Canada: When In Doubt, Report To The MOE

In October 2013, the Supreme Court of Canada (SCC) confirmed that the duty to report the discharge of a contaminant into the natural environment contrary to section 15 of the Ontario Environmental Protection Act (EPA) is very broad. It explicitly stated, "When in doubt, report" (i.e., as to whether a discharge causes or is likely to cause an "adverse effect").

Castonguay Blasting Ltd.'s (Castonguay) conviction for failing to report a discharge of "fly-rock" from a blasting operation to the Ontario Ministry of the Environment (MOE) was upheld. The court rejected Castonguay's argument that because the discharge did not impair the natural environment itself— the air, land or water—it was not required to report the incident to the MOE. Instead, the court noted that "adverse effect" is defined by one or more of eight components, and each of these aspects provides an independent trigger for the duty to report. It is not necessary for there to be known environmental impairment for the duty to report to arise. In this case, damage to property was sufficient.

Background

In November 2007, Castonguay, as a subcontractor on a highway-widening project commissioned by the Ministry of Transportation (MOT), was blasting rock when the operation went awry and rock debris, known as fly-rock, was propelled by an explosion approximately 90 metres into the air. Some of the rock crashed through the roof of a home, damaged a car and landed in someone's yard. While Castonguay immediately reported the incident to the contract administrator, who in turn reported it to the MOT and the Ministry of Labour, it did not report the incident to the MOE (which was only told of the incident by the MOT in May 2008).

In September 2009, Castonguay was charged with failing to report the "discharge of a contaminant into the natural environment" to the MOE, contrary to section 15(1) of the EPA. While Castonguay was acquitted by the Ontario Court of Justice, the Ontario Superior Court of Justice set aside the acquittal and entered a conviction. A majority in Ontario's Court of Appeal subsequently dismissed Castonguay's appeal, confirming that the discharge of the fly-rock in this case was covered by section 15(1) of the EPA and that Castonguay was therefore required to report the incident to the MOE. Castonguay then appealed to the SCC.

Analysis

As explained by the court, the EPA is Ontario's principal environmental statute, the overall purpose of which is "to provide for the protection and conservation of the natural environment." Its intended reach is wide and deep. The EPA also protects those who use the natural environment by protecting human health, plant and animal life and property. One of the means by which the EPA promotes its protective and preventive purposes is through the prohibition in section 14(1) against discharging a contaminant into the natural environment where it is likely to have an "adverse effect."  This purpose is reinforced by the related requirement in section 15(1), the reporting requirement, that any such discharge which is out of the normal course of events be reported forthwith to the MOE.

According to Justice Abella, who wrote the unanimous decision, the key issue on appeal was the proper interpretation of section 15(1). Castonguay had argued that injury or damage to private property alone (which is what occurred) was insufficient to engage the reporting requirement. It was not required to report the incident because the discharge had not impaired the natural environment (the air, land or water). It also submitted that while the definition of "adverse effect" has eight components—(a) to (h)—paragraph (a) is an "umbrella clause." According to Castonguay, there must be "impairment of the quality of the natural environment for any use that can be made of it" before any of the other seven elements come into play.

The court disagreed, pointing out that the definition of "adverse effect" includes the words "means one or more of the eight components set out in (a) through (h)." Consequently, section 15 of the EPA does not require a discharge to cause or be likely to cause both a separate impairment of the natural environment and one of the eight enumerated impacts in the definition of adverse effect. The court concluded that section 15(1) was clearly engaged and Castonguay was required to report the incident to the MOE.

The applicant "discharged" fly-rock (a "contaminant") into the natural environment. This discharge was out of the normal course of events—it was an accidental consequence of Castonguay's blasting operation ("had the blast been routine, the fly-rock would not have been thrust into the air"). Finally, the discharge caused an adverse effect: injury or damage to property and loss of enjoyment of the normal use of property, which was more than trivial. The court also emphasized the importance of reporting to allow the MOE to inspect, obtain information and determine what preventive or remedial measures are appropriate.

Similar Quebec decision

Similar reasoning was applied in a 1999 case from Quebec. In R. v Dyfotech Inc. the Court of Quebec (Criminal and Penal Division) specifically considered whether the defendant dynamite specialist for a quarry operation, had violated the prohibition in section 20 of the Environment Quality Act (EQA) by discharging fly-rock that hit a nearby home and vehicle almost exactly like in the Castonguay case. This prohibition contains language referring to the environmental consequences of emitting a contaminant in the environment.

The Quebec Court specifically found the damage to property and interference with personal security from the flying rock were environmental consequences that justified the application of section 20 of the EQA. The court also concluded that fly-rock was a contaminant. However, the court ultimately accepted Dyfotech's due diligence defence.

Take-away points

The EPA will be interpreted broadly: The SCC confirmed that the EPA's status as remedial legislation "entitles it to a generous interpretation" and that the environment itself and the wide range of activities that might harm it are not easily conducive to precise codification. It is likely that more activities will now be captured under sections 14 and 15 of the EPA as the result of this ruling. It will be interesting to see how courts apply this "wide and deep" interpretation to other EPA sections.

Organizations cannot "wait for proof": According to Justice Abella it is important that the MOE be immediately notified so it can respond once there has been a qualifying discharge "without waiting for proof that the natural environment has, in fact, been impaired." This confirms that organizations will not necessarily be allowed to delay reporting pertinent to environmental discharges until they receive test results from environmental experts or consultants.

Increased MOE involvement: The court affirmed that the obligation to investigate and/or take remedial measures rests with the MOE, not with the discharger. The court wrote that many potential harms may be difficult to detect without MOE expertise and resources and confirmed that protecting the natural environment requires, among other strategies, "maximizing the circumstances in which the MOE may investigate and remedy environmental harms." The court's "when in doubt, report" approach should give organizations pause—but not too long—when dealing with potential discharges.

Application of the precautionary principle: The court took the position that section 15(1) was in line with the precautionary principle that was recognized by previous decisions as being a principle of customary international law applicable in Canadian law.

Application beyond the EPA: We believe the court's ruling concerning the interpretation of section 15(1) is applicable to similar provisions in environmental statutes in other provinces and even at the federal level.

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