A Review ' Inspection vs. Investigation?

• Published date: 25 May 2020
• Author: Ms Paula Lombardi
• Subject Matter: Environment, Compliance, Environmental Law
• Law Firm: Siskinds LLP

We have written numerous blogs over the years on the difference between inspections vs. investigations. This blog is a reminder on the general distinction between an inspection as opposed to an investigation and the authority of Provincial Officers ("PO") and outlines the aspects of a strict liability offence and the available defences. This blog is by no means a comprehensive review and provides a general overview of these important concepts.

We are often asked what is the difference between the environmental term "inspection" versus "investigation"? These two terms are commonly used by environmental governing, regulating, authorities.

When an environmental "inspection" is conducted by the Ministry of Environment, Conservation and Parks ("MECP") it is to ensure compliance, or confirm that compliance with the applicable statute, is being maintained. Generally, an inspection report is provided following the inspection that can include numerous action items.

The environmental principle of inspection is an exercise in due diligence by each side, for example, the individual/business and the governing authority, in terms of upholding compliance and seeking opportunities to improve or implement practices that preserve compliance and mitigate risk factors.

In Ontario, section 156 of the Environmental Protection Act, RSO 1990, c. E.19 ("EPA") sets out the broad powers and authority of Provincial Officers ("PO") to conduct an inspection without a warrant or court order, at any reasonable time.

It is important to be familiar with sections 156(1) and (2) of the EPA, as it distinguishes the PO entry provisions are under the EPA. These sections also set out what a PO may inspect beyond the examination of records including but not limited to the taking of samples, performing excavations and conducting of tests. Being familiar with the scope of the PO's authority when entering your premise for inspection is important and also set out in section 156 of the EPA.

However, if an environmental "investigation is requested", it is generally to investigate an offence that has or may have occurred or to gather evidence to support a future prosecution. Section 184 of the EPA confirms that it is an offence to refuse to comply or interfere with a PO investigation or any employee in or agent of the MECP when acting under the provisions of the EPA.

Section 184 of the EPA however also applies to inspection powers, such as providing and furnishing false, misleading information or data...