Canada: Supreme Court Will Hear Important Appeal: Is Flying Rock A Discharge?

Last Updated: October 30 2012
Article by Dianne Saxe

The Supreme Court of Canada has granted Castonguay Blasting leave to appeal its disturbing  conviction for failing to report a "discharge", contrary to section 15 of the Environmental Protection Act. The "discharge" was an escaped piece of flyrock from blasting, which was reported  to the Ministry of Labour as directed in Castonguay's contract with its client, the Ministry of Transportation of Ontario. The flyrock did not cause environmental impacts but did damage a neighbouring home, and might have injured the family that lived there.

This is an important case with broad implications.

For Why the Court of Appeal convicted Castonguay, and for Questions the Supreme Court should ask during the appeal, scroll down.

Why the Court of Appeal convicted Castonguay

The Ontario Court of Appeal had upheld Castonguay's conviction in Ontario (Environment) v. Castonguay Blasting Ltd.,; Castonguay was ordered to pay the minimum fine of $25,000.

Section 14(1) of the Environmental Protection Act (EPA) prohibits the discharge of contaminants into the environment if the discharge causes or may cause an adverse effect.  Section 1(1) of the EPA defines "adverse effect" as including danger to health and damage to property. Under section 15(1), everyone who discharges such a contaminant must notify the Ministry of the Environment (MOE) if the discharge is out of the normal course of events, and isn't a "spill".

The Ontario Court of Appeal decided that the flyrock was an environmental discharge because it flew through the air, which is part of the "natural environment". They reasoned that an "adverse effect" does not require "something amounting to more than trivial or minimal harm to or impairment of the natural environment as an essential element of liability". In other words, an "adverse effect" does not necessarily entail a real impact on the natural environment, even though protecting the natural environment is the purpose of the EPA. If a "solid" travels through the natural environment and causes damage, it is a discharge and must be reported.

At paragraph 76:

[T]he EPA is, in my view, also concerned with uses of the environment that cause harm to people, animals and property – for example, as a conduit for contaminants that cause damage or harm to people, animals or property. Blasting is a perfect example. In many cases, blasting will not harm the environment; para (a) of the definition of adverse effect will not be triggered. However, where blasting causes the discharge of a contaminant, such as fly-rock, into the natural environment, blasting may harm people, animals or property. This is what happened in this case. A blasting activity gone wrong (as the appellant concedes) may not have caused more than trivial or minimal harm to the air, land or water. However, the fly-rock generated by the blasting did cause significant harm to property, a different adverse effect under the Act. Importantly, the direct conduit resulting in this harm was the appellant's use of the environment (the air) to disperse a contaminant (fly-rock)."

Is this really an environmental case?

Justice Blair wrote a lengthy and persuasive dissent. He would have acquitted Castonguay, on the ground that this case was not really about the natural environment. Not every accident should be an offence under the EPA:

[46] In the circumstances here, it is conceded that the fly-rock generated by Castonguay's blasting activities did not have any (or, at least, no more than a trivial or minor) impact on the natural environment or cause any harm to it. The fly-rock did not constitute a "contaminant" therefore, nor did it cause or was it likely to cause an adverse effect in terms of the EPA. Accordingly, Castonguay could not properly be convicted of failing to report the discharge of a contaminant, contrary to s. 15(1) of the EPA.

Questions the Supreme Court should ask

I hope that the Supreme Court will ask these questions when it hears the case on May 17, 2013:

  1. Why should the EPA be applied to activities that don't affect its purpose, the natural environment? (the "Ministry of Everything" problem).
  2. What public interest would be served by giving the Ministry of the Environment jurisdiction over blasting? (I can't think of one, especially since the MOE lacks the resources to effectively manage many of its existing responsibilities.)
  3. If the MOE had received notice of the flyrock at the time, what would they have done with that notice? (Presumably call the Ministry of Labour, who was already there.)
  4. Blasting is already heavily regulated, provincially and federally. What aspect of blasting requires additional regulation? (Has anyone noticed a plague of unregulated blasting recently?)
  5. If there were a public policy reason for extending MOE jurisdiction to cover blasting, why wasn't this first communicated to the construction industry, and included in provincial government contracts? Why should the court allow the MOE to ambush unsuspecting industries by starting with prosecution? Ignorance of the law is not a legal excuse, but when governments adopt surprising new interpretations of existing laws, shouldn't they have to tell the regulated community before they start prosecuting them?
  6. If escaping flyrock must be reported under s. 15, doesn't that mean that the flyrock itself was an illegal discharge under s. 14, which exposes the individual blasting employees to personal jail time? And since escaping flyrock is always possible, doesn't this mean that each blasting site now requires a s. 9 Environmental Compliance Approval, with all the cost and delay that entails? Again, one must ask: to what public purpose? The Approvals Branch is surely backlogged enough. And what expertise would the MOE bring to bear as a regulator of blasting? (None).
  7. If the MOE can arbitrarily apply the EPA to blasting, what about every other kind of solid that  can escape through the air and cause damage: golf balls?  tennis balls? baseballs? tires and cargo falling off vehicles? cladding falling from buildings? tree limbs? a hammer dropped by a construction worker? Does every golf club, tennis club and softball league now require a s. 9 approval to operate?

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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Dianne Saxe
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