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The Ministry of the Environment has prosecuted and convicted an Ontario company for failing to report a “discharge” when fly rock flew out of a construction site and damaged a house. Castonguay Blasting was following all proper precautions 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”. Accordingly, they did not report it to the Ministry of the Environment.According to the Superior Court of Justice, the flying piece of rock was indeed a “contaminant” discharged into the natural environment, just like windblown sand in R. v. Glen Leven Properties. Castonguay was therefor fined the minimum fine of $25,000, plus the 25% victim fine surcharge, for a total of $37,500, on top of the cost of the trial.

It is clear that the wording of the Environmental Protection Act can be used to apply to almost any physical object that drops or falls anywhere, as long as it has some “adverse effect”.

Technically, therefore, the ministry may have been right that s. 14 of the EPA can apply to fly rock,  and to other absurd situations, such as a refrigerator falling off the back of a truck and hitting a passing car. But why is the ministry stretching its jurisdiction so far? How is public safety or any other public good achieved by getting the Spills Action Centre  involved in a fly rock problem?  What expertise does the Ministry of the Environment add when it meddles in such situations?  Why did Castonguay deserve to be so severely punished for failing to know that the MOE wanted to be called when fly rock occurs?  What steps had the ministry taken to convey this surprising demand to the construction industry?  Or to its sister ministries, MTO and Labour? If calling the MOE about fly rock is important,  why doesn’t MTO include it in the notification provisions so carefully set out in its construction contracts?

The ministry is proud of its achievement in convicting Castonguay, but I think it’s another sad example of government abusing its power.

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