CHAPTER 12 Environmental Law and Indigenous Rights
Although Canadian municipalities have traditionally regulated noise and discharges to municipal sewers, municipalities have become more active in regulating toxics at the local level. For example, many Canadian municipalities have banned the cosmetic use of pesticides and have required public disclosure of certain toxics. CIVIL LIABILITY In addition to regulatory enforcement measures, operations that cause environmental damage to adjoining properties or permit the escape of harmful substances may lead to civil liability to injured parties under general legal principles such as (in common law provinces like Ontario) negligence, nuisance or strict liability for the escape of potentially dangerous substances. In Québec, civil liability can notably be triggered if it is proven that a person failed to abide by the applicable rules of conduct, such as environmental laws, and that this failure has caused damages to a third party. In addition, the Civil Code of Québec prohibits companies from causing abnormal inconvenience, with the result that, in some cases, liability can be triggered for impacts to neighbours even when a facility complies with all applicable environmental legislation and permits. Directors’ and Officers’ Statutory Liability Directors and officers of a corporation have statutory obligations under federal and certain provincial environmental laws to take reasonable care to ensure that the corporation complies with such laws. Under the federal Canadian Environmental Protection Act , 1999 , directors and officers have a statutory duty to
take reasonable care to ensure that the corporation complies with all requirements under that Act. In Ontario, there is a more limited statutory duty requiring directors and officers to take all reasonable care to prevent the corporation from (i) causing an unlawful discharge, (ii) contravening administrative orders and (iii) contravening obligations with respect to approvals, notification of unlawful discharges and hazardous waste management. There is no express statutory obligation to take reasonable care to ensure that the corporation complies with Québec’s environmental laws. However, if an entity or its employee or agent commits an offence under such laws, its directors and officers are presumed to have committed the offence unless they can establish that they exercised due diligence and took all necessary precautions to prevent the offence. In addition, the directors and officers of a corporation that has defaulted on a payment owing under Québec’s environmental laws share liability with the corporation unless they can establish that they exercised care and diligence to prevent the failure that led to the claim. Directors and officers may also incur operational liability if they are found to have personally permitted a discharge or deposit (as noted above). In general, officers are more likely than directors to be subject to such liability because their management responsibilities may result in more control over the discharge or deposit (as distinct from the general supervisory role of directors). Recent trends suggest greater enforcement risk to directors and officers, and liability of directors and officers may arise even where the corporation has not been sued or charged.
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