Canada: Bill 89: Intervention Strategies Refinement And Reinforcement For The Protection Of The Environment

November 2011 — On October 5, 2011, Bill 89 entitled "An Act to Amend the Environment Quality Act in order to Reinforce Compliance" (the "Bill") was sanctioned, reinforcing compliance with the Environment Quality Act ("EQA"). The EQA is a statute of public order that aims to protect the health and well-being of the population as well as of the environment, by monitoring industrial and commercial operations.

Bill 89 establishes three main measures to reinforce the EQA: i) the reinforcement of certain penal provisions, including regarding directors and officers; ii) the reinforcement of the powers of the Minister of Sustainable Development, Environment and Parks ("Minister"); and iii) the establishment of an administrative penalty system. Several sections of this Bill came into force on November 4, 2011.


Amount of the fines: As of November 4, 2011, the fines that could be imposed by Courts on persons convicted of an offence have been substantially increased. The fines will vary depending on the nature of the breach and the amount will vary between $1,000 and $1,000,000 per day for an individual, and between $3,000 and $6,000,000 per day for a company. For example, a business that failed, before November 4, 2011, to comply with the standards pertaining to the discharge of contaminants committed an offence and was liable to a fine of up to $250,000 per day for a first offence. Since November 4, 2011, such breach of the EQA may result in a fine of $30,000 to $6,000,000 per day for the said business. Similarly, operating a facility without required authorization constitutes an offence and renders the offender liable to a fine of $15,000 to $3,000,000 per day, while the amount of the fine for the same offence varied between $1,800 and $120,000 in the case of a first offense prior to November 4, 2011.

In the case of subsequent offences, the fines are now much harsher than they were prior to November 4, 2011. The amount of the fines is doubled for the first subsequent offence and tripled for any other subsequent offence.

New tools for judges: Since November 4, 2011, judges may take into account aggravating factors determined by the Bill to impose heavier penalty on offenders if circumstances warrant it. Such aggravating factors include the seriousness of the harm to human health, the intentional nature of the offence, the toxic nature of the substances involved in the offence, etc. Since the guidelines are more precise, the Courts are likely to be more inclined to impose harsher penalties.

Moreover, judges:

  • are granted ordinance powers in regard to convicted offenders. For example, a judge may henceforth order that an offender establish a pollution prevention plan or an environmental emergency plan, carry out follow-up studies on the environmental impact of the activities carried on by the offender or pay a sum of money to a person or body designated by the judge to carry out such studies, provide security or consign a sum of money to guarantee performance of those obligations; and
  • can, upon application by the prosecutor, which is attached to the statement of offence, levy against the offender, in addition to any other penalty, an additional fine in an amount equal to the amount of the monetary benefit derived by or accrued to the person as a result of the commission of the offence, notwithstanding any maximum fine imposed upon him.

Imprisonment: In addition to the fines, imprisonment for a period of up to three (3) years for a first offence could be required depending on the nature of the offense, compared with the maximum prison sentence of 18 months applicable prior to November 4, 2011. The maximum prison sentence is increased to five (5) years less one (1) day for any subsequent offence.

Director and officer: Prior to November 4, 2011, a director or officer of a business that caused the discharge of a contaminant into the environment committed an offence and was liable to a fine of no less than $2,000 per day and no more than $20,000 per day in the event of a first offence and/or to imprisonment for a maximum term of one (1) year. Since November 4, 2011, the directors and officers of a business could be liable to twice the fines set out for an individual for the same offence. Returning to our example of a director causing a business to discharge a contaminant into the environment, said director is now liable to a fine of up to $2,000,000 per day and/or to imprisonment for a maximum term of three (3) years. For an offence such as non-compliance with a certificate of authorization, the maximum penalty for directors and officers is $500,000 per day.

A director or officer of a business that commits an offence pursuant to the EQA shall henceforth be deemed to have committed the offence personally unless the director and/or officer establishes that he/she exercised due diligence and took all necessary precautions to prevent such an offence. One cannot help but to anticipate that proceedings against directors and officers shall be increasingly frequent. Directors and officers shall also ensure that such an effective environmental management system allowing to monitor compliance with environmental standards is in place for the company they run if they want to be able to demonstrate that they have shown due diligence.

Similarly, whoever does or omits to do something in order to assist a person or a municipality to commit an offence under the EQA, or advises, encourages or incites a person or a municipality to commit such an offence, is considered to have committed the offence.

Prescription: Let us recall that prescription is a means, among others, by which one can be released from the performance of a duty or an obligation by the passage of time. Since November 4, 2011, the prescription of penal sanctions applicable the breach of a provision of the EQA is of five (5) years from the date of the offence. However, this delay will be longer in some cases, since it will be calculated from the date of the actual knowledge of the offense by the authorities instead of the date of the offense. The prescription delay will be of two (2) years from the date in which the inspection or investigation that led to the discovery of the offence was begun in the case of i) false representations, ii) an offence related to hazardous materials, and iii) an offense related to the discharge of contaminants into the environment. The increase of the limitation period should lead businesses as well as their directors and officers to review their internal document retention policy to ensure that they will have access to all the necessary information in order to provide a full defense in response to potential recourses under the EQA.


Since November 4, 2011, the Minister has the following powers:

  1. the power to order a person or municipality to cease or to limit to the extent determined by the Minister for a maximum period of 30 days, any work, construction or activity that contravenes the EQA, if the Minister believes that such work, construction or activity contravening the EQA can cause serious harm or damage or risk causing serious harm or damage to human health or the environment. The ordinance may be extended for a maximum period of 60 days;
  2. the power to order the person or municipality that conducts the work or the construction or carries activities in contravention of the EQA to take the measures required to prevent or reduce the harm or damage or risk of harm or damage.

The Government or the Minister may refuse to issue, renew, amend, suspend or revoke any type of authorizations granted under the EQA in certain cases as determined by Bill 89. For example, the Minister could suspend an authorization certificate if:

  1. a company has defaulted on payment of an amount due under the EQA;
  2. if a director, officer or shareholder of a company has been convicted of i) an offence under the EQA in the last two years or ii) an offense to a fiscal law in the last five years;
  3. if a director, officer or shareholder of a company has been the director, officer or shareholder of another company that has been convicted of i) an offense under the EQA in the last two years or ii) of an offense to a fiscal law in the last five years.

Consequently, the application for any type of authorization or for the renewal of such authorization will require additional information regarding the applying company and its directors, officers or shareholders to be transmitted to the Ministry or to the Quebec Government. Note that the term "shareholder" is defined as a natural person who directly or indirectly holds shares that carry 20% or more of the voting rights of the said company that is not a reporting issuer under the Securities Act. Hence, the person who files an application to obtain or renew an authorization certificate will now have to produce, as a delivery requirement, any statement or information required by the Government or the Minister and necessary for that purpose, including the penal or criminal offenses for which the company or one of its directors, officers or shareholders has been convicted.


Distinction with penal sanctions: Bill 89 sets out new rules that will henceforth allow inspectors designated by the Minister to assess administrative penalties by notice of claim against persons (legal and natural) or municipalities that fail to comply with certain provisions of the EQA. These administrative penalties will enter into force as of February 1, 2012. To that end, the Minister will develop a public general framework for applying such administrative penalties.

These penalties resemble criminal fines, but are imposed by governmental authorities as opposed to being determined by a Court following judicial proceedings. They are subject to administrative review, and, as the case may be, may be contested before the Administrative Tribunal of Quebec. The implementation of administrative penalties shall, therefore, vest inspectors with the power of immediate coercion over offenders who have received a notice of non-compliance whereas before November 4, 2011, offenders would generally get away with a warning only.

An administrative penalty cannot be notified to a person when a statement of offense has previously been delivered for the same day and based on the same facts. However, the opposite is possible.

Penalties Amounts: Penalties will vary, depending on the nature of the breach, between $250 and $2,000 per day for an individual, and between $1,000 and $10,000 per day for a business. For instance, an administrative penalty of $2,500 per day may be given to a business that does not comply with its certificate of authorization. As well, a business that releases a contaminant into the environment in greater quantity or concentration than acceptable norms may be liable to a penalty of $10,000 per day. It is important to note that Bill 89 provides for the possibility to request the review of any decision imposing an administrative penalty.

Directors and officers: If a business fails to pay the administrative penalty assessed against it, the Minister may claim such amount from the directors and officers of said business. These directors and officers shall be held solidarily liable for the payment unless they demonstrate that they exercised due care and diligence to prevent the failure that gave rise to the penalty.

Prescription: By introducing administrative penalties, Bill 89 has also established the prescription delay for such penalties. Therefore, the prescription of administrative penalties is of two (2) years following the date of non-compliance, subject to certain exceptions set out in the Bill, in particular in the case of i) false representations; ii) an offense related to hazardous materials; or iii) an offense related to the discharge of contaminants into the environment, in which cases the administrative penalty may be levied within two (2) years following the date of commencement of the inspection or investigation that led to the discovery of the breach.


As of November 4, 2011, the Minister shall be required to keep a record of information related to administrative penalties and penal sanctions imposed on persons, both legal and natural, or on municipalities pursuant to the EQA. The information contained in this register shall be public.

The coming into force of the Bill sheds new light on the question of EQA standards compliance. Thus, any person engaged in activities subject to the EQA, including in particular directors, officers and shareholders, will have to be able to assess and ensure compliance with applicable standards. Failure to do so will result in various measures that can be implemented by authorities, including an increase in criminal penalties, administrative monetary penalties and even revocation of any environmental authorization required to maintain business operations.

The new rules thus remind us of the importance of establishing and maintaining an effective environmental management system to monitor and assess regulatory compliance and, when required, to make the necessary corrections as soon as possible.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.