When in doubt, report. That is the explicit message delivered by the Supreme Court of Canada in yesterday’s decision regarding the duty to report to the Ontario Ministry of the Environment (MOE) when a contaminant is discharged into the environment. In Castonguay Blasting Ltd. v. Ontario (Environment), the Court confirmed that the duty to report under the Ontario Environmental Protection Act (EPA) is very broad and easily triggered.
Castonguay Blasting Ltd. (Castonguay) was conducting blasting operations for a highway-widening project. The operation went awry and an explosion propelled a substantial quantity of fly-rock into the air, damaging a home and a car, and landing in the yard of the home. Castonguay did not report the discharge to the MOE. Castonguay was convicted of failing to report to the MOE the discharge of a contaminant into the natural environment, contrary to s. 15(1) of the EPA. The Supreme Court of Canada dismissed the blasting company’s appeal.
The Supreme Court Decision
The Supreme Court held that the MOE must be immediately notified when two preconditions of the duty to report are met: (1) the discharge of a contaminant occurred outside of the normal course of events; and (2) the discharge had, or was likely to have, an adverse environmental impact. The Court noted that, under the EPA, an "adverse effect" is defined in eight different ways, and each of the eight branches of the definition provides an independent trigger for the duty to report.
The Court stressed that it is not necessary for there to be known environmental damage in order for the duty to report to arise. The purpose of the reporting requirement is to let the MOE know about potential environmental damage so that any consequential investigative and remedial steps by the MOE can be taken in a timely way.
The Court noted that the discharging party may not know the full extent of the damage caused or likely to be caused, and that the purpose of the reporting requirement is to ensure that it is the MOE, not the discharger, that investigates the discharge and decides what further steps are required, if any. In the Court’s words, the MOE "must be notified when there has been a discharge of a contaminant out of the normal course of events without waiting for proof that the natural environment has, in fact, been impaired. In other words: when in doubt, report."
The Court endorsed an expansive and generous interpretation of the EPA and of the concept of the "natural environment" as used in the EPA. The fact that the fly-rock damaged private property and was not pollution in the traditional sense did not take the incident outside the scope of the EPA. The Court described the intended reach of environmental protection legislation as "wide and deep."
In the case before it, the Court held that the duty to report was clearly engaged. The Court stated that there was "no doubt" that fly-rock was a "contaminant" as defined in the EPA – a conclusion that is consistent with the very broad wording of the statutory definition, although not perhaps with the everyday meaning of contamination. The Court held that the fly-rock was discharged into the "natural environment" when it was propelled into the air and onto the homeowner’s property. The discharge was out of the normal course of events and caused an adverse effect by damaging property and causing loss of enjoyment of the normal use of the property. The court indicated that the adverse effects were not trivial, since the property damage was extensive and significant, and a person could have been killed or seriously injured.
The Supreme Court’s decision in Castonguay Blasting continues and expands what the Court described as an existing "jurisprudential trail" favouring a broad and generous interpretation of environmental protection legislation, with correspondingly broad obligations on discharging parties.
To discuss these issues, please contact the author(s).
This publication is a general discussion of certain legal and related developments and should not be relied upon as legal advice. If you require legal advice, we would be pleased to discuss the issues in this publication with you, in the context of your particular circumstances.
For permission to republish this or any other publication, contact Janelle Weed.
© 2018 by Torys LLP.
All rights reserved.