When it comes to keeping our national parks clean, a provincial court judge has determined that the responsibility belongs to everyone – a ruling that could prove costly for a Lake Louise business owner and his assistant manager.
Eric Correll, owner of the Lake Louise Petro Canada gas station, Cherry Gupta, the station’s assistant manager, and Correll’s company were charged under the Canadian National Parks Act and found for failing to dispose of hazardous material appropriately when, after cleaning up a gasoline spill, Gupta disposed of the waste into a public trash bin, rather than the hazardous waste disposal bin at the station.
Tyson Dahlem, counsel for the accused, said there was no disputing the facts of the incident, and that this was a liability offense for which Gupta was responsible, however it should be taken into consideration that this was Gupta’s first time responding to a spill while on the job.
Crown prosecutor Anita Szabo called for all three parties to be held liable, as there was insufficient evidence that Gupta had received adequate training from Correll and Petro Canada.
Dahlem argued that vicarious liability is not recognized under Canadian law, and as such, Correll and his company cannot be held accountable as Correll and Petro Canada exercised their due diligence by offering spill management training to all employees. Dahlem stated that liability “does not flow through Ms. Gupta,” whose actions resulted in the charges.
The incident in question occurred on Sept. 5, 2016, when a Petro Canada customer used the trigger lock on a gas pump to fill his vehicle while he entered the service station.
As the pump was left unattended, approximately ten litres of gasoline spilled onto the ground.
Gupta and Olivia Sidor, an attendant at the Petro Canada, cleaned the spill as per Petro Canada guidelines, by soaking up the gasoline with an absorbing agent and shovelling the waste into four garbage bags.
However, instead of disposing the bags into hazardous waste disposal bin located in a shed on-site, Gupta and Sidor dumped the waste into a nearby garbage bin – despite signage on the bin cautioning against dumping hazardous materials. A witness also intervened and advised Gupta to move the waste to the proper receptacle.
Gupta did not take the advice of the witness, nor did she instruct Sidor to move the bags to the hazardous waste disposal.
Subsequently, Parks Canada was informed and charges were laid. Charges were withdrawn against Sidor as it was determined that she had acted on the instructions of Gupta, her supervisor.
Speaking before Justice L.R. Grieve at the Canmore Provincial Court on Wednesday, July 12, Szabo argued that while Gupta, Correll and Petro Canada all displayed some degree of due diligence, some is not enough.
Szabo said that Gupta’s testimony during her initial statement was inconsistent, with the assistant manager claiming she hadn’t been properly trained.
Szabo argued that while Petro Canada offers online training to all employees for spills, as well as a safety manual and posters illustrating proper disposal protocols, none of these are site-specific, so owners are responsible to ensure employees are shown where their hazardous waste disposal bin is located, which Gupta testified Correll failed to do.
Szabo said Gupta demonstrated a “complete willful blindness” and that “whether she knew where the (hazardous waste) bin was, she knew not to put it in [the garbage] bin.” Szabo pointed out that Gupta had clearly observed signage and spoke with a witness, both of which explicitly discouraged her actions.
Szabo also asserted that Correll did not go over the safety manual himself or ensure that his employees had satisfactorily read and understood the online training or the manual. In fact, upon cross-examination at an earlier court date, Correll admitted that he “had better things to do” than go over the 30-page manual, while Gupta admitted to signing off that she had read the manual when she had not – both before and after the incident.
Szabo said while “everything points to (Gupta’s) guilt,” the garbage regulations found in the Canada National Parks Act clearly define the duties of an owner, and in this case, Gupta, Correll and Petro Canada all fall into the legal definition of an owner, so all parties should be found liable.
Grieve, while giving his decision, agreed with Szabo, noting that upon being contacted by Parks Canada, Correll blamed Gupta’s “lack of knowledge” and was unsure if she had been shown where the appropriate hazardous waste disposal was located on-site.
Grieve said that while a emergency response plan may have been created by Petro Canada with the best of intentions, the plan itself was generalized, and “the creation of a plan does not protect the environment. It’s the implementation of the plan.”
It was noted that Gupta admitted in her statement that it was her job “to get this cleaned up and get back to business” which perhaps explained why she willfully ignored the warning on the public garbage bin, the witness and the express instructions in the emergency response manual, which Grieve said indicated that no due diligence was displayed.
Szabo recommended that the accused be fined as per section (24)1 of the Canada National Parks Act, which can carry fines of $5,000 to $300,000 for an individual, and $25,000 to $2 million for a corporation on their first offense, citing the potential damage that could be incurred when hazardous materials end up in a landfill.
Dahlem called the recommendation “savage,” stating the fines proposed would bankrupt his client. He argued that section 24(1) is not the section the accused were charged under.
“All three of us have a challenge,” said Grieve, in regards to finding an acceptable resolution.
The sentencing disposition is scheduled for Aug. 23, 2017 in Canmore.
