[585] Two cases relied upon by the Crown in its submission arose from the leak of gasoline  
from underground storage tanks at a service station in Strathroy, Ontario. The station was  
operated by Mac’s Convenience Stores. On discovery of the leak, none of the tenant, owner or  
the gasoline supplier accepted responsibility for the clean-up. The Minister of the Environment  
for Ontario issued a remediation order against all three, under the authority of section 16 of the  
Ontario Environmental Protection Act, which authorized the issuing of such an order against  
any person who “causes or permits” the discharge of a contaminant. Seven months later the three  
subjects of the order were charged with failing to comply with the order.  
[586] Before trial of the charges, applications for judicial review of the remediation order were  
made by the three subjects of the order. The applications were dismissed by the Ontario High  
Court of Justice Divisional Court in Re Mac’s Convenience Stores Inc. and Minister of the  
Environment for Ontario (1984), 48 O.R. (2d) 9, where Saunders, J. for the court observed at p.  
13:  
... The element of control is significant in determining whether an  
occurrence has been caused or permitted. The verb “cause” in this  
context means the doing of something or the giving of a positive  
mandate to do something by a person in a position of control.  
Similarly, the verb “permit” means the giving of express or  
implied permission to do something or failure to interfere or  
prevent a foreseeable occurrence by a person in a position of  
control. ...  
[587] There was no reference in the reasons to Sault Ste. Marie.  
[588] The charges against Mac’s Convenience Stores of failing to comply with the remediation  
order were disposed of against the defendant in the decision of the Ontario Provincial Court  
reported in R. v. Mac’s Convenience Stores Inc. (1985), 14 C.E.L.R. 120 (Ont. Prov. Ct.), where  
Mac’s Convenience Stores was found to have been in a position to exercise a degree of control  
over containment in the storage tanks. After noting that the service station’s gasoline storage  
tanks and lines were to be installed new; and the history for over a year of extensive, frequent  
and more or less continuous daily losses of Mac’s Convenience Stores’ gasoline inventory, the  
trial judge indicated that he was satisfied beyond a reasonable doubt that Mac’s Convenience  
Stores had the requisite degree of control over the service station that it could be said that it had  
caused or permitted the discharge. At paras. 66 to 68 Menzies, J. concluded:  
[66] Prior to the construction of the self-serve gas bar in 1981,  
Mac’s was in a position to influence a number of matters such as:  
whether new tanks were installed or old ones in the ground were  
used; whether the most modern pumps were installed; whether  
locking devices were installed to prevent theft; whether soil tests  
Page: 124  
were made bearing in mind the sensitive nature of the environment  
at the site.  
[67] Moreover, Mac’s had control over the training of the gas  
bar personnel with respect to keeping of records and recognition of  
signs of potential leaks and the circumstances under which signs of  
possible leaks should be reported to the authorities.  
[68] Further, Mac’s had control over the supervision of the  
employees who worked at the site. Mac’s owned the gasoline  
itself. Mac’s had control over the making, retention and  
interpretation of records of gasoline sales and the reconciliation of  
such sales with actual amounts of gasoline in the tanks. Mac’s had  
control over what degree of fluctuations shown in the records  
would be reported to the authorities.  
[Emphasis mine]  
[589] It is worth noting that Mac’s Convenience Stores in that case had the power to remove  
the tanks and soil after it became aware that there were significant and continuing inventory  
losses.  
[590] By contrast, in the instant case there is no evidence as to what influence or control the  
defendant had over the construction of the Stadium at the time it was built. There is no evidence  
at all as to the circumstances surrounding the construction of the Stadium.  
[591] The Stadium was leased to the LOC on an “as is, where is” basis. The control over the  
Stadium according to the Lease, and according to the defendant and the LOC, rested entirely  
within the legal and de facto authority of the LOC. The defendant had no authority over the LOC  
personnel at the site.  
[592] It was argued that the defendant had control over the use of the Stadium lights because  
the defendant had an opportunity to approve construction plans or fit out plans. However, the  
evidence before me indicates that the Stadium lighting was never part of any such plans and that  
there were no modifications made to the lights other than the LOC replacing the bulbs. As to  
operational plans being approved by the defendant as contemplated in clause 5.1 of the Lease,  
there is no evidence that such plans were submitted by the LOC to the defendant for approval.  
Further, that clause contemplates that such plans would have been submitted before July 21, that  
is to say, before the decision was made by the LOC to activate the Stadium lights continuously  
without interruption. Regardless of that, the defendant’s rights were limited to only reviewing  
and requesting changes. The defendant did not have a right to veto. Moreover, the defendant’s  
right to request changes was limited to those situations where changes were required to protect  
the Stadium, spectators, participants and organizers. There is no evidence that such protection  
was reasonably foreseeable until after the August 4 rupture and resulting release. Once it was  
foreseeable the defendant acted.  
Page: 125  
[593] It was argued that the defendant had control over the use of the lights by reason of clause  
17 of the Lease dealing with “dispute resolution”. My view of the evidence is that while the  
defendant had concerns about the Stadium light usage, before the second release of August 4,  
those were very minor concerns only, amounting to little more than financial inconvenience. Any  
elevated concern after that release was a moderate concern only because the LOC promised  
regular periodic shutdown times which would have allowed the lighting equipment an  
opportunity to cool down. It was not until the LOC unilaterally and without notice to the  
defendant broke its promised shutdown on August 7, that it could be said that a dispute arose;  
and then the defendant essentially, through its chief administrative officer, informally invoked  
the dispute resolution mechanism, seemingly with success. However, by that time it was or may  
have been too late to prevent the ruptures of any more capacitors, including the capacitor  
involved in the August 8 incident.  
[594] From July 21 on, the defendant’s role over what transpired at the Stadium was no more  
than that of a maintenance contractor or provider to the LOC. As a maintenance provider, the  
evidence only goes so far as to establish that the defendant’s obligation was to repair. There is no  
evidence that it was obliged or even expected to advise.  
[595] To the extent that the defendant did advise, its advice could be accepted, ignored or  
rejected from time to time. It was the failure by the LOC to follow that advice, albeit that the  
advice may have been offered by the defendant before August 4, for different reasons, that  
resulted in the releases occurring. Unlike in the reported cases, the evidence indicates that the  
defendant’s advice was acted upon inconsistently and not immediately.  
[596] Also unlike the reported cases, the defendant in the instant case had little opportunity in  
terms of time to exert such influence it might have had over the LOC. What did occur in the  
instant case happened in a relatively short time frame.  
[597] I conclude from a review of all the cases, that for me to be satisfied beyond a reasonable  
doubt that the defendant in the instant case did “cause the release”, there must not be any  
reasonable doubt that the defendant did, as a matter of fact, have some control over the activity  
which resulted in the release or over others who controlled that activity (whether those others  
released or caused or permitted the release). That activity was in my view the extraordinarily  
unusual use of the lights which was controlled and determined solely by the LOC.  
[598] One ought not confuse a defendant’s attempts to remedy or rectify the results of a delict  
with the cause of the delict. Control over remediation or rectification of an event does not equate  
to control over the cause of that event. Attempting to control the effects or results of an  
occurrence does not equate to controlling the occurrence itself. Nor does attempting to prevent  
the recurrence of an event equate to causing the original occurrence itself.  
Page: 126  
[599] The remarks of Dianne Saxe in Environmental Offences: Corporate Responsibility and  
Executive Liability, Canada Law Book Inc., 1990 at pp. 109-110 seem to me to be apropos the  
situation the defendant in the instant case found itself:  
On the other hand, one should not impose liability on those  
who had neither knowledge, nor reasonable means of knowledge,  
of the risk of an environmental offence, and who did not in any  
way influence, control or contribute to it. Imposing liability on  
such persons does nothing to improve the standard of commercial  
behaviour; by definition, nothing which they could reasonably  
have done would have prevented the pollution. Moreover, it would  
be unfair:  
... if a man is punished because of an act done by  
another, whom he cannot reasonably be expected to  
influence or control, the law is engaged, not in  
punishing thoughtlessness or inefficiency, and  
thereby promoting the welfare of the community,  
but in pouncing on the most convenient victim.  
[600] The Crown has failed to satisfy me beyond a reasonable doubt in Count 1 that the  
defendant did “release or permit the release” of the insulating oil, and in each of Counts 2, 4, 6,  
and 8 that the defendant was a person who did “release or cause or permit the release” of the  
insulating oil.  
E.  
“Person Having Control of Substance”  
[601] One of the elements the Crown must prove beyond a reasonable doubt for a finding of  
guilt in each of Counts 3, 5, 7, and 9 is that the defendant was a person “having control” of the  
insulating oil.  
[602] As has been noted, the E.P.E. Act specifically provides in section 96(1)(a) that in the  
case of reporting acts of pollution,  
“person having control of a substance” means the person having charge,  
management or control of the substance”  
[603] In my view the phrase “charge, management or control” as it may relate to the pollutant,  
has a very broad ordinary meaning as well as a purposive meaning. The phrase is not restricted  
to immediate, it may be long term. It is not confined to physical, but extends to legal. It is not  
limited as to the time or location where the polluting activity takes place, but may include when  
and where the pollution consequence occurs. It is not restrained to the temporary or the usual, the  
perpetrator or the victim; it includes all. This is all consistent with the Legislature creating a  
wider class or category of possible reporters of environmental pollution.  
Page: 127  
[604] I have noted the different articles, “a” and “the”, which introduce subsections (1) and (2)  
of section 99, imposing an obligation to report on “a person” and “the person” respectively.  
Section 99 of the E.P.E. Act was reviewed in Shell Canada Ltd., supra. I refer to the approach  
in the statutory interpretation suggested by Kent, J. set out earlier in these Reasons.  
[605] Considering the purpose of the E.P.E. Act as enumerated in section 2, I do not believe  
that it was intended that the word “the” should be taken to mean that there is only one person  
who may be said to be the person in control. It only makes sense that there may, in the  
circumstances of any particular case, be more than one person, even several persons, in control  
of the substance. That interpretation is also consistent with the legislative history of section 99.  
[606] Until 1998, the wording of section 99 differed from its current wording. It provided:  
99(1) A person, other than the person having control of the  
substance, who releases or causes or permits the release of a  
substance into the environment that has caused, is causing or may  
cause an adverse effect shall, as soon as that person knows or  
ought to know of the release, report it to  
(a) the Director, . . .  
(2)  
The person having control of a substance that is released  
into the environment that has caused, is causing or may cause an  
adverse effect shall, immediately on becoming aware of the  
release, report it to the persons referred to in subsection (1)(a), (b),  
(c) and (e) unless the person having control has reasonable grounds  
to believe that those persons already know of the release.  
[underlining mine]  
[607] In 1998 the underlined words were deleted, presumably to reflect that subsection (1)  
concerned itself solely with the responsibility of the polluter. It is reasonable to conclude that  
through legislative oversight, subsection (2) was not amended grammatically to reflect the  
purpose of that change.  
[608] Moreover, I can think of no reason why “the person’ in subsection (2) should not be more  
than one person.  
[609] The defendant was not in my view a person having control over the substance merely  
because it was the owner of the Stadium, the equipment of which was the source of the release of  
the pollutant.  
[610] However, there are two factors which made the defendant a person in control of the  
polluting substance in the instant case. The first is that it was the Stadium itself onto which the  
Page: 128  
pollutant fell which was not only owned by the defendant, but to whom possession was expected  
to revert in a matter of only a few weeks. While the defendant may not have had control over the  
Stadium and therefore the pollutant at the time of release, the pollutant came to be under the  
defendant’s control because the pollutant came to rest on the defendant’s property and the  
defendant was aware of that fact. If the pollutant had similarly landed on a neighbouring land, to  
the knowledge of the owner or occupier of that land, that owner or occupier too would be a  
person who had control of the pollutant.  
[611] Moreover, the defendant acquired a degree of charge, management or control over the  
released pollutant in its capacity as maintenance provider of the Stadium lighting during the  
Games, upon the defendant taking possession of the ruptured capacitors and commencing an  
investigation as to the nature and characteristics of the pollutant by having it tested.  
F.  
“Causes or May Cause” / “Has Caused, Is Causing or May Cause” an Adverse  
Effect  
[612] As I mentioned in my introductory remarks when reviewing the expert evidence on  
“adverse effect”, in my view it was incumbent on the Crown to call expert evidence on the topic  
because the proven quantity of the substance which was released in the instant case, in the  
absence of such expert evidence was, if not de minimis, below such a quantity that a trier of fact  
could take judicial notice that there was a capability of there being an adverse effect.  
[613] I am not unmindful of the comments about the dangerous nature of PCBs which are  
found in many of the reported environmental cases. One case in particular was cited by the  
Crown, R. v. Hydro-Quebec, [1997] 3 S.C.R.213, especially the comments of La Forest, J. at  
paras. 157 to 159 where he said:  
[157] Since I have found the empowering provisions, ss. 34 and  
35, to be intra vires, the only attack that could be brought against  
any action taken under them would be that such action went  
beyond the authority granted by those provisions; in the present  
case, for example, such an attack might consist in the allegation  
that PCBs did not pose “a significant danger to the environment or  
to human life or health” justifying the making of the Interim Order.  
This would seem to me to be a tall order. The fact that PCBs are  
highly toxic substances should require no demonstration. This has  
become well known to the general public and is supported by an  
impressive array of scientific studies at both the national and  
international levels. I list here merely a sample of those cited to us:  
World Health Organization, U.N. Environment Programme and  
International Labour Organization (joint report), Polychlorinated  
Biphenyls (PCBs) and Polychlorinated Terphenyls (PCTs) Health  
and Safety Guide 1992); S. Dobson and G.J. van Esch,  
Polychlorinated Biphenyls and Terphenyls, 2nd ed. (1993),  
Page: 129  
Environmental Health Criteria 140, World Health Organization;  
R.J. Norstrom (Environment Canada) and D.C.G. Muir  
(Department of Fisheries and Oceans), “Chlorinated Hydrocarbon  
Contaminants in Arctic Marine Mammals”, The Science of Total  
Environment 154 (1994) 107-28; U.N. Environment Programme,  
Global Environmental Issues, supra; Environment Canada,  
Department of Fisheries and Oceans, Health and Welfare Canada,  
Toxic Chemicals in the Great Lakes and Associated Effects (1991);  
J.L. and S.W. Jacobson, “A 4-Year Followup Study of Children  
Born to Consumers of Lake Michigan Fish”, Journal of Great  
Lakes Research, 19(4) (1993): 776-83; M. Gilbertson et al., “Great  
Lakes Embryo Mortality, Edema, and Deformities Syndrome  
(GLEMEDS) in Colonial Fish-eating Birds: Similarity to Chick-  
Edema Disease”, Journal of Toxicology and Environmental  
Health, 33 (1991): 455-520; Canadian Council of Resource and  
Environment Ministers, The PCB Story (1986); Environment  
Canada and Health and Welfare Canada, Background to the  
Regulation of Polychlorinated Biphenyls (PCB) in Canada: A  
Report of the Task Force on PCB, April 1, 1976, to the  
Environmental Contaminants Committee of Environment Canada  
and Health and Welfare Canada; Health and Welfare Canada, A  
Review of the Toxicology and Human Health Aspects of PCBs  
(1978-1982) (1985); OECD, Protection of the Environment by  
Control of Polychlorinated Biphenyls (1973).  
[158] From what appears in these studies, one can conclude that  
PCBs are not only highly toxic but long lasting and very slow to  
break down in water, air or soil. They do dissolve readily in fat  
tissues and other organic compounds, however, with the result that  
they move up the food chain through birds and other animals and  
eventually to humans. They pose significant risks of serious harm  
to both animals and humans. As well they are extremely mobile.  
They evaporate from soil and water and are transported great  
distances through the atmosphere. High levels of PCBs have been  
found in a variety of arctic animals living thousands of kilometres  
from any major source of PCBs. The extent of the dangers they  
pose is reflected in the fact that they were the first substance  
sought to be controlled in Canada under the Environmental  
Contaminants Act, the predecessor of the present legislation. They  
were also the first substance regulated in the United States under  
the Toxic Substances Control Act, 15 U.S.C. § 2605(c). And  
because of the trans-boundary nature of the threat, they were the  
first substances targeted for joint action by Canada, the United  
States and Mexico through the Commission for Environmental  
Page: 130  
Cooperation established under the North American Free Trade  
Agreement; see C.E.C. Council of Ministers, Resolution #95-5  
“Sound Management of Chemicals”, Oct. 1995; C.E.C. Secretariat  
Bulletin, vol. 2, No. 3, Winter/Spring 1996.  
[159] I should say that the respondent and mis en cause do not  
contest the toxicity of PCBs but simply argue that their control  
should not fall exclusively within federal competence. They also  
note that there is one study (G.J. Farquhar and S. Sykes, PCB  
Behaviour in Soils (1978), at pp. 7, 8, 22, 23, 26, 33 and 34) that  
indicates that PCBs are absorbed, remain stable and are not  
mobile. I have already discussed the issue of concurrency. So far  
as mobility is concerned, whatever weight may be attached to the  
report in relation to the national concern issue, it has no relevance  
in considering federal jurisdiction under the criminal law power.  
[614] However, it seems to me that those comments must be placed in the context of the facts  
of those cases and the evidence in support of those facts. In particular, R. v. Hydro-Quebec was  
a constitutional case where the defendant attacked the constitutionality of two sections of the  
Canadian Environmental Protection Act, R.S.C. 1985, c. 16 (4th Supp.) as being outside  
Parliament’s federal jurisdiction to make laws under the federal head of power set out in section  
91 of the Constitution Act, 1867. Those sections authorized the Governor General in Council to  
make detailed regulations respecting the manner of dealing with toxic substances that could pose  
a risk either to the environment or to human life and health, and then provided requirements  
respecting the terms and conditions under which such substances could be released into the  
environment. One of the regulations restricted the emissions of PCBs to one gram per day.  
[615] It is clear that La Forest, J. did not say that PCBs are at all times and in all places  
harmful, let alone that they always cause or have the potential to cause harmful effects  
notwithstanding what might be their particular nature or chemical makeup or mixture, their  
quantity, their concentration, their level or their rate of release, or any other factor. He certainly  
did not say that one can take judicial notice that the effects of PCBs are always harmful or  
adverse merely because they are PCBs.  
[616] Similar concerns about PCBs were expressed by the Ontario Court of Appeal in R. v.  
Inco Ltd. (2001), 155 C.C.C. (3d) 383, where the defendant was charged with discharging  
untreated mine effluent into a creek, contrary to section 30 of the Ontario Water Resources Act,  
(“OWRA”) R.S.O. 1990, c. O.40. Section 30 prohibited a discharge of any material of any kind  
into or in any waters or any shore or bank thereof or into or in any place that may impair the  
quality of the water or any waters.”  
[617] Of relevance to the decision was the wording of section 28(1) of the OWRA, which  
provided:  
Page: 131  
28.  
Under sections 29, 30, 32 and 33, the quality of water shall  
be deemed to be impaired if, although the quality of the water is  
not or may not become impaired, the material discharged or caused  
or permitted to be discharged or any derivative of such material  
causes or may cause injury to any person, animal, bird or other  
living thing as a result of the use or consumption of any plant, fish  
or other living matter or thing in the water or in the soil in contact  
with the water.  
[Emphasis mine]  
[618] The issue before the Ontario Court of Appeal was what was the test to be adopted on the  
issue of impairment of the quality of water, and specifically as to whether the following test,  
enunciated by Austin, Prov. J. and set out in R. v. Imperial Oil Ltd. (1995), 17 C.E.L.R. (N.  
S.)12 (Ont. Ct. (Prov. Div.)) should be followed.  
[24] In a case such as the one before me, the offence is made out  
where the Crown proves beyond any reasonable doubt that the  
discharge of material may impair the quality of the water, based  
upon not only the nature of the material, but also the nature and  
circumstances of the discharge of that material, including its  
quantity and concentration, as well as the time frame over which  
the discharge took place. Such factors may be relevant to the issue  
of impairment. In this case, for example, it is the large quantity of  
activated sludge over a short time frame which renders the  
discharge of material potentially impairing.  
[619] At paras. 49 to 54 in Inco Ltd., McMurtry, C.J.O. adopted the test and said:  
[49] Austin Prov. J. considered Corbett J.'s decision in R. v.  
Toronto Electric Commissioners (1991), 6 C.E.L.R. (N.S.) 301  
(Ont. Ct. (Gen. Div.)). At issue in that case was a discharge into  
Lake Ontario of a very small quantity of polychlorinated biphenyls  
("PCBs"). The defence argued that the small quantity of PCBs  
discharged did not have the capacity to impair the receiving water  
and thus an offence under what is now s. 30(1) of the OWRA was  
not made out. Corbett J. rejected this argument on the basis that the  
release of any quantity of PCBs would create impairment of the  
quality of the receiving waters due to the inherent toxicity,  
persistence, and bioaccumulativeness of PCBs. She stated at p.  
316:  
In my opinion, the offence is constituted  
when the Crown proves that any material  
discharged into Lake Ontario may impair the  
Page: 132  
quality of the water course ... The section is broad,  
and the use of the words "may impair" shows the  
intention of the legislation is not to prohibit the  
results of certain acts but to prevent the discharge of  
any material which, by its nature, may impair the  
quality of the water course.  
[50] Austin Prov. J. observed at p. 17 that Toronto Electric  
Commissioners affirmed a zero-tolerance principle in relation to  
the discharge of toxic chemicals into Ontario waterways. Having  
accepted that the substance at issue before her was not toxic, she  
nonetheless held at p. 18 that Toronto Electric Commissioners “...  
does not preclude a conviction in circumstances where a substance  
which may have no potential to ‘impair’ at low levels becomes  
capable of impairing as a result of the excessive quantity or  
concentration of material discharged”. This significant qualifying  
sentence immediately precedes the statement in Imperial Oil of the  
test, which Inco claims has general application.  
[51] Austin Prov. J. concluded that the offence of impairing  
water quality was made out because of the large quantity of the  
effluent that was discharged over a short time frame. These  
circumstances rendered the discharge potentially impairing  
because the combined effect of the high level of discharge over a  
short period of time may have depleted oxygen required by aquatic  
life.  
[52] The Imperial Oil test should be applied when determining  
whether an offence under s. 30(1) has been made out. Inherently  
toxic substances will always fail that test, reflecting zero-tolerance  
for discharging materials that, by their nature, may impair water  
quality. If the material in the discharge is not inherently toxic, then  
it will be necessary to consider the quantity and concentration of  
the discharge as well as the time frame over which the discharge  
took place.  
[53] This approach is in accordance with the language of ss. 28  
and 30(1) of the OWRA, which creates a wide ambit of protection  
for Ontario waters. Section 30(1) prohibits the discharge into water  
of materials that may impair the quality of the water of any waters.  
The wording of s. 30(1) indicates two things: i) the material need  
only have the capacity to impair the water to be caught by the  
provision; and ii) the water that may be impaired is any water, not  
just the water where the material is discharged. Section 28(1)  
Page: 133  
indicates that impairment under s. 30(1) will be deemed to have  
occurred where the material causes, or may cause, injury to any  
living thing as a result of the use or consumption of living matter  
in the water or surrounding soil. Emitting materials into waters that  
may impair water quality is forbidden, except under enumerated  
circumstances where Certificates of Approval may be obtained:  
see s. 53 of the OWRA.  
[54] Such a broad scope of protection is not difficult to justify.  
Environmental damage caused by discharging materials into  
Ontario waters may not be immediately apparent after the  
discharge. As well, impairment may be caused by the  
accumulation of materials over time. As Bourassa Terr. Ct. J. in R.  
v. Panarctic Oils Ltd. (1983), 12 C.E.L.R. 78 (N.W.T. Terr. Ct.)  
explains at pp. 85-6:  
In my view, the destruction of any ecosystem or  
environment is a gradual process, effected by  
cumulative acts – a death by a thousand cuts, as it  
were. Each offender is as responsible for the total  
harm as the last one, who visibly triggers the end.  
The first offender cannot be allowed to escape with  
only nominal consequences because his input is not  
as readily apparent.  
[Emphasis mine]  
[620] McMurtry, C.J.O. went on to find that the discharged mine effluent in the case before  
him was not an inherently toxic or harmful substance in water, regardless of the concentration,  
level or rate of release of the substance or the circumstances under which it was deposited.  
Accordingly, the comments of McMurtry, C.J.O on inherently toxic substances remain obiter.  
[621] More importantly, these comments must be taken in the context of the legislation which  
applied in that case. It is clear from that legislation, and in particular section 28 of the OWRA,  
that the prohibition was not founded on the results or consequences of the act. The prohibition  
was founded on the act of discharging a material which by its nature may impair the quality of  
water, coupled with the deeming language in section 28 of the OWRA.  
[622] The Crown’s written submission in the instant case also referred to R. v. Toronto Electric  
Commissioners, (1991), 6 C.E.L.R. (N.S.) 301 (Ont. Ct. (Gen. Div.)). In particular it was cited  
for the proposition that the word “may” in both section 98 and section 99 of the E.P.E. Act  
means only a possibility of an adverse effect; that an adverse effect need not be likely to occur;  
and that although the nature of the substance is not the only consideration, it is the most  
important consideration. Again, the comments in Toronto Electric Commissioners must be  
taken in the context of the legislation which applied in that case. Although Corbett, J. did not set  
Page: 134  
out in her reasons what was then section 14 of the OWRA, what she said about section 16 must  
be considered in the context of section 14 which provided:  
14.  
Under sections 15, 16, 18 and 19, the quality of water shall  
be deemed to be impaired if, notwithstanding that the quality of the  
water is not or may not become impaired, the material deposited or  
discharged or caused or permitted to be deposited or discharged or  
any derivative of such material causes or may cause injury to any  
person, animal, bird or other living thing as a result of the use or  
consumption of any plant, fish or other living matter or thing in the  
water or in the soil in contact with the water.  
[Emphasis mine]  
[623] There is no such deeming provision or related provision in the E.P.E. Act as existed in  
the OWRA at the time of either the Inco Ltd. or the Toronto Electric Commissioners cases.  
[624] It is significant to bear in mind that the inherently toxic or dangerous nature of PCBs in  
and of itself, has not been of sufficient concern to either Parliament or the Legislature to ban  
their presence totally, either two decades ago or since. Had either chosen to prohibit the release  
of PCBs into the environment they could have, whether by amount or concentration. Indeed, the  
Legislature has authorized the Lieutenant Governor in Council to prohibit releases by amount or  
concentration under section 107 of the E.P.E. Act which provides:  
107(1) The Lieutenant Governor in Council may make regulations ...  
(d.1) prescribing the concentration, including the  
maximum concentration, of a substance that  
may be released into the environment;  
(d.2) prescribing the amount, including the  
maximum amount, of a substance that may  
be released into the environment;  
(d.3) prescribing the level, including the  
maximum level, of a substance that may be  
released into the environment;  
(d.4) prescribing the rate, including the maximum  
rate, at which a substance may be released  
into the environment; ...  
[625] Pursuant to that authority other substances have been banned, or severely and specifically  
regulated as to the amount of release, such as respectively ozone-depleting substances or  
halocarbons (Environmental Protection and Enhancement Act, Ozone-Depleting Substances  
Page: 135  
and Halocarbons Regulation, AR 181/2000) and vinyl chlorides (Environmental Protection  
and Enhancement Act, Substance Release Regulation, AR 124/93). The Legislature has not  
chosen to ban the release of PCBs.  
[626] Instead, the Legislature has chosen in the E.P.E. Act to prohibit the release of PCBs  
under section 98 only when the release “causes or may cause” a significant adverse effect,  
having regard to the enumerated factors specified therein: amount, concentration, level and rate  
of release. It is not enough that the substance be a substance which is known to be capable of  
causing a significant adverse effect. In terms of reporting, the Legislature has chosen to impose a  
duty to report under section 99 only when the release “has caused, is causing or may cause” an  
adverse effect. It is not enough that the substance be a substance which is known to be capable of  
causing an adverse effect.  
[627] By doing so, the Legislature has indicated that the focus is not merely on the nature of the  
substance alone and its capacity or potential to cause adverse or significant adverse effects.  
There must be a focus on the results or consequences of the release of the substance and on  
causation of those results or consequences. To interpret the phrases “causes or may cause” and  
“has caused, is causing or may cause” otherwise would render meaningless the words “causes  
or” in section 98 and “has caused, is causing or” in section 99. Had the Legislature wanted to  
focus only on the capability of polluting substances, it could have done so as in the case of the  
OWRA, by merely employing the phrase “may cause”.  
[628] This conclusion is consistent with the application of the interpretative technique  
suggested by Gonthier, J. in the Supreme Court of Canada decision in R. v. Nova Scotia  
Pharmaceutical Society, [1992] 2 S.C.R. 606 at pp. 647-48, where Gonthier, J. discussed the  
claim in that case that the word “unduly” was too vague to meet the constitutional test of legal  
certainty; because it so lacked in precision as not to give sufficient guidance for legal debate --  
that is, for reaching a conclusion as to its meaning by reasoned analysis applying legal criteria.  
Gonthier, J. said:  
... Section 32(1)(c) must not be taken in a vacuum. Its  
interpretation is conditioned, first of all, by the purposes of the  
Act. Furthermore, its content is enriched by the rest of the section  
in which it is found and by the mode of inquiry adopted by courts  
as they have ruled under it. ...  
[629] The words “causes” and “has caused, is causing” inform as to the meaning of the words  
“may cause”. The focus of the inquiry is on the results or consequences of the release, not on the  
substance of the release.  
[630] This interpretation is not inconsistent with the recognition that environmental protection  
legislation is by its nature broad and ambitious in scope. As noted by Gonthier, J. in Ontario v.  
Canadian Pacific Limited, [1995] 2 S.C.R. 1031 at para. 43:  
Page: 136  
[43] What is clear from this brief review of Canadian pollution  
prohibitions is that our legislators have preferred to take a broad  
and general approach, and have avoided an exhaustive codification  
of every circumstance in which pollution is prohibited. Such an  
approach is hardly surprising in the field of environmental  
protection, given that the nature of the environment (its  
complexity, and the wide range of activities which might cause  
harm to it) is not conducive to precise codification. Environmental  
protection legislation has, as a result, been framed in a manner  
capable of responding to a wide variety of environmentally  
harmful scenarios, including ones which might not have been  
foreseen by the drafters of the legislation. This has left such  
legislation open to allegations of unconstitutional vagueness: ...  
[631] In Canadian Pacific Limited the phrase “causes or is likely to cause impairment of the  
quality of the natural environment for any use that can be made of it” was attacked as being both  
vague and overly broad. In the Supreme Court of Canada the attack was limited to the expression  
“for any use that can be made of [the natural environment]”. The Supreme Court rejected the  
claim that the expression was either vague or overly broad.  
[632] In my view the use of the expressions “causes” and “has caused, is causing” in section 98  
and section 99 of the E.P.E. Act respectively, were intended by the Legislature to avoid  
problems associated with mere possibility, triviality, remoteness, uncertainty, speculation or  
absurdity, by requiring proof at least on the standard of a balance of probabilities that there was  
either a significant adverse effect or, more importantly only an adverse effect. It is not enough in  
my view for the Crown to prove a possible result, it must prove a probable future consequence.  
[633] I attach no significance to the fact that under section 98 the prohibition refers to causation  
in the present and future tense, whereas in section 99 the obligation to report is with respect to an  
adverse effect which may also have been in the past tense. Grammatically it only makes sense  
that an effect does not occur before the act which causes that effect. Accordingly, the prohibition  
under section 98 must be expressed as to result or consequence in the present or future tense.  
Regarding section 99, reporting must necessarily be ex post facto the release. Hence, the  
reporting may be with respect to the past, the present or the future, but always respecting a  
release or releases that are alleged to have occurred at a specific time or times.  
[634] It was argued by Crown counsel that the absence in section 99 of the phrase “in an  
amount, concentration or level or at a rate of release” which is present in section 98, preceding  
the phrase “that has caused, is causing or may cause an adverse effect” signified an intention that  
in section 99 at least, the focus ought to be on the nature of the substance released and not the  
results or consequences of the release. I do not agree. The amount, concentration, level and the  
rate of release are merely factors which inform as to the issue of whether there is actually or in  
the future probably will be a significant adverse effect.  
Page: 137  
[635] The absence of these specific factors from enumeration in section 99 does not mean that  
they are not factors for the trier of fact to consider in determining whether there actually is, or in  
the future probably will be, an adverse effect, or that the focus should change in interpreting  
section 99. That they and other relevant circumstances are factors to weigh, in considering  
whether the substance “has caused, is causing or may cause” an adverse effect under section 99,  
is informed by section 100 of the E.P.E. Act which provides:  
100(1) A person who is required to report to the Director pursuant  
to section 99 shall report in person or by telephone and shall  
include the following in the report, where the information is known  
or can be readily obtained by that person:  
(a)  
(b)  
the location and time of the release;  
a description of the circumstances leading  
up to the release;  
(c)  
(d)  
(e)  
the type and quantity of the substance  
released;  
the details of any action taken and proposed  
to be taken at the release site;  
a description of the location of the release  
and the immediately surrounding area.  
(2)  
In addition to a report under subsection (1), the person shall  
report in writing where required by the regulations.  
(3)  
A person who reports under subsections (1) and (2) shall  
give to the Director any additional information in respect of the  
release that the Director requires.  
[636] The Environmental Protection and Enhancement Act Release Reporting Regulation,  
AR 117/93, also informs as relevant factors to consider in whether a report should be made:  
3(1) Subject to section 2(a), where a release of a substance  
falling within the Class and Division set out in Column I of Table  
1 in Part IX of the Transportation of Dangerous Goods  
Regulations (SOR 85/77) under the Transportation of Dangerous  
Goods Act, 1992 (Canada) occurs and the release has caused, is  
causing or may cause an adverse effect, sections 99 to 101 of the  
Act and this Regulation apply in respect of the release only if  
Page: 138  
(a)  
the release is at or in excess of the  
quantities or levels set out for the substance  
in Column II of that Table,  
(b)  
(c)  
the substance is released into a watercourse  
or into groundwater or surface water, or  
the substance is classified as Class 2  
dangerous goods.  
(2)  
Subsection (1)(b) and (c) apply regardless of whether the  
quantity or level of the release is at or in excess of the  
levels set out in Column II of the Table.  
4(1) A person referred to in section 99(2) of the Act who makes  
an oral report under section 100(1) of the Act shall within 7 days  
ensure that the Director is in receipt of a written report made by  
the person in accordance with subsection (3).  
(2)  
The Director may, on the request of the person reporting  
under section 100(1) of the Act, waive the requirement of  
subsection (1) of this section where, in the Director's opinion, the  
report provided under section 100(1) of the Act is satisfactory and  
(a)  
(b)  
no adverse effects are likely to occur as a  
result of the release, or  
the adverse effects caused by the release  
have been adequately controlled.  
(3)  
A written report must include the following information,  
where reasonably available:  
(a)  
(b)  
(c)  
the date and time of the release;  
the location of the point of the release;  
the duration of the release and the release  
rate;  
(d)  
the composition of the release showing with  
respect to each substance  
(i)  
its concentration, and  
Page: 139  
(ii)  
the total weight, quantity or  
amount released;  
(e)  
(f)  
a detailed description of the circumstances  
leading up to the release;  
the steps or procedures which were taken to  
minimize, control or stop the release;  
(g)  
(h)  
the steps or procedures which will be taken  
to prevent similar releases;  
any other information required by the  
Director. ...  
[637] In my view the Legislature signified a clear intention to focus on results and  
consequences in both section 98 and section 99 by using more or less the same form of  
expression on causation; each case requiring a standard or level of proof more than a mere  
possibility having regard only to the substance itself. Had the Legislature intended to focus in  
section 99 on the substance itself, rather than the results or consequences of the release, it would  
have so expressed itself by requiring reports when the release “may cause” an adverse effect,  
rather than the way it has been expressed. There would be no need for the words “has caused, is  
causing” in section 99.  
[638] In Alberta PCBs are not therefore conclusively or for that matter presumptively capable  
of causing an adverse effect or a significant adverse effect under the E.P.E. Act. It remains an  
element of the case which must be proven by the Crown.  
[639] I conclude that the words “may cause” in the E.P.E. Act therefore require more than  
mere capability to cause either a significant adverse effect under section 98 or an adverse effect  
under section 99. In my view the standard must be nothing less than a probability or a likelihood  
of an actual or a future result or consequence, which under section 98 must be a significant  
adverse effect, and under section 99 must be an adverse effect. For the defendant to be found  
guilty of Count 1, the Crown must prove that the releases, if they did not cause a significant  
adverse effect beyond a reasonable doubt, more likely than not in the future will cause a  
significant adverse effect. For the defendant to be found guilty of the remaining counts, the  
Crown must prove that the releases, if they did not cause or are not causing an adverse effect  
beyond a reasonable doubt, more likely than not in the future will cause an adverse effect.  
G.  
“Adverse Effect / Significant Adverse Effect”  
[640] In order for the Crown to prove that the defendant polluted contrary to section 98(2) of  
the E.P.E. Act, it must prove that the consequence of the act of pollution, whether actual by  
proof beyond a reasonable doubt or potential in the future by proof according to a standard of  
Page: 140  
probability or likelihood, is “a significant adverse effect”. In order for the Crown to prove that  
the defendant failed to report contrary to section 99 of the E.P.E. Act, it must prove that the  
consequence of the act of pollution, whether actual by proof beyond a reasonable doubt or  
potential in the future by proof according to a standard of probability or likelihood, is “an  
adverse effect”  
[641] An “adverse effect” is defined by the E.P.E. Act as:  
"adverse effect" means impairment of or damage to the  
environment, human health or safety or property;  
[642] There is no corresponding statutory definition in the E.P.E. Act of either term  
“significant” or “significant adverse effect”.  
[643] It is clear that the Legislature contemplated the possibility of three levels of result or  
consequence flowing from an act of pollution: an “effect”, an “adverse effect”, and a “significant  
adverse effect”. It might be argued that it contemplated a fourth: “no effect”.  
[644] It is not enough to establish culpability for the Crown to prove an effect. It must prove  
more. For instance, in the case of human health or safety, it is not enough that the Crown prove  
that a person’s body chemistry in some way changes or more likely than not in the future will  
change. The Crown must prove that such change impaired or damaged or probably will impair or  
damage that person’s health or safety, even for a finding of a mere “adverse effect”. Just as the  
taking of illegal drugs will probably impair or damage a person’s health or safety, so will the  
taking of properly prescribed drugs, while it may change the chemistry of the body of that  
person, probably not impair of or damage that person’s health or safety. Indeed, one can presume  
that with respect to pharmaceuticals, the object of the effect intended is the very opposite.  
[645] Further, not every “adverse effect” will meet the test of being “significant”.  
[646] As to an adverse effect relating to the environment, I have noted that Hansen’s opinion  
was not expressed in the context of the proven facts of the instant case. As noted, from the start  
he assumed a quantity of the pollutant released more than 50% than could have been released  
had it all been released. Not all of it was in fact released. What has been proven to have been  
released were a number of drops. There is no suggestion that he was aware of or factored in his  
opinion the possibility than there was a clean up by the defendant of the stands where drops had  
landed which clean up was treated after August 3 as a clean up of hazardous waste for the  
purposes of handling and disposal. The evidence indicates that such is in fact what occurred.  
[647] There is no evidence that any part of the pollutant which was in liquid form, remained in  
the air in some fashion. The evidence is that the pollutant landed on people to the limited extent  
described, or on the Stadium stands, where the concrete absorbed so well that it could not be  
cleaned by environmental remediation, but ultimately was sealed as a remediation measure to  
satisfy AEP.  
Page: 141  
[648] Those factors, together with the already discussed problems I have with Hansen’s  
evidence, are such that I am unable to attach any weight to his vague and general assertions  
about an environmental impact on the facts of the instant case.  
[649] Birkholz did not give an opinion on whether there was an environmental impact.  
[650] Willes concluded that there was no environmental effect.  
[651] As to an adverse effect to human health or safety, I rejected the evidence of both Hansen  
and Birkholz as being reliable in assisting me in concluding that there was a risk of any  
impairment of or damage to human health or safety. I much prefer the evidence of Willes in  
assisting me to determine the issue of whether there would be any risk of impairment of or  
damage to human health or safety of the spectators who did in fact come into contact with the  
pollutant or who might have come into contact with the pollutant in the instant case.  
[652] On the evidence before me I conclude that not only is there no probability or likelihood  
of an adverse effect on the human health or safety of those persons, there is no real possibility of  
any adverse effect. Even if there were a real possibility, in my view this is a proper case for the  
application of the de minimis principle, under which the Legislature is presumed not to have  
intended to attach penal consequences to trivial or minimal violations of a provision under the  
maxim, de minimis non curat lex, (the law does not concern itself with trifles).  
[653] On the basis of the foregoing, I find that the Crown has failed to prove the statutory  
threshold of either an “adverse effect” or a “significant adverse effect”, and for these reasons  
alone all counts are dismissed.  
H.  
Obligation to Report Under Section 99 of the E.P.E. Act  
[654] As has been noted, section 99 of the E.P.E. Act obliges the reporting of releases of  
pollutants into the environment. Subsection (1) imposes the duty on polluters. Subsection (2)  
imposes the duty on persons having control over the polluting substances. The two subsections  
differ as to when that duty arises. Section 99 provides:  
99(1) A person who releases or causes or permits the release of a  
substance into the environment that has caused, is causing or may  
cause an adverse effect shall, as soon as that person knows or  
ought to know of the release, report it to  
(a)  
the Director ...  
(2)  
The person having control of a substance that is released  
into the environment that has caused, is causing or may cause an  
Page: 142  
adverse effect shall, immediately on becoming aware of the  
release, report it to the persons referred to in subsection (1)(a), ...  
1.  
Section 99(2)  
[655] The only case interpreting section 99 of the E.P.E. Act, is the already referred to Shell  
Canada Ltd, supra, case. In that case a toxic pesticide was used by Shell in its sour gas plant to  
remedy a microbiological problem. The mixture created for that purpose was discharged into the  
sewer system and eventually into a creek. A bioassay test of the discharge, using fish to  
determine the level of toxicity of the discharge, was conducted by taking a sample for testing  
which was forwarded to a laboratory. The test results came back to Shell as negative. A second  
bioassay sample was taken and couriered to the laboratory for analysis. The second analysis and  
written report of that analysis indicated that within 48 hours all the fish had died.  
[656] The written test report of the second analysis was mailed to Shell as well as a facsimile  
copy. The facsimile copy was not received. The mailed report was received three days later by  
Shell, but the person responsible for receiving the report on behalf of Shell, filed it without  
reading it. It was not reviewed until some 13 days later when that person retrieved it for the  
purpose of preparing a monthly report. In that 13-day time frame there were further discharges  
into the creek on four days.  
[657] Shell was charged with contravening section 99(2) of the E.P.E. Act. Shell argued that  
the obligation to report under section 99(2) arose only when it had knowledge of both the act of  
release and of the adverse effect; and that recklessness as to learning about the effect was  
insufficient to found a conviction. That argument was accepted by Kent, J. who said at paras. 34  
to 37:  
[34] This count turns upon the meaning of "immediately upon  
becoming aware". The facts are not disputed. The act which the  
Crown complains of is the failure of the Shell employee to read the  
laboratory report when it arrived. Such an act imports the  
requirement of attributed knowledge, which is ordinarily invoked  
by the words "ought to". For example, s. 99(1) uses the phrase "as  
soon as that persons [sic] knows or ought to know of the release".  
Section 101 uses the phrase "as soon as that person becomes aware  
or ought to have become aware".  
[35] The Crown argues that because this offence is one of strict  
liability, to hold that there must be actual knowledge would be to  
find that there must be mens rea, which is not a requirement in  
proving a strict liability offence. That argument misses the point.  
For a strict liability offence, the Crown need only prove the act.  
The act in these circumstances is the failure to report. The  
requirement under s. 99(2) is to report immediately upon becoming  
Page: 143  
aware. In this case, the Crown cannot prove the act of failing to  
report because the Shell employee did not have the requisite  
knowledge.  
[36] The Crown posits that by holding that there must be actual  
knowledge for a conviction under s. 99(2), a person having control  
of a substance has a less onerous duty than a person under s. 99(1),  
who does not have control of the substance, because the latter  
section merely requires attributed knowledge. That interpretation,  
she argues, is illogical. First, I do not accept that it is necessarily  
illogical. It is sensible to hold the person who causes the release (s.  
99(1)) to a higher standard than the person in control of the  
substance (s. 99(2)). Secondly, there is a clear difference in  
wording between the two subsections. One clearly refers to  
attributed knowledge; the other clearly does not. That difference  
cannot be ignored. The result is that until the Shell employee had  
knowledge of the test results which showed an adverse effect, there  
was no actual knowledge of such adverse effect. I must presume  
that the legislature intended s. 99(1) and s. 99(2) to have different  
objectives when it used different words in each.  
[37] The Crown claims that the knowledge referred to in the  
requirement to report upon becoming aware, is knowledge of the  
release itself, not knowledge of the release which had caused, is  
causing or may cause an adverse effect. That interpretation would  
render meaningless the words “had caused, is causing or may  
cause”. If the object of s. 99(2) is to require the reporting of every  
release, as the Crown suggests, then these words need not be there.  
The Crown’s interpretation cannot be adopted.  
[Emphasis mine]  
[658] Apart from Kent, J.’s assessment of the logic of counsel’s argument, any possible illogic  
has since been eliminated by a legislative amendment to subsection (1), removing the phrase  
“other than the person having control of the substance”, as has already been noted in these  
Reasons. There is now absolutely nothing illogical about the requirement of a lesser level of  
knowledge on the part of the polluter under subsection (1) than on the part of the person who  
merely has control of the substance under subsection (2).  
[659] While it matters not that I agree with Kent, J., and I do, I am bound by her decision, the  
ratio of which is that under section 99(2) of the E.P.E. Act, until a defendant has actual  
knowledge of both the release and of an actual adverse effect having occurred, there is no duty to  
report. Knowledge must go beyond the mere act of release to include knowledge of the actual  
consequence of that release. For purposes of my analysis in the instant case, it matters not if the  
Page: 144  
ratio were even wider, to include knowledge as to either an actual or a probable future adverse  
effect.  
[660] Crown counsel argued that Shell Canada Ltd. is distinguishable from the instant case  
because in the instant case the substance is PCBs, and counsel referred to the next paragraph in  
Shell Canada Ltd., para. [38], where Kent, J. said:  
[38] The Chem-Security (Alberta) Ltd. case is distinguishable.  
The trial was truncated because there was no defence called. A  
finding of guilt was made on the basis of an Agreed Statement of  
Facts. Although the trial judge's comments were made during the  
sentencing phase, I conclude from these remarks that the trial  
judge was satisfied that the extreme danger of PCBs was well-  
known to the accused so that a release would automatically result  
in adverse effect.  
[661] That does not distinguish Shell Canada Ltd. from the instant case. First, the quoted  
paragraph is obiter. Second, I have had the benefit of reading the Agreed Statement of Facts in  
that case, reported as R. v. Chem-Security (Alberta) Ltd. (1998) 29 C.E.L.R. (N.S.) 60 (Alta.  
Prov. Ct.). The Agreed Statement of Facts was provided to me by Crown counsel, who was also  
Crown counsel in Chem-Security.It is evident from a close reading of that case and its Agreed  
Statement of Facts, that the release which was the subject of the section 99(2) charge, was  
known by Chem-Security to contain elevated PCB emissions. That knowledge came from  
laboratory tests performed by Chem-Security itself for the very specific purpose of determining  
whether a particular exhaust flue might be the source of measured fugitive PCB emissions in the  
environment outside Chem-Security’s facility. Moreover, both the release and the test results  
showing the presence of PCB emissions were known by Chem-Security for months before they  
were communicated to an AEP Director. Interestingly enough, the offence charged Chem-  
Security with failing to report from the date that the laboratory test results were available to it,  
and not from a week earlier when the samples were specifically taken to determine the presence  
of PCB emissions. The case therefore actually turned on when the test results were known to  
Chem-Security.  
[662] I also note that in Chem-Security the extreme danger of PCBs was well known to Chem-  
Security because its very mandate was to destroy and dispose of toxic waste including PCBs.  
Further, the emissions of PCBs were of their combustible by-products, dioxins and furans, which  
have a particularly high toxic equivalency. They were not PCBs in their liquid state. The release  
was directly into the air surrounding the Chem-Security facility. That emission would reasonably  
be expected to be a continuing emission until certain changes to the facility were carried out.  
Indeed, as was noted in the case, the irony was that Chem-Security decided on the basis of those  
test results to make those changes, and it was the making of those changes which led to a  
significantly greater release which in turn led to the discovery of the earlier release and Chem-  
Security’s failure to report that earlier release.  
Page: 145  
[663] Moreover, the apparent suggestion by Crown counsel in Shell Canada Ltd. that the  
Legislature intended that all releases be reported without reference to the consequence of the  
release, is not supported by section 106 of the E.P.E. Act which provides for potential  
Ministerial exemptions from reporting requirements. It says:  
106  
The Minister may make regulations  
(a)  
(b)  
classifying releases for the purposes of this Division  
and exempting any release or any class of release  
from the application of this Division, and attaching  
terms and conditions to any such exemption;  
respecting the making of a written report under  
section 100(2) and its contents and providing for the  
waiver of a requirement to make a written report  
where in the opinion of the Director no adverse  
effect is likely to occur as a result of the release or  
the adverse effect caused by the release has been  
adequately controlled.  
[664] The reality is that the Minister has issued exemptions from reporting releases under the  
Environmental Protection and Enhancement Act Release Reporting Regulation, AR 117/93,  
which provides:  
2
Sections 99 to 101 of the Act and this Regulation do not  
apply  
(a)  
to releases of substances that are regulated  
by the Oil and Gas Conservation Act or any  
regulation made under that Act, the  
Dangerous Goods Transportation and  
Handling Act or any regulation made under  
that Act, or an approval, licence or permit  
granted under any of those Acts or  
regulations, or  
(b)  
to releases of substances classified as Class  
1 dangerous goods (explosives) or Class 7  
dangerous goods (radioactive materials) as  
set out in the Schedule to the  
Transportation of Dangerous Goods Act,  
1992 (Canada).  
Page: 146  
3(1) Subject to section 2(a), where a release of a substance  
falling within the Class and Division set out in Column I of Table  
1 in Part IX of the Transportation of Dangerous Goods  
Regulations (SOR 85/77) under the Transportation of Dangerous  
Goods Act, 1992 (Canada) occurs and the release has caused, is  
causing or may cause an adverse effect, sections 99 to 101 of the  
Act and this Regulation apply in respect of the release only if  
(a)  
the release is at or in excess of the quantities  
or levels set out for the substance in Column  
II of that Table,  
(b)  
(c)  
the substance is released into a watercourse  
or into groundwater or surface water, or  
the substance is classified as Class 2  
dangerous goods.  
(2)  
Subsection (1)(b) and (c) apply regardless of whether the  
quantity or level of the release is at or in excess of the levels set  
out in Column II of the Table. ...  
[665] It is clear that it is not the object of section 99(2) to require the reporting of every release.  
Not only is reporting exempted for certain substances regulated under other provincial  
legislation, it is exempted in the case of certain substances as regulated by federal legislation  
even where there has actually been an adverse effect. An examination of the Transportation of  
Dangerous Goods Regulations (SOR 85/77) passed under the Transportation of Dangerous  
Goods Act, 1992 (Canada) and specifically Column I of Table 1 in Part IX, reveals that even the  
release of PCBs which have caused or are causing an adverse effect are exempt from release  
reporting obligations under section 99 of the E.P.E. Act provided they do not exceed a particular  
concentration.  
[666] In the instant case, until the defendant received the results of the laboratory analysis on  
August 9, it had no actual knowledge of the nature of the substance of any of the releases,  
namely that the substance contained a pollutant, PCBs, let alone actual knowledge as to the  
concentration of the pollutant in that substance. Moreover, there was a laboratory analysis of  
only one of the ruptured capacitors, that being one of the capacitors involved in either the August  
3 or 4 incident. On the basis of that alone, it is my view that August 9 was the earliest time that it  
could be said that the defendant was aware of any release and therefore became obliged to make  
a report under section 99(2) relating to either of the August 3 or August 4 releases. For those  
reasons alone, the Crown has failed to establish that the defendant, at any time before making the  
report it did on August 9, contravened section 99(2) with respect to either incident of August 3 or  
August 4 which are the subject of the charges in Counts 3 and 5.  
Page: 147  
[667] I reach the same conclusion with respect to the August 8 release, although for different  
reasons. It was not reported until August 10. While I would have expected that it would have  
been reported at the same time as the August 3 and August 4 releases on August 9, as a simple  
matter of expediency, and while it may not have been reported at that time as a matter of mere  
oversight, the fact remains that there is no evidence that the defendant at that time actually knew  
the precise nature of the substance of that release or again for that matter, the concentration of  
any pollutant in that substance. It did not know the nature until after laboratory analysis of  
samples of the substance were taken from the Stadium stands and those samples analyzed for the  
nature of the substance. That was well after August 10 when the August 8 incident was disclosed  
by Nicoll in his discussions with the AEP Director, which disclosure could be considered a  
report under section 99(2).  
[668] I observe that even now, because of the issues I have discussed relating to continuity in  
the handling of the capacitors, I do not know what the PCB concentration was in the substance  
released on August 8, or for that matter the substance released in the other capacitor involved in  
the August 3 or August 4 release which was not analyzed. In addition, there is evidence that as  
far as the defendant knew, and knows today, there were no drips on any spectator in the August 8  
incident, and the cleanup was handled by the defendant after August 3 as if the drops which  
landed in the Stadium did contain PCBs. For these reasons alone, the Crown has failed to  
establish that the defendant, at any time before making the report it did on August 10,  
contravened section 99(2) with respect to the incident of August 8 which is the subject of the  
charges in Count 9.  
[669] However, there is an additional reason why the Crown has failed to establish that the  
defendant contravened section 99(2) in the case of the August 3, 4 and 8 releases, which are the  
subject of Counts 3, 5 and 9. That reason stems from the fact that not only before, but even after  
August 10, the defendant had no knowledge of an adverse effect, whether potential or actual.  
Indeed, as late even as August 10, the defendant’s knowledge was precisely the contrary, on the  
basis of inquiries it made for that very purpose. Even now the defendant continues to maintain  
that there was no adverse effect.  
[670] That is the case whether one accepts either a narrow or broad ratio in Shell Canada Ltd.  
[671] In the result, I conclude that the Crown has failed to prove beyond a reasonable doubt  
that the defendant contravened section 99(2) by failing to report the releases of August 3, 4 and  
8, and accordingly, Counts 3, 5 and 9 are dismissed for those reasons. Had I concluded that there  
had been a release on August 5, I would have come to the same conclusion with respect to that  
incident, and likewise dismissed Count 7 for the same reasons.  
2.  
Section 99(1)  
[672] That does not determine the issues of what are the knowledge requirements under section  
99(1) of the E.P.E. Act, and whether the defendant, had it been a polluter contrary to my earlier  
stated conclusions in these Reasons, failed to report as it was required to do under subsection (1).  
Page: 148  
[673] The first issue to consider under section 99(1), is whether the attributed knowledge  
applies only to the act of release, or whether it also applies to the consequence of adverse effect.  
[674] While the person who causes a release should be held to a higher level of accountability  
for a failure to report, the delict is still the failure to report. A higher level of accountability is in  
my view achieved by requiring the person actually responsible for the act of release, to report it  
in those circumstances where, although that person may not have known of the act of release,  
that person ought to have known of the act of release.  
[675] It is my opinion that attributed knowledge does not go any further, for the same reasons  
mentioned by Kent, J. in para. [34] of Shell Canada Ltd. Otherwise, a person would be required  
to report almost every release of any substance with any possible potential for an adverse effect.  
That too would render meaningless the words “had caused, is causing or may cause”. If the  
object of section 99(1) is to require the reporting of every attributed consequence of an act of  
release, then those words need not be there for the purpose of either section 99(1) or section  
99(2). Further, as has already been noted, section 106 of the E.P.E. Act contemplates exempting  
the reporting of releases; pursuant to which authority even the releases of PCBs where there have  
been adverse effects are exempted from reporting under certain circumstances.  
[676] I conclude that section 99(1) is no different than section 99(2) in terms of there being a  
requirement to report only when there is actual knowledge of the actual or probable consequence  
of that release.  
[677] If I am correct that the attributed knowledge goes no further than the act of release, and in  
particular does not go to attributing knowledge of the consequence, then the polluter is not  
obliged under section 99(1) to make a report until the polluter knows the consequence of the  
pollution. In the instant case the defendant is not culpable under section 99(1) for failing to  
report before it knew of the consequence for the same reasons as it is not culpable under section  
99(2).  
[678] Assuming however that I am incorrect in that analysis, and the attribution of knowledge  
applies to the consequence of the act of release, I must consider the second issue, namely, when  
ought the defendant to have known the consequence of the release. This second issue depends  
upon two scenarios. The first scenario is where, as I have found in the instant case, there is no  
consequence, that is to say, there is no adverse effect.  
[679] Actual or constructive knowledge about something in my view presupposes the reality of  
that something. One can only have attributed or constructive knowledge of an event or a  
condition, if that event or condition actually exists. Certainly, absent the clearest of language in  
penal legislation, it seems to me that it would be absurd to attribute knowledge of something  
which does not exist.  
Page: 149  
[680] Accordingly, if there is a finding that there was no adverse effect, either actual or  
potential, as I have made in the instant case, there cannot be attributed or constructive knowledge  
of such an adverse effect. The polluter is required to report only where the polluter knew or  
ought to have known of the consequence. Absent the consequence, there is no need to report.  
[681] I am confident the Legislature did not intend that reports would be required to be made  
concerning all acts of release, including acts of release where, as it turns out in a particular case,  
there was no consequence. While it may be objected that a polluter may escape liability for  
failing to report acts of pollution which have only a possibility or an unrealized potential for an  
adverse effect, only because as it happens in the end there is no consequence, that is a risk that  
the polluter must weigh.  
[682] I now address the second scenario, where there is as it turns out a consequence, assuming  
that in the instant case I am incorrect in concluding that there was no adverse effect. When then,  
assuming that there was an actual or potential adverse effect, ought the defendant have known of  
that consequence so that the defendant was obliged to report it; and specifically ought the  
defendant to have known of the consequences of those releases before they were reported to the  
Director, on August 9 in the case of the August 3 and August 4 releases, and on August 10 in the  
case of the August 8 release?  
[683] The answer to those questions involves an assessment of what the defendant did know,  
when the defendant came to that knowledge, what the defendant did not know, what the  
defendant should have known and when the defendant should have known what it did not know.  
[684] In the particular circumstances of this case, I find the following factors relating to the  
defendant’s knowledge relevant:  
(a)  
the defendant did not know before the Enviro-Test analysis  
results were received by it on the morning of August 9, that  
the substance involved in any of the releases, insulating oil,  
was toxic, because the defendant did not know that it  
contained PCBs, only that it probably contained PCBs;  
(b)  
(c)  
(d)  
the defendant did not know before receiving those Enviro-  
Test analysis results, the concentration of PCBs in the  
substance involved in any of the releases;  
the defendant knew at all times that at most only a few  
drops of the substance involved in any of the releases, had  
fallen on any particular spectator;  
the defendant knew before August 10 of only three  
spectators on whom the substance had dropped - one  
spectator in the August 3 release, two spectators in the  
Page: 150  
August 4 release and no spectator in the August 8 release -  
and that only one of those spectators (the one in the August  
3 release) had the drops land on his skin;  
(e)  
(f)  
the defendant was advised by noon on August 3, and  
several times thereafter, by its internal occupational and  
health experts that even if the substance contained PCBs,  
the single occurrence dermal exposure would not cause a  
health or safety problem, particularly if the skin were  
washed; and  
in the case of the only spectator whose skin the defendant  
was aware had been exposed to the substance, the  
defendant on August 4 advised the spectator to wash his  
skin.  
[685] There is nothing in the evidence to indicate that at any time before the results of the  
Enviro-Test analysis were delivered to the defendant on the morning of August 9, that the  
defendant should have known sooner than it did that there was anything more than a probability,  
(or even “a high probability” whatever that may mean), that there were PCBs in the substance  
released. Had there been no PCBs or other toxin in the substance, there would have been no need  
to report. That in my opinion is relevant to attributed knowledge.  
[686] There is nothing in the evidence to indicate what the PCB concentration in the insulating  
oil might reasonably have been anticipated to be, before the Enviro-Test analysis results were  
delivered. Those results, as to concentration, certainly surprised the defendant. They seem as  
well to have surprised the AEP personnel who were involved in the subsequent investigation.  
Had the PCBs been below a certain concentration, there would have been no need to report, as  
has been discussed already in these Reasons. That in my opinion is relevant to attributed  
knowledge.  
[687] The defendant was not wilfully blind as to the nature of the substance or its properties,  
including its concentration. It attempted to ascertain more specific information about those  
matters over the internet, and by seeking relevant information from other electrical parts’  
suppliers once the defendant ascertained early in its inquiries that the manufacturer of the  
ruptured capacitors had gone out of business.  
[688] In my view the delay in laboratory testing over the long weekend was reasonable in the  
circumstances, in that the defendant was satisfied that there was no health or safety risk to  
spectators who were exposed to drops landing on their skin, particularly if they washed. As to  
the reasonableness of that understanding, it seems to me from the testimony of Willes, such  
understanding of risk was in the circumstances appropriate. That I may have erred in concluding,  
after considering conflicting expert testimony in a very complicated issue, that there was no  
Page: 151  
adverse effect, does not mean that the conclusions reached by the defendant at the relevant time  
were unreasonable.  
[689] This interpretation does not in my view afford a polluter an opportunity to deliberately  
avoid or delay reporting by delaying any testing of the substance released, so as to frustrate the  
purpose of reporting. If the polluter knows with some degree of certainty or conclusiveness what  
is in fact the amount of the substance, its nature, its concentration, its level, its rate of release, or  
any other circumstance, which would lead a reasonable person to conclude that there is a concern  
about the health or safety of a particular person or persons generally, or other environmental risk,  
such conduct would amount to wilful blindness. There is not a scintilla of evidence of such  
conduct in the instant case.  
[690] I have no difficulty in concluding that a reasonable person in the position of the  
defendant, in all of the circumstances, ought not to have known before reporting to the Director  
on August 9 that the released substance in the incidents of August 3 and 4, has caused, is causing  
or may cause an adverse effect, even if I am incorrect in concluding that there was no adverse  
effect.  
[691] While it might have been preferable that the defendant had reported to AEP on August 9  
sooner in the day than it actually did after receiving the Enviro-Test analysis results, I do not in  
the circumstances of this case consider the delay of only a few hours such a delay that the report  
could not be characterized as either: “as soon as” the defendant knew or ought to have known  
under section 99(1); or “immediately” under section 99(2) of the E.P.E. Act . The defendant had  
a chain of authority and the decision made to report was one which in the circumstances was  
made and executed reasonably promptly once the results of the Enviro-Test analysis were  
provided to it.  
[692] I have greater difficulty in reaching the same conclusion with regard to the incident of  
August 8. My difficulty centres on the fact that there was no mention of this release on August 9,  
when the releases of August 3 and 4 were reported. However, on the basis that the evidence  
indicates that this incident occurred after the spectators had left the Stadium, and the substance  
would not therefore have come into contact with a person, I am left with a reasonable doubt that  
the defendant, in all of the circumstances, before disclosing the incident of August 8 to the AEP  
Director on August 10, ought to have known that the substance in that incident has caused, is  
causing or may cause an adverse effect.  
[693] In the result, I conclude that the Crown has failed to prove beyond a reasonable doubt  
that the defendant contravened section 99(1) by failing to report the releases of August 3, 4 or 8,  
and accordingly, Counts 2, 4 and 8 are dismissed for those reasons. Had I concluded that there  
had been a release on August 5 or 6, I would have come to the same conclusion with respect to  
those incidents, and likewise dismissed Count 6 for the same reasons.  
I.  
Due Diligence Defence to Section 98(2) Charge  
Page: 152  
[694] The defence of due diligence is specifically available to the defendant with respect to all  
the charges against it. Section 215 of the E.P.E. Act provides:  
215  
No person shall be convicted of an offence under section ...  
98(2), 99(1) or (2), ... or ... if that person establishes on a balance  
of probabilities that the person took all reasonable steps to prevent  
its commission.  
[695] It is the same as the common law defence of due diligence in strict liability, regulatory  
offences, the test of which was discussed by Dickson, J. in Sault Ste. Marie at pp. 1325-26.  
In this doctrine it is not up to the prosecution to prove  
negligence. Instead, it is open to the defendant to prove that all due  
care has been taken. This burden falls upon the defendant as he is  
the only one who will generally have the means of proof. This  
would not seem unfair as the alternative is absolute liability which  
denies an accused any defence whatsoever. While the prosecution  
must prove beyond a reasonable doubt that the defendant  
committed the prohibited act, the defendant must only establish on  
the balance of probabilities that he has a defence of reasonable  
care.  
I conclude, for the reasons which I have sought to express,  
that there are compelling grounds for the recognition of three  
categories of offences rather than the traditional two:  
1.  
Offences in which mens rea, consisting of some positive  
state of mind such as intent, knowledge, or recklessness,  
must be proved by the prosecution either as an inference  
from the nature of the act committed, or by additional  
evidence.  
2.  
Offences in which there is no necessity for the prosecution  
to prove the existence of mens rea; the doing of the  
prohibited act prima facie imports the offence, leaving it  
open to the accused to avoid liability by proving that he  
took all reasonable care. This involves consideration of  
what a reasonable man would have done in the  
circumstances. The defence will be available if the accused  
reasonably believed in a mistaken set of facts which, if  
true, would render the act or omission innocent, or if he  
took all reasonable steps to avoid the particular event.  
These offences may properly be called offences of strict  
liability. Mr. Justice Estey so referred to them in Hickey's  
Page: 153  
case [(1976) 29 C.C.C. (2d) 23 (Ont. H.C.); rev'd 30 C.C.C.  
(2d) 416 (Ont. C.A.)].  
3.  
Offences of absolute liability where it is not open to the  
accused to exculpate himself by showing that he was free  
of fault.  
[Emphasis mine]  
[696] The British Columbia Court of Appeal in R. v. MacMillan Bloedel Ltd. (2002), 220  
D.L.R. (4th) 173 (B.C.C.A.) held that the focus of the inquiry into whether the defendant has  
established due diligence must be foreseeability of the actus reus of the offence charged, not on  
“the general foreseeability of environmental contamination” nor on “the foreseeability of the  
specific cause”.  
[697] In that case it was foreseeable that the pipes which leaked had a definite lifespan and that  
sooner or later they would deteriorate by simply wearing out. Moreover, there was no specific  
plan to replace pipes as they did wear out before they leaked. However, regardless of that, the  
pipes which did leak did so not because they simply wore out, but because of a specific and  
unforeseeable condition. Speaking for the majority, Smith, J.A. said that the fact that the leak  
occurred as a result of an unforeseeable cause was determinative of the issue in favour of the  
defendant. She went on to discuss Sault Ste. Marie, and after quoting the above underlined  
sentence said at paras. 47 and 48:  
[47] Thus, there are two alternative branches of the due  
diligence defence. The first applies when the accused can establish  
that he did not know and could not reasonably have known of the  
existence of the hazard. The second applies when the accused  
knew or ought to have known of the hazard. In that case, the  
accused may escape liability by establishing that he took  
reasonable care to avoid the "particular event". This point is  
elucidated in the reasons of Dickson J. in Sault Ste. Marie, at pp.  
366, where, after referring to cases in which the offences turned on  
the unlawful status of a person or place, he said:  
In such cases, negligence consists of an  
unreasonable failure to know the facts which  
constitute the offence. It is clear, however, that in  
principle the defence is that all reasonable care was  
taken. In other circumstances, the issue will be  
whether the accused's behaviour was negligent in  
bringing about the forbidden event when he knew  
the relevant facts. Once the defence of reasonable  
mistake of fact is accepted, there is no barrier to  
Page: 154  
acceptance of the other constituent part of a defence  
of due diligence.  
[48] The important point to be drawn from this discussion is that  
whether the accused’s conduct was “innocent”, under the first  
branch of the defence, or whether the accused took “all reasonable  
steps”, under the second branch, must be considered in the context  
of the “particular event”.  
[698] Smith, J.A. spoke of the foreseeability to the defendant of the pipe leaking at para. 50:  
[50] ... Here, the "particular event giving rise to the charge" was  
the discharge of fuel on May 16, 1997 into Crabapple Creek from a  
leak in MacMillan Bloedel's underground pipes at Skidegate.  
Unlike the situation in the Imperial Oil case, the conditions that  
produced the leak were not carelessly created by MacMillan  
Bloedel. Further, MacMillan Bloedel did not know of the existence  
of the hazard -- it honestly believed that the pipes were sound.  
Moreover, the leak was not caused by ordinary corrosion, which  
on all of the evidence was not a reasonably foreseeable occurrence  
at that time, but by microbiological corrosion, which was not  
reasonably foreseeable at all. Accordingly, on the trial judge's  
findings, MacMillan Bloedel did not foresee and could not  
reasonably have foreseen the particular event. It follows, to adopt  
the language of the Sault Ste. Marie case, that MacMillan Bloedel  
"reasonably believed in a mistaken set of facts which, if true,  
would render [its conduct] innocent", and, as well, that I disagree  
with my colleague's conclusion that the trial judge implicitly found  
that MacMillan Bloedel's belief was unreasonably held.  
Consequently, the trial judge ought to have dismissed the charge  
on the basis that MacMillan Bloedel had brought itself within the  
first branch of the due diligence defence, and he erred in law in  
failing to do so.  
[699] Smith, J.A. went on to hold that the defence of due diligence has two alternatives. At  
para. 51 she observed:  
[51] It follows, in my opinion, that the trial judge erred further  
in embarking upon a consideration of the second branch of the  
defence of due diligence and in concluding that MacMillan  
Bloedel had failed to bring itself within it. As I have already noted,  
the second branch is an alternative available to an accused who  
cannot bring himself within the first branch. As Dickson J.  
observed in the passage at p. 366 of his reasons that I have quoted  
Page: 155  
above, once the defence of reasonable mistake of fact is accepted  
the defence of due diligence is established.  
[700] As to causation, Smith, J.A. concluded at para. 52:  
[52] Moreover, and in any event, the trial judge erred in his  
consideration of the second branch of the defence when he  
concluded that MacMillan Bloedel had failed to prove that it took  
all reasonable care to prevent the spill. It is irrational to say that an  
accused may escape liability for an event that was not reasonably  
foreseeable by taking all reasonable steps to avoid it. One cannot  
consciously take steps to avoid an event that one cannot foresee. A  
reasonable step is one for which a reason can be assigned. No  
reason could have been assigned for a plan that would have  
satisfied the second branch of the defence of due diligence in the  
circumstances here. One could not say, without the benefit of  
hindsight, that a plan to replace the pipes at any specific time  
would have been a reasonable step to avoid the escape of fuel into  
the creek on May 16, 1997, because no one could reasonably  
foresee the happening of that event. It follows, in my respectful  
view, that the lack of a plan by MacMillan Bloedel to replace these  
pipes at a particular time is irrelevant, and the trial judge erred in  
founding liability on this ground.  
[701] The first branch of the test of due diligence requires an inquiry as to whether the event  
was even foreseeable. It is important to emphasize that it is a reasonable belief, neither a  
speculative belief nor a belief based on hindsight, of a mistaken set of facts. As I have already  
said in these Reasons, in my view the defendant could not before August 3 reasonably foresee  
either the extraordinarily unusual use of the lights, or a resulting capacitor rupture or a  
consequent release of insulating oil. The defendant had never experienced before August 3 any  
capacitor ruptures or release of insulating oil. It did not know that the insulating oil contained  
PCBs or a toxic substance, let alone what the concentration might be. Nor was there anything in  
my view which reasonably should have led the defendant to anticipate any such occurrences or  
the resulting chain of events.  
[702] There was absolutely nothing to warn of the first rupture or resulting release. As to the  
second rupture and resulting release, in my view the first rupture and resulting release were so  
unusual that the defendant was justified in concluding that the first occurrence was a one-time,  
random event or one-off. Significant to the issue of foreseeability relating to the second rupture  
and release is the fact that they occurred within only 18 hours of the first release. Hence with  
respect to the releases of August 3 and August 4, I am satisfied that the defendant has established  
the first branch of the due diligence test; the defendant reasonably believed in a mistaken set of  
facts which, if true, would render innocent any act or omission on its part relating to those  
incidents.  
Page: 156  
[703] With respect to the release of August 8, the second branch of the defence of due diligence  
comes into play because further ruptures and resulting releases were foreseeable, after August 4.  
Indeed they were foreseen by the defendant. To succeed in the second branch the defendant must  
establish on a balance of probabilities that it used reasonable care, given all of the surrounding  
circumstances, to ensure that foreseeable events would not pollute the environment, so as to meet  
the second branch of the due diligence test. It is important to note that what is mandated is that  
the accused take all reasonable steps to avoid the particular event. The standard the defendant  
must meet is not perfection. The defendant is not an insurer. See R. v. B.H.P. Diamonds Inc.,  
[2003] 6 W.W.R. 282 (N.W.T.S.C.).  
[704] Active steps were taken by the defendant to anticipate further releases, by attempting to  
reduce or eliminate the cause of the ruptures, by attempting to discover by a protocol of  
inspection any further ruptures and by the same protocol of inspection preventing any resulting  
releases. In fact the defendant was successful in all those endeavours. In particular at least one  
ruptured capacitor was discovered early the following week, where there was a release from the  
capacitor but not into the environment, until the rupture and release of August 8.  
[705] In my view the steps taken by the defendant after August 4 were reasonable and meet the  
test under the second branch of the due diligence defence.  
[706] With the hindsight that more than one spectator had insulating oil actually contact that  
person’s skin (as distinct from clothing), that the insulating oil did contain PCBs, that the  
concentration of PCBs in that insulating oil was as high as 30% or that it might even be as high  
as 100%, that the limited use of the lights which was thought to have been achieved would not in  
fact be honoured by the LOC, that even then there might not be enough of a shutdown to prevent  
further capacitor ruptures, or that the inspection protocol would not necessarily detect insulating  
oil about to be released into the environment, it may well be that the defendant could have done  
more to have prevented the release of August 8. But the defendant had no such hindsight, and as  
importantly as far as it was reasonably concerned, the situation was not one where there was a  
risk to the health or safety of persons or an environmental risk which might otherwise have  
suggested to the defendant that it act more drastically than it did.  
[707] The defendant might have been able to convince the LOC of the need for even more  
extended shutdowns than the 13 hours per day it ultimately achieved. It might have sealed the  
ballasts with caulking as it did after August 8. It might even have placed peat moss in the ballasts  
to absorb leaking from any pin holes in the so sealed ballasts as it did after August 12. The irony  
is that until the rupture and release on August 8, the defendant became to some extent the victim  
of its own success.  
[708] The steps taken by the defendant were incremental, gradual or escalating. I find it  
noteworthy that the steps taken after the AEP Director and investigator became involved,  
following which they provided not only guidance but instruction to the defendant, were similarly  
incremental, gradual and escalating - both in terms of preventing further releases and  
Page: 157  
remediation of the site. Not all the AEP recommended steps for that matter, were entirely  
successful in the first instance as to further releases or remediation. In my view reasonable  
persons, in the absence of compelling reasons to the contrary, generally act appropriately in  
anticipating problems by taking incremental, gradual or escalating steps, particularly where they  
seem to have worked. That measured steps may fall short of perfection does not mean that they  
are unreasonable.  
[709] I agree with what was said by Fitzpatrick, J. in R. v. Courtaulds Fibres Canada (1992),  
76 C.C.C. (3d) 68 (Ont. Ct. (Prov. Div.)) at p. 77:  
Reasonable care and due diligence do not mean  
superhuman efforts. They mean a high standard of awareness and  
decisive, prompt, and continuing action. To demand more, would,  
in my view, move a strict liability offence dangerously close to one  
of absolute liability.  
[710] In my view the defendant in this case acted with a high standard of awareness. The  
defendant’s response was decisive, prompt and continuing.  
[711] I am satisfied on a balance of probabilities that the defendant’s conduct meets the test of  
reasonableness in all of the circumstances.  
J.  
Due Diligence Defence to Section 99 Charges  
[712] The same due diligence analysis applies to the section 99 charges. With respect to  
reporting the releases of August 3 and 4, the defendant falls within the first branch of the due  
diligence defence at least until August 4. Until the August 4 release, there was nothing which  
occurred which would have made reporting foreseeable.  
[713] With respect to reporting after August 4, the second branch of the due diligence defence  
does come into play, since the foreseeability of a PCB release cannot be said to be unknown.  
However, in my view the steps taken by the defendant after August 4, with respect to its  
reporting obligations, were reasonable, and meet the test under the second branch of the due  
diligence defence regarding the releases of August 3 and August 4, for all of the all the reasons  
which have been discussed at length and which may be summarized in the next paragraph.  
[714] The defendant was aware of only one spectator having come into contact with the  
substance in the release of August 3, and the defendant made reasonable inquiries to ascertain, in  
all of the circumstances, the risk of harm assuming the substance did contain the suspected  
pollutant and satisfied itself that there were no risks. There is no evidence that there was an  
attempt to delay the testing of the substance. Having regard to those same circumstances there  
was no reason for urgency in testing the substance. Had there been reasonable urgency or any  
sense of urgency, the defendant might well have arranged for earlier testing, but the fact is there  
was no reason for, or a sense of any urgency.  
Page: 158  
[715] However, as to the reporting of the release of August 8, the defendant would in my view  
fail to meet the test of due diligence, if it were required to do so in order for the defendant to be  
found not guilty of contravening section 99(1) of the E.P.E. Act. It is my view that  
notwithstanding any reasons which, in law, would have justified the defendant in failing to report  
before it did in fact do so on August 10, that with the knowledge that the defendant had about the  
earlier releases, and in particular the results of the Enviro-Test analysis of the one ruptured  
capacitor showing that it contained PCBs of a 30% concentration, a reasonable person in the  
position of the defendant would have reported the release of the previous day when it reported  
the releases of August 3 and 4 on August 9. It did not and there is no explanation as to why it did  
not.  
IX.  
CONCLUSION AND DISPOSITION  
[716] As to Count 1, the Crown has failed to prove beyond a reasonable doubt two elements of  
the offence charged, namely, that the defendant polluted contrary to section 98(2) of the E.P.E.  
Act, those elements being: (1) that the defendant released or permitted the release of the  
substance, and (2) that the substance causes or may cause a significant adverse effect, the words  
“may cause” meaning a probable future adverse effect. Regardless of the failure by the Crown to  
prove those elements beyond a reasonable doubt, the defendant has made out the defence of due  
diligence.  
[717] As to each of Counts 2, 4 and 8 the Crown has failed to prove beyond a reasonable doubt  
two elements of the offence charged, namely, that the defendant as a polluter failed to report to  
the Director as required contrary to section 99(1) of the E.P.E. Act, those elements being: (1)  
that the defendant was a person who had released or caused or permitted the release of the  
substance, and (2) that the substance has caused, is causing or may cause an adverse effect, the  
words “may cause” meaning a probable future adverse effect. Moreover and additionally, I am  
satisfied that with respect to any of those releases, any obligation to report same which may have  
rested on the defendant, did not arise before the defendant did report such releases to the  
Director. As to the release of August 4, referred to in Count 4, I find that it was reported to the  
Director on August 9. In any event, the defendant has made out the defence of due diligence with  
respect to reporting on Counts 2 and 4.  
[718] As to Count 6 the Crown has failed to prove beyond a reasonable doubt three elements of  
the offence charged, namely, that the defendant as a polluter failed to report to the Director as  
required contrary to section 99(1) of the E.P.E. Act, those elements being: (1) that there was a  
release of a substance, (2) that the defendant was a person who had released or caused or  
permitted the release of the substance, and (3) that the substance has caused, is causing or may  
cause an adverse effect, the words “may cause” meaning a probable future adverse effect.  
Moreover and additionally, I am satisfied that with respect to any such release, any obligation to  
report same which may have rested on the defendant, did not arise before the defendant did  
Page: 159  
report such release to the Director. Regardless, the defendant has made out the defence of due  
diligence with respect to reporting.  
[719] As to each of Counts 3, 5 and 9 the Crown has failed to prove beyond a reasonable doubt  
one element of the offence charged, namely, that the defendant as a person having control over  
the pollutant failed to report to the Director as required contrary to section 99(2) of the E.P.E.  
Act, that element being that the substance has caused, is causing or may cause an adverse effect,  
the words “may cause” meaning a probable future adverse effect. Moreover and additionally, I  
am satisfied that with respect to any of those releases, any obligation to report same which may  
have rested on the defendant, did not arise before the defendant did report such releases to the  
Director. As to the release of August 4, referred to in Count 5, I find that it was reported to the  
Director on August 9. In any event, the defendant has made out the defence of due diligence with  
respect to reporting on all three counts.  
[720] As to Count 7 the Crown has failed to prove beyond a reasonable doubt two elements of  
the offence charged, namely, that the defendant as a polluter failed to report to the Director as  
required contrary to section 99(2) of the E.P.E. Act, those elements being: (1) that there was a  
release of a substance, and (2) that the substance has caused, is causing or may cause an adverse  
effect, the words “may cause” meaning a probable future adverse effect. Moreover and  
additionally, I am satisfied that with respect to any such release, any obligation to report same  
which may have rested on the defendant, did not arise before the defendant did report such  
release to the Director. Regardless, the defendant has made out the defence of due diligence with  
respect to reporting.  
[721] The defendant is acquitted of all charges.  
Heard commencing on the 5th day of January, 2004 to and including the 11th day of February,  
2004 and commencing again on the 1st day of March, 2004 to and including the 24th day of  
March, 2004.  
Dated at the City of Edmonton, Alberta this 17th day of February, 2006.  
J. Maher  
A Judge of the Provincial Court of Alberta  
Page: 160  
Appearances:  
Susan McRory,  
for the Crown  
Steven J. Phipps,  
for the Defendant Corporation  


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