On March 25, 2011, the Federal Government brought into force the Deposit Out of the Normal Course of Events Notification Regulations, SOR/2011-91 (the "Regulations") as part of an initiative by the provincial, territorial and federal governments to streamline the notification system for persons required to notify authorities of an environmental emergency or environmental occurrence, such as a spill or a release.
The Regulations prescribe, for the purposes of subsection 38(4) of the Fisheries Act, RSC 1985, c F-14 (the Act), the persons in each province and territory that must be notified (if notification is not provided to an inspector) where there has been a deposit of a deleterious substance in water frequented by fish out of the normal course of events or there is a serious and imminent danger of such a deposit. The Regulations provide the name and telephone number of the organization operating in each province and territory to which notifications are to be made. These organizations, which operate on a 24-hour basis, receive the notifications on behalf of Environment Canada.
Prior to the enactment of the Regulations, there was no legislated procedure for notifying federal authorities of an environmental occurrence as required under subsection 38(4) of the Act1, which created some uncertainty as to whether or not the notification requirement was enforceable. With the Regulations now in force, it is clear that the organization listed under the relevant province or territory must be notified where the conditions set out under ss. 38(4) of the Act arise. In particular, notification must be given to either an inspector or the listed organization where2: (1) there is a deposit of a deleterious substance; (2) the deposit occurred out of the normal course of events3; (3) the deposit must be into water frequented by fish; and (4) danger or damage to fish habitat or fish must have resulted or be reasonably expected to result from the deposit. The person responsible for notifying the appropriate authorities is the person who owns the deleterious substance or has the charge, management, or control thereof, or causes or contributes to the causation of the deposit.
The Regulations were brought into force on the same day as the Release and Environmental Emergency Notification Regulations, SOR/2011-90, which, similar to the Regulations, designate the persons who can receive the notifications that are required to be made where there has been a release of a "substance" or there is a likelihood of such a release or an environmental emergency, as required under the Canadian Environmental Protection Act, 1999, SC 1999, c 33.
Footnotes
1. As noted by the Yukon Territorial Court in R. v. Stretch, [2002] Y.J. No. 101, 2002 YKTC 78, at para. 27. In that case, the accused were charged for, inter alia, failing to report the occurrence of a diesel spill to the authorities. The Court ultimately acquitted the accused on the basis that their failure to report was only a technical breach, as a constable present at the spill site had contacted the Department of Environment in Whitehorse, Yukon, and a conservation officer had been dispatched to the scene.
2. See R. v. Domtar, [1998] O.J. No. 6407, at para. 49, in which the Ontario Court of Justice set out the essential elements of s. 38(4) and (5) of the Act.
3. See St. Brieux (Town) v. Canada (Minister of Fisheries and Oceans), [2010] F.C.J. No. 491, 2010 FC 427, at paras. 46-7, in which the Federal Court interpreted "out of the normal course of events" to mean an event that is "not regular, typical or usual".
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