The Ontario government has been ordered to pay nearly $500,000 for taking "frivolous and vexatious" action against a small company that operates a gravel pit near a municipal well, the source of drinking water for half the residents of the town of Milton, Ont.
In a damning indictment of the Ministry of Natural Resources, the Ontario Municipal Board said the government never should have launched legal proceedings against Campbellville Sand and Gravel Supply. Tragically, it said, the company's elderly owner, Angelo Guerrieri, died midway through a long hearing before the quasi-judicial tribunal.
"The conduct of the ministry throughout this hearing had the demonstrable appearance of a single-minded intent to deprive a small and relatively unsophisticated operator of its livelihood," Susan Rogers, a board member who presided over the hearing, said in her 90-page decision.
The tribunal said the Region of Halton is also at fault, but it reserved its harshest criticism for the ministry. It ordered the ministry to pay three-quarters of the $665,000 in costs incurred by the company and for Halton Region to pay the balance of $166,000.
"The ministry in particular initiated these proceedings for frivolous reasons, pursued the matter in a vexatious manner, and in every respect acted unreasonably," the tribunal said.
The decision follows a bitterly contested battle over how to best protect the environmentally sensitive well that supplies drinking water to Milton, west of Toronto. The case raises questions about whether the government acted in the best interests of the public in discharging its duty to protect the province's drinking water.
It also follows a debate that began six years ago when seven people died and thousands more became ill in Walkerton's tainted water tragedy.
New legislation to protect drinking water from contamination received final approval in the legislature last week.
The issue before the tribunal was what posed the greater risk of contaminating the drinking water: filling the excavated pit with soil or leaving the groundwater aquifer that feeds the municipal well open and exposed.
The company has owned the gravel pit since the 1960s. But in 2004, the ministry issued an enforcement order banning the company from digging more gravel out of the pit.
The company sought a hearing before the tribunal, where it argued that the pit and the aquifer, resembling a large pond at the bottom of it, should be filled with clean soil. The ministry and Halton Region disagreed. They said the pit should stay open and that no further extraction should be allowed.
After six weeks of hearings beginning in July of 2005, the tribunal sided with the company. It said filling the site would create a barrier to prevent contamination from reaching the municipal water supply.
Claudio Aiello, the company's lawyer, said the decision is bittersweet because Angelo Guerrieri did not live long enough to learn that he had been vindicated.
"He maintained throughout that he was not doing anything wrong and that he should be allowed to fill the pit by covering the hole," Mr. Aiello said. "Quite frankly, to have such a clear decision and to not be able to share it with Mr. Guerrieri is quite sad."
Both the ministry and the municipality have sought to appeal the decision in the Ontario Divisional Court. Mark Meneray, director of legal services for Halton Region, said the tribunal exceeded its authority.
"Our position is, obviously nothing should be going in there at all," he said. "In our mind, it's just not possible to monitor the kind of fill that's going in there to the degree that we think is necessary to ensure absolute protection."
Officials at the ministry declined to comment pending the appeal.
The tribunal said the ministry and Halton Region acted "egregiously" throughout the hearing. The ministry did not present any evidence to address whether filling in the pit posed an unacceptable environmental risk, it says. "To describe the evidence of the ministry as thin would be an understatement," it said. "All the board was left with after hearing extensive [ministry]evidence in this regard was suspicion and innuendo."
The ministry argued during the hearing that it relied on testimony provided by witnesses for Halton Region. But the tribunal said those witnesses "failed in their duty to provide objective unbiased professional opinions."
The tribunal also said the Ministry of Natural Resources was aware that the Environment Ministry, responsible for protecting drinking water, would have permitted the pit to be filled under controlled circumstances. It said the Ministry of Natural Resources "deliberately" chose not to disclose this information.
The tribunal said the matter never should have come before the board. The fact that it did raises questions about the motives of the ministry, it said.
The company has been in limbo following the death of Mr. Guerrieri last February, a few weeks before the hearing's end in March. The gravel pit remains open despite the tribunal's decision that it be filled.
The company sought to delay talks with the ministry after Mr. Guerrieri became gravely ill. But the ministry refused, prompting a particularly sharp rebuke from the tribunal. "It is a response totally lacking in professional courtesy, let alone human compassion," it said.