



COURT OF APPEAL FOR ONTARIO

CITATION: Ontario (Environment and Climate Change) v. Geil,
    2018 ONCA 1030

DATE: 20181214

DOCKET: C64736

Strathy C.J.O., Doherty and Roberts JJ.A.

BETWEEN

Her Majesty the Queen
(Ministry of the Environment and Climate Change)

Appellant

and

Jason John Geil

Respondent

Kathleen A. Clements and Nicholas P. Adamson, for the
    appellant

Harald A. Mattson, for the respondent

Heard: September 19, 2018

On appeal from the order dated
    August 24, 2017 of Justice Norman S. Douglas of the Ontario Court of Justice,
    sitting as a Provincial Offences Appeal Court, allowing the appeal from the
    conviction entered on January 27, 2017 by Justice of the Peace Ralph Cotter of
    the Ontario Court of Justice.

Strathy C.J.O.:

[1]

This Crown appeal concerns warrantless inspection powers under s. 156(1)
    of the
Environmental Protection Act
, R.S.O. 1990, c. E.19 (
EPA
).
[1]
Subsection 156(1)(c) permits a provincial officer, without a warrant or court
    order, to inspect any place in or from which the officer reasonably believes
    a contaminant is being, has been or may be discharged into the natural
    environment. This appeal requires us to interpret the standard of reasonable
    belief grounding the inspection power and to apply that standard to the
    factual circumstances of this case.

[2]

The essential facts were uncontested at trial. The respondent admitted
    that on the day of the alleged offence, November 22, 2013, there was an open
    fire burning on his property and that he prevented a provincial officer from
    the Ministry of the Environment and Climate Change (MOE) from entering the
    property to carry out an inspection. The respondent was charged with hindering
    or obstructing the provincial officer in the performance of his duties,
    contrary to s. 184(1) of the
EPA
.

[3]

The only issue at trial was whether the provincial officer had the
    requisite authority under s. 156(1) to conduct a warrantless inspection of the
    respondents property on the date of the alleged offence.

[4]

The justice of the peace of the Provincial Offences Court found that the
    provincial officer had authority to enter the respondents property pursuant to
    s. 156(1)(c), and entered a conviction. The respondent appealed to a judge of
    the Ontario Court of Justice, sitting as a Provincial Offences Appeal Court
    (POAC). The POAC judge quashed the conviction and entered an acquittal.

[5]

The Crown sought leave to appeal to this court on special grounds on a
    question of law alone, pursuant to s. 131 of the
Provincial Offences Act
,
    R.S.O. 1990, c. P.33. Leave was granted by a single judge of this court on
    December 13, 2017.

[6]

For the reasons that follow, I would allow the appeal, set aside the
    acquittal, and restore the conviction entered by the justice of the peace.


I.

the facts

[7]

On November 22, 2013, a bylaw officer of the Township of North Dumfries
    received a call from a resident, who stated that construction debris was being
    hauled onto a neighbouring property where it was being burned. The bylaw
    officer attended at the callers property that same morning. He spoke to the
    neighbour, and observed a large fire on the respondents property. He could not
    say for certain what was being burned, but testified that it included wood. He
    observed smoke coming from the fire, but did not detect any unusual colour or
    smell.

[8]

The bylaw officer informed the MOE of his observations.

[9]

Within about four hours of the bylaw officers initial observations, two
    MOE provincial inspection officers attended at the respondents property,
    together with the bylaw officer and two officers from the Waterloo Regional
    Police.

[10]

One of the provincial officers testified that, based on the information
    he had received from the bylaw officer, he had three concerns: waste was being
    transported to and being disposed of on the respondents property, an activity
    regulated by Part V of the
EPA
; the waste was being burned; and the
    compounds generated by the burning waste would be emitted into the natural environment
    in the form of smoke.

[11]

The provincial officer did not personally see smoke or fire until he
    entered the respondents property. It is acknowledged by the appellant that the
    reasonableness of the officers belief must be assessed on the basis of the state
    of his knowledge before he entered the property.

[12]

After the provincial officer entered the property, he observed smoke
    from a fairly substantial fire of broken wood. He identified himself and
    informed the respondent that he wanted to inspect the fire to determine whether
    or not waste was being burned, and whether it constituted a contravention of
    the
EPA
. The respondent told the provincial officer that open burning was
    occurring on his property. The bylaw officer asked the respondent what was
    being burned, and the respondent indicated that he was burning debris from a
    demolished barn on the property. The respondent denied the officers access to
    inspect the fire and asked them to leave. The officers did so.


II.

decisions in the courts below

Provincial Offences Court

[13]

The justice of the peace noted that a reasonable belief is not the same
    as reasonable and probable grounds in the criminal context. Applying an
    analysis based on
R. v. Debot
, [1989] 2 S.C.R. 1140, at p. 1168, as
    applied in
R. v. Kalsatos
, 2016 ONCJ 353, 361 C.R.R. (2d) 71, at para.
    72, the justice found that the provincial officer had acted on a credible and
    reliable tip. In making this finding, he noted that: (1) the presence of a fire
    was confirmed by both the neighbour and by the bylaw officer; (2) their
    observations were timely and close to the time of the inspection; and (3) there
    had been a history of burning on the property.

[14]

The justice of the peace noted that the information received by the
    provincial officer from the bylaw officer was sufficient to engage the
    provincial officers inspection powers, even though that officer saw no smoke
    or fire before he entered the property. Section 156(1)(c) permitted the officer
    to enter the property if he reasonably believed a contaminant
had
been discharged. The respondent was convicted.

Provincial Offences Appeal Court

[15]

In a brief decision, the POAC judge held that the trial justice erred in
    law in interpreting the provincial officers right to enter the property
    without a warrant.

[16]

He held that the provincial officers belief that contaminants may have
    been discharged did not have an adequate foundation. It was not enough that the
    provincial officer was told by someone else that someone may have been discharging
    contaminants in the air.

[17]

The respondent was not obstructing or hindering the provincial officer
    in the execution of his duties, because the provincial officer did not have
    authority to enter the respondents property. The POAC judge added:

Had the Inspector gone and got a warrant to enter the property,
    he would have had to convince the Justice of the Peace that he had a reasonable
    belief, and then he would have been in the lawful execution of his duty

[18]

The POAC judge allowed the appeal and quashed the conviction.

III.

the issues

[19]

There are two issues raised in this appeal:

a.

Did the POAC judge err in his articulation of the legal test for a
    regulatory inspection under s. 156(1) of the
EPA
?

b.

Did the POAC judge err in finding that the provincial officer did not
    have the authority to conduct an inspection of the respondents property under
    s. 156(1) of the
EPA
?

[20]

As I have noted, a resolution of these issues requires this court to
    interpret the requirement of reasonable belief in s. 156(1).

[21]

Before setting out my analysis, I will briefly summarize the parties
    positions.

IV.

the parties positions

Appellant

[22]

The appellants position is that smoke is a contaminant under the
EPA
.
    A direct observation of the discharge of smoke by the bylaw officer and the
    report of the neighbour were sufficient to support the provincial officers
    reasonable belief that a contaminant was being, had been, or may be discharged
    into the natural environment. This belief enabled the officer to employ the inspection
    powers in s. 156(1).

[23]

The appellant takes issue with the analysis of both the trial justice
    and the POAC judge. The appellant submits that it was not appropriate to import
    into the regulatory context the legal standard set out in
Debot
for
    assessing tips in a criminal law context. While the trial justice found that
    the
Debot
standard was met in this case, the appellant submits that he
    set the bar too high.

[24]

The meaning of reasonable belief must be determined based on the
    nature of the regulatory power and the context in which it is exercised. The
    purpose of regulatory inspections is to determine compliance, not penal
    liability. By their very nature, regulatory inspections occur before there are
    reasonable grounds to believe an offence has been committed. The statutory
    standard of reasonable belief in the regulatory context is lower than what is
    required under the criminal law.

Respondent

[25]

The respondent asks this court to find that reasonable belief means more
    than mere suspicion. He submits that the report of smoke, with no evidence of
    an unusual colour or odour, could not give rise to a reasonable belief that
    waste was being hauled onto the property and burned. There was no evidence that
    wood smoke is a contaminant or that the wood being burned on the property
    contained contaminants.


V.

analysis

[26]

The primary issue raised in this appeal  the meaning of reasonably
    believes in s. 156(1) of the
EPA
 is a matter of statutory
    interpretation. The modern approach requires that the words of the statute be
    read in their entire context and in their grammatical and ordinary sense,
    harmoniously with the scheme of the Act, the object of the Act, and the
    intention of the enacting legislative body:
Rizzo & Rizzo Shoes Ltd.
    (Re)
, [1998] 1 S.C.R. 27, at para. 21;
Agraira Canada v. Canada
    (Public Safety and Emergency Preparedness)
, 2013 SCC 36, [2013] 2 S.C.R.
    559, at para. 64.

[27]

In the analysis that follows, I will consider: (a) the object and scheme
    of the
EPA
; (b) the context of the legislative provision; and (c) the
    plain meaning of reasonable belief. Having undertaken this analysis, I will
    set out in section (d) my interpretation of s. 156(1). Finally, in section (e),
    I will apply that interpretation to the facts of this case, after contrasting
    it with the interpretations in the courts below.

(a)

The object and scheme of the
EPA

[28]

The
EPA
is Ontarios primary environmental protection statute:
Castonguay
    Blasting Ltd. v. Ontario (Environment)
, 2013 SCC 52, [2013] 3 S.C.R. 323,
    at para. 9. Its purpose, consistent with its name, is set out in s. 3(1): to
    provide for the protection and conservation of the natural environment. The
    natural environment is defined in s. 1(1) of the
EPA
as the air,
    land and water, or any combination or part thereof.

[29]

Courts have recognized that this purpose extends beyond the natural
    environment and includes the protection of human health, plant and animal
    life, and property:
Castonguay
, at para. 10;
R. v. Dow Chemical
    Canada Inc.
(2000), 47 O.R. (3d) 577 (C.A.), at para. 49.

[30]

The
EPA
, and the extensive regulatory framework enacted under
    it, establish a scheme for the regulation of many activities affecting the
    natural environment. It is remedial legislation and, as this court has
    observed, it is to be given a large and remedial interpretation:
Re Rockcliffe
    Park Realty Ltd. and Director of the Ministry of the Environment et al.
(1976),
    10 O.R. (2d) 1 (C.A.), per Dubin J.A., at p. 15, per Jessup J.A. (dissenting),
    at p. 7. See also
Legislation Act, 2006
, S.O. 2006, c. 21, Sched. F,
    s. 64(1).

[31]

While the
EPA
is remedial legislation, it also has protective
    and preventative purposes:
Castonguay
, at paras. 12, 21; see also
R.
    v. Consolidated Mayburn Mines Ltd.
, [1998] 1 S.C.R. 706, at para. 54. This
    is apparent from the scope of the regulations and the reporting requirements,
    and the wide range of inspection, enforcement, and remedial powers contained in
    the Act. The Supreme Court in
Ontario v. Canadian Pacific Ltd.
, [1995]
    2 S.C.R. 1031, noted, at para. 43, that environmental legislation embraces an
    expansive approach, to ensure that it can adequately respond to a wide variety
    of environmentally harmful scenarios, including ones which might not have been
    foreseen by the drafters of the legislation.

[32]

The court in
Castonguay
affirmed these observations, at para.
    9, and also acknowledged that the effective functioning of the
EPA
is
    premised upon the expertise and investigative resources of the MOE in
    fulfilling the statutory mandate, stating, at para. 18:

When a contaminant is discharged, the discharger may not know
    the full extent of the damage caused or, in the words of s. 15(1), likely to be
    caused. Moreover, many potential harms such as harm to human health, or injury
    to plants and animals, and even impairment of the natural environment, may be
    difficult to detect without the expertise and resources of the Ministry. As a
    result, the statute places both the obligation to investigate and the decision
    about what further steps are necessary with the Ministry and not the
    discharger.

[33]

The
EPA
achieves its statutory purpose by, among other things,
    establishing limits on permissible discharges of contaminants. It also
    regulates a host of activities that can cause pollution, including waste
    management facilities. These functions are accomplished through a system of
    licences and approvals for certain activities.

[34]

The
EPA
contains a general prohibition, in s. 6, against the
    discharge into the natural environment of any contaminant in an amount,
    concentration or level in excess of that prescribed by regulations. A
    contaminant is broadly defined in s. 1(1) as any solid, liquid, gas, odour,
    heat, sound, vibration, radiation or combination of any of them resulting
    directly or indirectly from human activities that causes or
may cause
an adverse effect (emphasis added). The term
    adverse effect is also broadly defined. It includes the impairment of the
    natural environment, harm or material discomfort to any person, an adverse
    effect on the health of any person, and loss of enjoyment of the normal use of
    property.

[35]

Part X of the
EPA
contains detailed provisions with respect to
    environmental spills, a term that means the discharge of an abnormal quantity
    of a pollutant into the natural environment. A person responsible for a spill
    is required to report it, to take measures to mitigate its effect, and to
    restore the natural environment.

[36]

With respect to enforcement powers, Part XI of the
EPA
contains
    provisions enabling a Director to issue control orders and stop orders to
    require the person to whom the order is directed to stop or limit the discharge
    of a contaminant into the natural environment, or to take measures to control
    or eliminate the discharge.

[37]

The
EPA
further provides that every person who contravenes the
    Act or regulations is guilty of an offence and provides for a fine or
    conviction, or in the case of a subsequent offence by an individual, a fine or
    imprisonment.

[38]

I now turn to an examination of the place of s. 156(1) in the range of regulatory
    powers enumerated in the Act.

(b)

The context of the legislative provision

[39]

The
EPA
contains a broad range of inspection, compliance,
    prevention, and enforcement provisions. The provisions of the
EPA
are
    administered and enforced by Directors appointed by the Minister and by
    provincial officers. The powers of provincial officers are set out in Part
    XV. Subject to certain limits, they are given the power to make inspections
    (ss. 156, 156.1, 158), to conduct searches (s. 161), to take samples (s. 159),
    and to seize evidence (s. 160), among other things.

[40]

A provincial officers authority to make inspections is central to the
    protective and regulatory purposes of the
EPA
and is derived primarily
    from two key provisions in Part XV  s. 156 and s. 158. A third provision, s.
    156.1, provides provincial officers with the power to inspect vehicles and
    vessels.

Section 156(1): Inspection

[41]

Section 156(1), the provision engaged in this appeal, confers authority
    on a provincial officer to make inspections, without a warrant or court order,
    for a range of purposes necessary for the effective administration of the
EPA
.
    The scope of that authority and the circumstances in which it may be exercised
    are informed by the remedial, preventative, and protective purposes of the
    statute.

[42]

The provincial officers authority includes a broad right, under s.
    156(1)(a) to enter any part of the natural environment, without a warrant or
    court order, to make an inspection to ascertain the extent, if any, to which
    contaminants have caused an adverse effect, the causes for any adverse effect,
    and how any adverse effect may be prevented, eliminated or ameliorated and the natural
    environment restored. There is no standard of reasonable belief or other requisite
    state of knowledge applicable to entry into any part of the natural
    environment in s. 156(1)(a), nor is the standard of reasonable belief
    incorporated into six other enumerated circumstances in s. 156(1): see ss.
    156(1)(e.1), (f), (g), (h), (i), and (k).

[43]

The standard of reasonable belief comes into play in five of the
    enumerated circumstances in s. 156(1). In those five circumstances, the
    language of the provincial officer reasonably believes is used as a condition
    of entry into any place: see ss. 156(1)(b), (c), (d), (e), and (j). These
    provisions provide, among other things, that an officer may enter any place
    in which the provincial officer reasonably believes that anything governed or
    regulated by the Act may be found (s. 156(1)(b)), that certain documents are
    likely to be contained (s. 156(1)(d)), that is subject to or required to be
    subject to a permit, licence, or approval (s. 156(1)(e)), or that the permit
    and plates of a vehicle may be found in order to seize them in accordance with
    ss. 48 or 49 (s. 156(1)(j)).

[44]

Section 156(1)(c), the provision at issue here, provides:

For the administration of this Act or the regulations, a
    provincial officer may, without a warrant or court order, at any reasonable
    time and with any reasonable assistance, make inspections, including,



(c) entering any place in or from which
the
    provincial officer reasonably believes
a contaminant is being, has been
    or may be discharged into the natural environment  [Emphasis added.]

[45]

During an inspection under s. 156(1), the provincial officer is entitled
    to, among other things, make excavations, take samples, conduct tests or take
    measurements, require that anything be operated under specified conditions,
    examine, record or copy documents, take photographs, and require the production
    of documents or data: s. 156(2). However, the provincial officer may not
    inspect a room actually used as a dwelling without the consent of the
    occupier except under the authority of a court order under s. 158: s. 156(5).

[46]

A comparison of the inspection powers set out in s. 156(1) with other
    powers accorded to provincial officers by the Act, provides insight into the
    interpretation of s. 156(1). Part XV of the
EPA
sets different
    standards applicable to the provincial officers knowledge in order to support
    the exercise of the enumerated powers. The standard depends on the context. In
    the case of s. 156(1)(a), which permits entry into any part of the natural
    environment, there is no requisite state of knowledge. In some circumstances,
    such as those set out in ss. 156(1)(b), (c), (d), (e), and (j), the statute
    requires reasonable belief. The same standard of reasonable belief applies to
    many other exercises of a provincial officers powers under the provisions of
    the
EPA
.
[2]

[47]

The reasonable belief standard set out in certain provisions of s.
    156(1) also governs the provincial officers authority to issue contravention
    orders under s. 157 of the
EPA
. Section 157 provides that a provincial
    officer may, among other things, issue an order to any person that he or she
    reasonably believes is contravening the provisions of the Act or regulations,
    or another order made under the Act. The order may require the person to comply
    with any directions related to achieving compliance with the Act or
    regulations.

Section 158(1): Judicial authorization

[48]

The provisions of s. 156(1) are to be contrasted with s. 158(1), which
    provides that a justice may authorize a provincial officer to do anything
    enumerated in s. 156 if the justice is satisfied, by evidence under oath by a
    provincial officer, that there is reasonable ground to believe that it is
    appropriate for the provincial officer to do so for administration of the Act,
    and that the provincial officer may not be able to effectively carry out his or
    her duties without such an order.

[49]

Section 158(1) permits an officer to obtain an entry or inspection order
    in circumstances where, among other things, no occupier is present to grant
    access; a person has prevented the officer from conducting an inspection; or
    there are reasonable grounds to believe that an inspection without the order
    may not achieve its purpose or might endanger human health, property or the
    natural environment. In the situations captured under s. 158(1):

A justice may issue an order authorizing a provincial officer
    to do anything set out in subsection 156 (1) or (2) or section 156.1 if the
    justice is satisfied, on evidence under oath by a provincial officer, that
    there is
reasonable ground to believe
that it is
    appropriate for the administration of this Act or the regulations for the
    provincial officer to do anything set out in subsection 156 (1) or (2) or
    section 156.1 and that the provincial officer may not be able to effectively
    carry out his or her duties without an order under this section  . [Emphasis
    added.]

Section 161: Search powers

[50]

The inspection powers authorized by s. 156 are also to be distinguished
    from the search powers in s. 161 of the
EPA
. Section 161(2) authorizes
    a search, without a warrant, of any place other than a room actually used as a
    dwelling, where a provincial officer has reasonable ground to believe: (a)
    that an
offence
has been committed related to the
    discharge of a contaminant into the natural environment or to hazardous waste
    or hauled liquid industrial waste; (b) that there is in such place any thing
    that will afford evidence as to the commission of the offence; and (c) that
    there are exigent circumstances that make it impractical to obtain a search
    warrant. As indicated above, the same standard, reasonable ground to believe,
    applies when a justice issues an order under s. 158(1).

Section 156(1) in context

[51]

Viewing s. 156(1) in the context of the range of powers enumerated in
    the Act indicates that this provision authorizes activities intended to support
    the provincial officers preventative and compliance powers. It is not directed
    at the investigation of offences, the seizure of evidence, or the issuance of
    binding orders or directions. It is at the least intrusive end of the provincial
    officers authority. As outlined above, more intrusive powers require a higher
    level of belief or knowledge, or require prior judicial authorization.

[52]

The more onerous standard of reasonable and probable grounds applies
    to the Director, when issuing a stop order, control order, or an order for
    certain preventative measures or financial assurances.
[3]

[53]

Against this statutory backdrop, I turn to the meaning of reasonable
    belief.

(c)

The plain meaning of reasonable belief

[54]

Sometimes the plain meaning of a statutory term gets lost in the
    application of rules of interpretation. The term reasonable belief, while not
    commonly used in everyday conversation, is not complicated.

[55]

A belief is a state of mind. It is an acceptance of the truth of something,
    without necessarily having personal knowledge of its truth. It can be
    contrasted with suspicion, which is based on supposition. A belief suggests a
    higher level of certainty than suspicion, but something less than knowledge.

[56]

But the word believes in s. 156(1)(c) is qualified by reasonable. A
    reasonable belief is one that a reasonable person would hold, based on the
    existence of some objective evidence to support the belief.

[57]

The term reasonably believes is itself qualified in some parts of s.
    156(1). For example, in s. 156(1)(c), the officer may enter any place in which
    the officer reasonably believes a contaminant
is being,
    has been or may be
discharged into the natural environment. Section
    156(1)(d) authorizes the entry into any place that the provincial officer
    reasonably believes is
likely
to contain
    documents related to certain enumerated activities.

[58]

It is of some significance that the term reasonably believes as a
    pre-condition to the exercise of warrantless inspection powers is found in
    several other statutes in Ontarios suite of environmental protection
    legislation.
[4]

[59]

In spite of this, there is no clear legal definition of the term, either
    in the statutes or in the authorities. Some assistance may be gleaned, however,
    from the case law interpreting the term reasonable ground(s) to believe in
    other statutory contexts. That case law can serve as a benchmark against which
    to measure the reasonable belief standard in s. 156(1). As is apparent from
    the case law, however, caution must be exercised because a general term such as
    reasonable ground(s) to believe takes its meaning from its context.

[60]

In
Mugesera v. Canada (Minister of Citizenship and Immigration)
,
    2005 SCC 40, [2005] 2 S.C.R. 100, the Supreme Court considered the meaning of
    reasonable grounds to believe in a regulatory context. Section 19(1)(j) of
    the
Immigration Act
, R.S.C. 1985, c. I-2, provided that [n]o person
    shall be granted admission who is a member of any of the following classes: 
    persons who there are reasonable grounds to believe have committed an act or
    omission outside Canada that constituted a war crime or a crime against
    humanity.

[61]

The Supreme Court affirmed Federal Court of Appeal jurisprudence holding
    that reasonable grounds to believe requires something more than mere
    suspicion, but less than proof on the balance of probabilities. It requires
    an objective basis for the belief which is based on compelling and credible
    information:
Mugesera
, at para. 114.

[62]

In discussing this formulation of the standard, the Federal Court in
Canada
    (Minister of Citizenship and Immigration) v. U.S.A.
, 2014 FC 416, at para.
    22, noted that the standard of reasonable grounds to believe is novel given
    that beliefs are very open ended. The court explained that [r]equiring the
    belief to be reasonable brings the standard into the factually-bound legal
    world  fixing the meaning of the standard by reference to elements of its
    composition that are familiar in the juristic world.

[63]

In
U.S.A.
, the court rejected the respondents argument that
    the test under s. 19(1)(j) of the
Immigration Act
should include a
    requirement that the information be corroborated, finding, at para. 24, that
    this would impose too high a standard.

[64]

The standard articulated in
Mugesera
has been consistently
    applied in the immigration context and has also been applied by courts in other
    regulatory contexts: see e.g.
Wier v. Canada (Minister of Health)
,
    2011 FC 1322, 400 F.T.R. 212, at para. 97, involving s. 17(1) of the
Pest
    Control Products Act
, S.C. 2002, c. 28;
Lyras v. Heaps
, 2008 ONCJ
    524, 51 M.P.L.R. (4th) 277, at para. 24, involving the
Municipal Election Act,
    1996
, S.O. 1996, c. 32, Sched.

[65]

This court has recently considered the reasonable ground(s) to believe
    standard as articulated in
Mugesera
in two cases. In
Ontario
    (Registrar of Alcohol and Gaming Commission) v. 751809 Ontario Inc. (Famous
    Flesh Gordons)
, 2013 ONCA 157, 115 O.R. (3d) 24, leave to appeal refused,
    [2013] S.C.C.A. No. 259, the Registrar brought an application before the Board
    of the Alcohol and Gaming Commission pursuant to s. 15(1) of the
Liquor
    Licence Act
, R.S.O. 1990, c. L. 19 for an order revoking the respondents
    licence on the basis that reasonable grounds for belief existed that the
    respondent would not carry on business in accordance with the law and with
    integrity and honesty within the meaning of s. 6(2) of the Act.

[66]

The application was dismissed, the Registers appeal was dismissed, and
    the case was appealed with leave to this court. This court allowed the appeal
    on the basis that the board erred by applying the civil standard of balance of
    probabilities instead of the statutory standard of reasonable grounds for
    belief:
Famous Flesh Gordons
, at paras. 18-24. In describing the
    statutory standard, the court noted that there is no doubt that this is a
    lower standard than a balance of probabilities and cited para. 114 of
Mugesera
as dealing with this standard, one commonly used in regulatory statutes:
Famous
    Flesh Gordons
, at para. 18.

[67]

Some assistance is also found in the decision of this court in
1704604
    Ontario Ltd. v. Pointes Protection Association
, 2018 ONCA 685, 142 O.R.
    (3d) 161, one of six appeals heard together to consider s. 137.1 of the
Courts
    of Justice Act
, R.S.O. 1990, c. C.43, commonly referred to as the
    anti-SLAPP (strategic lawsuits against public participation) provisions.

[68]

Section 137.1(3) requires a judge to dismiss a proceeding against a
    person if that person satisfies the judge that the proceeding arises from an expression
    made by the person that relates to a matter of public interest. An exception
    exists, which provides that a judge shall not dismiss a proceeding if the
    responding party (the plaintiff) satisfies the judge, among other things, that
    there are grounds to believe that the proceeding has substantial merit and
    the moving party has a valid defence in the proceeding: s. 137.1(4)(a)
[5]
.

[69]

Doherty J.A., speaking for the court, found that the use of the word
    satisfies in s. 137.1(4) indicated that the applicable standard was a balance
    of probabilities. It was argued on a number of the appeals that the absence of
    the modifier reasonable in front of grounds to believe in s. 137.1(4)(a)
    signaled a lower standard than reasonable grounds to believe. Doherty J.A.
    found that the word reasonable was implied in the text. He stated, at para.
    69 of
Pointes
:

Although the word "reasonable" does not appear in
    the text, I think it is implicit. The section requires a judicial assessment of
    the potential strength of the plaintiff's claim and the availability of any
    valid defence to the claim. Judicial decision-making is antithetical to
    decisions based on unreasonable or speculative grounds. A statute that requires
    a judge to have "grounds to believe" implicitly requires that those
    grounds be reasonable.

[70]

Further assistance is provided by another decision in the anti-SLAPP
    sextet,
Platnick v. Bent
, 2018 ONCA 687, 23 C.P.C. (8th) 275. There,
    in interpreting the onus of proof under s. 137.1(4)(a) of the
Courts of
    Justice Act
, the motion judge had adopted the standard of reasonable
    grounds to believe as set out in
Mugesera
, namely that there must be
    an objective basis for the belief which is based on compelling and credible
    information and adapted it to the circumstances of the provision:
Platnick
    v. Bent
, 2016 ONSC 7340, 136 O.R. (3d) 339, at paras. 84, 86, citing
Mugesera
,
    at para. 114. Doherty J.A., at paras. 47-48, rejected this standard on the
    basis that the regulatory context at issue in
Mugesera
was
    distinguishable due to the nature of the proceeding, the task of the decision
    making body, and the substantive outcome of the process:

The kind of determination under consideration in
Mugesera
was very different from the determination a motion judge must make on a s. 137.1
    motion. In
Mugesera
, the Immigration and Refugee Board (Appeal
    Division), after hearing 24 days of evidence, had to decide whether there were
    reasonable grounds to believe that Mr. Mugesera had committed war crimes and
    crimes against humanity. This involved determining whether there were
    reasonable grounds to believe that certain facts existed which, as a matter of
    law, would constitute such crimes. The description of the reasonable grounds to
    believe standard as requiring "compelling and credible information"
    was made in the context of a fact-finding exercise carried out after a hearing
    that lasted over three weeks. Mr. Mugesera's right to stay in the country
    hinged on that fact-finding.

A motion judge conducting a s. 137.1 motion does not make
    findings of fact under s. 137.1(4)(a).  In my view, the phrase
    "reasonable grounds to believe" used in the context of s. 137.1 calls
    for a less demanding inquiry than s. 19 of the
Immigration Act
required.

[71]

Doherty J.A., at para. 49, further noted that the standard in
Mugesera
invites the decision maker or reviewing body to assess the merits or
    credibility of the information, rather than focusing on the issue of whether
    the record discloses a reasonable basis for the requisite belief:

Nor, in my view, is it simply a matter of word choice. I think
    the phrase "compelling and credible information" can easily lead a
    motion judge into an assessment of the ultimate merits of the case and the
    credibility of the claimants. As explained in
Pointes
, at paras.
    78-82, the issue for the motion judge is not the ultimate strength of the claim
    or the believability of the plaintiff, but only whether the record provides a
    reasonable basis for believing the claim has substantial merit and that there
    is no valid defence.

[72]

As the foregoing review suggests, the precise requirements necessary to
    meet a commonly used statutory standard are driven primarily by the context in
    which it is applied. However, some principles guiding the interpretation of
    reasonable ground(s) to believe can be distilled from the case law. First,
    the use of the word reasonable to qualify the standard of belief suggests
    that there must be an objective basis for the belief. Second, the requirements
    are informed by the degree of scrutiny to which the basis of belief is
    subjected. This, in turn, is informed by the circumstances in which the
    decision is made; the procedure involved; and the ultimate purpose of the
    decision resulting from the application of the standard. Finally, reasonable
    grounds to believe has been interpreted in the regulatory context as requiring
    something more than mere suspicion, but something less than proof on a balance
    of probabilities.

[73]

With these observations, I turn now to an interpretation of reasonable
    belief in the context of s. 156(1) of the
EPA
.

(d)

The interpretation of s. 156(1)(c)

[74]

The contextual difference between the standard of reasonable ground(s)
    to believe as articulated in
Mugasera
, and applied in cases like
Flesh
    Gordons
, and the standard of reasonable belief in the context of s.
    156(1) is significant. Under s. 156(1), there is no independent scrutiny or assessment
    of the reasonable belief. It is the provincial officers own belief in the
    circumstances that is at issue. Judicial assessment occurs if the officers
    inspection is frustrated or impeded and a judicial order is required under s.
    158. In such cases, a justice must be satisfied that there is reasonable
    ground to believe that the inspection power under s. 156 should be invoked.
    While both s. 156(1) and s. 158(1) invoke a standard of reasonable belief, the
    precise requirements for meeting the threshold of reasonable belief are
    informed by the distinct circumstances in which they are engaged.

[75]

The determination of whether the standard under s. 158(1) is met is made
    by a judicial officer reviewing the request of the MOE for an order to conduct
    the inspection prompted by the circumstances enumerated in s. 156(1). As such,
    the nature of the reasonable belief must be communicated on evidence-based
    grounds, and subjected to a judicial assessment and weighing of the
    circumstances. Under s. 156(1), the reasonable belief is that of the provincial
    officer and accordingly invokes a subjective component which is engaged in an immediate
    and reactive manner. The requirement of reasonableness directs that this
    subjective belief must have an objective basis at the time that it is formed.

[76]

While the provincial officer may be required to explain his or her
    belief after the fact, as is the situation in this case, the reasonableness of
    the belief is based on the provincial officers assessment of the information
    available at the time the power of inspection is invoked. The provincial officer
    is not required to engage in the kind of weighing of evidence that a justice
    would undertake under s. 158(1).

[77]

Having regard to the purpose and scheme of the
EPA
, the nature
    of the harm it seeks to prevent, and the need to promptly and efficiently
    investigate and respond to potential environmental harm, it is my view that
    reasonable belief in s. 156(1) describes a low threshold. The standard
    requires a subjective belief that is reasonable in light of the information
    available to the provincial officer in the circumstances. It requires the
    ability to articulate, after the fact, the provincial officers assessment of
    the information available to him or her at the time.

[78]

Accordingly, I conclude that a provincial officer may make an inspection
    under s. 156(1)(c) where there is a nexus between the purpose of the entry and
    the protective, preventative, or remedial purposes of the
EPA
, and an
    objective and reasonable basis for the provincial officer to believe that a
    contaminant was, has been, or may be discharged into the natural environment.
    This is consistent with the purpose of the inspection power and the context in
    which it is exercised.

[79]

Regulatory inspections frequently take place, not to investigate
    non-compliance, but to promote and ensure compliance. Regulatory inspection
    powers are based on the common sense assumption that the threat of unannounced
    inspection may be the most effective way to induce compliance:
R. v.
    McKinlay Transport Ltd.
, [1990] 1 S.C.R. 627, at p. 645.

[80]

Because regulatory inspections focus on compliance rather than penal
    liability, they necessarily take place before there are grounds to believe an
    offence has been committed:
R. v. Nicol
(1997), 114 C.C.C. (3d) 570
    (Ont. C.A.), at p. 572, [i]t is the very nature of an administrative inspection
    that it takes place when there are not reasonable grounds to believe that a
    particular offence has been committed.

[81]

The distinction between search powers (s. 161) and inspection powers
    (ss. 156, 158) in the
EPA
confirms that the focus of s. 156(1) is on
    inspection for the purpose of prevention, compliance, and enforcement, rather
    than investigation, evidence-gathering, and prosecution.

[82]

Inspection is a baseline step through which the
EPA
monitors
    activities. Based on inspections, remedial measures, compliance orders, or
    other regulatory mechanisms may be engaged. A lower standard gives effect to
    the precautionary principles affirmed by the Supreme Court in
Castonguay
,
    at para. 20, and provides flexibility and responsiveness to situations on the
    ground that may require prompt action, beginning with inspection. It also
    recognizes that the expertise for assessing potential environmental effects
    lies with the MOE, as was discussed by the court in
Castonguay
: at
    paras. 18-19.

[83]

Given the harm caused by release of contaminants and the potential
    damage caused by a failure to remediate, MOE inspectors must be able to act
    swiftly and effectively. A standard of reasonable belief, rather than the
    more onerous standard of reasonable and probable grounds engaged in other
    provisions of the Act, allows for less time-consuming and intrusive
    fact-finding, given the need for prompt and effective action.

[84]

This lower standard applicable to inspection powers is subject to
    appropriate statutory limits and safeguards. Section 156(5) provides that a
    provincial officer may not enter a room actually used as a dwelling without the
    consent of the occupier, except under the authority of an order under s. 158.
    Further balance is provided by s. 158(1), which provides that where a person
    (such as the respondent) has prevented the provincial officer from exercising
    the inspection powers in ss. 156(1) or (2), or s. 156.1, the provincial officer
    must obtain a judicial order for entry or inspection. Thus, it is open to an
    individual who believes that inspection powers are being engaged in an
    unreasonable or abusive manner to refuse inspection of their property in the
    absence of judicial authorization. These provisions provide an appropriate
    balance between the public interest in ensuring regulatory compliance and
    individual privacy rights.

(e)

Application to this case

[85]

Returning to the circumstances of this case, in my respectful view,
    neither the POAC judge nor the justice of the peace at first instance
    accurately expressed the test for reasonable belief under s. 156(1).

[86]

Although the POAC judges analysis is not entirely clear from his brief
    reasons, he appears to have concluded that the information given by the bylaw
    officer to the MOE did not provide a sufficient basis for the provincial
    officers reasonable belief. It is not clear from his reasons that the POAC
    judge appreciated that smoke itself is a contaminant regulated under the
EPA
:
    see s. 1(1), discussed below.

[87]

While the trial justice appropriately recognized that the nature of a
    regulatory inspection dictated a lower standard than reasonable and probable
    grounds, he set the bar too high when he adopted and applied the test from
Debot
applicable to informant tips in a criminal context.

[88]

The
Debot
requirement that the information be compelling,
    credible, and corroborated is inconsistent with the preventative and
    protective purpose of regulatory inspections under the
EPA
.

[89]

Inspections cover a broad range of situations  from routine, scheduled
    visits to random spot checks to rapidly evolving exigent situations. As the
    appellant noted in oral argument, a requirement of corroboration or the
    assessment of credibility or reliability of complainants would require
    provincial officers to engage in more detailed investigation than the circumstances
    permit.

[90]

Moreover, a requirement that the information be compelling is not
    necessarily consistent with the nature of the regulatory context of the
EPA
.
    As the Supreme Court noted in
Castonguay
, the environmental impact of
    a given activity may not be immediately apparent to an average citizen or even
    to MOE experts until an inspection takes place. There are inherent limits on
    the ability to determine and predict environmental impacts: at paras. 19-20.
    Accordingly, the bottom line conclusion the Supreme Court reached, at para 2,
    in
Castonguay
regarding the scope of the reporting requirement under
    s. 15(1) of the
EPA
was: when in doubt, report.

[91]

In this case, the provincial officer exercised his inspection powers on
    the basis of a report made by the bylaw officer that very day, communicating the
    bylaw officers own observations of the property and a report from a neighbour.
    The reports were that waste was being brought onto the property and smoke was
    being generated from an open fire.

[92]

Smoke is regulated by the
EPA
and falls within the definition
    of a contaminant if it causes or
may
cause an
    adverse effect, including the impairment of the natural environment or an
    adverse effect on the health of any person: s. 1(1). See also
Ontario v.
    Canadian Pacific Ltd.
, [1995] 2 S.C.R. 1031, at paras. 63, 72, per.
    Gonthier J.;
Rousseau v. McNab-Braeside (Township)
(2001), 25 M.P.L.R.
    (3d) 267 (Ont. S.C.), at paras. 81, 93.

[93]

In my view, the information received by the provincial officer prior to
    his attempt to enter the respondents property was sufficient to support the
    existence of a
reasonable belief
that a
    contaminant was being or had been discharged into the natural environment as a
    predicate to the exercise of the provincial officers s. 156(1) inspection
    powers. The information was communicated to the provincial officer by the bylaw
    officer, a person in a position of authority with responsibility for such
    matters. The information was objective. The neighbour was identifiable and had
    communicated directly with the bylaw officer. The bylaw officers information
    included direct personal observations of the fire. The information was
    probative of the discharge of a contaminant into the natural environment and the
    purpose of the provincial officers proposed inspection had a clear nexus to
    the purposes of the
EPA
. The provincial officers testimony
    established a reasonable objective basis for his belief and permits the
    conclusion that his belief was reasonable.

VI.

conclusion

[94]

For these reasons, I conclude that the provincial officer met the
    standard to engage his authority to inspect the respondents property under s.
    156(1)(c). The information provided to the provincial officer by the bylaw
    officer from his own personal observations and his conversations with the
    respondents neighbour, was sufficient to support the provincial officers
    reasonable belief that a contaminant, namely smoke, was being, had been, or
    would be discharged into the natural environment.

[95]

I would allow the appeal, set aside the acquittal, and restore the
    conviction entered by the justice of the peace.

Released: GS  DEC 14  2018

George R. Strathy
    C.J.O.

I agree. Doherty J.A.

I agree. Roberts J.A.


Appendix

Environmental
    Protection Act
, R.S.O. 1990, c. E.9

156(1)
For the
    administration of this Act or the regulations, a provincial officer may,
    without a warrant or court order, at any reasonable time and with any
    reasonable assistance, make inspections, including,

(a) entering
    any part of the natural environment to ascertain the extent, if any, to which
    contaminants have caused an adverse effect, the causes for any adverse effect,
    and how any adverse effect may be prevented, eliminated or ameliorated and the
    natural environment restored;

(b) entering
    any place in which the provincial officer reasonably believes can be found
    anything that is governed or regulated under this Act or anything the dealing
    with which is governed or regulated under this Act;

(c) entering
    any place in or from which the provincial officer reasonably believes a
    contaminant is being, has been or may be discharged into the natural
    environment;

(d) entering
    any place that the provincial officer reasonably believes is likely to contain
    documents related to,

(i) an activity
    or undertaking that is, or is required to be the subject of a permit, licence,
    approval, environmental compliance approval, certificate of property use,
    renewable energy approval, program approval, agreement or order under this Act,

(ii) an
    activity that is or is required to be registered under Part II.2,

(ii.1) an
    activity or undertaking that is exempted by a regulation from any requirement
    to have a permit, licence, environmental compliance approval or renewable
    energy approval under this Act that is regulated by the provisions of the
    regulation, or

(iii) the
    discharge of a contaminant into the natural environment;

(e) entering
    any place that the provincial officer reasonably believes,

(i) is,
    or is required to be, subject to or referred to in a permit, licence, approval,
    environmental compliance approval, certificate of property use, renewable
    energy approval, program approval, agreement or order under this Act,

(ii) is
    or is required to be subject to or referred to in a registration under Part
    II.2, or

(iii) is
    subject to or referred to in a regulation that provides for an exemption from
    any requirement to have a permit, licence, environmental compliance approval or
    renewable energy approval under this Act where the regulation includes
    provisions that regulate the place;

(e.1)
    entering any property for which a record of site condition has been submitted
    for filing or has been filed in the Environmental Site Registry established
    under section 168.3 for the purpose of sampling, testing or examining anything
    referred to in the record of site condition;

(f) entering
    any place where a motor, motor vehicle or beverage container regulated under
    this Act is stocked, displayed, sold or offered for sale, to carry out his or
    her duties under Part III or IX, as the case may be;

(g) entering
    any establishment for the repair of motors or motor vehicles, to carry out his
    or her duties under Part III;

(h) entering
    any ice shelter to carry out his or her duties under Part IV;

(i) entering
    any abandoned motor vehicle to carry out his or her duties under Part VII;

(j) entering
    any place where the provincial officer reasonably believes the permit and
    plates of a vehicle may be found, in order to seize them in accordance with
    section 48 or 49; and

(k) entering
    any place where a pollutant as defined in Part X is spilled.

156(2)
During
    an inspection under subsection (1), the provincial officer may,

(a) make
    necessary excavations;

(b) require
    that any thing be operated, used or set in motion under conditions specified by
    the provincial officer;

(c) take
    samples for analysis;

(d) conduct
    tests or take measurements;

(e) examine,
    record or copy any document or data, in any form, by any method;

(f) record
    the condition of a place or the natural environment by means of photograph,
    video recording or other visual recording;

(g) require
    the production of any document or data, in any form, required to be kept under
    this Act and of any other document or data, in any form, related to the
    purposes of the inspection;

(h) remove
    from a place documents or data, in any form, produced under clause (g) for the
    purpose of making copies; and

(i) make
    reasonable inquiries of any person, orally or in writing.

156 (3)
A
    record made under clause (2) (f) must be made in a manner that does not
    intercept any private communication and that accords with reasonable
    expectations of privacy.

156 (3.1)
A
    provincial officer shall not remove documents or data under clause (2) (h)
    without giving a receipt for them and shall promptly return the documents or
    data to the person who produced them.

156 (4)
A
    provincial officer who exercises the power set out in clause (2) (i) may
    exclude from the questioning any person except counsel for the individual being
    questioned.

156 (5)
A
    person shall not exercise a power conferred by this Act to enter a room
    actually used as a dwelling without the consent of the occupier except under
    the authority of an order under section 158.

156 (6)
Repealed.





[1]
The full text of s. 156 is set out in the Appendix.



[2]
See e.g. s. 5 (investigation and prosecution where provincial officer
    reasonably believes a person is guilty of an offence under the Act); s. 48(2)
    (seizure of permit and number plates for vehicle reasonably believed to be used
    in connection with commission of an offence); s.156.4(1)-(2) (issuance of an
    order prohibiting entry into all or part of any land or place); s. 157.1
    (issuance of an order by provincial officer re: preventative measures); s.
    157.4 (issuance of notice by provincial officer regarding reasonable belief
    that person is contravening or has contravened a regulation under Part II.2);
    s. 160 (seizure during an inspection without a warrant or court order); s.
    161(3) (seizure during warrantless search in exigent circumstances); and s. 163
    (use of force to prevent destruction of evidence or execute a warrant under the
Provincial Offences Act
).



[3]
See e.g. s. 8 (stop orders); s. 12 (stop or control orders); 18(2)
    (preventative measure orders). See also s. 26 (application of waste management
    provisions to disposal of waste on a persons own property); s. 132 (financial
    assurances approval or order); and s. 136(2) (use of financial assurances
    arising from an order).



[4]
See e.g.
Pesticides Act
, R.S.O.
    1990, c. P.11, s. 19(1) (warrantless inspection powers);
Ontario Water Resources Act
, R.S.O. 1990,
    c. O.40, ss. 15(c)-(e) (warrantless inspection powers);
Safe Drinking Water Act
,
2002
,
    S.O. 2002, c. 32, ss. 81(2)2-6 (warrantless inspection powers);
Freshwater Fish Marketing Act (Ontario)
,
    R.S.O. 1990, c. F.33, ss. 5(1)(a)-(b) (inspection powers).



[5]
(4) A judge shall not dismiss a proceeding under subsection (3) if the
    responding party satisfies the judge that,

(a) there are grounds to
    believe that,

(i) the proceeding has
    substantial merit, and

(ii) the moving party has
    no valid defence in the proceeding; and

(iii) the harm likely to be
    or have been suffered by the responding party as a result of the moving partys
    expression is sufficiently serious that the public interest in permitting the
    proceeding to continue outweighs the public interest in protecting that
    expression.


