Castonguay Blasting Ltd. v. Ontario (Environment)
Supreme Court of Canada
October 17, 2013
A recent decision of Canada’s top court contains a stern warning for contractors: 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: “When in doubt, report,” warned Justice Abella, writing for the Supreme Court of Canada.
On November 26, 2007, Castonguay Blasting Ltd. was working on a project commissioned by the Ontario Ministry of Transportation (MTO) when one of its blasting operations went awry, sending rock debris flying beyond the controlled blasting area. This “fly-rock” damaged a house on neighbouring private property. A car in the driveway of the house was also damaged. Fortunately, no one was hurt. The owners of the property were fully compensated for the damage.
Castonguay reported the incident to the contract administrator, who in turn reported it to the MTO and the provincial Ministry of Labour (MOL) which regulates the use of explosives in a construction workplace. Further blasting on the project stopped until the site was inspected by the MOL. Castonguay undertook a modified blasting method in order to reduce the risk of a further fly-rock incident. MOL was satisfied, and blasting resumed early in December. There were no further fly-rock incidents.
However, Castonguay did not report the incident to the Ministry of the Environment (MOE). Ontario’s Environmental Protection Act (EPA) requires that the MOE be immediately notified when a contaminant is discharged into the environment. There are two pre-conditions to this reporting requirement:
(a) the discharge must have been “out of the normal course of events”, and
(b) it must have had, or was likely to have, an “adverse effect” on the environment.
Six months after the event, in May 2008, the MOE was notified of the blasting accindent by the MTO. Well over a year later, in September 2009, Castonguay was charged with failing to report the “discharge of a contaminant into the natural environment“, contrary to the requirements of the EPA.
Lower Court Decisions
In June 2010, Castonguay was acquitted by the Ontario Court of Justice. The trial judge found that, on the agreed facts before him, there was no evidence of a significant impairment of the natural environment. He decided that to convict Castonguay would require an absurdly broad and therefore unintended interpretation of the EPA. The MOE appealed.
In January 2011, Justice Ray of the Ontario Superior Court of Justice found that the trial judge erred in law in finding that the application of the EPA was limited to events that caused environmental damage. There was nothing in the EPA that limited its application and the meaning of “adverse effect” to the natural environment. The definition of “contaminant” under the EPA includes “injury or damage to property”, “impairment of the safety of any person”, and “loss of enjoyment of normal conduct of business”. Therefore, the fly-rock this case was a contaminant, as defined in the EPA.
The EPA triggered a reporting obligation that was not met. The acquittal was set aside. Castonguay was convicted and ordered to pay the minimum fine of $25,000. Castonguay appealed.
Ontario Court of Appeal
In March 2012, the majority of the Ontario Court of Appeal decided that Castonguay was indeed required to report the incident to the MOE, and upheld the appeal.
Castonguay’s principal argument on appeal was, as before, that damage to private property alone is not sufficient to trigger the reporting requirement, but that the obligation only arises where the discharge of the contaminant has caused more than trivial or minimal harm to the natural environment.
Not so, decided the majority of the three judges of the Court of Appeal. An explosion scattering fly-rock almost a 100 metres from a blasting operation was a discharge of a contaminant that caused an adverse effect under the EPA that should have been reported.
One of the three appeal judges dissented. He found that the fly-rock generated by Castonguay’s blasting did not have any (or, at least, no more than a trivial or minor) impact on the natural environment, and that the EPA should not be interpreted “in a completely open-ended manner and in a fashion that overreaches its intended mandate. It is not super-legislation governing every aspect of life.”
Castonguay appealed the majority decision to the Supreme Court of Canada.
Supreme Court of Canada
On October 17, 2013, the Supreme Court dismissed Castonguay’s appeal. The overall purpose of the EPA, said Justice Abella, is “to provide for the protection and conservation of the natural environment” which is defined as the “air, land and water, or any combination or part thereof, of the Province of Ontario”. The EPA also protects those who use the natural environment by protecting human health, plant and animal life, and property.
One of the means by which the EPA promotes its protective and preventative purposes is through the prohibition against discharging a contaminant into the natural environment where it is likely to have an adverse effect, and the related requirement that any such discharge which is out of the normal course of events be reported.
Notification provides the MOE with the opportunity to conduct an inspection as quickly as possible and to obtain information in order to take any necessary remedial action. The principal task of the Court is to determine when the reporting requirement is triggered. It is the MOE, and not the discharger, who decides what steps, if any, are required to prevent damage to the environment.
Parsing the language of the relevant section of the EPA illuminates its clear preventative and protective purposes. First, a person must discharge a contaminant. Second, the contaminant must be discharged into the natural environment. Third, the discharge must be out of the normal course of events. Fourth, the discharge must be one that causes or is likely to cause an adverse effect.
Castonguay discharged fly-rock into the natural environment. Fly-rock – large pieces of rock created by the force of a blast – meets the definition of contaminant. The discharge in this case was out of the normal course of events – it was an accidental consequence of the blasting operation. Finally, the discharge of fly-rock caused an adverse effect, namely, it caused damage to property and loss of enjoyment of the normal use of the property. There was also the potential for impairment of the safety of any person.
The definition of adverse effect should be interpreted broadly. Restricting the scope of what is considered adverse effect would limit the scope of the EPA’s protective and preventative capacities. Protecting the natural environment requires, among other strategies, maximizing the circumstances in which the MOE may investigate and remedy environmental harms.
Accordingly, the Supreme Court dismissed Castonguay’s appeal.
The Precautionary Principle
Two groups were allowed to act as interveners in the case: the Canadian Environmental Law Association and a charity, Lake Ontario Waterkeeper.
The interveners pointed out in their joint factum that the EPA is consistent with the precautionary 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. The EPA gives effect to the concerns underlying the precautionary principle by ensuring that the MOE is notified and has the ability to respond once there has been a discharge of a contaminant, without waiting for proof that the natural environment has, in fact, been impaired.
The precautionary principle should be expanded to include a word of advice to the contractor who dutifully reports a discharge, even if it doubts it caused more than trivial environmental damage: as a precaution, use the spare time while waiting for the investigation by the MOL and the MOE, and for the instructions regarding possible remediation measures, to prepare for delay claims that will likely come from the owner and/or the general contractor and/or the subcontractors and/or others.
Revay and Associates Limited,
Editor, Construction Law Letter
Note: Readers should not rely solely on the interpretation of a court decision summarised in this publication, but should consult their own solicitors as to the interpretation of the written reasons rendered by the court. The publishers and editors disclaim any liability which may arise as a result of a reader relying upon contents of this publication. The opinions expressed in the articles are those of the authors, and not necessarily those of the publishers and editors of the Construction Law Letter.