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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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