Administrative Compliance Mechanisms

AuthorJamie Benidickson
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).
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.
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].

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