On June 6, 2013, the Ontario government introduced Bill 91 for first reading. Bill 91, also known as the Waste Reduction Act, 2013 proposes to replace the existing Waste Diversion Act, 2002 and is intended to reduce waste generation, increase waste diversion, and promote recycling in the province. The government cites the current statistic of 25 per cent diversion from landfill as the rationale to modify the existing diversion regime.
The proposed legislation establishes “individual producer responsibility” (IPR) whereby individual producers are responsible for achieving environmental outcomes set by the government on a product-by-product basis; the costs of waste diversion are shifted from the municipal tax base to producers.
The proposed legislation is also intended to ensure consumer protection by requiring all-in pricing for designated wastes, and also creates a new agency called the Waste Reduction Authority that’s responsible for enforcing the legislation.
Under the proposed legislation, each producer of a product or package that ends up becoming a designated waste is responsible for meeting waste reduction requirements for collection, reduction, reuse and/or recycling established by the government. Each producer is also required to meet certain service standards.
Options are available for producers in terms of meeting these requirements. They may do so on their own, or by joining with others, including intermediaries. “Intermediary” is a term defined by the legislation as an organization that’s operated, controlled or managed by producers and that broker, arrange or facilitate waste reduction services on behalf of producers. Producers are also permitted to deal directly with waste management service providers. There is no requirement for a producer to work with intermediaries.
Producers and intermediaries have dual responsibilities for meeting waste reduction and service standards: these responsibilities are set out in a service agreement between producers and intermediaries. Both are required to register on the Waste Reduction Registry and submit reports. Reports can be prepared on behalf of a producer (and one report can include information for more than one producer).
Municipalities can register to receive compensation for collection of designated wastes, which compensation is based on agreement between producers and municipalities. Producers must collect the designated waste from the municipality unless they have agreed otherwise.
The proposed legislation requires all-in pricing; separate “eco fees” are no longer permitted. Any seller displaying waste diversion costs that are embedded in the price of a product must convey those costs in a transparent and accurate manner in the final advertised or displayed price of the product. There’s a prohibition against any false or misleading information with regard to recycling costs.
The Waste Reduction Authority has a number of functions, including the receipt and storage of information from producers and intermediaries, and performance evaluation of producers’ actions. The Authority has the ability to take graduated compliance and enforcement measures against producers and intermediaries who perform poorly, and will be able to conduct inspections, issue compliance orders, and issue monetary penalties for non-compliance with the legislation.
The Authority will maintain a registry of producers and intermediaries to report on waste amounts and compliance matters. The Authority will also facilitate the resolution of disputes between producers and municipalities related to municipal compensation, and develop methodologies to determine compensation for designated waste. Financing for the Authority will be obtained from fees and administrative penalties.
The legislation creates several new offences for producers and intermediaries including: non-payment of fees; failure to register with the Authority; failure to fulfill responsibilities to collect designated waste from municipalities; non-compliance with waste reduction and service standards; non-compliance with compliance orders; obstruction of an employee or agent of the Authority; non-compliance with integrated pricing; and, providing false or misleading information.
One of the most significant criticisms of the Ontario waste reduction regime is that it’s inconsistent with the programs in place in several provinces across Canada, and that this has created difficulties for producers that have operations across the country and so must deal with different reporting and remitting obligations. Since some of these provinces have regimes similar to that proposed by the new legislation, the new legislation helps harmonize Ontario’s regime with these others.
Rosalind Cooper, LL.B., is a partner with Fasken Martineau DuMoulin LLP in Toronto, Ontario. Contact Rosalind at