Canada: SCC Declares "When In Doubt, Report" Under The Environmental Protection Act

In Castonguay Blasting, the Supreme Court of Canada has unanimously upheld a broad interpretation of environmental reporting obligations under Ontario's Environmental Protection Act. The judgment, delivered by Abella J., suggests that corporations may have environmental reporting obligations even in circumstances where they would appear not to have impacted "the environment" as that term is usually understood. The Court's conclusion was set out with undeniable clarity in the second paragraph of the judgment as follows:

Background and Decisions Below

Castonguay Blasting Ltd. had been charged with breaching its reporting obligations under the EPA for failing to report unexpectedly significant debris from a blasting operation to the Ministry of the Environment (MOE). Castonguay, a sub-contractor working on a highway-widening project, had conducted blasting operations that sent "fly-rock" 90 metres high and ultimately caused damage to a private home. The incident had been reported by the contract administrator to the Ministry of Transportation and the Ministry of Labour, but the MOE only learned about it indirectly approximately six months later. As set out by Brandon Kain in a previous post, Castonguay was initially acquitted at the Ontario Court of Justice, but that decision was reversed by Ray J. of the Superior Court of Justice and led to a split decision at the Court of Appeal.

At issue was the obligation created by s. 15 of the EPA, requiring a report to the MOE if a discharge "is out of the normal course of events" and "causes or is likely to cause an adverse effect." The legislation defines "adverse effect" broadly with reference to eight kinds of occurrence, including a range of harms to the environment, damage to private property, impairment to personal safety, or the loss of enjoyment of property. The Court of Appeal upheld the conviction, but a dissent by Blair J.A. reasoned that the broad definition of "adverse effect" contemplated "something amounting to more than trivial or minimal harm to or impairment of the natural environment as an essential element of liability..."

Decision and Potential Significance

The Supreme Court rejected a restricted interpretation of "adverse effect" which would have modified each of the enumerated adverse effects to include a threshold requirement of non-trivial harm to the natural environment, finding that this approach was not supported by the text of the statute.

Although the Court relied primarily on a textual reading, the judgment is peppered with references to the need for a broad and contextual approach to statutory interpretation for a statute like the EPA which may be important in understanding the likely interpretation of other provisions of similar legislation. The Court noted that the Legislation Act requires a "generous interpretation" of remedial legislation (para. 9), but it also went considerably further. Abella J. noted that environmental legislation "embraces an expansive approach" in light of the difficulties of precise codification in the environmental field, and "[b]ecause the legislature is pursuing the objective of environmental protection, its intended reach is wide and deep." While referring to para. 84 of the majority judgment of Gonthier J. in Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031 in this regard, the principle suggested by Abella J. appears to be a broader one.  In Canadian Pacific, Gonthier J.  offered an explanation and justification for the legislature's choice of "broad legislative language" in light of the breadth of the legislature's environmental concerns, not a suggestion that the intended scope and effect of environmental legislation will always be broadly interpreted because it concerns the environment.

The Court noted that it is often expensive and difficult to determine what damage, if any, has been caused by the discharge of a contaminant and it is therefore reasonable that the duty to report will be broad so that the MOE can bring its resources to bear for the purposes of inspection, information-gathering, and the taking of preventative or remedial measures. Perhaps anticipating concerns that broad reporting obligations impose a hardship on private actors, the Court noted that "the statute places both the obligation to investigate and the decision about what further steps are necessary with the Ministry and not the discharger." The Court also found that imposing a reporting obligation even in the absence of proof of harm is consistent with the "precautionary principle", which it described as an "emerging international law principle" supporting anticipatory and preventative approaches to environmental degradation (para. 20).

The Supreme Court's confirmation that reporting obligations under the EPA will be defined broadly provides important clarity for a broad range of corporations who may be surprised to learn that their activities may trigger environmental reporting obligations. Such obligations do not depend on having harmed "the environment" as many might have assumed. Whether a "discharge" is reportable will depend both on the broad definition of "adverse effect" and on what is and is not within the "normal course of events." The advice of "when in doubt, report" – coming from the highest court in the land – should prompt all actors to ensure they have adequate systems in place to understand the legislation, track incidents and ensure compliance.

Case Information

Castonguay Blasting Ltd. v. Ontario (Environment), 2013 SCC 52

SCC Docket: 34816

Decision Date: October 17, 2013

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