The Court of Appeal for Ontario released an important decision
this week on the definition of "adverse effect" under the
Environmental Protection Act (the "EPA"). Many
provisions of the EPA, particularly those prohibiting certain
activities or requiring reporting of certain events to the Ministry
of the Environment (the "MOE") are triggered only if
there is a possibility of an adverse effect.
Further, the EPA definition of "contaminant" hinges
on whether a product may cause an adverse effect.
The EPA sets out the definition of adverse effect as one or more
of any of the following:
impairment of the quality of the natural environment for any
use that can be made of it;
injury or damage to property or to plant or animal life;
harm or material discomfort to any person;
an adverse effect on the health of any person;
impairment of the safety of any person;
rendering any property or plant or animal life unfit for human
loss of enjoyment of normal use of property; and
interference with the normal conduct of business.
On its face, this definition is extremely broad and could
include many impacts which do not actually negatively affect the
natural environment. Until recently, however, the EPA was generally
only applied by enforcement officials where there was concern over
impacts to the natural environment.
In Ontario (Environment) v. Castonguay Blasting Ltd.
the situation arose, however, where the Defendant, Castonguay
Blasting Ltd. ("Castonguay") was charged with a violation
of the EPA for an event which caused property damage, but had no
negative impacts on the natural environment. Specifically,
Castonguay was responsible for errant blasting work which resulted
in rock debris landing on a house and vehicle. Castonguay took
responsibility for the property damage, provided compensation to
the property owners, and notified both the Ministry of Labour
(pursuant to the Occupational Health and Safety Act) and
the Ministry of Transport (as they were working on roadway
construction at the time of the incident). They did not report the
incident to the MOE, believing that the lack of negative impact on
the natural environment negated such a need. The MOE disagreed,
however, and charged Castonguay with failing to report the
discharge of a contaminant into the natural environment that causes
or is likely to cause an adverse effect, under section 15(1) of the
At an Ontario Court of Justice trial, Castonguay was acquitted
of the charge, but this decision was reversed on appeal to the
Superior Court of Justice. On March 16, 2012 the Court of Appeal
for Ontario released its decision pursuant to a further appeal in
the matter. Finding for the MOE, the Court of Appeal relied on
a plain reading of the EPA and the definition of "adverse
effect", as set out above, and saw no reason to constrict its
application to situations involving threats to the natural
environment. The Court seems to acknowledge that there must be some
nexus between the natural environment and the act in question, but
that this connection does not have to be as strong as requiring an
actual or potential negative impact on the natural environment
before the EPA can be engaged. In this case, the fact that the
debris was a natural material - blasted rock - was sufficient.
Whether a particular material is considered a
"contaminant" having an "adverse effect" will
be an very fact specific investigation, but parties should take
this decision as a cautionary tale to carefully consider whether
the EPA may apply to their operations even where there is no
real or potential adverse impact on the natural environment.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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