Investigations and inspections

What to do when the Ministry of the Environment, Conservation and Parks comes knocking

It can be unnerving when a provincial officer from the Ministry of the Environment, Conservation and Parks (“MECP”) shows up at your business unannounced. Being prepared, and understanding your rights and responsibilities, is critical in protecting your interests.

Inspections versus investigations

Provincial Officers can conduct both inspections and investigations. Inspections are used to oversee the compliance of businesses and individuals the terms and conditions of their environmental approvals and the Environmental Protection Act. During an inspection, an Officer may note problems and require that steps be taken to have them rectified. Generally, the Inspector will provide a report to you on the results of the inspection and identify any areas of improvement and/or non-compliance.

Investigations, on the other hand, are conducted to obtain evidence of an environmental offence. Generally, the MECP conducts investigations when an Officer notices evidence of an offence when responding to a complaint, spill, call to the spills action centre, and/or conducting a routine inspection. 

What can Provincial officers do?

In order to understand what Provincial Officers can, and cannot, do, it is important to understand the distinction between inspections and investigations.

The Environmental Protection Act (“EPA”) is the primary pollution control legislation in Ontario and prohibits the discharge of any contaminants (which are broadly defined) into the environment that cause or are likely to cause adverse effects. The EPA also requires that contaminants not exceed prescribed or permitted limits and that spills be reported and cleaned up promptly.

Provincial officers have powers under environmental statutes including the EPA to enter into a company’s business, to conduct an inspection and ask questions.

Section 156 of the EPA specifically provides Provincial Officers with the power to conduct an inspection “at any reasonable time and with any reasonable assistance” without a warrant or court order.

Among other locations, Provincial Officers may enter and/or inspect:

• any part of the natural environment so as to determine the extent to which contaminants have caused an adverse effect;
• anywhere he or she reasonably believes that a contaminant is or has been discharged into the natural environment;
• anywhere that he or she reasonably believes relevant documents are kept;
• facilitates operating under a permit, licence, or Environmental Compliance Approval; and
• locations where there has been a “spill,” as defined under section 91(1) of the EPA 

During this inspection, among other activities, a Provincial Officer can make excavations, take samples, conduct tests, take measurements, examine records, require and remove the production of documents and data, and make reasonable inquiries of any person.^[1]

Provincial Officers can also undertake investigations whenever there is a reported or possible infraction. It is important to note that when a Provincial Officer comes to your business that you know your rights and obligations. These rights and obligations will be discussed in more detail in a subsequent blog.

What initial steps are recommended when a Provincial Officer comes to my business?

Here are some practical tips when the Provincial Officer shows up:

• confirm the Officer’s identification;
• ask and note down the type of visit (e.g., is it a routine inspection? An investigation of a suspected offence?);
• accompany the Officer during his or her site tour;
• take notes; and,
• take duplicate sample and photos of anything taken by the Officer and compile a list of any documents taken.

We recommend that you cooperate with inspectors and investigators and it is an offence to hinder a Provincial 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.  

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.

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 Ministry believes that a breach of the EPA has occurred, and the officer’s purpose is to gather evidence to support proof of an offence for prosecution purposes. 

However, Provincial Officers do have the authority to conduct warrantless inspections. 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 was changed by the Supreme Court of Canada and the test that is now applied to determine whether an 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 MECP’s purpose and intention is critical in determining if your premise is the subject of an investigation or an inspection.  

Some factors that you can look at include:

1. Did the MECP have reasonable grounds to lay charges?
2. Was the general conduct of the MECP consistent with the pursuit of an investigation?
3. Did the MECP 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 greatly assist you and your staff to ensure that you take the proper action in the event of an inspection or investigation. In the next post, we will look more closely at what steps you should do in the event an investigation is being conducted.

^[1] Section 156(2).