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Supreme Court Holds Flying Debris is a Reportable Incident

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Environmental Bulletin

The Supreme Court of Canada has just released a decision that held that exploding fly-rock that damaged a house and vehicle at a nearby property was governed by Ontario’s Environmental Protection Act (“EPA”).  The Supreme Court also held that, based on the wording of the EPA, it is not necessary for there to be any impact to the natural environment; property damage is sufficient for the purposes of the EPA.

The Flying Rock

The decision arose out of a charge laid against Castonguay Blasting Ltd. (“Castonguay”) in 2007.  Castonguay was conducting blasting operations at a road-widening project in Mamora, Ontario and blast debris (fly-rock) was propelled approximately 90 meters into the air by an explosion.  The fly-rock crashed through the roof of a home and damaged the ceiling, the siding and the eavestroughs.  Some of the fly-rock hit a car, breaking the windshield and damaging the hood of the car.  There was also a significant amount of rock in the yard at the property.  While Castonguay immediately notified both the Ministry of Labour and the Ministry of Transportation of the incident, they did not notify the Ministry of the Environment (“MOE”).

The MOE Prosecutes

The MOE learned of the incident some months later and decided to charge Castonguay with failing to report a discharge of a contaminant into the natural environment, contrary to section 15(1) of the EPA.  Section 15(1) requires that a person who discharges a contaminant into the natural environment forthwith notify the MOE if the discharge causes or is likely to cause an “adverse effect”.

At trial, the Court dismissed the charge on the basis that section 15(1) of the EPA was not intended to apply to discharges that only damage property, absent some impairment of air, land, or water.  The Court indicated that, in order for the EPA to apply, there must be an “environmental event” and that fly-rock was not a contaminant.

The MOE Appeals the Dismissal at Trial

The MOE appealed the dismissal at trial and the decision was reversed.  The Court concluded that there was nothing in the EPA that limits its application to only the “natural environment” or “environmental events”.  The Court held that the trial court made an error of law by placing such a limitation on the plain wording of the EPA and its definitions.

Castonguay Appeals the Conviction

This decision and the conviction were appealed to the Ontario Court of Appeal in 2011.  The appeal was dismissed, but there was a conflict between the majority and dissent decisions of the Court of Appeal regarding the scope of the definition of “adverse effect” under the EPA and the implications of the Supreme Court of Canada’s decision in Ontario v. Canadian Pacific Ltd..  The Canadian Pacific decision held that, in interpreting the definition of “adverse effect”, “trivial or minimal threats to the environment” were excluded.  The question was whether this exclusion applied to all parts of the definition of “adverse effect”, or only the one considered by Supreme Court of Canada in the Canadian Pacific case.

The majority of the Court of Appeal took the position that an impact on the natural environment was not a requirement for each of the enumerated forms of “adverse effect” under the EPA.  Damage to property is, in and of itself, an “adverse effect” to which the EPA applies if the damage is caused by the discharge of a contaminant.

Is Flying Rock Really Governed by the EPA?

Castonguay appealed the Court of Appeal decision and the Supreme Court of Canada dismissed the appeal.  The Supreme Court held that environmental legislation requires an expansive approach to ensure that it can adequately respond to a wide variety of environmentally harmful scenarios, including ones which may not have been foreseen by the legislature.  The Supreme Court held that it could not accept Castonguay’s argument that impairment of the natural environment is necessary, along with property damage, for the reporting requirement to be triggered under the EPA.

Castonguay’s arguments required that the Supreme Court accept that the first part of the definition of “adverse effect”, which speaks to impairment of the natural environment, functions as an umbrella clause that modifies the other seven parts of the definition.  The Supreme Court held that such an interpretation would require it to completely ignore the definition of “adverse effect” and the manner in which it is set out in the EPA.  The definition of “adverse effect” means “one or more of” and then lists the components. There is nothing in that definition that suggests that the first component, impairment of the natural environment, is required for the other components to be triggered.

The Supreme Court also commented on a submission made by the two intervenors, who argued that Castonguay’s interpretation of section 15(1) of the EPA is inconsistent with the precautionary principle.  The Supreme Court stated, with reference to this principle:

"this emerging international law principle recognizes that since there are inherent limits in being able to determine and predict environmental impacts with scientific certainty, environmental policies must anticipate and prevent environmental degradation.”

According to the Supreme Court, section 15(1) of the EPA gives effect to the concerns underlying the precautionary principle by ensuring that the MOE is notified and can respond once there is a discharge of a contaminant, without waiting for proof the natural environment is actually been impaired.

Effects of Discharge Cannot be Trivial

The Supreme Court also referred to the decision of the Court of Appeal in Dow Chemical where the Court stated that it is not necessary for impairment of the natural environment to be present in addition to the other effects set out in the definition of “adverse effect”.  The Supreme Court held that each enumerated adverse effect must be more than trivial, but any one of them was sufficient to satisfy the definition.

Relying on this case, the Supreme Court concluded that the fly-rock propelled by Castonguay caused an adverse effect because of the injury or damage to property and loss of enjoyment of the normal use of property, both of which were parts of the definition of “adverse effect”.  The Supreme Court also found that one of the other parts of the definition could be engaged since the potential existed for impairment of the safety of any person.  In this case the Supreme Court held that the adverse effects were not trivial because the force of the blast and the rock produced were so powerful that extensive and significant property damage occurred. The Supreme Court held that the fly-rock could have easily seriously injured or killed someone.

The decision will, no doubt, cause companies to re-evaluate the triggers for reporting to the MOE.  Most companies assumed that an adverse effect on the natural environment was required for reporting to be triggered under the EPA, and that something like fly-rock being propelled and causing property damage was not an event governed by the EPA or that would be of interest to the MOE.  Indeed, it was clear from the facts that Castonguay, having reported to the Ministry of Labour and the Ministry of Transportation, was certainly not trying to avoid reporting, but clearly believed that this was not required.  According to the Supreme Court of Canada, it is.

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