Joseph Coppolino

Annual reports of fines handed out under Ontario’s environmental protection laws show large companies polluting toxic chemicals receive heavily discounted penalty fees despite repeated violations of environmental regulations.

In 2005, the Environmental Protection Act (EPA) and Ontario Water Resources Act (OWRA) were amended to include monetary fines for companies violating certain environmental regulations.

EPA violations, which range from failing to submit paperwork to the discharging of toxic chemicals beyond allowable limits, come with penalties of up to $100,000 “for each day or part of a day on which the offence occurs or continues,” as stated in the legislation.

Companies can apply for penalty reductions of up to 35 per cent for good behaviour, like taking preventative steps, mitigating action or showing a response plan is in place.

The Ministry of Environment, Conservation and Parks (MECP) said penalties are proportional to the gravity of the violation and account for repeat offenders who face higher penalty amounts.

“Initial penalty amounts are higher if the violator was previously convicted in the past five years or previously faced environmental penalties in the past three years,” said MECP spokesperson Lindsay Davidson.

“In reducing penalties the ministry is guided by environmental penalty regulations and the guideline for implementing environmental penalties.”

However, between 2018 and 2022, at least seven companies in Ontario were penalized for multiple violations and were still granted the maximum reduction to their penalties. Many companies did not see an increase in their fines, while others saw fine amounts decrease.

Domtar, the pulp and paper company operating two mills in Ontario, was penalized for 15 limit violations in 2018, two in 2019 and 15 more in 2020. Even with 32 penalties administered over the years, Domtar was still allowed the maximum discount for the same offence, and the penalty amounts were not increased. In some cases the initial fine amount (before discounts) was less than the year before.

Imperial Oil, which is currently facing backlash for two tailings leaks in Alberta, received nearly two dozen violation orders between 2018 and 2022 for its Ontario oil refineries. The majority of those violations were for discharging sulphur dioxide in excess of 900 kilograms over a 24 hour period for several days.

For every day the company committed what the environmental penalties guidelines considers a “very serious offence,” Imperial Oil was given the largest possible fine of $100,000. Despite the violation’s seriousness, the company was granted discounts between 23 and 35 per cent for each day of violations.

Other major repeat offenders who received maximum reductions include Shell Canada, Bruce Power Generation and Suncor.

Ramani Nadarajah, counsel at the Canadian Environmental Law Association (CELA) and a former MECP prosecutor, said repeat offences point to a misapplication of the government’s compliance policies when stronger enforcement measures are available.

“The company's prior compliance record is a factor that needs to be considered,” said Nadarajah.

“If they are repeatedly using environmental penalties against very large corporations which have had a history of non compliance, particularly in relation to the same offence, then I think that is actually quite troubling.”

Ian Miron, a lawyer for EcoJustice focusing on Ontario’s oil refineries, likened the penalties to speeding tickets.

“I don't get a discount on a speeding ticket if I say I've got a plan to try to make sure this won't happen again. If I speed 30 times, or 60 times in five years, I'm probably not going to have a license after that,” he said.

“But that's not what's happening here. It's happening and happening and happening, and they're still getting discounts.”

Imperial Oil was required to pay $167,500 in fines after receiving a discount of 33 per cent on three violations in 2022. That company’s net profits the same year were more than $5.6 billion, making Ontario’s penalties just 0.002 per cent of the company’s bottom line.

“Obviously, the slap-on-the-wrist nature of these fines is not deterring companies from having infractions, because there are a number of repeat offenders,” said Keith Brooks, program director at Environmental Defence.

In an emailed statement, Imperial Oil representative Kristina Zimmer said the company regrets these incidents occurred and is committed to health and safety, highlighting more than $360 million in environmental improvements at its Ontario sites.

Meanwhile, Domtar explained their 32 environmental limit violations came from just “five overall events that contributed to these exceedances.”

“The environmental performance at Espanola [Ontario] is much improved in recent years as the mill has not had an exceedance of numerical final effluent permit limit in four years,” said Kathy Wholley, Domtar’s vice president of communications and public affairs. She attributed the improvements to “more robust environmental management systems,” among other factors, at their mill an hour west of Sudbury.

In 2020, Domtar received penalties for violations of the biochemical oxygen demand plant loading and total suspended solids effluent limits.

Suncor, Shell and Bruce Power did not respond to QP Briefing request for comment before the publishing deadline.

In 2022, Ontario proposed upping the maximum penalty under the EPA and OWRA to $200,000 but have yet to introduce the changes.

Miron adds the government has introduced other changes making it easier to appeal penalties and have the total amount reduced.

In response, the MECP said environmental penalties are just one of the tools the government uses to deal with polluters. The province does have a mechanism to prosecute more serious violators.

While reporting for this article, the MECP released a court bulletin regarding a more than $1 million fine against Imperial Oil in Nanticoke, On., for a 2019 discharge of petroleum products into the water. The conviction was handed out last December.

Miron said large fines like this outside of the environmental penalties are few and far between. He recalled only fewer than a half dozen or so convictions of oil companies in Ontario over the last decade.

“Environmental penalties can be super useful tools to penalize companies for more ‘trivial’ offences,” said Miron. “But they can’t be the only tool.”

Environmental advocates raised that exact concern when environmental penalties were introduced, questioning whether the government would rely too heavily on smaller fines rather than prosecutions, said Nadarajah.

Enforcement of environmental regulations in Ontario has been a long standing issue, one that goes well beyond the current government, according to Brooks.

“Every Auditor General's report says the same thing,” he said. “The Ministry of Environment Conservation and Parks, the Ministry of Natural Resources and other ministries just don't have enough personnel out there in the field.”

Prosecutions can be costly and resource intensive, particularly when dealing with large companies with highly paid lawyers.

“It does take a lot of resources for the ministry to prosecute these giant companies who will try and drag it into the mud,” said Miron.

But Brooks isn’t surprised the Ford government hasn’t been the one to step up enforcement.

“Overall, environmental issues aren't taken seriously by this government,” he said. “As the climate crisis gets worse and receives more attention from governments around the world, the Government of Ontario is heading in the other direction.”

Sandy Shaw, MPP for Hamilton West–Ancaster–Dundas and NDP environment critic, shared Brooks’ dismay.

“If this government took environmental protection seriously, if they took climate change seriously, we would be seeing some action on their part. Instead, what we're seeing is a dismantling of our protections,” said Shaw.

Though Shaw agreed that it makes sense for well-meaning companies should be permitted reductions for fixing their errors, she is disappointed “big polluters” could be taking advantage of weak enforcement and just factoring these monetary penalties into the cost of doing business.

The environment ministry said they take environmental violations seriously and are committed to holding polluters accountable.

“The Ministry of the Environment, Conservation and Parks is committed to protecting the health of Ontarians and the environment,” said Davidson. “The government of Ontario is committed to the principle that if you pollute you pay, supported by an extensive framework on regulations and laws.”

Between opening the Greenbelt for development and reducing development charges used to update aging infrastructure like wastewater plants through Bill 23, Shaw said lax enforcement points to just another way the Ford government is posing a threat to the environment.

“It speaks to a pattern. A pattern that this government lets polluters off the hook.”

Ontario environmental penalties not a deterrent for repeat offenders, say critics

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