Administrative Compliance Mechanisms

• Author: Jamie Benidickson
• Profession: Faculty of Law University of Ottawa
• Pages: 122-137

122

CHAPTER 7

ADMINISTRATIVE

COMPLIANCE

MECHANISMS

1 K. Hawkins, Environment and Enforcement: Regulation and the Social Definition of

Pollution (Oxford: Clarendon Press, 1984) is a valuable reference work on the

general debate. Canadian developments are surveyed in D. Chappell, From

Sawdust to Toxic Blobs: A Consideration of Sanctioning Strategies to Combat

Pollution in Canada (Ottawa: Supply & Services, 1989).

A. COMPLIANCE AND ADMINISTRATIVE

ENFORCEMENT

Beyond the underlying framework of environmental standards that a

business in any particular industry may be expected to meet after the

required approvals and authorizations have been obtained are ques-

tions relating to compliance and eventually to the implications of non-

compliance; that is, what levels of compliance are being achieved and

what are the consequences of failing to satisfy (or even disregarding)

applicable environmental norms?

Alternative strategies for encouraging environmental performance

have been actively debated: some commentators advocate a concilia-

tory approach, while others have promoted a sanctions-based or penal

model of enforcement.1The discussion has been influenced not only

by evidence of the potential effectiveness of these general alternatives

in environmental terms, but also by external developments affecting

the context in which enforcement efforts are undertaken. The intro-

duction of the Charter of Rights and Freedoms with its continually

Administrative Compliance Mechanisms 123

2Canada (Director of Investigation & Research, Combines Investigation Branch) v.

Southam Inc., [1984] 2 S.C.R. 145; R. v. Wholesale Travel Group Inc., [1991] 3

S.C.R. 154.

3Environmental Protection Act, R.S.O. 1990, c. E.19, s. 15 [OEPA].

4Ibid., s. 92.

5Waste Management Act, R.S.B.C. 1996, c. 482, s. 12 [WMA] and B.C. Reg.

263/90.

evolving implications for administrative procedures, prosecutorial

practices, and penalty regimes, and an appreciation of administrative

enforcement costs in a period of fiscal restraint are notable examples of

such influences.2

The compliance mechanisms considered in this chapter include a

range of measures to monitor environmental performance, to issue

warnings and administrative orders, and even to impose penalties

through an administrative process. Other approaches to compliance

such as the prosecution of offences or the use of voluntary agreements

are discussed in chapters 8 and 16 respectively.

B. REPORTING OBLIGATIONS

The terms and conditions applicable to licences and permits will fre-

quently impose regular reporting obligations that provide officials with

information on an ongoing basis concerning the normal operations of

regulated sites and facilities. In addition, statutory reporting obliga-

tions are now common in connection with spills and other irregular

discharges of contaminants. The OEPA requires every person who dis-

charges or causes or permits the discharge of a contaminant “out of the

normal course of events” that causes or is likely to cause an adverse

effect to notify the ministry forthwith.3Specific notification require-

ments apply in Ontario when a pollutant is spilled, that is, discharged,

into the natural environment from or out of a structure, vehicle, or

other container in a manner that is abnormal in quality or quantity in

light of all the circumstances of the discharge.4British Columbia’s

Waste Management Act and the province’s Spill Reporting Regulation

similarly require a report setting out the time and location of the spill,

the nature and quantity of the contaminant that has been spilled, and

information on measures taken or required in response.5Reporting

obligations may be found in other provincial legislation, especially

relating to gasoline and other fuels, and in such federal statutes as the