Construction company can't blame the weather for incomplete work, says judge

Cobalt Construction successfully used the defence of impossibility in territorial court citing winter conditions, but an appeal judge wouldn't let it fly.

Cobalt Construction used the defence that it couldn't get soil samples in March

The Yukon Supreme Court overturned a territorial court not guilty verdict that had been based on the defence of impossibility. (Dave Croft/CBC)

The Yukon Supreme Court has rejected a road construction company's defence that they couldn't get a job done because of the weather. 

Cobalt Construction Inc. and the company's president Shaun Rudolph were charged under the territorial Environment Act for contravening an environmental protection order related to the decommissioning of a land treatment facility near Destruction Bay, Yukon.

The government claimed the company had failed to "submit a detailed decommissioning plan for approval" for the Nines Creek Land Treatment Facility which Cobalt began operating to remediate a fuel spill in 2013.

The case was tried in territorial court, where Rudolph testified the company was under a deadline that required it to test soil samples in March when the ground was frozen.

The judge accepted the defence of impossibility —​  when the defendant claims the act was factually or legally impossible to commit — and acquitted the company and Rudolph. 

The territorial government appealed to the Yukon Supreme Court, however, saying it is possible to get soil samples in March.

In a written decision dated July 30, the appeal judge, Justice Ron Veale, didn't rule on whether it is or isn't possible, but he said this was not a case where it was OK to blame the weather.

Veale said the company has many years experience working in the North so it was well aware of what conditions are like in March.

Yet, he said, it did not contact government officials to explain the problems it was facing with the soil sampling, or ask for an extension.

"There is a positive obligation on an individual to take reasonable steps to avoid committing an offence. Where those reasonable steps are not taken, offending conduct cannot be justified on the basis of impossibility," Veale's decision said.

He reversed the acquittal and sent the case back to territorial court for sentencing.


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