When is an individual liable to conviction for a corporate
environmental offence? The
Ontario Ministry of the Environment has insisted that
management personnel are automatically liable for corporate
environmental offences, and has laid numerous charges on this
basis. The Summary Conviction Appeal Court disagrees. For personal
liability, individual defendants must either participate in
committing the offence, or fail to prevent something they know is
happening within their area of control.
In R. v. Lacombe, numerous charges were laid under the Environmental Protection Act, relating to alleged
waste offences. 55 of the 60 charges were ultimately dismissed or
withdrawn, including all charges against the individuals. In its
appeal to the Summary Conviction Appeal Court, the MOE argued that
individual managers should be convicted, despite no findings
of fact that they participated in the offences or knew about them
when they happened:
"102. In order to secure a
conviction against a corporate officer or director, the Crown must
demonstrate any one of the following to provide
evidence of the actus reus:
a. The defendant was actively
involved in the commission of the offence,
b. The defendant was in a position
of influence and control over an activity and failed prevent the
occurrence of the offence; or
c. The defendant knew of the
circumstances of the offence."
According to the MOE, an officer or director automatically
commits, personally, every offence in his/her organization, without
proof that the defendant knew about or participated in the offence.
In addition, the MOE urged the court to apply this rule to
management personnel who were not, according to corporate records,
either officers or directors.
In other words, according to the MOE, management personnel
automatically commit any offence that the people they manage
commit. They say the onus should then move to the manager to prove
The summary conviction appeal court (Ontario Court of Justice)
rejected this. In her decision dated June 10, 2013, as corrected
June 26, Judge Ann Alder ruled:
The Crown needed to prove beyond a
reasonable doubt the actus reus of the offence either by proving
the individual defendant was actively involved in the commission of
the offence, or was in a position of influence and control over an
activity and failed prevent the occurrence of the offence; and knew
of the circumstances of the offence.
Thus, the onus is on the prosecutor to prove, beyond a
reasonable doubt, that individual defendants have either
participated in committing the offence, or failed to prevent an
offence that they knew was happening within their area of
Note: there is a slightly different test under s. 194 of the the
Environmental Protection Act. Under that section, officers
and directors have a personal duty to use reasonable care to
prevent their corporations from committing certain types of
offences. In such cases, the prosecutor must prove that the
defendant failed to use such reasonable care.
We will comment on another aspect of the case later, the
implications for what counts as hazardous waste. Click
here for the text of the decision:
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.
The Imperial Oil refinery pled guilty to one offence for discharging a contaminant, coker stabilizer, thermocracked gas, into the natural environment causing an adverse effect and was fined $650,000...
Ontario's Ministry of the Environment and Climate Change continues to roll out its Climate Change Action Plan with its proposed GHG guide for projects that are subject to the province's Environmental Assessment Act.
In June, 2016, Justice Faieta of the Ontario Superior Court of Justice awarded damages of $57,712.31 plus interest against legal counsel who failed to file a claim within the required limitation period.
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).