1. R. v. Castonguay Blasting Ltd., 2011 ONCA 292; SCC appeal
heard May 17, 2013, decision under reserve: Do trivial harm
discharges need to be reported?
The Supreme Court of Canada (SCC) is presently considering the
scope of the terms "contaminant", "adverse
effect" and "discharge" under Ontario's
Environmental Protection Act (EPA), in a decision likely to have
broad ramifications for environmental law across Canada. The case
involves fly rock from a blasting operation that damaged a car and
a residential property; no one was injured and the owner was
compensated. The incident was timely reported to Ontario's
ministries of labour and transportation but not to the Ministry of
the Environment (MOE), which elected to charge Castonguay Blasting
Ltd. for failure to report discharge of a contaminant. In a split
2-1 decision, the Ontario Court of Appeal ruled that a rock is a
"discharge" having an "adverse effect" on the
Castonguay requested and was granted leave to appeal from the
decision to the SCC. The question under reserve, in practical
terms, is whether Canadian courts should take a strict literal, as
opposed to a purposive, interpretative approach to environmental
legislation. In brief, does a "discharge" need to cause
real environmental harm to engage the EPA?
2. Podolsky v Cadillac Fairview Corp., 2013 ONCJ 65: Can light
reflecting from windows be an EPA "discharge"?
Of a similar vein, this case involves birds flying into an
office building's windows, which reflected trees nearby
creating an illusion of a wooded area. A private prosecution
alleged the reflective glass created a discharge of
"radiation" causing an adverse effect to the environment
-- injury or death to birds.
The trial judge ruled that the building owner did in fact permit
an EPA "discharge". However, the owner successfully
established a due diligence defence. Avian collision mitigation
measures, including "bird deterrent strategies" in
compliance with industry standards, were found to have reasonably
minimized the reflective effect.
3. Kawartha Lakes (City) v. Ontario (Environment), 2013 ONCA
310: Can an innocent owner be stuck with clean-up costs caused by a
A fuel oil spill on residential property streamed over municipal
property into Sturgeon Lake. The offending owner ran out of money
to cover remediation costs so the MOE issued a clean-up order
against the municipality, which challenged it using an innocent
property owner defence.
The Ontario Court of Appeal upheld the MOE order finding that
the EPA's purpose – to ensure protection of the
environment – trumped the polluter pays principle. The policy
decision behind shifting the cost from Ontario's taxpayers to
municipal taxpayers is less than clear.
4. Newfoundland and Labrador v. AbitibiBowater Inc., 2012 SCC
67: Can federal insolvency legislation be used to stay provincial
Newfoundland and Labrador (NL) wanted AbitibiBowater Inc. (AB)
to pay for the clean-up of five contaminated sites at a cost of
approximately $100 million. NL argued that environmental protection
orders are not "claims" under the federal Companies'
Creditors Arrangement Act.
AB countered that a province cannot disturb
the priority scheme established by federal insolvency
The SCC held that the NL legislation could not disturb the
federal insolvency process, at least not on the facts of this case.
The decision provides important guidance on the manner in which
insolvency proceedings will be approached when environmental
contamination issues arise.
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.
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...
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