Administrative Compliance Mechanisms

• Author: Jamie Benidickson
• Profession: Faculty of Law University of Ottawa
• Pages: 139-157

139

CHA PTER 7

ADMINISTRATIVE

COMPLIANCE

MECHA NISMS

A. COMPLIANCE AND ADMINISTR ATIV E

ENFORCEMENT

Beyond the underlying framework of environmental standards that

a business in a ny given industry may be expected to meet after the

required approvals and authorizations have been obtained, lie 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 s atisfy (or even disregarding)

applicable environmental norms? These considerations arise n aturally

in the environmental context where obser vers of the legal regime are

anxious to ascertain the relationship between formal statutory require-

ments and actual behav iour.

Alternative strategies for encouraging environmental perform ance

have been act ively debated: some commentators advocate a concilia-

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

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

evidence of the potential ef fectiveness of these general alternatives in

1 K. Hawkins, En vironment and Enforcement: Regula tion and the Social Def‌inition of

Pollution (Oxford: Clarendon P ress, 1984) is a classic reference work on the gen -

eral debate. Can adian developments are sur veyed in D. Chappell, From Sawdust

to Toxic Blobs: A Consideration of Sa nctioning Strategies to Combat Pollution in

Canada (Ottawa: Supply & Services, 1989).

ENVIRONMENTA L LAW140

environmental terms, but also by external developments affecting the

context in which enforcement efforts are undertaken. The introduction

of the Char ter of Rights and Fr eedom s wi th it s cont inua lly e volvi ng imp li-

cations for administrative procedures, prosecutorial practice s, and pen-

alty regimes, and an appreciation of administrative enforcement costs in

periods of f‌iscal restraint are notable exa mples of such inf‌luences.2

The compliance mechanisms considered in this chapter include

a ra nge of measures to monitor environmental performance, to issue

warnings and admin istrative orders, and even to impose penalties

through an administrative process. Other approaches to compliance

such as the prosecution of offences or t he use of voluntary ag reements

are discussed in chapters 8 and 16 respectively.

B. REPORTING OBLIGATIONS

The terms and conditions applicable to operating licences and p ermits

will frequently impose regular reporting obligations that provide of-

f‌icials with information on an ongoing basis concerning the normal

operations of approved sites and facilitie s. Water treatment facilities

will be expected to conduct regular testing and report results. The

operators of waste disposal sites may be required to report the nature

and volume of materials collected by or delivered to them. In addition,

statutory reporting obligations are now common in connection w ith

spills and other irregular discharges of contaminant s. The OE PA re-

quires every person who disch arges 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 mini stry forthwith.3

Specif‌ic notif‌ication requirements apply in Ontar io 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.4

Reporting obligations may be found in other provinci al legislation, es-

pecially relating to gasoline and other fuels, and in such federal statutes

as the Fisheries Act5 and CEPA, 1999. Under the latter there is a statutory

requirement to report imposed on some i ndividuals, wh ile the legisla-

2 Canada (Director of Investigatio n & 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.

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

4 Ibid., s. 92.

5 R.S.C. 1985, c. F-14, s. 38(4) [FA].