This case was heard in the New Brunswick Court of Queen's Bench (Trial Division).

Gemtec Limited ("Gemtec") and its principal, Mr. Lutes, were convicted in Provincial Court of having violated the federal Fisheries Act by unlawfully depositing or permitting the deposit of a deleterious substance, into waters frequented by fish. Gemtec and Mr. Lutes appealed their convictions to the New Brunswick Court of Queen’s Bench, and the provincial Crown also appealed because it believed that the sentences imposed by the Provincial Court were too low.

Gemtec had been hired by the City of Moncton to close a landfill site. Gemtec presented two options to the City—one of them being considerably more expensive than the other—and the City chose the least expensive of the two. Gemtec was aware that a local environmental studies professor believed that the approved closure plan might not comply with the federal Fisheries Act, but Gemtec did not investigate the matter thoroughly. Ultimately, the closure plan that Gemtec put into place directed some leachate from the landfill directly into Jonathan Creek (a tributary of the Petitcodiac River), and also directed some leachate to an area where it could flow directly into the Petitcodiac River.

The New Brunswick Court of Queen’s Bench dismissed the defendants’ appeal after affirming the Trial Judge’s findings that the defendants had committed the offences in question and the defences of due diligence and officially induced error did not apply. The Court also dismissed the Crown’s appeal after finding that the fines imposed by the Trial Judge were proportionate to the size of the company and were not demonstrably unfit.

View the Decision on CanLII: https://www.canlii.org/en/nb/nbqb/doc/2007/2007nbqb199/2007nbqb199.html

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