A recent Supreme Court of Canada decision has confirmed the
breadth of reporting requirements under Ontario's
Environmental Protection Act
("EPA"). In her judgment, Justice Abella
aptly warned, "when in doubt, report."
The case involved a company conducting blasting operations
related to a highway-widening project. During these operations, a
large amount of rock and debris (known as "fly rock") was
propelled 90 metres into the air instead of being contained, and
landed on a neighbouring property. The fly rock damaged a home, a
car, and a significant amount landed in the yard.
Although the company reported this incident to the Ministry of
Transportation ("MTO") and the Ministry
of Labour, they failed to report it to the Ministry of the
Environment ("MOE"). After the MTO
informed the MOE several months later, the MOE charged the company
with failing to report the "discharge of a contaminant into
the natural environment" contrary to section 15(1) of the
Section 15(1) reads as follows:
Every person who discharges a
contaminant or causes or permits the discharge of a contaminant
into the natural environment shall forthwith notify the Ministry if
the discharge is out of the normal course of
events, the discharge causes or is likely to cause
an adverse effect and the person is not otherwise required
to notify the Ministry under section 92 [emphasis added].
The company argued that section 15(1) was not triggered in these
circumstances. The Court disagreed. Finding that the reporting
requirements under section 15(1) were triggered, the Court noted
the following general principles:
The EPA is Ontario's principal environmental protection
statute and, as remedial legislation, it is entitled to a generous
Environmental protection engages complex subject matter that is
not "easily conducive to precise codification." This
necessitates an expansive legislative approach that is able to
respond to a wide-variety of scenarios;
The purpose of the reporting requirement is to "ensure
that it is the Ministry of the Environment, and not the discharger,
who decides what if any, further steps are required"; and
Legislation interpretation, like here, must be consistent with
the precautionary principle.
A large portion of the Court's analysis focused on the
meaning of "adverse effect", which is defined in the EPA
as including one or more of eight enumerated effects, including:
the impairment of the quality of the natural environment, injury or
damage to property or plant or animal life, and loss of enjoyment
of normal use of property. The company argued that the reporting
obligation was not triggered unless there was an impairment of the
quality of the natural environment and one of the other
seven effects, such as damage to plant life. The Court dismissed
this argument, noting that none of these effects are to be seen as
an overriding requirement to triggering 15(1). Rather, each of the
eight branches provides an independent trigger for liability.
The Court concluded that the reporting requirements are
triggered when the following factors are present:
A "contaminant" has been discharged;
The contaminant is discharged into the natural environment
(including the air, land, or water of Ontario);
The discharge is out of the normal course of events;
The discharge causes or is likely to cause an adverse
This decision illustrates the broad interpretation that is given
to the EPA generally, and reporting requirements specifically.
Individuals and companies alike should be sure to report any and
every time an incident triggers the reporting requirements in
section 15(1) and, "when in doubt, report."
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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