On April 15, 2010, Bill 89, An Act to amend the Environment Quality Act in order to reinforce compliance ("Bill 89"), was tabled in the National Assembly by Quebec's Sustainable Development, Environment and Parks Minister. The bill aims to equip the Government with new ways of ensuring compliance with the Environment Quality Act ("EQA"), in particular by introducing administrative sanctions, by increasing penal sanctions and by making the directors and officers of corporations, partnerships and associations more accountable.
Bill 89 provides for the creation of a system of administrative penalties to be imposed on persons and municipalities that contravene the EQA or its regulations. The amount of the penalties varies between $250 and $2,000 per day for an individual and between $1,000 to $10,000 per day for a corporation, depending on the provisions or obligations involved. Bill 89 provides that an administrative penalty may be imposed by "a person designated by the Minister". The person subject to the penalty may seek a review of the decision prescribing it, and the decision on the review may be contested before the Administrative Tribunal of Québec. Bill 89 also allows for an administrative penalty to be imposed in addition to any penal proceedings instituted for the same offence.
Penal Sanctions to be Increased
Bill 89 raises the penalties that may be imposed on a person or municipality convicted of an offence under the EQA or its regulations. Currently, the fines that may be imposed under the penal provisions range from $400 to $500,000 for a corporation, depending on the category of the offence, whereas in future they would range from $3,000 to $6,000,000.
Bill 89 also contains a provision listing various aggravating factors that a judge is to take into account in determining the penalty. These include the seriousness of the harm or damage to human health or the environment, the foreseeable character of the offence, the cost to society of repairing the harm or damage caused, and the failure of the offender to take reasonable measures to prevent the commission of the offence or limit its effects despite being financially able to do so.
Accountability of Directors
Lastly, Bill 89 would make directors and officers of corporations, partnerships and associations more accountable by creating a presumption, where a corporation or an agent, mandatary or employee of a corporation, partnership or association without legal personality commits an offence under the EQA or its regulations, that its director or officer has committed the offence. In order to reverse the presumption, the director or officer would have to establish that the offence was committed without the director's or officer's knowledge or consent and despite the measures taken to prevent it, which is a very heavy burden.
Coming Into Force
Bill 89 is to come into force 30 days after it is assented to, with the exception of the sections that relate to the establishment of the system of administrative penalties, which will come into force on January 1, 2011 provided Bill 89 is adopted by the end of the year. Given the potential impact of the new provisions, it can be anticipated that Bill 89 will be the subject of public hearings by the Parliamentary Committee on Transportation and the Environment.