Environmental Protection Alternative Measures Agreement
BETWEEN
THE ATTORNEY GENERAL OF CANADA
AND
TONY HAYWARD SALES INC. d.b.a. HAYWARD COMPONENT INDUSTRIES (hereinafter referred to as "TONY HAYWARD SALES INC".
WHEREAS Tony Hayward Sales Inc. has been charged for alleged violations under the Canadian Environmental Protection Act, 1999 (called CEPA, 1999 in this agreement);
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 (Measures) would not be inconsistent with the purposes of the Act in this case;
WHEREAS Tony Hayward Sales Inc. having been advised of the right to be represented by counsel accepts responsibility for the acts or omissions that form the basis of the alleged offences and fully and freely consents to participate in the Measures;
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,
THEREFORE, the Attorney General of Canada and Tony Hayward Sales Inc. 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
Tony Hayward Sales Inc. has been charged with the following offences, in particular, charges relating to offering for sale and selling in contravention of the Ozone-depleting Substances Regulations (ODSR 1998) encompassing Count 1 through to and including Count 18 and Charges relating to "Import" in contravention of the ODSR 1998, encompassing Count 19 through to and including Count 25.
COUNT 1
THAT on or about June 17, 2002, at or near the Town of Ajax, Ontario and elsewhere in Canada, Tony Hayward Sales Inc.dba Hayward Component Industries did offer for sale and sell a product containing a hydrochlorofluorocarbon in a pressurized container weighing less than 2 kilograms after the prohibition date, contrary to subparagraph 23(2)(g) of the Ozone-depleting Substances Regulations, 1998, thereby committing an offence under paragraph 272(1) of the Canadian Environmental Protection Act, 1999.
COUNT 2
THAT on or about June 21, 2002, at or near the Town of Ajax, Ontario and elsewhere in Canada, Tony Hayward Sales Inc.dba Hayward Component Industries did offer for sale and sell a product containing a hydrochlorofluorocarbon in a pressurized container weighing less than 2 kilograms after the prohibition date, contrary to subparagraph 23(2)(g) of the Ozone-depleting Substances Regulations, 1998, thereby committing an offence under paragraph 272(1) of the Canadian Environmental Protection Act, 1999.
COUNT 3
THAT on or about July 11, 2002, at or near the Town of Ajax, Ontario and elsewhere in Canada, Tony Hayward Sales Inc.dba Hayward Component Industries did offer for sale and sell a product containing a hydrochlorofluorocarbon in a pressurized container weighing less than 2 kilograms after the prohibition date, contrary to subparagraph 23(2)(g) of the Ozone-depleting Substances Regulations, 1998, thereby committing an offence under paragraph 272(1) of the Canadian Environmental Protection Act, 1999.
COUNT 4
THAT on or about October 11, 2002, at or near the Town of Ajax, Ontario and elsewhere in Canada, Tony Hayward Sales Inc.dba Hayward Component Industries did offer for sale and sell a product containing a hydrochlorofluorocarbon in a pressurized container weighing less than 2 kilograms after the prohibition date, contrary to subparagraph 23(2)(g) of the Ozone-depleting Substances Regulations, 1998, thereby committing an offence under paragraph 272(1) of the Canadian Environmental Protection Act, 1999.
COUNT 5
THAT on or about January 22, 2004, at or near the Town of Ajax, Ontario and elsewhere in Canada, Tony Hayward Sales Inc.dba Hayward Component Industries did offer for sale and sell a product containing a hydrochlorofluorocarbon in a pressurized container weighing less than 2 kilograms after the prohibition date, contrary to subparagraph 23(2)(g) of the Ozone-depleting Substances Regulations, 1998, thereby committing an offence under paragraph 272(1) of the Canadian Environmental Protection Act, 1999.
COUNT 6
THAT on or about July 7, 2004, at or near the Town of Ajax, Ontario and elsewhere in Canada, Tony Hayward Sales Inc.dba Hayward Component Industries did offer for sale and sell a product containing a hydrochlorofluorocarbon in a pressurized container weighing less than 2 kilograms after the prohibition date, contrary to subparagraph 23(2)(g) of the Ozone-depleting Substances Regulations, 1998, thereby committing an offence under paragraph 272(1) of the Canadian Environmental Protection Act, 1999.
COUNT 7
THAT on or about October 26, 2004, at or near the Town of Ajax, Ontario and elsewhere in Canada, Tony Hayward Sales Inc.dba Hayward Component Industries did offer for sale and sell a product containing a hydrochlorofluorocarbon in a pressurized container weighing less than 2 kilograms after the prohibition date, contrary to paragraph 23(2)(g) of the Ozone-depleting Substances Regulations, 1998, thereby committing an offence under paragraph 272(1) of the Canadian Environmental Protection Act, 1999.
COUNT 8
THAT on or about April 13, 2005, at or near the Town of Ajax, Ontario and elsewhere in Canada, Tony Hayward Sales Inc.dba Hayward Component Industries did offer for sale and sell a product containing a hydrochlorofluorocarbon in a pressurized container weighing less than 2 kilograms after the prohibition date, contrary to paragraph 23(2)(g) of the Ozone-depleting Substances Regulations, 1998, thereby committing an offence under paragraph 272(1) of the Canadian Environmental Protection Act, 1999.
COUNT 9
THAT on or about May 17, 2005, at or near the Town of Ajax, Ontario and elsewhere in Canada, Tony Hayward Sales Inc.dba Hayward Component Industries did offer for sale and sell a product containing a hydrochlorofluorocarbon in a pressurized container weighing less than 2 kilograms after the prohibition date, contrary to paragraph 23(2)(g) of the Ozone-depleting Substances Regulations, 1998, thereby committing an offence under paragraph 272(1) of the Canadian Environmental Protection Act, 1999.
COUNT 10
THAT on or about June 3, 2005, at or near the Town of Ajax, Ontario and elsewhere in Canada, Tony Hayward Sales Inc.dba Hayward Component Industries did offer for sale and sell a product containing a hydrochlorofluorocarbon in a pressurized container weighing less than 2 kilograms after the prohibition date, contrary to paragraph 23(2)(g) of the Ozone-depleting Substances Regulations, 1998, thereby committing an offence under paragraph 272(1) of the Canadian Environmental Protection Act, 1999.
COUNT 11
THAT on or about August 12, 2005, at or near the Town of Ajax, Ontario and elsewhere in Canada, Tony Hayward Sales Inc.dba Hayward Component Industries did offer for sale and sell a product containing a hydrochlorofluorocarbon in a pressurized container weighing less than 2 kilograms after the prohibition date, contrary to paragraph 23(2)(g) of the Ozone-depleting Substances Regulations, 1998, thereby committing an offence under paragraph 272(1) of the Canadian Environmental Protection Act, 1999.
COUNT 12
THAT on or about September 1, 2005, at or near the Town of Ajax, Ontario and elsewhere in Canada, Tony Hayward Sales Inc.dba Hayward Component Industries did offer for sale and sell a product containing a hydrochlorofluorocarbon in a pressurized container weighing less than 2 kilograms after the prohibition date, contrary to paragraph 23(2)(g) of the Ozone-depleting Substances Regulations, 1998, thereby committing an offence under paragraph 272(1) of the Canadian Environmental Protection Act, 1999.
COUNT 13
THAT on or about January 19, 2006, at or near the Town of Ajax, Ontario and elsewhere in Canada, Tony Hayward Sales Inc.dba Hayward Component Industries did offer for sale and sell a product containing a hydrochlorofluorocarbon in a pressurized container weighing less than 2 kilograms after the prohibition date, contrary to paragraph 23(2)(g) of the Ozone-depleting Substances Regulations, 1998, thereby committing an offence under paragraph 272(1) of the Canadian Environmental Protection Act, 1999.
COUNT 14
THAT on or about May 17, 2006, at or near the Town of Ajax, Ontario and elsewhere in Canada, Tony Hayward Sales Inc.dba Hayward Component Industries did offer for sale and sell a product containing a hydrochlorofluorocarbon in a pressurized container weighing less than 2 kilograms after the prohibition date, contrary to paragraph 23(2)(g) of the Ozone-depleting Substances Regulations, 1998, thereby committing an offence under paragraph 272(1) of the Canadian Environmental Protection Act, 1999.
COUNT 15
THAT on or about April 19, 2006, at or near the Town of Ajax, Ontario and elsewhere in Canada, Tony Hayward Sales Inc.dba Hayward Component Industries did offer for sale and sell a product containing a hydrochlorofluorocarbon in a pressurized container weighing less than 2 kilograms after the prohibition date, contrary to paragraph 23(2)(g) of the Ozone-depleting Substances Regulations, 1998, thereby committing an offence under paragraph 272(1) of the Canadian Environmental Protection Act, 1999.
COUNT 16
THAT on or about April 25, 2006, at or near the Town of Ajax, Ontario and elsewhere in Canada, Tony Hayward Sales Inc.dba Hayward Component Industries did offer for sale and sell a product containing a hydrochlorofluorocarbon in a pressurized container weighing less than 2 kilograms after the prohibition date, contrary to paragraph 23(2)(g) of the Ozone-depleting Substances Regulations, 1998, thereby committing an offence under paragraph 272(1) of the Canadian Environmental Protection Act, 1999.
COUNT 17
THAT on or about May 2, 2006, at or near the Town of Ajax, Ontario and elsewhere in Canada, Tony Hayward Sales Inc.dba Hayward Component Industries did offer for sale and sell a product containing a hydrochlorofluorocarbon in a pressurized container weighing less than 2 kilograms after the prohibition date, contrary to paragraph 23(2)(g) of the Ozone-depleting Substances Regulations, 1998, thereby committing an offence under paragraph 272(1) of the Canadian Environmental Protection Act, 1999.
COUNT 18
THAT on or about May 9, 2006, at or near the Town of Ajax, Ontario and elsewhere in Canada, Tony Hayward Sales Inc.dba Hayward Component Industries did offer for sale and sell a product containing a hydrochlorofluorocarbon in a pressurized container weighing less than 2 kilograms after the prohibition date, contrary to paragraph 23(2)(g) of the Ozone-depleting Substances Regulations, 1998, thereby committing an offence under paragraph 272(1) of the Canadian Environmental Protection Act, 1999.
COUNT 19
THAT on or about November 25, 2004, at or near the City of Windsor, Ontario and elsewhere in the Province of Ontario, Tony Hayward Sales Inc.dba Hayward Component Industries did import a product that contained or was designed to contain a hydrochlorofluorocarbon (HCFC), to wit; product containing 1,1-dichloro-1-fluoroethane, contrary to paragraph 23(3)(g) of the Ozone-depleting Substances Regulations, 1998, thereby committing an offence under paragraph 272(1) of the Canadian Environmental Protection Act, 1999.
COUNT 20
THAT on or about February 15, 2005, at or near the City of Windsor, Ontario and elsewhere in the Province of Ontario, Tony Hayward Sales Inc.dba Hayward Component Industries did import a product that contained or was designed to contain a hydrochlorofluorocarbon (HCFC), to wit; product containing 1,1-dichloro-1-fluoroethane, contrary to paragraph 23(3)(g) of the Ozone-depleting Substances Regulations, 1998, thereby committing an offence under paragraph 272(1) of the Canadian Environmental Protection Act, 1999.
COUNT 21
THAT on or about June 27, 2005, at or near the City of Windsor, Ontario and elsewhere in the Province of Ontario, Tony Hayward Sales Inc.dba Hayward Component Industries did import a product that contained or was designed to contain a hydrochlorofluorocarbon (HCFC), to wit; product containing 1,1-dichloro-1-fluoroethane, contrary to paragraph 23(3)(g) of the Ozone-depleting Substances Regulations, 1998, thereby committing an offence under paragraph 272(1) of the Canadian Environmental Protection Act, 1999
COUNT 22
THAT on or about September 22, 2005, at or near the City of Windsor, Ontario and elsewhere in the Province of Ontario, Tony Hayward Sales Inc.dba Hayward Component Industries did import a product that contained or was designed to contain a hydrochlorofluorocarbon (HCFC), to wit; product containing 1,1-dichloro-1-fluoroethane, contrary to paragraph 23(3)(g) of the Ozone-depleting Substances Regulations, 1998, thereby committing an offence under paragraph 272(1) of the Canadian Environmental Protection Act, 1999
COUNT 23
THAT on or about January 25, 2006, at or near the City of Windsor, Ontario and elsewhere in the Province of Ontario, Tony Hayward Sales Inc.dba Hayward Component Industries did import a product that contained or was designed to contain a hydrochlorofluorocarbon (HCFC), to wit: Big Bath products containing 1,1-dichloro-1-fluoroethane, contrary to paragraph 23(3)(g) of the Ozone-depleting Substances Regulations, 1998, thereby committing an offence under paragraph 272(1) of the Canadian Environmental Protection Act, 1999.
COUNT 24
THAT on or about January 27, 2006, at or near the City of Windsor, Ontario and elsewhere in the Province of Ontario, Tony Hayward Sales Inc.dba Hayward Component Industries did import a product that contained or was designed to contain a hydrochlorofluorocarbon (HCFC), to wit: product containing 1,1-dichloro-1-fluoroethane, contrary to paragraph 23(3)(g) of the Ozone-depleting Substances Regulations, 1998, thereby committing an offence under paragraph 272(1) of the Canadian Environmental Protection Act, 1999.
COUNT 25
THAT on or about May 17, 2006, at or near the City of Windsor, Ontario and elsewhere in the Province of Ontario, Tony Hayward Sales Inc.dba Hayward Component Industries did import a product that contained or was designed to contain a hydrochlorofluorocarbon (HCFC), to wit: product containing 1,1-dichloro-1-fluoroethane, contrary to paragraph 23(3)(g) of the Ozone-depleting Substances Regulations, 1998, thereby committing an offence under paragraph 272(1) of the Canadian Environmental Protection Act, 1999.
Charges were laid in Oshawa, Ontario on April 11, 2007.
Tony Hayward Sales Inc. has been advised and understands that the above noted Charges encompass a description of the offences that it is alleged to have committed:
Tony Hayward Sales Inc. does not deny participation or involvement in the commission of the alleged offences and accepts responsibility for the above acts.
MEASURES
Tony Hayward Sales Inc. shall develop and deliver a training program for its clientele, relating to environmental issues associated with the import and sale of ozone depleting substances (ODS). A copy of the course outline will be supplied to Environment Canada for approval of the Regional Director, Environmental Enforcement, within 30 days of execution of this Agreement. The training will be completed within twelve months of such approval. Tony Hayward Sales Inc. will provide a report to Environment Canada following each of the training sessions conducted. The report shall consist of the location of the training and a list of the people in attendance.
Tony Hayward Sales Inc. shall pay $5,000.00 to the Receiver General of Canada in trust for the Environmental Damages Fund, as administered by the Regional Director General, Environment Canada, Ontario Region. These funds shall be available for work that will benefit the environment.
COMPLIANCE SCHEDULE
Tony Hayward Sales Inc. agrees that it shall comply with the measures, terms and conditions of this Agreement within twelve months of the execution of this agreement.
VERIFYING COMPLIANCE WITH THIS AGREEMENT
The Parties agree that Environment Canada will supervise and monitor compliance with this Agreement.
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
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 Tony Hayward Sales Inc.
Tony Hayward Sales Inc. agrees that all required reports shall be signed by Christopher Hayward, owner of the corporation and thereby duly authorized to sign on its behalf.
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 section 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 Section 301 of CEPA, 1999. The final report will be made available to the public and to the court in accordance with Sections 300(2) and 301. Interim reports will not be made available to the public under Sections 300(2) and 301.
RESERVATION OF RIGHTS
The Attorney General of Canada reserves the right to seek injunctive relief in the event of any violation of the requirements of this Agreement.
PENALTIES
Failure on the part of Tony Hayward Sales Inc. and its responsible officials to comply with the provisions of this Agreement is an offence under section 272 (1) (e) of CEPA, 1999. Tony Hayward Sales Inc.and its responsible officials may also be prosecuted on the original offences because Subsection 296(5) provides that the use of 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 Tony Hayward Sales Inc. and/or its responsible officials fail to comply with the stipulations of this Agreement, Tony Hayward Sales Inc. and/or its responsible officials are liable on conviction to the penalties provided for pursuant to CEPA, 1999.
FORCE MAJEURE
A Force Majeure is an event resulting from circumstances beyond the control of Tony Hayward Sales Inc. or any entity controlled by Tony Hayward Sales Inc. that causes or may cause a delay in compliance with any provision of this Agreement. If a Force Majeure event occurs, Tony Hayward Sales Inc. shall notify the Attorney General of Canada in writing as soon as practicable, but in any event within seven days of when Tony Hayward Sales Inc.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 anticipated length of time during which Tony Hayward Sales Inc. will not be able to comply with this Agreement.
In the event that a Force Majeure occurs, Tony Hayward Sales Inc. shall bring an application to vary in accordance with Section 303 of CEPA, 1999. The application shall be made by Tony Hayward Sales Inc. to the Attorney General of Canada and Tony Hayward Sales Inc. 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 Tony Hayward Sales Inc. 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.
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 regulations, and any definitions that apply to this Agreement are those provided for in CEPA, 1999 and its regulations, and those also specified in this Agreement.
WARRANTY
Tony Hayward Sales Inc. warrants that the obligations it has undertaken in this Agreement will be performed by persons who are competent, qualified and have the appropriate knowledge and skill.
CERTIFICATION
Tony Hayward Sales Inc. certifies that on the date of the coming into force of this Agreement, there is no specific direction in existence requiring Tony Hayward Sales Inc. 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 court order.
Tony Hayward Sales Inc. further certifies that monies expended on fulfilling this Agreement do not come from government financial grants.
Tony Hayward Sales Inc. also certifies that the person whose signature appears below is an officer of the company who has been duly authorized to sign this Agreement and bind the company.
VARIATION OF AGREEMENT
An Application to vary this Agreement shall be made in accordance with section 303 of CEPA, 1999. The Application shall be made to the Attorney General of Canada and a copy of the Application shall be sent 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 written consent.
NOTICE
Whenever in this Agreement, it is required or permitted that notice or demand be given or served by either Party to or on the other Party, such notice or demand will be in writing and will be validly given or sufficiently communicated if forwarded by registered mail, priority post mail or facsimile as follows: The address for delivery is:
To Tony Hayward Sales Inc. c/o:
Davies, McLean, Zweig Associates
Advocates House
1035 McNicoll Avenue
Toronto , Ontario
M1W 3W6
Attention: Reginald McLean
To the Attorney General of Canada:
Kelly, Greenway, Bruce
Barristers & Solicitors
114 King St. East
Oshawa, Ontario
L1H 7N1
Attention: Ramona S .Abraham
Fax: (905) 432-2663
To Environment Canada:
Mark Vanderlaan
Regional Director, Environmental Protection
Environment Canada
4905 Dufferin Street
Toronto, Ontario
M3H 5T4
Fax: (416) 739-4903
The Parties may change their respective addresses for delivery by delivering notice of change as herein provided.
WAIVER
No condoning, excusing or overlooking by either of the Parties of any default by the other 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 Section 303 of CEPA, 1999.
IN WITNESS WHEREOF the Parties have executed this Agreement this 31 st . day of October, 2007.
SEALED, ATTESTED TO AND DELIVERED on behalf of Tony Hayward Sales Inc. by
Per:
_____________________________
Name: Reginald McLean
Title: Solicitor Representing Tony Hayward Sales Inc.
EXECUTED on behalf of the Attorney General of Canada
___________________________
Ramona S. Abraham
Agent for the Attorney General of Canada
- Date Modified: