In a recent decision, the Supreme Court of Canada broadly interpreted a spill reporting obligation in Ontario's environmental legislation. In Castonguay Blasting Ltd. v Ontario (Environment), 2013 SCC 52, the Court held that the obligation to report incidents involving a release of materials did not require proof of impairment to the natural environment. The Court said such an approach achieved the objectives of the Ontario's Environmental Protection Act. In Castonguay, that conclusion meant that a contractor was obligated to report a blasting incident during road construction, which caused rock debris to be ejected outside of the blasting site and significantly damage a nearby home and vehicle.
The Castonguay decision has implications for industrial operations in Ontario, and also may have ripple effects in British Columbia, despite different legislation governing in BC.
Background and Lower Court Decisions
The blasting incident at issue in Castonguay occurred in November 2007. The contractor, Castonguay Blasting Ltd., immediately reported the incident to the contract administrator who in turn reported it to the Ministry of Transportation and the Ministry of Labour. Castonguay, however, did not report the incident to the Ministry of Environment which only became aware of the incident in May 2008, after receiving notice from the Ministry of Transportation. In response, the Ministry of Environment charged Castonguay for violating the reporting requirement in the EPA.
At trial, Castonguay was acquitted of its charge for failing to report the blasting incident. The trial judge concluded that reporting obligations were only triggered by environmental events involving impacts to areas such as fish habitat, which are typically the subject matter of environmental protection legislation. The trial court concluded that the Castonguay incident was not an environmental event, and therefore the contractor had no duty to report to the Ministry of Environment.
The Ministry of Environment appealed this decision to the Ontario Superior Court of Justice. The court reversed the trial decision, convicting Castonguay for its failure to report the blasting incident. The majority of the Ontario Court of Appeal upheld the conviction on a further appeal. Castonguay then appealed to the Supreme Court of Canada.
Supreme Court of Canada Decision
The Supreme Court of Canada also upheld the conviction. The narrow issue before the Court was the proper interpretation of the term "adverse effect" in Ontario's Environmental Protection Act ("EPA"). Pursuant to the EPA, incidents must be reported if a contaminant is discharged "into the environment out of the normal course of events [and that discharge] causes or is likely to cause an adverse effect."
Castonguay argued that to find an "adverse effect" there must be proof of impairment to the natural environment, and to conclude otherwise would mean all routine activities causing emissions may have to be reported. The Ministry argued that proof of impairment was not required and that it was sufficient if one or more of the circumstances listed in the EPA's definition of the term "adverse effect" took place. The listed circumstances include, among other things, causing injury or death to the property and causing loss of enjoyment of the normal use of property.
The Court accepted the Ministry's submissions, deciding it was too restrictive to require proof of environmental impairment. In the Court's view, any one of the circumstances listed in the EPA's definition of "adverse effect" could independently constitute an "adverse effect" under the EPA, and proof of environmental impairment was not required. The Court found that reporting requirements would not be triggered by routine activities, like driving a car emitting carbon monoxide, because the reporting requirement only apply to situations that engage the natural environment, and only to discharges "out of the normal course events".
Having so interpreted the EPA, the Court found that the Castonguay blasting incident should have been reported to the Ministry of Environment. In the Court's view, the ejection of the rock debris was a "discharge" and the rock debris was a "contaminant", under the EPA. The discharge also was out of the normal course of events since it was an accident, and not an intended consequence of Castonguay's blasting operations. The blasting incident was an "adverse effect" because, among other things, it caused injury or damage to property, and caused loss of enjoyment of the normal use of property.
Implications of Decision
The Supreme Court of Canada's approach to the reporting requirement under the EPA indicates that a wide-range of accidents (occurrences "out of the normal course of events") are reportable to Ontario's Ministry of Environment, including those that do not obviously concern matters that are typically the focus of environmental protection legislation, such as fish habitats, watercourses or sensitive ecosystems.
The Court's broad interpretation of environmental protection legislation generally and Madam Justice Abella's statement of "when in doubt, report" also may influence future interpretations of similar environmental legislation other provinces, despite differences in terminology that may exist across provincial environmental protection statutes. In British Columbia, the province's Environmental Management Act and associated regulations contain spill reporting obligations which require any person in possession, charge or control of a "polluting substance" before a spill to report a spill event immediately after learning of it. For a spill to be reportable, however, it must exceed statutory thresholds. These express statutory thresholds mean that it may be easier to identify reporting obligations in BC. That said, all persons in spill circumstances would be commended to consider Madam Justice Abella's cautionary words particularly when confronted with any ambiguity in the applicable legislative regime.
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