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Two companies, Consbec Inc. and Bruman Construction Inc., were fined a collective total of $150,000 for failing to notify the Ministry of the Environment and Climate Change (“MOECC”) of a fly-rock discharge.

Bruman owns and operates an aggregate quarry located in North Bay.  Consbec was hired by Bruman to engage in controlled blasting at the quarry. On the afternoon of May 28, 2014, one of Consbec’s controlled blasts resulted in fly-rock being projected outside the blasting area and onto a neighbouring residential property, approximately twenty-five (25) feet from where the homeowner and an employee of Bruman were standing. The fly-rock did not cause any property damage and no one was injured.

The homeowner contacted the MOECC to notify of the fly-rock discharge from the quarry. Neither of the companies involved contacted the MOECC.

On November 20, 2015, Bruman pled guilty to failing to notify the MOECC and fined $25,000 plus the 25% victim fine surcharge. On September 13, 2016, Consbec pled guilty to the same offence and fined $125,000 plus the 25% victim fine surcharge.

Fly-rock is considered a contaminant under the Environmental Protection Act (“EPA”). Section 14 of the EPA prohibits the discharge of a contaminant into the natural environment. A contaminant is defined under the EPA as something resulting from human activities that causes or is likely to cause an adverse effect. Section 15 of the EPA requires all persons to notify the MOECC if they discharge a contaminant into the natural environment, out of the normal course of events, and the discharge causes or is likely to cause and adverse effect. What constitutes an adverse effect is broadly defined in the EPA.

The Section 15 duty to report applies only to discharges of a contaminant into the natural environment (air, land or water). The requirement that the discharge be “out of the normal course of events” excludes routine and day-to-day business activities from the obligation to report to the MOECC under this provision. However, under section 92 of the EPA, “spills” must be reported to the MOECC forthwith even if no adverse effect has or occurred or is likely to occur unlike section 15 and only applies to “pollutants” (not all contaminants). A spill is defined in the EPA as the release of a pollutant into the natural environment, from a structure, vehicle or other container, that is abnormal in quality or quantity. A pollutant means a contaminant but does not include heat, sound, vibration or radiation. A contaminant however is defined broadly in the EPA as any solid, liquid, gas, odour, heat, sound, vibration, radiation or combination of them resulting directly or indirectly from human activities that cause or may cause an adverse effect.

It is important to report spills and discharges, as there is a pattern of increasing fines for failing to report a discharge or spill. In its decision in R v Castonguay Blasting, 2013 SCC 52, the Supreme Court of Canada confirmed that when in doubt, a company should report discharges  to the Spills Action Centre – 416-325-3000, 1-800-268-6060 (toll-free), or 1-855-515-2759 (TTY).

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