Edited by
Luke Dineley 
While widening a highway in Marmora, Ontario, Castonguay Blasting Ltd. ("Castonguay") caused fly-rock to travel some 90 metres in the air, landing on and damaging a house and a vehicle on a neighbouring private property. Castonguay notified the project Contract Administrator, who reported the incident to the Ministry of Labour and the Ministry of Transport. Castonguay did not report it the Ministry of the Environment (the "MOE").
One and a half years later, Castonguay was charged by the MOE for failing to report the fly-rock incident near Marmora. Castonguay was acquitted at first instance, but later convicted on appeal by Justice Ray of the Superior Court.
Castonguay sought to set aside the conviction at the Ontario Court of Appeal, arguing injury or damage to private property alone does not trigger s. 15(1) reporting requirements under the Environmental Protection Act, R.S.O 1990, c.E.19 (the "EPA"). Section 15 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.
Castonguay argued that one only has to report under s. 15(1) when a contaminant causes more than trivial or minimal harm to the natural environment. In this case, fly-rock damaged private property, but there was no (or no more than trivial or minimal) harm to or impairment of the natural environment ("air, land and water", as defined in the EPA) when the fly-rock landed on the house and vehicle.
In his dissenting opinion, Blair J.A. found that the fly-rock generated by Castonguay did not have any (or at least, no more than a trivial or minor) impact on the natural environment. The fly-rock did not constitute a "contaminant", nor did it cause or was it likely to cause an adverse effect for the purposes of the EPA. An "adverse effect" under the EPA has an entrenched component of harm to or impairment of the environment in it and in this case Castonguay's fly-rock harmed private property, not the environment. Therefore, Castonguay should not have been convicted. Blair J.A. states "the EPA is public welfare legislation designed for the specific purpose of protecting and preserving the natural environment" and in paragraph 43 concludes:
In the end, then – and to repeat – ss. 14(1) and 15(1) and the term "adverse effect" as defined in the EPA contemplate something amounting to more than trivial or minimal harm to or impairment of the natural environment as an essential element of liability relating to the discharge of a contaminant into the natural environment, whatever subparagraphs of that definition, or combination of them, may be engaged.
Writing for the majority, MacPherson J.A. specifically disagrees with Blair J.A.'s conclusion. MacPherson J.A. acknowledges that while in many cases blasting will not cause an adverse effect, in this case it did because the EPA is also concerned with uses of the environment that cause harm or damage to people, animals or property. The majority finds that fly-rock discharged from a blasting operation in the natural environment constitutes a discharge of a contaminant into the air, and that the damage to the private property is an adverse effect for the purposes of the EPA. This is established by looking at the plain meaning of the relevant provisions of the EPA, properly understanding the broad purposes of the EPA, and applying the decisions Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031 and R v. Dow Chemical Canada Inc. (2000), 47 O.R. (3d) 577 (C.A.). The harm caused by the fly-rock to the private property in this case was sufficient to trigger the EPA's scrutiny. Accordingly, Castonguay's conviction was upheld.
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