



COURT OF APPEAL FOR ONTARIO

CITATION: Ontario (Environment, Conservation and Parks) v.
    Thomas Cavanagh Construction Limited, 2019 ONCA 686

DATE: 20190830

DOCKET: M50663

Pardu J.A. (In Chambers)

BETWEEN

Her Majesty the Queen in right of Ontario
(Ministry of the Environment, Conservation and Parks)

Respondent

and

Thomas Cavanagh Construction Limited

Applicant

Don Sullivan, for the applicant

Paul McCulloch, for the respondent

Heard and released orally: August 12, 2019

REASONS FOR DECISION

[1]

Thomas Cavanagh Construction Limited (TCCL)
    moves for leave to appeal from a judgment of the Ontario Court of Justice, which
    dismissed TCCLs appeal from sentences imposed by a Justice of the Peace.

[2]

TCCL was convicted of two offences of
    discharging or permitting the discharge of material into a watercourse that may
    impair the quality of water, contrary to s. 30(1) of the
Ontario
    Water Resources Act,
R.S.O. 1990, c.
    O.40,

and two charges of failing to notify the
    Ministry of the Environment of those two discharges, contrary to s. 30(2) of
    the same act.

[3]

The sentences imposed were fines of $80,000 and
    $60,000 on the two discharge counts and $40,000 on each of the failure to report
    charges for a total of $220,000.

[4]

TCCL argues that the fines were excessive, and
    that the sentencing judge and the appeal judge ought to have weighed the
    aggravating and mitigating circumstances differently. It is noteworthy that
    minimum fines totaling $100,000 established the floor for sentencing purposes
    in this case.

[5]

TCCL has not shown that the sentencing judge or
    the appeal judge considered any irrelevant factor or failed to consider any
    relevant factor. No error of principle is alleged.

[6]

Both the sentencing justice and the appeal
    justice applied the relevant existing jurisprudence. The appeal judge concluded
    that the sentence imposed was not manifestly unfit. TCCLs conduct bordered on
    recklessness. Its annual revenues exceeded $100 million dollars.

[7]

TCCL argues that the sentencing judge should
    have distinguished comparable sentencing decisions on grounds that the damage
    to the watercourse here was not as severe, and therefore imposed a lesser fine
    than was imposed in
MOECC v. Aecon Construction and Materials Ltd.
(10 February 2017), Prosecution Disposition Report (Trial), LSB
    file #15-10480, for example. However, on appeal, the sentencing judges
    weighing of the relevant sentencing factors is owed deference.

[8]

Section 131(2) of the
Provincial
    Offences Act
, R.S.O. 1990, c. P.33,
provides that no leave to appeal shall be granted  unless the
    judge of the Court of Appeal considers that in the particular circumstances of
    the case it is essential in the public interest or for the due administration
    of justice that leave be granted.

[9]

TCCL asks this court to review the application
    of well-established legal principles. There is no basis advanced which would
    allow this court to conclude that it is essential in the public interest or for
    the due administration of justice that leave to appeal be granted.

[10]

The motion for leave to appeal from the dismissal of the sentence
    appeal is dismissed.

G. Pardu J.A.


