Environmental Liability: The Risk of Ignoring the Reasonable Advice of Your Consultant
I recently came across the decision of the B.C. Provincial Court in R. v. Mission Western Developments. This was a Fisheries Act prosecution in which the Crown alleged that the defendant had breached s.35(1) (now amended) by carrying on work that caused the harmful alteration, disruption or destruction (“HADD”) to fish habitat. The fish habitat was a salmon and trout-bearing stream. The defendant initiated its own work plan, ignoring the good advice of its qualified consultant as to how the work – required for a development purpose – could proceed without risking a HADD to the stream. After a few days of haphazard work, the project was stopped by the Department of Fisheries and Oceans and the defendant was charged with having contravened s.35(1). At trial, the Crown relied on the contents of the consultant’s work plan to successfully counter the defendant’s due diligence defence. The defendant was convicted and fined $60,000 and was also ordered to pay an additional $26,000 to restore the site.
This case stands as a reminder about the danger of ignoring the good regulatory advice you have purchased. If you disagree with what you are being told, get a second opinion. If you decide to proceed in a particular manner despite advice to the contrary, at a minimum make sure that you document the reasons why and that the reasons can be supported in the circumstances as reasonable, alternative methods to obtain compliance. Cost by itself will not suffice.
Of course, the best way to protect oneself from the unwanted adversarial use of your consultant’s advice is through the shield of solicitor-client privilege. Instruct your lawyer to retain the consultant to assist him or her in providing legal advice to you.