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Follow us on TwitterThe Supreme Court of Canada recently granted leave to hear an important Environmental Protection Act case. In Ontario (Environment) v. Castonguay Blasting Ltd., 2012 ONCA 165 (CanLII) Castonguay, a construction subcontractor caused fly rock to be flung 90 metres into the air during highway construction near Marmora, Ontario in 2007. The fly rock caused damage to a nearby home and vehicle.
A year later, Castonguay was charged with failure to report the discharge of a contaminant under s.15(1) of the Ontario Environmental Protection Act (EPA). This provision requires reporting of discharges of contaminants likely to cause an adverse effect to the Ontario Ministry of the Environment, (MOE) so that it can be investigated and addressed accordingly.
The Environmental Protection Act defines “adverse effect” to include property damage and harm to human use. This practice is consistent with legislation federally and provincially across Canada, and indeed internationally which recognizes human participation in and connection to the “environment” by defining the environment and related terms to include human uses and property.
However, the Ontario Court of Justice held that there had to be an “environmental event” for the fly‑rock incident to be reportable. Seemingly, although not explained, this only included harm to those lower down on the pyramid than ourselves, or at least not our physical belongings. Because of this approach Castonguay was acquitted. This acquittal was overturned by the Ontario Superior Court based on the wording of the legislation. Two judges of the Ontario Court of Appeal upheld the conviction on appeal, on the same basis.
The Ontario Court of Appeal correctly decided to uphold the conviction. The case should serve as a warning to proponents that they must report any incident captured by the EPA that could cause an adverse effect. Reporting requirements are broad for a reason: because issues of harm and significance of a discharge are best assessed by the MOE, not the culprit.
There was a strong dissent by Blair J. A. at the Court of Appeal, who agreed with the “environmental event” approach of the Ontario Court of Justice. While it is superficially appealing to find that something must be “environmental” to be prohibited in cases like Castonguay this approach should be avoided. The legislature made the definition of adverse effect in the Act broad, and there is wide support in the caselaw for this breadth. The defence argument simply cannot be sustained on the language of the current Act.
The courts should be very reluctant to play environmental policy‑analyst and “fix” the EPA as the dissent and lower court tried to do. If the definition of adverse effect is too broad, then the legislature should amend it. The court is not an expert in environmental policy and revising the definition is simply not the court’s proper role. There are many policy issues in play, including the enforcement resources that would be required to show that every offence in fact was “environmental” with expensive evidence. The court risks lacking deeper insight and being under‑inclusive in defining what an “environmental nexus” is. In holding that this requirement exists, the Ontario Court of Justice gave little guidance about what it means or how to apply it. The vague case‑by‑case application of the reporting requirement would cause uncertainty and under‑reporting. In short, the court is in a poor position to define what an “environmental nexus” is or why and how it should be applied and should not tamper with the Act. In any event I am not of the view that the definition of adverse effect is over‑inclusive. It is unusual that the precise nature or extent of harm is obvious at the time of the discharge of any contaminant. For a reporting regime to be viable, it must cast the net widely.
The underlying philosophy of some of the commentary in this case from the Ontario Court of Justice and the dissent at the Court of Appeal seems to be that that human society is disconnected from what constitutes the “environment” or harm to it. This distinction is hard to justify in many cases.
Similarly, the Ontario Court of Appeal denied “stigma” damages for losses to property in the Inco class action, which involved nickel contamination but where actual harm to property, the environment or human health was harder to prove (or certify a class for a class action with).
I hope that this does not disclose a new trend in Ontario jurisprudence to try to draw a hard line between human property damage and environmental and health harm in environmental litigation. This would act as an unfair barrier to otherwise meritorious claims and prosecutions where it is usually far easier to prove harm and loss to property than to health and the environment, even where both exist. If our courts are eager to shut the door in the face of property claims, and put evidentiary barriers in the face of other types of claims then it is another sign that we need an expanded role for specialized environmental tribunals that can more capably address science and health evidentiary issues that are at stake in these matters.
