PART 5Controlling Toxic Substances (continued)
Release of Toxic Substances
Marginal note:Report and remedial measures
95 (1) Where there occurs or is a likelihood of a release into the environment of a substance specified on the List of Toxic Substances in Schedule 1 in contravention of a regulation made under section 92.1 or 93 or an order made under section 94, any person described in subsection (2) shall, as soon as possible in the circumstances,
(a) subject to subsection (4) and any regulations made under paragraph 97(b), notify an enforcement officer or any other person designated pursuant to the regulations and provide a written report on the matter to the enforcement officer or other person;
(b) take all reasonable measures consistent with the protection of the environment and public safety to prevent the release or, if it cannot be prevented, to remedy any dangerous condition or reduce or mitigate any danger to the environment or to human life or health that results from the release of the substance or may reasonably be expected to result if the substance is released; and
(c) make a reasonable effort to notify any member of the public who may be adversely affected by the release or likely release.
(2) Subsection (1) applies to any person who
Marginal note:Report by property owner
(3) Where there occurs a release of a substance as described in subsection (1), any person, other than a person described in subsection (2), whose property is affected by the release and who knows that it is a substance specified on the List of Toxic Substances in Schedule 1 shall, as soon as possible in the circumstances and subject to subsection (4), report the matter to an enforcement officer or to any person that is designated by regulation.
Marginal note:Report to provincial official
(4) Where there are in force, by or under the laws of a province or an aboriginal government, provisions that the Governor in Council, by regulation, declares to be adequate for dealing with a release described in subsection (1), a report required by paragraph (1)(a) or subsection (3) shall be made to a person designated by those provisions.
Marginal note:Intervention by enforcement officer
(5) Where any person fails to take any measures required under subsection (1), an enforcement officer may take those measures, cause them to be taken or direct any person referred to in subsection (2) to take them.
Marginal note:Limitation on power of direction
(6) A direction of an enforcement officer under subsection (5) that is inconsistent with a requirement imposed by or under any other Act of Parliament is void to the extent of the inconsistency.
Marginal note:Access to property
(7) Any enforcement officer or other person authorized or required to take any measures under subsection (1) or (5) may enter and have access to any place or property and may do any reasonable things that may be necessary in the circumstances.
Marginal note:Personal liability
(8) Any person, other than a person described in subsection (2), who provides assistance or advice in taking the measures required by subsection (1) or who takes any measures authorized under subsection (5) 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 those subsections unless it is established that the person acted in bad faith.
Marginal note:Voluntary report
96 (1) Where a person has knowledge of the occurrence or likelihood of a release into the environment of a substance specified on the List of Toxic Substances in Schedule 1, but the person is not required to report the matter under this Act, the person may report any information relating to the release or likely release to an enforcement officer or to any person to whom a report may be made under section 95.
Marginal note:Request for confidentiality
(2) A person making a report under subsection (1) may request that the person’s identity and any information that could reasonably reveal the identity not be released.
Marginal note:Requirement for confidentiality
(3) Where a person makes a request under subsection (2), no person shall release or cause to be released the identity of the person making the request or any information that could reasonably be expected to reveal their identity unless the person making the request authorizes the release in writing.
Marginal note:Employee protection
(4) Despite any other Act of Parliament, no employer shall dismiss, suspend, demote, discipline, harass or otherwise disadvantage an employee, or deny an employee a benefit of employment, by reason that
(a) the employee has made a report under subsection (1);
(b) the employee, acting in good faith and on the basis of reasonable belief, has refused or stated an intention of refusing to do anything that is an offence under this Act; or
(c) the employee, acting in good faith and on the basis of reasonable belief, has done or stated an intention of doing anything that is required to be done by or under this Act.
97 The Governor in Council may make regulations
(a) designating persons for the purposes of paragraph 95(1)(a) and subsection 95(3) and prescribing the form of the report to be made under those provisions and the information to be contained in it;
(b) respecting the notification and reporting of a release;
(c) declaring provisions to be adequate for the purpose of subsection 95(4); and
(d) generally for carrying out the purposes and provisions of sections 95 and 96.
Marginal note:Recovery of reasonable costs and expenses by Her Majesty
Marginal note: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.
Marginal note:Joint and several liability
(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.
(4) A person referred to in paragraph 95(2)(b) shall not be held liable under subsection (3) to an extent greater than the extent to which the person knowingly or negligently caused or contributed to the release.
(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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note:Remedial measures
99 Where, in respect of a substance or a product containing a substance, there is a contravention of this Part or any regulation made under this Part, the Minister may, in writing,
(a) direct any manufacturer, processor, importer, retailer or distributor of the substance or product to take any or all of the following measures:
(i) give public notice in a manner directed by the Minister of any danger to the environment or to human life or health posed by the substance or product,
(ii) mail a notice as described in subparagraph (i) to every manufacturer, processor, distributor or retailer of the substance or product, or
(iii) mail a notice as described in subparagraph (i) to every person to whom the substance or product is known to have been delivered or sold; and
(b) direct any manufacturer, processor, distributor, importer or retailer of the substance or product to take any or all of the following measures:
(i) replace the substance or product with one that does not pose a danger to the environment or to human life or health,
(ii) accept the return of the substance or product from the purchaser and refund the purchase price, or
(iii) any other measures for the protection of the environment or of human life or health.
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