American businesses operating in Canada know that Canadian federal and provincial environmental regulations are frequently more expansive than parallel US and state requirements, including what triggers environmental reporting requirements. Under the Ontario Environmental Protection Act (the “Act”), for example, the duty to report a discharge of a contaminant – widely defined as any solid, liquid, gas, odor, heat, sound, or vibration that may cause an “adverse effect” – out of the normal course of events is triggered even in the absence of known environmental damage. This broad reporting obligation was recently affirmed by the Canada Supreme Court.
In Castonguay Blasting Ltd. v. Ontario, Castonguay was conducting blasting operations for a highway project when an explosion caused rock debris to be propelled in the air approximately 90 meters, crashing through the roof of a home and extensively damaging a car. The event was reported to the Transportation and Labour Ministries but not to the Ministry of the Environment. Castonguay was subsequently charged with failing to report to the Ministry of the Environment the discharge of a contaminant into the natural environment in violation of Section 15(1) of the Act. Castonguay was acquitted by the Ontario Court of Justice, but the Ontario Superior Court of Justice set aside the acquittal and entered a conviction, which the Court of Appeal upheld.
Section 15(1) of the Act requires that the Ministry of the Environment be immediately notified when a contaminant is discharged to the environment if: (1) the discharge was made outside of the normal course of events and (2) it had, or was likely to have, an adverse effect on the environment. The Act defines “adverse effect” eight separate ways including as an “impairment of the quality of the natural environment for any use that can be made of it,” “injury or damage to property or to plant or animal life,” and “impairment of the safety of any person.”
Castonguay interpreted the “impairment of the quality of the natural environment” definition as an umbrella clause to the other seven definitions. While Castonguay conceded the discharge caused property damage, it argued that under the Act, injury or property damage is not enough to trigger the reporting requirement because the discharge did not injure the natural environment. The Court rejected Castonguay’s argument, finding this “restrictive” interpretation would allow dischargers to avoid reporting incidents without concrete proof of environmental damage. This would defeat the purpose of Section 15(1)’s reporting requirement: to ensure that the Ministry of the Environment, not the discharger, determines what remedial steps must be taken. Thus, even though Castonguay remedied the property damage and reported the incident to other ministries, it was required to, and failed to, report the rock discharge to the Ministry of the Environment under Section 15(1).
Castonguay did not broaden the scope of reporting requirements of the Act. Rather, the Court simply affirmed the broadness of a discharger’s duty under the Act even when no known environmental impairment has occurred. The Canada Supreme Court’s advice to dischargers: “[W]hen in doubt, report.”
