The Ontario Court of Justice has added a couple of expensive
postscripts to a landmark legal case that confirmed the incident
reporting requirements under section 15(1) of Ontario's
Environmental Protection Act. Castonguay Blasting Ltd. was
found guilty (yet again) of failing to report the discharge of a
"contaminant" (fly rock from its blasting operations)
that caused or is likely to cause an "adverse effect"
(damage to a movie theatre, parked cars and a garage) in three
In a case that went to the Supreme Court of Canada,1
Castonguay Blasting Ltd. (Castonguay) was charged by the Ministry
of the Environment (MOE) for failing to report the discharge of fly
rock in a blasting accident. The fly rock severely damaged a
private residence and a parked car during road work near the town
of Marmora in November 2007 (see
Castonguay decision: Appeal Court clarifies and broadens
Ontario's spill reporting requirements"). Castonguay
was convicted by the Ontario Court of Appeal and fined $25,000.
"Supreme Court Says "When in Doubt, Report"
In its decision released on October 17, 2013, the
Supreme Court ultimately dismissed Castonguay's final appeal of
the conviction. The Supreme Court found that
fly rock meets the definition of "contaminant" under
the Environmental Protection Act (EPA)
the discharge was "out of the normal course of
events" and caused an "adverse effect" (namely,
injury or damage to property), and
the adverse effects were not trivial.
The Supreme Court dismissed Castonguay's argument that a
discharge must cause more than minimal harm to the "natural
environment" and that damage to private property alone was not
sufficient to trigger the reporting requirement. According to the
[T]here is clarity both of legislative purpose and language: the
Ministry of the Environment must be notified when there has been a
discharge of a contaminant out of the normal course of events
without waiting for proof that the natural environment has, in
fact, been impaired. In other words: when in doubt, report.
Castonguay Convicted in Two New Cases
The courts have found Castonguay guilty once again for further
discharges of fly rock causing adverse effects
On January 10, 2014, the Sudbury Court of Justice fined
Castonguay $175,000 (plus a victim fine surcharge of $43,750) for
another two blasting incidents that occurred while a Castonguay
crew was breaking up oversized rocks during site development for a
retail store in Sudbury. In September 2008, fly rock damaged the
nearby SilverCity movie theatre. In October 2008, more flying
debris scratched, dented or broke the windows of several cars in an
adjoining parking lot. Castonguay pled guilty to two counts of
discharging a contaminant beyond the limits of a work site causing
adverse effects and failing to report the first event to the MOE
for almost seven hours after it occurred
On March 31, 2014, the Parry Sound Court fined Castonguay $75,000
(plus a victim fine surcharge of $18,750) for failing to notify the
MOE about the discharge of fly rock that caused damage to a garage
in Magnetawan in May 2010. Castonguay had been hired to do blasting
at a nearby quarry located on Old Hwy Road West.
The 2013 Supreme Court of Canada Castonguay case sparked
considerable debate in the legal community. Some commenters
suggested that the MOE had overstepped its traditional
environmental mandate. They questioned whether a hunter must report
the "discharge of a contaminant" (i.e., the bullet) that
kills a nearby deer, or a player report the "discharge"
of a baseball that breaks a window.
These latest convictions show, however, that the original charge
was not an aberration and that the Courts will continue to require
the reporting of contaminant discharges that occur out of the
normal course of events and cause more than a trivial adverse
1 Castonguay Blasting Ltd. v. Ontario
(Environment), 2013 SCC 52.
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