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Ontario|EnvironmentalEnvironmental 375 How are environmental laws enforced? The Ontario Environmental Protection Act, which covers most environmental offences, is enforced in two main ways. First, the Ministry of the Environment can issue an order demanding the company or individual to take certain actions. Second, the Ministry may choose to charge and prosecute the offender.
- Orders
Six of the most common types of orders which the Ministry of the Environment may issue are: stop orders, control orders, preventative orders, clean-up orders, orders to pay clean-up costs, and orders regarding waste disposal sites.
- Stop orders
A stop order requires an activity to be halted because it is causing or is likely to cause harm to people or to the environment. Stop orders are issued to the property owner or to the person responsible for the harmful activity, and they must be obeyed immediately.
- Control orders
A control order requires a person to monitor and control an activity to prevent environmental harm. A control order can also demand that contamination be cleaned up or contained.
- Preventative orders
A preventative order demands that a person take precautions to prevent discharges and to clean up or minimize the adverse effects of any discharge which may occur. Preventative orders can be issued even if no contamination has been discharged. Current and former owners and controllers of property or businesses can be subject to preventative orders.
- Clean-up orders
A clean-up order demands that a person remove contaminants and restore the environment. A clean-up order must be directed to the person who caused or permitted the contamination.
- Orders to pay costs
An order to pay costs demands that a person reimburse the government for the costs of cleaning up the contaminants and restoring the environment. Any person who could have been ordered to prevent contamination or to clean it up can be ordered to pay the government's clean-up costs.
- Orders regarding waste disposal sites
The Ministry can also order owners, operators and former owners and operators of waste disposal sites or land where waste was illegally dumped, to clean up the site.
- Appealing an order
Any of these types of orders can be appealed to the Environmental Appeal Board. An order will usually have to be followed while it is being appealed unless the person filing the appeal can show that suspending the order will not damage the environment or the health of any person. Orders must be appealed promptly. If a person waits too long to appeal, he or she may lose the right to appeal.
- Prosecution
The Ministry of the Environment can also charge and prosecute someone who commits an environmental offence. For most environmental offences, a corporation or its directors can be held responsible even if they did not intend to commit the offence. This is sometimes referred to as 'strict liability'. However, the corporation or its directors may not be held responsible if they exercised due diligence and took all reasonable steps to avoid the harm. More information about due diligence is available on Legal Line .
Prosecution of an environmental offence is similar to prosecution of a criminal offence. If found guilty, the corporation could have to pay a fine and the directors or other responsible individuals could have to pay fines and they may be given a prison sentence. In addition, convicted persons and companies may have to pay the costs of cleaning up the contamination, have permits revoked and forfeit profits earned from committing the offence.
- Getting additional information
If you require more information about an order or about defending a charge against you, you should contact an environmental law lawyer.
376 The "Due Diligence" defence
In some cases, a corporation or its directors can be held responsible for environmental offences even if they did not intend to commit the offence. This is sometimes referred to as 'strict liability'. However, the corporation and its directors may defend themselves by showing that they exercised what is called "due diligence". "Due diligence" generally means that all reasonable care to avoid the harm was taken.
To demonstrate due diligence, a corporation or an individual must show one of two things. Either they must show that they did everything within their power to prevent the offence, or they must show that the individual or the directing minds of the company reasonably believed in a mistaken set of facts which, if true, would make them innocent.
The specific requirements of due diligence will depend on several factors, including the potential harm, the available alternatives, the likelihood of harm, and the degree of knowledge or skill that can be expected of the person charged. Overall, the defendant must prove that it was more likely than not that they did everything reasonable to prevent the environmental damage.
To use the due diligence defence, the company or individual must show that they established a proper system to prevent environmental harm, and that they took reasonable steps to ensure that the prevention system would work effectively. An environmental management system should identify, manage, and control the risk of harm to the environment, and should document the risks and actions taken.
If you need specific advice about defending an environmental charge, you should contact an environmental law lawyer. A lawyer can also advise you about how to ensure that you are complying with the law and how to minimize your exposure to environmental liability before problems arise.
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