So in some jurisdictions, the government can go outside the court system and follow a faster process that allows it to impose an “administrative penalty” on a company, i.e., fine the company without actually having to prove its guilt. Administrative penalties enable the government to respond quickly to a violation before it results in too much damage to the environment.
Of course, although administrative penalties might be necessary to protect the public, they’re problematic for the companies on the receiving end. What rights do such companies have? This article will tell you everything you need to know about administrative penalties to protect your company. There’s also a chart at the end of the article that summarizes whether companies in each part of Canada can be subject to both an administrative penalty and a prosecution for an environmental offence based on the same action or omission.
Defining Our Terms
Some jurisdictions let government officials issue tickets for minor environmental offences, such as littering. Technically, such tickets are a form of administrative penalty. However, this article doesn’t address tickets but focuses on administrative penalties issued for more serious offences.
WHAT THE LAW SAYS
Compliance 101: Companies can be prosecuted and fined for environmental violations. But some Canadian environmental laws also give government officials the power to impose administrative penalties. Here’s the breakdown.
7 Administrative Penalty Jurisdictions
In seven jurisdictions—Fed, AB, BC, NB, NL, ON and SK—the primary environmental law (usually called the “Environmental Protection Act” or something similar) authorizes the Minister of Environment or the equivalent title or someone designated by the Minister (often a Director) to impose administrative penalties for certain environmental violations. In Ontario, administrative penalties (called “environmental penalties”) are authorized under both the EPA and the Ontario Water Resources Act. In New Brunswick, the Clean Environment Act doesn’t authorize administrative penalties but the Clean Air Act does. The federal jurisdiction was the latest to join this group. On June 18, 2009, Parliament adopted a new law called the Environmental Violations Administrative Monetary Penalties Act that grants the government the authority to impose administrative penalties for designated violations of 10 environmental laws, including the CEPA. As the Insider went to press, however, the government hadn’t announced the effective date of the law or issued any regulations under it.
7 No Administrative Penalty Jurisdictions
The primary environmental laws in the remaining seven jurisdictions—MB, NS, NT, NU, PEI, QC and YT—don’t authorize administrative penalties. Note that Nova Scotia’s Environment Act does authorize the Governor in Council to make regulations necessary for a system of administrative penalties. However, no such regulations have been made to date.
ADMINISTRATIVE PENALTY FAQs You probably have many questions about administrative penalties and how they work. Here are answers to some of the most frequently asked questions in this area:
Q: For Which Violations Can Administrative Penalties Be Imposed?
A: Administrative penalties can be imposed only for certain environmental violations specifically designated in the environmental laws. This list is often fairly long and covers a wide range of environmental violations. But in Saskatchewan, administrative penalties may be imposed only on the holders of certain water-related permits who commit designated violations. And in New Brunswick, administrative penalties can be imposed only for certain violations of the Clean Air Act.
Q: When Can Administrative Penalties Be Imposed?
A: In general, the Minister, Director or other designated official may impose an administrative penalty when it believes that a company or individual has committed an environmental violation for which an administrative penalty is authorized. The required standard of belief the government official must have to issue a penalty varies:
The environmental laws in Ontario and Saskatchewan simply say that a designated official may impose an administrative penalty if a designated person commits certain environmental violations.
Q: How Are Administrative Penalties Imposed?
A: If the designated government official believes that a person or company has committed an environmental violation for which an administrative penalty may be imposed, the official must give that person or company notice of the penalty. That notice must be in writing and generally must contain:
Q: Who’s Liable for Administrative Penalties?
A: Naturally, the person, company, ship or vessel that commits the violation is liable for the administrative penalty. But under Fed and BC law, the officers and directors of the company or the corporate owner of a ship or vessel may also be liable for an administrative penalty—even if the company or corporate owner hasn’t been issued or paid an administrative penalty. Liability for an administrative penalty in these jurisdictions may be imposed on officers or directors if they directed, authorized, assented to, acquiesced in or participated in the commission of the environmental violation.
Q: Are There Any Limits on Administrative Penalties?
A: In addition to limits on the kinds of environmental violations for which administrative penalties may be imposed, there are two other kinds of limits on such penalties:
Amount of penalty. There are often limits on the amount of the penalty:
Q: Can You Also Be Prosecuted for Same Violation?
A: It would only seem fair that if your company pays an administrative penalty for an environmental violation, it shouldn’t also be subjected to a standard prosecution for an offence based on the same violation. In fact, six of the seven jurisdictions that allow for administrative penalties bar prosecution for the same offence if:
The reverse is also true. That is, if the government has prosecuted your company for an environmental offence, it can’t also impose an administrative penalty for the same underlying violation. Ontario is the exception. Under Sec. 182.1(11) of the EPA, a person may be charged, prosecuted and convicted of an offence under this law for a violation even if an environmental penalty has been imposed on or paid by that person or another person for that violation. (Saskatchewan’s environmental law is silent on this issue.)
Q: Can You Challenge Administrative Penalties?
A: Most jurisdictions provide some mechanism for individuals or companies issued administrative penalty notices to challenge either the violation or the amount of the penalty imposed. In general, you can appeal the administrative penalty to either an individual (Fed, ON, SK) or an appeals board (AB, BC). For example, under the CEPA, you have 30 days from the service of a federal administrative penalty notice to request a review of the penalty, the facts of the alleged violation or both by the Chief Review Officer. And in Alberta, you can appeal an administrative penalty to the Environmental Appeals Board. Exception: New Brunswick specifically bars a person from appealing the amount of an administrative penalty or any other matter related to it. (NL’s environmental law is silent on the issue of appeals.)
Q: Is Due Diligence a Defence?
A: Of course, due diligence is a defence in a standard environmental prosecution. But only the federal and Ontario environmental laws address whether due diligence is also a defence to administrative penalties. Both jurisdictions treat administrative penalties as “absolute liability” offences. That is, it’s no defence to an administrative penalty that the individual or company exercised due diligence or made a reasonable mistake of fact.
Q: What Happens if You Don’t Pay the Penalty?
A: If an administrative penalty is imposed on your company and it fails to pay, it’s still liable for the penalty. The government can sue to recover the amount of the penalty in an appropriate court.
Conclusion Administrative penalties benefit the government by giving officials the means of swiftly addressing environmental offences without the time and cost of pursuing a full-blown prosecution. They also allow officials to address less serious environmental offences that may not otherwise be prosecuted because of the complexity and high costs of prosecution. In addition, administrative penalties benefit the environment by encouraging violators to remedy offences before they can cause serious or further damage. And it may not seem like it, but administrative penalties also benefit companies. Prosecutions for environmental offences aren’t just costly for government; they also cost a lot for companies to defend. And the fines imposed in an administrative penalty are typically much lighter than the fines that would be imposed in a prosecution.
Here’s what the primary environmental laws in your province or territory say about whether a company can be subjected to both an administrative penalty and a prosecution for an environmental violation based on the same action or omission:
FEDERAL: Proceeding with any act or omission as a violation subject to an administrative penalty precludes proceeding with a prosecution for an offence for the same act or omission and vice versa [Environmental Violations Administrative Monetary Penalties Act, Sec. 13(1)].
ALBERTA: A person who pays an administrative penalty for a contravention may not be charged under this Act with an offence with respect to that contravention [Environmental Protection and Enhancement Act, Sec. 237(3)].
BRITISH COLUMBIA: a) If a director issues an administrative penalty notice to a person for a contravention or failure, a prosecution for an offence under this Act for the same contravention or failure may not be brought against that person; and b) a person who has been charged with an offence under this Act may not be subject to an administrative penalty for the events that gave rise to that charge [Environmental Management Act, Secs. 115(8) and 116].
MANITOBA: The Environment Act doesn’t authorize administrative penalties.
NEW BRUNSWICK: The Clean Environment Act doesn’t authorize administrative penalties. But under the Clean Air Act, a) the Director may not deliver an administrative penalty notice to a person regarding an alleged offence if that person has been charged under this Act or the regulations with the same offence [Sec. 31(6)]; and b) if a person pays an administrative penalty for an alleged offence before the deadline set out in the notice, the person shall not be charged under this Act or the regulations with the same offence [Sec. 31(8)(a)].
NEWFOUNDLAND/LABRADOR: A person who pays an administrative penalty with respect to a contravention may not be charged with an offence under this Act with respect to that contravention [Environmental Protection Act, Sec. 106(2)].
NORTHWEST TERRITORIES/NUNAVUT: Environmental Protection Act doesn’t authorize administrative penalties.
NOVA SCOTIA: The Environment Act authorizes the Governor in Council to make regulations for a system of administrative penalties but no such regulations have been enacted.
ONTARIO: A person may be charged, prosecuted and convicted of an offence under this Act for a contravention even if an environmental penalty has been imposed on or paid by that person or another person for that contravention [Environmental Protection Act, Sec. 182.1(11)].
PRINCE EDWARD ISLAND: The Environmental Protection Act doesn’t authorize administrative penalties.
QUÉBEC: The Environment Quality Act doesn’t authorize administrative penalties.
SASKATCHEWAN: The Environmental Management and Protection Act authorizes administrative penalties for certain violations by the holders of water-related permits but doesn’t address whether an administrative penalty precludes a prosecution for an offence for the same violation.
YUKON: The Environment Act doesn’t authorize administrative penalties.
Loading ...
