On October 4, 2011, the Quebec National Assembly passed the Act to amend the Environment Quality Act in order to reinforce compliance, S.Q. 2011, c. 20, better known as Bill 89 (Bill 89). The Act amends the Environment Quality Act (EQA) to give the government new means to ensure compliance by, among other things, introducing administrative sanctions, increasing penal sanctions, expanding functionaries' inspection and order-making powers and making directors and officers of legal persons, partnerships and associations more accountable.
Administrative penalties system
Bill 89 provides for the creation of a system of administrative penalties that may be imposed on persons and municipalities that contravene the EQA or its regulations. Penalties range from $250 to $2,000 per day for a natural person and $1,000 to $10,000 per day for a legal person, depending on which provisions or obligations have been breached, in accordance with what is decided by the functionaries of the Quebec Ministry of Sustainable Development, Environment and Parks (MDDEP). The administrative penalty is always a fixed amount, whether the offender is a natural person or a legal person.
Under Bill 89, an administrative penalty may be imposed by "a person designated by the Minister." The person subject to the penalty may seek a review of the decision by a person designated by the Minister who must not come under the same administrative authority as the persons who impose such penalties. The review decision may be contested before the Administrative Tribunal of Québec. Bill 89 also provides for the imposition of an administrative penalty in addition to any penal proceedings instituted for the same offence, unless the penal proceedings have already been instituted for that offence. However, the same facts cannot give rise to the imposition of two administrative penalties.
Strengthening penal sanctions
Bill 89 raises the penalties that may be imposed on a person or municipality convicted of an offence under the EQA or its regulations. Whereas fines previously ranged from $300 to $500,000 per day for a legal person, depending on the category of the offence, they will now range from $3,000 to $6,000,000 per day for a first offence. These fines may be increased to as much as three times the amount for a subsequent offence. Bill 89 also contains a provision listing various aggravating factors that a judge must take into account in determining the penalty. These include the seriousness of the harm or damage to human health or the environment, the foreseeable character of the offence, the cost to society of repairing the harm or damage caused, and the failure of the offender to take reasonable measures to prevent the commission of the offence or limit its effects despite being financially able to do so.
In sentencing a person or municipality for an offence under the EQA, a judge can order the offender to restore things to their original state or a state approximating their original state, refrain from any action or activity that may lead to the commission of an offence, pay a sum of money to the Green Fund, pay compensation for repair of the damage resulting from the commission of the offence, implement compensatory measures, provide security and even make public the conviction and any prevention and repair measures imposed by the court. The prescription period has been increased to five years from the date the offence was committed and to two years from the date on which an inspection or investigation was begun in the event of false representations, a discharge of a contaminant into the environment and an offence relating to hazardous materials.
To guide the MDDEP in enforcing the EQA through monetary administrative sanctions or penal or civil sanctions, the legislature has required that the Minister develop and make public a "general framework" prescribing the circumstances in which the administration will use these mechanisms. The legislature took the opportunity to codify the offence notice mechanism, which is now called a notice of non-compliance.
Bill 89 makes directors and officers of a legal person, partnership or association more accountable by providing that if a legal person or an agent, mandatary or employee of a legal person, partnership or association without legal personality commits an offence under the EQA or its regulations, its directors or officers are presumed to have committed the offence unless it is established that the director or officer exercised due diligence. The applicable fines will be two times the minimum and maximum fines that would ordinarily apply in the case of a natural person. The civil liability of corporate directors and officers has also been increased as they are now solidarily liable for any amounts owed to the Minister under the EQA and its regulations unless they establish that they exercised due care and diligence to prevent the failure which led to the claim.
Increased order-making and inspection powers
Bill 89 significantly increases the order-making, inspection and investigative powers of the functionaries tasked with applying the law, as well as their power to deny or revoke environmental permits. The functionaries will have the power to order a stop to activities that are in violation of the Act, the carrying out of corrective work, the demolition of work or the implementation of compensatory measures. Their inspection powers have been expanded to include, among others, the power to take photographs and make video and sound recordings.
The Minister and the Government also now have, under various conditions, the discretionary power to deny, suspend or revoke a certificate of authorization if the applicant or holder or, in the case of a legal person, one of its directors, officers, shareholders or money lenders has, as the case may be, committed environmental, fiscal or criminal offences or was a director, officer or shareholder of a legal person that has committed environmental, fiscal or criminal offences. This system is similar to the legislative regime enacted some time ago by the Government to prevent crime in the construction industry.
Lastly, the legislature has ordered the Minister to improve administration transparency. From now on, a public register containing information on all administrative penalties and penal sanctions imposed under the EQA will be kept and that information and the full texts of orders and notices of orders issued under the EQA will be posted on the MDDEP website.
Coming into force
Bill 89 came into force on November 4, 2011, except for the sections establishing an administrative penalties system, which will come into force on February 1, 2012.
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