In 2010, the federal government introduced The Environmental Violations Administrative Monetary Penalties Act (EVAMPA), which provided Environment Canada with the authority to issue Administrative Monetary Penalties (AMPs) for certain offences. The government has now introduced proposed regulations, the Environmental Violations Administrative Monetary Penalties Regulations (the “Regulations”), which set-out the details of the AMPs regime under the EVAMPA. In particular, the Regulations:
- Designate the offences that would be subject to AMPs under six federal acts and their regulations: the Antarctic Environmental Protection Act; the Canada Wildlife Act; the Canadian Environmental Protection Act, 1999 (Parts 7 and 9); the International River Improvements Act; the Migratory Birds Convention Act, 1994; and the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act.
- Set out the method that would be used to calculate an AMP. The proposed method would be based on a classification of an AMP by Type (A, B or C, with C being the most serious contravention), a baseline amount, and set increases to the baseline amount based on aggravating factors of a history of non-compliance, harm to the environment, and economic gain. The maximum penalty for individuals would be $5,000 and for corporations $25,000. However, each day on which a violation is committed is a separate violation.
The use of administrative penalty regimes is rapidly growing across Canada, for virtually all regulated activities. The stated justification for such regimes is that they are designed to ensure regulatory compliance in a quick and inexpensive manner, and without the stigma of a criminal prosecution.
The administrative penalty regime in EVAMPA, to which Regulations apply, include the following components that may be of interest to effected parties:
- Persons named in a violation notice do not have a due diligence defence.
- Directors and officers that permitted, authorized, acquiesced in, or participated in, the violation are parties to the violation and liable for and administrative penalty, whether or not the corporation is proceeded against.
- There is no opportunity to be heard before a notice of violation is issued. Rather, a party is provided a right to seek a review before a review officer. On such a review, the Minister has the burden of establishing the violation on a balance of probabilities.
- Proceeding with a notice of violation precludes charges being laid in respect of the violation and vice versa.
- The deadline for delivering a notice of violation is two years from the date the violation arose.
The notice regarding the proposed regulations was published on April 9, 2016 and interested persons have 60 days to provide comments. Please see http://www.gazette.gc.ca/rp-pr/p1/2016/2016-04-09/html/reg3-eng.php