The Supreme Court of Canada (SCC) has set May 17, 2013 to hear
an appeal from the Ontario Court of Appeal decision in Ontario
(Environment) v. Castonguay Blasting Ltd. At issue is whether
"adverse effect" under Ontario's Environmental
Protection Act (EPA) requires something more than trivial harm to
the natural environment. The SCC decision is likely to
significantly impact environmental liability and reporting
requirements across Canada.
The immediate question is whether fly-rock is a
"contaminant" to be viewed as a "discharge"
resulting in an "adverse effect" – despite the fact
it had no impact on the natural environment. Blasting rock near
Marmora, Ontario, Castonguay was carrying out operations that sent
rock debris outside the area of control, damaging a neighbouring
house. Happily, the owner was not injured and was fully
compensated. Castonguay reported in a timely manner to
Ontario's Ministries of Labour and Transport.
Later, Ontario's Environment Ministry, having learned of the
event, elected to charge Castonguay for failing to report the
discharge of a contaminant into the natural environment –
allegedly contrary to EPA
s.15(1). An initial acquittal by the Ontario Court was reversed
on appeal; a conviction was entered by the Superior Court. That
conviction was later upheld by a split (2-1) Court of Appeal in the
order now under review by the Supreme Court, leave to appeal having
been granted on the basis of the appeal's public
The legal case largely turns on whether literal or purposive
interpretation techniques should be applied to environmental
s. 15(1) states:
Every person who discharges a contaminant ... into the natural
environment shall forthwith notify the Ministry if the discharge
... causes or is likely to cause an adverse effect.
Castonguay submits that damage to private property is not
sufficient to trigger the reporting requirement – the
obligation arises where the discharge causes more than trivial harm
to the natural environment. The dissenting appeal judge agreed with
Castonguay noting that the stated purpose in EPA
s. 3(1) is to provide protection and conservation of the
natural environment. The dissenting appeal judge held that
"adverse effect" must carry some element of natural
environment impairment more than what is merely transient. Indeed,
the trial judge had referred to the statute as requiring an
"environmental event" in issuing the initial acquittal.
As described in the dissenting appeal judge's view, the
fly-rock here did not constitute a "contaminant" as
statutorily defined and did not cause an "adverse
In contrast, the Court of Appeal majority stated:
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). ... In
conclusion, I see no policy reason for limiting the coverage of the
EPA to fact situations where serious adverse effects to people,
animals and property can be considered only if the environment is
also harmed by the impugned activity. In this case, the discharge
of fly-rock into the air during a blasting operation was a
sufficient trigger for scrutiny under the
The SCC will likely release its decision quite quickly after
hearing this appeal next year.
The Imperial Oil refinery pled guilty to one offence for discharging a contaminant, coker stabilizer, thermocracked gas, into the natural environment causing an adverse effect and was fined $650,000...
Ontario's Ministry of the Environment and Climate Change continues to roll out its Climate Change Action Plan with its proposed GHG guide for projects that are subject to the province's Environmental Assessment Act.
In June, 2016, Justice Faieta of the Ontario Superior Court of Justice awarded damages of $57,712.31 plus interest against legal counsel who failed to file a claim within the required limitation period.
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