On January 7, 2009, the Divisional Court of the Ontario Superior
Court of Justice released a decision (Branch) that will
significantly affect how Ontario's Ministry of the Environment
(MOE) conducts investigations, and could have major implications
for MOE investigations and evidentiary rulings in MOE prosecution
trials already under way.
The MOE had obtained a court order pursuant to the Environmental
Protection Act (EPA) ordering Mr. Branch to answer an
investigator's questions about a fire at a facility at which he
was a manager.
These orders are commonly known as investigative techniques
orders, or INCO orders, after the case that led to statutory
amendments enabling such orders. They are also provided for under
other MOE legislation (Ontario Water Resources Act, Nutrient
Management Act, 2002, Safe Drinking Water Act).
Mr. Branch brought a judicial review application to quash the
The Divisional Court held that the section of the EPA
authorizing such orders can enhance the legal authority of
Provincial Officers to permit them to do things that would
otherwise be considered unlawful search and seizure, but the order
cannot compel a third party (including the party under
investigation) to do things, such as to attend and answer questions
or to produce documents.
This interpretation is a significant departure from common
practice by MOE.
The Ministry of the Environment has not sought leave to appeal
this decision. We may, instead, see legislative amendments to
counteract its effect.
This decision is of importance to any company under MOE
investigation that is not consenting to the investigation, or which
has been charged with an offence where the investigation included
an investigative techniques order.
Willms & Shier Environmental Lawyers LLP can provide advice
and training for dealing with the impacts of the Branch decision,
managing investigations and defending prosecutions.
*Environmental Law Specialist Certified by the Law Society of
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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