Cobalt Construction Inc. is back on the hook for not properly decommissioning a worksite near Destruction Bay after the Yukon Supreme Court overturned a decision by the territorial court last year. (Mike Thomas/Yukon News file)

Yukon Supreme Court overturns Cobalt Construction’s acquittal on Destruction Bay site decommissioning

Cobalt and its president were acquitted last fall of violating an environmental protection order

A Whitehorse-based construction company is back on the hook for not properly decommissioning a worksite near Destruction Bay after the Yukon Supreme Court overturned a decision by the territorial court.

Cobalt Construction Inc. and president Shaun Rudolph were both acquitted in territorial court last year of contravening an environmental protection order (EPO) related to a land treatment facility it operated near Destruction Bay in 2013. Cobalt’s permit for the facility, meant to store and treat soil contaminated by a fuel spill, expired at the end of 2015 and the company was required to decommission the site.

Cobalt didn’t take action until February 2016, and following a back-and-forth with Environment Yukon officials about its decommissioning plans, was charged under the territorial Environment Act.

Yukon Territorial Court Chief Judge Karen Ruddy acquitted Cobalt and Rudolph in September 2017 following a trial, finding that it would have been impossible for them to comply with the environmental protection order, part of which included tilling and taking samples of the soil, because the ground was frozen.

The Yukon government appealed the acquittal.

In a decision issued July 30, Yukon Supreme Court Justice Ron Veale found that Ruddy had made an error in finding that Cobalt had not done its due diligence by informing Environment Yukon that it could not do the tilling and sampling in the winter, but then also found that the impossibility of the task relieved the company of its due diligence.

Cobalt had ample opportunity to inform Environment about the situation and to work out a solution Veale wrote, and by failing to do so, was not duly diligent.

“In Cobalt’s situation, the impossibility was not known by the government, according to the evidence provided by its employee.… The impossibility was, however, known to Cobalt when it received the EPO,” Veale wrote.

“Cobalt did not bring that to the attention of Environment. A reasonable person would have advised about the barrier imposed by the winter conditions to seek an extension for the decommissioning plan or another resolution. This reasonable step may have allowed Cobalt to avoid committing an offence under the act.”

Veale found that the “defence of impossibility does not arise as Cobalt was in circumstances in which the commission of the offence was reasonably foreseeable and Cobalt was not reasonably diligent in taking steps to avoid its commission.”

Veale set aside Cobalt and Rudolph’s acquittals. The case will return to territorial court for sentencing.

Contact Jackie Hong at jackie.hong@yukon-news

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