Environmental Protection Review Canada
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Review of Compliance Order - August 12, 2010

In the Matter of the Environmental Protection Compliance Order issued under Section 235 of the Canadian Environmental Protection Act (1999) on June 2, 2010 in file number 5008-2010-05-18-002

And in the Matter of the written request for review received July 13, 2010 from Benoit Boudreau on behalf of Rewaco Trike Central Chilliwack.

Benoit Boudreau operating as a sole proprietorship under the name and style of Rewaco Trike Central at 8982 Young Road, Chilliwack, British Columbia, made a request for a review of an Environmental Protection Compliance Order dated June 2, 2010 and delivered to Mr. Boudreau on or about June 8, 2010, issued pursuant to Section 235 of the Canadian Environmental Protection Act, 1999 (hereinafter the “Act”), being file numbered 5008-2010-05-18-002. A request for review may be made by notice in writing, giving to the Chief Review Officer within 30 days pursuant to Section 256(1) of the Act. Although Mr. Boudreau’s request for review was received a few days beyond the 30 day deadline, I have exercised my discretion pursuant to Section 256(2) of the Act to extend the deadline for making a request for review to accommodate Mr. Boudreau’s request. At the hearing of this review counsel present voiced no objection to this extension, when asked. In addition this review was scheduled for August 10, 2010, in light of the urgency for a decision presented in Mr. Boudreau’s request for a review. In spite of short notice both counsel represented their clients’ interests well.

Mr. Travis Teel, a properly designated enforcement officer pursuant to Section 217 of the Act, attended at Mr. Boudreau’s business premises at 10:19 am on the morning of June 2, 2010 after a referral was offered by any witness and Mr. Teel testified that he had no knowledge of the content of the referral. While counsel for Mr. Boudreau took the position that entry and inspection, made pursuant to the powers clearly given Mr. Teel by the Act, should have only occurred after reasonable notice, verbally or in writing, I find that Mr. Teel’s actions during regular business hours on the business premises were entirely reasonable and professional.

This is even more so when no evidence was given by Mr. Boudreau of any disruption to his business or interference with any customer or sales transaction resulting from this entry and inspection.

Counsel for Mr. Boudreau also took the position that Mr. Teel acted harshly and unfairly in failing to consider the option of issuing a warning rather than a compliance order. The reasons given by Mr. Boudreau’s counsel were the minimal effect on the environment imposed by three motorized tricycles and the dramatic financial consequences a compliance order could have upon Mr. Boudreau. While on August 10, 2010, with all of the evidence given me, I might be sympathetic to this argument, the evidence in existence on June 2, 2010 when Mr. Teel had a statutory responsibility to deal with Mr. Boudreau’s clear non-compliance with statute and regulations leads me to conclude that Mr. Teel’s decision to issue a compliance order was reasonable. There is no evidence before me that Mr. Boudreau at that time, produced any documentation of emissions testing for certification purposes or any other purpose nor did he give any information or make any argument concerning the economic impact of such a compliance order upon him or his business.

I find that Mr. Boudreau made efforts to import these motorized vehicles in a proper, legal manner. His dealings with the Canadian Border Services Agency and Transport Canada, with experienced agents and with trade organizations, were above board, transparent and honest. In light of this, I find it difficult to believe that he was not told by anyone of the requirements to meet Canada’s emission standards and to comply with the regulatory process set forth in the Act and its regulations. Yet that is the only evidence before me. While this situation evokes sympathy for Mr. Boudreau, it cannot overwhelm the statutory obligations contained in Section 152 and 154 of the Act and the Regulations issued pursuant to the Act, namely the On-Road Vehicle and Engine Emissions Regulations (SOR/2003-2). Vehicle Emissions legislation, regulations and policy have been a matter of general public knowledge for over 30 years and to undermine the Act on the basis of ignorance of these matters would be a stunning conclusion to this matter.

Mr. Boudreau seeks immediate relief in order to transport his inventory of motorized tricycles to trade shows, yet his own evidence was that these shows are generally in the winter and the major shows or exhibitions are in Calgary, Edmonton and Vancouver in January of each year, well after emissions testing and the proper applications would have been made.

With regards to the dramatic and negative financial impact of the Compliance Order in question, there was no documentary evidence given of this financial impact. Mr. Boudreau is a retired army veteran, having served our country for 30 years (no doubt with distinction). He undoubtably receives a pension and runs his business to earn additional income. He has limited his business to the sale of Rewaco Trikes and is seeking, as exclusive Canadian dealer for the German manufacturer, to expand the business through associate dealerships in Alberta and eventually the rest of Canada. At this point in time sales are minimal but important to him. There is no proven dramatic business impact such as to overwhelm the public interest in national emissions standards for motorized vehicles.

Ms. Riddle in her submissions indicated that my authority under section 263 is restricted by (in this instance) Sections 152 to 156 of the Act and the Regulations and not merely by Section 265. I do not share that view. Referring to Section 265 or the Act, in terms of harm to the environment or impairment of the environment, the only evidence before me indicates that emissions from these three motorized tricycles is minimal and significantly less than the emission standards required by the statutory and regulatory regime of Canada.

I make these observations to underline the lack of effort by all other parties to this hearing to answer Mr. Boudreau’s testing documentation or to indicate how they intend to work with Mr. Boudreau to resolve his problems. He deserves at least that as all agree that he has been working to comply with the Order under review.

My decision is:

  1. I recommend that the Minister of the Environment and Environment Canada co-ordinate with Canada Border Services Agency and Transport Canada a proper processing of imported vehicles to ensure compliance with Canada’s emission standards and regulatory regime is part of every interaction between their clients or importers and those agencies and departments.
  2. I recommend to the Minister of the Environment and Environment Canada that they actively co-operate with Mr. Boudreau in the certification and labelling of his Rewaco Trikes, in the most expeditious possible manner. I include in this recommendation that the Minister issue an exception under Section 155 of the Act.
  3. I confirm the Order reviewed.

DATED at Vancouver, British Columbia this 12th day of August, 2010.

Alan William Pope
Chief Review Officer