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January 01, 2009

Divisional Court Curtails MOE Investigation Power

On January 7, 2009, the Divisional Court of the Ontario Superior Court of Justice released a decision (Branch) that will significantly affect how Ontario’s Ministry of the Environment (MOE) conducts investigations, and could have major implications for MOE investigations and evidentiary rulings in MOE prosecution trials already under way.

The MOE had obtained a court order pursuant to the Environmental Protection Act (EPA) ordering Mr. Branch to answer an investigator’s questions about a fire at a facility at which he was a manager.

These orders are commonly known as investigative techniques orders, or INCO orders, after the case that led to statutory amendments enabling such orders. They are also provided for under other MOE legislation (Ontario Water Resources Act, Nutrient Management Act, 2002, Safe Drinking Water Act).

Mr. Branch brought a judicial review application to quash the order.

The Divisional Court held that the section of the EPA authorizing such orders can enhance the legal authority of Provincial Officers to permit them to do things that would otherwise be considered unlawful search and seizure, but the order cannot compel a third party (including the party under investigation) to do things, such as to attend and answer questions or to produce documents.

This interpretation is a significant departure from common practice by MOE.

The Ministry of the Environment has not sought leave to appeal this decision. We may, instead, see legislative amendments to counteract its effect.

This decision is of importance to any company under MOE investigation that is not consenting to the investigation, or which has been charged with an offence where the investigation included an investigative techniques order.

Willms & Shier Environmental Lawyers LLP can provide advice and training for dealing with the impacts of the Branch decision, managing investigations and defending prosecutions.

For more information, contact:

Doug Petrie – 416-862-4835
Juli Abouchar – 416-862-4836