Warrantless Powers of Inspection under the Environmental Protection Act

AS PREVIOUSLY PUBLISHED IN
THE RURAL VOICE:  

Section 156(1) of Ontario’s Environmental Protection Act (“EPA”) authorizes a provincial officer, without a warrant or court order, to inspect any location in which or from which a contaminant “is being, has been or may be discharged in to the natural environment.”  In order to exercise this power of entry and inspection, however, the provincial officer must first have a “reasonable belief” about the discharge or risk of discharge.  The Court of Appeal for Ontario recently interpreted this reasonable belief standard in deciding an appeal related to a charge of hindering or obstructing a provincial officer in the performance of his duties.

On November 22, 2013, a municipal by-law officer was advised by a resident about construction debris being hauled onto a neighbouring property and burned.  The by-law officer attended at the resident’s property, and from there observed a large fire on the neighbouring property.  Although the officer was not able to identify with certainty what material was being burned, he observed that the material included wood.  He did not detect any unusual colour or smell.

The by-law officer informed the Ministry of the Environment (“MOE”) of his observations.  About four hours later, two MOE inspection officers attended at the neighbouring property, together with the municipal by-law officer and two Regional Police officers.  At the trial of the hindering and obstructing charge in the Provincial Offences Court, one of the MOE officers testified that, based on information provided to him by the by-law officer, he had three concerns: 1) waste was being transported to and disposed of on the neighbouring property (which is an activity regulated under the EPA); 2) waste was being burned; and, 3) compounds generated by the burning of the waste would be emitted as smoke into the environment.

Importantly, the MOE officer did not personally see smoke or fire until after he had entered the neighbouring property.  Once on the property, the MOE officer observed smoke from a “fairly substantial fire” of broken wood.  The owner of the property was present, and the MOE officer advised the owner that he wanted to inspect the fire to determine whether or not waste was being burned, and whether the burning constituted a contravention of the EPA.  The property owner told the MOE officer that open burning was occurring on his property.  In response to a question from the by-law officer, the owner said that he was burning debris from a demolished barn on the property.  But the owner denied the officers access to inspect the fire, and asked the officers to leave.  The officers left.

The property owner was charged under the EPA with hindering or obstructing the MOE officer in the performance of his duties for having denied access to inspect the fire.  The essential facts of the case were uncontested at trial; the property owner admitted that there had been an open fire burning on his property and that he had prevented a provincial officer from entering the property to inspect the fire.  A Justice of the Peace convicted the property owner, but the conviction was overturned on an initial appeal to a Judge of the Ontario Court of Justice.   The Crown appealed the acquittal to the Court of Appeal, which allowed the Crown’s appeal and restored the conviction.  The issue on the Crown’s appeal was whether the MOE officer had the pre-existing reasonable belief necessary to permit him to enter and inspect the property without a warrant or court order.

What does “reasonable belief” mean in the context of the warrantless power of entry and inspection in the EPA?  Chief Justice Strathy observed that, “a belief is a state of mind.  It is an acceptance of the truth of something, without necessarily having personal knowledge of its truth.”  A “reasonable belief” is “one that a reasonable person would hold, based on the existence of some objective evidence to support the belief.” 

In the EPA-context, the provincial officer must have a subjective belief in the discharge or potential discharge of a contaminant, and that subjective belief must have an objective basis at the time it is formed: “While the provincial officer may be required to explain his or her belief after the fact, as is the situation in this case, the reasonableness of the belief is based on the provincial officer’s assessment of the information available at the time the power of inspection is invoked.”  In the case under appeal, Chief Justice Strathy found that, on the day in question and at the moment the MOE officer had requested access to the owner’s property to inspect the fire, the MOE officer had the reasonable belief to authorize a warrantless entry and inspection.  The information received by the MOE officer prior to his attempt to enter the property – reports that waste was being brought onto the property and smoke was being generated from an open fire – was sufficient to support a reasonable belief.

Property owners faced with a request by a provincial officer for access to permit an inspection under the EPA should consider seeking legal advice where possible.  Permitting access may ultimately lead to regulatory liability, but denying access may give rise to additional liability.

Read the decision at: Ontario (Environment and Climate Change) v. G.

Claim for contamination damages against MOECC allowed to proceed

In September, 1990, an oil spill occurred on a property owned by Shell.  The spill released approximately 9,000 litres of oil, and clean-up measures were undertaken.  Nearly 23 years later, in the spring of 2013, a neighbouring landowner whose property was 100 feet away from Shell's property became aware of the spill.  The landowner had the soil and groundwater on his  own property tested for contamination;  testing confirmed that his property was contaminated with petroleum and that the source of the contamination was the Shell property.

The landowner has since sued the Ontario Ministry of the Environment (now the "MOECC") for negligence on its part in the clean-up of the original Shell spill.  The landowner alleges that the MOECC is liable for damages because it "decided to get involved in the oil spill on the Shell property, made the decision as to where the excavation of contaminated should stop, erred in failing to ensure that the contaminants were contained; as a result the plaintiff’s property became contaminated; and the plaintiff sustained damages."

In response to the lawsuit, the MOECC brought a motion to strike the claim against it on the basis that it is "plain and obvious" that there is no reasonable cause of action that can be sustained against the MOECC.  The argument by the Ministry was that it owed no duty of care to the neighbouring landowner.  The Ministry argued that it was under no duty to perform any of the tasks described in the Environmental Protection Act, as they were discretionary only.  Therefore, any failure to perform those tasks could not form the basis of a negligence claim.

In deciding the motion, Justice Ray of the Superior Court of Justice accepted that the powers of the MOECC under the Act are discretionary, but ruled that the fact that the powers were discretionary did not preclude a finding that the MOECC owed the neighbouring landowner a duty of care.  As noted by Justice Ray:

Once the [MOECC] embarks on a course of action (whether obliged to do so under a legislative scheme, or has chosen to do so under discretionary powers) the [MOECC] is obliged to carry out that course of conduct without negligence.  There is then a sufficient proximity for the basis of a private law duty of care.

The MOECC's motion to strike was dismissed and the negligence claim against the MOECC is allowed to proceed.

Read the decision at: Swaita v Her Majesty the Queen in Right of Ontario (Environment).

Timelines to appeal Ontario environmental orders are strict - miss the deadlines at your peril

Another decision of the Environmental Review Tribunal ("ERT") has confirmed that the process and deadlines for appealing orders made by Provincial Officers are strict; failure to comply with the process and deadlines means that the ERT has no jurisdiction to hear an appeal.

In a July, 2015 decision, the ERT dismissed a proposed appeal on the basis that the proceeding related to matters outside the jurisdiction of the ERT (Rule 119).  A Provincial Officer with the Minister of the Environment and Climate Change ("MOECC") had issued an Environmental Protection Act ("EPA") order on May 13, 2015 against the appellant.  On June 3, 2015, the appellant wrote to the ERT to appeal the order.

Under the EPA, a person may seek the review of a Provincial Officer's order to be conducted by the MOECC Director (one step above the Provincial Officer); the request must be made within seven days of the order.  It is only the decision of the Director on the review that can then be appealed if necessary to the ERT.  In the case commenced before the ERT in June, no written request directly to the Director for a Director's review had been made.  There was evidence that the appellant had made an oral request for the review to the Provincial Officer and that the appellant's lawyer had then written to the Provincial Officer to request an "indulgence with respect to the timelines in the Provincial Officer's Order."

Before the ERT, the appellant argued that it had effectively requested a Director's review of the Provincial Officer's Order (through the oral request followed by the written request for an indulgence, although both requests were made to the Provincial Officer).  Alternatively, the appellant argued that the information sheet on the review process provided by the Provincial Officer was vague and misleading and led to an assumption that, if a review was not requested within seven days, the Provincial Officer's Order would be deemed to be confirmed by the Director.  Under the EPA, if a request for a review is made and no decision is issued by the Director within seven days, the Director is deemed to have confirmed the Provincial Officer's Order (and that deemed decision can be appealed to the ERT). 

An appeal to the ERT from the Director's order or decision (deemed or otherwise) must be commenced within 15 days of the date on which the appellant was served with the Director's Order (or the date on which it was deemed to have been made).  There is provision for the ERT to extend the time for appealing, but only where, "in the Tribunal's opinion, it is just to do so because service of the order or decision on the person did not give the person notice of the order or decision."  

Where there was no Director's decision at all, there is no jurisdiction for the ERT to hear an appeal whether it was filed on time or not.  In the recent case, the ERT ruled that the written request for an indulgence cannot be considered a written confirmation of the oral request for a review that was made by the appellant to the Provincial Officer.  The EPA allows for an oral request followed-up by a written confirmation, but the written confirmation must be sent to the Director.  Further, the written follow-up in this case did not include other information required by the EPA (e.g. details of the order to be reviewed).  The ERT concluded that there was no deemed confirmation of the Provincial Officer's Order by the Director and, therefore, there was no Director's order or decision that could be appealed to the ERT.

This decision, like many before it, confirms that the environmental legislation in Ontario (the EPA and the Ontario Water Resources Act) provides very narrow windows of opportunity to appeal orders made by Provincial Officers.  If an order is issued to you and you wish to dispute it, do not delay in seeking legal advice and requesting a review in the manner required by the legislation.  Miss the deadlines and you lose your right to appeal.

Read the decision at: COX FARMS LTD. V. ONTARIO (MOECC).