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Do you manage a business? Do you know the difference between an EPA inspection and an EPA investigation? In the newest post from our blog Clearing the Air, Paula Lombardi looks at this important issue and offers advice that will help your business be prepared.As mentioned in the last post, the Environmental Protection Act (EPA) and the Occupational Health and Safety Act (OHSA) give inspectors very broad and general powers to conduct warrantless inspections.

The EPA s 156 authorizes provincial officers to conduct warrantless inspections of public property without obtaining any prior permission or authorization.  Provincial officers can inspect offices, facilities operating under an environmental compliance approval, motor vehicles, and locations where there has been a spill.  

There is a distinction that must be noted between provincial officers who are conducting an inspection and those conducting an investigation.  Inspections are used to oversee businesses and individuals and ensure that they are complying with the terms and conditions of their environmental approvals and the EPA.  During an inspection problems can be identified and steps taken to have the problems rectified.

Investigations are very different from inspections.  Investigations are conducted to obtain evidence of an environmental offence.  Generally there are two main reasons why environmental officers initiate an investigation.  First, investigations are sometimes initiated by an MOE officer who notices evidence of an offence when responding to a spill or conducting a routine inspection.  Second, the officer may be responding to a specific request.  The Environmental Bill of Rights provides that any two members of the public over the age of 18 can request an investigation into an environmental offence.

We recommend that you cooperate with inspectors and investigators and it is an offence to hinder an
officer in carrying out their duty, while the purpose of an investigation is to collect evidence with the ultimate goal of prosecution or other enforcement action.  It is important when such investigations and inspections occur that you avoid making prejudicial statements.  

This means that provincial officers may without a warrant or court order, at any reasonable time and with any reasonable assistance, make inspections including;

  • entering the environment to determine the extent, in any, that contaminants may have caused an adverse effect
  • entering any place where the provincial officer reasonably believes there may be anything governed or regulated by the EPA
  • entering any place likely to contain documents related to an activity or undertaking that is or required to be subject of a permit, license, approval or certificate of approval

Similarly, OHSA s 54 allows an inspector, for the purpose of carrying out their duties to

  • enter in any workplace at anytime without a warrant or notice
  • make inquiries of any person that may be relevant to an inspection, examination, inquiry or test
  • require production of materials and inspect, examine and copy the materials

If there is a provincial officer at your place of business, you need to understand your rights and responsibilities in order to handle the situation efficiently and avoid making prejudicial statements.  Part of this means understanding the difference between an inspection and an investigation.

It is important to note that in the context of an investigation you have a fundamental right to be free from unreasonable search and seizure pursuant to section 8 of the Charter.  Section 8 of the Charter of Rights and Freedoms gives everyone the right to be secure against unreasonable search and seizure.  Whether or not the provincial officer is inspecting or investigating your premises will affect what powers they have. You need to be able to recognize the difference.

If an officer shows up with a warrant then you know that you are most definitely dealing with an investigation. If an investigation is under way, this means that the Regulator believes that a breach of the Act has occurred and the officer’s purpose is to gather evidence to support proof of an offence for prosecution purposes. 

Other than the presence of a warrant what are the factors that can let you know an inspection is underway? The law on this has changed recently.  Previously, if a regulator had reasonable and probable grounds to believe that an offence had been committed then the regulator is conducting an investigation, if this is the case, the provincial officer should not have been on the premises without a warrant.

This prior practice has been changed by the Supreme Court of Canada and the test that is now applied to determine whether and inspection or investigation is occurring depends on whether the predominant purpose of the provincial officer’s inquiry is to determine penal liability, if this is the case then an adverse relationship arises and you should be aware that an investigation is being conducted.

As you can see, understanding the MOE’s purpose and intention is critical in determining if your site is the subject of an investigation or an inspection.  Some factors that you can look at are,

  1. Did the MOE have reasonable grounds to lay charges?
  2. Was the general conduct of the MOE consistent with the pursuit of an investigation?
  3. Did the MOE inspector transfer their files to the investigative branch?
  4. Did the inspector appear to be acting as an agent for the investigator?
  5. Did the investigator use the inspector as their agent for the collection of evidence?
  6. Is the evidence sought relevant to compliance generally?  Or, does the evidence only pertain to liability for the charge being investigated?
  7. Any other circumstances indicating that the inspection has become an investigation?

Understanding the above will help you and your staff ensure that you take the proper action in the event of an inspection or investigation. In the next post, I will look more closely at what you should do if you are being investigated.

Paula Lombardi practices in the areas of environmental, municipal, regulatory and administrative law. If you have and questions or concerns regarding Environmental Law please contact Paula at [email protected].

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