Canada: What Is The Duty To Report Contamination Discovered By A Consultant Or Engineer? A Look At Saskatchewan's New Approach

Last Updated: March 16 2016
Article by Chad Eggerman and Ahmed A. Malik

The Environmental Management and Protection Act, 2010 ("EMPA 2010") came into force in Saskatchewan on June 1, 2015 in conjunction with The Saskatchewan Environmental Code (the "Code"). EMPA 2010 and the Code aim to implement a new results-based regulatory model of environmental legislation which is based on many aspects of Ontario's regulatory framework but also borrows from best practices in British Columbia and other jurisdictions. This article provides a brief overview of how the recent legislation impacts environmental professionals, particularly environmental consultants and consulting engineers.

A new broader duty to report

Section 9 of EMPA 2010 places a duty to report on every person who discharges a substance that may cause or is causing an adverse effect on the environment, as well as, on every person who discovers a substance that may cause or is causing an adverse effect on the environment, while conducting work. Under the previous legislation, the duty was limited only to those parties who were responsible for the discharge. The new regime replaces existing and future regulations and makes it an offence to fail to comply with the Code and EMPA 2010. The potential liability an offender may incur by failing to comply with Section 9(3) of EMPA 2010 may include:

  • a fine of up to $1,000,000 per day for each day the offense continues;
  • a fine (in addition to the fine described above) in an amount equal to a court's estimate of any monetary benefits which may have accrued to the offender;
  • imprisonment of up to 3 years;
  • a combination of a fine and imprisonment; or
  • a fine or imprisonment for directors, officers or agents of the offending corporation (if a corporation).

In the role of a typical environmental consultant, it is unlikely that the consultant would be discharging any substance causing an adverse effect but is likely that the environmental professional may discover substances causing an adverse effect. In our interpretation of EMPA 2010, the term "every person, while conducting work" could be interpreted broadly enough to include residential and commercial developers, contractors and subcontractors, environmental engineers and environmental consultants. We are not aware of clarifications to EMPA 2010 or the Code by the Ministry of Environment to clarify the breadth of this provision. It may be that the Ministry of Environment will provide clarification in the future but has not yet. For the time being our advice is to err on the side of caution and assume a large group of individuals and organizations are caught by this legislation.

In conjunction with Section 9 of EMPA 2010, Chapter B.1.1. of the Code establishes the requirements for reporting a discovery of a substance that may cause or is causing an adverse effect on the environment. The purpose of Chapter B.1.1. is "to ensure the safety of the public and protection of the environment from the discharge of environmentally dangerous substances." It applies to "the person who discharges, allows the discharge, or has control of the substance discharged as well as [...] persons who discover a historical discharge of a substance while doing work."

Who reports a discovery?

Pursuant to Chapter B.1.1. Section 1-3 of the Code, the following persons have an obligation to report a discovery:

  1. every person who owns or occupies land on which a substance is discovered;
  2. every person who discovers a substance while conducting work;
  3. a police officer or employee of a municipality or government agency who is informed of or who investigates a discovery of a substance into the environment that may cause or is causing an adverse effect.

An environmental professional's duty to report would likely arise out of (b) above.

When would an environmental professional have to report a discovery?

Under the Code, the discovery of a substance must be reported if:

  1. the substance may cause or is causing an adverse effect (e.g. significant vegetative stress of an unknown cause);
  2. the substance discovered is in a quantity or concentration that could pose a serious risk to the environment or public health or safety (e.g. when conducting a site assessment drilling reveals free phase petroleum hydrocarbons that are in contact with a building foundation – which would trigger immediate reporting); or
  3. the substance meets the criteria set out in Table 2 of the Discharge and Discovery Reporting Standard for the applicable media with respect to that substance.

An environmental professional does, therefore, have some discretion when making the decision as to whether or not to report the discovery based on the requirements above. However, in most situations the most appropriate course of action may be to report the discovery if there is any doubt regarding whether a discovery is reportable.  Moreover, if a person is required to report a discovery and the discovery is in a quantity or concentration that could pose a serious risk to the environment or public health or safety, then it must be immediately reported to the Ministry of Environment.

It should be noted that a discovery only needs to be reported when the triggers have been confirmed.  There is no obligation to report a discovery if the Ministry of Environment is aware of previous impacts (e.g. previous site assessment has been completed or as provided in reports issued to the Minister pursuant to an Approval to Operate or an approved Environmental Protection Plan), unless those impacts aggravate or create new adverse effects.

The potential liabilities arising from the duty to report

The potential liabilities or consequences an environmental professional could face if he/she does not comply with Section 9 of EMPA 2010 are outlined in Section 84 of EMPA 2010. The important sections of Section 84 are:

  • Section 84(2) states that for every person that contravenes a provision of EMPA 2010, the regulations or the Code, for which no penalty is otherwise provided, is guilty of an offence and liable on summary conviction to: (a) a fine not exceeding $1,000,000 for each day or part of a day during which the offence continues; (b) imprisonment not exceeding three years; or (c) both a fine and imprisonment.
  • Section 84(4) asserts that every director, officer or agent of a corporation that participated in the act or omission of the corporation is guilty of the offence and is liable on summary conviction to the penalties provided for that offence whether or not the corporation has been prosecuted or convicted.

In addition to or instead of any penalty imposed pursuant to EMPA 2010, a court may order the convicted person to do one or more of the following:

  1. remove a substance in a manner and within the period specified by the order;
  2. prohibit the convicted person from doing any act or engaging in any activity that, in the opinion of the court, may result in the continuation of the offence;
  3. repair, mitigate or minimize any damage to the environment that resulted from the commission of the offence;
  4. take steps to prevent any damage to the environment that may result from the commission of the offence in a manner and within the period specified by the order;
  5. pay to the minister an amount of money as compensation, in whole or in part, for the cost of any corrective action taken by or at the direction of the minister as a result of the commission of the offence; or
  6. any other thing that, in the opinion of the court, is necessary in the circumstances.

This article provides a very brief summary of the impact of the legislative changes in Saskatchewan. Environmental professionals are encouraged to speak to their legal advisors for more information about the impacts and potential liabilities in specific situations.

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.

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Chad Eggerman
Ahmed A. Malik
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