Ontario's Bill 133 Places Heavy Responsibilities On Top Management
|Response / Training|
Navigating the challenges implemented by Ontario-Bill 133 should be in the forefront of the minds of Directors, Officers and their Counsel. The (Ontario) Environmental Enforcement Statute Law Amendment Bill 133, Act 2005 ('Bill 133' the 'Act') received Royal Assent and became law in Ontario on June 13, 2005.
Bill 133 brings about sweeping changes to the (Ontario) Environmental Protection Act, R.S.O. 1990, c.E.19 ('EPA') and the Ontario Water Resources Act, R.S.O. 1990, c.O.40, ('OWRA') 1. Director(s) and Officer(s) of Ontario Corporations are the 'regulated person' who has to explain a contravention of the Act to the Crown, face increased fines and longer sentences. The Crown also has, for the first time, definitions for sentencing.
Most Directors and Officers of small, medium and some large sized companies do not realize that they are defined as the 'regulated person' in the eyes of the law. Bill 133 has removed the shackles, weights and frustration that made enforcement and prosecution time-consuming, cumbersome and expensive. The changes to the Acts allow the ministry to focus their investigations at the corporate level of management, to find the answers concerning who was responsible, who had authority and who is accountable. The officers and directors of the company are now ultimately accountable for the control of contaminates.
Ontario Bill 133 has done an extreme makeover to the Ontario, EPA and the OWRA through adding sections and amendments. Powerful and subtle changes include: the removal of a 'due diligence defence' for top management of corporations, word changes to the Acts, new sweeping power and definitions for the courts as well as the enforcement branch. Commitment to Environmental Management Systems (EMS) by all levels of corporate personnel, especially top management, is key.
Duties of Directors and Officers
The law has overhauled the Ontario environmental enforcement regime and created onerous requirements for persons and companies in control of contaminates. Now, the director(s) or officer(s) of a corporation has a duty to 'take all reasonable care to prevent the corporation from discharging or causing or permitting' a contaminant in contravention of this Act, or the regulations or a certificate of approval, provisional certificate of approval, certificate of property use license or permit under this Act, from discharging into the natural environment. This is very specific, very broad based for industry, and can be very far-reaching!
These stringent duties for Directors and Officers could see top management prosecuted for a failure to report a minor violation, a missed MISA sample, or a failure to comply with every condition in a certificate of approval (C of A), etc.1
New Reverse Onus for Directors and Officers
Prior to Bill 133, Directors and Officers had the advantage of a due-diligence defence and could only be held liable if they 'failed to take all reasonable care to prevent the corporation from causing or permitting' a discharge. The Crown had to prove 'beyond a reasonable doubt' that they failed to take such reasonable care. This no longer applies!
Since Bill 133, the Crown no longer has to bear the burden of proving that 'reasonable care' was not taken. The 'reverse-onus' amendments to the Ontario EPA section 194 and OWRA section 116 puts the onus on the Director(s) or Officer(s) of the company to prove that they 'fulfilled their duty'.
If the Director or Officer of a corporation is charged with an offence in connection with a 'specific contravention by the corporation', that 'regulated person' has the onus in the trial to prove that he or she carried out their duty in connection with that contravention. Bill 133 provided the Crown with structured definitions to determine the fines and sentences. If the Crown chooses to lower a fine, or sentence, they must give a reason for their decision.
At a recent conference, two speakers and members of counsel Janet Bobechko BA, LLB, J.D.1 and Rosalind Cooper BSc, LLB, firstname.lastname@example.org, stressed that top management can not ignore the amendments and additions that Bill 133 has placed in the (Ontario) Environmental Protection Act, (EPA) and the Ontario Water Resources Act, (OWRA). These changes can put unsuspecting executives into vulnerable positions. The new Environmental Penalties could be as high as $100,000.00 per day and the 'regulated person' may be required to pay, even if the person took all reasonable steps to prevent the contravention. E.g. Spill kits should be right for the task; training should be hands on and provide the 'skills' to stop a spill or release; response equipment and protocols should be upgraded to handle time-critical-issues.
Although the Act (Bill 133) has received Royal Assent, the provisions of the Act related to EPs (Environmental Penalties) will be proclaimed into law (after written policy-proposal submissions have been received by December 25, 2005 and) once supporting regulations have been developed and approved3.
During consultation on Bill 133, the government announced 'its intention' that by regulation environmental penalties would be applied to facilities that fall within the nine industrial sectors governed by the Municipal/Industrial Strategy for Abatement - MISA - regulations4.
Don't be surprised if Environmental Penalties are extended to cover all spills creating adverse conditions similar to the August 2005, transportation disaster (train derailment) at Wabamun, Alberta.
The imposition of an environmental penalty on a person does not prevent the same person from being prosecuted for an offence in respect of the same contravention. (This was referred to at the conference as 'double-dipping' and is viewed as unconstitutional and will be challenged in court2.
The Director for the Ministry of Environment may issue an order requiring a 'regulated person' (corporate Director or Officer) to pay a penalty. If the 'regulated person' fails to comply, the order that requires payment can be registered with the courts, the director for the Ministry of Environment 'by order' can suspend any certificates of approval, etc. and may refuse to issue any further certificates of approvals. Politely put, the site could be shut down and the impact to business could be severe.
Goals for Environmental Management
Top management executives who have not followed or fully supported the needs of response personnel at the ground level need to revisit or develop an effective EMS that provides cooperation and understanding of the new goals. Front line managers who can't free up personnel from the day-to-day commitments need to revisit the consequences of today's new legislation. All levels of management should consider revisiting the legislation requirements with counsel to get a clear understanding about the impact of Bill 133.
You spill you pay
The Ontario Ministry of Environment (MOE) proudly introduced Bill 133 as a tool that increases the ability of the MOE's Enforcement Branch to promote environmental protection and compliance with Ontario's environmental protection laws, while moving financial burdens of pollution from those affected to those responsible.
Ontario Bill 133, has removed the constraints from the Ontario Enforcement Branch and the Crown so they can now move swiftly and effectively to put a true dollar value on contraventions that resulted from poor management practices, weak structure and clouded decision making. Examples of these may include: 'ignorance of the law, no plans, poor levels of prevention, preparedness and response capability, commitment through token efforts and lip-service.'
It is clear accountability in the eyes of the Ontario MOE and Crown, that required, Emergency/Contingency Plans, and Environmental Management Systems should be driven by organization's highest level of management. It is also evident that the Director(s) and Officer(s) are the highest levels of responsibility, authority and accountability that can best be chosen as 'the regulated person' to explain the contravention and tell the judge how they were in compliance with their duties or ultimate responsibilities.
Dr. David Colby (Acting Medical Officer of Health, Municipality of Chatham-Kent), stated: "We can't tolerate anything less than zero spills into drinking water...in Ontario"7. Sarah Winterton (Environmental Defence), said: "Bill 133 will provide a simpler approach to collect and recover money from environmental damages; encourage companies to develop new innovative approaches to protect our environment; and target companies that damage the environment."8
Published in the Environmental Science and Engineering Magazine
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