• Discharge of Contaminants into the Environment: "When In Doubt, Report"
  • November 11, 2013
  • Law Firm: Dentons Canada LLP - Toronto Office
  • Overview

    Companies should carefully heed the Supreme Court of Canada’s recent warning to promptly report the discharge of contaminants to the Ministry of the Environment (“MOE”), and may have to re-evaluate their current protocols and procedures to ensure that any incidents are monitored, and when necessary, reported to the appropriate regulatory bodies. Ontario’s Environmental Protection Act (“the Act”) requires that the MOE be immediately notified when a contaminant is discharged into the environment, if the discharge was out of the normal course of events, and if the discharge had, or was likely to have, an adverse effect. The Supreme Court has affirmed that proof of impairment is not required to trigger this duty to report, and more significantly, that the duty is triggered even if the effects of the discharge do not impair the quality of the environment. This decision may have application outside of Ontario, because other Canadian jurisdictions have similar statutory language.

    Background

    In 2007, Castonguay Blasting Ltd. (“Castonguay”) was hired as a subcontractor to conduct blasting operations for a highway-widening project commissioned by the Ontario Ministry of Transportation. Castonguay was blasting rock when the operation went awry and rock debris - aptly known as “fly-rock” - was propelled 90 meters into the air by an explosion, crashing through the roof and into the kitchen of a nearby home. The fly-rock also broke the windshield and damaged the hood of a nearby car. Castonguay stopped blasting until the site was inspected and remedial actions were taken. While Castonguay immediately reported the incident to the contract administrator, who in turn reported it to the Ministry of Transportation and the Ministry of Labour, it did not report it to the MOE. The MOE only learned of the incident several months later through the Ministry of Transportation, and eventually charged Castonguay with failing to report the “discharge of a contaminant into the natural environment” to the MOE, contrary to section 15.1 of the Act. [1]

    Issue: interpretation of section 15.1 of the Act

    The issue before the Supreme Court of Canada in Castonguay Blasting Ltd. v. Ontario (Environment) [2] was the proper interpretation of the reporting requirement in section 15.1, which states:

    15.1 Every person who discharges a contaminant or causes or permits the discharge of a contaminant into the natural environment shall forthwith notify the Ministry if the discharge is out of the normal course of events, the discharge causes or is likely to cause an adverse effect and the person is not otherwise required to notify the Ministry under section 92.

    Castonguay conceded that the discharge of the fly-rock caused property damage, but argued that injury or damage to private property alone was insufficient to engage the reporting requirement. Rather, Castonguay argued that it was not required to report the incident because the discharge did not impair the natural environment, which, given the objective of the Act, should be a prerequisite to trigger a reporting requirement. The Supreme Court disagreed.

    Purpose of the Environmental Protection Act and the reporting requirement

    Writing for a unanimous court, Justice Abella first focused on the remedial nature of the Act. Environmental protection is decidedly a complex subject matter, and legislation that deals with environmental protection must be interpreted generously. Justice Abella observed that because the legislature is pursuing the objective of environmental protection, its intended reach is “wide and deep”. [3] The Act achieves this goal through a series of regulations, prohibitions, and reporting requirements, as well as a wide range of inspection, enforcement, preventative, and remedial powers. [4]

    With respect to the reporting requirement, Justice Abella noted:

    The purpose of the reporting requirement in s. 15.1 is to ensure that it is the Ministry of the Environment, and not the discharger, who decides what, if any, further steps are required. When a contaminant is discharged, the discharger may not know the full extent of the damage caused or, in the words of s. 15.1, likely to be caused. Moreover, many potential harms such as harm to human health, or injury to plants and animals, and even impairment of the natural environment, 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 fulfil 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. [5]

    Finally, Justice Abella noted that this expansive interpretation of section 15.1 is also consistent with the “precautionary principle”, an emerging international law principle which recognizes the inherent limits of predicting environmental impacts with scientific certainty, and provides that environmental policies must anticipate and prevent environmental degradation, without waiting for proof of actual impairment. [6]

    To report or not to report: that is the question

    The requirement to report under section 15.1 is triggered when all of the following elements are established:

    1. A contaminant is discharged;
    2. The contaminant is discharged into the natural environment;
    3. The discharge is out of the normal course of events;
    4. The discharge causes, or is likely to cause, an adverse effect;
    5. The adverse effect(s) are not trivial; and
    6. The person is not otherwise required to notify the Ministry under section 92, which addresses the spill of pollutants (this was not an issue in this case). [7]

    Applying this test, Castonguay discharged fly-rock into the “natural environment”, as a result of an accidental consequence of Castonguay’s blasting operation. This discharge caused an “adverse effect” - namely, property damage and loss of enjoyment of the normal use of a property. These effects were not trivial, as evidenced by the significant damage caused to the home and car. As a result, Castonguay was required to report the discharge immediately after it happened, and failing to do so, it was liable for a fine.

    Future implications

    The Supreme Court interpreted the duty to report the discharge of contaminants expansively to promote the remedial purpose of Ontario’s Environmental Protection Act. It clarified that the natural environment does not need to be impaired by the discharge of the contaminants in order to trigger the reporting requirement.

    Under the Act, “adverse effect” is defined as follows:

    “adverse effect” means one or more of,

    (a) Impairment of the quality of the natural environment for any use that can be made of it;

    (b) Injury or damage to property or to plant or animal life,

    (c) Harm or material discomfort to any person,

    (d) An adverse effect on the health of any person,

    (e) Impairment of the safety of any person,

    (f) Rendering any property or plant or animal life unfit for human use,

    (g) Loss of enjoyment of normal use of property, and

    (h) Interference with the normal conduct of business. [8]

    It is now clear that each of the adverse effects listed in the definition are independent triggers for liability; no single component of the definition acts as an overriding requirement.

    Contractors, project developers, and other private businesses must also ensure that in addition to reporting the incidents immediately after they happen, they must also notify all of the appropriate regulatory bodies. Alerting the project contract administrator or advising other provincial Ministries is not enough if the MOE does not also receive immediate notice of the incident.

    The Court has also clarified that the duty to report exists, irrespective of whether remedial actions have been taken by the business or other agencies, and regardless of whether there is proof that the natural environment has, in fact, been impaired. The purpose of section 15.1 is to let the MOE know about the potential environmental damage, so that any consequential remedial steps can be taken by the MOE in a timely way.

    Ultimately, if faced with a decision about whether to report an incident that may fall under the ambit of section 15.1, it is better to err on the side of caution, and as Justice Abella candidly stated, “when in doubt, report”. [9]

    [1] R.S.O. 1990, c. E.19 [EPA].

    [2] 2013 SCC 52.

    [3] Ibid. at para. 9.

    [4] Ibid. at para. 11.

    [5] Ibid. at paras. 18-19 [emphasis added].

    [6] Ibid. at para. 20.

    [7] Ibid. at para. 36.

    [8] Supra note 1, s. 1(1).

    [9] Supra note 2 at para. 2.