In a very important enforcement-related decision, on January 7, 2009, the Ontario Superior Court ruled that Ontario’s Environmental Protection Act (EPA) does not authorize a justice of the peace to order a witness to submit to interrogation or to produce documents, which is contrary to the position that Ontario’s Ministry of the Environment (MOE) has been advancing for several years. At issue in the Branch v. Ontario (Minister of the Environment) case was the EPA’s subsection 163.1(2), which provides, essentially, that justices may issue an order authorizing a provincial officer of the MOE to use any device, investigative technique or procedure to do anything described in the order. In Branch, a justice had issued an order allowing a MOE investigator to compel the manager of a hazardous waste warehouse, where a fire had occurred, to submit to an interview and to produce documents. The Court held that subsection 163.1(2), although designed to enhance the authority of MOE investigators, is meant only to authorize the MOE itself to carry out certain investigative activities (such as using electronic devices to track vehicles suspected of illegally dumping waste), not to compel action by a third party (such as their submitting to an interview or producing documents).
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