Compliance and enforcement policy for habitat and pollution provisions of Fisheries Act: chapter 8

Civil Suit by the Crown to Recover Costs

The Fisheries Act, section 42, allows the federal or a provincial or territorial government to recover costs by civil suit when those costs are incurred by the government (or by a provincial or territorial government) to prevent or correct harm caused to fish or to a fish habitat where there is an unauthorized deposit or serious and imminent danger of a deposit of a deleterious substance. It is possible to recover costs even in the absence of a prosecution or where a prosecution does not result in a conviction.

The federal government may also sue to recover costs (subsection 21(2)) incurred to construct, maintain, and operate fishways and canals.

The defendant in these cases could be the alleged violator who or that:

• owned or had charge or control of a deleterious substance immediately prior to its unauthorized deposit;
• caused or contributed to the deposit or the danger thereof; or
• obstructed a stream, or failed to take corrective action (including installation and maintenance of fishways, canals, or hatcheries) as ordered by the Minister of Fisheries and Oceans.

The Crown will attempt to obtain recovery of costs through negotiation with those responsible. In the event that negotiation is unsuccessful, the Crown will initiate or proceed with civil action under the Fisheries Act. The time limit imposed for the initiation of civil proceedings by the Crown to recover costs is at any time within two years after the occurrence for which recovery of the costs for preventive or corrective measures could reasonably be expected to have become known to the Crown.