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
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.
1. As noted by the Yukon Territorial Court in R. v.
Stretch,  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,  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),  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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