1 2 THE WALKERTON INQUIRY 3 4 5 TO INQUIRE INTO THE 6 7 8 WALKERTON WATER TRAGEDY 9 10 * * * * * 11 12 BEFORE: The Honourable Justice Dennis R. O'Connor, 13 14 15 HELD AT: 220 Trillium Court, 16 Walkerton, Ontario, 17 18 * * * * * 19 20 21 22 23 24 April 25th, 2001 25

2
  1                       APPEARANCES:
  2    BRIAN GOVER, Esq.             ) 
  3    MS. FREYA KRISTJANSON   (np)  )    Commission Counsel
  4    PAUL CAVALLUZZO, Esq.         )
  5    RACHEL YOUNG                   )
  6    JULIE ABOUCHAR                )
  7    GUS VAN HARTEN                )    Executive Assistant
  8    THERESA McCLENAGHAN    (np)   )    Concerned Walkerton
  9    PAUL MULDOON, Esq.      (np)  )    Citizens
 10    RICHARD LINDGREN, Esq. (np)   )
 11    RAMANI NADARAJAH              )
 12    R. J. TRAFFORD, Esq.    (np)  )    Walkerton Community
 13    F. STEPHEN FINCH, Q.C.        )    Foundation
 14    FRANK MARROCCO, Q.C.          )    Province of
 15    GLEN HAINEY, Esq.      (np)   )    Ontario
 16    K. LYNN MAHONEY         (np)  )
 17    REENA LALJI             (np)  )
 18    KEITH GEURTS, Esq.            )
 19    DEREK VANSTONE                )
 20    PETER MANDERVILLE              )
 21    JAMES M. AYRES          (np)  )
 22    MICHAEL J. EPSTEIN, Esq (np)  )    for Frank Koebel
 23    HUGH GRIFFITH-JONES, Esq (np) )
 24    LOUIS SOKOLOV            (np)  ) C.E.D.F. Coalition
 25    GARY HOPKINSON           (np)  ) P.E.G.O.

3
  1                  APPEARANCES, Continued
  2    DOUGLAS CHAPMAN           ) Sierra Legal Defence Fund
  3    WILLIAM TRUDELL, Esq.    (np) )    for Stan Koebel
  4    JOSEPH Di LUCA, Esq.    (np)  )
  5    BLAIR TRUDELL, Esq.    (np)   )
  6    GREGORY LAFONTAINE, Esq.  (np) )   for Allan Buckle
  7    PAUL BURSTEIN            (np)  )
  8    MARK MATTSON                   )    E.P.R.F.
  9    MS. KERRY BONIFACE      (np)  )    For Mr. Kieffer and Mr.
 10    KEN PREHOGAN            (np)  )    Field
 11    ROD McLEOD, Q.C.              )    Municipality of
 12    JOHN L. MARTIN, Esq.   (np)   )    Brockton
 13    J. BRUCE McMEEKIN, Esq.       )
 14    KIM BRAND, Ms.          (np)  )
 15    ELEANORE CRONK         (np)   )    The Chief Coroner
 16    ROCHELLE FOX                  )
 17    DAVID E. GRUBER, ESQ.  (np)   )
 18    EARL A. CHERNIAK, Q.C. (np)   )    Dr. McQuigge
 19    ELIZABETH K.P. GRACE   (np)   )
 20    GREG DEAKIN            (np)   )
 21    DOUGLAS GRACE, Esq.           )
 22    DOUG HAMILTON                 ) Association of
 23    CRAIG RIX               (np)   ) Municipalities.          
 24    
 25

1 APPEARANCES, Cont. 2 3 JOHN H. MIDDLEBRO ) The Board of Health of the Bruce-Grey-Owen Sound 4 5 Health Unit. 6 JAMES LeNOURY ) Association of Local 7 Public 8 Health Agencies 9 10 IAN ROLAND (np) ) OPSEU 11 ROB CENTA ) 12 13 LINDA McCAFFREY (np) ) Michelle Zillinger 14 15 JAMES HUNT ) Philip Bye 16 17 JOHN ROOK (np) ) William Page 18 STEPHEN LAMONT ) 19 20 21 22 23 24 25

1 TABLE OF CONTENTS 2 Page No. 3 EXHIBITS 6 4 5 Discussion 7 6 7 PANEL MEMBERS RESUME 7 8 Ms. Nancy Anne Johnson 9 Mr. Julian Weider 10 Mr. Gordon Arthur Robertson 11 CROSS-EXAMINATION BY MR. ROD MCLEOD 7 12 CROSS-EXAMINATION BY MS. RAMANI NADARAJAH 45 13 CROSS-EXAMINATION BY MR. F. STEPHEN FINCH 65 14 CROSS-EXAMINATION BY MR. DOUGLAS GRACE 70 15 CROSS-EXAMINATION BY MR. STEPHEN LAMONT 77 16 CROSS-EXAMINATION BY MR. ROB CENTA 100 17 CROSS-EXAMINATION BY MR. DOUG HAMILTON 106 18 CROSS-EXAMINATION BY MR. JAMES HUNT 112 19 CROSS-EXAMINATION BY MR. DOUGLAS CHAPMAN 115 20 CROSS-EXAMINATION BY MR. MARK MATTSON 120 21 CROSS-EXAMINATION BY MS. ROCHELLE FOX 138 22 CROSS-EXAMINATION BY MR. PETER MANDERVILLE 149 23 RE-DIRECT BY MR. BRIAN GOVER 165 24 25 Reporter's Certificate 175

1 EXHIBIT LIST 2 No. Description Page No. 3 306: Printout from the Ontario Legislative 4 website, dealing with Bill 124. 52 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

1 --- Upon commencing at 10:01 a.m. 2 3 THE REGISTRAR: The Inquiry is now in 4 session, please be seated. 5 6 PANEL RESUMES 7 8 (BRIEF PAUSE) 9 10 MR. COMMISSIONER: All right, Mr. McLeod...? 11 MR. ROD McLEOD: Thank you, Mr. Commissioner. 12 13 CROSS-EXAMINATION BY MR. ROD McLEOD: 14 Q: Good morning members of the Panel. The 15 reason I am here is that I appear on behalf of the 16 Municipality of Brockton, the Mayor and the former Mayor. 17 I have a few questions that I want to ask you 18 arising out of some of the brief comments that you had when 19 Mr. Gover asked you to go through Exhibit 305, the chart 20 that -- that we had prepared. 21 And then I have a few additional questions. 22 I'd ask you, if I may at the outset, that if I direct a 23 question to one (1) of you, and either or both of the other 24 of you want to add to the answer given, and I fail to ask you 25 to do so, please feel free to do so as we go along.

1 Let me go first to Exhibit 305, a small point 2 in Section 1, dealing with the early years, we had noted that 3 the statute of limitation was six (6) months, Mr. Wieder and 4 Mr. Gover quite properly pointed out, and I think you agreed, 5 that at a later time that was increased to one (1) year and 6 then to two (2) years. 7 Am I not correct that addition -- in addition 8 to that, even the two (2) year limitation was improved from 9 the perspective of IEB, because the start date was changed 10 from the date of the event, to the date when the event came 11 to the knowledge of the Ministry? 12 MR. JULIAN WIEDER: That's correct. 13 Q: I'm not sure of the year, but I 14 think -- I believe that happened at least in the early 90s if 15 not even before? 16 MR. JULIAN WIEDER: Late 80s, early 90s, yes, 17 somewhere around there. 18 Q: Secondly, can I ask you to turn to 19 Section 3.1.4, which is on page 3. 20 And I want to begin by apologizing for the 21 fact that this probably should have said multiple layers of 22 sign off, not a specific number. 23 You indicated, Mr. Wieder, that -- that you at 24 least weren't sure with respect to the -- the detail, and I 25 want to try and refresh your memory if I can. And bearing in

1 mind that this only applies to pre 1985, therefore not IEB 2 days -- 3 MR. JULIAN WIEDER: Hmm hmm. 4 Q: -- and I suppose there are two (2) 5 relevant periods, the sort of '80 to '85, involving the SIU, 6 and then pre 80. 7 My suggestion to you is that there was in 8 place, prior to 1985, some form of -- of a sign off sheet, 9 that required a variety of levels within the organizational 10 structure to sign off on the idea of proceeding to a 11 prosecution. 12 And if one (1) takes it from the perspective 13 of a more junior Environmental Officer, let's call that 14 person an EO3, if that person was to start a prosecution, he 15 or she was required to sort of run it past and get a sign off 16 from -- and I'll list the ones that I've been made aware of. 17 Number one (1), the Senior Environmental 18 Officer, number two (2) the Area Supervisor in the District 19 office, number three (3) the Abatement Manager in the 20 Regional Office, number four (4) the Assistant Regional 21 Director, number five (5) the Regional Director, number six 22 (6) the Assistant Deputy Minister Operations, number seven 23 (7) a lawyer in Legal Services Branch, and number eight (8) 24 the Director of the Legal Services Branch. 25 Before I ask you to comment on that,

1 I'll -- I'll suggest to you that at some point or other there 2 was a further requirement that the Deputy Minister sign off, 3 but that that part of the procedure was cancelled or changed 4 or stopped in the summer of 1985, with the new Deputy 5 Minister at that time. 6 Now that's a lot of detail, but can you -- can 7 you comment on that information, sir? 8 MR. JULIAN WIEDER: I agree -- I agree with 9 most of the sign offs, I'm not sure that there was the double 10 sign off within the District. Usually it would go from the 11 Environmental Officer to the Senior and then directly to 12 District Manager at that point. 13 I'm not sure whether the Assistant Director 14 signs off on -- signed off on those, but there would be an 15 Abatement Manager that would normally sign off. 16 Q: For my purposes, sir, it's sufficient if 17 I -- if I can ask you if you could agree that there were 18 multiple layers of sign off? 19 MR. JULIAN WIEDER: Definitely. 20 Q: And the business of the Deputy Ministry 21 signing off was cancelled in the summer of 19 -- or stopped 22 in the summer of 1985; at least that's -- 23 MR. JULIAN WIEDER: I'm not sure if the 24 Deputy signed off during the Special Investigation Unit, or 25 it was just informed of those. There was no actual sign off.

1 Q: In any event, the Deputy Minister's 2 participation in that process, whatever it was was stopped in 3 1985? 4 MR. JULIAN WIEDER: That's correct. 5 Q: Thank you. Let me go next please to 6 paragraph 5.1.3, which is found on page 6 of this document. 7 You didn't have any comment about this, but I -- I just want 8 to confirm that IEB investigated and laid charges with 9 respect to a wide range of breaches, and those breaches could 10 either be of statutes, for example, 14.1 of the EPA, the 11 general offence section, or 30(1) of the OWRA, the general 12 offence section, and those are only two (2) examples. 13 Or they could be breaches of regulations, for 14 example, Reg 347, the waste regulation. Or thirdly, they 15 could be for breaches of mandatory abatement instruments, 16 such as Control Orders, Directors Orders, Certificates of 17 Approval. 18 MR. JULIAN WIEDER: Sorry, you're at 5.1.3? 19 Q: I'm sorry, 5 -- I apologize, 5.13 on page 20 6. 21 MR. JULIAN WIEDER: Oh. 22 Q: My apologies. 23 24 (BRIEF PAUSE) 25

1 MR. JULIAN WIEDER: Yes, there was a wide 2 range of statutes, regulations, Certificates of Approval that 3 could be -- charges could be laid under. 4 Q: Now, we don't want to dwell on this. In 5 a sense, a breach of a mandatory instrument is also a breach 6 of the statute because the statute says you shall obey 7 orders? 8 MR. JULIAN WIEDER: That's correct. 9 Q: All right. Now, you told us, Mr. Wieder, 10 that much of IEB's work was in relation to discharge 11 offences; is that fair? 12 MR. JULIAN WIEDER: That's fair. 13 Q: And often those were breaches of either 14 14(1) of the EPA or 30(1) of the OWRA? 15 MR. JULIAN WIEDER: There are two (2) very 16 popular counts, but certainly not limited to those two (2). 17 Q: And those offences, I suggest to you, 18 sir, are what can properly be described as generic or general 19 offences in the sense that the offence-creating instrument, 20 the statute, is not either entity, company or municipality or 21 site-specific? 22 MR. JULIAN WIEDER: That's correct. 23 Q: All right. Whereas, with a mandatory 24 abatement instrument, whether it be a control order or a 25 Director's order or even a Certificate of Approval, the

1 document in question is usually not only company or 2 municipality-specific, but it's site-specific and indeed may 3 contain a number of very specific requirements and 4 prohibitions? 5 MR. JULIAN WIEDER: That's correct. 6 Q: All right. With respect to your work in 7 the area of discharges generally, you do at IEB or did at the 8 time and -- and presumably still today, I assume, have what 9 Mr. Gover referred to as proactive programs and, in that 10 sense, part of your work is proactive rather than just 11 reactive? 12 MR. JULIAN WIEDER: Yes, the vast majority of 13 our work is reactive, what we do -- we normally run several 14 proactive projects throughout the year. 15 Q: All right. But with respect to any 16 IBE -- IEB involvement in relation to communal drinking 17 water systems, I suggest to you, sir, that you already told 18 Mr. Gover that you did not at IEB have proactive programs. 19 MR. JULIAN WIEDER: I'm not aware of any 20 proactive program. 21 Q: Would that, at least in part, sir, be a 22 function of the fact that vis a vis potential offences by 23 operators of communal drinking water systems, you were 24 operating in a situation where the only time that kind of 25 thing came to your attention was with respect to a breach of

1 a mandatory instrument, rather than the general offence 2 sections, the way they came to your attention in relation to 3 discharges? 4 MR. JULIAN WIEDER: Really, they came to our 5 attention through the occurrence report system from 6 Abatement, but with communal water, no, you don't have -- or 7 very seldom have an actual discharge. 8 Q: Exactly, all right. Now, I want to just 9 take a moment to clarify some terminology; I apologize for 10 having to take this time, I think it's important. 11 We heard yesterday about abatement on the one 12 (1) hand and enforcement on the other hand, we also heard 13 about voluntary abatement and mandatory abatement, I want to 14 talk to you in my next few questions in terms of three (3) 15 distinct functions, voluntary abatement, mandatory abatement 16 and enforcement. 17 I don't argue for a moment about the fact that 18 the first two (2) of those functions are the responsibility 19 of the Abatement section of the Ministry, as opposed to IEB, 20 but it's important to distinguish between the functions and 21 the personnel, okay. Am I correct that, with respect to 22 voluntary abatement, the Abatement side of the Ministry 23 virtually had all responsibility, IEB had none? 24 MR. JULIAN WIEDER: That's correct. 25 Q: With respect to mandatory abatement, the

1 Abatement side of the Ministry had the initiating 2 responsibility, whereas IEB had any subsequent enforcement 3 responsibility? 4 MR. JULIAN WIEDER: That's correct. 5 Q: Once -- and, finally, with respect to 6 enforcement, that was primarily at least an IEB 7 responsibility, a -- the Abatement side might be called on to 8 help by way of providing evidence to the prosecution? 9 MR. JULIAN WIEDER: Well, IEB had the main 10 role. The Abatement certainly have a role, and the issuance 11 of Provincial UNSAC (phonetic) tickets. 12 Q: All right. Let me go then to some 13 questions that Mr. Gover asked you yesterday, Mr. Wieder, if 14 I may, starting again with you. 15 Towards the end of your evidence yesterday, my 16 note tells me that you said that in your opinion, after 17 repeated failures of a regulated entity to comply with 18 voluntary abatement, it's at that time, at least, that it may 19 be appropriate to move to mandatory abatement? 20 MR. JULIAN WIEDER: That is one (1) of the 21 criteria. 22 Q: All right. I think you said secondly, 23 that if the problem is one that is long term, I think you 24 used the word perpetuity, the appropriate type of mandatory 25 abatement may well be to revise the Certificate of Approval,

1 as opposed to using an order? 2 MR. JULIAN WIEDER: Yes. Normally, orders 3 have a start date and a finish date to be completed by, 4 whereas orders continue on until they're amended or revoked. 5 Q: Did I correctly summarize the evidence 6 that you gave yesterday in that regard? 7 MR. JULIAN WIEDER: That's correct. 8 Q: All right. Now, I -- I suggest to you, 9 sir, that if the revision of the Certificate of Approval is 10 going to take a while, an order can be used to bridge the 11 time gap, if in fact that time gap should be breached? 12 MR. JULIAN WIEDER: As an interim solution, 13 yes, it can be. 14 Q: And that became especially true once it 15 became possible for Ministry personnel to issue field orders? 16 MR. JULIAN WIEDER: That's correct. 17 Q: I think you also told us yesterday that 18 the initiative for a Certificate of Approval revision can 19 come from either Abatement personnel, the Approvals Branch, 20 or -- I'm sorry, the Investigation and Enforcement Branch, or 21 thirdly, the Approvals Branch; do you remember identifying 22 those three (3) options? 23 MR. JULIAN WIEDER: Yes. 24 Q: And I think you also said that in order 25 of probability in the sense of it, which one is most likely

1 to take that initiative, it would be in that order, 2 Abatement, Investigation and Enforcement, and Approvals? 3 MR. JULIAN WIEDER: Most likely, yes. 4 Q: All right. 5 MR. JULIAN WIEDER: The proponent can also 6 initiate the change in the schedule of approval, or the -- or 7 the general public can request it, under the Environmental 8 Bill of Rights. 9 Q: All right. Mr. Gover asked you a 10 hypothetical question yesterday, Mr. Wieder. He said to you, 11 if I got it correctly, if you had seen what our tabs 13 and 12 14 in your book, exhibit 302, which is the Zillinger report 13 from '98 and the Zillinger occurrence report. 14 MR. JULIAN WIEDER: Hmm hmm. 15 Q: He asked you if you had seen those, and 16 it was clear you hadn't. If you had seen those at the time, 17 would you have started an investigation. And your answer 18 was, you would not, and you pointed out that of the three (3) 19 problems, I'll call them, to use a neutral word, that she 20 identified, two (2) of them were non-conformance, as opposed 21 to non-compliance or a violation. And the middle one of the 22 three (3), Reg. 435, was of such a nature that standing 23 alone, it would not justify a IEB investigation? 24 MR. JULIAN WIEDER: That's correct. 25 Q: Is that what you told us yesterday?

1 MR. JULIAN WIEDER: That's correct. 2 Q: All right. Thank you. You agreed, as 3 well, with Mr. Gover that IEB, in the normal course, would 4 not have seen that occurrence report, because it did not 5 recommend action by IEB, and he took you to that part of the 6 document. I don't think I have to take you back, please look 7 at it if you want to, where the box, 'IEB Action' was not 8 ticked off, and there were words underneath where Ms. 9 Zillinger said, 10 "No action recommended." 11 MR. JULIAN WIEDER: Yeah, no further action 12 required. 13 Q: Right. I want to ask you to change that 14 hypothetical a little bit. I'm going to suggest to you, or 15 ask you if that event, or those events, had occurred prior to 16 1995, prior to the change in the compliant policy and -- and 17 guidelines in June of '95, where Abatement was given the 18 responsibility to make recommendations about IEB action, 19 whereas prior to that, that was not their function; and 20 secondly, if the document had recorded Ms. Zillen -- Ms. 21 Zillinger's recommendation that she testified to 22 her -- here, that she was recommending mandatory abatement by 23 way of an order. So if you make those two (2) changes, sir. 24 And thirdly, if as a reader of the document, 25 and not hypotheticals, you were aware of the history of non-

1 conformances with the Ontario Drinking Water 2 Objections -- Objectives, and non-compliances that are 3 recited in her inspection report that go back to at least 4 1991. 5 Would your answer to the hypothetical change? 6 MR. JULIAN WIEDER: Everything else remained 7 the same? 8 Q: Yes, and just -- just so that we're 9 clear, everything else is the same except you are getting all 10 the occurrence reports, and are expected to make a decision 11 whether to take action, with or without any recommendation. 12 And secondly, the Abatement Officer is 13 recommending mandatory abatement. 14 And thirdly, you know the history of non- 15 compliance or non-conformance in detail, going back to at 16 least 1991? 17 MR. JULIAN WIEDER: But in that situation 18 there would still be the only real violation of legislation 19 of requirement, would be the training record. And there 20 would still be the letters from the PUC, indicating that they 21 would hand -- were going to agree to make the changes, and 22 were now doing the sampling as required. 23 So in that situation I still hypothetically 24 would not have assigned an Investigator to that situation. 25 Q: Fair enough. Sir, I -- I suggest to you

1 that although you might not, even with those three (3) 2 changes, have assigned an Investigator. You would at a 3 minimum have at least directed your mind to the wisdom of 4 having a chat with Abatement, about the question of what 5 should be done next? 6 MR. JULIAN WIEDER: Well if I look at the 7 second page of that Occurrence Report, it indicates that they 8 were going to comply with the requirements for the 9 chlorination and with the sampling, and that it was going to 10 be closely monitored. 11 12 (BRIEF PAUSE) 13 14 Q: Well perm -- permit me to leave, for a 15 moment, and -- and I can assure you I will come back to it. 16 And let me move to Mr. Robertson. 17 Yesterday, Mr. Robertson, if I got it 18 correctly, Mr. Gover asked you about an analogy that you had 19 drawn at one (1) time or another in your career, to police 20 work, where the detective did the investigations and the 21 constable patrol person did the -- the ground work, and that 22 you had analogized that difference, if you like, to IEB and 23 Abatement in the Ministry of the Environment? 24 MR. GORDON ROBERTSON: Yes, sir. 25 Q: Back in your days as a -- a patrolman, if

1 I can put it that way, in your first years as a -- as a 2 police officer, did you have occasion at any time, let's take 3 an easy example, a -- a possible speeding offence. Did you 4 ever have occasion to warn a driver or caution a driver, as 5 opposed to exercising your discretion on reasonable and 6 probable grounds, to lay a charge of speeding against the 7 driver? 8 MR. GORDON ROBERTSON: I always weighed all 9 the factors in every single case, in the case of speeders, 10 and certainly -- and I always didn't just simply issue a 11 ticket. 12 Q: Fair -- so there were occasions where 13 you, just like many other police officers, would elect in 14 your discretion, taking all the factors into consideration, 15 to warn or caution, as opposed to charge? 16 MR. GORDON ROBERTSON: Many times. 17 Q: Well, I think that we as -- as lawyers 18 know that -- that there are always problems or potential 19 problems with analogies, and there may be some in this case, 20 and we'll perhaps come back to that if we have to. 21 But I -- I want you to have that analogy of 22 yours in mind, and look at some of the evidence that we have 23 here and see if we can apply that analogy to the evidence. 24 We've heard here that on numerous occasions 25 the Ministry of the Environment issued warnings, or cautions,

1 or advisories, or requests to the Public Utilities Commission 2 in Walkerton and that, in response to those, the Public 3 Utilities Commission provided to the Ministry assurances, 4 promises, undertakings, whatever and more specifically I'm 5 going to recite to you quickly and I don't want to take a lot 6 of time but, in fairness to my colleagues, I must identify 7 them specifically and in fairness to the record. 8 Number 1, Exhibit 56, tab 3, 1991, Mr. 9 Jaffray's inspection, bacti sampling not in conformance with 10 the ODWO's and I'll tell you in advance, all of these 11 examples relate to bacti sampling. 12 Number 2, Exhibit 56, tab 30, 1995, Mr. 13 Hamilton's letter of June 6 to the PUC re: monitoring of -- 14 of bacti -- bacti sampling and monitoring Ontario Drinking 15 Water Objectives. 16 Number 3, 1995, June 23, Exhibit 31, tab 6, a 17 generic letter from Mr. Page to the PUC, again, relating to 18 follow the Ontario Drinking Water Objectives relating to 19 bacti sampling or we will issue an order against you. 20 Number 4, 1995, October 31, Exhibit 56, tab 21 29, the Apfelbeck inspection, same thing, non-conformance 22 with bacti sampling requirements ODWO. 23 Number 5, 1997, Walkerton is on the list for 24 mandatory abatement as of -- in relation to bacti sampling as 25 of July 31, that's Exhibit 31, tab 9.

1 By the fall, Walkerton is taken off the list 2 and according to the evidence of Mr. Little, given here April 3 17 at pages 202 to 204 and Exhibit 31, tab 11, Walkerton's 4 taken off the list as a result of verbal assurances that they 5 would be in compliance. 6 Number 6, 1998, Exhibit 60, tab 3, February 7 25, the Zillinger report and, secondly, Mr. Koebel's oral 8 assurances to Ms. Zillinger that he will immediately 9 implement the bacti sampling requirements. 10 As part of the same number, an entry by Ms. 11 Zillinger two (2) months later in April on her occurrence 12 report indicating that Abatement will closely monitor the 13 PUC's compliance. 14 Number 7, Exhibit 60, tab 3, 1998, May 6th, 15 the MOE sends a letter to the PUC saying we need immediate 16 compliance with respect to bacti sampling ODWO's. 17 And, finally, number 8, 1998 July, the PUC 18 writes a letter to the Ministry of the Environment saying we 19 will be proceeding to compliance with respect to bacti 20 sampling at the end of July that year. 21 My question of you, Mr. Robertson, is again 22 within the -- whatever limit's may to be imposed as a result 23 of the use of analogy, as a police officer, sir, did you ever 24 warn or caution the same person committing the same offence 25 or potential offence involving potential danger to the public

24
  1  on the same street in the same city eight (8) times before
  2  taking stronger action to protect the public?
  3                 MR. GORDON ROBERTSON:   Never.
  4                 Q:   Mr. Wieder, let me go back to my revised
  5  hypothetical question.  My suggestion to you is that, if you
  6  had known that history and if you had known that she was
  7  recommending a mandatory abatement, I suggest to you, to use
  8  perhaps Ms. Johnson's words, as the -- if you had been the
  9  regional IEB person you would, at a minimum, have walked down
 10  the hall to talk to your counterpart in Abatement and said
 11  what are we going to do about this?
 12                 MR. JULIAN WIEDER:   If I have -- if I was the
 13  district IEB person and I was aware of all of that, yes, I
 14  probably would have talked to them and said, you know --
 15                 Q:   Thank you.
 16                 MR. JULIAN WIEDER:   -- it's been a long
 17  history.
 18                 Q:   Let me go ahead in Exhibit 305 to
 19  paragraph 6.5.  This was an issue relating to a cost-cutting
 20  initiative in 1994 and you had a brief comment about it, I
 21  apologize because I don't think the documents gave you as
 22  much information as you should have been given, let me
 23  attempt to -- to do that now.
 24                 And -- and may I say that with respect to this
 25  question and -- and others, we -- we may have the advantage

1 of additional evidence from, I believe, Ms. Willis, later. 2 So, to an extent, some of these questions 3 merge into other parts of the Operations Division. Please 4 don't hesitate to say, in answering, that that's something 5 that -- that she or others from Operations other than IEB can 6 better answer. 7 In the fall of 1994 -- in 1994, the practice 8 was that environmental officers were asked to be on standby 9 on weekends and at nights, to be called out by SAC in the 10 event of emergencies. And they were only paid if, in fact, 11 they were called out? 12 MR. JULIAN WIEDER: No, that's -- 13 Q: Can I ask you to stay with me for a 14 minute; that's step 1, I'm not asking you for an answer yet. 15 Step 2 is that an environmental officer, I'm told, from 16 Cornwall grieved this idea that he or she could be required 17 to sit around all weekend and not be paid for that, and the 18 grievance settlement board or whoever it is who decides those 19 things, ruled in favour of that environmental officer, with 20 the result that the Ministry was required to pay for 21 environmental officers to be available, even though they were 22 never called out. 23 And step 3 is that in response to that ruling, 24 the Ministry, in due time, changed the -- the arrangements in 25 such a way that environmental officers were only available if

1 they volunteered to be available on a non-paying basis, 2 unless of course they were called out? 3 MR. JULIAN WIEDER: Okay, maybe Ms. Willis 4 can answer this. I was involved with the emergency response 5 program in its early stages. At that time, I'm not sure 6 whether there's two (2),essentially, ways of being available 7 for call-back. It's on-call or being on standby. 8 And it's been a while since I've been involved 9 in those, but one is to be, essentially, immediately 10 available to go, and the other is to be readily available, 11 which means within two (2) hours you'll be able to get out. 12 And the pay is different for both of those. 13 Q: Thank you. And -- and in addition to 14 hearing from Ms. Willis, I think we're going to hear from a 15 witness tomorrow who has something to say to us about the 16 development by SAC of a protocol that eventually became one 17 which involved instructions to SAC personnel to contact local 18 officials, such as the fire department, sewer or water 19 treatment plan operators, and so on. I don't need to go into 20 that detail with you. 21 What I would like you to confirm, if you can, 22 is that, whereas at one point the emergency response officers 23 were being called out by SAC on weekends and at night to deal 24 with emergency situations, subsequently, there wasn't as much 25 of that as there used to be?

1 MR. JULIAN WIEDER: I couldn't comment on the 2 numbers. If you have somebody coming from Spills Action 3 Centre, I'm sure they can give you a much better answer that 4 I can. 5 Q: Fair enough, sir. I'm asking you, 6 though, because of my last question in this area. Maybe I'll 7 ask that first. Is it not so that in the event that an 8 emergency response officer does not go out, IEB is 9 disadvantaged potentially because, for example, samples are 10 not properly gathered at the time? 11 MR. JULIAN WIEDER: Oh, definitely, and I -- 12 Q: From the IEB perspective, then sir, can 13 you confirm that at one point, things were better that way 14 then they were after these changes in 1994? 15 MR. JULIAN WIEDER: Yes. 16 Q: Fair enough. 17 MR. GORDON ROBERTSON: Could I make a comment 18 at this point, sir? I just -- I just wanted to straighten 19 something out. ERP responders don't go out for IEB. I just 20 want to make sure everybody understands that. We don't 21 expect them to go out and collect samples for us so that we 22 can use them in prosecutions. 23 What, from my perspective, an ERP responder 24 goes out and when they collect samples, they're trying to 25 confirm on behalf of the Ministry exactly what was spilled,

1 where it was spilled, and by having those samples analysed to 2 determine if there was some kind of environmental impact. 3 So, it's really important, you know, in order 4 to report back to your -- your supervisors, or whatever, 5 exactly what the details were so that when the general public 6 asks questions with respect to well, how much of this stuff 7 was spilled, what was this stuff, did it cause any problems, 8 then the environmental officer can appropriately respond and 9 say yes, the Ministry responded, we went out, we got the 10 samples, here's what the analysis shows, we had an expert 11 look at the analysis, and here's what it is. 12 Now, where IEB comes in, if we are called to 13 investigate that particular incident, then we will pick up on 14 whatever the -- the outcome of those -- the spill sampling 15 analysis were, and -- for us as to whether or not there was 16 impairment so we can use that. 17 I -- I just wanted to make sure that everybody 18 understood that aspect. They -- they don't go out for IEB 19 purposes to gather evidence. 20 Q: Thank you, Mr. Robertson, that -- that's 21 a very helpful clarification. The -- the purpose of these 22 questions was with respect to the fact that on Saturday, May 23 the 20th of 2000, after the first call to SAC, no ERP 24 responder went out. 25 It may be, and I suggest to you, and this is

1 really more comment than question, and I'll save it therefore 2 in detail for later for argument, that -- that in the event 3 the older system had been in place, the pre 1994 system, it 4 may be that an ERP responder would have gone out on Saturday, 5 May the 20th. 6 And that's why I direct these questions to 7 you, the Panel. I -- I recognize fully that the purpose in 8 the ERP person being there is an abatement and response 9 function, it is not an IEB function. It has an indirect 10 later possible assist to IEB in the event that charges are 11 laid, and only that. 12 MR. GORDON ROBERTSON: Right. 13 Q: Let me go ahead. But just while -- while 14 I'm at that stage, 1994, we'll come to deal with it in a 15 moment, and you've already testified to a lot of financial 16 cutbacks later. 17 I suggest to you, all of you, that indeed 18 there were financial cutbacks to IEB in the 1993/94 period as 19 well. And let me give you one (1) example. 20 On April 14 1993, IEB was -- its direct 21 operating expenditures, DOE was cut by four hundred thousand 22 dollars ($400,000), with the direction that there be no money 23 spent on vehicles, furniture, computers and conferences; do 24 you recall that event, sir? 25 MR. JULIAN WIEDER: I don't recall the

1 specific date of that. I do recall there was constraints on 2 budget, yes. 3 Q: All right, thank you. Let me go next to 4 paragraph 6.1 and 6.2, which are found in Exhibit 305 on page 5 7. 6 And to shorten this, I -- I can tell all of 7 you, if I -- I may, by introduction of these questions, that 8 on behalf of my clients, I -- I don't, in performing our job 9 here, I -- I don't take any issue whatsoever with your 10 evidence to date with respect to changes in culture, emphasis 11 switching from strong enforcement to less strong enforcement. 12 Where I want to ask your further assistance is 13 more specifically respect -- with respect to the precise 14 timing of all of those changes, I'm not going to go through 15 them all. 16 My suggestion to you is, as this document 17 Exhibit 305 suggests, that there were some changes in 18 the -- and I'll say this document in Section 6 is '94 to '95, 19 I'll even expand that back a little further and say '92, '93, 20 '94 and '95, and in that period there were some changes, and 21 I'll give you some specifics. 22 But to start with, I -- I draw your attention 23 to 6.1 and 6.2, you've already read them, you have them in 24 front of you. 25 To assist you with respect to the timing, I

1 want to direct your attention to some specifics as I've said. 2 Number one (1), the Pollution Prevention Office, and I think 3 Mr. Robertson referred to that yesterday, and Mr. Gover may 4 have referred to it in questions. 5 Am I right, first of all, to say that was 6 something that was not located in the Operations Division, 7 either abatement or enforcement -- 8 MR. JULIAN WIEDER: No -- 9 Q: -- but rather one (1) of the other head 10 office divisions? 11 MR. JULIAN WIEDER: -- that's correct. 12 Q: My understanding, and help me if I'm 13 wrong here is, it was certainly not an IEB initiative? 14 MR. JULIAN WIEDER: Nothing to do with IEB. 15 Q: All right. But what it did involve was 16 the creation of a program called P4, or the Four (4) Ps, 17 pollution, prevention, pledge, program. 18 And it was a program by -- whereby regulated 19 entities, companies or Municipalities, were encouraged to 20 make pledges about compliance. And in return for the pledge, 21 presumably there were elements of no mandatory abatement and 22 no enforcement. 23 My instructions are that that office was up 24 and running in the head office of the Ministry, as early as 25 February of 1993?

1 MR. JULIAN WIEDER: Are you asking me a 2 question? 3 Q: Do you have a different recollection? 4 MR. JULIAN WIEDER: No, I -- it was about 5 that time, but the -- in regards to the -- in return for the 6 4P pledge, no enforcement action, that certainly wasn't 7 anything I was aware of. 8 Q: Fair enough. 9 MR. JULIAN WIEDER: If there had been a -- in 10 fact, there is a couple of examples that were rather 11 embarrassing to the Ministry where the company had been given 12 an award and a couple of days later we laid a charge on them. 13 Q: Fair enough. 14 MR. JULIAN WIEDER: And at that point there 15 was not even a process in place that, prior to any of those 16 acknowledgements, were going through, that they would contact 17 the Investigation and Enforcement Branch to see if there had 18 been any charges or whether they were currently under 19 investigation prior to the awards being issued. 20 MS. NANCY JOHNSON: Also, Mr. McLeod, 21 I -- I'd like to add that I never heard of this office so I 22 was actively engaged in -- in my work with the Ministry of 23 the Environment, I -- it's -- I didn't hear of it and the 24 people around me didn't hear it, but I don't think it had 25 much affect on our work.

1 Q: Thank you. Some of the other words found 2 in -- in paragraph 6.2 on page 7 of Exhibit 305, partnerships 3 with regulated entities, self-regulation, self-reporting were 4 encouraged. 5 I suggest to you that those initiatives were 6 also being taken by the Ministry in the early part of the 7 '90s, whether or not they were continued or expanded in the 8 latter part of the 1990s is -- is perhaps another question, 9 but my point is that those initiatives were either up and 10 running or on the way to being so as early as 1992-93. 11 MR. JULIAN WIEDER: I believe they were being 12 discussed at that point, there was also things such as self- 13 monitoring where the company was required to do the 14 monitoring and report back to the Ministry, MISA is a 15 particular example of that, but that -- we were looking at 16 some of those other options and moving things forward in that 17 direction. I'm not aware of it -- impact -- actually being 18 put into place for anything that we were working on. 19 MS. NANCY JOHNSON: And, Mr. McLeod, I might 20 add that Mr. Wieder was at higher level than I was and I 21 don't recall that much of that ever drifted down to the front 22 line levels where I was residing. 23 Q: All right. Let me add just one (1) more, 24 self-audit, and I'll suggest to you that my information, at 25 least, is that in 1991, after some farmers were convicted in

1 prosecutions for stills, the Ontario Federation of 2 Agriculture promoted the idea of farm audits and in response 3 to that the MOE Policy Branch developed an interim policy 4 granting privilege to these farm audits; privilege in the 5 sense that the Ministry of the Environment would not have 6 access to them. 7 By 1993, with this interim policy having been 8 in place for a while, the Ontario Federation of Agriculture 9 wanted the interim policy extended and made permanent and 10 other sectors in the economy wanted the same advantages 11 extended to them and all of that led through that period of 12 time to the development, finally, of a formal policy of the 13 Ministry of the Environment, which was published in 1995, 14 relating to environmental audits and at least limited 15 protection for an entity that did self-audit; do you remember 16 that? 17 MR. JULIAN WIEDER: That's correct. 18 Q: So I -- I ask you those questions 19 because, Ms. Johnson, yesterday, towards the end of your 20 testimony, three (3) examples that you quoted in support of 21 your statement that there had been this major change in 22 culture were partnership, self-regulation and self-monitoring 23 and my suggestion to you is that, while I don't quibble, 24 whatever, with your overall statement, it appears, if those 25 things were happening in the early '90s, then at least some

1 of the change of culture that you referred to, I think you 2 talked in terms of it being a move back to the pre-'85 days, 3 some of that occurred in the first part of the '90s, it 4 didn't all occur in the last part of the '90s; is that fair? 5 MS. NANCY JOHNSON: The vocabulary that 6 you're talking about, self-monitoring, self-regulation and 7 partnerships, I kind of pride myself on knowing the English 8 language a bit and, when -- when definitions start changing, 9 it -- they alert my attention. 10 And I recall things like the vocabulary 11 changing in the summer of '95, to self-monitoring, self- 12 regulation, and partnership, in a way that was apparent to us 13 at -- at the bottom of the line. 14 So, that's -- that's where I mark it. The 15 discussions that I was involved in, for instance, with 16 respect to voluntary, mandatory compliance, I recall 17 incidents between '92, I'd say, and '94, where discussions 18 were centred around regulatory negligence. There was some 19 kind of drifting down from above. There was some concern 20 that we heard about, about whether or not we were enforcing 21 things properly, consistently. 22 And, in fact, one of the things that I did 23 was, there was a bright ideas program with the Ministry, and 24 I suggested through the bright ideas program, based on my 25 experience with the Ministry of Labour and issuance of

1 orders, that field orders be available to Abatement officers 2 to enhance their ability to do some enforcement. 3 And, in fact, the Director, Pat Hollett and I 4 had some discussions about that after I -- I made that 5 recommendation. And, in fact, the conversations and -- and 6 the move toward more mandatory enforcement tools, in my 7 experience, were such that I looked forward to the compliance 8 guidelines and the integration of the two cultures, and the 9 empowerment of our Abatement officers to do more than just 10 voluntary compliance. 11 So, I actually observed and saw and believed 12 that, you know, while Mr. Wieder said there was a lot of 13 things under discussion at that point in time, and I don't 14 really know all the sources of that, that we were moving 15 towards being able to have more instant mandatory abatement 16 in -- in -- through the launching of the compliance 17 guidelines. 18 I was involved in the training, training 19 people with respect to that new guideline, because I believed 20 that it was a good thing for us, and we were moving in that 21 direction. So, Mr. McLeod, there may have been lots of 22 things going on that I wasn't aware of in the Ministry at 23 higher heights than I was allowed to participate in, but at 24 all levels, from where I was sitting, the change came -- in 25 '95, the change in vocabulary, and with a move away from

1 mandatory enforcement. 2 Q: Thank you. Mr. Johns -- or, Mr. 3 Robertson, towards the end of your evidence yesterday, you 4 were asked by Mr. Gover to -- to comment about this, and you 5 told us about in -- how in your world, you had defendants, 6 victims, and witnesses, not partners. And you talked about, 7 I think, clients and stakeholders as being terminology that 8 was foreign to you. 9 Would you agree, sir, that if, in fact, a 10 number of these initiatives relating to partnership, self- 11 regulating, self-modifying, pledging compliance, and so on, 12 were in fact underway in the early '90s, or mid-early '90s, 13 as opposed to only as of '95, then the things that you were 14 talking about in answering Mr. Gover's questions in that 15 regard may well have at least started at that point? 16 MR. GORDON ROBERTSON: Well, they may have 17 been ongoing as Nancy has suggested, at higher levels, but it 18 seems to me, somewhere around '90 -- I'm going to say the 19 mid-'90s, '95, that's when these buzz words started to -- to 20 appear in my view. 21 Q: Okay. 22 MR. GORDON ROBERTSON: And, that's -- that's 23 my recollection. 24 MR. JULIAN WIEDER: Just a point of 25 clarification there. While a lot of these, the idea of self-

1 regulation and that was being discussed in '92, '93, '94, it 2 was still very much in the discussion stage and how we're 3 going to implement it. The effect on the day-to-day 4 operations, the Investigation Enforcement Branch, were non- 5 existent, or minimal to non-existent. 6 If you take a look at the statistics, as -- 7 did yesterday, he said in '92 there was fifteen hundred 8 (1,500) investigations; '93, sixteen hundred (1,600); '94, 9 fourteen hundred and fifty (1,450); '95 drops down to 10 thirteen seventy-two (1,372); '96, it drops down to eight 11 hundred and twenty-one (821), which is half of what it was in 12 '93. 13 So, that was -- '96-'97 was the time that it 14 significantly affected the number of investigations, the 15 number of prosecutions that were initiated by the 16 Investigation and Enforcement Branch. 17 Q: Just on that note, Mr. Wieder, there are 18 three (3) different kinds of statistics aren't there? 19 There's going backwards in time, prosecutions, Crown Briefs 20 and investigations? 21 MR. JULIAN WIEDER: Hmm hmm. 22 Q: With respect to prosecutions, for 23 example, a prosecution that takes place in 1996, I suggest to 24 you, relates to an event that happened in either '96, '95, 25 '94 or even '93; fair enough?

1 MR. JULIAN WIEDER: Fair enough. 2 Q: To a slightly lesser extent, the same for 3 Crown Briefs? 4 MR. JULIAN WIEDER: That's correct. 5 Q: To still a lesser extent, the same for 6 investigations? 7 MR. JULIAN WIEDER: No, investigations 8 assigned would be very much what the -- you can see from some 9 of the occurrences coming through, they're normally assigned 10 within a week of receiving them. 11 Q: Fair enough. Let's look at paragraph 6.3 12 at Exhibit 305, where we selected from your material, the 13 Crown Brief statistic. That's on page 7. 14 Do we not see a rather significant 15 number -- or drop in Crown Briefs from 1994 to '95? 16 MR. JULIAN WIEDER: That's correct. 17 Q: And those hundred and ninety-six (196) 18 Crown Briefs in 1996, sir, would they not relate in large 19 measure to investigations that were started in either 1995 or 20 '94? 21 MR. JULIAN WIEDER: Could be, yes. 22 Q: Thank you. Let me go quickly to the last 23 page of my notes, and in item 6.6 on page 8, Mr. Wieder, that 24 you I take when Mr. Gover asked you, you -- did you say that 25 you -- you didn't have any recollection of the Ministry being

40
  1  criticized in the 1994 period, for example, about using
  2  prosecution first, without -- without trying mandatory
  3  abatement first?
  4                 MR. JULIAN WIEDER:   I don't recall that
  5  particular quote, and I'm not sure who -- who made that
  6  statement.
  7                 Q:   It's not suggested that it's a -- it's a
  8  statement, but however that may be, let -- let me refer you,
  9  for example, to the -- the 1994 prosecution instituted by Mr.
 10  Besner (phonetic) of the North Bay IEB Branch, against
 11  TransCanada Pipelines, which resulted in a six (6) month
 12  trial, spread over two (2) years, 1994 and 1995, wherein a
 13  corporate -- more than one (1) corporation and a number of
 14  executives were originally charged, charges were withdrawn
 15  against a number of the executives at the outset.  The matter
 16  proceeded, and eventually after six (6) months of trial, all
 17  the charges were withdrawn against all of the defendants.
 18                 Do you recall at that time there being public
 19  criticism of the Ministry having failed to consider the
 20  possibility of forms of mandatory abatement, prior to
 21  proceeding with a prosecution?
 22                 MR. JULIAN WIEDER:   I don't recall that, no.
 23                 Q:   All right, thank you.  Lastly, if you
 24  could look with me, Mr. Wieder, to paragraphs 8.1 and 8.2 on
 25  page 10.

1 And again, with respect to your comments or 2 your answers to Mr. Gover. And this may well have been our 3 fault in the way this was set up. 4 First of all, it's intended to suggest in 5 paragraph 8.1 that when Field Orders were used and compliance 6 was achieved by the Field Order, that quite properly meant 7 that it -- it would become unnecessary for IEB to become 8 involved; do you agree with that much? 9 MR. JULIAN WIEDER: In many cases, other 10 cases they proceeded -- basically a Field Order is an 11 abatement tool to bring them into compliance. 12 The prosecution often went in parallel with 13 that, one (1) didn't necessarily eliminate the other. 14 Q: Fair enough. And -- and 8.2, the 15 emphasis on the involuntary abatement to the extent that it 16 continued, and we've all talked about that -- 17 MR. JULIAN WIEDER: Hmm hmm. 18 Q: -- that may have had the effect of fewer 19 mandatory abatement instruments, which in turn could, if 20 breached, give rise to IEB involvement? 21 MR. JULIAN WIEDER: That's correct. 22 Q: In paragraph 8.11, sir, the end of this 23 document, while you offered some comments about this, I -- I 24 don't think you disagreed with the idea that there had been a 25 substantial reduction in the number of Occurrence Reports

1 referred to by Abatement to IEB, or that came to IEB. 2 I think the figures we heard in the evidence 3 yesterday from one (1) of those Audit Reports, I think the 4 Internal Management Audit was that at a point in time prior 5 to that audit, there were four thousand (4,000) occurrence 6 reports a year that IEB was looking at and making decisions 7 upon? 8 MR. JULIAN WIEDER: That's correct. 9 Q: And does tab 11 of your evidence -- if 10 you could go to that with me please, Mr. Wieder; this is the 11 chart, I just want to make sure that I'm reading this 12 correctly. 13 Up in the upper right-hand corner, does it 14 say, "Period August 20" or August 2000? 15 MR. JULIAN WIEDER: Yes. 16 Q: And then, "one (1) month/three (3) 17 months/one (1) year"? 18 MR. JULIAN WIEDER: That's correct. 19 Q: And, if we go to the left side, do we 20 see, "London, Sarnia, Windsor, Barrie, Owen Sound" and then 21 underneath that, "SWR Total"? 22 MR. JULIAN WIEDER: That's correct. 23 Q: And if we go over to the middle of page, 24 Occurrences Suspected Violation Code, do we find three 25 columns there under that heading?

1 MR. JULIAN WIEDER: That's correct. 2 Q: And Office at the SWR Total are the 3 numbers -- I'm -- I'm not sure I can read the first one (1), 4 is it a six (6) or an eight (8) in -- in one (1) month? 5 MR. JULIAN WIEDER: Looks like a six (6) to 6 me, but -- 7 Q: Six (6) and then a twenty-nine (29) and 8 then a one fifty-four (154)? 9 MR. JULIAN WIEDER: Or one sixty-fours (164). 10 Q: Okay. And down at the bottom of the 11 page, do we find the total for the whole Ministry? 12 MR. JULIAN WIEDER: That's correct. 13 Q: And under the Total column, one thousand 14 and fifty-two (1,052). 15 MR. JULIAN WIEDER: For the previous twelve 16 (12) months. 17 Q: For the previous twelve (12) months, as 18 compared to the figure of four thousand (4,000), referred to 19 in the Internal Management Audit report? 20 MR. JULIAN WIEDER: Yes, but there was a 21 change in what was referred to the Investigation and 22 Enforcement Branch prior to the supervisors' positions being 23 eliminated. 24 Prior to them being eliminated, all 25 occurrence -- all violation occurrence reports came to the

1 Investigation and Enforcement Branch and, after the positions 2 were eliminated, only the occurrence reports that the 3 Abatement recommended IEB action or follow-up came through. 4 Q: Exactly. 5 MR. JULIAN WIEDER: So essentially it's hoped 6 the idea was that we were separating out the minor ones, the 7 wheat from the chaff, if you like. 8 Q: Lastly, sir, I think you told us, with 9 respect to this business of the number of Crown Briefs, that 10 the Crown Briefs actually increased back up again in '99 and 11 2000? 12 MR. JULIAN WIEDER: That's correct. 13 Q: Was that, sir, at least in part a 14 function of the fact that by then there were mini briefs with 15 respect to minor offences, in those cases, where not guilty 16 pleas were entered? 17 MR. JULIAN WIEDER: Even if we just take a 18 look at the Part 3 ones, the numbers were back up to where 19 they were -- Part 3 of the Provincial Offences Act , more 20 complicated prosecutions, the numbers were back up to where 21 they had been. 22 MR. ROD McLEOD: Thank you very much, all of 23 you. 24 MR. COMMISSIONER: Thank you, Mr. McLeod. 25 Can we stick with our usual order then away from that? Ms.

1 Nadarajah ... 2 MS. RAMANI NADARAJAH: Yes. 3 4 (BRIEF PAUSE) 5 6 CROSS-EXAMINATION BY MS. RAMANI NADARAJAH: 7 Q: Good morning. I believe you know who I 8 am, I'm representing the Concerned Walkerton Citizens in this 9 matter. 10 Ms. Johnson, we've heard evidence at this 11 Inquiry that the Ministry of Environment set up a sewage and 12 water inspection program in 1990 and there was -- an 13 inspection protocol was established to bring sewage and 14 waterworks in compliance with Ministry policy and guidelines; 15 does that appear, however, Ms. Johnson, that anyone on the 16 working group who were responsible for setting up the 17 protocol had consulted with IEB and my question to you is, is 18 it fairly typical, when setting up an inspection protocol, 19 for Abatement not to make any efforts to coordinate with IEB 20 on how non-compliance will be addressed? 21 MS. NANCY JOHNSON: As I indicated before, 22 there was a bit of a divide and, if those things happen, they 23 happen with our regional supervisor but it wasn't a typical 24 thing in my experience that the two (2) would -- would talk 25 lots about those kinds of things.

1 Q: Were you aware -- you were with the 2 Ministry of the Environment in 1990; is that correct? 3 MS. NANCY JOHNSON: Yes. 4 Q: And were you aware that in 1990 that the 5 SWIP Program had been set up? 6 MS. NANCY JOHNSON: Yes. 7 Q: You were aware of that? How about you, 8 Mr. Robertson -- 9 MR. GORDON ROBERTSON: Yes. 10 Q: -- had you heard of that? Okay. To the 11 best of your knowledge, Ms. Johnson, have any concerns been 12 raised at IEB about this lack of coordination in terms of 13 setting up protocols and how non-compliance should be 14 addressed? 15 MS. NANCY JOHNSON: Well, as I mentioned 16 before, I had concerns myself that I expressed to, initially 17 through the bright ideas program, and then which -- which 18 triggered a conversation with myself and our -- our -- our 19 IEB director, and those kinds of concerns were expressed in 20 my suggestion that field orders be available to front line 21 abatement officers. 22 I had observed that sometimes abatement 23 functions and voluntary compliance would go on forever, and I 24 indicated that in a memo to her, in terms of explanation of 25 why I thought field orders would be appropriate.

1 Q: Have there been any discussions about 2 when there should be a cutoff from voluntary abatement into 3 mandatory abatement and, subsequently, enforcement, along the 4 lines of what's been set out in the compliance guideline? 5 Had -- had any discussion been had with IEB about that? 6 MS. NANCY JOHNSON: In what period of time? 7 Q: When you were there. I mean, you 8 mentioned just now that there was some concern, that there 9 were these protracted negotiations, and voluntary abatement 10 would proceed for -- for -- for a great length of time. Was 11 that a concern to IEB? 12 MS. NANCY JOHNSON: Speaking from my 13 experience, I had initiated some discussions with our 14 district office with respect to some waste -- waste sites 15 that seemed to be endlessly trying to be voluntarily abated, 16 and I had received some occurrences to -- to investigate, and 17 there were some discussions around those waste sites, 18 and -- and, you know, what an appropriate cut-off would be, 19 for instance, in that case. 20 There had been other times and attempts as 21 well, but as far as -- largely through the -- the -- the 22 division between higher abatement and higher IEB officials. 23 I don't know if that was happening, other than through the 24 compliance guideline development and the -- the development 25 of field orders.

1 Q: We've also heard evidence, Ms. Johnson, 2 and Mr. Wieder, you've made comment on this as well, that 3 with respect to the SWIP program, that's -- it had been in 4 existence for almost a decade and with -- you know, in 5 setting this up, it had been set up, there was no mandatory 6 abatement, no director's orders had been issued. 7 If IEB had been consulted in establishing a 8 protocol for SWIP, do you think it would have led to a more 9 coordinated approach in how MOE addressed issues of non- 10 compliance? 11 MR. JULIAN WIEDER: I think we have the 12 background there of the compliance guideline, which gave the 13 overall direction for enforcement action, and when it was 14 appropriate. And to make enforcement action easier, if they 15 had gathered particular documents or whatever, that might -- 16 that might have helped move it forward. 17 But it still wouldn't have changed the 18 backdrop of having the compliance guideline there, which laid 19 out when voluntary abatement was appropriate, when mandatory 20 abatement was appropriate, for when you -- what you 21 considered prior to enforcement. 22 Q: Now, I appreciate that the compliance 23 guideline actually sets out the specific criteria, but it 24 doesn't appear that that, in fact, was implemented, if you 25 have negotiations and voluntary abatement going for seven (7)

1 years. And my impression is if IEB had been involved with 2 setting up the initial protocol with respect to SWIP, do you 3 think it would have led to more coordinated response in 4 addressing issued of non-compliance? 5 MR. JULIAN WIEDER: I really don't know the 6 SWIP program well enough to make a comment on that. I know 7 that with the recent changes to the communal water inspection 8 program, we'd definitely have an investigator on the panel or 9 on the committee that's developing that. 10 Q: Mr. Wieder, you've heard both Ms. Johnson 11 and -- and Mr. Robertson talk about having to attend meetings 12 some time after 1995 regarding a paradigm shift at the 13 Ministry of Environment. And the - the paradigm shift was 14 occurring at the same time that the government was making 15 cutbacks to staff and budget; is that correct? 16 MR. JULIAN WIEDER: That's correct. 17 Q: Okay. 18 MR. JULIAN WIEDER: I don't recall attending 19 any such meeting, though. 20 Q: Now, the Ministry of Environment at that 21 point in time also had a Policy Branch. Are you aware, sir, 22 whether the Ministry of Environment undertook any kind of 23 rigorous policy analysis to assess whether this paradigm 24 shift would lead to more effective environmental protection? 25 MR. JULIAN WIEDER: No, I'm not aware of

1 that. 2 Q: In the past, sir, when the Ministry 3 undertook any major change in policy or change in 4 legislation, it normally undertook a broad base consultation 5 with the public; isn't that correct? 6 MR. JULIAN WIEDER: In most cases, yes. 7 Q: Do you know if any public consultations 8 were made by the Ministry with respect to this Paradigm 9 Shift? 10 MR. JULIAN WIEDER: No, I'm not aware of 11 that. 12 Q: Can you turn to tab 2 of your witness 13 statement, that's in Exhibit 302 I believe, Mr. Wieder -- 14 MR. JULIAN WIEDER: Hmm hmm. 15 Q: -- and that's the chart on fines. 16 MR. JULIAN WIEDER: Yes. 17 MR. COMMISSIONER: Sorry, Exhibit 302? 18 MS. RAMANI NADARAJAH: Yes, that would be Mr. 19 Weider's -- 20 MR. COMMISSIONER: Yeah, tab 2. 21 MS. RAMANI NADARAJAH: Yes. 22 MR. COMMISSIONER: Thank you. 23 24 CONTINUED BY MS. RAMANI NADARAJAH: 25 Q: Now, Mr. Wieder, before we get into tab

1 2, you had stated in your examination-in-chief, that the 2 Ministry of Environment wasn't publishing any information 3 about fines after 1994, but people were still seeking this 4 information through the Freedom of Information Act; is that 5 correct? 6 MR. JULIAN WIEDER: That's correct. 7 Q: And the drop in fines for environmental 8 offences, it's my understanding, sir, was an issue that 9 received considerable coverage in the national media, and 10 particularly the Globe and Mail; were you aware of that? 11 MR. JULIAN WIEDER: And in the legislature. 12 Q: Okay. And is it fair to say, sir, that 13 this dramatic drop in fines were certainly a concern to the 14 Ontario Government? 15 MR. JULIAN WIEDER: I'm not sure -- it was 16 certainly a concern to the Branch, I'm not sure -- I can't 17 speak for the Ontario Government. 18 Q: What about senior management in the 19 Ministry of Environment? 20 MR. JULIAN WIEDER: Pardon me? 21 Q: What about senior management in the 22 Ministry of Environment? 23 MR. JULIAN WIEDER: They certainly requested 24 a lot of briefing notes on that, yes. 25 Q: And it's my understanding, sir, that one

1 (1) of the Government's response to this, and this was done 2 in, I believe November of -- of last year, it was that they 3 passed a -- a Bill, Bill 124, dramatically increasing the 4 penalty provisions for environment offences. 5 Are you aware of that, sir? 6 MR. JULIAN WIEDER: Yes, I am. 7 8 (BRIEF PAUSE) 9 10 Q: I'm going to show you a printout from the 11 Ontario Legislative website dealing with Bill 124. 12 13 (BRIEF PAUSE) 14 15 THE REGISTRAR: If you are filing this as an 16 Exhibit, I need a copy? 17 MS. RAMANI NADARAJAH: Yes, I am. 18 19 (BRIEF PAUSE) 20 21 MR. COMMISSIONER: Exhibit number? 22 THE REGISTRAR: That would be Exhibit 306. 23 MR. COMMISSIONER: Thank you. 24 25 --- EXHIBIT NO. 306: Printout from the Ontario Legislative

1 website dealing with Bill 124. 2 3 CONTINUED BY MS. RAMANI NADARAJAH: 4 Q: Now you see on the first page of the Bill 5 it states: 6 "Tougher environmental penalties asked." 7 MR. JULIAN WIEDER: Yes. 8 Q: Is -- did this Bill actually set up the 9 highest penalty structure for environmental offences in 10 Canada? 11 MR. JULIAN WIEDER: That's my understanding, 12 yes. 13 Q: Hmm hmm, and it says under the -- the 14 first heading, Current Status and Royal Assent, Tuesday 15 November 21st, 2000, so it became law on that date; is that 16 right? 17 MR. JULIAN WIEDER: That's correct. 18 Q: Okay, if you could turn to page 3 of 4 19 and if you go to the heading under Explanatory Note, 20 the -- the second full paragraph it states: 21 "The Bill amends the Ontario Water 22 Resources Act to increase the maximum 23 penalties for offences that impair the 24 quality of the water of any water, and 25 certain offences that relate to water

1 treatment or distribution systems." 2 And then if you turn to the next page, page 4 3 of 4, it states that: 4 "The Bill amends, in all of the above 5 cases, the Bill increases the maximum fines 6 for corporations from one million 7 (1,000,000) to six million (6,000,000) on a 8 first conviction, and two million 9 (2,000,000) to ten million (10,000,000) on 10 a subsequent conviction." 11 See that, sir? 12 MR. JULIAN WIEDER: Yes, I do. 13 Q: So previously the maximums under the OWRA 14 have been one million (1,000,000) for a first conviction and 15 two million (2,000,000) on a second conviction; right? 16 MR. JULIAN WIEDER: That's correct. 17 Q: And then it then goes on to say: 18 "In the case of individuals, the Bill 19 increases the maximum fine from a hundred 20 thousand (100,000) to four million 21 (4,000,000) on a first conviction. And 22 from two hundred thousand (200,000) to six 23 million (6,000,000) on a subsequent 24 conviction." 25 Do you see that, sir?

1 MR. JULIAN WIEDER: Yes, I do. 2 Q: The fines also under environmental 3 legislation, it's my understanding, are imposed on each day 4 or part of the day for when the offence occurred; correct? 5 MR. JULIAN WIEDER: That's correct. 6 Q: So this could be a daily fine. 7 Now, Mr. Wieder, isn't it fair to say that 8 even under the old penalty structure, that prior to November 9 of -- 21st of 2000 your investigators never received anything 10 close to the maximum on a routine basis, did they? 11 MR. JULIAN WIEDER: Not on a routine basis, 12 no. 13 Q: No. Would you agree with that, Ms. 14 Johnson -- 15 MS. NANCY JOHNSON: Yes. 16 Q: -- more than one million dollar 17 ($1,000,000) fines -- close to one million dollar 18 ($1,000,000) fines for any of your prosecutions, were you? 19 MS. NANCY JOHNSON: It wasn't in any of my 20 experience, no. 21 Q: Okay. And what about you Mr. Robertson? 22 MR. GORDON ROBERTSON: The same. 23 Q: And, in fact, Mr. Wieder, the Ontario 24 courts do not routinely approve anything close to -- to 25 million dollar ($1,000,000) fines against companies or even

1 hundred thousand against individuals for a first offence? 2 MR. JULIAN WIEDER: Only on very rare 3 occasions. 4 Q: Only on very rare occasions. And 5 if -- turning now to tab 2 of your witness statement, that's 6 the one (1) that sets out the -- the drop in fines. 7 MR. JULIAN WIEDER: Hmm hmm. 8 Q: Is it fair to say, sir, that the drop in 9 fines we see in tab 2 of your witness statement really had 10 nothing to do with the adequacy of the penalty structure that 11 was in place at that time? 12 MR. JULIAN WIEDER: That's correct. 13 Q: And if you look at the penalty structure 14 in 1995 when the Ministry got approximately -- what -- three 15 million dollars ($3,000,000) in fines and 1998 when -- when 16 it got only eight-six thousand (86,000); that was under the 17 same penalty structure, isn't that right, sir? 18 MR. JULIAN WIEDER: Don't believe there were 19 any changes to the penalty structure during that time period. 20 Q: Okay. Would you agree with me, sir, then 21 that, when the Ontario Government's action in increasing the 22 penalty structure dramatically, it's largely window dressing, 23 it's taking action to address the problem that never really 24 existed? 25 MR. JULIAN WIEDER: It was a change, but the

1 fine structure that we had before, we very seldom achieved 2 that level as well. 3 Q: And, Mr. Wieder, does the IEB or the 4 Attorney General have a system in place that collects fines 5 imposed in environmental cases? 6 MR. JULIAN WIEDER: There is a system to 7 check the fines, firstly in regards to the issuance of a 8 Certificate of Approval where we can refuse to issue a 9 Certificate of Approval until the fines are paid or we could 10 revoke a Certificate of Approval if they are not paid, but 11 collection of fines is essentially the responsibility of the 12 Attorney General's department. 13 Q: Was the Ministry of the Environment ever 14 involved in actually collecting fines, along with the 15 Attorney General? 16 MR. JULIAN WIEDER: They certainly bring the 17 outstanding fines to their attention and over the years 18 they've had a variety of programs of collection agencies and 19 collection groups to try and collect those fines. 20 Q: And what's the current status of -- of 21 that program? 22 MR. JULIAN WIEDER: I am not aware -- it's 23 with -- with the Attorney General, I'm not aware what the 24 status is. 25 Q: Another initiative taken by the

1 Government after the events in Walkerton was to establish a 2 SWAT team; is that correct, sir? 3 MR. JULIAN WIEDER: That's correct. 4 Q: Can you explain what the SWAT team is 5 supposed to do? 6 MR. JULIAN WIEDER: They're supposed to do 7 proactive abatement inspections and abatement follow-up and 8 targeting either sectors or geographical areas. 9 Q: How many people have been hired for the 10 SWAT team? 11 MR. JULIAN WIEDER: I don't know exactly how 12 many. 13 Q: How many -- 14 MR. JULIAN WIEDER: I was involved in some of 15 the interview process and that type of thing, but how many 16 were actually hired and how many are going through training 17 and are in the field now, I don't know. 18 Q: Do you know how many were supposed to be 19 hired, how many people were supposed to make up this team? 20 MR. JULIAN WIEDER: I believe it's a total of 21 sixty-five (65). 22 Q: And are they going to be inspectors or 23 investigators? 24 MR. JULIAN WIEDER: It's going to be a 25 combination, I believe the regional plan was for thirty (30)

1 inspectors and nine (9) investigators. 2 Q: And are your investigators going to be 3 involved in prosecutions under Part 3 of the Provincial 4 Offences Act or --? 5 MR. JULIAN WIEDER: Yes, they'll be primarily 6 dedicated to the occurrences being produced by the SWAT 7 inspectors, but they will be reporting through the 8 Investigation and Enforcement Branch. 9 Q: And are any additional lawyers going to 10 be hired at your Legal Services Branch to deal with increased 11 workload? 12 MR. JULIAN WIEDER: I understand there was 13 resources directed towards Legal Services, but I'm not sure 14 exactly how many or what level that was. 15 Q: Now, the SWAT team is going to be located 16 out of Scarborough; is that correct, they are a separate 17 unit? 18 MR. JULIAN WIEDER: They are in a separate 19 building, yes. 20 Q: Can you explain why the Government 21 thought it was necessary to create a brand new team, and 22 place them in a separate office. Why didn't they simply hire 23 back the junior investigators and the technical support 24 people? 25 MR. JULIAN WIEDER: Wrong -- wrong person to

1 ask that. I wasn't involved in the initial planning of it, 2 or policy development. 3 Q: The name SWAT actually sounds quite 4 impressive to the general public. What -- what does the term 5 actually stand for? Is it an acronym for something? 6 MR. JULIAN WIEDER: It's had a variety of 7 acronyms, Soil, Water, Air Team. I believe at the current 8 time, they're just saying that's the title, SWAT, don't try 9 and turn it into an acronym. 10 Q: And it's my understanding, sir, that the 11 SWAT team will be wearing blue uniforms, similar to OPP; is 12 that correct? 13 MR. JULIAN WIEDER: They have a uniform, 14 that's correct. They'll be uniformed inspect-- inspectors. 15 Q: And your investigators don't normally 16 wear uniforms, do they? 17 MR. JULIAN WIEDER: No, they don't, other 18 than business suits. 19 Q: Is there any particular reason why the 20 government thinks the SWAT team should be placed in these 21 uniforms? 22 MR. JULIAN WIEDER: Again, you're probably 23 better off asking someone that developed the program. 24 Q: It's my understanding, sir, that the 25 government has also considered implementing a communications

1 strategy in relation to SWAT. Are you aware of that? 2 MR. JULIAN WIEDER: No, I'm not. 3 Q: The plan is to stage SWAT photo 4 opportunities, encourage feature stories on the enforcement 5 activities, and issue periodic news releases; you don't have 6 any information about that? 7 MR. JULIAN WIEDER: No, I don't. 8 Q: Is the rea -- is the reason for placing 9 the SWAT team in uniforms simply to appeal to -- to the 10 media? 11 MR. COMMISSIONER: I'm not sure 12 this -- you're welcome to go ahead with it if you'd like, 13 that's -- I -- I sort of hesitate to interfere, but we are 14 here trying to find out what caused the events in May 2000 in 15 Walkerton, and the effect of government policies on those. 16 MS. RAMANI NADARAJAH: Okay, I appreciate 17 that. I -- I'm going to go back to just clarify the Ontario 18 government's strategy on environmental enforcement over the 19 recent years. 20 In 1996, the government eliminated nine (9) 21 junior investigator's positions, correct? 22 MR. JULIAN WIEDER: At that time, yes. 23 Q: The following year, it laid off all the 24 IEB managers? 25 MR. JULIAN WIEDER: Supervisors.

1 Q: Or supervisors. In 1995, it stopped 2 publishing offences against the environment? 3 MR. JULIAN WIEDER: Yes. 4 Q: It prevented investigators from talking 5 to the media without first vetting questions through the 6 Communications Branch? 7 MR. JULIAN WIEDER: That procedure was put in 8 place, yes. 9 Q: Now, after the events in Walkerton, the 10 government plans to hire IEB supervisors back in the regions? 11 MR. JULIAN WIEDER: There are certainly some 12 initiatives that are coming through, such as the clean water 13 inspectors. There is also resources there for the 14 Investigation Enforcement Branch to hire, I think three (3) 15 investigators. 16 Q: And they've dramatically increased the 17 penalty structure under environmental legislation? 18 MR. JULIAN WIEDER: Yes, the Environmental 19 Penalties Act. 20 Q: And you've hired new people to be part of 21 the SWAT team; is that correct? 22 MR. JULIAN WIEDER: That's correct. 23 Q: Do these recent initiatives suggest that 24 there's been another paradigm shift by the Ontario 25 government?

1 MR. JULIAN WIEDER: I'm not sure it's a 2 paradigm shift, but certainly appears that the emphasis on 3 enforcement is increasing. 4 Q: Are the people on the SWAT team hired on 5 a contract or a permanent basis? 6 MR. JULIAN WIEDER: I believe they're all 7 hired on a two (2) -- either eighteen (18) months or two (2) 8 year contract basis. 9 Q: What assurances can you provide, sir, 10 that once the media focus on Walkerton ends, that SWAT teams 11 won't simply be laid off or -- or the unit might not be 12 disbanded? 13 MR. JULIAN WIEDER: Again, I would suggest 14 you raise that question with the Deputy Minister or 15 something. 16 Q: We can't -- we won't have any assurances 17 that they will not be used as another paradigm shift again? 18 MR. JULIAN WIEDER: Again, I couldn't comment 19 on that. 20 Q: My last question is to you, Ms. Johnson. 21 You testified when you were putting together the report 22 'Nothing Left To Cut', the information was sent to you in 23 brown envelopes. I've read over your report, it's fairly dry 24 information, you've got monitoring data, the number of air 25 stations, and cutbacks to water monitoring. Can you explain

64
  1  why MOE staff were so concerned about providing you with that
  2  information?
  3                 MS. NANCY JOHNSON:   There was a lot of fear
  4  pervading the membership and the Ministry at the with respect
  5  to what constituted information that should be public, or
  6  should be suppressed.  
  7                 We had mixed messages going on about, you
  8  know, as I said before, that enforcement wasn't cut, meantime
  9  enforcement was cut, there was communication had to be put
 10  through the Communications Branch before anything went out.
 11                 People were nervous. People had been laid off. 
 12  There had been a lot of fear and -- and concern about
 13  expressing opinions within the Ministry.  It got to the point
 14  where, as I said before, that the -- the messages I was
 15  receiving from around the Province, because I was networked
 16  all around the Province, was that there was an impact on the
 17  work that we did, the reason we were there.
 18                 And people wanted information with respect to
 19  the simple basic state of the environment facts to be
 20  available to the public, thinking that the public should know
 21  this, the public would be interested in knowing this.
 22                 As a result of that, I was simultaneously
 23  reaching out secretly to people, and having teleconference,
 24  just to gather the facts, the dry facts that you're talking
 25  about.  And people were sending me things, E-mails,

1 documents, just to -- to put together the facts and put that 2 information out to the public. 3 I felt I was in the best place in the Ministry 4 to do this work for people. I was the head of the Ministry 5 Union Section, and I -- I did have some armour with respect 6 to -- to -- union armour with respect to doing things like 7 this. 8 So the simple gathering of that information 9 was quite a covert operation. People were nervous, and I was 10 assuring them I would never reveal the sources for this dry 11 information getting out. 12 It got to the point personally, that I feared 13 for my own job. I reached out to a former labour lawyer 14 friend of mine, and asked her if she knew any cases that 15 would define what constitutes a secret within the environment 16 and what should get out. 17 And I made a personal determination that this 18 kind of information shouldn't be secret. We all felt that 19 that was the message we were getting, that it was secret. 20 Regardless of what happened, I was in the best spot to do it, 21 so I put it forward. 22 Q: Thank you, those are all my questions. 23 MR. COMMISSIONER: Thank you Ms. Nadarajah. 24 Mr. Finch...? 25

1 CROSS-EXAMINATION BY MR. F. STEPHEN FINCH: 2 Q: Good morning, I'm Steve Finch from the 3 Walkerton Community Foundation. 4 All this is basically hypothetical, because 5 you were not involved in any of this in Walkerton; is that 6 correct? 7 MR. JULIAN WIEDER: Prior to May of last 8 year, no. 9 Q: Yes, as of May 2000, you were not 10 involved -- your -- your Division was not involved? 11 MR. JULIAN WIEDER: That's correct. 12 Q: Now, in the -- in Exhibit 302 at tab 3, 13 is the 1998 Audit of the IEB. 14 On page 11 of the book that appears to me to 15 be basically a critical comment of the -- of the abatement 16 procedure; is that correct? 17 MR. JULIAN WIEDER: It relates to the 18 abatement procedure in that section, yes. 19 Q: The -- at the bottom of the page where it 20 says that: 21 "There are still staff who are reluctant to 22 follow the compliance guidelines." 23 Are you -- is this a ref -- a reference to the 24 Abatement staff? 25 MR. JULIAN WIEDER: Yes, it relates to some

1 Abatement staff. 2 Q: And the -- under the specific example, 3 the fourth one (1) down: 4 "Lack of action in referring ongoing 5 problems." 6 In what you now know about the Walkerton 7 situation, is what happened there -- could that be classified 8 under lack of action for referring ongoing problems, on the 9 part of Abatement people? 10 MR. JULIAN WIEDER: I mean again, I think 11 we've been through this, that violations of the legislation 12 would be referred to us, or violations of an instrument would 13 be referred to us. 14 In the Walkerton situation where there wasn't 15 a legal requirement for the substantive deficiencies there, 16 they probably wouldn't have been referred to us. 17 Q: All right, could you help me also with, 18 if this had been referred to IEB, by Owen Sound, would you 19 have received a package from them? 20 MR. JULIAN WIEDER: Normally we would get 21 a -- the Occurrence Report, and whatever background documents 22 related directly to it. 23 Q: That's my question. What -- 24 MR. JULIAN WIEDER: If it was a -- in most 25 cases we would get the summary documents, if there was a very

1 large history or a lot of documentation, they would just say, 2 you know, when the investigator's assigned, we'll pass it on 3 to them. 4 Q: So my question is, though, you would have 5 received more than just the occurrence report by itself? 6 MR. JULIAN WIEDER: Normally, yes. 7 Q: So you would have received a copy of the 8 inspection report itself? 9 MR. JULIAN WIEDER: Could be or could be just 10 the front page or the summary page of it. 11 Q: And would the package also have included 12 previous inspection reports? 13 MR. JULIAN WIEDER: Not likely. 14 Q: And your evidence was that, even if you 15 were to have received this because of the situation here, you 16 would not have referred this to any investigation? 17 MR. JULIAN WIEDER: That's correct. 18 Q: And one (1) of the reasons, as I 19 understand it, because it -- the -- two (2) of the items were 20 not a contravention of a regulatory matter and the other one 21 (1) was simply a paper violation? 22 MR. JULIAN WIEDER: And the paper violation 23 wasn't mentioned in the occurrence report, it was only 24 mentioned in the actual inspection report, which I wouldn't 25 have seen anyways.

1 Q: I understand that. So, if you had 2 received this, then one (1) of the problems -- one (1) of the 3 matters that would have prevented you from taking any further 4 steps is the fact that it -- that two (2) of the items were 5 not a contravention of the Regulation? 6 MR. JULIAN WIEDER: Not contraventions of the 7 Regulations, the Act or an instrument -- 8 Q: Right. And -- 9 MR. JULIAN WIEDER: -- that we can enforce. 10 Q: So I -- I need -- need to understand an 11 answer you gave a little earlier. Was it open to you to 12 refer the matter on to get the Certificates of Approval fixed 13 up, to -- to get them so they did contain the conditions; was 14 that open to you to do that? 15 MR. JULIAN WIEDER: It was open to me, but it 16 certainly wouldn't have been something that I would get 17 involved in. Normally, if we're involved in investigation 18 and you have investigators turn up something where it 19 requires a change in Certificate of Approval or there's 20 something that prevents them from enforcing it, the way they 21 felt it should be, they would then relate it back to either 22 our Approvals liaison person or directly with the Approvals 23 Branch or to the Abatement section recommending that they 24 take it to have the Certificate of Approval amended. 25 Q: But you would have seen that these were

1 not conditions of a Certificate of -- of Approval 2 when -- when you got the material? 3 MR. JULIAN WIEDER: I would have seen that 4 they were not anything that we could enforce. 5 Q: And is there any part of your procedure 6 that would have allowed you to have said, I -- I -- there's 7 no investigation that I can do here, but I can pass this on 8 to the appropriate people to correct the 9 deficiency -- deficiencies in a Certificate of Approval? 10 MR. JULIAN WIEDER: The procedure would have 11 been for me to respond back to the district indicating why we 12 wouldn't be doing an investigation and I could recommend to 13 them at that time that they look at either following some 14 mandatory abatement or amending the Certificate of Approval 15 to make it enforceable. 16 Q: But it's nothing that you can do 17 personally -- or directly yourself with the appropriate 18 department? 19 MR. JULIAN WIEDER: Not in our normal 20 procedure, no. 21 MR. STEPHEN FINCH: All right, thank you. 22 MR. COMMISSIONER: Thank you, Mr. Finch. 23 Mr. Grace...? 24 MR. DOUGLAS GRACE: Thank you, sir. 25

1 CROSS-EXAMINATION BY MR. DOUGLAS GRACE: 2 Q: Good morning, members of the panel, my 3 name is Douglas Grace, I'm asking questions on behalf of the 4 Bruce-Grey-Owen Sound Health Unit, the Association of Local 5 Public Health Agencies and Dr. McQuigge. 6 We heard evidence yesterday and it was 7 principally through Mr. Wieder, I believe, that you were 8 first contacted in regard to the Walkerton situation, Mr. 9 Wieder, I believe on May the 23rd and that was in response to 10 a call from Mr. Bye? 11 MR. JULIAN WIEDER: That's correct. 12 Q: And my -- I only have a couple of 13 questions and they both relate to your association, IEB's 14 association, that is, with the Spills Action Centre. 15 I believe at tab 7 of Exhibit 302 you referred 16 to that yesterday and that was a letter from you, Mr. Wieder, 17 to Gary Zikovitz dealing with problems that IEB had with the 18 Skills Action Centre, in that you were not -- or Skills 19 Action Centre did not make a timely request of Abatement 20 staff to get down, get samples, and cases were lost as a 21 result? 22 MR. JULIAN WIEDER: It appears that the main 23 focus of that letter, I guess it's on the third page where 24 I'm really trying to bring it to his -- his staff's attention 25 that when they're making the judgement call as to whether to

1 send someone out or not, that they consider the impact that 2 it could have on any potential enforcement action. 3 Q: And I guess I'd just like to clarify, Mr. 4 Robertson and Ms. Johnson, would you share that concern, or 5 did you share that concern? 6 MR. GORDON ROBERTSON: The -- the context in 7 which the letter was written, absolutely. 8 Q: Ms. Johnson? 9 MS. NANCY JOHNSON: Sure. 10 Q: I ask you then, with that in mind, if you 11 could all turn to tab 12 of exhibit 302, and that's sort of 12 an ongoing occurrence report dealing specifically with 13 Walkerton. 14 It would appear, if I'm reading it correctly, 15 that the first report to the Spills Action Centre is May 20, 16 and it's an anonymous caller reporting adverse water samples. 17 That in and of itself, I gather, would not trigger a call to 18 Investigation and Enforcement Branch; is that correct? 19 MR. JULIAN WIEDER: That's correct. 20 Q: I'd ask you, if you could then all turn 21 to the third page of tab 12, and there's an update on, well, 22 there's two (2) updates, there's abstract number 1, and then 23 there's abstract number 2. I'd like to jump to abstract 24 number 2. 25 May the 21st, if I read it correctly, Clayton

1 Wardell of the Bruce-Grey Public Health Unit is calling SAC, 2 he's advising that there's fifty (50) cases of bloody 3 diarrhea confirmed, two (2) confirmed cases of E. coli, 4 unsure if water distribution is the source. MOH, that's 5 Medical Officer of Health, has issued a boil water advisory 6 for any port or any person on the Walkerton distribution 7 system. Water samples will be tested today and tomorrow. 8 Now, hindsight's a wonderful thing, I suppose, 9 but I'll direct this question, if I could, as a native 10 Sudburian, to the ex-Sudburian on the panel. Ms. Johnson, 11 given that abstract, would you have preferred that IEB be 12 called on the 21st, rather than waiting for the 23rd? 13 MS. NANCY JOHNSON: Yes. 14 Q: Mr. Robertson? 15 MR. GORDON ROBERTSON: Not -- not 16 necessarily. 17 Q: Could you expand on that answer, please? 18 MR. GORDON ROBERTSON: I would respond to 19 start an investigation as to what the problem was. I 20 wouldn't be responding to investigate the cause of bloody 21 diarrhea. What -- what I'm trying to say, the -- the 22 appropriate people, if anybody was going to initially 23 respond, would have been the Abatement people, and obviously 24 there's a - there's a health concern here, and the MOH is 25 involved. That agency, under those circumstances, would have

1 a -- somewhat of a precedent for -- for attending. 2 If -- if there were allegations of a -- a 3 violation which caused illness, then I would -- I would like 4 to know that right off the bat so that I could respond in 5 that regard. So, if someone had said, there's been a -- a 6 spill of material into the -- the drinking water, the 7 drinking water has been poisoned in some way, shape, or form, 8 and Abatement has been alerted, the Medical Officer of 9 Health -- Health has been alerted. Then, under those 10 circumstances, it would be of interest me, you know, to know 11 that, because maybe I can get on my investigation right away. 12 I'm just -- I'm just reading in complete 13 context with this particular occurrence report as a whole, 14 not just that one (1) abstract. 15 MS. NANCY JOHNSON: Could I add to it, Mr. 16 Robertson? 17 Q: Sure. 18 MS. NANCY JOHNSON: From an IEB perspective, 19 you know this -- this abstract is enough obviously to alert 20 us that there was a significant adverse effect, and if I were 21 an Investigator, being a former cop, I know that when you're 22 on the scene when it's happening, it's easier to gather the 23 information. 24 So I still stand by my -- my answer, that yes, 25 as an IEB Investigator, I would prefer to be there to do my

1 job then. But I wouldn't be there, as Mr. Robertson said, to 2 fix the problem. The appropriate people there would be 3 probably the Ministry of Health and the Abatement people to 4 fix it. 5 Q: Well I wasn't asking you to fix the 6 problem, and just -- the question was -- 7 MS. NANCY JOHNSON: Yes -- 8 Q: -- 9 MS. NANCY JOHNSON: -- and further to Mr. 10 Robertson's comment. 11 Q: And, Mr. Wieder, finally over to you. 12 Would you have preferred in that perspective to have been 13 called to investigate this on the 21st, given that abstract 14 number two (2), where people are sick and the MOH has issued 15 a Boil Water Advisory, rather than waiting until the 23rd? 16 MR. JULIAN WIEDER: And -- and as you point 17 out in hindsight definitely, I think at the time though, they 18 were reported even there, that I'm sure that the water 19 distribution system in the source, then they were looking for 20 all kinds of sources at that point, whether it was food, 21 whether it was a restaurant, or what was going on. 22 Q: And finally, one (1) last question. By 23 the time we get to the 22nd, and the Abatement Officer is 24 calling SAC, and I'm -- it's not labelled as a separate 25 abstract, but this is May the 22nd, just at the bottom of

1 page 3, we're now up to ninety (90) to a hundred (100) cases, 2 and the Boil -- of -- of illness, and the Boil Water Order is 3 still in affect, and Phil Bye is calling that back to SAC. 4 Is that the kind of information that you at 5 IEB would like to have known then, rather than on the 23rd? 6 7 (BRIEF PAUSE) 8 9 MR. JULIAN WIEDER: Again in hindsight, the 10 earlier you are into an investigation obviously the better 11 the evidence you're going to get from witnesses at the time. 12 But still I don't believe at that point they 13 were still aware that it was the water causing the problem, 14 obviously we are today. 15 Q: Ms. Johnson...? 16 MS. NANCY JOHNSON: Well, I flow from here 17 where it says the water distribution is the source, or I 18 can't -- does that say unsure, I think -- 19 Q: Unsure, unsure. 20 MS. NANCY JOHNSON: Okay -- 21 Q: Doesn't mention the source. 22 MS. NANCY JOHNSON: -- sorry. And -- and the 23 issue is water samples being tested. I still think I would 24 prefer to be there as an Investigator as soon as possible. 25 Q: And, Mr. Robertson...?

1 MR. GORDON ROBERTSON: I stand by what I -- 2 what I said. 3 Q: Thank you, Members of the Panel, and I 4 think I'm under my time limit for a change. 5 MR. COMMISSIONER: Well everybody did well on 6 the time factor today. 7 Okay, we'll take a fifteen (15) minute break. 8 THE REGISTRAR: Order. The Inquiry will 9 recess for fifteen (15) minutes. 10 11 --- Upon recessing at 11:45 a.m. 12 --- Upon resuming at 11:56 a.m. 13 14 THE REGISTRAR: Order. The Inquiry will 15 resume, please be seated. 16 17 (BRIEF PAUSE) 18 19 MR. COMMISSIONER: Mr. Lamont...? 20 21 (BRIEF PAUSE) 22 23 MR. STEPHEN LAMONT: Thank you, Mr. 24 Commissioner. 25

1 CROSS-EXAMINATION BY MR. STEPHEN LAMONT: 2 Q: Good morning, Members of the Panel, my 3 name is Stephen Lamont, and I represent Willard Page. Mr. 4 Page was the District Manager of the Owen Sound District 5 Office between 1974 and the day he received his surplus 6 notice on January 14th 1997. 7 And I'd like to start with a question for Mr. 8 Wieder. 9 Sir, we've heard a good deal of evidence over 10 the last two (2) days about the Investigation and Enforcement 11 Branch's process of instituting a prosecution. 12 I -- I presume that it's something of an 13 understatement to say that a lot of thought goes into the 14 process of deciding to charge someone with an environmental 15 offence in Ontario? 16 MR. JULIAN WIEDER: You're right, a great 17 deal of thought, yes. 18 Q: And in fact there are several steps that 19 are required before that decision is ultimately taken? 20 MR. JULIAN WIEDER: Yes, and I believe we 21 talked about the number of reviews that go on with the Crown 22 Brief prior to charges being laid. 23 Q: And the initial step in a typical case 24 involves the decision of an Environmental Officer, about 25 whether to recommend an investigation by IEB; is that

1 correct? 2 MR. JULIAN WIEDER: In a typical case, yes. 3 Q: And that typically leads to an Occurrence 4 Report? 5 MR. JULIAN WIEDER: That's right. 6 Q: And then if I'm correct, the next step 7 when that Occurrence Report is received by IEB is that an 8 Investigator first makes an initial determination about 9 whether the matter properly falls within the purview of the 10 Branch or not? 11 MR. JULIAN WIEDER: It's normally done in the 12 manager level prior to it being assigned to an Investigator. 13 Q: Okay. And assuming that the manager 14 feels that that's appropriate and assigns it to an 15 Investigator, the next step involves the Investigator 16 conducting an investigation? 17 MR. JULIAN WIEDER: Yes, initial -- an 18 initial investigation for us to gather the basic information 19 and determine where he's going to go from there. 20 Q: Okay, and then in the course of the 21 investigation, the Investigator is asking themselves the 22 question about whether or not a charge is appropriate? 23 MR. JULIAN WIEDER: They eventually get to 24 that point, yes. 25 Q: And there then followed -- assuming that

1 that decision is made by the Investigator, there then follow 2 several other steps that I don't intend to go through in 3 detail, but we've heard about those. 4 And I presume that I'm correct in saying that 5 during that process what you have is several other people who 6 are turning their minds to the same question, namely is this 7 incident a proper subject for prosecution? 8 MR. JULIAN WIEDER: They're mainly looking at 9 whether there is the evidence to support prosecution at that 10 point. 11 Q: Okay. Now at each of these stages, the 12 persons involved in making the decision are exercising their 13 own judgment on the question; is that fair? 14 MR. JULIAN WIEDER: That's fair. 15 Q: And in exercising that judgment, each 16 person is supposed or expected to rely upon their own 17 experience? 18 MR. JULIAN WIEDER: Their own experience and 19 the guidelines that are in the compliance guideline as 20 regards to informed judgment. 21 Q: Right, their training. 22 MR. JULIAN WIEDER: That's correct. 23 Q: And -- and but last and not least, I'd 24 suggest that the other thing they're considering very 25 carefully, are the particular facts of the case that is put

1 before them? 2 MR. JULIAN WIEDER: Very much so. 3 Q: And you would expect that IEB staff use 4 their judgment in that manner? 5 MR. JULIAN WIEDER: Yes. 6 Q: And the IEB staff would expect, in fact, 7 that Abatement staff would exercise similar judgment in 8 conducting the first step, the step of determining whether or 9 not to make an Occurrence Report? 10 MR. JULIAN WIEDER: Yes, they would execute 11 their own judgment using the compliance guideline as an 12 indicator of the areas that they need to consider. 13 Q: Right, plus considering the particular 14 facts of the case that they're faced with. 15 MR. JULIAN WIEDER: And their past 16 experience, yes. 17 Q: Right. And, Ms. Johnson, do you agree 18 with what Mr. Wieder has said so far? 19 MS. NANCY JOHNSON: Yes, I do, but I would 20 add that there's another fact that is considered, and that's 21 the direction and -- and -- the direction that the Ministry 22 is giving individuals with respect to choices, you know -- so 23 that I would just add that. 24 Q: Okay, Mr. Robertson, do you agree with 25 that so far?

1 MR. GORDON ROBERTSON: I agree. 2 Q: Well staying with you for a minute, Mr. 3 Robertson, let me in fact suggest to you that as an 4 experienced Investigator, the most important information 5 you're looking at in answering your question whether -- 6 whether or not prosecution is app -- appropriate, are the 7 facts of the particular case that you're faced with? 8 MR. GORDON ROBERTSON: Yes. 9 Q: And during your investigation, certain 10 facts may come to light that take on particular significance 11 for you, in determining whether or not a prosecution is 12 appropriate? 13 MR. GORDON ROBERTSON: Yes. 14 Q: Now with that in mind, I'd like to go 15 through briefly, some of the documents that relate to the 16 Brownsville incident, the incident at Brownsville that you 17 investigated that we heard about yesterday, so that I can get 18 a sense of which of the facts in that case were important to 19 you in your analysis of whether or not the prosecution was 20 appropriate in the case of Brownsville. 21 So I would refer you to Exhibit 303, your book 22 of documents and I'd like to start with tab 2, which is the 23 inspection report of Officer Gervais and I want to go through 24 some of the deficiencies that the officer -- the Abatement 25 officer identified in the case of Brownsville, very quickly

1 through a couple of things that Mr. Gover identified 2 yesterday, but also take you to some things that were not 3 discussed yesterday in this report. 4 And the questions I'm going to have for you 5 relate to whether or not these deficiencies, each one (1), 6 was important or not particularly important to you in the 7 course of your investigation. 8 And starting on page 2 of the inspection 9 report, under the heading Permit to Take Water Assessment, 10 what I see just going through this in order of the -- how the 11 document is set out, the first deficiency that's indicated 12 here, in fact, relates to the failure of the operating 13 authority to obtain Permits to Take Water for the two (2) 14 Wells and that was a violation of both Section 34(3) of the 15 Ontario Water Resources Act, as well as a violation of a 16 condition of a Certificate of Approval; you see that? 17 MR. GORDON ROBERTSON: Yes. 18 Q: Was that fact of significance to you, in 19 terms of your decision to prosecute? 20 MR. GORDON ROBERTSON: Well, in terms of my 21 assessment, what that says to me right off the bat is that, 22 if what is written here -- what's indicated here is -- is, in 23 fact, the facts, then the -- the authority is in violation 24 of -- of a piece of legislation right off the bat so I would 25 certainly look at that.

1 Q: Okay. Now, then there were various 2 conditions in the Certificates of Approval, Mr. Gover took 3 you through those, I don't intend to do that in detail, but 4 am I correct in assuming that the most significant one (1) of 5 all of these violations for you was this unauthorized 6 installation of a hydrogen peroxide piece of equipment? 7 MR. GORDON ROBERTSON: Well, it's 8 significant, but I look at things from the totality of -- of 9 the findings -- 10 Q: Okay. 11 MR. GORDON ROBERTSON: -- and the -- the 12 number of alleged violations of a Certificate of Approval 13 would cause me alarm and, not just one (1), they're 14 all -- any violation that -- that's mentioned here, to me, 15 is -- is significant. 16 Q: Right. Well, and just to clarify then 17 your view of that with something that Mr. Wieder was 18 testifying about yesterday and today. 19 You remember he talked about violations of the 20 reporting regulations for 3-5-93 and we talked about 21 the -- he talked about the failure to report properly with 22 respect to training records and call that a paper violation 23 and, therefore, not something that IEB was as interested in, 24 if I can use that phrase, as other violations that would come 25 to your attention; is that your experience as well?

1 MR. GORDON ROBERTSON: Well, that type of a 2 violation, if that was the only -- 3 Q: Right. 4 MR. GORDON ROBERTSON: -- one (1) that was 5 indicated, the first thing I would say, such -- such a minor 6 type situation, why wouldn't a ticket be issued right off the 7 bat upon found committing, I mean, is it wo