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When fly-rock from a blasting site hits a house, is that a “discharge” of a “contaminant” that must be immediately reported to the Ministry of the Environment Spills Action Centre? Ontario’s Court of Appeal says “yes”.

In Ontario (MOE) v. Castonguay Blasting, the Ministry of the Environment chose to prosecute Castonguay Blasting, a blasting company, for just such a rock. There were no errors or negligence alleged in the blast itself. Castonguay was working for the Ontario Ministry of Transportation at the time, and the provincial government’s contract specified in detail who should be notified when fly-rock went out of bounds. This did NOT include the MOE. Nor had the MOE ever asked the blasting industry to report such events.

When the rock went awry, Castonguay followed the reporting procedure exactly as directed by MTO, who had a contract supervisor at the site. Since neither Castonguay nor the MTO representative considered the fly rock to be a “discharge” of a “contaminant”, no one reported it to the Ministry of the Environment.

The MOE prosecuted Castonguay for failing to report the rock, an offence with a minimum $25,000 fine. The trial court dismissed the charge, but the Crown won its appeal and the company was found guilty of failing to report the discharge. Castonguay appealed.

The majority of Ontario’s Court of Appeal upheld the conviction. Mr. Justice Blair, in dissent, found that “adverse effect” as defined under the Environmental Protection Act (EPA), includes not only the eight harms listed in that definition, but also a component involving “something amounting to more than trivial or minimum harm to or impairment of the natural environment” in order to trigger liability relating to discharge of a “contaminant” into the natural environment. In this case, he found that the fly-rock did no harm, and had, at most a trivial impact on the natural environment, so was not a “contaminant” that caused an adverse effect under the Act.

The 2-judge majority disagreed and upheld the conviction, concluding that for a discharge to have an adverse effect, it need not impair the quality of the natural environment. They found Mr. Justice Blair’s interpretation of “adverse effect” was unduly constricted, and failed to reflect the broad purposes of the EPA, and would, if adopted, remove many problematic activities connected with the environment from the purview of the Act.

The majority found that the EPA is concerned with uses of the environment that cause harm to people, animals and property. They noted that blasting, in many cases, would not harm the environment and trigger the definition of “adverse effect” under the Act. However, where the activity discharges a contaminant like fly-rock into the natural environment, it may harm people, animals or property. While Castonguay’s blasting activity may have caused only minimal harm to the environment, the fly-rock it generated did harm property. It was Castonguay’s use of the environment (the air) to disperse a contaminant (fly-rock) that directly resulted in this harm, they said.

I think this is a nonsensical decision, as well as unfair to Castonguay. First, why couldn’t Castonguay rely on the directions of its client, the provincial government, about who in the same provincial government to report to? Second, why can’t regulators be required to tell an industry when they adopt strange new interpretations of existing laws, before they prosecute them for not following that new interpretation?

Third, any object that hits any other object (or person) must travel through the environment (air or water) to get there. Must every car accident, where anything falls off, be reported to the MOE now? Every box, ladder or hammer that falls on anyone’s foot outdoors? Food that is dropped outdoors, causing a stain? Must rioters report the rocks that they have thrown through a window? Must windows or other bits of buildings be reported when they fall off? (Likely to cause an adverse effect if they land on someone…) Must litterers report their litter? What good would the Ministry accomplish if it received all these reports?

To me, such an over broad decision does not benefit the natural environment, and makes a mockery of environmental law. But then, I’m not on the Court of Appeal.

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