In a unanimous decision released October 17, 2013, the Supreme Court of Canada upheld the conviction of Castonguay Blasting for failing to report the discharge of a substantial quantity  of fly-rock, resulting in damage to a house and a car. While there was no actual damage to the natural environment, the Court confirmed that this is not a prerequisite to triggering the reporting obligation under Ontario’s Environmental Protection Act (“EPA”).

The EPA requires that parties “forthwith” notify  the Ministry of the Environment when there has been a discharge of a contaminant into the natural environment. “Contaminant” is broadly defined and includes any solid. The reporting requirement will be triggered if the discharge is: (1) out of the ordinary; and (2) likely to have an adverse effect. Following the explosion, Castonguay Blasting had notified the Ministries of Labour and Transport, but did not appreciate an obligation to report to the Ministry of the Environment (“MOE”).

The Supreme Court has explained that the purpose of the broad reporting requirement is to ensure that the MOE and not the discharger decides what further steps will be taken. Potential harms may not be immediately evident, or may not be discernable without the expertise of MOE staff. Therefore, prompt reporting is required to ensure that appropriate investigations are undertaken as early as possible and before obtaining proof that natural environment has been impaired.

Key Aspects of the Decision Are:

  1. The EPA is the primary environmental protection statute in Ontario and is entitled to a generous interpretation;
  2. Because environmental protection is complex, the intended reach of the EPA is wide;
  3. The EPA protects the natural environment (air, land and water) and its users by protecting human health, plant and animal life, but also property;
  4. Provided that any one of the enumerated adverse effects has taken place and the discharge is out of the normal course of events and into the natural environment (in this case the air), the EPA mandates a wide reporting obligation; and
  5. However, the EPA does not require reporting of everyday, routine activities.

The Supreme Court specifically rejected the argument that only “non-trivial” impacts to the natural environment need be reported. “Adverse effect” is
to be interpreted broadly, and the explosion in issue caused significant property damage.

The decision casts a wide net over potentially contaminating activities and directs: “When in doubt, report”. Going forward, parties may be well-advised to report all extraordinary discharges and to allow the MOE, within its defined powers, to determine what additional steps are required.

Gabrielle K. Kramer
Toronto
416.367.6113
gkramer@blg.com

 

Author

Gabrielle K. Kramer 
GKramer@blg.com
416.367.6113

Expertise

Environmental
Environmental Law