What is the standard of care Ontario courts use for director liability under environmental statutes?

Ontario's Environmental Protection Act and similar provincial statutes impose strict liability for environmental offences but provide a due diligence defence. Courts assess whether a director or officer exercised all reasonable care to prevent the offence. The standard is not perfection — it is whether the director took all reasonable steps that a prudent person in their position would have taken given the circumstances.

Courts applying this standard look at factors including: whether the director had authority over and knowledge of the environmental activity, whether adequate environmental compliance programs and monitoring systems were in place, whether staff were properly trained, whether the director was notified of prior incidents and what steps were taken in response, and whether the director acted promptly once a potential problem was identified.

A director who is remote from operations and had no reason to know of the specific risk may have an easier path to the due diligence defence, while an operational director or officer who directly supervised environmental activities is expected to have more detailed oversight. The defence requires affirmative evidence of what the director did — not simply the absence of evidence of knowledge or involvement. For corporations operating in regulated industries, environmental legal counsel should review the compliance program periodically and advise on the documentation needed to support a due diligence defence if one is ever needed.