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Two recent cases have reached opposite conclusions about what counts as a “contaminant” under Ontario’s Environmental Protection Act (EPA). Neither case seems to make much environmental sense. Why is flyrock a “contaminant”, when reflected light that lures millions of birds to their deaths is not? Why does the EPA, and the Ministry of the Environment, protect buildings but not wildlife?

In Ontario (Environment) v. Castonguay Blasting Ltd., fly rock that damaged property (but not the natural environment) was acontaminant. In Schultz v. Menkes Developments et al., reflected light, which caused the deaths of hundreds of migratory birds, was not a contaminant.

The purpose of the EPA is to protect the natural environment. To do so, it prohibits the discharge of “contaminants”, which are broadly defined: “contaminant” means any solid, liquid, gas, odour, heat, sound, vibration, radiation or combination of any of them resulting directly or indirectly from human activities that causes or may cause an adverse effect.

Adverse effect is also broadly defined, and includes

(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)        impairment of the safety of any person, and

(d)        loss of enjoyment of normal use of property.

Contaminant discharges that cause such effects must be reported.

Fly rock = contaminant

In Castonguay Blasting, the Ministry of the Environment (MOE) prosecuted Castonguay for failing to report the discharge of a contaminant when fly rock damaged a house. Castonguay was following all proper procedures when the blast occurred, and immediately reported it to the general contractor, the Ministry of Transportation and the Ministry of Labour, as required by its contract with the provincial government. However, neither Castonguay nor anyone else at the site considered the fly rock to be a “discharge” of a “contaminant” and they did not report it to the MOE. The MOE had never told the blasting industry that it claimed jurisdiction over flyrock. Nor would it likely have done anything about the rock if it had received a report at the time; after all, two provincial ministries were already on site dealing with the issue.

The Court of Appeal convicted Castonguay. The majority found that the flying pieces of rock were literally a “contaminant” discharged into the natural environment. They ruled that, despite the purposes of the EPA, EPA charges, and “contaminants” don’t have to involve “more than trivial or minimal harm to or impairment of the natural environment”. There was enough of an “environmental” connection because the rock pieces flew through the air before falling on the house.

Castonguay has received leave to appeal to the Supreme Court of Canada, where they should have a strong case. If they lose, there could be substantial consequences for everyone whose activities could send something flying outdoors, including tennis clubs, golf courses, baseball teams and soccer teams. And what about workers who could drop something off a scaffold? Or truckers who could drop something off their truck? Must they all now report to the MOE? And do they now need MOE permits to operate?

Reflected light? contaminant

But at the same time that the MOE stretches the EPA beyond recognition to regulate flying objects, neither they nor the courts will use it to protect wild birds from mass slaughter by the current fashion of mirrored buildings. About a million birds are killed by such buildings in Toronto each year, lured to their deaths by the light shining or reflected from their windows. The light becomes a contaminant discharged by the buildings, as a direct effect of human activity, just as sand allowed to become windblown was a contaminant in R. v. Glen Leven Properties.

EcoJustice and Ontario Nature brought a private prosecution, under the EPA and the Ontario Society for the Prevention of Cruelty to Animals Act against the owners of one of the most lethal building complexes in the Greater Toronto Area. They showed that these buildings had killed or injured nine hundred birds in 2008 and 2009.

Justice of the Peace Turtle dismissed the charges. Although hundreds of birds were killed or injured after striking the buildings, and although sunlight is undoubtedly “radiation”, he found the legislature did not intend to make reflected sunlight a “contaminant”. For him, the EPA governs only “harmful” radiation. Sunlight, he stated, cannot be a pollutant. Further, Menkes did not discharge, cause or permit the discharge of the light – the windows on the building merely reflected the light from the sun.

EcoJustice has a strong case, and is considering an appeal. If the Court of Appeal was right in Castonguay, the Menkes decision must be wrong. And even if flyrock is not a “contaminant”, reflected light that lures millions of birds to their deaths should be.

This article was originally published in The Lawyers Weekly.

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