Executive Summary: Key Legal and Evidentiary Issues

• Imperial Metals Corporation and Mount Polley Mining Corporation applied for severance from their co-accused, Wood Canada Limited / Wood Canada Limitée, in a criminal prosecution arising from the 2014 failure of the Mount Polley Mine Tailings Storage Facility.
   
• Central to the severance application was the Applicants' argument that delays caused by conflict-of-interest issues affecting Wood Canada's legal representation would infringe their s. 11(b) Charter right to be tried within a reasonable time.
   
• Disqualification of Wood Canada's prior counsel, McCarthy Tétrault, due to its prior representation of two engineers involved in the TSF — Mr. Steven Rice and Ms. Laura Fidel — created a file transfer dispute between Wood Canada's new counsel and the Crown.
   
• Antagonistic defences were raised as a potential concern, given that the co-accused were in a contractual relationship regarding the TSF and that prior civil proceedings indicated IMC and MPMC intended to blame Wood Canada's engineers for the failure.
   
• Severance is the exception rather than the rule under Canadian criminal law, and courts must balance the individual accused's right to a timely trial against the systemic efficiencies and truth-seeking benefits of joint proceedings.
   
• Justice Maisonville found the application premature, as Wood Canada's new counsel had taken steps to obtain the file from McCarthy Tétrault and no adjournment had yet been sought by Wood Canada.

Facts of the case

Imperial Metals Corporation ("IMC") and Mount Polley Mining Corporation ("MPMC"), together referred to as the Applicants, along with Wood Canada Limited / Wood Canada Limitée ("Wood Canada"), face 15 counts under the Fisheries Act, R.S.C. 1985, c. F-14. The charges arise from the catastrophic failure of the Mount Polley Mine Tailings Storage Facility ("TSF") in central British Columbia during the night of August 3, 2014 and into the early morning of August 4, 2014. That failure resulted in the deposit of approximately 21 million m³ (21 billion litres) of mine effluent and sediment into bodies of water near the Mount Polley mine. IMC and MPMC brought this application seeking severance from their co-accused, Wood Canada, while Wood Canada — though not seeking severance — filed submissions supporting the Applicants' position.

The proceedings were complicated by an earlier ruling on March 2, 2026, in which Justice Maisonville ordered the disqualification of Wood Canada's then-counsel, McCarthy Tétrault, on the basis of that firm's prior representation of two engineers — Mr. Steven Rice, the senior engineer, and Ms. Laura Fidel, the engineer of record on the TSF. Following that ruling, Wood Canada retained counsel at Borden Ladner Gervais ("BLG"), who subsequently withdrew from the file. Mr. Scott Fenton was thereafter retained as Wood Canada's new counsel. Difficulties arose when Mr. Fenton sought to obtain McCarthy Tétrault's file: the Crown took the position that there should be no communications between Mr. Fenton and McCarthy Tétrault and no transfer of any portion of the firm's work product. The Crown maintained that anything received from McCarthy Tétrault would be tainted due to that firm's prior representation of Mr. Rice and Ms. Fidel, and that Mr. Fenton would essentially have to start the file "from scratch."

Positions of the parties and the file transfer dispute

The Applicants argued that this situation effectively held their trial "hostage" — that the unresolved conflict issues surrounding Wood Canada's legal representation would cause delays that infringed their s. 11(b) Charter rights and that a joint trial was therefore no longer in the interests of justice. Mr. Fenton, in correspondence dated April 16, 2026, took the position that the Crown's stance was inconsistent with the Law Society Code of Professional Conduct for British Columbia, Rule 3.4-20 and Commentary, which requires disqualified counsel to transfer the file to new counsel subject only to reasonable measures ensuring no disclosure of the protected party's confidential information. He outlined fourteen categories of documents he would seek from McCarthy Tétrault that, in his view, would not implicate the confidential information of Mr. Rice or Ms. Fidel. By May 3, 2026, the Crown had moderated its earlier position somewhat, indicating it had no specific knowledge of the contents of the McCarthy Tétrault files and that determining whether the transfer complied with conflict-of-interest law was a matter for Mr. Fenton to resolve as new counsel. During the hearing itself, the Crown's position shifted further — by the conclusion of the application, the Crown indicated it would not preclude Mr. Fenton from contacting McCarthy Tétrault to obtain the files necessary to address outstanding applications already filed.

Relevant statutory and legal framework

Section 591(3)(b) of the Criminal Code, R.S.C. 1985, c. C-46, provides the court with authority to order separate trials where two or more accused are charged and the interests of justice so require. The Supreme Court of Canada in R. v. Last, 2009 SCC 45, identified seven factors relevant to severance of accused, including: general prejudice to the accused, complexity of the evidence, the possibility of inconsistent verdicts, the desire to avoid a multiplicity of proceedings, the length of trial, the potential prejudice to s. 11(b) rights, and the existence of antagonistic defences. This analysis requires striking a reasonable balance between the risk of prejudice to the accused and the public interest in a single trial. More recently, in R. v. Jacques-Taylor, 2026 SCC 20, Justice Côté, writing for the majority, underscored that joint trials should be held wherever it is in the interests of justice to do so and are to be "the norm rather than the exception." The court also emphasized in that decision that all counsel have a duty to work together so that the accused's right to a trial within a reasonable time is respected. The court further noted that severance is not a cure-all for delay in multi-accused proceedings — as articulated in R. v. Singh, 2016 BCCA 427 — and that ordering severance routinely as a means of protecting s. 11(b) rights would only contribute to further systemic delays.

Reasoning and analysis

Justice Maisonville found that there was an undeniable legal and factual nexus between the counts and the co-accused: the parties were in a contractual relationship regarding the operation and management of the TSF, and the Crown alleged they frequently acted in concert. On the question of antagonistic defences, the court noted that materials filed on this application — originating from the civil action between the co-accused — indicated that IMC and MPMC had looked to blame Wood Canada's two engineers for the TSF failure. While counsel for IMC and MPMC submitted at the hearing that all parties were working as a team, the court observed this remained a matter that could still emerge at trial. The possibility of inconsistent verdicts was acknowledged as a risk, but one that was not yet fully developed at the applications stage, rather than at trial.

On the multiplicity of proceedings factor, the court found that this case would be complex and involve dozens of witnesses required to testify against both accused. The factual similarities and interwoven evidence strongly favoured a joint trial from an efficiency standpoint. The court also noted that no Agreed Statement of Facts had yet been finalized, and that IMC and MPMC had not advanced the matter as quickly as possible — outstanding issues regarding agreed admissions and timely advancement of applications remained unresolved prior to the severance application being brought.

On the core issue of delay arising from Wood Canada's counsel-change difficulties, the court found the situation had materially changed during the hearing itself: Mr. Fenton had indicated his intention to proceed with transferring the file from McCarthy Tétrault in line with his professional obligations, without requiring further Crown or court involvement, and Wood Canada had not sought any adjournment. The court found it difficult to characterize the situation as IMC and MPMC being held "hostage" given these developments. It further noted there was no indication yet that the matter would not conclude within the timeframe contemplated by R. v. Jordan, 2016 SCC 27.

Ruling and overall outcome

Justice Maisonville dismissed the severance application. The court found that, at that point in the proceedings, the application was premature — the anticipated delay that formed the core of the Applicants' argument had not yet materialized, and steps were being taken to resolve the file transfer issue without court intervention. The Crown, Rex, was the successful party. No monetary award, damages, or costs were ordered.