Law Times

PAGE 4 NEWS Environmental law update Fine increase hints at aggressive enforcement, report suggests BY KENDYL SEBESTA Law Times A increase signifi cant increase in environmental fi nes last year is a hint that On- tario is getting more ag- gressive with enforcement, says a leading environmental lawyer. Donna Shier of Willms & Shier Environmental Lawyers LLP be- lieves that's the case, and a new report from her fi rm suggests the trend will likely continue in 2012. Th e report noted a signifi cant in fi nes levied under Ontario's environmental protec- tion regulations during the last year. Th e largest, a $345,000 fi ne this year against Van Boekel Hog Farms Inc. for pig manure spills, surpassed the highest levy of $154,000 in 2011. In fact, while the number of successful prosecutions and con- victions by the ministry has held steady during the past two years, the report suggests the amount of the fi nes levied has more than doubled between 2010 and 2011 to nearly $3.3 million from $1.5 mil- lion. A big factor in the increase in fi nes levied between 2010 and 2011 arose from violations of the Ontario Water Resources Act. On that score, the ministry prosecuted 32 cases in 2011, up from 12 in 2010. During the same time, fi nes under that act quadrupled to more than $1.2 mil- lion from almost $300,000. But ministry spokeswoman Kate Jordan says that while charges and fi nes serve as a way to encour- age companies to be environmen- tally responsible, a spike in the dollar amounts for the infractions doesn't necessarily mean there are more violators in Ontario. "Ultimately, fi nes are decided by the courts," says Jordan. "Th e fi nes depend on the case and the type of charges that are brought. If the conviction is more severe or the vi- olation causes a signifi cant adverse eff ect on the environment or if the case involves a repeat off ender, the fi nes will be signifi cantly higher." Donna Shier, who authored the report and is an environmental lawyer at Willms & Shier, says the increase in fi nes could also be due to other factors. "What the ministry says could account for some of it," says Shier. "But it also may be due to On- tario being in a time where there is more aggressive environmental enforcement. Th ese things tend to ebb and fl ow. In the long term, our environmental management practices are better than ever, and we see from our industries, small companies, and large companies more knowledge about environ- mental practices than ever before. We're in the best position we've been in in a long time." According to the report, pro- vincial prosecutors pursued a wider variety of off ences in 2011 than in 2010. Th ey fell under fi ve pieces of legislation and resulted in a full range of penalities, including By comparison, federal pros- ecutors have levied $2.4 million in fi nes for various off ences under the Canadian Environmental Pro- tection Act over the last decade. According to an Ecojustice report, that fi gure was less than Toronto's public libraries collected in fi nes for overdue books in 2009 alone. But Ramani Nadarajah, coun- sel at the Canadian Environmental Law Association, says those results aren't surprising. "Th at's historically been the 'It was very unusual to see an increase in jail terms,' says Donna Shier. matters under the waste reduction plan requirements outlined in On- tario's 3Rs regulations. Th e report suggests fi nes were also particularly high among re- peat off enders and in cases where there were serious environmental impacts. case," says Nadarajah. "Th ere's al- ways been a very marked diff er- ence and Ontario has always been the provincial leader in environ- mental regulation." Still, Nadarajah notes the exact reason for the increase in fi nes in Ontario may be diffi cult to pin down without a more conclusive study. "If you get a few very serious off ences in a short amount of time or all within a single year, it may skew the results. It may just be the result of increased enforce- ment activity or it may simply re- sult from a select number of cases with relatively large fi nes. It would be interesting to see more long- term data to really understand the source of the increase." In the meantime, the increase will likely be good news for en- vironmental lawyers, she adds. "One would expect environmen- tal lawyers would benefi t from in- creased prosecution or fi nes," says Nadarajah. But Shier says that doesn't mean environmental lawyers would nec- essarily hope for that scenario. "I much prefer it when our cli- ents are proactive and avoid regu- latory enforcement action," says Shier. "Th ere's a high level of attention paid to protecting the environment now, and I'm not saying there aren't bad apples, but from the perspec- tive of our clients at least, they don't want to be in trouble and they want to be able to say they are doing the right things to their customers." Still, the report did show some unusual trends, she notes. "It was very unusual to see an ACCELERATE YOUR SUCCESS GET THE FULL PICTURE OF THE LAW WITH WESTLAW® CANADA EFFECTIVE RESEARCH PATHWAYS Experience seamlessly integrated research that's illuminating and efficient, not confusing and frustrating. All Westlaw Canada content is seamlessly linked so you never have to back track to find related information. You'll find everything you need in one place. We'll point out and provide links to relevant related material along the way. This logical linking ensures that your research is always moving forward, giving you the fastest route to better results. Get Better Results Faster with Westlaw Canada Call 1-866-609-5811 or visit www.westlawcanada.com increase in jail terms. Th at cer- tainly isn't common. I was also surprised there was such a jump in the quantum. But it does look like we are seeing more aggressive enforcement, although consistent enforcement is oſt en preferred be- cause it shows you what you can expect and it helps clients under- stand the law." LT March 19, 2012 • Law TiMes www.lawtimesnews.com

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