Area of Law: Environmental Law
Answer # 376
The Due Diligence defence in environmental casesRegion: Ontario Answer # 376
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.
If you need additional information about environmental law in Ontario, visit the Ministry of the Environment, Conservation and Parks.
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