Environmental protection alternative measures agreement: Sonaca Montréal Inc.

The Attorney General of Canada and Sonaca Montréal Inc.

Whereas Sonaca Montréal Inc. has been charged with alleged violations under the Canadian Environmental Protection Act, 1999 (hereinafter “CEPA, 1999”);

Whereas the prosecution for the offences is not barred at law, and in the opinion of the Attorney General of Canada sufficient evidence to proceed with the prosecution of the offences exists;

Whereas the Attorney General of Canada is satisfied that Environmental Protection Alternative Measures (hereinafter “measures”) would not be inconsistent with the purposes of the Act in this case;

Whereas Sonaca Montréal Inc. does not deny its participation or involvement in the commission of the alleged offences and accepts responsibility for the above acts;

Whereas Sonaca Montréal Inc. has had the opportunity to instruct counsel and is represented in this environmental protection alternative measures agreement;

Whereas the Attorney General of Canada has consulted with the Minister of the Environment and has considered the surrounding circumstances, the nature of the alleged offences and all other factors to be considered, as prescribed by CEPA, 1999;

Whereas both parties agree that an environmental protection alternative measures agreement is the most appropriate means of resolving all matters pertaining to this case;

Now therefore, the Attorney General of Canada and Sonaca Montréal Inc. enter into an environmental protection alternative measures agreement with the following provisions.

Purpose

The express purpose of this agreement is to further the goals and objectives of CEPA, 1999 and its regulations.

Facts

Sonaca Montréal Inc. has been charged with the following offences:

Count 1

Between January 5, 2012, and May 20, 2013, failed to control its release of hexavalent chromium compounds in accordance with s. 3(1)(a) of the Chromium Electroplating, Chromium Anodizing and Reverse Etching Regulations (SOR/2009-162), thereby committing an offence punishable on summary conviction contrary to ss. 272(1)(h) and 272(3)(b)(i) of the Canadian Environmental Protection Act, 1999.

Count 2

Between January 5, 2012, and September 23, 2012, failed to perform a release test in accordance with s. 5(1)(a) of the Chromium Electroplating, Chromium Anodizing and Reverse Etching Regulations (SOR/2009-162), thereby committing an offence punishable on summary conviction contrary to ss. 272.1(1)(f) and 272.1(2)(b)(i) of the Canadian Environmental Protection Act, 1999.

Count 3

On or around March 9, 2013, failed to submit a notice to the Minister indicating, for each tank, the method used to control the release of hexavalent chromium compounds in accordance with s. 3(1)(b) of the Chromium Electroplating, Chromium Anodizing and Reverse Etching Regulations (SOR/2009-162), thereby committing an offence punishable on summary conviction contrary to ss. 272.1(1)(f) and 272.1(2)(b)(i) of the Canadian Environmental Protection Act, 1999.

Charges were laid in Saint-Jérôme, Province of Quebec, on April 17, 2015. Sonaca Montréal Inc. does not deny its participation or involvement in the commission of the alleged offences and accepts responsibility for the above acts.

Measures

Sonaca Montréal Inc. will make a twenty-five thousand dollar ($25,000) contribution to the Receiver General for Canada, in trust, for the Environmental Damages Fund, administered by the Regional Director General of Environment Canada, Quebec Region, upon signature of this agreement. Environment Canada must be provided with proof of payment of the contribution.

Within four months after the agreement is signed, Sonaca Montréal Inc. will provide Environment Canada with a report on the devices put in place to ensure compliance with federal environmental acts and regulations.

Every three months, Sonaca Montréal Inc. will send a report on the inspection and maintenance of emission control devices in accordance with s. 6 of the Chromium Electroplating, Chromium Anodizing and Reverse Etching Regulations, as of the first inspection following the agreement for up to a year following the date of the agreement.

In the 12 months following the date of the agreement, Sonaca Montréal Inc. must provide its directors and executives with training on the penal and criminal consequences of violations of environmental protection legislation. The company must provide Environment Canada with proof that it has given the training. Any training that meets the criteria of this section given to directors and executives before the date of the agreement will be deemed to be given in the 12-month period following the agreement.

Compliance schedule

Sonaca Montréal Inc. agrees to comply with the measures and the terms and conditions of this agreement within the time prescribed for each measure set forth above.

Verifying compliance with this agreement

The parties agree that Environment Canada will supervise and monitor compliance with this agreement, pursuant to the Canadian Environmental Protection Act, 1999.

Inspection and other enforcement activities

Nothing in this agreement bars CEPA, 1999 enforcement officers and analysts from conducting inspections or investigations which they are legally authorized to conduct.

Confidential information

All information contained in and obtained by virtue of this agreement is subject to the provisions of the Access to Information Act and CEPA, 1999.

Trade secrets, financial, commercial, scientific or technical information that is and is treated as confidential information, information the disclosure of which could reasonably be expected to result in material financial loss or gain or could reasonably be expected to prejudice the competitive position of any person, or information which could reasonably be expected to interfere with contractual or other negotiations of any person, will remain confidential and not be disclosed, except as provided for in the Access to Information Act and CEPA, 1999.

This agreement shall be filed with the Court, as part of the Court record of the proceedings to which the public has access, in accordance with the provisions of s. 300 of CEPA, 1999.

Notwithstanding the above, reports relating to the administration of or compliance with this agreement will be accessible to the public in accordance with s. 301 of CEPA, 1999. The final report will be made available to the public and to the Court in accordance with ss. 300(2) and 301. Interim reports will not be made available to the public, under ss. 300(2) and 301.

Reservation of rights

The Attorney General of Canada reserves the right to seek injunctive relief, or any other appropriate remedy, in the event of any violation of the requirements of this agreement.

Penalties

Failure on the part of Sonaca Montréal Inc. to comply with the provisions of this agreement is an offence under s. 272(1)(e) of CEPA, 1999. Sonaca Montréal Inc. also acknowledges that any false or misleading representations made during the negotiation of the agreement is an offence under s. 272(1)(e) of CEPA, 1999. Sonaca Montréal Inc. may also be prosecuted on the original offences because s. 296(5) provides that the use of environmental protection alternative measures in respect of a person who is alleged to have committed an offence is not a bar to any proceedings against the person under CEPA, 1999.

In the event that Sonaca Montréal Inc. fails to comply with the stipulations of this agreement, Sonaca Montréal Inc. shall be liable on conviction to the penalties provided for under CEPA, 1999.

Force majeure

Force majeure is an event resulting from circumstances beyond the control of Sonaca Montréal Inc. that causes or may cause a delay in compliance with any provision of this agreement. If a force majeure event occurs, Sonaca Montréal Inc. shall notify the Attorney General of Canada in writing as soon as possible, but in any event within seven days of when Sonaca Montréal Inc. first knew of the event or should have known of the event by the exercise of due diligence.

The notice shall invoke the force majeure provisions of this agreement and describe the length of time during which Sonaca Montréal Inc. will not be able to comply with this agreement. If a force majeure event occurs, Sonaca Montréal Inc. shall make an application to vary the agreement, in accordance with s. 303 of CEPA, 1999. The application shall be made by Sonaca Montréal Inc. to the Attorney General of Canada, and Sonaca Montréal Inc. shall send a copy of the application to Environment Canada.

Intent and interpretation of the agreement

This agreement constitutes the entire agreement between the parties. The parties acknowledge that there are no representations between the parties other than those expressly set out in this agreement. This agreement supersedes all previous negotiations, arrangements, letters of intent, offers, proposals, representations and information conveyed, whether oral or in writing, between the parties or their authorized representatives.

Severability

The provisions of this agreement shall be severable should for any reason Sonaca Montréal Inc. be lawfully excused from performing any of the terms of this agreement. For greater certainty, the remaining provisions of this agreement shall remain in full force and effect until the completion of this agreement.

Time of the essence

Time is of the essence in this agreement.

Governing law

This agreement shall be governed by the laws of Canada, including the provisions of CEPA, 1999 and its corresponding regulations, and any definitions that apply to this agreement are those provided for in CEPA, 1999 and its corresponding regulations, and those also specified in this agreement.

Warranty

Sonaca Montréal Inc. warrants that its obligations under this agreement shall be performed by persons who are competent and qualified and who have the appropriate knowledge and skill.

Certification

Sonaca Montréal Inc. certifies that on the date of the coming into force of this agreement, there is no specific direction in existence requiring it to undertake any activity or refrain from the taking of any activity constituting the measures negotiated in this agreement by any federal, provincial, territorial or municipal law, or by any court order.

Sonaca Montréal Inc. also certifies that the funds used to carry out the alternative measures do not come from government financial grants. Finally, Sonaca Montréal Inc. certifies that the person whose signature appears below is an agent of the company and is duly authorized to sign this agreement and bind the company.

Variation of agreement

Any application to vary this agreement shall be made in accordance with s. 303 of CEPA, 1999. The application shall be made to the Attorney General of Canada, and Sonaca Montréal Inc. shall send a copy of the application to Environment Canada.

Termination of this agreement

This agreement shall terminate when the terms and conditions have been fulfilled to the satisfaction of the Attorney General of Canada, or otherwise in accordance with the applicable provisions of CEPA, 1999.

Assignment

This agreement shall not be assigned without the written consent of the Attorney General of Canada.

Notice

Whenever in this agreement it is required or permitted that a notice or demand be given or served by either party to or on the other party, such notice or demand may be in writing and will be validly given or sufficiently communicated if forwarded by registered mail, priority post mail or facsimile.

The addresses for delivery are as follows:

To: Sonaca Montréal Inc.
13075 Brault Street
Mirabel QC  J7J 1P3

To: Agent of the Attorney General of Canada
Philippe Viau-Dupuis
Prosecutor, on behalf of the Director of Public Prosecutions of Canada
Public Prosecution Service of Canada
Guy Favreau Complex
200 René-Lévesque Blvd West
East Tower 9th Floor
Montreal QC  h3Z 1X4
Telephone: 514-283-6884
Fax: 514-496-7372

To: Environment Canada
Enforcement Director, Environment Canada
105 McGill Street 3rd Floor
Montreal QC  h3Y 2E7
Telephone: 514-283-0625
Fax: 514-496-2087

Waiver

No condoning, excusing or overlooking by any of the parties of any default by another party at any time or times in performing or observing any of the parties’ respective covenants will operate as a waiver of or otherwise affect the rights of the parties in respect of any continuing or subsequent default. No waiver of these rights will be inferred from anything done or omitted by the parties except by a variation of this agreement in accordance with s. 303 of CEPA, 1999.

In witness whereof the parties have executed this agreement on this 31st day of August 2015.

__________________________________________
Representative of Sonaca Montréal Inc
Sylvain Bédard
Chief Executive Officer