Supreme Court upholds Castonguay: “When in doubt, report”

The Supreme Court of Canada has rejected Castonguay’s appeal of its conviction for failing to report, to the Ontario Ministry of the Environment, a fly rock incident during road construction.  They were fined $25,000 plus the 25% victim fine surcharge. This decision greatly expands the types of incidents that must now be reported to environmental regulators across the country. I still think the result is unfortunate. And I don’t understand why the MOE wants to take jurisdiction over property damage in accidents, when they are struggling to keep up with the huge number of more traditional environmental problems, not to mention climate change. But there it is: they wanted the jurisdiction, and they got it.

When in doubt, report

According to the court, environmental reporting obligations should be broadly interpreted:

“[1]…. The purpose of the [reporting] requirement is to let the Ministry know about potential environmental damage so that any consequential remedial steps can be taken in a timely way.

[2]                              The interpretive exercise engaged in this appeal is to determine when the reporting requirement is triggered.  In my view, there is clarity both of legislative purpose and language: the Ministry of the Environment must be notified when 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.  In other words: when in doubt, report…”

The Environmental Protection Act reflects:

“[34]… a statutory recognition that protecting the natural environment requires, among other strategies, maximizing the circumstances in which the Ministry of the Environment may investigate and remedy environmental harms” whether or not such harms are restricted to conventional property damage.

Facts

The facts were as follows:

In 2007, Castonguay Blasting Ltd. was hired as a subcontractor to conduct blasting operations for a highway-widening project commissioned by the Ontario Ministry of Transportation. The contract, written by the province, stipulated who had to be notified if a blast rock incident occurred. That included the Ontario Ministry of Labour, but NOT the Ministry of the Environment.

According to the court:

“[4]                              On November 26, 2007, Castonguay was blasting rock when the operation went awry and rock debris known as “fly-rock” was propelled into the air by an explosion.  Had the blast been carried out according to plan, the force of the blast would have been contained and concentrated inwards, reducing the risk of shattered rock becoming airborne.  In this case, however, the fly-rock shot approximately 90 metres in the air and crashed through the roof of a home, damaging the kitchen ceiling, the siding and the eavestroughs.  Some of the fly-rock hit a car, breaking the windshield and damaging the hood.  There was also a significant amount of rock in the yard.

[5]                              Castonguay immediately reported the incident to the contract administrator, who in turn reported it to the Ministry of Transportation (which had commissioned the project) and the provincial Ministry of Labour in accordance with the requirements in s. 53 of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1.  Further blasting on the project stopped until the site was inspected and remedial steps were agreed to with the Ministry of Labour.”

Note: Castonguay repaired the damage to the house and car. There was no damage to anything within the specific expertise of the Ministry of the Environment, and no evidence that the MOE would have contributed anything useful to the Ministries of Labour and Transportation’s response to the incident.

“[6]                              Castonguay did not report the incident to the Ministry of the Environment.  That Ministry was not notified until May 2008, when it was told about the incident by the Ministry of Transportation.

[7]                              In September 2009, Castonguay was charged with failing to report the “discharge of a contaminant into the natural environment” to the Ministry of the Environment contrary to s. 15(1) of theEPA.  Castonguay was acquitted by the Ontario Court of Justice. The Ontario Superior Court of Justice set aside the acquittal and entered a conviction (2011 ONSC 767, 57 C.E.L.R. (3d) 142). Castonguay appealed on the basis that s. 15(1) was not triggered in these circumstances.

[8]                              In the Court of Appeal (2012 ONCA 165, 109 O.R. (3d) 401), MacPherson J.A., writing for the majority, concluded that the plain meaning of the relevant provisions of the EPA, the relevant case law, and a proper understanding of the broad purposes of the EPA confirmed that the discharge of the fly-rock in this case was covered by s. 15(1) of the EPA and that Castonguay was therefore required to report the incident to the Ministry of the Environment.  In dissent, Blair J.A. found no breach of s. 15(1) in these circumstances.  I agree with the majority that Castonguay was required to report the incident.”