On June 23, 2014, the Ministry of Environment introduced an
administrative penalty program to encourage compliance with the
Environmental Management Act (the "EMA") and the
Integrated Pest Management Act (the "IPMA"). The
Administrative Penalties Regulation (the "Regulation")
was designed to bridge the gap between warnings and violation
tickets for minor offences and criminal prosecutions for more
Examples of violations that can attract an administrative
penalty include unauthorized waste discharges, discharges in excess
of the amount permitted under an authorization or regulation, and a
failure to submit monitoring reports.
Before making a determination with respect to an administrative
penalty, the Director must provide notice to the person alleged to
have breached the EMA or the IPMA and provide that person with an
opportunity to make representations. While the Director retains the
discretion to schedule an oral hearing, in the vast majority of
cases it is expected that only written submissions will be
accepted. Following a hearing, the Director will make a
determination and inform the person of any penalty. A party against
whom an administrative penalty has been imposed may appeal that
decision to the Environmental Appeal Board.
Liability under the Regulation is absolute; due diligence is not
a defence. However, the Regulation provides that the Director must
consider various factors in determining the amount of any penalty,
including the nature of the contravention, the real or potential
adverse effect of the contravention, previous contraventions by the
person, and the person's efforts to correct the contravention.
If the contravention continues for more than one day, the Director
has discretion to impose a separate administrative penalty for each
day the contravention continues.
Maximum fines under the Regulation range from $2,000 to $75,000,
depending on the nature of the contravention. These amounts are
(relatively) low, particularly compared with the Administrative
Penalties Regulation under the Oil and Gas Activities Act,
which provides for fines of up to $500,000. However, companies
should keep in mind that a determination of a contravention under
the Regulation will form part of their record of violations and
could expose them to significantly greater liability for future
offences under the EMA and IPMA, as well as certain federal
legislation, including the Canadian Environmental Protection
Act (the "CEPA"), which provides for steep fines (up
to $1,000,000) for repeat offenders. For the purposes of CEPA, a
company may be found to be a repeat offender if convicted of a
"substantially similar offence" under a provincial
statute relating to environmental or wildlife conservation or
protection, such as the EMA or the IPMA.
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.
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