| No bar to
proceedings
|
(2) The issuance of or compliance with an
order in respect of a person's alleged
contravention of this Act or the regulations is
not a bar to any proceedings against the person
under this or any other Act in relation to the
alleged contravention by that person.
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| Intervention
by
enforcement
officer
|
239. (1) Where any person fails to take any
measures specified in an order, an
enforcement officer may take the measures or
cause them to be taken.
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| Access to
property
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(2) An enforcement officer or other person
authorized or required to take measures under
subsection (1) may enter and have access to
any place or property and may do any
reasonable things that may be necessary in the
circumstances.
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| Personal
liability
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(3) Any person, other than a person
described in subsection 235(3), who provides
assistance or advice in taking the measures
specified in an order or who takes any
measures authorized under subsection (1) is
not personally liable either civilly or
criminally in respect of any act or omission in
the course of providing assistance or advice or
taking any measures under that subsection
unless it is established that the person acted in
bad faith.
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| Recovery of
reasonable
costs and
expenses by
Her Majesty
|
240. (1) Her Majesty in right of Canada may
recover the costs and expenses of and
incidental to taking any measures under
subsection 239(1) from
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(a) any person referred to in paragraph
235(3)(a); and
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(b) any person referred to in paragraph
235(3)(b) to the extent of the person's
negligence in causing or contributing to the
alleged contravention.
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| Reasonably
incurred
|
(2) The costs and expenses referred to in
subsection (1) shall only be recovered to the
extent that they can be established to have
been reasonably incurred in the
circumstances.
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| Liability
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(3) Subject to subsection (4), the persons
referred to in subsection (1) are jointly and
severally liable or solidarily liable for the
costs and expenses referred to in that
subsection.
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| Limitation
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(4) A person referred to in paragraph
235(3)(b) shall not be held liable under
subsection (3) to an extent greater than the
extent of their negligence in causing or
contributing to the alleged contravention.
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| Procedure
|
(5) A claim under this section may be sued
for and recovered by Her Majesty in right of
Canada with costs in proceedings brought or
taken therefor in the name of Her Majesty in
right of Canada in any court of competent
jurisdiction.
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| Recourse or
indemnity
|
(6) This section does not limit or restrict any
right of recourse or indemnity that a person
may have against any other person.
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| Limitation
period
|
(7) Where events giving rise to a claim
under this section occur, no proceedings in
respect of the claim may be instituted after
five years from the date on which the events
occur or become evident to the Minister,
whichever is later.
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| Minister's
certificate
|
(8) A document purporting to have been
issued by the Minister certifying the day on
which the events giving rise to a claim under
this section came to the knowledge of the
Minister shall be received in evidence and, in
the absence of any evidence to the contrary,
the document shall be considered as proof of
that fact without proof of the signature or of
the official character of the person appearing
to have signed the document and without
further proof.
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| Variation or
cancellation
of order
|
241. (1) At any time before a notice
requesting a review of an order is received by
the Chief Review Officer, the enforcement
officer may, in accordance with section 236,
after giving reasonable notice,
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(a) amend or suspend a term or condition of
the order, or add a term or condition to, or
delete a term or condition from, the order;
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(c) correct a clerical error in the order; or
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(d) extend the duration of the order for a
period of not more than 180 days less the
number of days that have passed since the
day on which the order was received by the
person who is subject to the order.
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| Notice of
intent
|
(2) Except in exigent circumstances, the
enforcement officer shall, wherever
practicable, before exercising a power under
paragraph (1)(a) or (d),
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(a) provide an oral or a written notice of the
intent of the enforcement officer to do so to
every person who will be subject to the
order; and
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(b) allow a reasonable opportunity in the
circumstances for the person to make oral
representations.
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| Contents of
notice of
intent
|
(3) A notice of intent to exercise a power
under paragraph (1)(a) shall include
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(a) a statement of the purpose of the notice;
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(b) a reference to the statutory authority
under which the power will be exercised;
and
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(c) a statement that the party notified may
make oral representations to the
enforcement officer within the period stated
in the notice.
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| Limitations on
exercise of
enforcement
officer's
powers
|
(4) An enforcement officer shall not
exercise any of the powers referred to in
paragraph (1)(a), (b) or (d) if doing so would
result in
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(a) impairment or serious risk of
impairment of the quality of the
environment for any use that can be made of
it;
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(b) injury or damage or serious risk of injury
or damage to any property or to any plant or
animal life; or
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(c) danger to the health or safety of any
person.
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| Regulations
|
242. The Minister may make regulations
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(a) prescribing the form of reporting to
enforcement officers under subparagraph
235(4)(f)(ii) and specifying the information
required to be contained in or to accompany
the report; and
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(b) of either particular or general
application, respecting representations
made to enforcement officers under
subsection 237(1) or 241(2).
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| Roster of
review
officers
|
243. The Minister shall establish and
maintain a roster of review officers.
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| Chief Review
Officer
|
244. (1) The Minister shall appoint one of
the review officers as the Chief Review
Officer to perform the functions of the Chief
Review Officer as and when required.
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| Functions of
Chief Review
Officer
|
(2) The Chief Review Officer shall
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(a) perform administrative functions
related to the work of review officers,
including assigning review officers to
conduct review hearings; and
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(b) in certain cases, conduct review
hearings.
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| Absence, etc.,
of Chief
Review
Officer
|
(3) If the Chief Review Officer is absent or
unable to act or if the office is vacant, any
other review officer that is designated by the
Minister shall perform the functions of the
Chief Review Officer.
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| Term of
members
|
245. (1) Review officers shall be appointed
to hold office during good behaviour for a
term of not more than three years, but may be
removed by the Minister at any time for cause.
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| Re-appointme
nt
|
(2) A review officer may be re-appointed.
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| Publication in
Canada
Gazette
|
246. The Minister shall publish the roster of
review officers in the Canada Gazette.
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| Knowledge
|
247. A person is not eligible to be appointed
as a review officer unless the person is
knowledgeable about the Canadian
environment, environmental and human
health, administrative law or traditional
aboriginal ecological knowledge.
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| Other
employment
|
248. Review officers shall not accept or
hold any office or employment inconsistent
with their functions under this Act.
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| Remuneration
and fees
|
249. (1) The Chief Review Officer shall be
paid such remuneration as is fixed by the
Governor in Council, and each other review
officer is entitled to be paid such fees for that
other review officer's services as are fixed by
the Governor in Council.
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| Expenses
|
(2) Review officers are entitled to be paid
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(a) reasonable travel and other expenses
incurred by them in the course of their
duties under this Act while absent from
their ordinary place of work; and
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(b) any other reasonable expenses incurred
by them in the course of their duties under
this Act.
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| Acting after
expiry of term
|
250. If a person who is engaged as a review
officer in respect of any matter ceases to be a
review officer before rendering a decision in
respect of the matter, the person may, with the
authorization of the Chief Review Officer,
continue, during a period of not more than 180
days, to act as a review officer in respect of the
matter.
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| Secretary and
other staff
|
251. The Minister may, at the request of the
Chief Review Officer, make available to
review officers any staff and other assistance
that are necessary for the proper conduct of the
business of review officers.
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| Government
services and
facilities
|
252. In performing their functions a review
officer shall, where appropriate, make use of
the services and facilities of departments,
boards and agencies of the Government of
Canada.
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| Immunity
|
253. No criminal or civil proceedings lie
against a review officer for anything done or
omitted to be done in good faith in performing
any functions of a review officer under this
Act.
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| Crown not
relieved
|
254. Section 253 does not, by reason of
section 10 of the Crown Liability and
Proceedings Act, relieve the Crown of
liability in respect of a tort or extracontractual
civil liability to which the Crown would
otherwise be subject.
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| Liability
|
255. Review officers are servants of Her
Majesty in right of Canada for the purposes of
the law of tort or of extracontractual civil
liability.
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| Request for
review
|
256. (1) Any person to whom an order is
directed may, by notice in writing given to the
Chief Review Officer within 30 days after
receipt by the person of a copy of the written
order or after the oral order is given, make a
request to the Chief Review Officer for a
review of the order.
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| Extension of
period for
request
|
(2) The Chief Review Officer may extend
the period within which a request for a review
may be made where, in the Chief Review
Officer's opinion, it is in the public interest to
do so.
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| Review
|
257. On receipt of a notice under subsection
256(1), the Chief Review Officer shall
conduct a review of the order, including a
hearing, or cause a review and hearing of the
order to be conducted by a review officer
assigned by the Chief Review Officer.
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| No automatic
stay on appeal
|
258. (1) Subject to subsection (2), the
request for a review by a review officer does
not suspend the operation of an order.
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| Suspension on
application
|
(2) A review officer may, on application
made by a person subject to the order before
the beginning of the hearing, suspend the
operation of the order if the review officer
considers it appropriate in the circumstances
and, in that case, impose on all the persons
subject to the order conditions that are
reasonable in the circumstances and
consistent with the protection of the
environment and public safety.
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| Suspension of
180 day
period
|
(3) Where the operation of an order is
suspended under subsection (2), the period for
which the order is issued is suspended until the
review is completed.
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| Right to
appear
|
259. All parties to the review, including the
Minister, may appear in person or may be
represented by counsel or by an agent.
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| Powers
|
260. (1) A review officer may summon any
person to appear as a witness before the review
officer and may order the witness to
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(a) give evidence orally or in writing; and
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(b) produce any documents and things that
the review officer considers necessary or
desirable for the purpose of performing any
of the review officer's functions.
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| Fees for
witnesses
|
(2) A witness who is served with a summons
under subsection (1) is entitled to receive the
fees and allowances to which persons who are
summoned to appear as witnesses before the
Federal Court are entitled.
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| Enforcement
of summonses
and orders
|
261. Any summons to a witness issued or
order made under subsection 260(1) by a
review officer may be made a summons to a
witness or an order of the Federal Court or of
the superior court of a province and is
enforceable in the same manner as a summons
to a witness or an order of that court.
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| Procedure
|
262. To make a summons issued or an order
made under subsection 260(1) by a review
officer a summons or an order of the Federal
Court or of the superior court of a province, the
usual practice and procedure of the court in
such matters may be followed, or a certified
copy of the summons or order may be filed
with the registrar of the court and the
summons or order thereupon becomes a
summons or an order of the court.
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| Powers of
review officer
|
263. The review officer, after reviewing the
order and after giving all persons who are
subject to the order, and the Minister,
reasonable notice orally or in writing of a
hearing and allowing a reasonable opportunity
in the circumstances for those persons and the
Minister to make oral representations, may
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(a) confirm or cancel the order;
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(b) amend or suspend a term or condition of
the order, or add a term or condition to, or
delete a term or condition from, the order;
or
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(c) extend the duration of the order for a
period of not more than 180 days less the
number of days that have passed since the
day on which the order was received by the
person who is subject to the order, not
counting the days during which the order
was suspended under subsection 258(3).
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| Variation or
cancellation
of review
officer's
decision
|
264. At any time before a notice of appeal
to the Federal Court is filed in relation to an
order, the review officer may, on the review
officer's own motion, after giving reasonable
notice orally or in writing and allowing a
reasonable opportunity in the circumstances
for the person subject to the order to make oral
representations, modify the decision of the
review officer in respect of the order and
exercise any of the powers of the review
officer under section 263 in respect of the
order.
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| Limitations on
exercise of
review
officer's
powers
|
265. A review officer shall not exercise any
of the powers referred to in section 263 if
doing so would result in
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(a) impairment or serious risk of
impairment of the quality of the
environment for any use that can be made of
it;
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(b) injury or damage or serious risk of injury
or damage to any property or to any plant or
animal life; or
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(c) danger to the health or safety of any
person.
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| Decision of
review officer
|
266. The review officer shall, within five
days after the completion of the review of an
order, render a decision and give written
reasons for doing so within 10 days after the
completion of the review, and provide a copy
of the decision and those reasons to all persons
to whom the order was directed and to the
Minister.
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| Rules
|
267. The Chief Review Officer may make
rules
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(a) governing the practice and procedure in
respect of the review of orders;
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(b) generally, for the work of review
officers; and
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(c) for preventing trade secrets and
information described in section 20 of the
Access to Information Act from being
disclosed or made public as a result of their
being used as evidence before a review
officer, including rules providing for
hearings or parts of hearings to be held in
public or private.
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| Orders and
notices
|
268. Every order or varied order under
section 263 or 264 or a copy of one and every
notice under those sections shall be provided
to the Minister and every person to whom the
original order is directed and, where
applicable, all other persons to whom the
amended order is directed, in accordance with
Part 11.
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