R. v. Consolidated Maybrun Mines Ltd.

L’Heureux‑Dubé J. -- This case raises the question whether and, if so, in what circumstances a person charged with failing to comply with an administrative order can collaterally attack the validity of the order. Although this is an important question, Canadian courts have, until now, had very few opportunities to pronounce upon it.

It should be noted at the outset that this Court has already spoken on the possibility of collateral attacks on the validity of court orders (Wilson v. The Queen, [1983] 2 S.C.R. 594; R. v. Litchfield, [1993] 4 S.C.R. 333; R. v. Sarson, [1996] 2 S.C.R. 223). In Litchfield, at p. 349, Iacobucci J. stated the basis of the rule against collateral attacks on court orders as follows:

The rationale behind the rule is powerful: the rule seeks to maintain the rule of law and to preserve the repute of the administration of justice. To allow parties to govern their affairs according to their perception of matters such as the jurisdiction of the court issuing the order would result in uncertainty. Further, "the orderly and functional administration of justice" requires that court orders be considered final and binding unless they are reversed on appeal (R. v. Pastro [(1988), 42 C.C.C. (3d) 485 (Sask. C.A.)], at p. 497).

For this reason, it is also settled that, as a general rule, a superior court will not be justified in reviewing the validity of a court order in respect of which a contempt charge has been laid ‑‑ see, inter alia: R. v. Domm (1996), 31 O.R. (3d) 540 (C.A.), leave to appeal refused, [1997] 2 S.C.R. viii; Everywoman’s Health Centre Society (1988) v. Bridges (1990), 54 B.C.L.R. (2d) 273 (C.A.).

The question raised by the case at bar is whether this same immunity should be conferred on administrative orders in light of the major differences that can exist between these two types of orders in relation, inter alia, to their legal nature and the position within the state structure of the institutions that issue them.

The appellant Patrick Sheridan is the guiding mind of the Consolidated Maybrun company, which owns a gold and copper mine in Northern Ontario. After operating for a few years in the early 1970s, the mine was shut down until 1975 due to low ore prices. It was then reopened for 18 months before being shut down once again. Operations at the mine have not been resumed since that time.

In 1985, employees of the Ontario Ministry of the Environment inspected the mine. They found that the facilities had been vandalized, windows broken, chemicals strewn about inside the laboratory, water had penetrated and was obstructing the mine, and access to the facilities was not controlled. They also observed traces of oil contaminated with polychlorinated biphenyls (“PCBs”) from a number of electrical transformers located both outside and inside the buildings. Based on these observations, they concluded that the mine was abandoned and that the transformers presented a risk of environmental contamination.

The Ministry of the Environment accordingly contacted the appellant company to have it take corrective action. Despite a meeting with the appellant’s electrician, Mr. Vernon, an inspection by Ministry employees in 1986 revealed that the condition of the site had not changed. Subsequent attempts by the Ministry to communicate with the appellant in writing and by telephone were also fruitless. In these circumstances, the Ministry’s Regional Director gave the appellants notice on April 22, 1987 of his intention to issue an order requiring that the contaminated oil stains be cleaned up, that the transformers be stored in a secure building constructed for that purpose and undergo a triple rinse procedure, and finally that access to the site be secured. The notice also invited the appellants to respond to the Director’s intention and make submissions concerning the proposed order within 15 days. As with the earlier letters, the notice went unanswered, and an inspection of the mine on May 7, 1987 confirmed that no action had been taken. The appellant did not respond until May 11; it did so through Mr. Sheridan, who expressed the opinion that the measures proposed by the Ministry were “ridiculous” and that it was up to the Ministry to clean up the PCBs.

On June 2, 1987, the Director issued an order under s. 17 of the Environmental Protection Act, R.S.O. 1980, c. 141 (now R.S.O. 1990, c. E.19). At the same time, he informed the appellants of their right under s. 122 of the Environmental Protection Act to appeal to the Environmental Appeal Board within 15 days of receiving the order, which required the appellants Sheridan and Consolidated Maybrun to take measures that can be summarized as follows: