Dear Sir / Madam,
Ontario's Bill 133 Places Heavy Responsibilities On Top Management
Navigating the challenges implemented by Ontario-Bill 133 should be in the
forefront of the minds of Directors, Officers and their Counsel. The
(Ontario) Environmental Enforcement Statute Law Amendment Bill 133, Act 2005
('Bill 133' the 'Act') received Royal Assent and became law in Ontario .
Bill 133 brings about sweeping changes to the (Ontario) Environmental
Protection Act, R.S.O. 1990, c.E.19 ('EPA') and the Ontario Water Resources
Act, R.S.O. 1990, c.O.40, ('OWRA') 1. Director(s) and Officer(s) of Ontario
Corporations are the 'regulated person' who has to explain a contravention
of the Act to the Crown, face increased fines and longer sentences. The
Crown also has, for the first time, definitions for sentencing.
Most Directors and Officers of small, medium and some large sized companies
do not realize that they are defined as the 'regulated person' in the eyes
of the law. Bill 133 has removed the shackles, weights and frustration that
made enforcement and prosecution time-consuming, cumbersome and expensive.
The changes to the Acts allow the ministry to focus their investigations at
the corporate level of management, to find the answers concerning who was
responsible, who had authority and who is accountable. The officers and
directors of the company are now ultimately accountable for the control of
Ontario Bill 133 has done an extreme makeover to the Ontario, EPA and the
OWRA through adding sections and amendments. Powerful and subtle changes
include: the removal of a 'due diligence defence' for top management of
corporations, word changes to the Acts, new sweeping power and definitions
for the courts as well as the enforcement branch. Commitment to
Environmental Management Systems (EMS) by all levels of corporate personnel,
especially top management, is key.
Duties of Directors and Officers
The law has overhauled the Ontario environmental enforcement regime and
created onerous requirements for persons and companies in control of
Now, the director(s) or officer(s) of a corporation has a duty
to 'take all reasonable care to prevent the corporation from discharging or
causing or permitting' a contaminant in contravention of this Act, or the
regulations or a certificate of approval, provisional certificate of
approval, certificate of property use license or permit under this Act, from
discharging into the natural environment. This is very specific, very broad
based for industry, and can be very far-reaching!
These stringent duties for Directors and Officers could see top management
prosecuted for a failure to report a minor violation, a missed MISA sample,
or a failure to comply with every condition in a certificate of approval (C
of A), etc.1
New Reverse Onus for Directors and Officers
Prior to Bill 133, Directors and Officers had the advantage of a
due-diligence defence and could only be held liable if they 'failed to take
all reasonable care to prevent the corporation from causing or permitting' a
discharge. The Crown had to prove 'beyond a reasonable doubt' that they
failed to take such reasonable care. This no longer applies!
Since Bill 133, the Crown no longer has to bear the burden of proving that
'reasonable care' was not taken. The 'reverse-onus' amendments to the
Ontario EPA section 194 and OWRA section 116 puts the onus on the
Director(s) or Officer(s) of the company to prove that they 'fulfilled their
If the Director or Officer of a corporation is charged with an offence in
connection with a 'specific contravention by the corporation', that
'regulated person' has the onus in the trial to prove that he or she carried
out their duty in connection with that contravention. Bill 133 provided the
Crown with structured definitions to determine the fines and sentences.
Apotex's / WSiB's /Government's of Ontario victim