Executive Summary: Key Legal and Evidentiary Issues

• Potash Corporation of Saskatchewan Inc. (PCS) sought judicial review of the Environmental Protection Tribunal's decision upholding ten notices of violation (NOVs) for the death of migratory birds trapped inside a coverall structure at its mine site.

• The Tribunal found that closing the overhead doors, which trapped 88 Barn Swallows without water over a hot weekend, constituted the actus reus of killing migratory birds under paragraph 5(1)(a) of the Migratory Birds Regulations, 2022.

• PCS argued the criminal law Kienapple principle against multiple convictions from the same factual nexus should apply, but the Court held this principle does not extend to administrative monetary penalties, which are explicitly not offences.

• Whether issuing ten separate NOVs — one per necropsied bird — rather than a single NOV constituted an abuse of process was a central question, with the Court finding no evidence of bad faith or improper conduct by the enforcement officer.

• Interpretation of the word "thing" in Rule 53 of the Policy Directive was contested, with the Tribunal reasonably concluding it referred to each individual bird killed, not the single act of closing the door.

• Administrative monetary penalties totalling $50,000 (ten NOVs at $5,000 each) were upheld as correctly calculated and well below the potential fines under the criminal offence regime of the Migratory Birds Convention Act.

The incident at PCS's Nutrien Allan Potash mine

On the morning of September 6, 2022, two environmental engineers employed by Potash Corporation of Saskatchewan Inc. (PCS) discovered approximately 36 dead birds inside a maintenance coverall structure at PCS's Nutrien Allan Potash mine near Allan, Saskatchewan. PCS retained Canada North Environmental Services Limited Partnership (CanNorth) to inspect the scene, and that afternoon CanNorth found 88 freshly deceased Barn Swallows within the structure. PCS voluntarily reported the incident to the Canadian Wildlife Health Cooperative (CWHC) on September 7, 2022, providing the 88 bird carcasses for examination. Environment and Climate Change Canada (ECCC) officers subsequently inspected the coverall structure on September 12, 2022, finding it was used day to day for housing equipment and supplies. A necropsy was conducted on ten of the 88 carcasses, and the CWHC wildlife biologist's report found the cause of death to be emaciation and dehydration, with all ten specimens testing negative for High Path Avian Influenza.

The closure of the coverall structure doors

Evidence from surveillance footage reviewed by PCS's superintendent showed that someone had closed the overhead door of the coverall structure at 2:31 p.m. on Friday, September 2, 2022, and the door was not opened again until 8:01 a.m. on Tuesday, September 6, 2022. PCS could not determine whether the individual who closed the door was a PCS employee or one of the numerous contractors on site on any given day. The Tribunal found, on a balance of probabilities, that closing the doors prevented the birds' escape and trapped them inside the structure, where they had no access to water. The birds' dehydration, combined with the hot weather in the region over the weekend that the birds were trapped, caused their deaths.

Issuance of the notices of violation and administrative monetary penalties

On August 16, 2023, an ECCC enforcement officer issued ten separate notices of violation (NOVs) against PCS for contraventions of paragraph 5(1)(a) of the Migratory Birds Regulations, 2022 — one for each of the ten deceased birds examined by CWHC. PCS was assessed ten administrative monetary penalties (AMPs) under the Environmental Violations Administrative Monetary Penalties Act (EVAMP Act), each comprising a $2,000 base penalty and a $3,000 environmental harm amount, totalling $5,000 per violation and $50,000 in the aggregate. On September 13, 2023, PCS submitted a request to the Tribunal for review, pursuant to section 15 of the EVAMP Act, of all of the NOVs.

The Tribunal's decision and PCS's arguments on judicial review

By its decision dated November 15, 2024, the Tribunal upheld all ten NOVs and dismissed the review. The Tribunal addressed three issues: whether the Minister had established the elements of the violations on a balance of probabilities, whether issuing ten NOVs was an abuse of process, and whether the penalties were correctly calculated. PCS then brought a judicial review application before the Federal Court, arguing that the Tribunal unreasonably failed to identify the specific actus reus, did not analyze how one act of closing a door could support ten separate violations, and should have applied the criminal law Kienapple principle against multiple convictions arising from the same factual and legal nexus.

The statutory and regulatory framework at issue

The case turned on several key statutory provisions. Paragraph 5(1)(a) of the Migratory Birds Regulations prohibits a person from capturing, killing, taking, injuring, or harassing a migratory bird without a permit. Section 7 of the EVAMP Act provides that a person who contravenes a designated provision commits a violation and is liable to an administrative monetary penalty determined in accordance with the regulations. Importantly, section 11(1) of the EVAMP Act removes the defences of due diligence and honest mistake of fact, making this an absolute liability regime, while section 11(2) preserves common law defences such as abuse of process to the extent they are not inconsistent with the Act. Section 13(2) explicitly states that a violation is not an offence. The Policy Directive (Rule 53) provides that a separate NOV may be issued for "each individual thing," and the Tribunal interpreted "thing" as referring to each individual bird killed rather than the single act of closing the door.

The Federal Court's analysis on the actus reus and multiple NOVs

Justice Strickland found that the Tribunal had clearly identified the causal link between the actus reus — the closing of the overhead coverall structure doors — and the statutory prohibition against killing migratory birds under paragraph 5(1)(a). The Court agreed it was reasonable for the Tribunal to conclude that the same actus reus applied to each of the ten migratory birds for which NOVs were issued and that were killed by this act, as confirmed by the necropsies. On the Kienapple argument, the Court held that PCS provided no jurisprudence demonstrating that this criminal law principle has been applied in non-criminal administrative proceedings and/or to administrative monetary penalties, and noted the EVAMP Act explicitly states that a violation is not an offence. Even if the principle could apply, the Court observed that the rule against multiple convictions does not apply when the convictions relate to different victims — here, each NOV was for the killing of a different migratory bird.

The Federal Court's analysis on abuse of process

The Court found the Tribunal had properly engaged with PCS's abuse of process argument, recognizing its jurisdiction to consider abuse of process as a common law defence preserved by subsection 11(2) of the EVAMP Act. The Tribunal applied the correct principles, finding no evidence that the Officer acted in bad faith, was arbitrary, discriminatory, or ill-informed about his statutory responsibilities. The Court noted that the Officer had considered enforcement options, obtained organizational oversight and approval from the Operations Manager, and issued ten NOVs based on the ten necropsied birds with conclusive findings regarding cause of death — an explained exercise of discretion that was not arbitrary. PCS's argument that the Tribunal relied on an absurd interpretation of the EVAMP Act was also rejected; the Court pointed out that the cumulative $50,000 in penalties was well below what PCS could have faced under the criminal offence regime of the Migratory Birds Convention Act, where the potential maximum fine for PCS as a corporation, assuming a first offence, would be $2.5 million on summary conviction and $5 million for an indictable offence.

The ruling and outcome

The Federal Court dismissed PCS's application for judicial review, finding the Tribunal's decision to be justifiable, transparent, intelligible, and reasonable. The Court concluded that the elements of the prohibition against killing a migratory bird, contained in paragraph 5(1)(a) of the Migratory Birds Regulations, were established for each of the ten NOVs, and that the issuance of ten NOVs, rather than one, was not an abuse of process. The Attorney General of Canada, as the successful party, was awarded a lump sum costs award of $4,000 as mutually agreed upon by the parties. The total administrative monetary penalties of $50,000 imposed on PCS were upheld.