Due Diligence

R v Courtaulds Fibres Canada

[1992] O.J. No. 1972

R. v. Courtaulds Fibres Canada

[1992] O.J. No. 1972
Ontario Court of Justice - Provincial Division — Fitzpatrick Prov. Div. J. | June 19, 1992

Background

Courtaulds Fibres Canada operated a rayon manufacturing plant in Cornwall, Ontario, right beside the St. Lawrence River. The plant was a mix of modern and ancient — the viscose-making section was state-of-the-art (built 1982-83), but the acid recovery area dated back to 1948-1952 and was a disaster waiting to happen. It had 80 tanks, 100 pumps, and a maze of deteriorating pipes, with no containment systems. When equipment failed or workers made errors, acidic pollutants flowed directly into cooling water channels that dumped straight into the river.

Between December 1988 and March 1990, thirteen separate spill incidents occurred. Each time, pollutants including acid, oleic acid, and zinc were discharged into the St. Lawrence. The Ministry of Environment laid 26 charges total — 13 under section 13(1) of the Environmental Protection Act and 13 under section 16(a) of the Ontario Water Resources Act.

Issues

1. Did the company "permit" the discharge of pollutants as required for the offence?
2. Had the company established the defence of due diligence by taking all reasonable care?

The Due Diligence Defence

The case turned on timing. In January 1988 — eleven months before the first charged spill — Courtaulds hired Richard Drumer as Vice President of Operations. Drumer was a chemical engineer with 28 years' experience and a strong environmental background. He immediately recognized the plant's environmental crisis and launched a comprehensive remedial program.

Drumer's efforts included: mandatory environmental law seminars for all management using expert legal counsel; installation of 95 level alarms on tanks (completed by early 1989); comprehensive employee training on spill response; detailed planning for acid recovery system overhaul; and ongoing consultation with Ministry officials. Even Ministry witnesses admitted Drumer's arrival "heralded the beginning of a dramatic turnaround."

The Crown argued these efforts came too late — that eleven months wasn't enough time to establish due diligence for the 1988-1990 spills. The defence countered that expecting faster results from such an aging, complex facility would impose an impossible standard.

Judge Fitzpatrick found the company had met the due diligence test. Citing R. v. Sault Ste. Marie, he noted that strict liability offences allow defendants to "avoid liability by proving that he took all reasonable care." The standard requires "a high standard of awareness and decisive, prompt and continuing action" — but not "superhuman efforts." To demand more would transform strict liability into absolute liability.

Key Takeaway

Due diligence doesn't require perfection or instant results — it requires sustained, comprehensive effort appropriate to the circumstances.

For environmental charges, courts will consider the facility's age and complexity, the scope of problems, the defendant's response timeline, and the practical feasibility of faster action. Eleven months of intensive remediation was sufficient here, but the key was that Drumer acted immediately upon recognizing the problems and maintained consistent effort throughout.

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R v Pyle

[2008] O.J. No. 5359

R. v. Pyle

[2008] O.J. No. 5359
Ontario Court of Justice — G. Wakefield J. | September 23, 2008

Background

Andrew Pyle owned two huskies for two to six years respectively when he moved to Peterborough. Knowing these dogs were escape-prone by breed, he took possession of his new property two weeks early specifically to prepare proper containment. He hired a professional fencing contractor to build a 50 by 40 foot chain link enclosure at a cost of approximately $5,000. Pyle reinforced the perimeter with concrete, added extra clips to the gate, and personally inspected the entire compound. Despite all these precautions, the dogs managed to escape by forcing the gate open about ten inches at the bottom — the latch itself didn't fail, but the gate bent under pressure.

Pyle was charged under section 192.7.1(a) of the Peterborough Municipal Code for allowing dogs to run at large. At trial, the prosecutor actually applauded Pyle's "attempts at responsible dog ownership" and the Justice of the Peace acknowledged the "extensive efforts" and "significant costs" involved. However, the trial judge characterized the offence as absolute liability, meaning no defence was possible, and convicted Pyle with a fine of $250 per dog.

Issues

1. Was this a strict liability offence (allowing a due diligence defence) or absolute liability offence (no defence possible)?
2. If strict liability applied, did Pyle establish due diligence on a balance of probabilities?

The Due Diligence Defence

Both parties agreed on appeal that the trial judge erred by treating this as absolute liability. Municipal bylaw offences like "dog at large" are presumptively strict liability, meaning the defendant can avoid conviction by proving they took all reasonable care to prevent the offence.

Justice Wakefield applied the test from R. v. Sault Ste. Marie: did the defendant honestly believe, on reasonable grounds, in a state of facts that would have made his conduct innocent? The standard is reasonableness, not perfection. The Crown argued Pyle should have considered additional security measures like a "came bolt" for the gate, but the court rejected this hindsight analysis.

The judge found Pyle's efforts went well beyond what most dog owners do: hiring a professional contractor (the same one used successfully at a previous residence), giving specific instructions for a "secure fence," personally reinforcing the structure with concrete and extra clips, and conducting thorough inspections. The court noted this wasn't a case where the defendant simply hired someone and walked away — Pyle took numerous additional steps himself.

Key Takeaway

Due diligence doesn't require perfection — it requires acting as a reasonable person would in the circumstances.

Even when your best efforts fail, you can beat a strict liability charge by proving you took all reasonable steps to prevent the offence. Courts won't judge you by hindsight or demand you anticipate every possible failure mode.

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R vs Sault Ste Marie

No summary has been written for this decision yet.

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R v Verbeek

[1996] O.J. No. 3660

No summary has been written for this decision yet.

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