Environmental, Health and Safety Update

Canada

New Environmental Assessment Act comes into force

On July 6, 2012, the Canadian Environmental Assessment Act, 2012 (Act) came into force, replacing the former Canadian Environmental Assessment Act. The Act is expected to reduce the number of projects subject to its environmental review process and to establish a more streamlined process for those projects subject to review. Under the Act, the Canadian Environmental Assessment Agency (Agency) will conduct an initial screening of all proposals for designated projects to determine if an assessment is required (except for designated projects regulated by the Canadian Nuclear Safety Commission or the National Energy Board, which will automatically require an assessment by those regulators). Within 45 days of receiving a proponent’s notice of the proposed project, the Agency will be required to complete the screening. If the Agency finds that an assessment is required, the project will be assessed either under the Act’s standard process or, if the Minister of the Environment believes that a project may cause significant adverse environmental effects, by a review panel. Standard assessments by the Agency must be completed within one year; panel reviews must be completed within two years.

For further details, please see Torys’ April 2012 Bulletin on the proposed changes and Environment Canada’s summary of the new Act. For further details about the types of projects that will be designated under the Act, please see Environment Canada’s summary of the supporting regulations.


Environmental Enforcement Act
provisions come into force

On June 22, 2012, the penalty provisions in sections 72-80, 87 and 88 of the Environmental Enforcement Act (EEA) came into force. These amend penalty provisions in the Environmental Protection Act and other federal environmental statutes by, among other things, mandating minimum fines for certain serious offences, increasing certain maximum fines and specifying aggravating factors to be considered in sentencing decisions.

For further information, please see our previous EH&S Bulletin and Environment Canada’s EEA overview.


Federal Court rules that Canada can withdraw from Kyoto Protocol

On July 17, 2012, the Federal Court in Turp v. Canada dismissed an application for judicial review of Canada’s decision to withdraw from the Kyoto Protocol. The Court found, among other things, that the Kyoto Protocol Implementation Act (KPIA), which establishes certain climate-change-related reporting obligations on the federal government, does not limit the prerogative of the federal government to withdraw from the Protocol. In making this finding, the Court relied on a previous Federal Court decision that the KPIA does not impose an enforceable duty upon the government to comply with Canada’s commitments under the Protocol.


Metron Construction fined for criminal negligence causing death

On July 13, 2012, Metron Construction pleaded guilty to one charge of criminal negligence under the Criminal Code and was fined $200,000 for the deaths of four of its workers, who died in December 2009 when the suspended work platform they were using collapsed. Since Metron pleaded guilty, the court’s decision focused on determining the appropriate penalty for Metron. The Crown sought a penalty of $1 million, while Metron’s counsel indicated that $100,000 would be an appropriate fine and that any fine significantly larger than that amount might well drive Metron into insolvency. In considering the appropriate penalty for Metron, the court noted that there were few precedents for criminal negligence causing death in a workplace under the Criminal Code and that Metron’s ability to pay any fine must be taken into account. Ultimately, the court concluded that in all the circumstances (including the fine and surcharge totalling $112,500 imposed upon Metron’s director, which are described below) a fine of $200,000 plus the victim fine surcharge of $30,000 was appropriate. The court noted that the total financial penalty to Metron and its director arising from this incident was more than three times the net earnings of the business in its last profitable year, which ended a few months before this incident. Further, the court indicated this result "should send a clear message to all businesses of the overwhelming importance of ensuring the safety of workers whom they employ."

Metron’s director was fined $90,000 (and thus is subject to a victim fine surcharge of $22,500) after pleading guilty to four violations under Ontario’s Occupational Work and Safety Act. In particular, the director pleaded guilty to failing to take reasonable care to ensure that workers did not use a defective platform, that the platform was not loaded with an excess of weight, that workers were adequately trained and that training materials were provided to each employee.

For further information, please see the Metron decision and the press release related to Metron’s director.


New wastewater regulations enacted

On July 18, 2012, the Wastewater Systems Effluent Regulations (SOR/2012-139) came into force. The regulations apply to all wastewater systems that are designed to collect an average daily influent volume of 100 m3 or more during the year. These regulations set national baseline effluent standards for substances defined as deleterious under section 34(1) of the Fisheries Act. Among other things, these regulations require the owners or operators of wastewater systems to monitor and report the volume and composition of effluents, and to provide monitoring reports to a designated authorization officer. Monitoring and recording provisions come into force on January 1, 2013; however, other parts of the regulations come into force on different dates.

For the full regulation, please see SOR/2012.


Ontario

Ground source heat pumps exempt from environmental compliance approval

On June 2, 2012, O. Reg. 98/12 was enacted. This regulation exempts the use, operation, construction, alteration, extension and replacement of ground source heat pumps from the requirement to obtain environmental compliance approval under section 9 of the Environmental Protection Act. In general, section 9 requires an approval for the construction and operation of all equipment that discharges contaminants into the natural environment other than water.

For further information, please see O. Reg. 98/12.


Ontario amends Renewable Energy Approval regulations

On July 1, 2012, amendments to O. Reg. 359/09 − the Renewable Energy Approval (REA) regulation − came into force. The amendments establish a new process for renewable energy project proponents to make changes to their projects after providing notice of their second public meeting, after submitting their REA application or after obtaining a REA. In considering project change proposals, the Ministry of the Environment (MOE) has been granted the authority to require a proponent to update project documentation, provide additional notifications and conduct additional public meetings regarding the changes. The amendments also remove the requirement to make publicly available final comments from the Ministry of Natural Resources and the Ministry of Tourism, Culture and Sport prior to the second public meeting, requiring instead that those comments be submitted with the REA application. For further information on these and other amendments, please see Environmental Registry #011-5932.

On July 20, 2012, the MOE proposed additional amendments to the REA regulation that would, among other things, limit the ability of the Environmental Review Tribunal to adjourn a REA appeal proceeding and clarify the process by which a project can crystallize the noise receptors that are deemed to be located in the project area. The MOE is accepting comments on these additional amendments until September 3, 2012. To comment on the July 20, 2012, proposed amendments, please see Environmental Registry #011-6509.

 

 

 

 

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This publication is a general discussion of certain legal and related developments and should not be relied upon as legal advice. If you require legal advice, we would be pleased to discuss the issues in this publication with you, in the context of your particular circumstances.

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