Environmental protection alternative measures - Final report

Report to the court under subsection 300(2)


Canadian Environmental Protection Act, 1999

Statutes of Canada (1999)

Chapter 33

 

Her Majesty

VS

9051-6345 Québec Inc.

Record No. QUE-140627-001

500-73-004315-152

Date of agreement: October 15, 2015

Date agreement ended: January 15, 2016

Environmental Enforcement Directorate

Quebec Region

January 18, 2016

Coat of Arms of Canada

 

Table of contents


1.0 Report under subsection 300(2) of the CEPA (1999)

1.1 Summary

On July 30, 2015, charges were filed at Montreal’s Palais de Justice against 9051-6345 Québec Inc., Gerry Shapiro and Mark Schneiderman. The charges laid consisted of eight (8) counts of violating the PCB Regulations (SOR/2008-273), thereby committing the offences set out in paragraphs 272.1(1)(f) and 272(1)(h) of the Canada Environmental Protection Act (1999) (CEPA 1999).

On October 15, 2015, counsel for the Public Prosecution Service of Canada and the defendant formally signed an Environmental Protection Alternative Measures Agreement. The Agreement, which can be found in Appendix 1 of this document, included three (3) measures.

  • 9051-6345 Québec Inc., Gerry Shapiro and Mark Schneiderman shall make a contribution of twenty thousand dollars ($20,000) to the Receiver General of Canada in trust for the Environmental Damages Fund administered by the Regional Director General of Environment Canada, Quebec Region, within fifteen (15) days of signing this Agreement. Proof of payment of the contribution shall be provided to Environment Canada.

  • Within three (3) months of signing this Agreement, 9051-6345 Québec Inc., Gerry Shapiro and Mark Schneiderman shall provide Environment Canada with a complete written inventory of all electrical equipment that may contain PCBs, for all properties under the responsibility of the Shapiro Group, Gerry Shapiro and Mark Schneiderman. This inventory shall include, but not be limited to, transformers, capacitors, breakers, rectifiers and other electrical equipment containing oil, manufactured prior to 1980. The inventory shall also include stocked fluorescent lamp ballasts containing PCBs if their total PCB content exceeds 1 kg for the same site.

  • 9051-6345 Québec Inc., Gerry Shapiro and Mark Schneiderman shall, no later than fifteen (15) days after signing this Agreement, submit to the Minister via the PCB On-line Reporting System the reports required under subsection 33(1) of the PCB Regulations for the years 2008, 2009, 2010, 2011, 2012, 2013, 2014 and 2015, for the PCBs at 245 Victoria Avenue, Westmount.


1.2 Results

Following checks conducted by Environment and Climate Change Canada enforcement officers, it was established that 9051-6345 Québec Inc., Gerry Shapiro and Mark Schneiderman had complied with each measure as set out in the Agreement, in accordance with the dates specified therein.

  1. The payment of the contribution was made on October 22, 2015, within 15 days of the signing of the Agreement. The proof of payment was provided to Environment and Climate Change Canada on October 29, 2015;

  2. A complete written inventory of all electrical equipment that may contain PCBs, for all properties under the responsibility of Shapiro Group, Gerry Shapiro and Mark Schneiderman was provided on January 11, 2016, within the three-month deadline. The inventory complied with the expectations of Environment and Climate Change Canada;

  3. The reports required under subsection 33(1) of the PCB Regulations for the years 2008 to 2015 were submitted through the PCB On-Line Reporting System on October 28, 2015, within 15 days, for PCBs at 245 Victoria Avenue.


1.3 Conclusion

Since all the measures described in the Environmental Protection Alternative Measures Agreement, entered into on October 15, 2015, between the Attorney General of Canada and 9051-6345 Québec Inc., Gerry Shapiro and Mark Schneiderman, were complied with, it is recommended that the prosecutor ask the court to withdraw the charges. No action under section 302 of the CEPA (1999) will be taken.

Under section 301 of the CEPA (1999), a copy of the Agreement and this report, or a notice that the Agreement and this report have been filed with the court and are available to the public, shall be included in the Environmental Registry.

 

Sandra Lalande
Enforcement Officer
Environmental Enforcement Directorate – Quebec
Environment and Climate Change Canada
105 McGill St., 3rd floor
Montreal, QC
H2Y 2E7
sandra.lalande@canada.ca
Telephone: 514-283-0625

 

Appendix 1

Environmental Protection Alternative Measures Agreement

 

The attorney general of Canada

and

9051-6345 Québec Inc.
Gerry Shapiro
Mark Schneiderman


Whereas 9051-6345 Québec Inc., Gerry Shapiro and Mark Schneiderman 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 exists to warrant proceeding with the prosecution of the offences;


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
9051-6345 Québec Inc., Gerry Shapiro and Mark Schneiderman do not deny their participation or involvement in the commission of the alleged offences and accept responsibility for the above acts;


Whereas
9051-6345 Québec Inc., Gerry Shapiro and Mark Schneiderman have had the opportunity to seek legal 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 circumstances of this case, 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 9051-6345 Québec Inc., Gerry Shapiro and Mark Schneiderman 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

9051-6345 Québec Inc., Gerry Shapiro and Mark Schneiderman have been charged with the following offences:


Count 1

On or around April 1, 2015, 9051-6345 Québec Inc. and its officers, Gerry Shapiro and Mark Schneiderman, failed to submit to the Minister a report regarding the use of the electrical capacitor located at 245 Victoria, Westmount, contrary to subsection 39(1) of the PCB Regulations, thereby committing an offence punishable on conviction on indictment under paragraph 272.1(1)(f) of CEPA 1999.


Count 2

On or around January 1, 2010, and April 15, 2014, 9051-6345 Québec Inc. and its officers, Gerry Shapiro and Mark Schneiderman, used an electrical capacitor containing PCBs in a concentration exceeding 500 mg/kg, beyond the allowable date of December 31, 2009, which electrical capacitor was located at 245 Victoria, Westmount, contrary to paragraph 6(c) of the PCB Regulations, thereby committing an offence punishable on conviction on indictment under paragraph 272.(1)(h) of CEPA 1999.


Charges were laid in Montreal, province of Quebec, on July 30, 2015. 9051-6345 Québec Inc., Gerry Shapiro and Mark Schneiderman do not deny their participation or involvement in the commission of the alleged offences and accept responsibility for the above acts.


Measures

9051-6345 Québec Inc., Gerry Shapiro and Mark Schneiderman, shall make a contribution of twenty thousand dollars ($20,000) to the Receiver General of Canada in trust for the Environmental Damages Fund administered by the Regional Director General of Environment Canada, Quebec Region, within fifteen (15) days of signing this Agreement. Proof of payment of the contribution shall be provided to Environment Canada.

Within three (3) months of signing this Agreement, 9051-6345 Québec Inc., Gerry Shapiro and Mark Schneiderman shall provide Environment Canada with a complete written inventory of all electrical equipment that may contain PCBs, for all properties under the responsibility of the Shapiro Group, Gerry Shapiro and Mark Schneiderman. This inventory shall include, but not be limited to, transformers, capacitors, breakers, rectifiers and other electrical equipment containing oil, manufactured prior to 1980. The inventory shall also include stocked fluorescent lamp ballasts containing PCBs if their total PCB content exceeds 1 kg for the same site.

9051-6345 Québec Inc., Gerry Shapiro and Mark Schneiderman shall, no later than fifteen (15) days after signing this Agreement, submit to the Minister via the PCB On‑line Reporting System the reports required under subsection 33(1) of the PCB Regulations for the years 2008, 2009, 2010, 2011, 2012, 2013, 2014 and 2015, for the PCBs at 245 Victoria Avenue, Westmount.


Compliance schedule

9051-6345 Québec Inc., Gerry Shapiro and Mark Schneiderman undertake to comply with the Measures and the terms and conditions of this Agreement within the time prescribed for each of the aforementioned Measures.


Verifying compliance with this agreement

The Parties agree that Environment Canada shall supervise and monitor compliance with this Agreement, pursuant to CEPA 1999.


Inspection and other monitoring activities

Nothing in this Agreement bars CEPA 1999 enforcement officers and analysts from conducting inspections or investigations that they are legally authorized to conduct.


Confidential information

All information contained in and obtained pursuant to this Agreement is subject to the provisions of the Access to Information Act and CEPA 1999.

Trade secrets and financial, commercial, scientific or technical information that is and is treated as confidential information, the disclosure of which could likely result in financial loss or gain or could likely prejudice the competitive position of any person, or information that could likely interfere with the contractual or other negotiations of any person, shall 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 shall be accessible to the public in accordance with section 301 of CEPA 1999. The final report shall be made available to the public and to the Court in accordance with sections 300(2) and 301. Interim reports shall 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, or any other appropriate remedy, in the event of any violation of the requirements of this Agreement.


Penalties

Failure on the part of 9051-6345 Québec Inc., Gerry Shapiro and Mark Schneiderman to comply with the provisions of this Agreement is an offence under paragraph 272(1)(e) of CEPA 1999. 9051-6345 Québec Inc., Gerry Shapiro and Mark Schneiderman also acknowledge that any false or misleading representations made during negotiation of the Agreement is an offence under paragraph 272(1)(e) of CEPA 1999. 9051-6345 Québec Inc., Gerry Shapiro and Mark Schneiderman 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 does not bar any proceedings against that person under CEPA 1999.

In the event that 9051-6345 Québec Inc., Gerry Shapiro and Mark Schneiderman fail to comply with the stipulations of this Agreement, 9051-6345 Québec Inc., Gerry Shapiro and Mark Schneiderman 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 9051‑6345 Québec Inc., Gerry Shapiro and Mark Schneiderman that causes or may cause a delay in complying with any provision of this Agreement. If a force majeure incident occurs, 9051-6345 Québec Inc., Gerry Shapiro and Mark Schneiderman shall notify the Attorney General of Canada in writing as soon as possible, but in any event within seven days of when 9051-6345 Québec Inc., Gerry Shapiro and Mark Schneiderman first knew or should have known of the incident by the exercise of due diligence.

The notice shall cite the force majeure provisions of this Agreement and indicate the anticipated length of time during which 9051-6345 Québec Inc., Gerry Shapiro and Mark Schneiderman will be unable to comply with this Agreement. If a force majeure incident occurs, 9051-6345 Québec Inc., Gerry Shapiro and Mark Schneiderman shall make an application to amend the Agreement, in accordance with section 303 of CEPA 1999. The application shall be made by 9051-6345 Québec Inc., Gerry Shapiro and Mark Schneiderman to the Attorney General of Canada, and 9051-6345 Québec Inc., Gerry Shapiro and Mark Schneiderman 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 oral or written negotiations, arrangements, letters of intent, offers, proposals, representations and information conveyed between the Parties or their authorized representatives.


Severability

The provisions of this Agreement shall be severable should for any reason 9051-6345 Québec Inc., Gerry Shapiro and Mark Schneiderman 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 end of this Agreement.


Time of the essence

Time is of the essence in this Agreement.


Governing legislation

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

9051-6345 Québec Inc., Gerry Shapiro and Mark Schneiderman warrant that their obligations under this Agreement shall be performed by persons who are competent and qualified and who have the appropriate knowledge and skills.


Certification

9051-6345 Québec Inc., Gerry Shapiro and Mark Schneiderman certify that, on the effective date of this Agreement, there is no specific direction in existence requiring them to undertake any activity or refrain from taking any activity constituting the Measures negotiated in this Agreement by any federal, provincial, territorial or municipal law, or by any court order.

9051-6345 Québec Inc., Gerry Shapiro and Mark Schneiderman also certify that the funds used to carry out the alternative Measures do not come from government financial grants. Finally, 9051-6345 Québec Inc., Gerry Shapiro and Mark Schneiderman certify that the person whose signature appears below is an officer of the company and is duly authorized to sign this Agreement and bind the company.


Amendment of agreement

Any application to amend 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 9051-6345 Québec Inc., Gerry Shapiro and Mark Schneiderman 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 shall be deemed duly given or communicated if sent by registered mail, priority post or facsimile.

The addresses for delivery are as follows:

To:
Shapiro Group
Stock Exchange Tower
800 Victoria Place, Suite 440, Box 284
Montréal QC  H4Z 1E8

 

To:
Agent of the Attorney General of Canada
Trang Dai Nguyen

Prosecutor for Canada’s Director of Public Prosecutions
Public Prosecution Service of Canada
Guy-Favreau Complex, 200 René-Lévesque Blvd. W
East Tower, 9th Floor
Montréal, QC  H2Z 1X4
Telephone:
514 283-7695
Fax:
514 496-7372

 

To:
Environment Canada
Director, Environmental Enforcement

105 McGill St., 3rd Floor
Montréal, QC  H2Y 2E7
Telephone:
514 283-0625
Fax:
514 496-2087


Waiver

No condoning, excusing or overlooking by any of the Parties of any default by the other Party at any time or times in performing or observing any of its 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 signed this Agreement on this 15th day of October 2014


___________________________________________________

Charles Kazaz
Representative for
9051-6345 Québec Inc.
Gerry Shapiro and Mark Schneiderman

 

 

___________________________________________________

Trang Dai Nguyen
Agent of the Attorney General of Canada

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