Policy framework to implement the Environmental Violations Administrative Monetary Penalties Act: chapter 5
5.0 Administrative Monetary Penalty issuance
According to ECCC’s Compliance and Enforcement Policies, if an officer is able to substantiate that a violation took place and there is sufficient evidence to proceed, he or she will take measures consistent with the criteria (see section 3.2) and will choose the appropriate enforcement measure among the various measures available.
Officers may issue a Notice of Violation to a person when they have reasonable grounds to believe that the person has committed a violation. A Notice of Violation will be served on the violator as soon as possible within the two-year limitation period established by EVAMPA. Section 9 of the AMPs Regulations provides additional details on the requirements for service of a Notice of Violation.
Will the Notice of Violation clearly identify the facts of the violation, to assist the alleged violator in understanding why they are receiving it?
Yes. As required by section 10 of EVAMPA, the Notice of Violation will set out the relevant facts of the violation:
- the name of the person, ship or vessel believed to have committed the violation;
- the relevant facts surrounding the violation;
- the amount of the penalty (including identification of the aggravating factors that were applied);
- information explaining the right to request a review and the period within which that right must be exercised;
- information explaining how to pay the penalty; and
- theconsequences of not paying (an alleged violator who does not pay the AMP or request a review will be considered to have committed the violation and is liable for the AMP).
Why is there a two-year limitation period for issuing an AMP?
Section 14 of EVAMPA states that no Notice of Violation in respect of a violation may be issued more than two years after the day on which the subject matter of the violation arises.
This time period allows an officer to review the facts of the case and determine the appropriate enforcement measure.
Will some form of notice be provided prior to issuing an AMP?
No, a notice is not required prior to issuing an AMP, as it would reduce the efficiency of the AMP regime by limiting the ability to issue an AMP “on the spot.”
Can an AMP be issued “on the spot”?
Yes. Officers may issue AMP “on the spot” where appropriate. The aim is to secure quick compliance and have an efficient AMP regime; AMPs are designed to be simple to determine and calculate, so that issuance of AMPs “on the spot” is feasible.
Will the information about an AMP be made public?
Every year, ECCC publishes annual reports that contain statistics about the number of enforcement measures taken for its various acts and regulations. Statistics about the number of AMPs will be part of those reports. Under this AMP regime, ECCC does not plan to publish or report information relating to the identity or type of violators who are served with Notices of Violations.
5.1 Oversight of Administrative Monetary Penalties
In certain situations, oversight will take place before an AMP is issued by an officer.
Examples of situations in which AMPs will be reviewed by the officer’s management prior to being issued include:
- Any matter involving a federal or provincial government or a municipality
- Any matter involving an Indigenous government, Band, Band council or band official (chief, councillor, etc.)
- Any AMP to be issued over $2,500 for individuals and over $10,000 for other persons, ships or vessels
- Any matter involving multiple violations, multiple recipients and/or multiple days of continuing violation
- Any AMP to be issued six months or more after the violation occurred
This approach to oversight will allow AMPs to be issued efficiently while providing fairness and consistency of application in more complex situations.
5.2 The review process
A person, ship or vessel that is served with a Notice of Violation may, within 30 days after the day on which the Notice of Violation is served, or within any longer period that the Chief Review Officer allows, make a request to the Chief Review Officer for a review of the penalty or the facts of the alleged violation, or both. The review process is set out in sections 15 to 24 of EVAMPA.
The Chief Review Officer is an adjudicator, appointed by the Minister of Environment and Climate Change (Minister) but independent from ECCC, who conducts reviews requested by an applicant. A request for review by the applicantmust be done bycorresponding with the Chief Review Officer.
On receiving a request for review of an AMP, the Chief Review Officer shall conduct the review or cause the review to be conducted by a review officer or by a panel of three review officers. The review officer or panel conducting the review may summon any person to give evidence (orally or in writing) and produce any documents and things the review officer or panel considers necessary for the purpose of the review.
The person, ship or vessel who requests the review may appear in person or may be represented by counsel or any other representative.
After giving the person, ship or vessel who requested the review and the Minister reasonable notice orally or in writing of a hearing and allowing a reasonable opportunity in the circumstances for the person, ship or vessel and the Minister to make oral representations, the review officer or panel conducting the review shall determine whether the person, ship or vessel committed a violation. If the review officer or panel determines that the penalty was not determined in accordance with the AMPs Regulations, then the review officer or panel shall correct the amount of the penalty.
The review officer or panel shall render its determination in writing within 30 days after the day on which the review is completed and, without delay, provide the Minister and the person, ship or vessel to whom the determination relates with a copy of the determination and reasons.
If the review officer or panel determines that the person, ship or vessel has committed a violation, the person, ship or vessel is liable for the amount of the penalty as set out in the decision.
A determination made by the review officer or panel under section 21 of EVAMPA is final and binding and is not subject to appeal or to review by any court, except for judicial review under the Federal Courts Act.
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