When in doubt, report: Castonguay Blasting upheld at SCC

October 21st, 2013 by Laura Bowman

Last week the Supreme Court of Canada unanimously upheld the Court of Appeal’s decision in the Castonguay Blasting case, which I have previously written about.  Despite numerous critics of the Court of Appeal’s decision from the environmental law bar, the Supreme Court made the right decision and upheld the Court of Appeal’s ruling that all discharges of contaminants are reportable under the Ontario Environmental Protection Act.

My former employer, Lake Ontario Waterkeeper, along with the Canadian Environmental Law Association, intervened in the Supreme Court of Canada appeal on the side of upholding the plain wording and broad scope of the reporting requirements in the Act.

The Supreme Court agreed with the Ministry and the intervenors that when a contaminant is discharged, the discharger may not know the full extent of the damage caused or likely to be caused.

The Court held that the purpose of the reporting requirement in section 15(1) is to ensure that it is the Ministry, and not the discharger, who decides what, if any, further steps are required.  Moreover, many potential harms may be difficult to detect without the expertise and resources of the Ministry.  As a result, the statute places both the obligation to investigate and the decision about what further steps are necessary with the Ministry and not the discharger.

Notification provides the Ministry with the opportunity to conduct an inspection as quickly as possible and to obtain information in order to take any necessary remedial action and to fulfill its statutory mandate.  This enables the Ministry to respond in a timely way to the discharge of a contaminant into the natural environment and to be involved in determining what, if any, preventative or remedial measures are appropriate.

In the decision, Justice Abella points out that this is consistent with the precautionary principle:

[20] As the interveners Canadian Environmental Law Association and Lake Ontario Waterkeeper pointed out in their joint factum, s. 15(1) is also 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 (O. McIntyre and T. Mosedale, “The Precautionary Principle as a Norm of Customary International Law” (1997), 9 J. Envtl. L. 221, at pp. 221-22; 114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Town), 2001 SCC 40, [2001] 2 S.C.R. 241, at paras. 30-32).  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.

This is a major coup, not only because of this unanimous recognition of the application of the precautionary principle to the interpretation of the EPA, but because there is a growing movement in some sectors to promote a view of environmental protection that is the opposite of this.  Namely, that the onus is on the regulator to show that there was “real” environmental harm in using its statutory authority to address things like spills.  You will often hear on the news that there was a spill but “no environmental harm.” Well, without an inspection how would anyone know this?  What is the threshold being used to say this?  The emerging approach is akin to saying one should not get a speeding ticket because there was no automobile collision.  It is crucial that regulators are able to enforce reporting requirements and determine this themselves.  Prevention is the essence of public welfare regulation.  In upholding the Court of Appeal decision in Castonguay the Supreme Court made it clear that it “gets” what environmental protection legislation is all about.

Filed in: Environment, Litigation

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