VALERIE MUTTON
The Ontario Court of Appeal
has rendered a decision that may
expand the scope of the provincial Environmental Protection
Act to include incidents even
where there is no harm done to
the natural environment.
In a 2-1 decision, the court
upheld the conviction of a rock
blasting company in central
Ontario that was found to have
violated the act’s reporting provisions. “Environmental protection
is a very broad subject matter,”
wrote Justice James MacPherson, with Justice Janet Simmons
concurring, in Ontario (
Environment) v. Castonguay Blasting
Ltd., 2012 ONCA 165.
The company was widening an
area of Highway 7 near Marmora
in 2007, when some rock debris
flew beyond the blasting area and
damaged a house and car. No one
was injured, and the property
owners were compensated.
Various government ministries were advised of the incident,
although not the Ministry of the
Environment. “The Ministry of
Transportation reported the incident to the Ministry of the
Environment, and Castonguay
was charged in 2009 with failing
to report,” explained Bruce
McMeekin, of Miller Thomson,
who represented Castonguay in
its appeal.
Section 14(1) of the Act cre-
ates the offence of discharging a
contaminant into the natural
environment, and s. 15(1) requires
such discharge to be reported,
where it “causes or is likely to
cause an adverse effect.”
The issues were whether the
transient falling rock debris could
be considered an environmental
contaminant, and whether the
discharge caused or was likely to
cause an adverse effect to the
environment, or to people, plants,
animals or property.
Castonguay was acquitted at
trial in provincial court. That
decision was overturned by the
Superior Court, after the province filed an appeal. Castonguay
was subsequently granted leave
by the Court of Appeal.
The company argued that a
reporting requirement only
arises when the discharge of a
contaminant has caused “more
than trivial or minimal harm to
the natural environment,” and
that some damage to private
property isn’t enough to trigger
the obligation.
The Ministry of the Environment countered that if there is a
connection between the activity
and the natural environment that
results in damage to property, the
obligation to report is triggered.
The Canadian Environmental
Law Association obtained inter-
vener status at the Court of
Appeal. Joseph Castrilli, counsel
for the association, said it asked
to intervene because, “we did not
want this case to narrow the scope
of activities that might have an
impact on the environment.”
In a dissenting opinion, Justice
Robert Blair concluded that there
must be both harm to the environ-
ment and an “adverse effect” to
people, plants, animals or prop-
erty, to require reporting. “A non-
trivial harm or impairment of the
natural environment is an essen-
tial component of an ‘adverse
effect,’ ” Justice Blair wrote.
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