The Environmental Registry,
the Right to Request an Investigation
and Environment Protection Actions
under CEPA:

Implementation Issues and Lessons
From Experience with Ontario’s Environmental Bill of Rights (EBR)


David McRobert, In-House Counsel
Robert Cooper, Articling Student

 Environmental Commissioner of Ontario
1075 Bay St., Suite 605
Toronto, Ontario M5S 2B1

Paper for presentation to “Working with Bill C-32: the New CEPA”
Insight Conference, Holiday Inn on King, Toronto, November 22 & 23, 1999

Revised June 2000




Table of Contents



2.1    CEPA History

2.2    EBR History


3.1    The Registry Concept

3.2    The CEPA Registry

3.3.    The EBR Registry

3.4    Documents and Information Available on the CEPA Registry

3.5    The Role of Environment Canada

3.6   The CEPA Registry as a Tool for Public Consultation

3.7    Other Issues Related to the CEPA Registry

3.8   Summary and Conclusions


4.1   The Right to an Investigation under CEPA, 1999

4.2   The Right to an Investigation under CEPA, 1998

4.3   The Right to an Investigation under the EBR

4.4   Issues Related to the Right to an Investigation

4.5   Summary and Conclusions


5.1    Background

5.2   EPA Requirements under CEPA, 1999

5.3   Remedies

5.4   Other Civil Matters

5.5    Summary & Conclusions


APPENDIX A: EBR Implementation Schedule

APPENDIX B: CEPA Registry Homepage

APPENDIX C: Description of Information Available on the CEPA Registry

APPENDIX D: Types of Information Available under Notices

APPENDIX E: Summaries of Selected Investigation Applications

APPENDIX F: Summaries of Public Resource Lawsuits under the EBR



Public participation in government decision-making is a common operating principle in democracies such as Canada. Over time, and as a result of an increasing public awareness and interest in important societal decisions, the nature of that participation has evolved. As we enter the 21st century, the notion of a government making a decision without consulting the public and affected stakeholders has become the exception rather than the rule.

The Canadian public has, over the years, expressed an increasing interest in environmental issues and the desire to be involved in making decisions related to the environment. Public participation rights conferred under legislation and the public's understanding of those rights will enable more effective and active participation by members of the public.

Enhancing public participation allows all societal groups, Aboriginal Peoples and their communities, non‑governmental organizations, local authorities, workers and trade unions, business and industry, the scientific and technological community and farmers, better opportunities to participate more fully in decision‑making on environmental matters.

The expansion of public participation rights is not a new phenomenon and in fact, was catalysed in the 1960s and 1970s. This is true in all areas of public policy and most importantly, in environmental policy. Some key principles of public rights in this area include:

·             the right to a healthy environment;

·             improved access to the courts to prosecute and to sue where one's right to a healthy environment has been infringed;

·             increased public participation in government decision‑making;

·             improved monitoring and reporting to the public on the state of the environment;

·             increased government responsibility and accountability for the environment; and

·             greater protection for those who "blow the whistle" on polluting employers.

The Michigan Environmental Protection Act is often cited as the single most important law that opened the door to increasing public rights to protect the environment by embodying them in legislation.

In Canada, the federal government and many of the provinces and territories have embraced the expansion of public rights in their environmental laws.

In 1988, Parliament included public participation rights in the Canadian Environmental Protection Act (“CEPA, 1988”). These rights were further enhanced in 1999 when CEPA, 1988 was replaced with a new Canadian Environmental Protection Act (“CEPA, 1999”).

In 1994, the province of Ontario which has arguably gone the furthest in legislating public participation rights, enacted the Ontario Environmental Bill of Rights (“EBR”).

At the international level, Canada has signed several international agreements which contain provisions that require signatories to support public participation.  Most important among these agreements are those that were signed at the United Nations Conference on Environment and Development, which took place in Rio de Janeiro in 1992.[1]

This paper discusses three examples of the public participation tools contained in CEPA, 1999: the Environmental Registry; the Right to an Investigation; and the Environmental Protection Action. These topics represent evolving concepts in the field of environmental law and public policy that were developed to enhance the public’s role in environmental decision-making. [could give example of each tool and how it accomplishes the goal of public participation - mention availability to all Canadians] Throughout the paper, comparisons are made between CEPA, 1999 and the EBR where relevant. First however, the legislative history of CEPA, 1999 and the EBR are discussed.


This chapter provides a brief description of the legislative histories which preceded the enactment of the EBR in 1994 and CEPA, 1999 in 1999.

2.1 CEPA History

The New CEPA

The Canadian Environmental Protection Act, 1999 ( “CEPA 1999” ), was introduced in the House of Commons as Bill C-32 on March 12, 1998. It received second reading on April 28, 1998 and was studied for approximately one year by the House of Commons Standing Committee on Environment and Sustainable Development (“Standing Committee”). After 250 amendments were made to Bill C-32 in committee and at the report stage, it received third reading in the House of Commons on June 1, 1999. 

After receiving third reading in the House of Commons the bill was referred to the Senate, which gave it second reading on June 8, 1999. It was then referred for study to the Standing Senate Committee on Energy, the Environment and Natural Resources.  Bill C-32 was passed by the Senate in September 1999 and received Royal Assent on September 14, 1999.  Although all of the provisions contained in CEPA, 1999 are not yet in force, the majority of Bill C-32, including the provisions related to the CEPA Registry, were brought into force by the federal government on March 31, 2000.       

CEPA, 1999 is a complex piece of legislation. It provides a framework for the management and control of toxic substances at each stage of their life cycle, from development and manufacturer/importation through to transportation, distribution, use, storage and ultimate disposal as waste. CEPA also provides the federal government with authority to enter into intergovernmental environmental agreements; establish environmental quality objectives, guidelines and codes of practice; regulate the content of fuels; regulate the nutrient concentration in cleaning agents and water conditioners; control ocean dumping through a permit system; regulate waste handling and disposal practices; improve, by means of guidelines and regulations, its own environmental performance and standards in relation to its operations and lands, including Indian reserves; and take action in cases of international air pollution.

CEPA, 1999 is administered by Environment Canada ( “EC” ). However, both EC and Health Canada are involved in the assessment of substances to determine whether they are toxic, and in the development of regulations, objectives, guidelines and codes of practice.

The Original CEPA

Bill C‑32 replaces the former Canadian Environmental Protection Act ( “CEPA, 1988" ). CEPA, 1988 was, and in its newly amended form remains, Canada’s principal piece of federal environmental protection legislation. It was developed in the mid‑1980s in response to growing public concern about the presence of toxic substances in the environment. Incidents during this time such as the chemical contamination surrounding the Love Canal disposal site near Niagara Falls, New York and the "toxic blob" found in the St. Clair River near Windsor, Ontario raised public awareness and concern to new levels.

When CEPA, 1988 was enacted it consolidated selected provisions and laws administered by EC. It replaced the Environmental Contaminants Act, and subsumed the Clean Air Act, the Ocean Dumping Act, the nutrient provisions of the Canada Water Act and certain provisions of the Department of the Environment Act.

The process to enact CEPA, 1988 began in 1985 with the establishment of two task forces to review the Environmental Contaminants Act, and to develop a better approach for dealing with toxic substances. Acting on the task forces’ recommendations, the federal government issued preliminary draft environmental legislation in 1986. Following a round of public consultation, the government tabled Bill C‑74, the Canadian Environmental Protection Act, in June 1987. After extensive amendments were made to Bill C-74 in committee, it was passed the following year, and proclaimed in force on June 30, 1988.

CEPA, 1988  5-Year Review

When CEPA, 1988 came into force in 1988, the then-Minister of the Environment, Tom McMillan, stated that CEPA, 1988 contained extensive environmental rights.  He suggested that CEPA, 1988 should be considered at the fore of environmental legislation in Canada because of enhanced environmental rights included in it, such as:

·             requirements that lists of toxic substances, drafts of regulations and other types of              documents be published so that the public may comment on them;

·             opportunities for individuals to file objections to regulations, guidelines, ocean disposal permits, lists of toxic substances, failure to assess substances on the Priority Substances    List within the required five‑year period, and so forth;

·             opportunities to request that a board of review be established, and in certain cases, to     compel that one be created;

·             public access to information through published notices and documents;

·             the right for a member of the public to obtain an injunction to prevent or stop a violation of CEPA, 1988;

·             the right to sue another person, who commits a CEPA, 1988 offence, for compensation;

·             the right of two individuals resident in Canada and over the age of 18 to request an     investigation of a suspected violation of CEPA, 1988;

·             protection of the identity of "whistle-blowers" who report the unauthorized releases of     substances regulated by CEPA, 1988; and

·             the right to initiate a private prosecution of a suspected CEPA, 1988 violator, as a common law  right, available under CEPA, 1988 and any other federal regulatory statute.

Six years later in 1994, the Standing Committee was given the task of conducting the five‑year review of CEPA, 1988 as required under section 139 of CEPA, 1988. After extensive hearings, the Standing Committee released its report entitled, It’s About Our Health! Towards Pollution Prevention in June 1995.

In its report, the Standing Committee recognized the following limitations of CEPA, 1988:

·             vagueness regarding the type of information that can be released publicly and procedures and access points for acquiring information;

·             limited opportunities for effectively participating in decision‑making on proposed initiatives undertaken pursuant to CEPA, 1988;

·             the limited nature of information that is made available to the public through the recently‑established inventory on sources of pollutants, the National Pollutant Release     Inventory;

·             the limited instances in which decisions can be reviewed;

·             the narrow terms under which "whistle-blower" protection is provided;

·             the limited public awareness about the right that citizens have under CEPA, 1988 to request an   investigation of an alleged offence;

·             restrictions governing the rights of citizens to sue for loss or damage suffered in relation to CEPA, 1988;

·             the lack of a specific provisions allowing citizens to prosecute offenders of CEPA, 1988 although this is already a common law right under CEPA and any other federal act;

·             no mention of how funds that are collected from such things as penalties, fines, fees and levies imposed under CEPA, 1988 are to be used;

·             the lack of a requirement, enshrined in CEPA, 1988 to provide funds to the public for the  purpose of participating in decision‑making; and

·             the fact that Canada does not have comprehensive federal legislation regarding environmental rights of Canadians and Canadian workers.

The Standing Committee also recommended a new approach for CEPA, 1988 which would have sustainable development as its overarching policy goal and which would be supported by the following key principles:

1. pollution prevention,

2. the ecosystem approach,

3. biodiversity,

4. the precautionary principle, and

5. user / producer responsibility.

Stressing that the emphasis in CEPA, 1988 had to shift from managing pollution after it has been created to preventing its creation in the first place, the Standing Committee made 141 recommendations for change, including introduction of a ban on all new substances that are persistent, bioaccumulative and inherently toxic, unless the proponent can demonstrate extraordinary reasons to authorize its use for specified purposes. The Standing Committee also recommended the adoption of a three‑track approach for assessing and managing toxic substances(2) and proposed new authority for CEPA in areas such as vehicle emissions and international water pollution. It recommended the creation in CEPA of a federal safety net for environmental emergencies, and the development of a national coastal management zone policy.

The Standing Committee also advocated a more active role for Aboriginal peoples in environmental management and protection, notably under self‑government and land claim settlement agreements. The Standing Committee further recommended increased authority under CEPA, 1988  in order to make the federal government a model environmental citizen, and adoption of a number of new enforcement tools and measures to enhance public participation.

The federal government responded to the Standing Committee’s report on December 14, 1995 in a document entitled Environmental Protection Legislation Designed for the Future ‑ A Renewed CEPA. Although it indicated support for a number of the Standing Committee’s recommendations, the government did not endorse some of its key proposals regarding the assessment and management of toxic substances. Instead, the federal government stated that it would implement a different three‑track system that would categorize and screen existing substances to identify priorities for assessment or for preventive or control action.

The proposed new CEPA, 1999 set out in Bill C‑32, was developed from the federal government’s response to the Standing Committee’s report. Bill C‑32 was the second bill introduced to modify CEPA, 1988. The first bill, Bill C‑74, was tabled in Parliament on December 10, 1996, but died on the order paper when the general federal election was called in October 1997.

In a news release issued on the day that Bill C‑32 was tabled, the Minister of the Environment indicated that CEPA, 1999 would:

make pollution prevention the cornerstone of national efforts to reduce toxic substances in the environment;

implement a fast track approach to evaluating and controlling toxic substances;

ensure the most harmful substances are phased out, or not released into the environment in any measurable quantity;

improve enforcement of regulations;

encourage greater citizen participation;

improve "whistle-blower" protection to encourage more Canadians to report CEPA violations; and

allow for more effective cooperation and partnership with other governments and Aboriginal peoples.

The Minister of the Environment noted that CEPA, 1999 would be consistent with the Canada‑Wide Accord on Environmental Harmonization signed by the federal, provincial (except Quebec) and territorial governments on January 29, 1998 and that it would be an important legislative tool for the federal government in implementing the harmonization framework in cooperation with the provinces and territories. As well, she stated that CEPA, 1999 would be a key tool in delivering the highest level of environmental quality for all Canadians.

The major differences between Bill C‑74 and Bill C‑32, the Minister indicated, were increased

recognition of voluntary efforts by industry, the need for co‑operative action, and the importance of improved consultation with the provinces and territories, as well as strengthened provisions on

information gathering and publication.

2.2   EBR History

In February 1994, the Ontario government proclaimed into law the Environmental Bill of Rights, 1993 ( “EBR” ).  The proclamation of the EBR was intended to indicate a new era in environmental decision making, with better public participation and greater accountability of government decision-makers.  The purpose of the EBR is to make government law-, instrument- and policy-making more transparent and accessible to the public.  It does this through a number of means, including:

·             establishing an Environmental Registry, and allowing members of the public to comment on environmentally significant new laws, regulations, instruments and policies;

·             allowing third party appeals of decisions about prescribed instruments (instruments include things such as permits, approvals, licences, authorizations, directions or orders, that are prescribed by regulations made under the EBR);

·             allowing the public to make Applications for Review of environmentally significant laws, policies and instruments;

·             allowing the public to make Applications for Investigation of contraventions of prescribed Acts, regulations and instruments;

·             establishing a new right to sue if someone is breaking a prescribed law, or is not following the terms of a prescribed instrument and is thus causing significant harm to a public resource; and

·             creating whistle blowing protection for employees who use the processes of the EBR

Thirteen Ontario government ministries are currently subject to the provisions of the EBR. In addition, the Ministry of Tourism is in the process of becoming prescribed for the purposes of the EBR. The EBR was phased into effect over five years between 1994 and 1999, such that each ministry became subject to the EBR at different times and in different respects. A flowchart outlining the EBR Implementation Schedule is provided in Appendix A.

Ontario’s EBR was a long time in the making.  The need for an environmental bill of rights was first expressed in Ontario in the 1970s when environmental issues became a greater part of the public consciousness.[2] Between 1979 and the late 1980s, nine private members’ bills were introduced in the Ontario Legislature based on the Michigan Environmental Protection Act,[3] enacted in 1970. 

The prospects of seeing such a bill become law increased when Ruth Grier was appointed Minister of the Environment after the election of the New Democratic Party in 1990.  Rather than proceed with tabling a new law in the Legislature based on the Michigan model, Ms. Grier announced the establishment of an Advisory Committee on an Environmental Bill of Rights which was multi-sectoral, and included representation from business interests, environmental groups, labour and other stakeholders.[4]  Because the advisory committee was unable to achieve any degree of agreement, Grier appointed an EBR Task Force to develop an innovative statute on a consensus basis.

The Task Force had representatives from the Ontario Chamber of Commerce, the Business Council on National Issues and the Canadian Manufacturers’ Association, two environmental groups and the Ontario government.  The Task Force worked for more than one year and released a report in July 1992 which contained a draft EBR.[5]

After public consultation on the Task Force Report and draft bill, the EBR was introduced for first reading May 31, 1993, and was proclaimed as a law on February 15, 1994. The main difference between the Ontario law and the environmental rights laws in US juridictions is that it is more difficult to go to court in Ontario.  However, the Ontario law has increased rights to participate in government decisions as a quid pro quo.           

As a result, Ontario’s environmental regulation system now has some features characteristic of US federal laws and participation processes which allow for public notice and comment and increased access to courts and tribunals.[6]  Although Ontario is not the only Canadian jurisdiction to enact environmental rights legislation, it has gone farther than other Canadian jurisdictions.[7]   For example, prior to the enactment of the EBR, Ontario residents usually were not provided with an opportunity to comment on proposals for new factories or additions to facilities that would result in discharges to the environment.

In comparison, environmental participation and litigation rights in most European jurisdictions generally are viewed as meagre.[8]   Thus, Ontario’s new legislation, which combines increased access to the courts and  improved public participation rights, is viewed by some European lawyers as a model which might be worth adapting in other jurisdictions.  For example, the proceedings of a 1994 conference on environmental rights held in Germany contain two papers which discuss Ontario’s EBR.[9]  In addition, international organizations interested in promoting environmental protection through law reform, such as the European-based Environmental Law Network International, are following developments in Ontario with great interest.[10]

2.3 Summary and Conclusion


Both CEPA, 1999 and the EBR establish environmental registries. The registries are publicly accessible via the internet and function as a bulletin board, providing information to the public and allowing the public to submit responses. In this chapter, we discuss the types of information available on the CEPA Registry and the extent to which the CEPA Registry may serve as a tool for public input regarding environmental decision-making. Additionally, a number of other issues related to the implementation and maintenance of the CEPA Registry are discussed. Comparisons with the EBR Registry are made when relevant.

3.1 The Registry Concept

The Registry concept was first developed as part of the federal Emergency Planning and Community Right-to-Know Act of 1986 in the United States.[11]  This legislation requires certain chemical manufacturing facilities to record and report releases of approximately 357 toxic chemicals to the US Environmental Protection Agency. Government agencies enter this information into the Toxics Release Inventory (“TRI”), a national on-line database that is accessible to the public by computer. Reporting requirement were later expanded by the  Pollution Prevention Act[12] in 1990.[13]

Many individuals and groups use the data and information from the TRI to help them map out patterns of environmental emissions from US factories.  The Environmental Defense Fund (“EDF”) Chemical Scorecard, developed by the EDF is one of the most interesting applications of this technology.[14]  It can be viewed on the Internet at

Since the early 1990's, a number of jurisdictions have implemented environmental registries or examined proposals for them.  For example, the British Columbia Government has implemented registries under the Waste Management Act and the Environmental Assessment Act.  The Canadian Environmental Assessment Act also establishes a Registry, which has been operational since 1995.  

3.2 The CEPA Registry

Part II of CEPA,1999 establishes the Environmental Registry. In particular, section 12 provides:

12. The Minister shall establish a registry, to be called the Environmental Registry, for the purpose of facilitating access to documents relating to matters under this Act.

The CEPA Registry is publicly accessible via the internet through Environment Canada's Geeen Lane Web site at The site became operational in March 2000. There is currently no charge for viewing or downloading material on the CEPA Registry.

3.3 The EBR Registry

Section 5 of the EBR creates the EBR Registry. The EBR Registry is also publicly accessible via the internet at The Registry became operational in May 1994. There is currently no charge for viewing or downloading material on the EBR Registry.

3.4 Documents and Information Available on the CEPA Registry

Like the EBR Registry, the CEPA Registry is part of the growing trend toward public and community right to know laws and initiatives that started in the United States in the 1970s.  A key goal of the CEPA Registry is to promote access to information about decision-making.  While access to information was also a goal of the EBR Registry, transparency and improved public participation also were key goals in the establishment of the EBR Registry.

Section 13 (2) of CEPA, 1999 states that the Minister may determine the form of the Environmental Registry, how it is to be kept and how access to it shall be provided.  Similarly, section 13 of Ontario Regulation 73 / 94 provides that the Minister of the Environment shall operate the EBR Registry. Moreover, under the regulation-making powers contained in section 121 of the EBR, the Minister, under the authority of the Lieutenant Governor in Council, may determine how the Registry is to be operated and used.

Section 13 (1) of CEPA, 1999 describes what types information will be available on the Registry:

13. (1) The Environmental Registry shall contain notices and other documents published or made publicly available by the Minister, and shall also include, subject to the Access to Information Act and the Privacy Act,

(34)  notices of objection and of any approval granted under this Act;

(35)  a copy of every policy and of every proposed regulation or order made under this Act; and

(36)  copies of documents submitted to a court by the Minister relating to any environmental protection action.

In short, the CEPA Registry shall contain, subject to privacy laws contained in s. 313 of CEPA:

1.EC Documents: EC notices and other EC documents published or normally made available to the public or the media;

2.Objections: Notices of objection filed under CEPA, 1999;

3.Approvals: Notices of any approvals granted under CEPA, 1999;

4.Policies: Copies of every policy made under CEPA, 1999;

5.Regulations: Copies of every proposed regulation made under CEPA, 1999;

6.Orders: Copies of every proposed order made under CEPA, 1999; and 

7.Court Documents: Copies of documents submitted by the Minister to a court in relation to an environmental protection action.

The actual categories of information available on the CEPA Registry is very similar to the above list and is reproduced in Appendix C. As well, a description of each type of notice or document to contained in the CEPA Registry is provided in Appendix D.

A significant portion of the information that will be published on the CEPA Registry is already available at EC’s Green Lane web-site and at other web sites.  The advantage of the CEPA Registry is that it will provide “one place to look” for information about CEPA, 1999 implementation.

The CEPA Registry also has extensive hypertext links to Internet documents that are related to CEPA, 1999 but not published on the CEPA Registry.  However, links to outside sites and commercial organizations will not be permitted.[15]

EC staff have expressed that the CEPA Registry is not intended to be a promotional tool. Accordingly, EC staff are urged to ensure that the information presented on the CEPA Registry is factual and objective.[16]  Therefore, descriptions of success stories and promotional materials related to activities by EC, Health Canada and other federal departments will not be included on the CEPA Registry.  Early experience with the EBR Registry was that ministry staff sometimes tended to “spin” information in registry postings to support the policies and programs of specific ministers (e.g. postings on Bill 76, the EAA reforms).  Implementing this policy may pose significant challenges for EC staff.

The CEPA Registry web site will be maintained and operated by a CEPA Registry Office.

Other Documents Posted on the CEPA Registry

Various sections of CEPA, 1999 require the Minister to publish in the Gazette and / or in any other manner, or to give notice of, certain information related to CEPA, 1999. It appears that the CEPA Registry will maintain at least some of this information under “Notices” in its main menu. The CEPA Registry lists a number of types of information which will be produced under “Notices”. This list is reproduced in Appendix 3.

In addition to the items listed in the CEPA Registry under “Notices,” it is submitted that the language of section 13 (1) is broad enough to permit the inclusion of the following information and documents on the CEPA Registry:

·          forms for Applications for Investigations

·          orders respecting tradeable emissions credits (s. 327)

·          amendments to Pollution Prevention Plans (The plans themselves will not be posted on the CEPA Registry but maintained on site by the proponent.)

·          proposals for Virtual Elimination Lists under Part 5

·          research on endocrine disruptors (ss. 44(4))

·          guidelines and codes related to environmental emergencies under part 8

·          information about government operations and the environmental effects of activities on federal and aboriginal lands

Publication of the above items on the CEPA Registry will serve to discharge some of the federal government’s duties enumerated in section 2 of CEPA, 1999, such as:

·          encouraging the participation of Canadians in making decisions that effect the environment; 

·          facilitating the protection of the environment by Canadians; and

·          providing information to Canadians on the state of the environment.

3.5 The Role of Environment Canada Staff in Determining the Content of the Registry

The language of section 13 (1) is very broad. It is being interpreted by EC staff to include every official document issued by EC relating to matters under CEPA, 1999.[17] In fact, EC staff are being asked to avoid seeking ways to exclude from the CEPA Registry any public or published documents.  Moreover, staff are being asked to consider posting research documents on the CEPA Registry even if they do not include specific mention of CEPA, 1999 but the text of the document deals with matters covered by CEPA, 1999.

3.6 The CEPA Registry as a Tool for Public Consultation

Unlike the EBR Registry, the CEPA Registry is not intended as a public consultation tool.  In other words, EC staff will continue to conduct public consultations in the manner they have for the past five years. However, there are some minor exceptions to this general rule.

The CEPA Registry may function as a medium for public consultation in relation to agreements between jurisdictions under sections 9 and 10. Under CEPA, 1999 the Minister must explain how public comments were taken into account when it finalizes such agreements. In addition, various regulations and orders issued under certain parts of CEPA, 1999 are open to public comment or objection under section 332. Again, the Minister must explain how public comments were taken into account when it finalizes the regulations and orders. The Minister’s explanations may be reproduced on the CEPA Registry in accordance with sections 9, 10, and 332.

The intent to limit the use of the CEPA Registry as a public consultation tool may reflect the criticism of stakeholders that the EBR Registry system has become the sole means of public consultation for most regulations and policies. 

3.7 Other Issues Related to the CEPA Registry

Outlined below are other issues concerning the CEPA Registry. Comparisons are made with the EBR Registry where appropriate.

I. CEPA Registry to Complement Canada Gazette

Many of the CEPA, 1999 documents that are required to be published in Parts 1 and 2 of the Canada Gazette are also reproduced in the CEPA Registry. For example, section 13 of CEPA, 1999 requires production of proposed regulations and orders on the CEPA Registry.[18] At present, both current and proposed versions of regulations and orders made under CEPA, 1999 are found on the CEPA Registry.[19] In addition, public notice of various forms of information are available on the CEPA registry as required by section 13 of CEPA, 1999.

Part 1 of the Gazette contains proposed orders and regulations as required by section 332 of CEPA, 1999. These proposals are generally subject to a 60-day comment period.  The documents published in Part 2 of the Gazette are the final form of regulations and other documents.

Section 332(3) of CEPA, 1999 states that no order, regulation or instrument needs to be published more than once in the Canada Gazette, whether or not it is altered after publication.  This provision reflects a long-standing debate between the Department of Justice and EC. Some Department of Justice lawyers have argued that regulatory proposals that are changed significantly must be republished in Part 1 of the Gazette. However, it is possible that EC may republish a proposal on the CEPA Registry for an additional comment period because the language on notice and comment in many sections is permissive.

II. Confidentiality

A further general consideration with respect to the CEPA Registry is the confidentiality of information submitted to the Minister or a Board of Review.  In contrast to the EBR Registry, information is not automatically treated as confidential and could therefore potentially be posted on the CEPA Registry. Under the EBR, the names, addresses and any other personal information pertaining to an applicant for review or investigation are confidential and cannot be disclosed pursuant to sections 72 and 81. [what about appeals]

However, a person who provides information to the Minister under  CEPA, 1999, or to a Board of Review in respect of a notice of objection filed under CEPA, 1999, may request that the information be treated as confidential pursuant to section 313 (1). The Minister is not permitted to disclose any information in respect of which a request for confidentiality has been made under section 313, except in accordance with sections 315, 316 or 317.  These sections incorporate provisions of the Access to Information Act, RSC 1985 c. A-1 and the Privacy Act, RSC 1985 c. P-21 and provide for a type of public interest override of a confidentiality request.

As well, the CEPA Registry contains a general disclaimer regarding confidentiality which states:

The User understands that any information or feedback submitted by e-mail or otherwise to Environment Canada for this Environmental Registry will not be considered as confidential information and it is further understood by the User that Environment Canada may use this information as it deems appropriate on an unrestricted basis.

This is a very strong statement that any submitted material may be disclosed to the public, including the names and addresses of the persons who submitted the material.[20]

In contrast, the EBR Registry provides only a brief summary of the nature of a proposed decision.  Those residents that wish to make detailed comments may request more detailed information in order to understand the nature of the proposal and its impacts upon the environment.  Residents may obtain further information from the contact person listed in the registry notice. 

However, in some cases, residents may be denied access to key supporting documentation where the proponent requests that the information be kept confidential under the Freedom of Information and Protection of Privacy Act (FIPPA) because the information was supplied in confidence and its release would harm the proponent’s commercial interests.    Nevertheless, these factors must be balanced against the public’s interest in obtaining the information necessary to understand the environmental implications of the proposal.  The Information and Privacy Commissioner/Ontario was asked to rule on a case where the proponent had asked that supporting documentation be kept confidential.  An adjudicator ruled that the public interest in disclosure for the purposes of enhancing environmental protection and public health and safety clearly outweighed the proponent’s interests in that case. [sounds like CEPA]

The process of filing an application under FIPPA to obtain supporting documentation generally takes longer than the EBR 30-day comment period, forming an obstacle to residents exercising their EBR rights.  The IPC adjudicator noted this potential problem and advised that ministries “should not as a matter of general policy direct members of the public seeking information for the purpose of an EBR consultation to FIPPA, but should address the issue using its own expertise and statutory powers.”  The ECO agrees with this position.  The ministries must only demand that residents file an application under FIPPA to obtain information where there a clear basis for doing so.  Otherwise, the effectiveness of the Registry is diminished because residents cannot access the necessary information to make meaningful comments on proposed decisions.

One implementation issue that is certain to arise relates to unposted documents and decisions.  Under the EBR, there are occurrences where certain notices required to be published on the EBR Registry are in fact not posted. In 1998, for example, there were 30 unposted decisions. The same situation is likely to occur in relation tho the CEPA Registry.  The reasons will probably include the following: the staff’s failure to remember to post the document; the staff’s belief that the document was not required to be posted; or the staff’s belief that the document was not included under section 13 of CEPA, 1999. Similar reasons are offered for failures to post notices on the EBR Registry.

In order to address this problem under the EBR, the Environmental Commissioner’s Office (“ECO”) monitors unposted documents. When it comes to the ECO’s attention that environmentally significant ministry proposals and decisions have not been posted on the Environmental Registry, the ECO reviews them to determine whether the public’s participation rights under the EBR have been respected.  In its Annual Report the ECO reports to the Legislature when unposted decisions have been improperly excepted from Registry posting. The nature of these decisions, the rationale provided by each ministry for not posting them on the Registry, and a brief ECO commentary is provided in the annual reports.

To identify unposted decisions the ECO monitors the Ontario Gazette, the media and other sources.  In addition, sometimes stakeholders contact the ECO and provide information related to unposted decisions. Although the ECO identifies approximately 60 to 70% of the unposted policy decisions that should have been posted on the Registry it remains a very difficult task because there is no way of knowing precisely what unposted instruments are being issued by the ministry. 

Monitoring unposted decisions is likely to be problem for the CEPA Registry users since there does not appear to be a comparable monitoring agency in place under CEPA, 1999.

IV.  Threshold on Environmental Significance not Contained in CEPA

The key threshold for government officials in determining whether a proposal is subject to the EBR and therefore must be placed on the EBR Registry for public comment is whether it is environmentally significant.[21]  Section 14 of the EBR sets out three factors that a minister must consider, but also allows a minister to consider any other matter that the minister considers relevant.  The ministries have developed guidelines for analysing whether a policy, act or regulation is environmentally significant.  The ECO reviews how this discretion is exercised.

There is no similar threshold in CEPA, 1999.

Under the EBR, a significant portion of instruments, but not all, are posted for notice and comment.  It is estimated that only about 6-10% of the instruments issued by the Ministry of the Environment (“MOE”) are posted. (i.e. 2,000 out of 20-30,000 instruments per year).  The percentages are probably smaller for some other ministries.

V. Exceptions

Another interesting difference between the EBR Registry and the CEPA Registry is that there are exceptions in the EBR but there do not appear to be any in CEPA, 1999.[22]  For example, there are exceptions to the EBR’s public participation requirements in cases of emergency or where there has already been an equivalent public participation process, such as an environmental assessment process. In these cases the ministry claiming the exception is required to post an exception notice on the Registry. The ECO monitors the use of these exceptions by the ministries and reports to the Legislature on whether they have been improperly exercised. 

Between November 1994 and December 1997, only 21 emergency exception notices and 10 equivalent public participation exception notices were placed on the Registry by MOE.  The vast majority of the emergency exceptions related to landfill sites seeking interim expansions or “emergency” certificates of approval.  In the ECO’s first annual report, the Commissioner noted that, while a lack of landfill space is certainly an urgent consideration for municipalities and MOE staff, it seems questionable that this number of exceptions is justified.  As one commenter pointed out, “a lack of landfill capacity rarely occurs overnight.” 

In its 1997 Annual Report, the Commissioner reviewed several exceptions, and concluded that ministerial discretion could often have allowed the use of the EBR public participation processes in order to provide greater transparency and to alert members of the public to the nature of ministers’ decisions.

VI. How long will information be on the CEPA Registry?

CEPA, 1999 does not specify how long information is to remain on the registry. At present, EC is developing policies related to the CEPA Registry and is considering whether some of the posted information should be archived and placed in paper files after 12-24 months.  For example, ocean dumping permits are valid for less than one year, and EC may decide to remove them from the CEPA Registry every two years to make room for other information.

The EBR Registry is currently a database of all postings. The first few thousand MOE instrument proposals are no longer of the EBR Registry (these were not reloaded when the MOE moved from the BBS to the Internet) but all of the proposals for acts, regulations and policies are on the EBR Registry, as well as information and exception postings.

VII. Cost Recovery

In its official government response to the Standing Committee, the federal government proposed to include authority to adopt cost recovery measures to maintain the CEPA Registry.  The government contended that such a provision would provide authority, if needed, and would likely require that the fee structure for users of the CEPA Registry be set out in regulations. The regulations would then go through the federal regulatory process, which includes required public consultation, in addition to a public comment period once the draft regulations are published in Part I of the Gazette. Section 328 of CEPA, 1999 appears to allow the government to impose a charge for use of the CEPA Registry.[23]  However, there are no such charges at present and it seems unlikely that EC will impose charges in the near future.

The idea of cost recovery was also proposed for the EBR Registry by the EBR Task Force. Section 121 (1) (g) of the EBR grants the Lieutenant Governor in Council the power to make regulations “prescribing the fees that may be charged in relation to use of the registry.” To date, no proposals for cost recovery have been made in relation to the EBR Registry.

VIII. No Environmental Commissioner Created by CEPA

A further important difference between the EBR Registry and the CEPA Registry is the existence of a monitoring agency under the EBR. The Environmental Commissioner of Ontario is mandated to review the ministries’ compliance with the EBR and how they use the EBR Registry. In contrast, no specific agency is established by CEPA, 1999 to monitor the operation of the CEPA Registry. 

However, EC maintains a CEPA office, whose staff prepares an annual report to the House of Commons, although they tend to be technical and rarely critical of the government in power.  The Standing Committee will probably follow the implementation of the CEPA Registry very closely and undoubtedly will ask EC staff to appear before them.  It also seems likely that the Federal Commissioner on the Environment and Sustainable Development will review work on implementation of the CEPA Registry.

IX. Delays in Posting Information

Another interesting implementation issue will be the inevitable delay between issuing approvals or making decisions and their publication on the CEPA Registry.  The ECO monitors delays very carefully.  Furthermore, section 36 (2) of the EBR requires that ministry staff post decisions as soon as reasonably possible after the decision is implemented. There is no similar requirement in CEPA, 1999.

Experience under the EBR is that ministry staff can take anywhere between a week and 6-8 months to post a decision notice on the EBR Registry.  To be fair, ministry staff are dealing with dozens of issues and posting decision notices often seems like a hassle.  Based on the EBR experience, I would predict  that there will be delays between the issuance of documents and the publication of them on the CEPA Registry.  It depends on whether the directors and staff in headquarters and the regions can convince EC staff to make registry publication a priority.

3.8 Summary and Conclusions

CEPA Registry modelled after the EBR Registry


Both the EBR and CEPA, 1999 confer upon the public the right to request an investigation of  an alleged environmental offence. This is a significant and unique right.

It is a unique right because not all jurisdictions in Canada provide their residents with the right to request an investigation.[24] Moreover, the right has only existed in Canada for approximately 12 years, since the enactment of CEPA, 1988.

It is a significant right because it offers citizens the potential for a less-expensive alternative to litigation in order to protect the environment. Moreover, a well-researched application can lead to positive, and even unexpected results. For example, in 1997 an investigation application under the EBR alleged that the applicants’ neighbours straightened a river bank by adding outside fill to their property, causing increased silting, erosion and flooding on the applicants’ property and the destruction of fish habitat. The Ministry of Natural Resources (“MNR”) concluded that the alteration was in violation of the federal Fisheries Act and initiated a prosecution under that legislation.  The MNR withdrew the charges after the accused agreed to rehabilitate the stream back to its original condition.

In this Chapter the right to an investigation under the EBR, CEPA, 1998, and CEPA, 1999 are examined. Issues related to the right to an investigation are discussed in order to highlight the potential weaknesses in the CEPA, 1999 process. Some of the issues canvassed include: standing to request an investigation, the use of form applications, the frequency of investigation applications, possible grounds for not proceeding with an investigation, potential bias of decision-makers, confidentiality and the lack of a monitoring agency such as the ECO.

4.1 The Right to an Investigation under CEPA, 1999

Sections 17 - 21 of  CEPA, 1999 provide persons resident in Canada with the right to request an investigation into an alleged commission of an offence under CEPA, 1999. Specifically, section 17 states:

17. (1) An individual who is resident in Canada and at least 18 years of age may apply to the Minister for an investigation of any offence under this Act that the individual alleges has occurred.

Upon receiving an application the Minister is obligated to investigate all matters that he or she considers necessary to determine the facts relating to the alleged offence.[25] The investigation may be discontinued by the Minister if he or she is of the opinion that the alleged offence does not require further investigation or the investigation does not substantiate the alleged offence.[26] Otherwise, the Minister must report to the applicant every 90 days regarding the progress of the investigation.[27]

4.2 The Right to an Investigation under CEPA, 1988

The right to an investigation provided in section 17 of CEPA, 1999 is very similar to the former right to an investigation provided in section 108 of CEPA, 1988. However, the former process required two persons to initiate and maintain the application whereas the current process requires only one applicant. A further difference is that CEPA, 1999 provides an additional ground upon which the Minister may choose to discontinue an investigation. Under CEPA, 1999 the investigation may be discontinued by the Minister if he or she is of the opinion that the alleged offence does not require further investigation or the investigation does not substantiate the alleged offence. Only the former ground was available to the Minister under CEPA, 1988.

The investigation request process under CEPA, 1988 was not used extensively.  Nadine Levin in the CEPA Office advises that there were approximately 11 applications submitted under CEPA, 1988, five of which were unrelated to CEPA, 1988.[28] It remains to be seen whether the number of applications for investigation submitted will increase under the newly enacted CEPA, 1999.

4.3 The Right to an Investigation under the EBR

Since the enactment of the EBR in 1994, Ontario residents have been able to request investigations into alleged contraventions of certain environmental laws, regulations and instruments (such as certificates of approval or permits). At present, members of the public can submit applications for investigation regarding some of the Acts administered by the following five ministries:

8.         Ministry of the Environment;

9.         Ministry of Natural Resources;

10.     Ministry of Northern Development and Mines;

11.     Ministry of Consumer and Commercial Relations; and

12.     Ministry of Energy, Science and Technology.

Completed applications for investigation must first be submitted to the ECO. ECO staff review the applications for completeness, and then forward them to the appropriate ministry or ministries. Ministries then must decide whether or not they will conduct the requested investigation.  The ECO reviews and reports on how the ministries receive and handle applications.

The investigation request process under the EBR has been used with greater frequency than the CEPA, 1988 process. During 1998, 25 applications were submitted on a wide range of topics.[29] Several applications related to waste disposal sites were submitted. Applicants raised concerns about inadequate certificates of approval for landfills in Thunder Bay and Sarnia, and about a recycling facility near Aylmer, Ontario. As well, several forestry-related applications were submitted. Applicants raised concerns about forestry operations taking place in areas where harvesting had not been approved. Other applications considered discharges from a mine on Graphite Lake near Algonquin Provincial Park, the destruction of common tern nests on Toronto’s Leslie Street Spit, and a conservation authority’s decision to sell some waterfront land in Pickering.

4.4 Issues Related to the Right to an Investigation

I. Who Can Submit an Application for Investigation

According to section 17 of CEPA, 1999, any “individual” resident in Canada and at least 18 years of age may request an investigation. Section 74 of the EBR, requires two “persons” who are both resident in Ontario for a proper investigation request. Unlike CEPA, 1999 there is no age requirement under the EBR,[30] although under both Acts the applicant or applicants must believe that the alleged offence has been committed.

Parliament’s decision to restrict investigation applications under CEPA, 1999 to “individuals” appears to deny corporations the right to request an investigation.[31] In contrast, the EBR refers to “persons” which includes corporations as the term is defined in section 29 of the Interpretation Act, R.S.O. 1990, c. I.11.[32]

Denying corporations the right to request an investigation may act as an impediment to public participation. As some commentators have correctly stated, many non-government organisations which are active in environmental issues are corporations[33] and therefore may be unable to submit an investigation application.  

II. Application Forms

Both application processes contemplate an application form. However, only the EBR process currently has a publicly available form.

Section 17 (3) of  CEPA, 1999 permits the minister to develop a form in which investigation applications must be made. EC is currently considering developing a form application, but no such form had been made publicly available nor in one required in order to submit an investigation application. Nonetheless, this is an improvement compared to the former situation under CEPA, 1988 where an application form was never contemplated nor developed.     

Pursuant to section 74 (2) of the EBR, an application for investigation must be in the form provided by the ECO. The form developed by the ECO can be viewed on the ECO’s web-site at A sample completed application form is reproduced in the EBR user’s guide entitled “Ontario’s Bill of Rights and You.”

There are many merits in providing forms applications to the public. The availability of a form is likely to facilitate and encourage public use of the right to request an investigation by simplifying what can otherwise be a daunting, confusing and for some, and intimidating process. By presenting a form that describes all the necessary information and procedures, members of the public do not have to consult legislation that may be difficult to access, read and understand. The removal of such obstacles to public participation and the exercise of the right to request an investigation is necessary if the federal government is to fulfill its statutory duties to encourage the participation of the people of Canada in environmental decision-making and facilitate the protection of the environment by the people of Canada.[34]

A disadvantage of requiring that applications be submitted in a prescribed form is that it may disqualify applications which are not in the proper form but which are otherwise in substantive compliance with CEPA, 1999. Therefore, from the public’s perspective a non-mandatory form may be ideal. On the other hand, from the government’s perspective and in the interest of administrative efficiency, it may be preferable if all applications are submitted in a standardized form.    

III. How many applications will be submitted under the CEPA, 1999?

The number of investigation applications submitted under CEPA, 1999 will be one indicator of the Act's success, or at least a measure of public participation. It is very difficult to predict how many investigation applications the CEPA Office will receive, but some of the relevant factors are worthy of discussion.  

There are a number of prohibitive factors that will influence a person’s choice of whether to request an investigation under either the EBR or CEPA, 1999. Some of these factors are as follows:

1.                  Cost: No fee is required to submit an investigation application under the EBR or CEPA, 1999. However, an applicant will undoubtedly incur expenses in preparing their application. These expenses could be significant if legal, scientific or other professional expertise is required.

2.                  Public Concern: Obviously, one’s level of concern regarding environmental offences generally, and the specific alleged offence they may be aware of, will affect their decision on whether to request an investigation. A related factor is whether the alleged offence has a direct affect on a person. Offences committed against the environment often have no direct human victim and therefore may not result in an investigation application. Ocean dumping permits may be one example. On the other hand, the activities of a landfill in close proximity to a community may garner significant concern in the community and make an investigation application more likely.

3.                   Awareness of Rights: Even those persons with sufficient financial resources and concern may not request an investigation if they are unaware of their right to do so. Public education and awareness is inextricably linked to the number of applications that will be submitted. For this reason the ECO devotes significant program funds and human resources (e.g. 2-3 person years) to educating the Ontario public about its rights under the EBR. The federal government proposed to publish a pamphlet outlining the purpose of CEPA, 1999 and the rights and remedies that members of the public have under the Act. It is doubtful whether this level of commitment will be sufficient to ensure that the investigation application rights are fully utilized.

4.                  Awareness of Offence: Some environmental groups and industry associations argue that the nature of CEPA, 1999 regulations hinders exercise of the right to an investigation. For example, the Vinyl Chloride Release Regulations prohibit releases of vinyl chloride to the atmosphere in excess of regulated limits. However, individuals other than those who work in vinyl chloride or polyvinyl chloride plants are not likely to know if instruments in the plants demonstrate unlawful releases. This is also a problem under the EBR.

Under the EBR, more than 100 investigation applications have been forwarded to the ministries by the ECO.  The investigation applications cover a range of issues such as alleged contraventions of landfill and air pollution permits. On an annual basis,  20-25 applications per year are received by the ECO.

During 1998, in a departure from previous years, MNR accepted more applications than it denied, undertaking six of the eight investigations forwarded to the ministry, and took action as a result of some of these investigations. MOE undertook three investigations. Several EBR investigations were denied because MOE was already investigating the issues raised in the applications, or because another ministry — usually MNR — was investigating similar allegations. The following table summarizes the number of investigation applications received in 1998 and the ministries’ responses.




Undertaken and completed


Undertaken but not yet completed






Total forwarded to ministry



Investigation applications under CEPA, 1988 were far less frequent. In its June 1995 report, the Standing Committee indicated that only six official requests had been made under section 108 between 1988 and 1994. Five of these requests were not directly related to CEPA, 1988.  Nadine Levin in the CEPA Office advises that there have been approximately 11 applications to date, five of which were unrelated to CEPA, 1988. The ECO receives more investigation application in a year. It remains to be seen whether the number of investigation applications will increase with the enactment of CEPA, 1999.  

It should be remembered that even if the application is submitted, the Minster may decide that the investigation should not proceed.

IV. Grounds for Not Investigating

Neither CEPA, 1999 nor the EBR require that every matter requested for investigation must be investigated. Indeed, both acts provide the grounds upon which the Minister may choose not to start an investigation or to discontinue an investigation.

Under section 21 of CEPA, 1999, the Minister may discontinue an investigation if the Minister determines that the alleged offence does not require further investigation, or that the investigation does not substantiate the alleged offence. It is unclear what sorts of reasons the Minister might provide under this ground, but it appears to grant the Minster a wide ambit of discretion.

Section 77 of the EBR provides five circumstances in which the Minister may choose not to investigate. First, the Minister need not investigate if he or she does not consider it necessary.[35] Second, the Minister need not investigate a frivolous or vexatious application.[36]  Third, the Minister need not investigate alleged contraventions that are not serious enough to warrant an investigation.[37] Fourth, the Minister is not required to investigate if the alleged contravention is not likely to cause harm to the environment.[38] Finally, the Minister need not investigate a matter already being investigated.[39] These grounds offer the Minster a broad and subjective scope of reasons to not start or to discontinue an investigation.

It should be noted that conducting a proper investigation is expensive.  For example, in April 1998 several large Ontario environmental groups submitted an extensive set of applications related to contraventions of the Public Lands Act and the Crown Forest Sustainability Act.  It was reported in the media that the MNR spent more than $60,000 and dozens of person days on the investigation related to this application. However, the expense of an investigation is not a recognized ground to not investigate.  

Both CEPA, 1999 and the EBR provide that the Minster shall provide the applicant with his or her reasons for not investigating.[40] Under the EBR the Minister has 60 days to provide the applicant with this information.[41] There is no time limit within which the Minister must provide reasons for discontinuing an investigation under CEPA, 1999.

Disclosure of the Minster’s reasons for not investigating is important because it will form the record on which the Minister’s decision may be subjected to judicial review. Disclosure is also an important element in achieving transparent decision-making.

V. Bias of Decision-Makers

In order for the right to an investigation to be meaningful, applicants must be assured that their applications are not reviewed by person (s)  who may have a potential for bias in deciding whether to proceed with the investigation. 

Applicants under the EBR have raised concerns in correspondence to the ECO regarding the appearance of bias where the ministry has an interest in not fully investigating a matter due to a fear that it might expose neglect of ministry duty or failure to follow ministry policy.

Furthermore, the ECO reported another example of the potential for bias in reviewing investigation applications at page 43 of its 1996 Annual Report:

Sometimes Ontarians applied for an Investigation of an issue they had raised with a ministry in the past, but the issue was never resolved to their satisfaction. In at least two cases the Ministry of the Environment and Energy assigned these kinds of Investigations to the same local offices that dealt with the previous complaints.           

In the case of the EBR, the ECO acknowledged the value of local experience in having the same individual (s) review investigation applications for previous complaints, but emphasized the need for a fresh perspective.

In order to ensure that a fresh perspective is brought to reviewing investigation applications, some ministries have adopted, as a matter of policy, a two step decision-making process designed to avoid potential and actual bias.  For example, in the case of the MOE initial decisions on whether to proceed with investigations are made by the local District Mangers, after consulting with their Abatement / Technical Support staff and the Advisory Committee of the Operations Division of the MOE.[42] 

This approach was not adopted in CEPA, 1999. The procedure contemplated by the express provisions of CEPA, 1999 does not necessarily require an initial investigation of an offence, nor an initial screening by a committee or independent decision -maker.  However, we understand that EC staff have adopted a similar approach as a matter of policy.

VI. Equivalency Agreements

Section 10 of CEPA, 1999 allows the federal government to enter into equivalency agreements with provincial, territorial or aboriginal governments. An equivalency agreement recognizes the regulatory provisions in another jurisdiction as having the equivalent effect of provisions in CEPA, 1999. The effect of an equivalency agreement is that the specified provisions in or under CEPA, 1999 will not apply in the host jurisdiction.

Thus far, the federal government has entered into only one equivalency agreement. “An Agreement on the Equivalency of Federal and Alberta Regulations for the Control of Toxic Substances in Alberta” came into effect in 1994. The agreement renders inoperative in Alberta four CEPA, 1999 regulations concerning toxic substances.

A pre-requisite to equivalency agreements is the existence of a mechanism allowing individuals in the host jurisdiction to request an investigation of alleged offences under environmental legislation in the host jurisdiction. Specifically, section 10 (3) (b) of CEPA, 1999 requires the host jurisdiction to have statutory provisions that are similar to sections 17 - 21 of CEPA, 1999.

Ontario has its own investigation  provisions in the EBR as discussed above. Thus, it seems possible that Ontario will be one of the few jurisdictions in Canada that could enter into an equivalency agreement with the federal government. The Yukon, the Northwest Territories, Nova Scotia and Alberta may also be candidates for equivalency agreements.[43]  

VII. Confidentiality

The EBR requires the ministries not to disclose the names of applicants in notices under section 78. [see s. 81].  This was likely intended to protect applicants from harassment by alleged contravenors, their employees and other interested parties.  These provisions have served to reassure some applicants that they could apply without fear of reprisal.  For example, in some cases employees have submitted applications for investigation under the EBR about misconduct by their employers. It is arguable that these employees would not have come forward if they thought their names would be automatically disclosed to their employers.

The ECO maintains the confidentiality of all applicants’ names as a matter of policy. ECO staff cannot discuss applications for investigation until the Commissioner reports on them.  However, in some cases, the applicants self identify at press conferences held when they submit the applications to the ECO or when they are trying to press the ministries for action.  In these cases, the ECO will merely confirm to the media or the public that an application was received.

Confidentiality under CEPA, 1999 is addressed in sections 313 - 321. [does this apply to appeals or also investigations] The essential difference with the EBR process is that under CEPA, 1999 an applicant must make a request to have information kept confidential. This request must include explanation of the grounds for making the request.

The Minister is not permitted to disclose any information in respect of which a request for confidentiality has been made under section 313, except in accordance with sections 315, 316 or 317.  These sections incorporate provisions of the Access to Information Act, RSC 1985 c. A-1 and the Privacy Act, RSC 1985 c. P-21 and provide for a type of public interest override of a confidentiality request.

[See CELA]

VIII. Lack of ECO

There is no requirement for a monitoring agency, such as the ECO,  to review the handling of investigations applications under CEPA, 1999. Experience with the EBR process is that assessment of the adequacy of investigations by government officials is complex.  It is possible that environmental non-governmental organizations may step into the breach and prepare an annual report on how applications are being handled by Environment Canada.

4.5 Summary and Conclusions

Issue: will CEPA be used for Private Prosecutions???? Recent cases in Ontario and BC

Kingston landfill?


The CEPA Registry and the right to request an investigation under CEPA, 1999, were discussed in previous chapters. Both the CEPA Registry and the right to an investigation were designed to promote greater political accountability on the part of decision-makers. However, it is arguable that political accountability alone may be insufficient to ensure better environmental decision-making. CEPA, 1999 reflects the need to go beyond mere accountability by increasing public access to the courts.

CEPA, 1999 creates a public right to sue, called an environmental protection action (“EPA”).[44] An EPA is a statutory civil action. It is a right to sue conferred on members of the public through legislation. Under CEPA, 1999 a member of the public may commence an action with respect to an offence committed under the Act and which caused significant harm to the environment. The right to commence an EPA is markedly different than the right to request an investigation in that an EPA is not subject to ministerial discretion and therefore cannot be shutdown by the government. However, there are significant prerequisites and challenges to commencing and maintaining an EPA.

Insert brief description of EBR provisions - comment on how often the right to sue has been used and refer to case briefs in Appendix F?

This chapter discusses the requirements for commencing an EPA and the remedies which the court may grant to a successful EPA plaintiff. In addition, ...First, a historical perspective of statutory civil actions is provided.

5.1 Background

The EPA provisions in CEPA, 1999 were modeled after very similar provisions in the EBR.[45] The CEPA, 1999 provisions also represent significant amendments to the right to sue provisions in the original CEPA, 1988. Under CEPA, 1988 the public right to sue was limited to situations where the plaintiff suffered loss or damage as a result of a violation of CEPA, 1988. Under CEPA, 1999 this requirement is removed, making it less onerous for a plaintiff to commence an EPA.

In its 1995 report, the Standing Committee recommended that the CEPA, 1988 right to sue be expanded to allow members of the public to sue in situations where they have suffered loss or damage as a result of an activity that has been permitted under the Act, such as ocean disposal.[46] However, the federal government rejected such a broad approach and did not agree to amend CEPA, 1988 to provide a means of redress for damages arising from activities that are authorized under the Act.  In its response to the Standing Committee, the federal government stated that a means of redress to seek such compensation already exists as persons currently have a common law right to bring suits to seek damages.

5.2  EPA Requirements under CEPA, 1999

Sections 22 - 29 of CEPA, 1999 set out a number of requirements that must be satisfied before an EPA may be initiated. Many of the requirements are the same as those contained in the EBR. Some of the key requirements are outlined below.

I. Prior Request for Investigation & Inadequate Ministerial Response

Before commencing an EPA, the plaintiff must have already applied for an investigation into the alleged contravention of CEPA, 1999 and received an unreasonably delayed response or an unreasonable response from the Minister.[47] It is unclear how reasonableness will be determined in either of these contexts.

II. Significant Harm

In order for an EPA to be successful, the plaintiff must establish that the impugned activity constitutes an offence under CEPA, 1999 and caused “significant harm to the environment.”[48]  There is no definition of “harm” or “significant harm” in CEPA, 1999.

The public right to sue under the EBR also refers to “significant harm” to a public resource. However, the EBR defines “harm” in section 1 (1).

Reference to a phrase such as “significant harm” in CEPA, 1999 will undoubtedly lead to confusion and debate as to its legal meaning. Arguably the public, the environment and the regulators would be better served with a clearer definition of what type of activity may form the basis of an EPA. There appears no sound reason for not providing a more precise definition in CEPA, 1999. In contrast, as some commentators have pointed out, the reference to “significant harm” in the EBR was necessary because the right to sue under the EBR potentially applies to all contraventions of environmental laws, regulations and approvals in Ontario.[49] This is distinctly different than the situation under CEPA, 1999. The EPA provisions contained in CEPA, 1999 apply only to offences committed under CEPA, 1999 and thus, presumably are causing significant harm.     

III.  Notice of the Action to the Attorney General

The plaintiff must serve the Attorney General of Canada with a copy of the document originating the EPA within 20 days of serving the document on the defendant.[50] The Attorney General is entitled to participate in the action, either as a party or in some other capacity.[51]  Similar  provisions are included in the EBR.[52]

IV.  Notice of the Action on the CEPA Registry

The plaintiff to must give notice of the action to the Minister no later than 10 days after serving the originating document on the defendant.[53] The Minister then must give notice of the action on the CEPA Registry as soon as possible after receipt of the plaintiff's notice.[54]

CEPA, 1999 also appears to contemplate that additional notice will be provided on the Registry after the action has commenced and proceeded to trial.  Section 26 (2) states that, in an EPA, the court may order any party to the action to give notice to the Minister of any matter relating to the action, within the time specified by the court and the Minister shall give notice of that matter in the CEPA Registry as soon as possible after receipt of the party's notice.

Notice of the Attorney General of Canada’s decision to participate in an EPA shall be given to the plaintiff and be included on the CEPA Registry within 45 days after the copy of the originating document is served on the Attorney General.[55]

V. Limitation Period of Two Years

Section 23 (1) of CEPA, 1999 provides that “an environmental protection action may be brought only within a limitation period of two years beginning when the plaintiff becomes aware of the conduct on which the action is based, or should have become aware of it.”  However, section 23 (2) goes on to state that the limitation period does not include any time following the plaintiff's application for an investigation, but before the plaintiff receives a report under section 21 (2).

VI. Exceptions

CEPA, 1999 provides significant exceptions regarding when an EPA may be commenced. AN EPA may not be brought if any of the following apply:

·             the alleged conduct was undertaken to correct or mitigate harm or the risk of harm to the environment and “was reasonable and consistent with public safety”[56]

·             the alleged conduct was undertaken to protect national security, support humanitarian relief efforts, participate in multilateral military or peace‑keeping activities under the auspices of international organizations or defend a member state of the North Atlantic Treaty Organization and it “was reasonable and consistent with public safety”[57]

·             the alleged offender was convicted of an offence under CEPA, 1999 with respect to the alleged conduct on which the action is based[58]

·             environmental protection alternative measures within the meaning of Part 10 of CEPA, 1999 were used to deal with the alleged offender, in respect of the alleged conduct on which the action is based[59]

VII.  Onus and Burden of Proof

Section 29 of CEPA, 1999 states that the offence alleged in an EPA and the resulting significant harm are to be proved on a balance of probabilities by the plaintiff.

VIII. Other Parties

Section 28 (1) of CEPA, 1999 states that the court may allow any person to participate in an EPA in order to provide fair and adequate representation of the private and public interests involved.  Moreover, section 28 (2) allows the court to determine the manner and terms of the person's participation, including the payment of costs.

[CELA comments]

5.3 Remedies

If a court finds the plaintiff entitled to judgment in an EPA, the court may grant any of the following forms of relief, pursuant to section 22 (3) of CEPA ,1999:

·          order the defendant to do anything that may prevent the continuation of an offence under CEPA, 1999

·          order the defendant to refrain from doing anything that may constitute an offence under CEPA, 1999;

·          order the parties to negotiate a restoration plan in respect of harm to the public resource and report to the court on the negotiations within a fixed time;

·          make a declaration; and

·          make any other order, including an order as to court costs, that the court thinks is appropriate.

The court cannot make an award of damages in an EPA. 

5.4 Other Civil Matters

Many courses of action contemplated by CEPA not discussed here such as ...

I. Civil Actions to Prevent Losses

Under section 39 of CEPA, 1999 a court may issue an injunction ordering a person to refrain from doing anything that contravenes CEPA, 1999 or its regulations and which causes loss or damage. Only the person who has suffered or is about to suffer the loss or damage has standing to request the injunction.

I. Civil Actions to Compensate Losses

Under section 40 of CEPA, 1999 any person who has suffered loss or damages as a result of conduct that contravenes CEPA, 1999 or its regulations may apply to court to recover their losses.

III. Civil Actions under other Statutes

Fisheries Act, Endangered Species Act

IV. Private Prosecutions

The harm to a public resource action shares some characteristics with a private prosecution.  Similar to the EBR, private prosecutions provide citizens with an opportunity to take action when they perceive that government action is inadequate.  However, there are important differences between the two.[60]  The harm to a public resource action requires the plaintiff to prove the merits of the case on the lower standard of proof for civil action (balance of probabilities) as compared to the higher standard in a criminal proceeding (reasonable doubt).  The public resource action also provides an opportunity for the plaintiff to recover costs of the action.

The main reasons for the increase in private prosecutions are following:

1. There are no cost provisions in a criminal proceeding. 

2.  It generally takes less time and costs for a private prosecution to proceed to trial.

In contrast, the real key to a public resource action under the EBR or an EP action under CEPA is the potential for a restoration plan to be ordered but in most cases it will take years for the parties and the courts to develop an appropriate plan.

3.  If you use the Fisheries Act, you can get up to half of the fine imposed.

Several prominent private prosecutions involving environmental offences have been commenced in Ontario since the EBR was promulgated.[61]  One of these prosecutions was initiated against the City of Kingston for contravention of the Fisheries Act and the EPA.  These are both prescribed Acts under the EBR.

The Kingston private prosecution resulted in a conviction and a significant fine being imposed upon the defendant.  The private prosecutor was entitled to half of the fine under the General regulations under the Fisheries Act.  In this case, the prosecution was launched by the

Environmental Bureau for Investigation and the Sierra Legal Defence Fund.

Last week, the Environmental Bureau for Investigation and the Sierra Legal Defence Fund launched another action that is remarkably similar to the Kingston case.  In this new case, the environmental groups are seeking to prosecute the city of Hamilton for allowing an old city dump to leak PCBs into the Red Hill Creek.

The third private prosecution, which was an attempt to prosecute CoCa-Cola for contravention of the refillable regulations under the EPA, was stayed by the Attorney General. Before the private prosecution was undertaken, the environmental group had launched an application for investigation under the EBR.  They were dissatisfied with the decision of the ministry not to investigate and prosecute and then decided to launch their private prosecution.

The fact that these three actions proceeded by way of a private prosecution as opposed to a harm to public resource action and by-passed the investigation procedure? may indicate that a private prosecution is a more attractive option to a potential plaintiff/prosecutor.

5.5 Summary / Conclusion

Despite the criticism that provisions in Part VI of the EBR are poorly designed, it is arguable that the mere existence of the provisions has served to ensure that ministry officials undertake more thorough investigations and provide reasonable responses to applications.

The similarities between the two Acts on EP actions and s. 84 actions in the EBR are extensive. Modelled after. But there are key differences - the barriers and conditions precedent in the new CEPA are far more restrictive than those contained in CEPA.  I think the CEPA provisions are more restrictive in some respects.  I want to highlight some differences between the provisions.

I) Investigation Not required for Emergencies and Imminent Harm

One of major differences is that ss. 84(1) of the EBR allows residents to go immediately to court in an emergency situation if a person is about to imminently contravene a prescribed Act, regulation or instrument and this will result in harm to a public resources.

In support of this exception, ss. 84(6) of the EBR states that the requirement to first request an investigation does not apply where the delay involved would result in harm or serious risk of harm to a public resource.  This exception does not apply to CEPA actions. 

To date, this emergency exception has been used in one of the two cases that have been launched under the EBR.

2) Pre-approval for Suits Against Farmers

There also are special requirements where the lawsuit would involve farmers who may be protected against nuisance and civil lawsuits relating to odour, noise and dust under the Farming and Food Production Protection Act.[62]  In these circumstances, an approval is usually required from the Normal Farm Practices Protection Board before a lawsuit can be brought.  In addition, parties who undertake actions using the right to sue provisions of the EBR are required to give the ECO notice so that we can post notices about the actions on the Registry.

3) No Actions under CEPA if Mitigation by Defendant

S. 24 states that an EP action is not permitted where a defendant has taken action to  mitigate the damage and harm that was caused.  This is not provided in the EBR.

Experience Under the EBR

To date, only two plaintiffs have actually used the new right to sue provisions in Part VI  of the EBR.  However, fewer than xx Investigation Applications have been screened or reviewed by the ministries (in response to Applications for Investigation under Part V of the EBR), and these ministry screenings are usually prerequisites for s. 84 actions.[63]

Appendix A: EBR Implementation Schedule

Appendix B: CEPA Registry Homepage with Menu of Categories of Information Available

Appendix C: Descriptions of Types of Information on the CEPA Registry

Following is a description of the types of information available under the various categories provides on the CEPA Registry:

6.         The Act

The full text of CEPA will be available on the Registry site.  The EBR Registry has provided access to the full text of the EBR since 1994.

7.         General Information

This part of the Registry will contains documents and other materials that relate to the overall administration of the Act such as the CEPA annual reports.  Bill C‑32 also allows for the publication of a state of the environment report for Canada and it seems likely that this will be published on the Registry.

8.         Public Participation

1. Notices of environmental protection actions

Under sub-section 26(1), the plaintiff in an environmental protection action shall give notice of the action to the Minister no later than 10 days after the document originating the action is first served on a defendant, and the Minister shall give notice of the action in the Environmental Registry as soon as possible after receipt of the plaintiff's notice.

This contrasts with the notice requirements of the EBR.  Under the EBR, the plaintiff must draft a proposed notice at the close of pleadings and then make a motion in the Ontario Court of Justice for approval of the notice.  The ECO is required to post the notice approved by the court.

It is noteworthy that provisions in paragraph c of ss. 13(1)  require the posting of documents submitted to the courts related to EP actions.

2. Objections

As indicated before, section 13 requires that Notices of Objections be published on the Registry.  These objections are similar to appeals under Ontario laws such as the EPA and the OWRA.  However, the appeals are made to the Board of Review rather than an appeal board.  In some cases, like objections related to regulation affecting international air and water pollution, it is mandatory for the Minister to establish a board of review.  Mandatory reviews also are required for regulations under Part 9 or section 118.

It is unclear to me what types of notices will be published on the CEPA Registry.  My expectation is that Environment Canada will develop a template and require that certain information fields be completed.

Nadine Levin of the CEPA Office talked about this issue in November 1999.  She says that, at present there is no plan to develop a template for objections.  Companies and members of the public can continue to send letters and documents.  Moreover, Environment Canada will probably try to reproduce the full text of the objections rather than try to summarize them.

Levin says that all of the objection notices related to a particular regulation, order or instrument will appear on the Registry.  In the past few years, up to 11 objection notices have been filed in relation to a single approval.  Moreover, some notices are filed by ENGOs or law clinics on behalf of many applicants and these ones can be very long and complex.

The ECO is required to post “notices” of appeals and leave to appeal applications related to prescribed instruments on the EBR Registry.  However, we have sinplified procedures so that we do not post all of the notices.

To date we have published approximately 70 notices regarding appeals launched by instrument holders.  All of the appeals have been for MOE instruments.  We have published only about 25 notices of leave to appeal applications by residents and ENGOs.  The Environmental Appeal Board has rejected the large majority of applications.  In seven cases, leave has been granted.  Most of successful applicants have used the threat of a full hearings as leverage to settle their disputes with the proponent and the ministries.

In sum, there are some interesting implementation issues posed by these notices.

3.  Objections to Regulations, Orders and Instruments

Section 332 requires that the Minister shall publish in the Canada Gazette a copy of every order or regulation proposed to be made by the Minister or the Governor in Council under this Act, except a list or an amendment to a list referred to in section 66, 87, 105 or 112.  These are related to LTSs, etc.

Sub-section 332(2) allows any person to file a notice of objection within 60 days after the publication of a proposed order or regulation in the Canada Gazette under subsection (1) or a proposed instrument respecting preventive or control actions in relation to a substance that is required by section 91 to be published in the Canada Gazette.  The notice can request that a Board of Review be established.

4. Objections to Ocean Dumping Permits

Under s. 134 any person who has concerns about an ocean dumping permit or who was denied a permit may file with the Minister a notice of objection requesting that a board of review be established under section 333 and stating the reasons for the objection.

While the time for a.proponent to file an appeal under the EPA is only 15 days after receiving notice from the MOE, the time for filing notice of objection related to an ocan dumping permit is thirty days after the proposed permit is published in the Canada Gazette or thirty days after the date the person received a notice from the Minister that the permit has been refused, suspended or revoked, or that its conditions have been varied.  Minister retains discretion to decide whether to establish the Board of Review.

D.             Regulations

As indicated before, the CEPA Registry will be used for consultation on certain regulations under CEPA.

Section 332 requires that the Minister shall publish in the Canada Gazette a copy of every order or regulation proposed to be made by the Minister or the Governor in Council under this Act, except a list or an amendment to a list referred to in section 66, 87, 105 or 112.  

The minister is required to provide a 60 day comment period.

There are special provisions on pre-consultation notice for regulations related to international air wand water pollution.  Under s. 168 (1) the Minister shall advise the government of any country that would be affected by or benefit from the regulation before it is published under subsection 332(1).  Again, a 60 day comment period applies.  Before the end of the comment period,  any person, including a representative of the government of any country that would be affected by or benefit from it, may file with the Minister written comments on the proposed regulation.

At the end of the period of 60 day comment period, the minister shall advise each government of any notice of objection filed under subsection 332(2) and shall publish in the Canada Gazette, and may publish in any other manner that the Minister considers appropriate, a report or a notice of the availability of a report that summarizes how any written comments filed under subsection (2) or a notice of objection filed under subsection 332(2) were dealt with.  In the result, these provisions approximate the notice and comment provisions in the EBR.

The language in section 13 suggests that the CEPA Registry will contain every proposed regulation in its original language, whether or not it is promulgated.  I would expect that the CEPA Registry will contain the final regulations as well.

The prototype for the CEPA, Environment Canada already had begun the process of loading CEPA regulations on the site.  When the CEPA Registry is launched in the spring of 2000, It is expected that there will be a few dozen regulation proposals and final regulations on the site.

E.    Notices

See Appendix D for a description of the types of information available under Notices.

6.         Orders

Bill C-32 allows Environment Canada staff to impose environmental protection compliance orders.  These have been described as powerful new tools that will work like injunctions.  In some ways, they are similar to the cease and desist orders that could be imposed under the old CEPA.  These orders apply immediately. 

Inspectors will be able to issue orders on the spot to stop illegal activity and, if necessary, require an action to correct a violation so that the environment and public safety are protected.  These type of orders sound like Field Orders that have been issued by MOE for several years.  These MOE field orders are exempted from the notice and comment requirements of the EBR and appeals related to them also are not posted on the Registry.

Section 332 requires that the Minister shall publish in the Canada Gazette a copy of every order  proposed by the Minister or the Governor in Council under this Act.  The minister is required to provide a 60 day comment period on these proposed orders.  It is unclear to me why these orders should be published in the Part 1 of the Gazette because they are in force immediately.

It is possible that Environment Canada may decide to severely limit access to information about these types of orders and not publish them in the Gazete or on the registry.

Bill C‑32 allows the government to completely prohibit the importation and manufacture of these substances. 

Bill C‑32 also creates a new category of enforcement officer called CEPA investigators. These officers will be investigation specialists with expertise in the  gathering of evidence and court procedures. They will have all the powers of inspectors as well as certain peace officer powers such as the authority to serve court documents.

CEPA also allows the minister to impose certain prohibitions.

7.         Guidelines / Codes of Practice

Bill C‑32 also allows for the publication of a state of the environment report for Canada and the development of ecosystem objectives, guidelines, and codes of practice on a wide range of issues, including protection of marine environments. The federal government has stated that efforts will be focused on maintaining the integrity of ecosystems and not just individual components.

These guidelines and codes will be published on the Registry.

8.         Permits and other approvals

The following types of permits will be posted on the Registry:

1. Permits Issued During Extensions of Organism Assessments

Where the Ministers have assessed any information under section 108 and they suspect that a living organism is toxic or capable of becoming toxic, the Minister may, before the expiry of the assessment period permit any person to manufacture or import the living organism, subject to any conditions that the Ministers may specify.

2. Waste Transport Permits

Section 190 allows the Minister to issue a permit authorizing, subject to conditions fixed by the Minister, any waste transit, export and import activity as long as it is to be conducted in a manner that provides a level of environmental safety at least equivalent to that provided by compliance with the requirements of the Act.

If companies feel that disclosure of the detail about the wastes they produce reveals trade secrets or confidential commercial information, then it will be essential for them to make this argument when they apply for the permits.  Otherwise the information could end up on the registry.

Sub-section 127(1) allows the Minister to issue permits authorizing the loading for disposal and disposal of waste at sea.  The applications for permits must be accompanies by evidence that notice of the application was published in a newspaper circulating in the vicinity of the loading or disposal described in the application or in any other publication specified by the Minister.  It is possible that the Minister may eventually direct applicants that the CEPA Registry would be one form of publication for the notices.

I.     Plans

The CEPA Registry will contain copies of a numb er of plans such as:

·             pollution prevention (P2) plans;

·             environmental emergency (E2) plans;

·             virtual elimination (VE) plans;

·             plans for reducing or phasing out the export of hazardous waste for

·             final disposal; and

·             plans for reducing or phasing out the export of prescribed non‑hazardous waste for final disposal.

J.            Agreements

The CEPA Registry will be used to complement other consultations on certain administrative and equivalency agreements under CEPA.  For example, Section 9 of CEPA states that the Minister may negotiate an agreement with a government or with an aboriginal people with respect to the administration of this Act. Sub-section 9(2) requires trhat the Minister shall publish any agreement negotiated under subsection (1) before it is entered into, or give notice of its availability, in the Canada Gazette and in any other manner that the Minister considers appropriate.

Under sub-section 9(3),  any person may file with the Minister comments or a notice of objection during a sixty day comment period on the proposed agreement.

After the end of the 60 day comment period, the Minister shall publish in the Canada Gazette and in any other manner that the Minister considers appropriate a report or a notice of the availability of a report that summarizes how any comments or notices of objection were dealt with.

Section 13 of CEPA suggests that notices of objection will be published on the CEPA Registry but it is unclear if notices of objections filed under section 9 will be posted on the Registry.

In the result, these provisions approximate the notice and comment provisions in the EBR.

11.     Policies

Section 13 indicates that Environment Canada will post policies on the Registry.  However, there is no definition of the word “policy” in CEPA and Environment Canada staff are uncertain as to the scope of the policy documents that must be posted on the Registry. In contrast, the EBR defines policy as

a program, plan or objective and includes guidelines or criteria to be used in making decisions about the issuance, amendment or revocation of instruments but  does not include an Act, a regulation or an instrument

It seems possible that this type of definition could be adapted by Environment Canada.

The ECO and the ministries of the Ontario government have interpreted the definition of policy contained in the EBR to include a wide range of programs and policies.

One implementation issue that arose under the EBR is whether key initiatives such as agreements and action plans developed through partnerships between government, industry associations and other stakeholders are subject to the EBR.  Some ministries took the position that the ministry’s partners are not subject to the EBR and should not be required to follow the EBR requirements.  Thus, the agreements should not be posted for public comment on the Registry. 

This argument has been made by several ministries, particularly in relation to the development of alternative service delivery strategies (ASD).  The ECO has taken the position that this argument is not valid and does not relieve the ministries of their obligations to undertake consultation on the Registry or consider and apply their SEVs.  Consequently Management Board Secretariat modified its policies and procedures on implementation of ASD to require ministries consider the EBR implications of their ASD proposals and, when possible, post them for public comment.

In the past two years, MNR and the MOE have posted many proposals for agreements and ASD programs on the Registry that have been developed with non-government partners.

Officials of CEPA also mentioned issue relating on November 22, 1999.  They mentioned that documents like the pollution prevention agreement between MOE, DOFASCO and Environment Canada would be published on the CEPA Registry for public comment. They said they thought it would be posted.

Thus, it appears likely that Environment Canada will take a broad approach to policy and post MOUs and agreements.

12.     Substance Lists

Under the revised CEPA, the Ministers of Environment and Health have the authority to declare substances "toxic" following a scientific assessment. A substance is declared to be "toxic" if it threatens human health, the environment, or the environment that supports human life.

Substances must be added to CEPA’s List of Toxic Substances (LTS) before the federal government can regulate them. Under both the existing CEPA and Bill C‑32, the federal Cabinet is responsible for adding substances to the LTS. (Not all regulations are approved by Cabinet. Sometimes Ministers have authority.)

Once a substance has been declared toxic under CEPA, Bill C‑32 requires that the Ministers of Environment and Health make an immediate recommendation to Cabinet to add the substance to the LTS. There is no deadline for adding "CEPA toxic" substances to the List of Toxic substances under the current CEPA.

13.     Enforcement

Environment Canada are interpreting the provisions in section 13 of CEPA as requiring staff to post some information about enforcement activities on the CEPA Registry.  The current plan is that information about charges laid under CEPA will be posted when they are laid.  In addition, the final disposition of enforcement activities will be posted on the Registry.

No warning letters issued under CEPA will be published on the Registry.  To do otherwise would violate the principles of natural justice because there would be no opportunity for a rebuttal by the companies and persons who receive the letters.

The impression is that some Environment Canada staff believe that the CEPA Registry must include the documents on prosecution filed in the courts.  Given all the exemptions set out for non-disclosure of Crown prosecutions documents under s. 16 of the Access to Information Act, it will be surprised if any of this material is published on the Registry.

Some concerns was expressed that confidential information may be disclosed if certain enforcement documents are made available on the Registry.  Justice lawyers should develop policies and procedures to ensure that this does not happen. Like “Environmental protection alternative measures.”

Environmental protection alternative measures, EPAMs, are another enforcement tool in the new CEPA.[64] These alternative measures are essentially negotiated settlements to criminal charges. They allow the government to move back into compliance and make them pay fines or restore the environment without proceeding into costly and lengthy court cases. Environment Canada staff say that charges will be withdrawn only once the conditions of the environmental protection alternative measures are met.  In some ways, these new orders may function like program approvals under Ontario’s EPA.  Under s. 301, all of the measures must be posted on the Registry.  However, they will not be subject to public comment or notices of objection.

14.     Monitoring and Research

Environment Canada intends to post information about monitoring, research and technology development on the Registry.


Appendix D: Types of Information Available on CEPA Registry under Notices

Appendix E: Summaries of Selected Applications for Investigation under the EBR in 1998

Appendix F: Summaries of the First Two Public Resource Lawsuits under the EBR

First Harm to Public Resource Lawsuit Under the EBR

In February 1998, Karl and Vicki Braeker, owners of a farm in Grey County, commenced legal proceedings against Max Karge, the owner of a property adjacent to their farm and the Ontario government in relation to an illegal tire dump on Karge’s land.[65]   They allege that the illegal tire dump on Karge’s property has contaminated the subsoil, groundwater, and surface water in the surrounding vicinity, including their well water. They also allege that the other two defendants (the Crown and a numbered company) bear some of the responsibility for the situation. In their Notice of Claim under the Proceedings Against the Crown Act filed on February 5, 1998, the Braekers allege that the Ontario government has been negligent in its monitoring, inspection and enforcement activities related to the dump.

The February 1998 Notice of Claim seeks damages to compensate the Braekers for loss, injury and harm caused by the government’s regulatory negligence.[66]  Moreover, the lawyer for the plaintiffs, Rick Lindgren of the Canadian Environmental Law Association, invoked Part VI of the EBR in support of his client’s action against the Crown.  In this case, an Application for Investigation had not been submitted under the EBR.  However, CELA relied on ss. 84 (6) of the EBR which states that the requirement to first request an investigation does not apply where the delay involved would result in harm or serious risk of harm to a public resource. 

The Notice of Claim states that more than 33,000 scrap tires were buried at the illegal dump in January 1991 by the former owner of the property.  The burial of the tires was supervised by MOE staff.  Over the past seven years the tires have been deteriorating and leaching contaminants into the local groundwater, which feeds the Braekers’ well at their farm.  The Notice of Claim states that MOE testing in 1994 revealed that the contaminants from the tires are toxic to fish and other aquatic life.  Moreover, in 1994 a groundwater specialist at the MOE recommended that the tires be removed.  Three years later, the MOE still was unwilling to act on the problem.  Meanwhile, further testing done in 1997 found water at the site is contaminated with chemicals in concentrations which greatly exceed levels permitted under the Provincial Water Quality Objectives (PWQOs).

In March 1998, the Minister of the Environment agreed to start removing the tires.[67]  Work began in the summer of 1998.  The tires will be recycled at a cost of $40,000 for use in an asphalt mix to be applied to roads in Grey County.  However, the Braekers did not drop their action against the province. 

In addition to section 84 of the EBR, the plaintiffs are relying upon a number of other causes of action [including the common law causes such as trespass, nuisance, strict liability and negligence as well as spill liability (under Part X of the Environmental Protection Act), and contravention of a municipal by-law]. They are seeking the following relief:

1.  A declaration that the defendants are unlawfully caused, permitted, or failed to stop the actual or imminent contamination of the plaintiffs’ properties by contaminants emanating from the illegal waste dump.

2.  An interim and permanent injunction preventing the use of the property for any use other than rural uses.

3.  A declaration or injunction requiring an environmental restoration plan to prevent, diminish or eliminate harm to a public resource caused or likely to be caused by contaminants emanating from the waste dump and to restore the site to its prior condition.

4.  Damages in excess of $1 million.

The ECO is monitoring this case and we intend to provide updates in future annual reports and future issues of EBRights, our newsletter.                         

Second Harm to Public Resource Lawsuit Under the EBR

The first real s. 84 law suit was launched in the summer of 1999.

Usually ECO staff cannot discuss applications for investigation and review because we have to treat the specific details of the case as confidential until the Commissioner reports on them.  Moreover we never release the names of applicants.

In some cases, the applicants self identify at press conferences held when they launch the applications.  In this case some of the information I am about to discuss was released to the media by the applicants,[68] so after a request by the conference chair, Doug Thomson I have agreed to discuss it in general terms.

In June 1999,  Dr. John Brennan initiated a harm to a public resource action against the Simcoe County District Health Unit (SCDHU).  In the early spring of 1999, Brennan had filed a number of applications for investigation under the EBR.  The ECO has not yet received formal notice of the lawsuit because the Commissioner is not required to post a notice of the action until it has been approved by the court.[69]  However, we expect to receive the information in the next couple of weeks.

Brennan and his co-applicant are concerned about sewage systems being used by Snow Valley Ski Resort.  In one application, they allege that the Simcoe County District Health Unit permitted sewage systems at the Snow Valley Ski Resort which created an attenuation area containing cold water fish habitat.  The applicants also allege that a consulting firm performed inaccurate calculations regarding nitrate attenuation zones which resulted in approval of a sub‑standard septic system.  The MOE refused to undertake this application.

This is the first time that an applicant for an EBR investigation has decided to launch a public resource action under s. 84 of the EBR.  It seems likely that Dr. Brennan is alleging the EBR investigation by the ministries (MOE and MNR) was inadequate.  Dr. Brennan also is relying on the public nuisance provisions (s. 103 of the EBR) as another cause of action.

1 Agenda 21 outlined numerous principles, goals and activities that governments would strive to adopt and put into practice in adopting sustainable development as a common objective. In endorsing Agenda 21, the federal government agreed to implement certain principles that would result in broad‑based public participation in decision‑making. In order to meet its commitment under Agenda 21, the federal government decided to strengthen legislation like CEPA, 1988.

2 D. Estrin and J. Swaigen (eds.), Environment on Trial: A Guide to Ontario Environmental Law and Policy, 3rd Ed. (Toronto: Emond Montgomery, 1993) at 796-97. The first edition of this book released in 1974 contained one of the first comprehensive statements on the need for an EBR in Ontario.

3 Mich. Comp. Laws Ann. 691, 1201-1207.  For discussions of the MEPA, see: J.L. Sax and R.L. Conner, “Michigan’s Environmental Protection Act of 1970: A progress Report” (1972), 70 Michigan Law Review 1003-91; J. Sax, MEPA --Ten Years Later” (November-December 1980), Michigan Environs 6; and D.K. Slone, “The Michigan Environmental Protection Act: Bringing Citizen-Initiated Environmental Suits Into the 1980s” (1984-85), vol. 12, No. 27 Ecology Law Quaterly 291.

4 P. Muldoon & R. Lindgren, The Environmental Bill of Rights: A Practical Guide (Toronto: Emond Montgomery Publications Limited, 1995) at 9-10.

5 Government of Ontario, Report of the Task Force on the Ontario Environmental Bill of Rights. (Toronto: Queen's Printer, 1992).

6 W.M. Glenn, “Ontario’s Environmental Registry: Plugging Into Your Rights,” Occupational Health and Safety Canada, November/December 1995.  Glenn describes the recent evolution of environmental decision making in the following terms:

Since the early 1970s, the dawn of the modern environmental era, Ontario’s bureaucrats have quietly plotted their strategies in the proverbial smoke-filled back rooms of the Ministry of Environment.  Almost every regulation, approval, order and prosecution was drafted in private and then sprung fully-formed on a (largely) unsuspecting public.

On occasion, a few “concerned stakeholders” — the usual faces from the big industry associations and prominent environment groups — were invited to voice their opinions and serve as a surrogate for wider public consultation.  And of course a proponent could always talk to somebody in the approvals branch, or a polluter to an enforcement officer.  In recent years, the more momentous initiatives, such as the 3Rs regulations or the industrial discharge standards, have received a greater public airing.

But it wasn’t until February, 1994, with the enactment of the province’s Environmental Bill of Rights, that every member of the Ontario public was formally invited into those (now smokeless) back rooms.

Glenn may be overstating the case.  However, the general point is well put.

7 Other Canadian environmental rights legislation includes Quebec’s Environmental Quality Act, the Yukon’s Environment Act and the Northwest Territories’ Environmental Rights Act.  The Quebec provisions, enacted in 1978, provide a limited right to go to court and do not really provide a wide range of environmental rights.  The NWT and Yukon laws are comprehensive, and some concepts from the Yukon’s law were integrated into Ontario’s EBR.  In 1992, Alberta created its Environmental Protection and Enhancement Act (EPEA) and this law provides expanded rights to go to court to obtain injunctive relief and to seek damages: see ss. 210 and 211 of the EPEA.  In addition, Manitoba has adopted new procedures guaranteeing public input into new regulations and a systematic review of existing regulations.  In late 1994 British Columbia proposed an Environmental Protection Act (which would have included an electronic registry) and in 1993 Saskatchewan proposed a Charter of Environmental Rights and Responsibilities.  Neither the BC proposal nor the Saskatchewan bill was implemented.  In addition, the federal government amended the Auditor General Act in late 1995 to create the position of a federal Commissioner for the Environment and Sustainable Development under the auspices of the Auditor General.  In the summer of 1999, the federal government also revamped the Canadian Environmental Protection Act 1) to establish new rights similar to those contained in the EBR, and 2) create a federal Environmental Registry for certain activities.

8 For a selection  of papers discussing environmental rights in Europe, see: Martin Fuhr and Gerhard Roller (eds.), Participation and Litigation Rights of Environmental Associations in Europe: Current Legal Situation and Practical Experience, Vol. 1.  (New York: Verlag, 1991). 

9 Sandy Walker, “Ontario’s Environmental Bill of Rights”, at 20-32; and Paul Stein, “Citizen Rights and Litigation in Environmental Law: An Antipodean Perspective on Environmental Rights”, at 271-280; In: Sven Deimann and Bernard Dyssli (eds.), Environmental Rights: Law, Litigation and Access to Justice (London: Cameron May, 1995).

10 Personal Communication, Sven Deimann, member of the Environmental Law International Network, May 13, 1996.

11  42 U.S.C. para. 11001.

12  42 U.S.C. para. 13101.

13  N. Zimmermann et al., “Community Right to Know: Improving Public Information About Toxic Chemicals” (1995), 5 Journal of Environmental Law and Practice 95 at 97-8.

14  Using information available from a range of sources including the US EPA’s TRI, this free service allows individuals to get information on pollution loads and health hazards for 17,000 polluting facilities in the US and covers more than 2,000 counties and every US state.  With a few clicks of a mouse, a user can find out which companies are the top polluters and the types of chemicals they release.   The system uses a health-based ranking system so that toxic chemicals are weighted and ranked in terms of severity of health hazards. (The TRI and the National Pollutant Release Inventory in Canada have been criticized by industry for failing to do this kind of weighting.)  For more information, see Environmental Defence Fund, “Giant Step For Public’s Right-to-Know About Chemical Hazards,” Press Release, April 15, 1998.  Available on the Internet at

15 On November 22, 1999 the Globe and Mail reported that a web site for EC’s Atmospheric Environment (weather) Service in the Pacific and Yukon Region had an advertisement for a free car and a link to a site called  Our understanding is that these types of links will not be included on the CEPA Registry.

16 Harvey Lerer, Director General, CEPA Office, speaking on October 27, 1999 at the CEPA Registry Workshop, Environment Canada, October 27-28, 1999, Hull, Quebec.

17 Supra, note 12.

18 There are 57 different public notice requirements in various sections of CEPA, 1999 related to a range of EC activities.  Most of these requirements specify that the official notices under CEPA, 1999 are to be provided in the Canada Gazette, Part 1.

19 All CEPA, 1999 regulations will be downloaded from the web site for the Canada Gazette by the CEPA Registry office on the Monday after they are published and then posted on the CEPA Registry.  This will be a great service because hunting through the large Canada Gazette PDF files (in Adobe Acrobat) for CEPA, 1999 regulations and notices is time consuming and sometimes frustrating.

20 EC staff have expressed that the EC will probably develop a standard text that appears with every notice in the Gazette and will indicate that people filing objections should consider the implications of the Registry when they send their objections to the Minister.

21 One reason this threshold was established is that the EBR Registry applies to decision made by 13 different ministries and relates to the administration of more that 20 different environmental laws. The CEPA Registry applies only to matters that are specific to CEPA, 1999.

22 EBR, sections 29 - 33.

23 Section  328 (1) of CEPA, 1999 provides that the Minister may make regulations

(a) prescribing the fees or a scale of fees or the manner of determining the fees to be paid for a service, the use of a facility or any right, privilege, process or approval;

(b) prescribing the persons or classes of persons by whom or on whose behalf the fees are to be paid and requiring the fees to be paid by those persons or classes of persons;

(c) exempting any person or class of persons from the requirement to pay any of those fees; and

(d) generally, in respect of any condition or any other matter in relation to the payment of fees for a service, facility, right, privilege, process or approval referred to in paragraph (a).

24 Other jurisdictions that have enacted similar legislation containing the right to request an investigation: Alberta Environmental Protection Act and Enhancement Act, section 186 (1); Nova Scotia Environment Act, section 115; Northwest Territories Environmental Rights Act, section 4 (2); and Yukon Environment Act, section 14 (1).

25 Section 18 CEPA, 1999.

26 Section 21 CEPA, 1999.

27 Section 19 CEPA, 1999.

28 Personal Communication with Nadine Levin,  CEPA Office, Ottawa, November 22, 1999.

29 Summaries of 1998 applications are provided in Appendix E.

30 Although there is no express age requirement in order to submit an application for investigation under the EBR, applicants must include an affidavit with their application pursuant to section 74 (4). Young children who understand the nature of an oath can give sworn or affirmed evidence: section 18 (1) Evidence Act, RSO 1990, c.E.23. Thus, there is an implicit but undefined age requirement in the EBR.    

31 The term “individual” is not defined in CEPA, 1999 or the Canada Interpretation Act, RSC 1985, c. I-21. Furthermore, in Rudolph Wolff & Co. v. Canada, [1990] 1 SCR 695, the Supreme Court of Canada referred to an “individual” as being a “single human being”, thereby excluding corporations.

32 The corporation must be a resident of Ontario pursuant to section 74 of the EBR. As a matter of policy, the ECO accepts up-to-date annual returns under either the Corporations Information Act, RSO 1990, c. C.39, or the Ontario Business Corporations Act, RSO 1990, c. B.16, as proof that a corporate applicant is a valid and existing corporation resident in Ontario. Extra-provincial corporations must provide additional proof that they are actually resident in Ontario. In order for a corporation to be considered resident in Ontario it must carry on its business in Ontario and have its head office or chief place of business within Ontario: Ashland Co. v. Armstrong , [1906] 11 OLR 414 at 415 (HC); Canada Life Assurance Co. v. Canadian Imperial Bank of Commerce (1979), 98 DLR (3d) 670 at 677.

33 Muldoon, P. and M. Winfield, “Submission on Bill C-32 the Canadian Environmental Protection Act.” October 1998, p. 40.

34 CEPA, 1999 section 2 (1) (e) and ( f).

35 Section 77 (1) EBR.

36 Section 77 (2)(a) EBR. It is noteworthy that, to date, ministries have not relied on the frivolous and vexatious provisions as a justification for not investigating in section 77 (2) (a). In most cases, they rely on sections 77 (2) (b) or (c). Similarly, CEPA office staff say that they have never had a frivolous or vexatious application. However, there are some cases where applications related to Fisheries Act contraventions are made under CEPA and these are forwarded to appropriate staff in DFO.

37 Section 77 (2)(b) EBR.

38 Section 77 (2)(c) EBR.

39 Section 77 (3) EBR.

40 Section 21 (2) CEPA, 1999; Section 78 (1) EBR.

41 Section 78 (3) EBR.

42 Module 7, Applications for Investigation, p. 27, Ontario’s Environmental Bill of Rights - General Information Registry, and Procedures Manual for Ministry Staff. May - June 1994.

43 See Alberta Environmental Protection Act and Enhancement Act, section 186 (1); Nova Scotia Environment Act, section 115; Northwest Territories Environmental Rights Act, section 4 (2); and Yukon Environment Act, section 14 (1).

44 Sections 22-38, CEPA, 1999.

45 See sections 82 -102 of the EBR.

46 Government of Canada, Standing Committee on Environment and Sustainable Development, It’s About Our Health! Towards Pollution Prevention – CEPA Revisited, Report of the Committee (Ottawa: House of Commons, June 1995), p. 226.

47 Section 22 (1), CEPA, 1999.

48 Section 22 (2) (b). CEPA, 1999.

49 Muldoon, P. and M. Winfield, “Submission on Bill C-32 the Canadian Environmental Protection Act.” October 1998, p. 44.

50 Section 27 (1), CEPA, 1999.

51 Section 27 (2), CEPA, 1999.

52 Section 86, EBR.

53 Section 26 (1), CEPA, 1999.

54 Ibid.

55 Section 27 (2), CEPA, 1999.

56  Section 24 (a), CEPA, 1999.

57 Ibid.

58 Section 25, CEPA, 1999.

59 Ibid.

60 Muldoon and Lindgren, pg. 154.

61 Cite R. v. Perks; R. v. Kingston, both in C.E.L.R.s

62 In June 1997, the Minister of Agriculture, Food and Rural Affairs tabled Bill 146, the Farming and Food Production Protection Act.   Bill 146 will replace the Farm Practices Protection Act, passed in 1988.  The Farm Practices Protection Act protects farmers from nuisance lawsuits for odour, noise or dust resulting from normal farm practices. Bill 146 is similar to the Farm Practices Protection Act, but it extends the nuisance categories to include flies, light, smoke and vibration, and contains other expanded protections of farmers’ rights. In addition, no municipal by-law can restrict a normal farm practice.

63  Sub-section 84(2) of the EBR states that an action may not be launched unless an Application for Investigation has been submitted and the plaintiff did not receive a response within a reasonable time or has received a response that is not reasonable.  An exception to this rule is provided by sub-section 84(6) which states that ss. 84(2) does not apply where the delay in complying (by preparing an Application) would result in significant harm to a public resource.

64 In CEPA, 1999, “environmental protection alternative measures”' means measures, other than judicial proceedings, that are used to deal with a person who is alleged to have committed an offence under that Act.

65  This case is directly related to a series of Environmental Appeal Board decisions on the Karge case: see Re: Karge (1996), 21 CELR (N.S.) 5 (Ont. Env. Appeal Board).  In these two decisions, the Ontario's Environmental Appeal Board ruled on the liability of an innocent lender.  Karge, a farmer living on a property adjacent to Braeker, sold his farm to a young couple and took back a second mortgage. The purchasers did not pay the mortgage, but they did devastate the farm. They damaged the house, cut down the woodlot, sold off buildings, and illegally brought in mounds of tires. A neighbour alerted the MOE when there were 15,000 tires. The purchasers brought in another 15-20,000 tires during the time that the MOE visited the site and wrote letters.  The MOE then allowed the purchaser to bury the tires on the farm, without notice to the mortgagee and over the neighbours' objections. This appears to have raised the cost of removing the tires from $30,000 to more than $140,000, more than the total value of the farm. Shortly thereafter, the purchaser disappeared. To protect what was left of the farm, the farmer incorporated a company to buy certain rights from the first mortgage. Neither he nor the company formally took possession of the farm, but he did (to keep the house insured) put tenants on the property, at a net loss.

The MOE prosecuted the purchaser; a large fine was imposed, but not collected. The MOE then ordered the farmer to dig up and dispose of the tires.  Karge appealed.  In its decision, the Board agreed that the farmer had "charge and control" of the farm, because he had selected tenants, paid expenses and collected rent. However, he was innocent, especially in contrast to the MOE. The EAB therefore made a tentative ruling that the farmer should not be further victimised. He does have to pay for removal of the tires from the site, but only out of any net profits he may make from the land, after recovering his mortgage. He would not have to pay to dig the tires up and clean them.

The MOE tried to persuade the EAB to change this ruling.  The Appeal Board agreed to consider changing its ruling if the MOE would clarify its policies regarding the open-ended liability imposed on mortgagees for the payment of clean-up costs.  Supplementary reasons were issued in May 1997: see  Re: Karge (1997), 23 CELR (N.S.) 299 (Ont. Env. Appeal Board)  In its supplementary reasons, the EAB found that the MOE must act fairly when making these types of orders.  The mortgagee, Mr. Karge, is now appealing the EAB decision to the Divisional Court in an attempt to have it overturned.

66 Rick Lindgren, CELA, Letter to the Dianne Dougall, Director, Crown Law Office - Civil, Ministry of Attorney General, January 30, 1998.

67 Roberta Avery, “Sterling Agrees to have buried tires removed,” Toronto Star, March 17, 1998, p. A8.

See R. Ferguson, “Pop Probe tests Environmental Bill of Rights” CP Wire (14 March 1995); D. Draper, “Refillable Pop Probe Begins” St. Catherines Standard (15 March 1995) 15; and A. Tobin, “Ontarians Flex Environmental Muscle” in The [Halifax] Chronicle Herald (2 March, 1995).

68  Section 87 of the EBR requires the plaintiff in a harm to a public resource court action to bring a motion to the court for directions relating to how notice of the action should be given.  Sub-section 87(2) states that the ECO shall promptly place the notice on the Registry after it is forwarded to the ECO by the plaintiffs and sub-section 87(1) indicates that the court may provide other forms of notice.