Clean Up

The Ontario Minister of the Environment tabled Bill 133 in the legislature late last year. The legislation responds to recommendations made by the Industrial Pollution Action Team, which was established to review how the province’s environmental legislation is being enforced. Perhaps as a result of concerns from industry, Bill 133 was recently amended by the Standing Committee on the Legislative Assembly.

Bill 133 is focused on expanding the enforcement options available in the Environmental Protection Act (EPA) and Ontario Water Resources Act (OWRA). In summary, the proposed amendments include:

* establishing Environmental Penalties (EPs) which can be issued by a Ministry Director requiring payment of penalties and excluding the availability of the due diligence defence;

* reformulating the substantive pollution offences in the EPA and the OWRA to facilitate prosecutions;

* expanding the duty to report discharges and spills under the EPA to the Ministry of the Environment;

* broadening the order-making powers of Ministry provincial officers and the list of requirements that can be included in the orders;

* expanding the scope of directors’ and officers’ liability;

* including a number of aggravating factors that the courts must consider when sentencing those convicted under the EPA and OWRA; and

* increasing the potential liability of individuals and corporations convicted under the EPA and OWRA.

A brief discussion of the amendments most pertinent to consulting engineers follows.

Environmental Penalties

Environmental Penalties, if brought into force, could be used for nearly every contravention detected during a routine inspection. They can be issued to “regulated persons,” which is a term defined by the recent revisions made to Bill 133. A regulated person is one who belongs to a class of persons prescribed by the regulations and who holds or is required to hold a certificate of approval, certificate of property use, licence or permit under the EPA or the OWRA. It can also be a corporation that belongs to a class of corporations prescribed by the regulations.

Although the penalized party has the right to appeal to the Environmental Review Tribunal, the bill says that the defence of due diligence is not available with respect to the Environmental Penalty. The defence of due diligence allows defendants to absolve themselves on proof that they took all the care which a reasonable person might have been expected to take to comply with the law. In other words, under the proposed bill the penalized party’s compliance systems and methods are irrelevant to whether the penalty should be imposed. They are relevant only to the size of a penalty that is imposed. The issuance of an Environmental Penalty does not bar the Ministry from prosecuting as well.

New Substantive Pollution Offences

Substantive pollution offences, both in the EPA and the OWRA, prohibit the discharge of pollutants into the natural environment.

The EPA prohibits the discharge of a contaminant into the natural environment that either “causes or is likely to cause an adverse effect.” Originally, Bill 133 proposed to strike the words “causes or is likely to cause an adverse effect,” prohibiting discharges of contaminants outright. At the Standing Committee, this provision was amended to prohibit the discharge of a contaminant into the natural environment “if the discharge causes or may cause an adverse effect.” [italics added]

The OWRA prohibits discharges of any material that may impair the quality of water. In R. v. Inco Ltd., the court held that inherently toxic substances will always impair the quality of the water. However, if the discharged material is not inherently toxic, then the court must consider the quantity and concentration of the discharge and the timeframe over which it was released. Bill 133 introduces a “deemed impairment” concept which states that if any one of a number of circumstances is met, the quality of water is deemed impaired. This amendment will ease the Crown’s burden during prosecutions.

While it may not be apparent at first blush that a consulting engineer may be implicated in an environmental offence, the Ministry must have regard to the Provincial Offences Act in determining who is a party to an offence under the EPA or the OWRA. The Provincial Offences Act states that a party to an offence includes the person who commits the offence, a person who aids or abets the person who commits the offence, or a person who counsels or procures the person to be a party to an offence.

Discharge and spill reporting

Currently, the EPA requires that persons — and this may include consulting engineers — who discharge or cause or permit the discharge of a contaminant, or who control a pollutant that is spilled into the natural environment, must notify the Ministry if the discharge “causes or is likely to cause an adverse effect.”

Bill 133 widens the net of people and situations who must report such spills. It now requires notification of a discharge to the Ministry, “if the discharge is out of the normal course of events, the discharge causes or is likely to cause an adverse effect and the person is not otherwise required to notify the Ministry under section 92.” Further, notification of a spill is required when an adverse effect “may” result.

Evidently from the above, if Bill 133 is passed it will substantially alter the environmental regulatory landscape in Ontario.

Michelle Fernando is an environmental lawyer with Miller Thomson LLP, barristers and solicitors, in Markham, Ontario.