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 environment.
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 neighbour?
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 monetary orders?
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 legislation.
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.
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.
