Lake Louise Ski Resort has no plans to file a second legal challenge of the $2.1 million fine after a Calgary judge dismissed the company's appeal to have the sentence reconsidered.
“Well, I think we were obviously surprised and disappointed with the decision made … we weren’t expecting that response, but that is the response we got,” said Dan Markham, director of the Lake Louise Ski Resort brand and communications.
“I think at this point in time, we are looking forward to moving forward.”
The fine and charges stem from a 2013 incident in which Lake Louise Ski Resort employees did not have the required permits in place to do tree clearing on Ptarmigan Ridge and ended up destroying 38 endangered whitebark pine trees.
In 2017, the ski resort pleaded guilty to two charges, one under the Species At Risk Act (SARA) for cutting down endangered trees in a national park and one under the Canadian National Parks Act for cutting down trees in a national park without a permit. The incident took place between Aug. 12 and Sept. 23, 2013.
During the 2018 decision, Judge H. A. Lamoureux heard testimony from Jed Cochrane, an expert witness for the Crown in connection with all aspects of management of flora in the Canadian Rocky Mountains, and in particular whitebark pine. Cochrane, a Parks Canada employee, told the court it was important to count the number of stems of the endangered species, as each stem provides cones that led to the propagation of the trees.
The tree species, which exists only at higher elevation in the Rocky Mountains, was listed as endangered in 2012 and is considered important for stabilizing steep slopes, influencing the amount of snowmelt by sustaining snowdrifts and providing critical food, cover and shelter for many species of wildlife.
“[W]hen whitebark pine is managed in the national park, each stem is protected as it is an individual for the purpose of reproduction as defined in section (2)1 of SARA,” Cochrane said during his testimony.
Accepting the evidence, the judge found the Crown proved beyond a reasonable doubt that there was a loss of 58 whitebark pine stems and set the fine at $27,586 for each stem, resulting in the $1.6 million charge under SARA. The ski resort was also fined $500,000 under the Canadian National Park Act for cutting down trees in a national park without a permit, and required to implement a $40,600 remediation order. The remediation order directed the ski resort to develop a plan to replace the whitebark pines, including the cost of growing seedlings to be planted at the ski hill.
Last year, the ski resort appealed the $2.1 million decision from the trial judge, stating the fine was “too high.”
In the appeal, Lake Louise Ski Resort said the number of plants versus stems should have been counted, arguing the judge imposed a “demonstrably unfit sentence, therefore violating the sentencing principle of parity.”
“The ski area submits that a global penalty of $350,000 is appropriate,” the recent appeal decision read.
The appeal submitted in 2019 was dismissed last week by Justice B. E. Romaine, who said the decision was sound and there was “no basis for the court to interfere.”
In her appeal, Justice Romaine said she looked at several factors including the allegation the damage was caused by unauthorized work by two crew members, where the weight of the evidence supported the opposite, that the work plan was authorized, supervised by a foreman and known to have been undertaken by more senior members of management; and reports that the $2.1 million fine could be characterized as a “fatal blow” to the ski resort, as it amounts to over 60 per cent of its net revenue.
In the appeal, Romaine acknowledged the mid-sized corporation had a gross annual income of just over $36 million in 2012, and as noted by the Crown, “the ski area does not argue that it is unable to pay the fine, but only notes its magnitude against the net income. It presents no submission with respect to financial hardship,” the appeal read.
It was also noted in the appeal that the fine of $1.6 million is not the maximum fine available under section 97 of SARA, which is $300,000 per offence.
“The sentencing judge was challenged by the fact that there are few environmental sentencing precedents analogous to the subject case. She provided a careful analysis and thorough reasons for her decision,” Romaine wrote.
“I am satisfied that, in these circumstances of these offences and this offender, the sentences imposed were fit sentences.”
Crown prosecutor Alex Bernard said both levels of court should be commended for how well they engaged with complicated evidence and scientific issues.
“The sentence sends a strong deterrent and denunciatory message in support of legal protections in the Species at Risk Act and the Canadian National Parks Act of our country’s most fragile natural resources. The two objectives overlap too, because our national parks have a vital role to play in the recovery and protection of species at risk,” Bernard wrote in an email.
The Crown also said the decision could be considered a landmark case.
“This is an important case because there are very few court decisions relating to sentences for offences under the Species At Risk Act and the Canadian National Parks Act, especially for offences that are as serious as these, and committed by corporate offenders the size of the Lake Louise Ski Area,” Bernard said.
“The decision of Justice Romaine also provides some helpful guidance on applying a provision of the Species at Risk Act that allows a sentencing judge to calculate a fine amount as if each animal or plant affected by the offence is by itself a separate offence.”
Meanwhile, ski resort officials said they believe a lot of positive has come from the experience, including Lake Louise becoming a leader in environmental stewardship in the park.
During the appeal, the defence noted that in addition to the remediation plan, the ski hill established an interpretation program that includes whitebark pine ecology, provides fact sheets to visitors and identifies trees on its leasehold with educational signage.
“The Lake Louise ski area long-range plan was approved by Parks Canada … this has been a significant distraction and we are looking forward to moving forward,” Markham said.
The Lake Louise Ski Resort’s long-range plan includes reducing the lease area from 2,190 hectares to 1,162 hectares, protecting approximately 1,000 hectares or 800 Canadian football fields of land from future development.
The plan also includes adding new chairlifts and upgrades to existing chairlifts, new day lodges and better parking capacity and traffic flow management – all while continuing to “protect local sensitive areas and species, while advancing environmental awareness and conservation goals for future generations.”
