Canada: Bill 91, New Waste Reduction Act

Last Updated: June 24 2013
Article by Dianne Saxe

Ontario Environment Minister Jim Bradley has introduced Bill 91, a proposed Waste Reduction Act, 2013. The new Act is intended to kickstart further waste diversion, especially in the industrial, commercial and institutional sectors, where waste diversion rates remain low. It will also require waste diversion costs to be embedded in the price of products, instead of being a visible "eco-fee". This new law is the signature achievement that Minister Bradley originally announced he wanted to get done while he is Minister of the Environment.

Key elements of proposed Waste Reduction Act

The proposed Waste Reduction Act, 2013 would replace the Waste Diversion Act, 2002,  and would:

  1. Establish individual producer responsibility requirements to divert end of life products which result in designated wastes, instead of putting the responsibility on entire industry sectors. The Act would enable the setting of standards related to waste diversion and services. Producers would have the flexibility to determine how best to meet the standards. It would make producers and those persons related to a producer or group of producers equally responsible for meeting the set standards.
  2. Avoid consumer resistance to "eco-fees" by requiring all-in pricing (no visible fee) for products that create designated wastes. Any vendor choosing to publicly display the waste diversion costs that are embedded in the price of a product, must do so "in a transparent and accurate manner". False or misleading representations would be an offence.
  3. Require producers to reimburse a municipality for the municipality's collection and handling costs for designated wastes.
  4. Transform the unpopular, financially challenged Waste Diversion Ontario into a new Waste Reduction Authority with responsibility to oversee the compliance and enforcement of the new individual producer responsibility regime. It would operate a registry, allow for inspections and enforcement, and be able to issue monetary penalties for non-compliance with the Act and regulations. The Authority would be financed by fees and administrative penalties, determined through future regulations. Generally, one key goal of a delegated administrative authority is to make the regulated industry pay for its own regulation and enforcement.
  5. Repeal the Waste Diversion Act, 2002, and transition the four currently operating waste diversion programs into the new regime.

The proposed framework legislation would continue the existing Blue Box program and would permit an increase in steward funding for the program beyond the current 50 per cent.

Explanatory Note

The Bill's explanatory note summarizes the Bill as follows:

"Part I (General) states that the purpose of the Act is to promote the reduction, reuse and recycling of waste derived from products, and contains definitions and other provisions of general application.

Part II (Waste Reduction Authority) continues Waste Diversion Ontario, a corporation without share capital established under the old Act, under the new name of Waste Reduction Authority ("the Authority").  The objects of the Authority include ensuring that waste reduction activities are undertaken in accordance with the Act and the regulations made under it.  The Minister of the Environment is allowed to appoint only a minority of the members of the board of directors of the Authority.  The Authority can set and collect fees, and is required to appoint a Registrar and inspectors.  The Registrar is required to establish, maintain and operate the Waste Reduction Registry ("the Registry").  The Minister may appoint an administrator of the Authority if it is in the public interest to do so because a listed condition is satisfied.

Part III (Responsibility of Producers and Intermediaries) states that the purpose of the Part is to make producers responsible for waste derived from their products.  The Part provides that producers are responsible for compliance with waste reduction standards and service standards that relate to designated wastes that are derived from the producers' products.  Where producers deal with producer-controlled intermediaries who broker, arrange for or facilitate the provision of waste reduction services for them, the intermediaries are also responsible for compliance.  Producers and their intermediaries are required to enter into service agreements containing mandatory provisions.

Producers and intermediaries are required to register in the Registry, and municipalities may do so.

Producers are also required to collect from registered municipalities designated wastes that are derived from the producers' products, and to reimburse registered municipalities for services provided in relation to the designated wastes.  The amount reimbursed may be determined by agreement between the producer and the municipality, by a compensation formula established by the Authority, or (if an Act or regulation requires the municipality to collect and process the waste) by regulation made by the Lieutenant Governor in Council.

Part IV (Integrated Pricing) states that the purposes of the Part are to promote the reduction of environmental impacts by requiring the integration of the environmental protection costs of products when the products are sold, and to ensure that purchasers of products are provided with accurate information about the environmental protection costs of the products.  A seller who recovers environmental protection costs in connection with the sale of a product must include them in the price of the product and show an all-in price in any advertisement.  A seller who also shows the amount of recovered environmental costs must indicate the name and amount of each cost.  False, misleading or deceptive representations relating to the names and amounts of recovered environmental costs are prohibited.

Part V (Enforcement) deals with powers of inspection and seizure, compliance orders and orders imposing administrative penalties.  Compliance orders (after review by the Registrar in certain circumstances) and administrative penalty orders may be appealed to the Environmental Review Tribunal.  Contraventions of listed provisions of the Act or of prescribed provisions of the regulations are offences punishable, on conviction, by fines.

Part VI (Regulations) contains general regulation-making provisions as well as regulation-making provisions relating to Parts II, III and V.

Part VII (Existing Waste Diversion Programs and Existing Industry Funding Organizations) states that the purpose of the Part is to promote the reduction, reuse and recycling of Part VII designated waste, and to provide for the operation of waste diversion programs that were approved under the old Act.  The Part continues those programs as existing waste diversion programs.  The Part also contains regulation-making provisions to continue an industry funding organization under the old Act and to designate the organization as the existing industry funding organization for an existing waste diversion program.  The Authority is required to operate the existing waste diversion programs in accordance with the Part.  The board of directors of the Authority may appoint an administrator of an existing industry funding organization if it is in the public interest to do so because a listed condition is satisfied.  Those conditions include where the appointment is necessary to facilitate the wind-up of the existing industry funding organization or an existing waste diversion program.

The Part contains general regulation-making provisions relating to it.  Regulations made under the old Act remain in force and are deemed to be regulations made under the Part. Contraventions of the Part, the regulations made under it or the rules made by an existing industry funding organization are offences punishable, on conviction, by fines."

Waste Diversion Ontario not succeeding

The Waste Reduction Strategy recognizes that current programs are unpopular and not working well:

"Challenges with the existing legislative framework are impeding progress

Sector recycling programs under the Waste Diversion Act cover just 14% of Ontario's wastes. Under the existing Waste Diversion Act, producers of designated materials are currently required to pay fees to a collective stewardship agency known as an Industry Funding Organization (IFO).

  • The mandatory requirement to pay fees to an IFO makes it difficult for individual producers to take action under the Waste Diversion Act.
  • Because only a single IFO exists for each recycling program, IFOs disrupt the marketplace and stifle innovation and healthy competition.
  • Uniform fee structures associated with IFOs also make it easier to pass recycling costs directly to consumers, reducing producer responsibility for waste diversion and doing little to encourage innovation in product design.

Roles and responsibilities under the present Waste Diversion Act are unclear.

  • Waste Diversion Ontario (WDO) was established under the Waste Diversion Act to oversee the development, implementation and operation of recycling.
  • WDO often plays a dual role as both the developer and overseer of recycling programs. This lack of clarity contributes to strained relationships among stakeholders involved in the delivery of recycling programs and hampers efforts  to adapt to changing circumstances.

There is also a lack of compliance and enforcement tools to ensure accountability for recycling results.

The government has limited powers to set and enforce recycling results, and to require a course correction when needed.

Lack of innovation and need for strengthened consumer protection

Individual producer responsibility is about more than making producers of product waste responsible for recycling costs – it is also about encouraging producers to develop products that are designed, manufactured and distributed in ways that reduce their impact on the environment. When each individual producer shoulders the full responsibility to divert their products at end-of-life, these costs are included in the price of their products, much the same way that other costs like rent and labour ...

Including diversion costs in the price of a product harnesses the competitive nature that makes producers compete based on the price of their product..."

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 Mondaq.com.

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

Authors
Dianne Saxe
Similar Articles
Relevancy Powered by MondaqAI
Borden Ladner Gervais LLP
Osler, Hoskin & Harcourt LLP
Willms & Shier Environmental Lawyers LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Borden Ladner Gervais LLP
Osler, Hoskin & Harcourt LLP
Willms & Shier Environmental Lawyers LLP
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions