Holding polluters accountable by expanding the use of administrative monetary penalties for environmental contraventions

We received a total of 65 comments from a wide range of stakeholders including:

• members of the public (44 submissions)
• industry associations (5 submissions)
• agricultural sector (6 submissions)
• environmental non-governmental organizations (3 submissions)
• first Nations (1 submission)
• municipal sector (4 submissions)
• conservation authorities (2 submissions)

Below is a summary of the comments received and how we considered them in our decision.

• Stakeholders and the public generally support the concept of administrative monetary penalties, but had concerns with regards to its implementation. There was also support using the funds collected from the penalties to support environmental improvement activities.

Stakeholders raised the following six concerns, to which responses are provided below:

1. There was insufficient consultation before the release of the proposal
2. Maximum penalty amounts should be per day, not per contravention
3. Government should retain and expand the “reverse onus” provisions
4. Concerns with the ability of Provincial Officers to issue penalties without Director sign-off
5. Does not support the use of administrative monetary penalties for lower risk contraventions
6. Government should retain and expand the five-year review of

administrative monetary penalties

1. Insufficient consultation before the release of the proposal

Stakeholders were critical of the lack of consultations before the proposal was released.

Response

We initially consulted with Ontarians on strengthening the ministry’s compliance and enforcement toolkit via the Made-in-Ontario Environment Plan. We heard that Ontarians supported stronger measures to protect our communities and our environment. There was also stakeholder support for broadening the enabling authority for administrative monetary penalties under the Environmental Protection Act, as recently amended by Bill 108 (More Homes, More Choices Act, 2019).

We will engage with stakeholders in 2020 on the development and implementation of these administrative monetary penalties, before releasing draft regulations.

2. Maximum penalty amounts should be per day, not per contravention

Some stakeholders and members of the public were concerned that the legislative amendments that were proposed will lower the maximum penalty amounts by using maximum amounts that are per contravention instead of a per day maximum.

Response

We are not lowering any penalties. Currently, the ministry is not permitted to issue existing administrative monetary penalties (i.e. environmental penalties) for many contraventions and can only issue them to 140 facilities in certain industrial sectors. This was a gap in the ministry’s compliance and enforcement toolkit, which is why we are making changes to expand the suite of contraventions these penalties could be applied to and who they could be issued to, via regulation.

Unlike the current administrative monetary penalties, if the economic benefit associated with the contravention exceeds the statutory maximum penalty amount – the penalty can exceed this maximum in order to recover the full economic benefit the violator incurred.

However, if the ministry determines the contravention warrants prosecution, the ministry reserves the right to take offenders to court, even if a penalty has been issued. If a contravention warrants a prosecution and an entity is convicted, it can face a fine and other consequences, e.g. court order, in addition to any penalty that is issued.

The new administrative monetary penalty regime would be an added tool in our compliance and enforcement toolkit to be used alongside orders and prosecution. We are increasing the options for the ministry’s compliance officers to get violators into compliance.

3. Government should retain and expand the “reverse onus” provisions

Some stakeholders were concerned that the administrative monetary penalties framework that was proposed did not include “reverse onus” provisions, where the onus is on the violator to prove the contravention did not occur.

Response

When a regulatory agency or body acts to seek compliance from a violator, under general legal principles, the onus falls on the regulator to prove the elements of the contravention. It generally is seen as unfair for a law to reverse the onus and require violators to show the contravention did not occur in order to escape the consequence for a contravention.

In the existing administrative monetary penalties regime (i.e. environmental penalty) under the Environmental Protection Act, the onus was on the violator to demonstrate that the contravention did not occur, e.g. did not cause adverse effect. This is not consistent with general legal principles.

Because existing regulations and approvals require the regulated community to report certain contraventions to the ministry, such as spills and discharges in excess of standards set out in a regulation, approval or order, reverse onus was often irrelevant under the environmental penalties regime because the violator already had to report the contravention. As such, the new administrative monetary penalties framework uses general legal principles while at the same time providing a fast and efficient tool to seek compliance from violators.

4. Concerns with the ability of Provincial Officers to issue penalties without Director sign off.

Some stakeholders were concerned that the legislation that was proposed will allow Provincial Officers to issue administrative monetary penalties, in addition to Directors.

Response

The legislation provides the enabling authority for Provincial Officers to issue administrative monetary penalties in circumstances to be prescribed in regulation. Implementation of this aspect of the administrative monetary penalties framework would be laid out in regulations and in supporting documents (e.g. the ministry’s Compliance Policy, guidance on the use of administrative monetary penalties) which will identify if, where and how Provincial Officers may issue a penalty.

The ministry plans to update its Compliance Policy according to best practices and to reflect the expansion of administrative monetary penalties. The Compliance Policy provides guidance to front-line provincial officers on how to respond to incidents of varying degrees of risk. The Compliance Policy helps the officer select a compliance tool (education, ticket, administrative monetary penalty, etc.) based on their assessment of the incident, the violator’s compliance history, and the potential for, or real harm caused to the environment.

Training for compliance staff will also be implemented on the updated administrative monetary penalty tool, including how and when to use it. Monitoring of how the tool is being used will also be conducted to promote consistent application across the province.

5. Does not support the use of administrative monetary penalties for lower risk contraventions.

Some stakeholders indicated that they do not support the use of administrative monetary penalties for lower risk contraventions (e.g. administrative).

Response

We will engage with stakeholders in 2020 on the development of administrative monetary penalties for environmental contraventions, before releasing draft regulations.

6. Government should retain and expand the five-year review of administrative monetary penalties

Some stakeholders were concerned that the administrative monetary penalties framework that was proposed did not include a five-year review, which is included in the existing administrative monetary penalties regime (i.e. environmental penalties).

Response

We will publish an annual report detailing administrative monetary penalties issued in the previous calendar year. These reports provide information about the penalties issued to violators, including the corporation or individual’s name, where the contravention occurred, the amount of the penalty, and a description of the contravention.

This annual report will be posted on the province’s open data website to ensure the transparency and integrity of the new regime. This approach puts the people first by adopting a digital first approach to deliver simpler, faster and better services to Ontarians. The five-year review was deemed not essential in light of the annual report.