Environmental, Indigenous and Natural Resources Blog

Castonguay Blasting Ltd. v. Ontario (Environment), 2013 SCC 52 is the latest Supreme Court of Canada decision to confirm the expansive approach courts may take to the interpretation of environmental protection legislation.

During the course Castonguay’s blasting operations for a highway-widening project, rock debris known as “fly-rock” was accidentally propelled into the air by an explosion, causing significant property damage to a nearby residence and vehicle. Despite the requirement in Ontario’s Environmental Protection Act to immediately notify the Ministry of Environment when a contaminant is discharged into the environment outside the normal course of events, Castonguay did not report the discharge to the Ministry of Environment (though it did report the discharge to the Ministries of Transportation and Labour). Castonguay was charged with failing to report the “discharge of a contaminant into the natural environment” contrary to the Environmental Protection Act.

The issue on appeal was the proper interpretation of the reporting requirement:

15. — (1) Every person who discharges a contaminant or causes or permits the discharge of a contaminant into the natural environment shall forthwith notify the Ministry if the discharge is out of the normal course of events, the discharge causes or is likely to cause an adverse effect and the person is not otherwise required to notify the Ministry under section 92.

While conceding that the discharge caused property damage, Castonguay argued that since the discharge did not impair the “natural environment” (defined as “air, land and water”), it was not required to report the incident. The Supreme Court of Canada disagreed, using a broad and remedial approach to interpret the reporting provision. The Court held that environmental protection is a complex subject matter and as a result, “environmental legislation embraces an expansive approach to ensure that it can respond ‘to a wide variety of environmentally harmful scenarios, including ones which might not have been foreseen by the drafters of the legislation’”. As the purpose of the Environmental Protection Act is, as the title suggests, environmental protection legislation, its intended reach is “wide and deep”. Also of note is the Court’s use of the precautionary principle, a principle of international law that recognizes since environmental impacts are difficult to predict with certainty, environmental policies must anticipate and prevent environmental degradation. The Court held that the reporting obligation in the Environmental Protection Act gives effect to that principle by ensuring that the Ministry of Environment is notified and has the ability to respond once there has been a discharge of a contaminant, without waiting for proof that the natural environment has in fact been impaired.

While Castonguay turns on the specific wording of the reporting provision in Ontario’s Environmental Protection Act, similar reporting obligations exist under environmental protection statutes across Canada. As a result, the Supreme Court of Canada’s broad interpretive approach to the reporting obligation in the Environmental Protection Act has potential relevance to all those engaged in activities potentially subject to environmental reporting obligations.