"When in Doubt, Report"
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 EPA.
Section 15(1) reads as follows:
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 interpretation;
- 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 effect;
- The adverse effect is not trivial or minimal; and
- The person is not otherwise required to notify the Ministry under section 92 of the EPA, which deals with the spill of pollutants. - See more at: http://www.davis.ca/en/entry/environmental-energy-and-resources-law/supreme-court-of-canada-confirms-reporting-requirements-under-ontario-environmental-protection-act/#sthash.47l6yZwd.dpuf
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."
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