Appealing environmental protection orders: Lessons learned from a decade-long court battle

This article was prepared with the assistance of summer law student Sam Riendeau.

After more than a decade, a long court battle that sheds new light on the approach to appealing environmental protection orders (EPOs) may have finally come to an end.


Envirogun v Saskatchewan (Minister of Environment), 2011 SKQB 339, involved a company (“the Company”) that operated a hazardous waste facility in the Rural Municipality (RM) of Sherwood. The Company’s operations included collecting, storing and treating hazardous waste.

After a tax dispute between the Company and the RM, the RM took title to the property where the Company’s facility was located. The Company vacated the property but left behind hazardous waste. In March 2011, Saskatchewan’s Minister of Environment issued an EPO directing the Company to clean up hazardous substances on the property.

The validity appeals

The Company initiated a statutory appeal challenging the validity of the EPO. The Company argued that (1) it was not afforded an adequate opportunity to meet the Minister’s concerns and avoid the EPO; (2) the EPO was invalid because the Company was no longer in control of the property; and (3) the Company was unaware of any discharges of hazardous waste prior to vacating the property and should not be held responsible for the cleanup.

A Saskatchewan Court of Queen’s Bench judge held that the EPO was valid, finding that the Company had advance notice of the directions in the EPO and that the EPO was consistent with the “polluter pays” principle. The Saskatchewan Court of Appeal upheld this ruling.

Conviction and subsequent appeals

After the validity appeals, the Company was charged under provincial environmental legislation for failing to comply with the EPO. At trial, the Company again tried to challenge the EPO’s validity.

The trial judge determined that this was a collateral attack on the validity appeals. The trial judge also considered whether the offences the Company was charged with were strict liability offences or offences that require proof of intent. For strict liability offences, the prosecution does not need to prove that the defendant intended to commit the offence. However, the defendant still has an opportunity to rebut the charges if they can establish they were not negligent. The trial judge held that the offences were strict liability.

In 2018, the Saskatchewan Court of Appeal agreed with the trial judge that challenging the validity of the EPO in the regulatory proceedings was a collateral attack. The Company was denied leave to appeal the Saskatchewan Court of Appeal’s decision to the Supreme Court of Canada.

The Saskatchewan Court of Appeal remitted the matter back to the Saskatchewan Court of Queen’s Bench to address the strict liability issue, among other matters. The Company argued that the offences required proof of intent because the EPO imposed a positive obligation on it to do certain things to clean up the contamination and failing to comply would be similar to criminal contempt, which requires proof of intent. The Saskatchewan Court of Queen’s Bench rejected this argument, stating that these were regulatory offences, which are often strict liability offences, and there was no evidence of any statutory language that would require proof of intent.

The Company again appealed to the Saskatchewan Court of Appeal. In 2023, the Saskatchewan Court of Appeal dismissed the appeal, finding that the offences concerned public welfare and did not contain any wording that required specific intent.


The two main takeaways from this saga are:

  • If a court finds that an EPO is valid on a statutory appeal, the opportunity for a defendant to challenge the validity of the same EPO in the context of regulatory charges is significantly diminished.
  • Failing to comply with an EPO is a strict liability offence and the prosecution does not need to prove specific intent. The defence may still avoid liability if they establish they did their due diligence to prevent the offence from occurring.

If you or your organization have questions about environmental protection orders, please contact the lawyers from our Environmental practice group, who would be pleased to assist you.

Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.