Administrative Penalties Regulation made under the Resource Recovery and Circular Economy Act, 2016

As part of our ongoing commitment to protecting the environment, we are strengthening our enforcement tools to hold regulated parties who contravene the legislation and/or regulations accountable for non-compliance.

This includes proposing a new administrative penalties regulation to help ensure that producers, manufacturers and importers of tires, batteries, electrical and electronic equipment, blue box materials and hazardous and special products comply with requirements for the collection and end-of-life management of the materials they supply in Ontario.

The proposed administrative penalties regulation

The proposed administrative penalties regulation establishes:

• a procedure for the Resource Productivity and Recovery Authority to issue an order to pay an administrative penalty for non-compliance with specified provisions of the:
  • Resource Recovery and Circular Economy Act, 2016 (RRCEA)
  • Tires Regulation (O. Reg. 225/18)
  • Batteries Regulation (O. Reg. 30/20)
  • Electrical and Electronic Equipment (EEE) Regulation (O. Reg. 522/20)
  • Blue Box Regulation (O. Reg. 391/21)
  • Hazardous and Special Products (HSP) Regulation (O. Reg. 449/21)
• a method for determining the amount of the administrative penalty

Note: all five regulations listed above are made under the RRCEA.

To ensure transparency and accountability, all administrative penalties will be posted on the Authority’s public website. In addition, the Authority is required to report annually to the Minister and the public on the use of revenue from administrative penalties.

The Resource Recovery and Circular Economy Act, 2016

The Resource Recovery and Circular Economy Act, 2016 (RRCEA) governs the collection and diversion of waste from products under a producer responsibility framework. Under the RRCEA, the Resource Productivity and Recovery Authority (the Authority) is responsible for compliance and enforcement of the RRCEA, including oversight of the producer responsibility framework.

To achieve effective compliance and enforcement, the Authority already has the power to:

• undertake inspections
• require regulated persons to respond to inquiries
• issue an order to pay an administrative penalty (once the regulation is finalized)
• prosecute offences

As part of this proposal, we are extending the ability to use of administrative monetary penalties to the Authority so they can issue penalties to entities that don’t comply with the law. This will ensure producers meet collection and management requirements.

An administrative penalty is a monetary penalty that can be imposed by the Registrar or Deputy Registrar of the Authority. It is a key compliance and enforcement tool that can be used to:

1. ensure compliance with the RRCEA and its regulations
2. prevent a person from economically benefiting from non-compliance with regulatory requirements

Components of the proposed administrative penalties regulation

The proposed administrative penalties regulation consists of the following components:

1. A schedule of contraventions - establishes the provisions of the RRCEA and the regulations made under the RRCEA for which an administrative penalty may be issued. This includes the:

• Tires Regulation
• Batteries Regulation
• EEE Regulation
• Blue Box Regulation
• HSP Regulation

2. To whom an order may be issued - identifies the persons who may be required to pay an administrative penalty

3. Administrative penalty amounts - consists of a base penalty amount and an economic benefit amount

4. Maximum penalty amounts - establishes the maximum base penalty amounts which may be attached to contraventions

• $1 million maximum total penalty amount per contravention (which is the maximum sum of the base penalty and economic benefit)

5. Factors for determining the base penalty amount - for each contravention the Registrar/Deputy Registrar must consider:

• the regulated person’s compliance history
• impact of the contravention
• whether actions have been implemented to remedy the contravention

6. Factors for determining the economic benefit amount - for each contravention the Registrar/Deputy Registrar must consider:

• costs that the person avoided incurring by failing to comply with the provision
• costs that the person delayed incurring by delaying compliance with the provision
• gains that the person has accrued by failing to comply with the provision

7. Notice of Intent - issued by the Registrar/Deputy Registrar when it intends to issue an administrative penalty order. The notice of intent will outline:

• the contravention and the provision contravened
• a description of the day, days or parts of days on which the contravention occurred
• the proposed penalty amount
• a description of the day(s) on which the contravention occurred
• information about the person’s right to make submissions to the Registrar/Deputy Registrar

8. Submissions - allows the person who receives a notice of intent to make a request, in writing, within 15 days of the notice being served, that the Registrar/Deputy Registrar consider:

• any additional information related to the contravention
• any information that is relevant in determining the proposed base penalty amount or the proposed amount for economic benefit
• information about any actions the person has taken to remedy the contravention since it occurred

9. Requirement to consider submissions - requires that any submissions (provided by the person who was given the notice of intent) be considered by the Registrar/Deputy Registrar when determining the final penalty amount.

10. Reconsideration of the penalty amount - provides that the Registrar/Deputy Registrar will re-determine the penalty amount based on additional information, including information provided in submissions received

The RRCEA also provides for the right to appeal an administrative penalty order to the Ontario Land Tribunal.

The draft regulation is attached to this posting.