Environmental Protection

Protection of the environment is the shared responsibility of the federal and provincial/territorial governments. Although municipal governments also play a significant role in environmental protection by passing by-laws related to zoning, garbage disposal, and water use, these notes focus on federal and provincial statutes.

Historically, environmental concerns were dealt with under tort law. Canada now takes a stakeholder approach, which considers the broadest community of interested persons rather than the narrow rights of people harmed by a specific action.

Federal Legislation

The Canadian Environmental Protection Act (CEPA) is the most important federal environmental protection statute. It has four guiding principles. The focus is on prevention of harm rather than remediation. Under the precaution principle, “where serious damage may occur, lack of full scientific certainty shall not be used to postpone cost-effective measures to prevent environmental degradation.” The goal is sustainable development, which means “outcomes should meet the needs of the present generation without compromising the ability of future generations to meet their own needs.” Finally, the principle of polluter pays places the obligation on a polluter to pay for environmental damage resulting from a violation of environmental legislation.”

CEPA applies to all elements of the environment, including air, land, water, atmospheric layers, organic and inorganic matter, and living organisms. Separate sections of the Act deal with toxic substances, hazardous wastes, nutrients, international air pollution, and ocean dumping. The Courts have the authority to require a polluter to stop polluting, clean up a polluted site, or pay for the cost of an environmental cleanup by the government. A fine of up to $1 million per day may be assessed while the offence continues, and prison terms of up to three years may be given. Corporate directors and officers can be held personally liable.

Other federal statutes dealing with environmental protection are shown in Figure.

Figure : Federal Environmental Legislation

Provincial Legislation

All provinces have a general environmental protection law. Under Ontario’s Environmental Protection Act, which is overseen by the Ministry of the Environment, liability for environmental offences generally arises from one of four categories of activity, as shown in Figure. 

Figure : Environmental Protection Act

Each of the provinces also has an assortment of other laws covering more specific environmental matters. For instance, in Ontario, other provincial environmental laws include those related to air pollution, water conservation and pollution, pesticides, and environmental assessments.

Corporate Liability

Ontario’s Environmental Protection Act expands the basis for corporate liability to anything that is done by someone who is an officer, official, employee, or agent of a corporation so long as the person is acting within the course of his or her employment.

Most environmental offences are based on strict liability. This means that while responsibility is triggered by a prohibited act, the offender can avoid liability by proving that it acted carefully and with due diligence. Whether a corporation has exercised due diligence depends on whether a person who is the directing mind of the corporation acted reasonably under the circumstances.

Furthermore, Ontario’s Environmental Protection Act imposes a duty of due diligence on every director or officer of a corporation “to take all reasonable care to prevent a corporation from…discharging or causing or permitting the discharge of a contaminant,…failing to notify the Minister of [such an event]…[or] failing to install, maintain, operate, replace or alter any equipment or other thing [required by law].