You Spill You Pay! Passes
D&O Liability, Stricter Fines, Spill Reporting in Force
Environmental Penalties - Not Yet
Bill 133, the Environmental Enforcement Statute Law Amendment Act, 2005 received Royal Assent on June 13, 2005. Many significant provisions came into force immediately. These include:
- Expanded duties and liabilities for corporate directors and officers;
- Higher fines, minimum fines, and mandatory "aggravating factors" that judges must use to mark up fines on sentencing;
- A more stringent spill reporting trigger;
- Power to require all facilities in prescribed sectors to develop and implement spill prevention and spill contingency plans;
- New powers for the province and municipalities to collect costs of responding to spills;
- New "deemed impairment" OWRA provisions that will make it easier for the Crown to get convictions in OWRA water pollution prosecutions.
The controversial Environmental Penalty (EP) provisions are not yet in force. Before bringing these sections into force, MOE needs to draft regulations. Regulations will identify the regulated sectors (starting with MISA). The EPA will provide for EPs of up to $100,000 per day. Regulations will allow for reduction or elimination of the penalty based on factors such as whether the company has an EMS or entered into a compliance agreement.
EPs will be imposed by MOE Directors' orders. They will apply to a wide range of contraventions of the EPA, OWRA, regulations, orders and approvals. EPs are "absolute liability" - due diligence may reduce the penalty, but is not a defence. Grounds for appeal will be severely limited and "reverse onus" will apply to appeals - meaning that the person who is subject to the EP will have to prove that there was no contravention.
Click here for the W+SEL chart Bill 133 - Summary of Amendments to EPA and OWRA and Proclamation Status. This chart lists the provisions came into force on June 13, 2005, followed by the provisions that were not proclaimed. Full text of proclaimed and unproclaimed amendments will be consolidated into the EPA and OWRA on e-laws. For the full text of Bill 133 visithttp://www.ontla.on.ca/documents/Bills/38_Parliament/Session1/b133ra.pdf.
For legal advice on the impact of Bill 133 on your executives, your business or your municipality, please call: