In this blog post Paula reviews the statutory regime in Ontario and outlines strict liability offences and its impact on companies. Understanding your environmental obligations and responsibilities can be a confusing and a daunting task. There are multiple government departments involved with overlapping jurisdictions and each having its own set of laws, regulations, policies, directives and enforcement personnel. If you own a business, if you are a director, officer, supervisor, manager, or in any way responsible for any type of facility or operation that has an environmental impact it is important that you understand your statutory obligations, to streamline your business, avoid fines, personal liability, or other actions by the government.
The Division of Powers
Practically speaking, the majority of the environmental laws are made by the provinces with only a few set issues handled by the Federal and Municipal government.
In Canada responsibility for the protection of the environment is divided between the Federal and Provincial governments1. The Province has the majority of the powers on these issues while the Federal Government is limited to the regulation of:
- oceans and inland waterways
- transportation of dangerous goods
- import and export of hazardous materials
- international and interprovincial waste disposal
- interprovincial pipelines
- habitat and conservation and protection of migratory birds
- fishing, railways, ships, nuclear energy
Much of what is covered by the federal government is regulatory in nature. It is the province who becomes involved in the event of a spill, failure to comply with approvals and permits and enforcing legislative requirements. In the event of an environmental emergency, even if it involves a Federally regulated product, in most cases the Provincial government is the first point of contact for reporting the problem2. Municipal governments have a limited role in the protection of the environment and pass by-laws to, prohibit the use of pesticides, regulate discharges into sewage systems, and consider environmental matters when making land use planning decisions.
Environmental Laws in Ontario
The Provinces deal with a wider range of issues and each province has its own legislation laying out standards and obligations. In Ontario, the most important piece of legislation to be familiar with is the Environmental Protection Act3 (The ‘EPA’). However, there are numerous provincial statues that deal with the protection of the environment including the following, Ontario Water Resources, Pesticides, Aggregate Resources, Toxic Reductions, and Nutrient Management4.
The EPA is a strict liability statute that governs a wide range of environmental issues including:
- air quality & ozone depleting substances
- waste management
- water quality
- contaminated land
- permits and approvals
An essential element of the EPA and its associated regulations is that it sets out the scope of the Ministry of the Environment’s (‘MOE’) powers, and also lays out the principles of enforcement. Through the EPA, the MOE has the power to inspect, issue control, stop and suspension orders, issue licenses and the power to lay fines and charges. Understanding the MOE, the permitting process, and the legislative requirements and how they impact your business will be discussed in future blogs.
I wrote above that the EPA operates on a strict liability basis. Strict liability is a legal term meaning that there is a reverse onus on the accused to show that all reasonable measures possible were taken to avoid the incident or avoid creating the incident. There is no obligation for the prosecution to prove that there was some intent, knowledge or recklessness on behalf of the accused. All reasonable measures means that you have to show you were duly diligent; in other words, all reasonable steps were taken to avoid the incident. The MOE can lay charges against corporate entities, managers, directors and officers, and supervisors. What the courts take into consideration in determining what is considered due diligence will be discussed in future blogs.
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].
1 Municipal governments do have a role to play as well. In addition to regulating discharged into sewage systems and being actively involved in land use planning, many municipalities have passed by-laws prohibiting the use of pesticides.
2 Who To Call in an Emergency, https://www.ontario.ca/page/report-pollution-and-spills
3 Environmental Protection Act, RSO 1990 c E19
4 Ontario Water Resources Act, RSO 1990 c O40, Pesticides Act, RSO 1990 c P11, Agregate Resources Act, RSO 1990 c A8, Toxics Reduction Act, SO 2009 c 19, Nutrient Management Act, SO 2002, c 4