When the Inspector Comes

businesswomanThis protocol was written for a municipality, but also generally applies to businesses and other regulated entities in Ontario.

A reminder: nothing on this website is legal advice. You rely upon it at your own risk.

What To Do when the Inspector Comes

When the inspector arrives            2

Managing the Inspector’s Visit            3

Types of Inspections            3

  • Consent by the Municipality        3
  • Warrantless Inspection        3

Routine Inspections    3

Spills and other Emergencies    4

  • Search Warrant        4
  • Warrantless Search In “Exigent Circumstances”.        5
  • Judicial Order        5

Co-operation during an Inspection            6

  • General comments        6
  • Samples and photos        6
  • Documents        6

Co-operation during an Investigation            6

Employee Interviews            7

Guidelines for the Interview        7

Being Prepared            8

[for Reception staff]

The first person to meet the inspector will normally be a receptionist or gatekeeper. This person should have the following instructions:

When a government officer and/or inspector arrives at the facility:

1. Record the time and date in the logbook “Government Inspections”.

2. Record your name.

3. Ask to see the credentials of the officer(s) (badge or business card).  Request a copy of his/her business card, and staple it to a fresh page of the logbook.

4. If you do not receive their business card(s), record the names of the officer(s) as well as the name, address and phone number of the agency and branch which the officer(s) represent(s).

5. Ask the officer to record the purpose of their visit in the logbook.  If the officer wishes to speak to anyone, record the names of those persons.

6. For an investigator, e.g. Investigations and Enforcement, ask if they have a court order or search warrant.

7. Ask the officer to wait while arrangements are made for his/her visit. Offer coffee.

8. Inform the Facility Manager of the above information and await instructions.  In the absence of the Facility Manager, contact the Director, Environmental Affairs.

Management should then take over responsibility for dealing with the inspector.

One or more members of management should be designated to manage the visits of government inspectors. That person should:

1.     Confirm the officer’s identification. Get a business card if one has not already been provided.

2.     Ask (and make a note of) the type of visit.  In particular, is this visit a routine inspection, immediate (emergency) response to a spill, or an investigation of a suspected offence?  (N.B. Visits by an investigator are always signs of serious trouble.)

3.     Determine the scope of the visit.  Discuss (and make a note of) the purpose of the visit and the exact area or equipment to be inspected.  This may be limited by the search warrant should a warrant have been issued.  If legal counsel or if particular people should be present for such a visit, but are temporarily unavailable, request that the visit be rescheduled.

4.     Determine the legal basis for the visit, and react accordingly.  There are only five possibilities:

Inspectors may do whatever they like on municipal property if a municipal employee or representative consents.  If the officer says, “May I look around?” any answer other than “No” may be interpreted as consent.  No one other than the Manager should consent.

Consent can be withdrawn at any time.

Inspectors (but not IEB staff) who have “officer” badges have the right to do routine inspections to make sure your municipality is complying with the law. If the timing is particularly inconvenient, you may ask them to return on another day. However, they do not have to agree.

An officer cannot use force to enter your facility. However, they do not take kindly to being refused entry, and are likely to return with an armed police officer and a warrant. Don’t do it without a very good reason.

If a dispute arises between municipal staff and an inspector, contact legal counsel.

During a spill or other environmental emergency, inspectors with official badges can do anything they wish to investigate the spill. If they ask you to take specific measures to control or cleanup the spill, it is generally wise to do so, but you are not obliged to comply unless the Minister orders you to.

Contact legal counsel if a spill occurs.

An officer who has a warrant may do anything authorized by the warrant, and may use force to do so.  Warrants usually authorize officers to enter municipal property to search for and to seize and carry away evidence for use in a prosecution.  You cannot lawfully stop them from carrying out the warrant.

Such cases are always serious, because search warrants are only issued when a prosecution is contemplated.  Contact legal counsel as soon as possible.

They have to show you the warrant.  Ask for a copy of it.  Check the warrant to ensure that:

a) the warrant has been signed by a justice of the peace or judge;

b) the warrant is being executed by the person(s) named in the warrant;

c) the warrant is executed during the times listed on the warrant and before the expiry date; and

d) the officer confines his or her search to:

i)   the place listed in the warrant;

ii)  the things to be searched for which are listed in the warrant.

Ask for a complete list of everything seized, and a copy of each document seized.

You do not have to answer questions asked by officers who are executing a search warrant, unless there is an ongoing environmental hazard.

No warrant is required to search municipal premises and seize evidence where a officer has reasonable grounds to believe that a serious pollution offence has occurred or is occurring, and the officer does not have time to obtain a warrant before the evidence disappears, e.g. because:

a) the evidence is in a vehicle which is moving or likely to be moved; or

c) the evidence is transient.

An inspector may also seize, without warrant, anything in plain sight and relevant to the investigation.  The inspector may remove the item or detain it in place.  The inspector must give reason for the seizure and receipt(s) for the item(s).

If an officer claims the right to do a warrantless search and alleges “exigent circumstances”, get as much detail as you can of the facts the officer is relying on, what s/he is looking for, and why s/he couldn’t wait to get a warrant.  Such cases are always serious.  Contact legal counsel as soon as possible.

An officer may inspect municipal property under a judicial order.  Orders are usually used when officers are looking for evidence to support a clean-up order, or want to do on-site tests.

Contact legal counsel

The order allows the officer to carry out an inspection with the right to use reasonable force where necessary.  The order can authorize excavations, dye tests, prolonged sampling, etc. in connection with the inspection.  You do not have to answer questions asked by officers who are executing an order, unless there is an ongoing environmental hazard.

Check the order to ensure that the order:

a) names one or more specific officers who are there to carry it out;

b) is valid for only 30 days; and

c) authorizes what the officers want to do.

The order must be carried out between 6:00 and 21:00 hours unless otherwise specified.

Co-operate with the officer but confine the visit to aspects relevant to the defined purpose of the visit.  Do not allow the officer unescorted access to municipal property.

No reasonable request made by an officer should be refused.  However, if you are in doubt about whether to comply with any request, contact legal counsel.

Keep a record of everything the officer does, sees, asks and whom he or she speaks with.

Should the officer take pictures or conduct tests or take samples, note what is done (and how).  Duplicate samples and photos should be taken at once.  Request a split (portion) of any sample taken by the Ministry.  Use appropriate sample bottles.

The officer has a statutory right to inspect and take copies of documents that are directly relevant to a regulated activity. However, whenever possible you should review the documents with legal counsel before giving them to an officer. In particular, you should not voluntarily give an officer any documents related to a municipal investigation of any incident. No one should give an officer access to a file unless s/he is directly responsible for that file.

Investigations are serious, and occur only if the officer is attempting to collect evidence to be used against the municipality in a court or tribunal.

Investigators do not have the statutory powers of an inspector. While you must not take active steps to obstruct or deceive the officer, neither do you need to assist him/her.

If the officer has a warrant, s/he may take original documents referred to in the warrant.  If so, you should request copies for municipal files.  A list of the documents taken should be prepared in either case.  Trade secret, solicitor-client and other confidential documents should be identified and marked accordingly.  If possible, seal them in separate, clearly marked envelopes.

The officer may seize, without warrant, anything in plain sight and relevant to the investigation.  The officer may remove the item or detain it in place.  The officer must give reason for the seizure and receipt(s) for the item(s).

Interviews do not normally take place (and should not be permitted, except in emergencies) during the inspector’s initial visit.

The investigator generally prefers to interview municipal staff on municipal time at municipal premises. The inspector will often make an appointment, and provide a list of the people s/he wishes to see. If the municipality decides to permit such interviews, the municipality has the right to impose certain conditions on such interviews, including the right to have corporate counsel attend the interview. However, the municipality cannot control interviews an employee may choose to permit outside municipal time and premises.

Where an offence may have been committed by the municipality, it is normally wise to prepare each person through a detailed interview by counsel and management before permitting an interview by an investigator. You should ensure that, before the interview, each employee has received and understood the interview preparation sheet.  Caution all employees to be interviewed that should they so desire they may have their own legal counsel present. Many companies provide employees with legal counsel if requested.

The person being interviewed may either record the proceedings or take notes. When recording conversations, use fresh blank tapes.  At the beginning of the conversation, identify yourself, the time, date and place.  Have the officer confirm on tape his or her agreement to having the conversation taped, and have each party of the conversation identify himself or herself on the tape.

Most environmental legislation makes it an offence to hinder or obstruct an officer conducting a lawful investigation.  You should answer questions posed directly to you by an officer, which relate to a current or ongoing discharge into the environment, if you know the answer to the questions.  However, you need not (except in court) answer questions about incidents that occurred in the past.  Where time permits (i.e. there is no immediate threat to safety or the environment) you may request that legal counsel be present during questions.  The municipality may be willing to pay for this lawyer.

Remember, any statement made to an officer may be used as evidence in court against you, against fellow employees or against the municipality.  Remember also that it is the job of the officers to prosecute and convict as many “polluters” as possible.

When being questioned by an officer:

1. Stick to the facts; don’t speculate, guess or offer an opinion.

2. Make sure you understand the question.  Ask to have the question explained if you don’t understand.

3. Take your time in answering questions, consider carefully your reply, don’t rush.

4. Stick to answering the question, don’t wander off topic.

5. Don’t volunteer information.

6. If you don’t know the answer or need to check something before answering, say so.

7. The officer will take notes during the interview.  It is a good idea for you to do the same.  However, it is usually unwise to give the officer a copy of those notes.

8. The officer will make notes of your answers and will ask you to sign them.  You need not do so.   If you do sign anything, it is essential to keep a copy of what you signed.

9. If you are “cautioned” by an officer that what you say may be used against you, this means that the officer is seriously considering prosecuting you personally.

The most important thing you can do when an officer comes is be prepared beforehand. If your municipality has had a spill or other environmental problem, why wait until the inspector arrives before you find out what happened?