CANADA Law and Practice Contributed by: Laura Duke, Will Shaw and Emma Russell, Lawson Lundell LLP
15. Waste 15.1 Key Laws and Regulatory Controls In Canada, the responsibility for managing and reduc- ing waste is shared among federal, provincial, terri- torial and municipal governments. The federal gov- ernment regulates the importation and exportation of waste nationally, as well as the interprovincial move- ment of waste. The provinces and territories regulate the use and disposal of waste within their borders ‒ although, practically speaking, this power is often del- egated to municipalities or districts. Both “extended producer responsibility” and “product stewardship” programmes are used to manage products at their end of life. 15.2 Retention of Environmental Liability Whether or not a producer or consigner of waste retains liability for waste after it has been disposed of by a third party depends on the jurisdiction. In some provinces, the applicable legislation includes an auto- matic ownership transfer provision that is triggered once waste is accepted by an authorised waste man- agement facility, thereby limiting the liability of produc- ers or consigners. In provinces where such a provision does not exist, any past or present owner or person that possessed, controlled or managed the waste may remain exposed to liability for waste after it has been disposed of – even if by a third party. However, generally speak- ing, some direct involvement in the release is neces- sary in order for the liability to crystallise. Under both schemes, producers or consigners remain liable for any damage caused while the waste was in their pos- session or in transport. 15.3 Circular Economy Requirements Producers in Canada are not generally required to take back, recycle or dispose of goods once they become waste (although there are some exceptions – for example, in British Columbia, sellers of ozone- depleting substances are required to take back those substances). However, legislation across Canada is used to impose some or all of the costs of the recov- ery, recycling and disposal of goods on the produc- ers of waste. These laws are intended to incentivise
producers to design products that can be disposed of responsibly. In June 2022, the federal government published the Single-Use Plastics Prohibition Regulations under the Canadian Environmental Protection Act 1999. Under these regulations, the manufacture, importation, exportation and sale of six categories of single-use plastics will be banned by the end of 2025, including checkout bags, cutlery and straws. The regulations adopt a staggered timeline for putting the ban into place, beginning with prohibitions on the manufacture and importation of the identified plastics for sale in Canada in the initial stage (effective as of December 2022) and leading to a more total prohibition on manu- facture, import and export sales by the end of 2025. This regulation is subject to an ongoing court chal- lenge brought by a coalition of several plastic indus- try participants. The claim is currently ongoing in the Federal Court of Appeal at the time of writing. 15.4 Rights and Obligations Applicable to Waste Operators Waste operators are generally required to hold permits and authorisations for the waste they generate and are strictly regulated as to how they may dispose of such waste (both through their permits and authorisations, as well as through the applicable legislation). Conse- quences of breaching such obligations are discussed in 3.2 Breaching Protections and include: • compliance orders; • suspensions or revocations of permits and authori- sations; • administrative penalties; • fines; and • imprisonment. 16. Environmental Disclosure and Information 16.1 Disclosure and Reporting Requirements There are requirements to self-report environmental incidents or damage to regulators in Canada. These requirements often apply to spills or releases of envi- ronmentally harmful substances such as oil, sewage and ozone-depleting substances, but can also apply
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