Canada: "Protective" and "Preventative" Purpose of Ontario's Environmental Protection Act Justifies Warrantless Inspection Powers

Last Updated: January 2 2019
Article by Michael Connell

In a decision released December 14, 2018, the Ontario Court of Appeal clarified the legal test that authorizes a warrantless inspection under s. 156(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19 ("EPA").

Facts of the Case

In the case, Ontario (Environment and Climate Change) v. Geil, 2018 ONCA 1030, a municipal by-law officer responded to an allegation that a neighbour was burning construction debris that he hauled onto his property.

The by-law officer did not observe debris being hauled to the site, but did observe smoke. He did not detect any unusual colour or odour associated with the smoke. He nonetheless contacted the Ministry of Environment (the "MOE"). The EPA prohibits the discharge of contaminants into the natural environment in levels that exceed that prescribed by regulations (s. 6).

Two MOE officers, the by-law officer and two police officers responded to the property.  The property owner did not allow the MOE officers to inspect the fire. He was subsequently charged with obstructing the MOE officer in the performance of his duties, contrary to section 185(1) of the EPA.

Issue

The question for the court was whether a third-party report about a fire (the MOE officer did not see smoke or fire before entering the property) was sufficient grounds for an MOE officer to enter private property without a warrant to conduct an inspection.

The MOE officer's authority to conduct a warrantless inspection is pursuant to section 156(1)(c) of the EPA, which reads:

For the administration of this Act or the regulations, a provincial officer may, without a warrant or court order, at any reasonable time and with any reasonable assistance, make inspections, including,

...

(c) entering any place in or from which the provincial officer reasonably believes a contaminant is being, has been or may be discharged into the natural environment... [Emphasis added.]

The issue was, therefore, whether the third-party report was sufficient to give rise to a "reasonable belief" on the part of the MOE officer that a contaminant was being or had been discharged into the environment.  A "contaminant" is defined as "any solid, liquid, gas... resulting directly or indirectly from human activities that causes or may cause an adverse effect" (s. 1(1)).

Decisions Below

The trial court held that a third-party report could give rise to a "reasonable belief" if it was "compelling", "credible", and "corroborated".  Essentially, the court adopted the analysis from R. v Debot, [1989] 2 S.C.R. 1140, where the issue was whether a "tip" from an informant could justify a warrantless police search of a person.  The trial court found that this test was met, and the property owner was convicted.

The Provincial Offences Appeal Court disagreed. The appeal court held that a provincial officer's reliance on a report from a third party could not amount to a "reasonable belief", and the provincial officers did not have the authority to enter the property.

Decision of the Court of Appeal

The Court of Appeal reversed the Provincial Offences Appeal Court, and reinstated the conviction, but it also found that the trial court "set the bar too high" by requiring the information to be "compelling", "credible" and "corroborated".  Reasoning that, while this test may be appropriate for the criminal law context, it is inconsistent with the "preventative and protective" purpose of regulatory inspections under the EPA (para. 87-88).

The Court of Appeal held that the legal test to determine whether an MOE Officer has a "reasonable belief" sufficient to permit a warrantless inspection under s. 156(1) of the EPA is, whether there is:

  • a nexus between the purpose of the entry and the protective, preventative, or remedial purpose of the EPA, and
  • an objective and reasonable basis for the provincial officer to believe that a contaminant was, has been, or may be discharged into the natural environment (para. 78).

Acknowledging that this is a "low threshold", the Court of Appeal reasoned that it was justified because, given the harm caused by release of contaminants, "MOE inspectors must be able to act swiftly and effectively" (para. 83).

Implications for Privacy Rights

Curiously, beyond the simple assertion that the provision provides "an appropriate balance between the public interest in ensuring regulatory compliance and individual privacy rights" (para. 84), the decision offers almost no discussion of privacy rights.  It is also vague about exactly what "regulated activity" the defendant was engaged in.

While the hauling of construction debris for disposal (as alleged by the neighbour) is an activity regulated by Part V of the EPA, the Court of Appeal does not evaluate whether the MOE officer had a "reasonable belief" that the defendant was hauling construction debris (in fact, the defendant told the MOE officer he was burning wood from a barn he demolished on his own property (para. 12)).

Rather, the Court appears to treat an open wood fire as the "regulated activity" that justifies an inspection.  An open fire may require a fire permit in many municipalities, but a typical outdoor wood fire is not truly "regulated" pursuant to the EPA. For example, periodic outdoor wood fires do not require an environmental compliance approval ("ECA") under the EPA. (For more info see the Ontario Government web page, Outdoor Fires and the Law.)

This distinction between regulated and unregulated activities is important when evaluating the protections to afford privacy rights.  This is because low thresholds for warrantless inspections are typically justified on the basis that a person engaged in a regulated activity does not have a reasonable expectation of privacy from inspection (see Thompson Newspapers Ltd. v. Canada (1990), 54 C.C.C. (3d) 417 (S.C.C.)). On the facts as provided in the decision, it is not clear that the defendant was actually engaged in a true "regulated activity", since it seems a step too far to suggest that the EPA turns every private, outdoor wood fire into a regulated activity.

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
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Sign Up
Gain free access to lawyers expertise from more than 250 countries.
 
Email Address
Company Name
Password
Confirm Password
Position
Industry
Mondaq Newsalert
Select Topics
Select Regions
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