Administrative Compliance Mechanisms

• Author: Jamie Benidickson
• Pages: 147-166

147

CHA PTER 7

ADMINISTR ATIVE

COMPLIANCE

MECH ANISMS

A. COMPLIA NCE AND ADMINISTR ATIV E

ENFORCEMENT

Beyond the underlying framework of environmental standards that an

industrial, commerci al, or other applicant may be expected to meet

after the required approvals and authorizations have been obtained lie

questions relating to compliance and eventually to the implications of

non-compliance; that is, what levels of compliance are being ach ieved

and what are the consequences of failing to satisfy (or even disregard-

ing) applic able 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-ba sed or penal

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

evidence of the potential effectivenes s of these general alternatives i n

environmental term s, but also by external developments affecting the

context in which enforcement efforts are underta ken. The introduction

of the Charter of Rights and Freedoms with its evolving implications

for administrative procedures, prosecutorial practices, and penalt y

1 K Hawkins, Env ironment and Enforcement: Regulat ion and the Social Def‌inition of

Pollution (Oxford: Clare ndon Press, 1984) is a classic reference work on t he 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).

ENVIRONMENTAL L AW148

regimes, and an appreciation of administrative enforcement costs in

periods of f‌isca l restraint are notable examples of such in f‌luences.2

The compliance mechanisms considered i n this chapter include

a range of measures to monitor environmental performance, to issue

warnings and administrative orders, and even to impose penalties

through an admini strative process. Other approaches to compliance

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

are discussed in Chapters 8 and 16 respectively.

B. REP ORTI NG OBLIG ATIONS

The terms and conditions applicable to operating licences and per-

mits will frequently impose regular report ing obligations that provide

off‌icials with information on an ongoing basis concerning the normal

operations of approved sites and facilities. Water treatment facil ities

will be exp ected to conduct regular testing and report re sults. The

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

and volume of materials collected by or delivered to them. In addi-

tion, statutory reporting obligations a re now common in connection

with spills and other irregular discharges of contaminant s. The OEPA

requires every per son who discha rges, causes, or per mits the discharge

of a contaminant “out of the normal course of events” that caus es or

is likely to cause an adverse effect to notify the minist ry forthwith.3

Specif‌ic notif‌ication requirements apply in Ont ario when a pollutant is

spilled, that is, di scharged, into the natural env ironment from or out

of a structure, vehicle, or other container in a manner that is abnormal

in quality or quantit y in light of all the circumstances of the di scharge.4

Reporting obligations may be found in other provi ncial legislation,

especially rel ating to gasoline and other fuels, and in such federal stat-

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

statutory requirement to report impose d on some individuals, while

the legislation perm its others to report both releases and likely relea ses

of toxic substances.6

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

Southam Inc, [1984] 2 SCR 145; R v Wholesale Travel Group Inc, [1991] 3 SCR 154.

3 Environmental Protection Act, RSO 1990, c E.19, s 15 [OE PA]; Castonguay Bla sting

Ltd v Ontario (Environme nt), 2013 SCC 52.

4 OEPA , above note 3, s 92.

5 RSC 1985, c F-14, s 38(4).

6 Canadian Environmental Protect ion Act, 1999, SC 1999, c 33, ss 95–96 [CEPA 1999].