Canada: Administrative Monetary Penalties: New Federal Environmental Enforcement Measures Underway In Canada

On April 9, 2016, the government of Canada published draft regulations (the "Draft AMP Regulations")1 providing details on the implementation of the Environmental Violations Administrative Monetary Penalties Act2 ("EVAMPA"), together with a Policy Framework3, which outline the basic policy framework of the Administrative Monetary Penalties ("AMP") system at Environment and Climate Change Canada ("Environment Canada"). These draft regulations lead the way to the implementation of a federal AMP regime, more than five years after the enactment of the Environmental Enforcement Act4 in 2009. As many readers will be aware, the Environmental Enforcement Act introduced a number of significant changes to the federal environmental enforcement scheme, including an increase in maximum penalties, the establishment of minimum penalties, and the creation of an AMP regime5.

In this bulletin, we highlight key elements of this new AMP regime, which, if the draft regulations are adopted, would operate in parallel to those already in force at the provincial level in some Canadian provinces.

What is an Administrative Monetary Penalty?

An AMP is a type of enforcement measure aimed at assuring greater compliance with Canadian environmental laws and regulations. An AMP could be considered as an intermediary measure, between a written warning and prosecution measures, with a larger scope than the ticket regime. In a nutshell, AMPs resemble criminal fines, but are imposed by governmental authorities as opposed to being determined by a court following judicial proceedings. The proposed AMP regime is therefore, an additional compliance tool for Environment Canada.

Scope of application of the AMP regime

The proposed Draft AMP Regulations provide a list of some 700 provisions from six environmental laws and associated regulations administered by Environment Canada, that would be subject to the AMP regime: the Antarctic Environmental Protection Act; the Canada Wildlife Act ; the Canadian Environmental Protection Act, 1999 (Parts 7 and 9); the International River Improvements Act; the Migratory Birds Convention Act, 1994; and the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act. We note, however, that some important federal environment legislation, i.e. the Fisheries Act and the Species at Risks Act, are not included in the list of acts that would be subject to the AMP regime6.

A complete list of the laws and regulations that would be subject to the new AMP regime is provided in Schedule A7.

The designated violations that would be subject to the proposed AMP regime include most of the offences provided for in the six applicable laws8. Generally speaking, the Draft AMP Regulations apply to the following types of violations9:

  • the contravention of a specified provision of an environmental act and/or of a regulation made under such act (schedule 1 of the Draft AMP Regulations);
  • the contravention of specified direction and order (schedule 2 of the Draft AMP Regulations); and
  • the failure to comply with a condition of a permit, licence or other authorization (schedule 3 of the Draft AMP Regulations).

Types of AMP and associated penalties

The amount of an AMP would range from $200 to $25,000 depending on the type of violation in question, the identity of the violator (individual / business, ship, vessel or aircraft), and the existence of aggravating factors10. A violation that occurred for a duration of more than one day would be considered a different violation for each subsequent day11.

The Draft AMP Regulations classify every violation as either a Type A, B or C violation, depending on the regulatory significance of the violation. Type A violations would typically include administrative violations, like the omission to submit an annual report. Type B violations represent more serious compliance issues that may involve a risk of harm to the environment, like the unauthorized disposal of a substance in sea. Type C violations include the most serious compliance issues that involve harm to the environment, like the failure to withdraw from service a tank system that is leaking12.

A baseline amount corresponds with each type of violation, to which an additional amount may be added if one or more of three aggravating factors is present, namely (i)history of non-compliance13, (ii)harm to environment14 and/or (iii)economic gain that resulted from the violation15:

Economic Gain
Violator Violation Type Baseline Penalty Amount ($) History of Non-compliance Amount ($) Environmental Harm Amount ($) Only Avoided Financial Cost of Obtaining a Required Authorization Present ($) Other Economic Gain Present ($) Maximum Penalty ($)
Individual A
B
C*
200
400
1,000
600
1,200
3,000
300
600
0
50
100
250
200
400
1,000
1,300
2,600
5,000
Other person or ship or vessel A
B
C*
1,000
2,000
5,000
3,000
6,000
15,000
1,500
3,000
0
250
500
1,250
1,000
2,000
5,000
6,500
13,000
25,000
Source: Draft AMP Regulations, Schedule 4 and Regulatory Impact Analysis Statement of the Environmental Violations Administrative Monetary Penalties Regulations

* By their nature, Type C violations involve harm to the environment and, consequently, no additional amount is added to the baseline amount.

Violators

An AMP could be imposed by Environment Canada against any individual or business that commits any violation falling within the scope of the Draft AMP Regulations.

A violation committed by an employee, an agent or a mandatary of a person would be deemed to have been committed by that person16.

Also, any director, officer, agent or mandatary of the corporation that directed, authorized, assented to, acquiesced in or participated in the commission of a violation by a corporation would be considered a party to the violation and would be liable to an AMP, whether or not such corporation has been subject to an AMP17.

Specific rules would be applicable to ships, vessels and aircrafts18.

Procedure and enforcement

If Environment Canada believes, on reasonable grounds, that a person has committed a violation subject to the AMP regime, Environment Canada could impose an AMP by issuing a notice of violation19. However, no notice of violation may be issued more than two years after the day on which the subject matter of the violation arises20. Also, where Environment Canada has elected to treat an act or omission as a violation under the AMP regime, it would be precluded from doing so as an offence under the applicable environmental law21. Similarly, treating an act or omission as an offence under the applicable environmental law would likewise preclude Environment Canada from later electing to proceed by way of the AMP regime.

The notice of violation must name the person who is believed to have committed the violation, set out the relevant facts, set out the AMP, provide details on the right to request a review, specify the manner of paying the AMP, and inform such a person that if the AMP is not paid or if there is no review request, that person will be considered to have committed the violation22.

The notice of violation must be served according to standard notification procedures, by person, registered mail, courier, fax, or other electronic means23. In the absence of an acknowledgement of service or a certificate of service, service is considered effective on the 10 th day after a registered mail or courier is issued or in the case of service by fax or other electronic means, on the day on which it is sent24.

If a person pays the AMP, that person is considered to have committed the violation25. Also, a person that neither pays the AMP nor requests a review of such AMP is considered to have committed the violation and is liable for the AMP26. Outstanding AMP payments may be recovered by Environment Canada in a Federal Court or any other court of competent jurisdiction, but such proceedings may not be instituted more than five years after the day on which the AMP becomes payable27.

Defence and revision

A person who is served with a notice of violation may request a review of the penalty or of the facts of the alleged violation, or both28. A review request must be filed with the Chief Review Officer, who is appointed under the Canadian Environmental Protection Act, 1999, within 30 days after the day the notice is served or within any longer period that the Chief Review Officer may allow29. At any time before a request for a review is received by the Chief Review Officer, a notice of violation may be cancelled or corrected by Environment Canada30.

The review is conducted by the Chief Review Officer, a review officer, or by a panel of three review officers31 assigned by the Chief Review Officer. Both the person requesting the review and Environment Canada must be given reasonable notice, orally or in writing, of a hearing and be given a reasonable opportunity to make oral representations32. The minister has the burden of establishing, on a balance of probabilities, that the person requesting the review committed the violation33. The review officer or panel has to render its decision within 30 days34 after the day on which the review is completed and, without delay, provide copy of the determination and reasons. This decision is final and binding and not subject to appeal or review by any court, except for judicial review under the Federal Courts Act35.

The EVAMPA specifically excludes the due diligence and mistake of fact defences36. However, other common law principles that would constitute a lawful justification or excuse to the violation are applicable to the extent that they are not inconsistent with the EVAMPA37. These principles could include, for example, the officially induced error whereby a violation is the result of the reliance upon an erroneous advice from an appropriate governmental official.

Coming into force

Interested persons may make representations to Environment Canada concerning the Draft AMP Regulations and the Policy Framework of the Administrative Monetary Penalty System during the 60-day consultation period (April 9, 2016 to June 8, 2016). Following such consultation period, the Governor in Council may adopt the Draft AMP Regulations. The Draft AMP Regulations would come into force on the day on which they are registered.

Conclusion

More than five years after the adoption of the Environmental Enforcement Act, the government of Canada now seeks to implement an Administrative Monetary Penalties regime. While Environment Canada has not specified how many AMPs could be imposed each year, new enforcement efforts can be expected. For industries, this new regime, if adopted, could represent a new challenge, since Environment Canada would now have a new, easier tool to use to ensure the compliance with many federal environmental laws.

Schedule A

Laws Regulations
International River Improvements Act International River Improvements Regulations
Canada Wildlife Act Wildlife Area Regulations
Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act Wild Animal and Plant Trade Regulations
Migratory Birds Convention Act, 1994

Migratory Birds Regulations
Migratory Bird Sanctuary Regulations
Canadian Environmental Protection Act, 1999 Fuels Information Regulations, No. 1
Concentration of Phosphorus in Certain Cleaning Products Regulations
Gasoline Regulations
Sulphur in Gasoline Regulations
Sulphur in Diesel Fuel Regulations
Interprovincial Movement of Hazardous Waste Regulations
On-Road Vehicle and Engine Emission Regulations
Federal Halocarbon Regulations, 2003
Off-Road Small Spark-Ignition Engine Emission Regulations
Off-Road Compression-Ignition Engine Emission Regulations
Export and Import of Hazardous Waste and Hazardous Recyclable Material Regulations
Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations
Renewable Fuels Regulations
Passenger Automobile and Light Truck Greenhouse Gas Emission Regulations
Marine Spark-Ignition Engine, Vessel and Off-Road Recreational Vehicle Emission Regulations
Heavy-duty Vehicle and Engine Greenhouse Gas Emission Regulations
Antarctic Environmental Protection Act Antarctic Environmental Protection Regulations

Footnotes

1 Environmental Violations Administrative Monetary Penalties Regulations, (2016) C Gaz I, 1021 (proposed regulation), (accessed April 12, 2016) [Draft AMP Regulations].

2 L.C. 2009, c. 14, s. 126. [EVAMPA]. This act came into force on December 10, 2010, but was never implemented as it lacked the required implementing regulations.

3 Environment Canada, Policy Framework of the Administrative Monetary Penalty System at Environment and Climate Change Canada to Implement the Environmental Violations Administrative Monetary Penalties Act, (accessed April 12, 2016). See also: Environment Canada, Compliance and Enforcement Policy for CEPA (1999) — March 2001, (accessed April 12, 2016).

4 L.C. 2009, c. 14.

5 For more information on the Bill C-16, see: Library of Parliament, Penny Becklumb, Legislative Summary of Bill C-16: Environmental Enforcement Act Legislative summary, June 19 2009, (accessed April 12, 2016).

6 Other acts are subject to the application of the Environmental Violations Administrative Monetary Penalties Act, but were not included in the list of provisions subject to AMP measures: Canada Water Act, Canada National Parks Act, Canada National Marine Conservation Areas Act, Rouge National Urban Park Act, Saguenay-St. Lawrence Marine Park Act, and to certain sections of the Canadian Environmental Assessment Act, 2012. However, these regulations could be subject to the AMP regime in the future.

7 The complete list of the provisions subject to the AMP regime is provided in Schedules 1, 2 and 3 of the Draft AMP Regulations.

8 Except for the Canadian Environmental Protection Act, 1999,for which only parts 7 and 9 are covered.

9 Draft AMP Regulations, Section 2.

10 EVAMPA, Section 5 (4); Draft AMP Regulations, Sections 3 to 8.

11 EVAMPA, Section 12.

12 Draft AMP Regulations, Section 3 and Schedule 3; Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations, SOR/2008-197, s 3(1).

13 Draft AMP Regulations, Section 6. The non-compliance relates to the five-year period prior to the occurrence of the violation and refers to violations that were subject to enforcement measures (ex: ticket, penalty, conviction, injunction or environmental protection alternative measures) within such period.

14 Draft AMP Regulations, Section 7.

15 Draft AMP Regulations, Section 8.

16 EVAMPA, Section 9 (1).

17 EVAMPA, Section 8 (1).

18 EVAMPA, Sections 8(2)(3)3 and 9 (2) (3).

19 EVAMPA, Section 10 (1).

20 EVAMPA, Section 14.

21 Draft AMP Regulations, Section 13.

22 EVAMPA, Section 10 (2).

23 Draft AMP Regulations, Section 9 (1).

24 Draft AMP Regulations, Sections 9 (2) and (3).

25 EVAMPA, Section 25.

26 EVAMPA, Section 26.

27 EVAMPA, Section 27.

28 EVAMPA, Section 15.

29 EVAMPA, Section 15.

30 EVAMPA, Section 16.

31 EVAMPA, Section 17.

32 EVAMPA, Section 20 (1).

33 EVAMPA, Section 20 (2).

34 EVAMPA, Section 21.

35 EVAMPA, Section 23.

36 EVAMPA, Section 11 (1).

37 EVAMPA, Section 11 (2).

About BLG

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
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
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