The Supreme Court of Canada (SCC) has set May 17, 2013 to hear an appeal from the Ontario Court of Appeal decision in Ontario (Environment) v. Castonguay Blasting Ltd. At issue is whether “adverse effect” under Ontario’s Environmental Protection Act (EPA) requires something more than trivial harm to the natural environment. The SCC decision is likely to significantly impact environmental liability and reporting requirements across Canada.

The immediate question is whether fly-rock is a “contaminant” to be viewed as a “discharge” resulting in an “adverse effect” – despite the fact it had no impact on the natural environment. Blasting rock near Marmora, Ontario, Castonguay was carrying out operations that sent rock debris outside the area of control, damaging a neighbouring house. Happily, the owner was not injured and was fully compensated. Castonguay reported in a timely manner to Ontario’s Ministries of Labour and Transport.  

Later, Ontario’s Environment Ministry, having learned of the event, elected to charge Castonguay for failing to report the discharge of a contaminant into the natural environment – allegedly contrary to EPA s.15(1). An initial acquittal by the Ontario Court was reversed on appeal; a conviction was entered by the Superior Court. That conviction was later upheld by a split (2-1) Court of Appeal in the order now under review by the Supreme Court, leave to appeal having been granted on the basis of the appeal’s public importance.  

The legal case largely turns on whether literal or purposive interpretation techniques should be applied to environmental legislation. EPA s. 15(1) states:  

Every person who discharges a contaminant ... into the natural environment shall forthwith notify the Ministry if the discharge ... causes or is likely to cause an adverse effect.  

Castonguay submits that damage to private property is not sufficient to trigger the reporting requirement – the obligation arises where the discharge causes more than trivial harm to the natural environment. The dissenting appeal judge agreed with Castonguay noting that the stated purpose in EPA s. 3(1) is to provide protection and conservation of the natural environment. The dissenting appeal judge held that “adverse effect” must carry some element of natural environment impairment more than what is merely transient. Indeed, the trial judge had referred to the statute as requiring an “environmental event” in issuing the initial acquittal. As described in the dissenting appeal judge’s view, the fly-rock here did not constitute a “contaminant” as statutorily defined and did not cause an “adverse effect”.  

In contrast, the Court of Appeal majority stated:  

A blasting activity gone wrong (as the appellant concedes) may not have caused more than trivial or minimal harm to the air, land or water. However, the fly-rock generated by the blasting did cause significant harm to property, a different adverse effect under the Act. Importantly, the direct conduit resulting in this harm was the appellant’s use of the environment (the air) to disperse a contaminant (fly-rock). … In conclusion, I see no policy reason for limiting the coverage of the EPA to fact situations where serious adverse effects to people, animals and property can be considered only if the environment is also harmed by the impugned activity. In this case, the discharge of fly-rock into the air during a blasting operation was a sufficient trigger for scrutiny under the EPA.

The SCC will likely release its decision quite quickly after hearing this appeal next year.