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Things to know

  • Companies carrying on business in Canada are subject to overlapping environmental regulation by all levels of government — federal, provincial/territorial and municipal.
  • Each province has environmental protection laws and has a regulator charged with administration and enforcement.
  • All jurisdictions generally take a “laddered approach” to enforcement, ranging from voluntary compliance through inspections and education to compulsory tools such as broad order powers, administrative penalties, investigation, charges and prosecution powers.
  • Environmental offences in Canada are quasi-criminal “strict liability” charges, potentially subject to significant fines and/or imprisonment.
  • Most environmental statutes extend a regulator’s reach to persons in “management or control” of the business and/or property, including current/former owners, current/former landlords/tenants/occupants and current/former directors and officers.
  • Directors and officers may be exposed to personal liability, including being named personally in orders and prosecution.
  • Bankruptcy or insolvency does not necessarily relieve a company from complying with a regulator’s order to deal with contamination.

Things to do

  • Regulators inspecting your premises have broad powers, and you have corresponding statutory obligations. In contrast, regulators investigating potential offences have more limited powers. Know the difference and call your lawyer.
  • Implement a robust Environmental Management System, with written procedures, training and follow up, to assist in a due-diligence defence in the event of any investigation or potential charges by a regulator.
  • Work with your regulator to achieve compliance, get feedback and develop goodwill and trust. Consider negotiating timing and scope of compliance requirements, in a way that demonstrates that the regulator’s perceived risks would still be addressed.
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