'When in Doubt, Report' – The Supreme Court Of Canada Broadens The Application Of Ontario’s Environmental Protection Act

On October 17, 2013, in Castonguay Blasting Ltd. v. Ontario (Environment), 2013 SCC 52, the Supreme Court of Canada dismissed the appeal of Castonguay Blasting Ltd. (Castonguay) from a decision of the Ontario Court of Appeal upholding a conviction under section 15(1) of the Ontario Environmental Protection Act (EPA) for failing to report the discharge of a contaminant. The company, at every level of court, argued that the discharge of the fly-rock, while causing property damage, was not an environmental event and therefore should not have triggered a requirement to report under the EPA.

Background

In September 2007, Castonguay was subcontracted to conduct rock blasting for the widening of Ontario's Highway 7 near Marmora, Ontario. On November 26, 2007, a blasting mishap sent rock debris 90 metres into the air and onto an adjacent property. The fly-rock penetrated the roof of a home on the adjacent property, damaging the home's kitchen ceiling, siding and eavestroughs. The fly-rock also damaged a car's hood and windshield.

Employees of Castonguay immediately went to the adjacent property to ensure that no one was hurt, and the contract administrator reported the incident to the Ontario Transportation and Labour ministries. The blasting was suspended until the Ministry of Labour, in December 2007, allowed the blasting to recommence. The company compensated the property owners for the damage to their property. However, not one of Castonguay, the Ministry of Labour, the Ministry of Transportation or the main contractor reported the incident to the Ministry of the Environment (MOE).

The MOE eventually learned of the incident in May 2008. In September 2009, the MOE charged Castonguay for failing to report "the discharge of a contaminant into the natural environment" contrary to section 15(1) of the EPA.

Trial History

In June of 2010, the Ontario Court of Justice acquitted Castonguay on the basis that it was inconceivable that the EPA could be interpreted so broadly as to consider the fly-rock incident an "environmental event." The Court suggested that the discharge of fly-rock could, in some circumstances, be considered an environmental event, if, for example, the rock landed in a watercourse or fish habitat; however, no such circumstances existed in this case.

In January 2011, the Ontario Superior Court of Justice allowed the appeal, entered a conviction and ordered Castonguay to pay the minimum fine of $25,000. The Court concluded that under...