Environmental Protection Alternative Measures Agreement
BETWEEN
THE ATTORNEY GENERAL OF CANADA
AND
GESTION ALEXIS DIONNE INC.
AND
ALEXIS DIONNE (hereinafter “Mr. Dionne”)
WHEREAS Gestion Alexis Dionne and Mr. Dionne have been charged with alleged violations under the Canadian Environmental Protection Act, 1999 (hereinafter “CEPA, 1999”);
WHEREAS the prosecution for the offences is not barred at law, and in the opinion of the Attorney General of Canada sufficient evidence to proceed with the prosecution of the offences exists;
WHEREAS the Attorney General of Canada is satisfied that Environmental Protection Alternative Measures (hereinafter “Measures”) would not be inconsistent with the purposes of the Act in this case;
WHEREAS Gestion Alexis Dionne and Mr. Dionne do not deny their participation or involvement in the commission of the alleged offences and accept responsibility for the above acts;
WHEREAS Gestion Alexis Dionne and Mr. Dionne have had the opportunity to instruct counsel and are represented in this Environmental Protection Alternative Measures Agreement;
WHEREAS the Attorney General of Canada has consulted with the Minister of the Environment and has considered the surrounding circumstances, the nature of the alleged offences and all other factors to be considered, as prescribed by CEPA, 1999;
WHEREAS both Parties agree that an Environmental Protection Alternative Measures Agreement is the most appropriate means of resolving all matters pertaining to this case;
WHEREAS Gestion Alexis Dionne and Mr. Dionne have made representations regarding their limited ability to pay;
THEREFORE, the Attorney General of Canada, Gestion Alexis Dionne and Mr. Dionne enter into an Environmental Protection Alternative Measures Agreement with the following provisions.
PURPOSE
The express purpose of this Agreement is to further the goals and objectives of CEPA, 1999 and its regulations.
FACTS
Gestion Alexis Dionne and Mr. Dionne have been charged with the following offences:
Count 1
Gestion Alexis Dionne and Alexis Dionne, both in Montréal, Province of Quebec, did, on or about August 14, 2008, and on or about September 18, 2008, import a controlled substance, namely chlorodifluoromethane (HCFC-22), without an import permit or a consumption allowance, contrary to a prohibition arising from the Ozone-Depleting Substances Regulations, 1998 SOR/99-7, as amended, thereby committing an offence contrary to s. 272(1)(b) of the Canadian Environmental Protection Act, 1999, S.C. 1999, c. 33.
Count 2
Gestion Alexis Dionne and Alexis Dionne, both in Montréal, Province of Quebec, did, on or about December 3, 2008, and on or about January 9, 2009, import a controlled substance, namely chlorodifluoromethane (HCFC-22), without an import permit or a consumption allowance, contrary to a prohibition arising from Ozone-Depleting Substances Regulations, 1998 SOR/99-7, as amended, thereby committing an offence contrary to s. 272(1)(b) of the Canadian Environmental Protection Act, 1999, S.C. 1999, c. 33.
Count 3
Gestion Alexis Dionne and Alexis Dionne, both in Montréal, Province of Quebec, did, on or about March 5, 2009, and on or about April 7, 2009, import a controlled substance, namely chlorodifluoromethane (HCFC-22), without an import permit or a consumption allowance, contrary to a prohibition arising from Ozone-Depleting Substances Regulations, 1998 (1998) SOR/99-7, as amended, thereby committing an offence contrary to s. 272(1)(b) of the Canadian Environmental Protection Act, 1999, S.C. 1999, c. 33.
Count 4
Gestion Alexis Dionne and Alexis Dionne, both in Montréal, Province of Quebec, did, on or about May 6, 2009, and on or about June 5, 2009, import a controlled substance, namely chlorodifluoromethane (HCFC-22), without an import permit or a consumption allowance, contrary to a prohibition arising from Ozone-Depleting Substances Regulations, 1998, SOR/99‑7, as amended, thereby committing an offence contrary to s. 272(1)(b) of the Canadian Environmental Protection Act, 1999, S.C. 1999, c. 33.
Charges were laid in Montréal, Province of Quebec, on July 22, 2010.
Gestion Alexis Dionne and Mr. Dionne do not deny their participation or involvement in the commission of the alleged offences and accept responsibility for the above acts.
MEASURES
Gestion Alexis Dionne and Mr. Dionne consent to the forfeiture to Her Majesty the Queen in Right of Canada of the 5,315 cylinders of HCFC-22 (each cylinder having a volume of approximately 13.6 kg) that were seized pursuant to s. 223 of the Canadian Environmental Protection Act, 1999, S.C. 1999, c. 33, on June 25, 2009, at 680 Labelle Boulevard, in Saint-Jérôme.
Gestion Alexis Dionne and Mr. Dionne shall implement procedures for the importation and sale of substances regulated under CEPA, 1999, within four (4) months of the signing of this Agreement. Gestion Alexis Dionne and Mr. Dionne will provide Environment Canada with a copy of these procedures.
Gestion Alexis Dionne and Mr. Dionne shall publish, in the magazine ClimaPresse, an article or a one-page advertisement in black and white, accompanied by a photograph of a cylinder imported by Gestion Alexis Dionne Inc., describing the facts of this case, the offences related to the importation and sale of this cylinder, the regulations applicable to ozone-depleting substances and the essential terms of this Agreement, including the availability and benefits of an Environmental Protection Alternative Measures. The article shall expressly name Gestion Alexis Dionne and Mr. Dionne. This publication shall be completed and submitted to the Regional Director of the Quebec Region, Environmental Enforcement, Environment Canada, for approval within four (4) months of the signing of this Agreement. The article shall be published within twelve (12) months of the signing of this Agreement.
Upon the signing of this Agreement, Gestion Alexis Dionne and Mr. Dionne shall post an article on the Web site of the company Gestion Alexis Dionne, at www.votreimportation.com, accompanied by a photograph of a cylinder imported by Gestion Alexis Dionne Inc., describing the facts of this case, the offences related to the importation and sale of this cylinder, the regulations applicable to ozone-depleting substances and the essential terms of this Agreement, including the availability and benefits of an Environmental Protection Alternative Measures. This publication shall be completed and submitted to the Regional Director of the Quebec Region, Environmental Enforcement, Environment Canada, for approval within four (4) months of the signing of this Agreement. The article shall be posted on the site for a period of thirty-six (36) months following the signing of this Agreement.
Environment Canada undertakes to provide Gestion Alexis Dionne and Mr. Dionne with a photograph of a cylinder imported by Gestion Alexis Dionne Inc.
Gestion Alexis Dionne and Mr. Dionne shall submit, for publication in the magazines Plumbing + HVAC and Immobilier commercial, as well as in I.E.Now, the electronic newsletter of the Canadian Association of Importers and Exporters, an article describing the facts of this case, conditions on the importation of ozone-depleting substances and issues relating to such substances. This publication shall be completed and submitted to the Regional Director of the Quebec Region, Environmental Enforcement, Environment Canada, for approval within four (4) months of the signing of this Agreement.
Gestion Alexis Dionne and Mr. Dionne shall, upon the signing of this Agreement, make a voluntary payment in the amount of $4,500 to the Receiver General of Canada, to be held in trust for the Environmental Damages Fund, as administered by the Regional Director General of the Quebec Region, Environment Canada.
COMPLIANCE SCHEDULE
Gestion Alexis Dionne and Mr. Dionne agree to comply with the measures and the terms and conditions of this Agreement within the time prescribed for each measure herein set forth above.
VERIFYING COMPLIANCE WITH THIS AGREEMENT
The parties agree that Environment Canada will supervise and monitor compliance with this Agreement, pursuant to CEPA, 1999.
INSPECTION AND OTHER ENFORCEMENT ACTIVITIES
Nothing in this Agreement bars CEPA, 1999 enforcement officers and analysts from conducting inspections or investigations which they are legally authorized to conduct.
REPORTING
Gestion Alexis Dionne and Mr. Dionne agree to submit reports of their compliance with the terms and conditions set out in this Agreement for each 90-day period, starting on the date this Agreement is signed. All reports required to be submitted under this Agreement shall be submitted to the Director, Environmental Enforcement Division, Environment Canada, within seven (7) days of the end of the period in question.
Reports relating to the administration of or compliance with this Agreement will become part of the supervision record as well as part of the compliance history of Gestion Alexis Dionne and Mr. Dionne.
Gestion Alexis Dionne and Mr. Dionne agree that these reports shall be signed by Mr. Dionne.
CONFIDENTIAL INFORMATION
All information contained in and obtained by virtue of this Agreement is subject to the provisions of the Access to Information Act and CEPA, 1999.
Trade secrets, financial, commercial, scientific or technical information that is and is treated as confidential information, information the disclosure of which could reasonably be expected to result in material financial loss or gain or could reasonably be expected to prejudice the competitive position of any person, or information which could reasonably be expected to interfere with contractual or other negotiations of any person, will remain confidential and not be disclosed, except as provided for in the Access to Information Act and CEPA, 1999.
This Agreement shall be filed with the Court, as part of the Court record of the proceedings to which the public has access, in accordance with the provisions of s. 300 of CEPA, 1999.
Notwithstanding the above, reports relating to the administration of or compliance with this Agreement will be accessible to the public in accordance with s. 301 of CEPA, 1999. The final report will be made available to the public and to the Court in accordance with ss. 300(2) and 301. Interim reports will not be made available to the public, under ss. 300(2) and 301.
RESERVATION OF RIGHTS
The Attorney General of Canada reserves the right to seek injunctive relief, or any other appropriate remedy, in the event of any violation of the requirements of this Agreement.
PENALTIES
Failure on the part of Gestion Alexis Dionne and Mr. Dionne to comply with the provisions of this Agreement is an offence under s. 272(1)(e) of CEPA, 1999. Gestion Alexis Dionne and Mr. Dionne also acknowledge that any false or misleading representations made during the negotiation of the Agreement is an offence under s. 272(1)(e) of CEPA, 1999. Gestion Alexis Dionne and Mr. Dionne may also be prosecuted on the original offences because s. 296(5) provides that the use of an Environmental Protection Alternative Measures in respect of a person who is alleged to have committed an offence is not a bar to any proceedings against the person under CEPA, 1999.
In the event that Gestion Alexis Dionne and Mr. Dionne fail to comply with the stipulations of this Agreement, Gestion Alexis Dionne and Mr. Dionne shall be liable on conviction to the penalties provided for under CEPA, 1999.
FORCE MAJEURE
Force majeure is an event resulting from circumstances beyond the control of Gestion Alexis Dionne and Mr. Dionne that causes or may cause a delay in compliance with any provision of this Agreement. If a force majeure event occurs, Gestion Alexis Dionne and Mr. Dionne shall notify the Attorney General of Canada in writing as soon as possible, but in any event within seven days of when Gestion Alexis Dionne and Mr. Dionne first knew of the event or should have known of the event by the exercise of due diligence. The notice shall invoke the force majeure provisions of this Agreement and describe the length of time during which Gestion Alexis Dionne and Mr. Dionne will not be able to comply with this Agreement.
If a force majeure event occurs, Gestion Alexis Dionne and Mr. Dionne shall make an application to vary the Agreement, in accordance with s. 303 of CEPA, 1999. The application shall be made by Gestion Alexis Dionne and Mr. Dionne to the Attorney General of Canada, and Gestion Alexis Dionne and Mr. Dionne shall send a copy of the application to Environment Canada.
INTENT AND INTERPRETATION OF THE AGREEMENT
This Agreement constitutes the entire Agreement between the parties. The parties acknowledge that there are no representations between the parties other than those expressly set out in this Agreement.
This Agreement supersedes all previous negotiations, arrangements, letters of intent, offers, proposals, representations and information conveyed, whether oral or in writing, between the parties or their authorized representatives.
SEVERABILITY
The provisions of this Agreement shall be severable should for any reason Gestion Alexis Dionne and Mr. Dionne be lawfully excused from performing any of the terms of this Agreement. For greater certainty, the remaining provisions of this Agreement shall remain in full force and effect until the completion of this Agreement.
TIME OF THE ESSENCE
Time is of the essence in this Agreement.
GOVERNING LAW
This Agreement shall be governed by the laws of Canada, including the provisions of CEPA, 1999 and its corresponding regulations, and any definitions that apply to this Agreement are those provided for in CEPA, 1999 and its corresponding regulations, and those also specified in this Agreement.
WARRANTY
Gestion Alexis Dionne and Mr. Dionne warrant that their obligations under this Agreement shall be performed by persons who are competent and qualified and who have the appropriate knowledge and skill.
CERTIFICATION
Gestion Alexis Dionne and Mr. Dionne certify that on the date of the coming into force of this Agreement, there is no specific direction in existence requiring them to undertake any activity or refrain from the taking of any activity constituting the measures negotiated in this Agreement by any federal, provincial, territorial or municipal law, or by any court order.
Gestion Alexis Dionne and Mr. Dionne also certify that the funds used to carry out the alternative measures do not come from government financial grants.
Finally, Gestion Alexis Dionne and Mr. Dionne certify that the person whose signature appears below is an agent of the company and is duly authorized to sign this Agreement and bind the company.
VARIATION OF AGREEMENT
Any application to vary this Agreement shall be made in accordance with s. 303 of CEPA, 1999. The application shall be made to the Attorney General of Canada, and Gestion Alexis Dionne and Mr. Dionne shall send a copy of the application to Environment Canada.
TERMINATION OF THIS AGREEMENT
This Agreement shall terminate when the terms and conditions have been fulfilled to the satisfaction of the Attorney General of Canada, or otherwise in accordance with the applicable provisions of CEPA, 1999.
ASSIGNMENT
This Agreement shall not be assigned without the written consent of the Attorney General of Canada.
NOTICE
Whenever in this Agreement it is required or permitted that a notice or demand be given or served by either party to or on the other party, such notice or demand may be in writing and will be validly given or sufficiently communicated if forwarded by registered mail, priority post mail or facsimile. The address for delivery is as follows:
To:
For Gestion Alexis Dionne and Mr. Dionne
400 Marcil Street
Montréal, Quebec
H4A 2Z8
Telephone: 514-266-2743
To:
Agent of the Attorney General of Canada
Guillaume Lemay
Prosecutor, Public Prosecution Service of Canada
Guy Favreau Complex, 200 René Lévesque Boulevard West, East Tower, 9th Floor
Montréal, Quebec H2Z 1X4
Telephone: 514-496-7157
Facsimile: 514-496-7372
To:
Environment Canada
Robert Daigle
Acting Regional Director
105 McGill Street, 3rd Floor
Montréal, Quebec
H2Y 2E7
Telephone: 514-283-0181
Facsimile: 514-496-2087
WAIVER
No condoning, excusing or overlooking by any of the parties of any default by another party at any time or times in performing or observing any of the parties’ respective covenants will operate as a waiver of or otherwise affect the rights of the parties in respect of any continuing or subsequent default. No waiver of these rights will be inferred from anything done or omitted by the parties except by a variation of this Agreement in accordance with s. 303 of CEPA, 1999.
IN WITNESS WHEREOF the parties have executed this Agreement on this 2nd day of March 2011.
SEALED, ATTESTED TO AND DELIVERED on behalf of Gestion Alexis Dionne and Mr. Dionne by:
_____________________________
ALEXIS DIONNE
Representative for Gestion Alexis Dionne and Mr. Dionne
And on behalf of the Attorney General of Canada by:
______________________
GUILLAUME LEMAY
Agent of the Attorney General of Canada
- Date Modified: