Supreme Court of Canada upholds Castonguay’s conviction for not reporting discharge of fly-rock from blast

Expulsion of fly-rock from a blast was a “discharge” of  a  “contaminant” out of the normal course of events that  should have been reported to  the Ministry of the Environment (MOE) under section 15 of Ontario’s Environmental Protection Act (Act).

“Impairment of the quality of the natural environment” is not a necessary requirement. It is sufficient if the discharge results in any one or more of the eight  heads of “adverse effect” defined in the Act, including damage to property, whether or not the quality of the natural environment is impaired.

The MOE must be notified under s. 15 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.

So held the Supreme Court of Canada in its decision released today in Castonguay Blasting Ltd. v. Ontario (Environment), 2013 SCC 52 upholding Castonguay’s conviction for failing to report the discharge to the MOE. 

Castonguay was conducting blasting operations for a highway‑widening project when the operation went awry and rock debris known as “fly‑rock” was propelled into the air by an explosion. The fly‑rock shot approximately 90 metres in the air and damaged a home and a car. A significant amount of rock also landed in the yard.

Castonguay did not report the incident to the MOE and was subsequently charged with failing to report the discharge of a contaminant into the natural environment contrary to s. 15(1) of the Act.

Castonguay was acquitted by the Ontario Court of Justice. The Ontario Superior Court of Justice set aside the acquittal and entered a conviction. A majority in the Court of Appeal dismissed Castonguay’s appeal and it appealed to the Supreme Court.

It is noteworthy that Castonguay immediately reported the incident to the contract administrator, who in turn reported it to the Ministry of Transportation (which had commissioned the project) and the provincial Ministry of Labour, in accordance with the requirements in s. 53 of the Occupational Health and Safety Act.

Further blasting on the project stopped until the site was inspected and remedial steps were agreed to with the Ministry of Labour.

Section 15(1) of the Act requires that:

 15. — (1) Every person who discharges a contaminant or causes or permits the discharge of a contaminant into the natural environment shall forthwith notify the Ministry if the discharge is out of the normal course of events, the discharge causes or is likely to cause an adverse effect and the person is not otherwise required to notify the Ministry under section 92.

The terms “discharge”, “contaminant”, “natural environment” and “adverse effect” are defined in s. 1(1) of the Act, as follows:

“natural environment” means the air, land and water, or any combination or part thereof, of the Province of Ontario;

“discharge”, when used as a verb, includes add, deposit, leak or emit and, when used as a noun, includes addition, deposit, emission or leak;

“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,

(a) impairment of the quality of the natural environment for any use that can be made of it,

(b) injury or damage to property or to plant or animal life,

(c) harm or material discomfort to any person,

(d) an adverse effect on the health of any person,

(e) impairment of the safety of any person,

(f) rendering any property or plant or animal life unfit for human use,

(g) loss of enjoyment of normal use of property, and

(h) interference with the normal conduct of business;

The  Court rejected Castonguay’s argument that paragraph (b) to (h) must be read subject to paragraph (a).

In reaching its decision, the court endorsed an argument by the two interveners, the Canadian Environmental Law Association and Lake Ontario Waterkeeper, that section 15 is consistent with the precautionary principle. Per  Abella J., delivering the judgement of the court:

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…Section 15(1) gives effect to the concerns underlying the precautionary principle by ensuring that the Ministry of the Environment is notified and has the ability to respond once 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.

To read the full decision, please click here

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