Decision Date: March 31, 2022

Panel: Diana Valiela

Keywords: Environmental Management Act – s. 115(1)(c); Administrative Penalties (Environmental Management Act) Regulation – ss. 7, 12(5); permit; sewage disposal system; administrative penalty

Nordstrom Enterprises Ltd. (the “Appellant”) appealed a decision made by the Director, Environmental Management Act (the “Director”), in the Ministry of Environment and Climate Change Strategy. In the decision, the Director determined that the Appellant had failed to comply with three conditions in a permit which authorizes the Appellant to discharge effluent from a sewage treatment system at its recreational development in Clearwater. The permit conditions in question required the Appellant to install ventilation/observation ports, monitoring wells, and a flow measuring device on the sewage treatment system. The Director levied an administrative penalty of $6,500 for the contraventions.

The Appellant appealed the Director’s decision to the Board. The Appellant sought a reduction in the penalty. The Appellant submitted that the penalty was very difficult for it, as a small business, to pay and that the Covid-19 pandemic made it difficult to find a consultant to assist it in complying with the permit.

The Board considered the parties’ submissions and evidence, the relevant factors in section 7 of the Administrative Penalties (Environmental Management Act) Regulation, and the maximum penalty of $40,000 for failing to comply with a permit. The Board held that the Appellant had provided no evidence to support its claim of financial difficulty, and therefore, this did not provide a basis for reducing the penalty. Although the Appellant also claimed it was difficult to retain a consultant during the pandemic, the Board found that the Appellant was warned in June 2018 that it was not complying with these permit requirements, and it received a $1,000 penalty in July 2020 for noncompliance with another permit requirement, yet it failed to take sufficient or timely action to comply. The Appellant only began taking steps to comply in March 2021, after being notified that the Ministry intended to levy a second penalty for noncompliance.

The Board found that although a penalty of $6,500 is at the low end of potential penalties for contravening a permit, it was in the circumstances of this case. The Board noted that the previous penalty of $1,000 against the Appellant for similar noncompliance did not result in compliance. The Board found that the penalty of $6,500 should act as a deterrent and promote future compliance.

Accordingly, the appeal was dismissed.