An overview of environmental law and nuisance for the construction industry

1. Environmental Law Overview for
Road Builders
ORBA
February 25, 2008
Dianne Saxe, Ph.D.

2. First - Some Cases
Dust

Silt

Salt

Liquids

Waste asphalt

First Nations

2
February 25, 2008 Dianne Saxe

3. Dust
R. v. Warren Bitulithic (2001)

Dust from portable gravel crusher

Covered vehicles nearby

Paid cleanup

Fine: $15,000 plus VFS

3
February 25, 2008 Dianne Saxe

4. Dust, #2
R. v. Hard Rock Paving (2007)

Reconstruction of raised track

Strong winds, history of dust complaints

Angry neighbours

Owner authorized watering after MOE call

Prosecution 2 years later

Fine: $5700

4
February 25, 2008 Dianne Saxe

5. Silt
R. v. Spruce Falls Inc. (2003)
 Faulty road-building: silt into creek
 Impact severe: altered course, changed habitat
 Fines (+VFS):
$25,000 (discharge that may impair)

$5000 (failure to report to MOE; had reported to

MNR)
$10,000 (failure to follow work plan)

PLUS spent > $100,000 to remediate and upgrade

erosion-prevention measures
5
February 25, 2008 Dianne Saxe

6. Silt, #2
R. v. Barrie

Fisheries Act

CA fill permit

Is municipality liable for developers’s

erosion?
City accepting dedication of roads, EPZ

6
February 25, 2008 Dianne Saxe

7. Salt
R. v. Les Termineaux Rideau Bulk

Terminals (2001)
Windblow

Impact on neighbouring businesses:

Vehicles - cleaning

People - material discomfort

Fine: $12,000

7
February 25, 2008 Dianne Saxe

8. Liquids
Diamond Stonebridge & Gazzola Paving (1993)

Latex concrete for bridge

Wash water discharged through sand

Discoloured creek

Full cleanup once asked

DS: $6000 of stream bank stabilisation work

GP: fined $6000 (subcontractor experts - high

standard of care)
8
February 25, 2008 Dianne Saxe

9. Liquids, #2
Twnshp of McGillivray Bruce Kerr and

supervisor (2000)
Dombind for dust suppression

Burst hose, 1000 gal into drain, not noticed

$7000 discharge, and fail to report, plus $8000

donation
Supervisor: suspended sentence

9
February 25, 2008 Dianne Saxe

10. Waste asphalt
Berendsen v. Ontario (2008)

Groundwater on dairy farm contaminated by

waste MTO asphalt (buried in the ‘60s)
Cows refused to drink, became ill

MOE investigated, “no contamination”

Court disagreed:

Continued presence of waste is a continuing breach

of MOE’s duty to farmer
MOE failure to investigate/remedy is a breach of the

OWRA and EPA
10
February 25, 2008 Dianne Saxe

11. Asphalt, cont’d
MOE failed to consider “cumulative,

additive, or long-term effects of toxic
chemicals…at trace levels”
Court awarded $1.73 million in damages

Bottom line: What does it mean to meet

MOE standards?
…No longer clear!
The case may be appealed

11
February 25, 2008 Dianne Saxe

12. First Nations
R. v. City of Vaughan

Proposed road through Pine Valley

Alleged breach of EAA

Lack of consultation

Unsatisfied land claims

12
February 25, 2008 Dianne Saxe

13. Overview
Who Does What?

Key Statutes

Enforcement

Due Diligence

What to Do when the Inspector Comes

13
February 25, 2008 Dianne Saxe

14. Who does what?
Federal

Provincial

Municipal

14
February 25, 2008 Dianne Saxe

15. Federal Role
Issues of national/international concern

Crossing borders (e.g., climate change)

Toxic substances

Science/standard setting

Key federal statutes

Canadian Environmental Protection Act

Fisheries Act

15
February 25, 2008 Dianne Saxe

16. Provincial Role
Most environmental issues

Property and civil rights

Natural resources

Key provincial statutes

Environmental Protection Act

Ontario Water Resources Act

Clean Water Act

16
February 25, 2008 Dianne Saxe

17. Municipal Role
Steadily growing

Off-loading by provinces

More responsibilities than money

Key statutes

Municipal Act, 2001

 Planning Act
17
February 25, 2008 Dianne Saxe

18. Environmental Protection Act
Don’t Pollute

Air

Land (not water)

Discharges - s. 14

 Spills - Part X
Spills and Reporting

Permitted Pollution

18
February 25, 2008 Dianne Saxe

19. Discharge
S. 14: No person shall

discharge … or cause or permit the discharge

of
a contaminant

into the natural environment, that

causes or is likely to cause

an adverse effect.

19
February 25, 2008 Dianne Saxe

20. Who is the polluter?
Who “causes or permits”?

“Influence or control”

“Charge, management and control”

R. v Sault St. Marie

20
February 25, 2008 Dianne Saxe

21. Who has “control”?
Corporation

Senior management

Staff?

21
February 25, 2008 Dianne Saxe

22. What is Pollution?
“Contaminant”, s.1

Anything with potential for adverse effect

Solid (e.g., dust, smoke)

Liquid (e.g., wash water)

Gas (e.g., vehicle emissions)

Vibration

Noise

22
February 25, 2008 Dianne Saxe

23. Adverse Effect
Impairment, injury, damage, harm

Impair quality of environment for any use

Interference with normal use of property

Material discomfort

23
February 25, 2008 Dianne Saxe

24. How much is too much?
Objective benchmarks

Regulations

Guidelines

Permits

Subjective

Adverse effect

Trivial impacts

24
February 25, 2008 Dianne Saxe

25. Spills
What is a spill?
 Abnormal discharge out of a structure,
vehicle or other container
of a pollutant

into the natural environment

that causes or is likely to cause an adverse

effect
25
February 25, 2008 Dianne Saxe

26. Is that a spill?
No minimum quantity

Need not leave property

Odours or gas (not noise) can = spill

26
February 25, 2008 Dianne Saxe

27. Obligations
Stop spill

Report

To MOE, Municipality, owner of pollutant, person in

control of pollutant, ALL of the above
Plus OHSA if impact on a worker

Contain and clean up

Restore natural environment

Civil liability

27
February 25, 2008 Dianne Saxe

28. Permitted Pollution
Pollution may be authorized by

Certificates of approval (permits)

Regulations

Orders

28
February 25, 2008 Dianne Saxe

29. Overview
Who Does What?

Key Statutes

Enforcement

Due Diligence

What to Do when the Inspector Comes

29
February 25, 2008 Dianne Saxe

30. Compliance and Enforcement
The Players

Orders

Prosecutions

30
February 25, 2008 Dianne Saxe

31. The Players
MOE / EC
 Minister
 Director
 Provincial Officer
Inspectors / abatement

Investigators

Technical support

31
February 25, 2008 Dianne Saxe

32. Provincial Officers
May make inspections at any reasonable time and

with any reasonable assistance
Does not need warrant or court order

What is inspection?

May not enter dwelling without consent

Unless has Order

32
February 25, 2008 Dianne Saxe

33. PO Powers: Part XV
Excavate, require that any thing be operated or

set in motion, take samples, conduct tests
Require production of any document/data

required to be kept under Act; examine, record or
copy these
Remove documents/data to make copies

Take photo, video or other visual recording

Seal site

33
February 25, 2008 Dianne Saxe

34. Interviews
PO may

Make reasonable inquiries of any person - verbally

or in writing
Exclude from questioning any person except counsel

for the individual being questioned
Does the individual have to answer? s. 163.1

Before/ after has “reasonable grounds”?

34
February 25, 2008 Dianne Saxe

35. Compliance and Enforcement
The Players

Orders

Prosecutions

35
February 25, 2008 Dianne Saxe

36. Orders
Minister’s Orders

Director’s Orders

PO Orders (POO)

Court / ERT orders

36
February 25, 2008 Dianne Saxe

37. Offences:
Breach Act or regulations

Fail to comply with Order

Fail to comply with CofA, certificate of

property use, licence or permit
37
February 25, 2008 Dianne Saxe

38. Offences:
Less serious

More serious

Breach numerical limit in order, CofA

Discharge adverse effect (actual or likely)

Fail to report

Obstruct PO, false info

38
February 25, 2008 Dianne Saxe

39. Penalties less serious offences
Individuals:

First conviction: < $50,000 per day (first offence)

Subsequent convictions: < $100,000 per day and/or

imprisonment for < 1 year
Corporations:

First conviction: < $250,000 per day

Subsequent convictions: < $500,000 per day

39
February 25, 2008 Dianne Saxe

40. Penalties - more serious offences
Individuals:

First conviction: $5,000 to $4 million per day

 Second conviction: $10,000 to $6 million per day
 Subsequent convictions: $20,000 to $6 million per
day
and/or
 imprisonment for < 5 years
s. 187(3)

40
February 25, 2008 Dianne Saxe

41. Penalties - more serious offences
Corporations:

First conviction: $25,000 to $6 million per day

Second conviction: $50,000 to $10 million per day

Subsequent convictions: $100,000 to $10 million per

day, per offence!
Plus:

s. 189

s. 190.1, other orders

41
February 25, 2008 Dianne Saxe

42. Prior “convictions” count!
The EPA (other than Part IX offence)

The Nutrient Management Act, 2002

The Ontario Water Resources Act

The Pesticides Act

42
February 25, 2008 Dianne Saxe

43. Sentencing considerations
Aggravating factors (adverse effect,

intentional/reckless, motivated by profit, prior
convictions)
Mitigating factors (act done in good faith, quick

response…)
Limitation period

Two years after the later of the day the offence was

committed and the day on which evidence re the
offence first came to the attention of a Director
43
February 25, 2008 Dianne Saxe

44. Duties of officers/directors- s.194
Duty to take all reasonable care to prevent corporation

from contravening Act by
Discharging or causing/permitting discharge

Failing to notify MOE of discharge

Contravening an Order under the EPA

Failure to discharge that duty - person is guilty of an

offence
A director or officer of a corporation may be convicted

regardless of whether the corporation is prosecuted or
convicted
44
February 25, 2008 Dianne Saxe

45. Overview
Who Does What?

Key Statutes

Enforcement

Due Diligence

What to Do when the Inspector Comes

45
February 25, 2008 Dianne Saxe

46. Due diligence
 What is it?
 Reduces Risks
 The opposite of negligence
 Defence to prosecution:
 Proof on a balance of probabilities that you did
everything reasonable to prevent the offence from
occurring.
OSHA s.66(3) “every precaution reasonable in

the circumstances”
46
February 25, 2008 Dianne Saxe

47. Prevent what offences?
 Any regulatory offence, e.g. environmental,
health and safety, income tax
 Committed by anyone under your influence
and control:
 Employees
 Contractors
 Others (?)
47
February 25, 2008 Dianne Saxe

48. Who must use due diligence?
Anyone who can be prosecuted:
 Company
 Officers/ directors
 Managers / supervisors
 Employees
48
February 25, 2008 Dianne Saxe

49. How much is enough?
 The standard of care: high and rising
 Depends upon the circumstances:
 gravity of potential harm,
 available alternatives,
 likelihood of harm,
 foreseeability
 control available
49
February 25, 2008 Dianne Saxe

50. Need more care if:
Knowledge and Expertise

Notice

Past problems

Unusual Hazard

The activity

The location

50
February 25, 2008 Dianne Saxe

51. Benchmarks:
 Laws, regulations and guidelines
 Government and industry reports
 Custom of the trade (the better competitors)
 Voluntary standards, e.g. ISO 14000,
Responsible Care
51
February 25, 2008 Dianne Saxe

52. Due diligence - Key Elements
Identify impacts and risks

Know applicable laws and benchmarks

Audit current practices

Establish good operating procedures, assign

responsibilities
Improve equipment, training, documentation

Monitor results, detect and correct, continuous

improvement
52
February 25, 2008 Dianne Saxe

53. Overview
Who Does What?

Key Statutes

Enforcement

Due Diligence

What to Do when the Inspector Comes

53
February 25, 2008 Dianne Saxe

54. What to do when the Inspector
comes
Inspection versus Investigation

Always know who and why

Reasonable grounds to believe that an

offence has been committed?
54
February 25, 2008 Dianne Saxe

55. Inspection
Scope

During the inspection

Removal of documents

Solicitor/client privilege

55
February 25, 2008 Dianne Saxe

56. Investigation
Consent

Plain View

Search Warrant

Search orders

56
February 25, 2008 Dianne Saxe

57. When an investigator asks
Ask them why they want it – there may be

no legitimate reason
Investigators can demand information for

abatement purposes
Record the reason (or the investigator’s

refusal to provide)
57
February 25, 2008 Dianne Saxe

58. The Charter
Reasonable expectation of privacy

Self incrimination

Exclusion of evidence

58
February 25, 2008 Dianne Saxe

59. Questions? Comments?
Saxe Law Office
355 St. Clair Avenue West, Suite 1506
Toronto, Ontario M5P 1N5
Tel: 416-962-5882
Fax: 416-962-8817
Email: admin@envirolaw.com
envirolaw.ca
59
February 25, 2008 Dianne Saxe