By Tyler Marr

Judge finds city did not give fair process in alleged illegal dumping case

Jul 14, 2018 | 10:00 AM

A Queen’s Bench judge has ruled the City of Prince Albert denied fair process in making a decision when it decided to penalize C & D Septic following the company’s alleged illegal dumping into the sanitary sewer system. The company has pleaded not guilty to the accusations.

C & D provides septic tank services to clients in and around Prince Albert. In doing so, it, at times, uses facilities owned and operated by the city. It has previously deposited liquid sewage into the city’s wastewater treatment plant and the remaining solids into the landfill. These activities are permitted as long as C & D complies with the regulating bylaws. 

However, in early 2017, the city became concerned that C & D was allegedly illegally discharging into the sanitary sewer system. 

The city hired a private investigator to conduct surveillance. When it received a report from the investigator , the city had its solicitor, on July 14, 2017, serve C & D with notice that, “… effective immediately and until further notice in writing, C & D Septic Ltd. shall not be permitted access to the city’s wastewater plant septic receiving station or to the city’s landfill.”

The surveillance report was also sent to the Bylaw Enforcement Unit and C & D was charged with five violations of The Sanitary Sewer Bylaw. The company pleaded not guilty and a trial is set for October to resolve these matters.

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The letter also told the company if they wanted to “further discuss these matters in view of a resolution acceptable to the city, please have your counsel contact the writer.” A meeting did take place between the two parties, but no resolution was found.

But C & D later learned the city had sent a letter on July 18 to residents of the city not connected to the sewer system they would no longer be entitled to reimbursement of 50 per cent of the cost of having their septic tanks emptied per the Septic Hauling Rebate Program if they hired C & D to provide that service. The city testified this decision was made by the Director of Financial Services “with the concurrence of other city officials”. 

The judge found it was not clear in the Septic Hauling Rebate Program to what extent city administration had the authority to determine eligibility for the rebate or if this was to be decided by council or staff. There is also no avenue for appeal in the bylaw.

Because of all this, C & D applied to quash the city’s decisions on the grounds it did not engage in a fair process, that its decisions are unreasonable and that it acted in bad faith. 

The city argued, due to this, the decision was subject to judicial review. The judge agreed, but this drew questions on what level of procedural fairness needed to be employed by the city when making this decision.

The city argued its decision was only interim in nature, though it needed to take action immediately due to the dumping “threatening public health and risking damage” to infrastructure. It supported this position by noting the letter said “until further notice” and organized the August 10 meeting to come to a solution.

But the judge found the city did not offer a fair process for C & D at the August 10 meeting due to a number of factors. The judge said counsel for the city “employed great ingenuity” in their arguments, but pointed to the facts like how the Director of Public Works was not in attendance and that, with the meeting held on a without prejudice basis, no record or decision from that meeting was produced which would allow C & D the opportunity to have the fairness of the meeting or the decision reviewed as shortcomings. The judge further found the meeting was not an opportunity to appeal but rather “a meeting to negotiate a right of access.”

As such, the judge quashed the decision by the city to deny C & D access to its wastewater treatment facilities and landfill as well as its decision to deny the residents reimbursement under the Septic Hauling Rebate Program if they employ C & D.

As well, before making any decisions regarding the conduct of C & D and the consequences arising from that conduct, the city must provide notice to the company the authority upon which the proposed decision is based, the issues involved, evidence, how C & D can respond to the allegations and the possible consequences or sanctions that will result. Where there is a dispute, the city must conduct a hearing where the witnesses shall be heard and cross-examined. The city also has to cover all legal costs for C & D Septic.

In a written statement to paNOW, City Manager Jim Toye said the city “has believed that it conducted itself fairly and appropriately with C & D Septic Ltd in all of the circumstances and are studying the decision. As bylaw enforcement charges are outstanding against C & D Septic Ltd and scheduled for trial in October, the city will reserve further comment at this time.”

Editor’s note: this story has been amended to clarify that C&D Septic are alleged to have practised illegal dumping into the city’s sanitary sewer system but such allegations have not been tested in court.

tyler.marr@jpbg.ca

On Twitter: @JournoMarr