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

Last Updated: August 1 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.

To print this article, all you need is to be registered on

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

Chad Eggerman
Ahmed A. Malik
In association with
Up-coming Events Search
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.