Bill 133, an amendment to the Environmental Protection Act (EPA) and the Ontario Water Resources Act (OWRA) was tabled for first reading by the Ontario government on October 27, 2004. Bill 133 contains the most significant changes to Ontario’s environmental liability regime in recent memory. If passed, the bill will alter some of the fundamental and longstanding principles in environmental law. Here’s a sample of some key amendments.
New environmental penalties
The proposed legislation provides the Director of the Ministry of the Environment with the power to issue an order requiring payment of a penalty for contravention of the legislation, and for violation of certain orders and approvals. These orders are referred to as “environmental penalties” (EPs) and may only be issued against companies that are specified in a regulation that has yet to be developed.
The orders will contain a description of the contravention and, if applicable, a description of the adverse affect caused by the contravention. The orders will also specify the amount of the penalty that must be paid and the timeframe for doing so. The penalties associated with these orders are not to exceed, for each day (or part of a day on which the contravention occurs or continues) $20,000 in the case of an individual and $100,000 in the case of a corporation.
Death of due diligence?
The most interesting aspect of these orders, from a legal perspective, is that the penalty must be paid notwithstanding the exercise of due diligence by the individual or corporation. In other words, the orders create absolute liability in that they apply even if the person exercised due diligence by taking all reasonable steps to prevent the contravention, or by having an honest and reasonable belief in a mistake in a set of facts that, if true, would have rendered the contravention innocent. This represents a fundamental shift in the environmental liability regime whereby environmental offences are strict liability offences to which the defence of due diligence applies.
The other unusual aspect of these orders is that they could potentially lead to a situation of double jeopardy. Bill 133 provides that a person can be charged, prosecuted and convicted of an offence under the legislation in respect of a contravention, even if an environmental penalty has been imposed and paid by the person in respect of the contravention. This means that the ministry could issue an EP based on a contravention and then, subsequently, proceed with a prosecution in respect of the very same matter!
Appeal of penalties and reverse onus
If an individual or company decides to appeal an EP to the Environmental Review Tribunal, the onus of proof shifts to the individual or company to show, on a balance of probabilities, that the allegations in the order are not true. This creates what is referred to as a “reverse onus” in that the accused is required to demonstrate that the allegations are false, as opposed to the normal onus in such matters where the prosecution is required to demonstrate that the alleged action occurred. This also represents a fundamental shift in the principles generally applicable to environmental offences.
Elimination of requirement for adverse effect
In order for an offence to be committed, the EPA currently requires that a discharge of a contaminant to the natural environment has or is likely to have an “adverse effect.” Bill 133 alters this requirement by creating an offence in respect of a discharge, notwithstanding the actual effect on the natural environment.
This is achieved through amendments to the wording of the EPA such that an offence is committed whenever a contaminant is discharged, because “contaminant” is now defined as material that has the potential to cause an adverse effect. Similar amendments have been made to the OWRA. These amendments alter one of the key elements of the offence of discharging a contaminant, namely, that there be an adverse effect on the environment.
Onus on officers and directors
Bill 133 also changes the current regime with respect to director and officer liability for environmental offences. Specifically, the proposed legislation would provide that directors and officers of corporations must take all reasonable care to prevent the corporation from contravening any provision of the legislation, and that a person charged with the offence of failing to carry out that duty has the onus of proving that the duty was carried out. This means that the accused is required to demonstrate that he or she took reasonable care to prevent the offence, as opposed to the prosecution having the onus to prove the offence of failing to take such reasonable care.
When Bill 133 was first introduced and the magnitude of the proposed changes sank in, many stakeholders complained about the inadequate comment period. Initially, Bill 133 was posted on the Environmental Bill of Rights Registry for only thirty days, a comment period which was considered to be wholly inadequate. However, this comment period has been reconsidered and extended to January 7, 2005.
The ministry can expect numerous and detailed comments from a variety of different stakeholders regarding the proposed legislation and its impacts. If enacted in its present form, Bill 133 is likely to result in legal challenges based on the constitutionality and legality of the amendments, many of which will result in extreme prejudice to an accused.
Rosalind Cooper, LL.B. is a partner with Fasken Martineau DuMoulin LLP, with offices across Canada. Ms. Cooper is based in Toronto, Ontario. E-mail Rosalind at email@example.com