On October 17th, 2013, the Supreme Court of Canada released its
long-awaited decision in Castonguay Blasting,
commonly referred to as the fly-rock case. To summarize, Castonguay
was doing some blasting work and rock was unexpectedly projected
outside the work site, landing on someone's property and
damaging a home and a vehicle. No one was hurt and there was no
environmental damage. The contractor notified the site manager who
notified the provincial ministry of transport and the ministry of
labour. A month later, the ministry of transport mentioned the
incident to the ministry of the environment which then charged
Castonguay with the discharge of a contaminant in violation of the
Ontario Environmental Protection Act
(EPA) and for the offense of failing to report the
discharge. At issue before the courts was whether a discharge that
causes damage to property but not the environment must be reported.
The Ontario Court of Justice acquitted Castonguay. The Supreme
Court of Ontario entered a conviction and the conviction was upheld
by the Ontario Court of Appeal and the Supreme Court of Canada.
This article deals with whether this judgment has an impact in
In order to trigger a duty to report under the EPA, there must
be a discharge of a contaminant into the environment out of the
ordinary course of events. Under the EPA, a contaminant "means
any solid, liquid, gas, odour, heat, sound, vibration, radiation or
combination of any of them resulting directly or indirectly from
human activities that causes or may cause an adverse effect",
"adverse effect" means one or more of:
impairment of the quality of the natural environment for any
use that can be made of it
injury or damage to property or to plant or animal life
harm or material discomfort to any person
an adverse effect on the health of any person
impairment of the safety of any person
rendering any property or plant or animal life unfit for human
loss of enjoyment of normal use of property, and
interference with the normal conduct of business
In Quebec, under the Environment Quality Act
(EQA), whoever is responsible for the accidental
presence of a contaminant in the environment must report the
accident to the environment ministry without delay. A contaminant
is "a solid, liquid or gaseous matter, a microorganism, a
sound, a vibration, rays, heat, an odour, a radiation or a
combination of any of them likely to alter the quality of the
environment in any way."
We believe that Castonguay brings Ontario closer to the
Quebec reporting standard. In both provinces, the environment
ministry must be notified when there is a discharge of a
contaminant into the environment out of the ordinary course.
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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