Week #10: Corporate Environmental Responsibility Flashcards
What are the 2 (in fact 3) principles in which environmentally harmful acts of omissions by individuals in a corporation be attribuable to the corporation, or it’s leader?
Vicarious Liability
Direct Liability
Personal Liability
What are the 3 types of business outlined in the class?
Sole proprietorship (not a legal entity, the owner = business)
Partnership (At least 2 people make business for a profit)
Corporation (Recognized by law as separate and distinct of the owner, a legal person
Why are corporation a special case in environmental prosecution?
- Corporations are often very big, so a big threat to the environment
- The veil of incorporation makes it hard to give liability to it’s directing minds
- Corporations often act through agents, relies on humans for their activities
What are the 2 main problems in corporate prosecution?
- Establishing the guilty mind, the intent, the mens rea
* Attributing the acts of persons to the corporation (the 3 principles save us here)
What is the vicarious liability principle?
A legal principle under which acts or omissions by employees, officers, or agents of a corporation in the course of their employment, or in the exercise of their powers, or in the performance of their duties are attributed to the corporation. KEEP IN MIND: In the course of their duties =/= while employed there. They must be actively working for liability to go to the corporation
What act and section does the vicarious liability come from?
Environmental Protection and Enhancement Act
•S. 253 For the purposes of this Act, an act or thing done or omitted to be done by a director, officer, official, employee or agent of a corporationin the course of that person’s employmentor in the exercise of that person’s powersorthe performance of that person’s duties is deemed also to be an act or thing done or omitted to be done by the corporation.
What is direct liability?
Under the concept of direct liability, the act of certain individuals in a corporation are deemed to be the direct act of the corporation. These individuals are deemed to be “the directing mind” of the corporation. They include the senior officers of the corporation who are responsible for the design and supervision of the implementation of the corporate policies.
•A corporation has no mind of its own. Thus where a particular environmental offence requires mens rea or guilty mind to secure a conviction, the guilty mind of the “directing minds” of the corporation will fill that requirement. A corporation is directly liable for conducts of its “directing mind” – senior officials
•A corporation may . . . have more than one directing mind. This must be particularly so in a country such as Canada where corporate operations are frequently geographically widespread. The transportation companies, for example, must of necessity operate by the delegation and sub-delegation of authority from the corporate centre; by the division and subdivision of the corporate brain; and by decentralizing by delegation the guiding forces in the corporate undertaking. R. v. Canadian Dredge & Doc
What is the Personal liability principle?
It is the liability of the operating minds.
Fining corporations alone is ineffective as its leaves the policy makers unscathed;
–Personal liability is the most effective method of ensuring that the “operating minds” are deterred from either active or passive acquiescence in the development of corporate policies precipitating environmental harm
;–Personal liability is the principle in environmental law under which individuals associated with a corporation are held personally liable for their environmentally harmful acts or omissions in relation to the corporation.
Can a corporation be prosecuted for a mens rea offense?
Yes, through the personal liability
Who is responsible when the direct liability principle is used against a corporation aiding and abetting in the commission of a wrongful act?
If a corporation commits an offence arising out of a contravention …, every director and officer of the corporation who directed or influenced the corporation’s policies or activities in respect of conduct that is the subject matter of the offence is a party to and guilty of the offence, and is liable to the penalty provided by this Act for an individual in respect of the offence committed by the corporation, whether or not the corporation has been prosecuted or convicted. S. 280(3) CEPA
Westray Mine disaster: What happened?
They fired overbearing security staff from the mine, then a disaster happened. Several were charged but it didnt work because of the incorporation veil protecting the directing mind. The government passed a new bill to create personal liability.
