South Winds Development Co. Inc., William Graham, LDS Consultants Inc., and Anthony Gubbels were all recently convicted in an London, Ontario court for offences under the Ontario Environmental Protection Act (EPA), the Ontario Water Resources Act (OWRA), and the Endangered Species Act (ESA).

Penalties Imposed

South Winds Development Co. Inc. was convicted of two violations under the ESA, one violation under the OWRA, and one violation under the EPA. South Winds was fined $115,000 plus a victim fine surcharge (VFS) of $28,750 and was issued a court order under the ESA to pay $50,000 to the Upper Thames River Conservation Authority (UTRCA). South Winds was given one year to pay the fines and fulfill the requirements of the ESA order.

William Graham, the President of South Winds Development Co Inc., was convicted of one violation under the OWRA and one violation under the EPA and was fined $23,000 plus a VFS of $5,750. Mr. Graham was given one year to pay the fines.

LDS Consultants Inc. was convicted of one violation under the OWRA, one violation under the ESA, and one violation under the EPA. LDS was fined $49,000 plus a VFS of $12,250 and was issued a court order under the ESA to pay $22,500 to the Southern Ontario At Risk Reptiles (SOARR) program at the UTRCA. LDS was given one year to pay the fines and two years to fulfill the requirements of the ESA order.

Anthony Gubbels, President of LDS Consultants Inc., was convicted of one violation under the EPA, fined $6,500 plus a VFS of $1,625, and given one year to pay the fine.

Background

South Winds Development Co. Inc. is a real estate development company which is developing building lots at Edgewater Estates in the Municipality of Middlesex Centre. William Graham is the President of South Winds. South Winds holds a MECP approval for the wastewater infrastructure at the site including a stormwater management facility which has erosion and sediment control (ESC) requirements.

South Winds hired LDS Consultants Inc. as the engineering consultant for the design and approval of all engineering at the site including to design and oversee the construction and implementation of ESC measures at the site. Anthony Gubbels is the CEO of LDS.

On July 18, 2018, a local resident visiting Komoka Provincial Park observed an active discharge of sediment to the Thames River. The visitor reported the incident to the park authority who in turn reported it to the ministry. On July 23, 2018, the ministry conducted an inspection and determined that the site was the source of sediment entering the Thames River.

On July 24, 2018, a major rain event occurred, causing a second and more significant sediment discharge into the Thames River. Follow-up inspections conducted by the ministry concluded that the site was once again the source of the sediment.

Both the July 18 and July 24, 2018, discharges led to water quality impacts to the Thames River and its floodplain, and adversely impacted aquatic and terrestrial wildlife, particularly impacting the habitat quality for the Spiny Softshell Turtle and the Eastern Hog-nosed Snake, both designated species under the ESA.

LDS permitted the discharges and contributed to the habitat damage by failing to ensure the ESC and stormwater management measures in place on July 18 and July 24, 2018, were adequate. Independent experts retained by the ministry acknowledged that the rainfall event that occurred on July 24, 2018, was severe and unusually high. It was determined that the storm water management and ESC measures in place at the site were patently unreasonable and inadequate for a rainfall of this magnitude and had they been reasonable, the sediment discharge would have been far less severe.

Further, it was determined that the ESC measures for the site’s stormwater management facility were not installed in accordance with ministry approval at the time of the discharges. The ministry’s Environmental Investigations and Enforcement Branch investigated and laid charges which resulted in 10 convictions.

Description of Offences

The Environmental Protection Act (EPA) convictions are for (1) Permitting the discharge of a contaminant into the natural environment that was likely to cause an adverse effect; (2) failing to comply with a ministry approval; and (3) director liability for failing to take all reasonable care to prevent the contravention of the Act.

The Ontario Water Resources Act (OWRA) convictions are for permitting the discharge of sediment into a watercourse that may impair the quality of the water; and director liability for failing to take all reasonable care to prevent the contravention of the Act.

The Endangered Species Act (ESA) convictions are for damaging/destroying the habitat of two species listed on the “species at risk” list, namely the Spiny Softshell Turtle and the Eastern Hog-Nosed Snake).