Guidelines for the use of information gathering authorities: chapter 4


4.1 Procedure for Issuing a Notice

The Act requires the Minister, under subsection 46(1), to publish all notices requesting information in the Canada Gazette. In accordance with subsection 13(1), the Minister will also make notices accessible through the CEPA Environmental Registry. If deemed appropriate, notices may also be issued through other appropriate means such as local or national newspapers.

As stated in subsection 46(5), once a notice is issued, every person to whom the notice is directed must comply with the notice.

4.2 Contents of a Notice

In addition to identifying the information required, its purpose, the person to whom a notice is directed and where responses and inquiries concerning the notice are to be addressed, notices requesting information issued under subsection 46(1) must also specify, in accordance with subsection 46(1),
46(4), 46(7) and section 49, the following information:

  • the period during which the notice is in force which may not exceed 3 years;
  • the date or dates within which the person to whom the notice is directed must comply with the notice;
  • whether or not the Minister intends to publish the information and, if so, whether in whole or in part; and,
  • the manner in which the information is to be provided.

In accordance with subsection 46(8), notices may also indicate the period during which, and the location where, the person to whom a notice is directed shall keep copies of the required information, together with any calculations, measurements and other data on which the information is based. The period may not exceed three years from the date the information is required to be submitted to the Minister.

4.3 Extension of Time

subsection 46(6) allows the Minister to extend the time frames set in notices regarding information requested under subsection 46(1), in order to accommodate situations where a person needs additional time to submit the required data.

4.4 Intent to Publish

As required under section 49, a notice published under subsection 46(1) will indicate whether or not the Minister intends to publish the information requested and, if so, whether in whole or in part.

4.5 Request for Confidentiality

Upon receipt of a notice requesting information which indicates that the Minister intends to publish the information, a person may submit, pursuant to section 51, along with the required information, a written request that the information be treated as confidential based on any of the reasons identified in section 52 as follows:

  • the information constitutes a trade secret;
  • the disclosure of the information would likely cause material financial loss to, or prejudice to the competitive position of , the person providing the information or on whose behalf it is provided; or,
  • the disclosure of the information would likely interfere with contractual or other negotiations being conducted by the person providing the information or on whose behalf it is provided.

Upon reviewing the request for confidentiality, the Minister may, pursuant to subsection 53(1), require additional justification for the request from the person in question who must respond, in writing, within 20 days. subsection 53(2) allows the Minister to extend the response period up to an additional 10 days if necessary.

In determining whether to accept or reject the request for confidentiality, the Minister will consider whether the reasons given are well-founded. Despite being well-founded, the Minister has authority, under subsection 53(3), to reject the request if:

  1. the disclosure is in the interest of the protection of the environment, public health or public safety; and
  2. the public interest in the disclosure outweighs in importance
    1. any material financial loss or harm to the competitive position of the person, and
    2. any damage to the privacy, reputation or human dignity of any individual that may result from the disclosure.

As stipulated in subsection 53(4), if the Minister accepts the request for confidentiality, the information will not be published.

In accordance with subsection 53(5), if the Minister rejects the request, the Minister will advise the person in question of the intent to publish the information and of the person's right to ask the Federal Court to review the matter.

4.6 Failure to Comply

The obligation to comply with the requirements of the notice is found in subsection 46(5). Anyone who does not comply with a notice published under subsection 46(1) contravenes subsection 272(1) of the Act. On conviction, the offender shall be sentenced to imprisonment or a fine or both. In addition, anyone who provides false or misleading information, results or samples; or who files documents containing false or misleading information, contravenes subsection 273(1) of the Act. The possible sentences in both of these cases are also imprisonment, a fine or both. The Act sets out different maximum sentences based on whether the offence was committed knowingly or by negligence. Furthermore, section 276 specifies that where an offence is committed over several days, it may be considered a separate offence for each day the offence is committed or continues.

Since the authority to issue notices is provided under CEPA '99, when verifying compliance with a notice issued under section 46, enforcement officers will abide by the Compliance and Enforcement Policy for the Canadian Environmental Protection Act, 1999, implemented under the Act, which sets out the range of possible responses to violations.

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