


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Ontario
    Corp. 311578 (Dedrick Bros. Excavating Ltd.),
2012 ONCA 604

DATE: 20120914

DOCKET: C54746

Feldman, Sharpe and Ducharme JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Ontario Corp. 311578 operating as Dedrick Bros.
    Excavating Ltd.

Respondent

Brian Wilkie, for the appellant

Thomas A. Cline (Q.C), for the respondent

Heard: August 22, 2012

On appeal from the order of Justice
Gethin
    B. Edward of the Ontario Court of Justice dated September 12, 2011, dismissing
    the appeal from the acquittal entered by His Worship Justice of the Peace
    Richard Kivell dated February 17, 2011.

Feldman J.A.:

[1]

The respondent was charged under s. 7(1) of the
Aggregate Resources
    Act
, R.S.O. 1990, c. A.8 (the
ARA
), with operating a pit
    without a licence. The respondent was carrying out a contract with a local
    farmer in Norfolk County, whereby he was removing the top soil, levelling the
    sand knolls, selling the sand, then restoring the land with the top soil to
    make it arable for farming. Neither he nor the farmer had obtained a licence to
    operate a pit or quarry.

[2]

Section 7(1) of the
ARA
provides:

7(1) No person shall, in a part of Ontario designated under s.
    5, operate a pit or quarry on land that is not land under water and the surface
    rights of which are not the property of the Crown except under the authority of
    and in accordance with a licence.

[3]

There are several definitions in s. 1(1) of the
ARA
that are
    important for the analysis:

pit means land or land under water from which unconsolidated
    aggregate is being or has been excavated, and that has not been rehabilitated,
    but does not mean land or land under water excavated for a building or
    structure on the excavation site or in relation to which an order has been made
    under subsection (3);

excavate includes the preparation of land for excavation and
    removal of hills, sand dunes, knolls, stones and rocks other than metallic ores
    from the general surface of the ground;

aggregate means gravel, sand, clay, earth, shale, stone, limestone,
    dolostone, sandstone, marble, granite, rock or other prescribed material;

operate, when used in relation to a pit or quarry, means
    "work" and includes all activities associated with a pit or quarry
    that are carried out on the site;

rehabilitate means to treat land from which aggregate has
    been excavated so that the use or condition of the land,

(a)   is
    restored to its former use or condition, or

(b)   is
    changed to another use or condition that is or will be compatible with the use
    of adjacent land.

[4]

The parties proceeded before the Justice of the Peace by an agreed
    statement of facts. Together with other business activities, the respondent has
    been in the business of restoring agricultural land for the past 30 to 35
    years, never under the authority of a pit excavation licence. The respondent
    generally does not charge the farmer for this service because the respondent
    obtains the benefit of removing and selling the sand from the knolls that are
    levelled.

[5]

In this case, in the event that the farmer needed some of the sand at
    one of his other farms, he would pay the respondent to truck it there. The
    farmer estimated that once the rehabilitation of his land was complete, the
    value of his property would be increased by $2,000 per acre and the
    productivity of the land would also be enhanced. Although the farmer looks to
    the respondent for his expertise in rehabilitating the land, it is the farmer
    that makes the ultimate determination of what will take place on his land.

[6]

The Justice of the Peace acquitted the respondent, finding that because
    the respondent rehabilitates the land, the land is not a pit within the
    definition under the
ARA
.

[7]

On appeal to the Ontario Court of Justice, the court referred to s. 2 of
    the
ARA,
which sets out its purposes:

2. The purposes of this Act are,

(a)   to
    provide for the management of the aggregate resources of Ontario;

(b)   to
    control and regulate aggregate operations on Crown and private lands;

(c)  to
    require the rehabilitation of land from which aggregate has been excavated; and

(d)   to
    minimize adverse impact on the environment in respect of aggregate operations.

[8]

The court found that it was not the purpose of the
ARA
to
    regulate the type of activity where a farmer was simply trying to improve his
    farmland to better grow crops. He reasoned that because the respondents
    intent was to remove the sand, then to make the land useful for farming, i.e.
    to rehabilitate the land, the respondent was not operating a pit within the
    definition under the
ARA
.

[9]

Leave to appeal to this court was granted.

[10]

The
    Crown, represented by the Ministry of Natural Resources, submits that while
    sand is being excavated, and before the rehabilitation process is complete, the
    person doing the excavating is operating a pit within the definition. In
    response to the decision of the appeal judge that the
ARA
is not
    intended to cover farms, the Ministrys position is that there was no evidence
    that large-scale excavations of aggregate for agricultural purposes require
    less management than excavations for other purposes, or that their
    environmental impacts would be of a lesser magnitude. In this case, the
    restoration of the lands was an extensive project intended to take years.

[11]

The
    Ministry referred to s. 1(3) of the
ARA
, which is a ministerial
    exemption available when the primary purpose of the excavation is not the
    extraction of aggregate. In its factum, the Ministry stated that such an
    exemption would have been available in this case. However, in oral argument,
    counsel resiled from this position and indicated that the Ministry would likely
    have refused to grant such an exemption if the respondent had applied for one.
    Finally, the Ministry took the position that the respondent, not being a
    farmer, had only a commercial purpose and not a farming purpose for its activity.

[12]

The
    respondent submits that there are two issues on the appeal. Only the first was
    decided by the courts below. The first issue is, was there a pit within the
    definition under the
ARA
?  The second issue is, if there was a pit,
    whose pit was it?

[13]

On
    the first issue, the respondent submits that the establishment of a pit or
    quarry is primarily a land use issue governed by the
Planning Act
,
    R.S.O. 1990, c. P.13. The Official Plan of Norfolk County, which was passed in
    2006 and approved by the Minister of Municipal Affairs and Housing in December
    2009, designates the subject lands as agricultural land. The governing by-law
    does not permit the operation of a pit or quarry on lands zoned agricultural.
    However, it allows above-grade levelling of agricultural land to extend
    agricultural uses notwithstanding  the definition of a pit or quarry.
    Finally, s. 71 of the
Planning Act
provides that in the event of a
    conflict with another Act, the provisions of the
Planning Act
prevail.

[14]

The
    respondents position is that from an interpretative purpose perspective, it
    was not intended that the ordinary activities associated with farming require a
    pit licence. It argues that if the impugned activity on a farm requires a pit
    licence, so would excavating for tile drainage, the digging of irrigation
    ponds, excavating in order to clean up head lands and wind breaks, excavation
    for archaeological purposes, and the removal of rocks and stones from fields.
    He adds that the excavation of beach sand around cottages would also be subject
    to licencing.

[15]

Responding
    to the Ministrys submission that exempting these types of long-term farm
    rehabilitation projects would allow an aggregate producer to excavate any
    amount of aggregate uncontrolled, the respondent counters that the applicable
    by-law would preclude that degree of excavation. Furthermore,  the by-law
    prohibits a commercial use of land.

[16]

On
    the second issue, the respondent argues that if a pit licence is required, then
    it is the owner of the land who must obtain the licence. It is the owner who
    controls and directs the entire project. The respondent is there at the owners
    request and by his leave.

Analysis

[17]

The
    question in this case involves an exercise in statutory interpretation. The
    accepted modern approach is set out in Elmer A. Driedger,
Construction of
    Statutes
, 2nd ed. (Toronto: Butterworths, 1983), at p. 87, most recently
    referred to by the Supreme Court of Canada in
Euro-Excellence Inc. v. Kraft
    Canada Inc.
, 2007 SCC 37, [2007] 3 S.C.R. 20, at para. 2:

Today there is only one principle or approach, namely, the
    words of an Act are to be read in their entire context and in their grammatical
    and ordinary sense harmoniously with the scheme of the Act, the object of the
    Act, and the intention of Parliament.

[18]

It
    is clear that what the respondent was doing was excavating a pit within the
    grammatical and ordinary sense of the definition in the
ARA
. The
    respondent argues that the
ARA
should not be interpreted to include
    pits that are being excavated and that will be rehabilitated in order to
    improve farmland and not for the purpose of commercial aggregate production.
    The problem with that interpretation is that s. 1(3) provides a specific
    ministerial exemption where the primary purpose of the excavation is not for
    the production of aggregate. There would be no need for such an exemption if
    the licencing requirement did not apply,
prima facie
, to the
    particular excavation. Moreover, the intention to rehabilitate the excavation
    in the future does not take the operation out of the definition of a pit. That
    definition covers land that has not been rehabilitated and s. 48 requires all
    licencees and permittees to rehabilitate the site in accordance with the Act
    and regulations.

[19]

There
    is no specified exemption for farm betterment projects. This is another
    indication within the statute that there is no intent to exempt such projects
    from the licencing requirements of the
ARA
.

[20]

Contrary
    to the conclusion of the appeal judge, the purposes of the
ARA
set out
    in s. 2 apply to these projects, particularly when the projects are significant
    in scope and duration, such as the impugned project in this case.  In cases
    where the project is much more limited, such as some of the examples suggested
    by the respondent, presumably a s. 1(3) exemption could be available.

[21]

As
    to the argument that this is strictly
a
Planning Act
issue and that the
ARA
has no application, it appears that both acts
    can apply in appropriate circumstances. Section 66 of the
ARA
provides
    for the overriding application of the
ARA
despite any municipal
    by-law, while s. 12.1 states that no licence shall be issued where a zoning
    by-law prohibits the site from being used for the operation of a pit. In this
    case, while the area is zoned for farming and pits are prohibited, the applicable
    zoning by-law, quoted above, appears to have an exemption for farmers levelling
    their land. Therefore the
ARA
can apply. Presumably, any pit licence
    issued under the
ARA
would be carefully tailored to the applicable
    zoning restrictions.

[22]

The
    respondents second argument seems to be that if a licence is required, it is
    not the contractor but the owner of the pit who must obtain it. Section 7(1)
    makes it an offence for a person to operate a pit. It makes sense that the
    person who owns and controls the pit is also operating the pit for the purposes
    of s. 7. After all, that person can hire and fire one or more trucking
    companies to conduct the actual grading operation. However, the wording of s.
    7, which is directed to anyone who operates the pit, i.e. works the pit,
    clearly extends to the actual on-site operator as well.

Conclusion

[23]

In
    the result, I would allow the appeal, set aside the acquittal, and based on the
    agreed statement of facts that forms the record in this case, enter a conviction and refer the matter back to the Justice of
    the Peace for sentencing.

Released: K.F.  September 14, 2012

K.
    Feldman J.A.:

I
    agree Robert J. Sharpe J.A.

I
    agree E. Ducharme J.A.


