In Ontario, environmental laws are designed to protect the sprawling natural environment across the province by ensuring that individuals and corporations uphold responsible practices to preserve resources and prevent pollution. However, violating these obligations can result in regulatory charges with accompanying consequences of hefty fines and potentially jail time. Business owners, land developers, and individuals alike must, therefore, be aware of their obligations under applicable laws. If an individual or corporation faces charges or investigations related to environmental breaches, it is important to work with an experienced regulatory lawyer who can help navigate the legal landscape and develop a strategic approach to defence.

This blog post will shed light on the intricacies of defending against environmental law prosecutions in Ontario, from the initial investigation and charges to litigious proceedings and potential penalties. 

Environmental Laws in Ontario

The federal and provincial governments share enforcement of environmental regulations. With public awareness about environmental responsibility rising, municipalities also take on larger roles in environmental law enforcement by issuing by-laws and regulations.

The Canadian Environmental Protection Act is a piece of federal legislation which governs pollution prevention and protection of the environment in order to foster sustainable development. It provides a legislative basis for various environmental and health protection programs, including activities related to:

• ocean disposal;
• air and water pollution, hazardous waste, and greenhouse gas emissions; 
• risk assessment and management from chemicals and polymers; and 
• responses to environmental emergencies.

At the provincial level, Ontario’s Environmental Protection Act is the key piece of legislation governing environmental protection within the province. This legislation grants the Ministry of the Environment, Conservation and Parks broad powers to protect and conserve the natural environment. The provincial Environmental Protection Act deals with commercial transactions involving contaminated land, in addition to outlining prohibitions relating to the disposal of contaminants that can cause negative effects, and requires that any pollutant spills must be swiftly reported and cleaned up. It also provides a basis to establish liability for a party found at fault for violating any prohibited actions. 

What to Know About Environmental Prosecutions 

Canadian environmental law comprises federal, provincial and municipal statutes, regulations, policies, and by-laws. Many of these laws and regulations outline prohibited actions or inactions (for example, incorrect disposal of hazardous waste or chemicals) and set out corresponding offences and penalties for infractions. When a party is convicted of an environmental offence, they may face substantial fines and/or jail time. At the federal level, these charges are treated as criminal offences, and a conviction can result in a criminal record.

Both the provincial and federal governments control environmental law. In Ontario, the Ministry of the Environment, Conservation and Parks has the power to inspect and investigate environmental offences and can order corporations or individuals to clean up pollution. Alternatively, the Ministry may require an individual or business to pay for cleaning up any environmental damage they caused. At a municipal level, environmental issues are often addressed in land use planning and corresponding by-laws related to noise nuisance and waste disposal. 

Due Diligence to Remain Compliant

To mitigate risk and liability, individuals and businesses should exercise comprehensive due diligence to ensure they remain compliant with environmental regulations and laws. When due diligence is properly executed, it can aid in providing a party facing environmental prosecution with a defence to the regulatory charges or may minimize the extent of the consequences upon a conviction. Businesses and individuals should remain proactive in documenting the steps, policies, and actions to comply with their environmental obligations.

The standard of a duly diligent business or individual will vary depending on the circumstances and may be impacted based on various factors, such as the nature of the offence. Some common examples of due diligence in an environmental law context may include:

• obtaining necessary licences, permits, and approvals for projects;
• assessing and actively mitigating actual and potential environmental risks and retaining expert advice when necessary;
• having appropriate response procedures in place, such as a waste management system or spill policy; and
• educating employees on environmental violations and implementing workplace policies to prevent environmental violations.

Is Due Diligence a Complete Defence?

Due diligence can provide a complete defence and does not require an accused to have taken all possible steps to prevent an offence from occurring. Instead, it requires the accused to establish that they took all reasonable steps possible that would be expected of a reasonable person in similar circumstances beyond any industry standards.

Due diligence will not generally provide grounds for a party to appeal an administrative order. However, decision-makers, such as Ontario’s Environmental Review Tribunal, may consider an accused’s due diligence when deciding whether a regulatory body has acted fairly in issuing a particular order.

Key Takeaways for Individuals and Businesses Regarding Environmental Prosecutions

To rely on due diligence, a party must take all reasonable steps to prevent an environmental incident or offence from occurring. If a party finds themselves charged with an environmental infraction, establishing that they have been duly diligent can greatly reduce regulatory and civil liability in various cases. However, establishing that due diligence has been completed requires more than simple reliance on applicable industry standards. Those facing prosecution under environmental law should contact a trusted regulatory lawyer who can explain how the law applies to their situation and can develop a strategic defence in an effort to mitigate potential consequences and penalties.

Contact the Lawyers at Milosevic & Associates for Advice on Regulatory Defences for Environmental Prosecutions

The regulatory lawyers at Milosevic & Associates in Toronto provide representation before tribunals, agencies, other administrative bodies, or in court for those facing regulatory charges. We can help simplify what is otherwise highly complex litigation. Even in the most complex administrative disputes, our team of litigation lawyers helps our clients see through the dense forest. We work with clients to understand their needs and develop creative, cost-effective legal solutions tailored to any issue. If you have been charged with violating environmental law or are facing other regulatory charges, contact our office at 416-916-1387 or online to learn how we can assist you.