Castonguay Blasting Ltd. as appellant (“C-A”) is convicted of failing to report a discharge of a contaminant contrary to s. 15(1)1 of the Ontario Environmental Protection Act (“ON-EPA”).
The proceedings: [C-A] acquitted by the ONCJ 2 → ONSCJ3 overturns acquittal and enters a conviction → [C-A] appeals conviction to SCC (as decided by this case) → Appeal dismissed, conviction restored.
Is the appeal allowed such that [C-A]’s acquittal is restored? No. S. 15(1) was clearly engaged and [C-A] was required to report discharging fly-rock (a contaminant) into the natural environment.
[C-A] was a subcontractor conducting operations to widen a highway commissioned by the Ontario Ministry of Transportation. On November 26, 2007, an accidental blast sent “fly-rock” (debris) 90 metres into the air, crashing through the roof of a home (damaging the kitchen ceiling, siding, and eavestroughs), hitting a car (breaking the windshield and damaging the roof), and leaving a “significant” amount of rock in the yard (para 4). [C-A] immediately reported to the Ministry of Transportation, but not the Ministry of Environment, who was not notified until 2008 by the Ministry of Transportation.
In September 2009, the [C-A] was then charged with failing to report a discharge of a contaminant in the natural environment to the the Ontario Ministry of Environment (ON-MOE) contrary to s. 15(1) of the Ontario Environmental Protection Act (ON-EPA).
Description of environmental legislation
As environmental issues are difficult to fully capture and protect in legislation, it is often made broadly, allowing it to address “‘a wide variety of environmentally harmful scenarios, including ones which might not have been foreseen by the drafters of the legislation'” (para 9, quoting from Ontario v Canadian Pacific Ltd.).
Purpose of the on-epa
The ON-EPA is Ontario’s “principal environmental protection statute” (para 9). The purpose of the ON-EPA is set out in s. 3: “to provide for the protection and conservation of the natural environment”. “Natural environment” is defined in s. 1(1) (see below). The ON-EPA also protects those who “use” the environment, such as people, plants, animals, and property. The ON-EPA achieves this through regulations, prohibitions, reporting requirements, inspections, enforcement, preventative and remedial powers (for example, see s.7 for control orders; s.8 for stop orders; s. 17 for orders to repair damage; s. 18 for preventative measure orders; or s. 157 for compliance orders).
In particular, s. 14(1) is an effective preventative measure by prohibiting discharges of contamination into the environment where it may have an adverse effect, and the complementary s. 15(1) which requires the reporting of this discharge to the ON-MOE.
INTERPRETATION OF s. 15(1)
The issue of the appeal was the reporting requirement in s. 15(1), which states:
15.—(1) Every person who discharges a contaminant or causes or permits the discharge of a contaminant into the natural environment shall forthwith notify the Ministry if the discharge is out of the normal course of events, the discharge causes or is likely to cause an adverse effect and the person is not otherwise required to notify the Ministry under section 92.
To break it down, a person must report to the ON-MOE when (at para 36):
- A “contaminant” is discharged;
- the contaminant is discharged into the “natural environment” (the air, land, water, or any combination or part thereof, in the Province of Ontario);
- the discharge is out of the normal course of events;
- the discharge causes, or is likely to cause, an “adverse effect”, namely one or more of the effects listed in paras. (a) to (h) of the definition section;
- the adverse effect or effects are not trivial or minimal; and
- the person is not otherwise required to notify the Ministry under s. 92, which addresses the spill of pollutants.
The ON-EPA defines “discharge”, “contaminant”, “natural environment”, and “adverse effect” in s. 1(1):
“natural environment” means the air, land and water, or any combination or part thereof, of the Province of Ontario;
“discharge”, when used as a verb, includes add, deposit, leak or emit and, when used as a noun, includes addition, deposit, emission or leak;
“contaminant” means 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;
“adverse effect” means one or more of,
(a) impairment of the quality of the natural environment for any use that can be made of it,
(b) injury or damage to property or to plant or animal life,
(c) harm or material discomfort to any person,
(d) an adverse effect on the health of any person,
(e) impairment of the safety of any person,
(f) rendering any property or plant or animal life unfit for human use,
(g) loss of enjoyment of normal use of property, and
(h) interference with the normal conduct of business;
[A-C] tried to argue that because the discharge did not impair the natural environment (which is listed as (a) under “adverse effect”), then they were not required to report to the ON-MOE (para 15).
“Adverse effect” is to be interpreted broadly – it could include any “one or more” of these effects listed below. Limiting “adverse effect” to just any one effect would be contrary to the definition of “adverse effect” (which says, “one or more of”) and purpose of the ON-EPA. Previous case law have also interpreted “adverse effect” more broadly.
The purpose of the reporting requirement in s. 15(1) is to make sure that it is the ON-MOE, not the discharger, who decides if any further actions are required regarding the reported incident (para 18). As the ON-MOE is well-equipped to determine the extent of the damage and determine the harm or potential harm to the natural environment, this makes sense. This is in line with the precautionary principle (para 20).
The reporting requirements are still limited to certain events. The discharge must’ve been into the “natural environment” (ie. air, land, or water in Ontario), and in the “normal course of events” (which excludes routine activities, such as driving a car) (par 24). The discharge must also have an “adverse effect”.
The SCC points to a previous version of the ON-EPA, which contained a similar clause. Section 13 was previously challenged in Canadian Pacific for being too broad or vague, but the majority held that because s. 13 was limited to discharges of contaminants that cause (or are likely to cause) non-trivial impairments, it was neither vague or overbroad (para 28).
The effects in paragraphs (a) to (g) are supposed to capture a wide range of impacts (para 34). This is consistent with the broad protections the ON-EPA was meant to provide. Taking a restrictive approach to defining “adverse effect” would only limit these protections and the ON-MOE’s ability to respond to environmental issues.
The ultimate question was: Did [A-C]’s blast trigger s. 15? Yes.
- Discharge of a contaminant (the fly-rock)
- into the natural environment
- out of the normal course of events (the discharge was an accident as a result of normal blasting operations – if the blast had been conducted properly, the fly-rock would not have been released like this)
- which causes or is likely to cause an adverse effect (it caused injury to property (b), loss of enjoyment of that property (g), and potentially the impairment of any person’s safety (e))
- that is not trivial or minimal (the force of the blast and resulting fly-rocks were powerful, causing “extensive” and “significant” property damage, including penetrating the roof and landing in the kitchen) and “seriously” damaging a vehicle – it could have easily injured or killed someone).
- not otherwise required to notify the Ministry.
As a result, s. 15(1) of the ON-EPA required [A-C] to report the discharge.
JUDGES: Abella J. (McLachlin C.J. and LeBel, Rothstein, Cromwell, Karakatsanis and Wagner JJ. concurring)
- Castonguay Blasting Ltd.: Miller Thomson (Markham); Supreme Advocacy (Ottawa).
- Her Majesty The Queen in Right of the Province of Ontario as represented by the Minister of the Environment: Attorney General of Ontario, Toronto.
- Interveners: Canadian Environmental Law Association (Toronto)
- 15.—(1) Every person who discharges a contaminant or causes or permits the discharge of a contaminant into the natural environment shall forthwith notify the Ministry if the discharge is out of the normal course of events, the discharge causes or is likely to cause an adverse effect and the person is not otherwise required to notify the Ministry under section 92
- Ontario Court of Justice
- Ontario Superior Court of Justice