Regina v. Dow Chemical Canada Inc. [Indexed as: R. v. Dow Chemical Canada Inc.]
47 O.R. (3d) 577
[2000] O.J. No. 757
No. C27128
Court of Appeal for Ontario
Carthy, Moldaver and MacPherson JJ.A.
March 14, 2000
Environmental law -- Offences -- Defendant charged with discharging contaminant into natural environment contrary to s. 14(1) of Environmental Protection Act after discharge of chlorine gas at defendant's plant caused worker to sustain injuries -- Section 14(1) applying to trivial or minimal threats to environment where discharge has serious adverse effect on person's health -- Discharge in this case not minimal in any event -- Occupational Health and Safety Act not ousting application of Environmental Protection Act where adverse effect of discharge of contaminant is limited to worker in workplace -- Environmental Protection Act, R.S.O. 1990, c. E.19, s. 14(1) -- Occupational Health and Safety Act, R.S.O. 1990, c. O.1.
The defendant operated a chemical manufacturing complex which produced, among other products, propylene oxide, whose manufacturing process involved the use of chlorine. A discharge of chlorine gas enveloped a worker and caused him to become disoriented. In an attempt to escape, he stumbled and fell a few times, injuring himself. The defendant complied with the reporting requirement set out in s. 5(3) of Reg. 851, R.R.O. 1990 under the Occupational Health and Safety Act by completing and keeping a record of the injury, as set out in s. 5(4) of the regulation. The defendant did not report the incident to the Ministry of the Environment. It was charged with discharging a contaminant into the natural environment contrary to s. 14(1) of the Environmental Protection Act and failing to report such discharge forthwith contrary to s. 15(1). The defendant was convicted of both offences and fined a total of $8,000. The defendant's appeal was allowed. In allowing the appeal with respect to the unlaw ful discharge offence, the appeal judge drew a distinction between direct and consequential effects. He found that the Environmental Protection Act is directed at consequential effects, not direct effects, and that the release of a relatively small amount of chlorine gas sufficient to harm the worker was a direct application of a contaminant to his person, rather than a state of pollution of the natural environment which consequently produced his injury. The Crown appealed.
Held, the appeal should be allowed.
The distinction between direct and consequential effects is not an appropriate one. Such a distinction is not expressed in s. 14(1) of the Environmental Protection Act, nor is there any support for it in the case law in the environmental protection domain.
s. 14(1) of the Environmental Protection Act should not be interpreted as not applying to a discharge of a contaminant which poses only a trivial or minimal threat to the environment, despite the fact that it has an adverse effect on the health or impairs the safety of a person. Even if that conclusion was wrong, then the alternative interpretation did not assist the defendant, as the chlorine discharge in this case was not trivial or minimal and had some impact on the environment.
s. 14(1) of the Environmental Protection Act applies even where the discharge of a contaminant into the natural environment gives rise to an adverse effect which is limited to a worker in the workplace. While that situation is covered by the Occupational Health and Safety Act, the latter statute does not have exclusive application and does not oust the application of the Environmental Protection Act. There is no conflict between the two statutes; they overlap in an entirely permissible fashion. Given the contaminant in issue in this case, the nature and scope of the actual discharge and the fact that a worker was seriously injured by the chlorine, the Environmental Protection Act was applicable, as well as the Occupational Health and Safety Act.
APPEAL by the Crown from a judgment allowing the defendant's appeal from a conviction for offences under the Environmental Protection Act, R.S.O. 1990, c. E.19.
Multiple Access Ltd. v. McCutcheon, 1982 55 (SCC), [1982] 2 S.C.R. 161, 138 D.L.R. (3d) 1, 44 N.R. 181, 18 B.L.R. 138; Ontario v. Canadian Pacific Ltd., 1995 112 (SCC), [1995] 2 S.C.R. 1031, 24 O.R. (3d) 454n, 125 D.L.R. (4th) 385, 183 N.R. 325, 30 C.R.R. (2d) 252, 99 C.C.C. (3d) 97, 41 C.R. (4th) 147 (sub nom. R. v. Canadian Pacific Ltd.), consd Other cases referred to R. v. Cotton Felts Ltd. (1982), 1982 3695 (ON CA), 2 C.C.C. (3d) 287 (Ont. C.A.) Statutes referred to Environmental Protection Act, R.S.O. 1980, c. 141, ss. 13(1), 14(1) -- now R.S.O. 1990, c. E-19, ss. 14(1), 15(1) Environmental Protection Act, R.S.O. 1990, c. E.19, ss. 1 "adverse effect", 14(1), 15(1), 179(1) Interpretation Act, R.S.O. 1990, c. I.11, s. 26 Occupational Health and Safety Act, R.S.O. 1990, c. O.1, s. 2(2)
Jerry G. Herlihy, for appellant. Lyle F. Curran, Q.C., for respondent.
The judgment of the court was delivered by
MACPHERSON J.A.: --
INTRODUCTION
1One of the features of modern Canadian society is the prominent place in the legal system of so-called regulatory statutes. These laws are designed to protect both the environment and the people who live, work and play in it. Laws of this type were well described some years ago by Blair J.A. of this court in R. v. Cotton Felts Ltd. (1982), 1982 3695 (ON CA), 2 C.C.C. (3d) 287 at p. 294:
[There is] a large family of statutes creating what are known as public welfare offences . . . Examples of this type of statute are legion and cover all facets of life ranging from safety and consumer protection to ecological conservation. In our complex interdependent modern society such regulatory statutes are accepted as essential in the public interest. They ensure standards of conduct, performance and reliability by various economic groups and make life tolerable for all.
2Two of the most important and well-known examples of regulatory laws are environmental protection statutes and occupational health and safety statutes. Occasionally, the public welfare offences created by these statutes have the potential to overlap. An example would be the discharge of a contaminant into the air which injures a worker employed by the company that discharged the contaminant. In such a situation, what are the company's obligations under the environmental protection and the occupational health and safety laws? In essence, that is the core issue raised by this appeal.
A. FACTUAL BACKGROUND
1. The Parties and the Events
3The parties signed an agreed statement of facts for purposes of this appeal. Because it is admirably concise, I set it out in full:
The Respondent corporation operates a chemical manufacturing complex in the City of Sarnia. One product produced is called propylene oxide, whose manufacturing process involves the use of chlorine.
On November 8, 1991 at about 7:30 p.m., an uncontrolled emission of chlorine gas discharged from the portion of the Respondent's complex where propylene oxide was manufactured. The chlorine gas vented through a piping array under which an employee of the Respondent was working on the roof of a six storey building.
The employee was working on the roof at the time, checking valves for proper set. The chlorine gas, which is heavier than air enveloped the worker, blinding and choking him; he became disoriented and could not make his way out of the immediate area; he stumbled and fell a couple of times, but eventually managed to get down a ladder to the ground. He sought help and required both First Aid and overnight hospitalization for his injuries.
The Trial Court has found as follows:
The volume and nature of that chlorine was not as described by Mr. Frank but it was at least sufficient to disable him, to disorient him and cause him to be traumatized. As a result in attempting to escape the area, he incurred going down the various steps and ladders significant physical injuries. He did not in significant manner disclose these to the company. They were not found at the time of his brief hospitalization in the emergency unit. I further find that there was an aspect of denial of these injuries by him, for whatever reason, and that he continued in his regular shifts including some 120 hours of overtime over the ensuing months. These injuries ultimately could not be further denied and began to affect his performance commencing the following January and for many months thereafter and they are largely detailed in the medical reports that I have referred to and are before the court.
Reasons for Judgment at Trial Appeal Book, Tab 5, pp. 14-15
The Trial Court found, and the parties accept, that chlorine was discharged into the "natural environment" as defined in the Environmental Protection Act, R.S.O. 1990, c. E.19 as amended.
On the issue of the quantity of chlorine gas which escaped, the Appeal Court Judge said, and the parties accept his finding:
The Trial Judge found the other employees could not detect any significant release of chlorine in the vicinity of the unit. As earlier mentioned, the evidence of Mr. Top was accepted by the Trial Judge in determining the quantity of chlorine which had been released. Mr. Top's evidence indicates that the chlorine did not reach the boundaries of the unit in any quantity to cause the boundary analyzers to even detect its presence. Basically the Trial Judge's findings in my view lead to the conclusion that there was no off site impact, nor any on site impact except for the effect the gas had on Mr. Frank.
Reasons for Judgment on Appeal
Appeal Book, Tab 6, pp. 52-53
The Occupational Health and Safety Act, R.S.O. 1990, c. O.1, ("OHSA") has a reporting requirement which is set out in Section 5(3) of Regulation 851. In this particular case, Sheldon Frank returned to work on his next scheduled work day and Section 5(3) was complied with by the company in completing and keeping a record of the injury, as set out in Section 5(4) of Regulation 851.
When Sheldon Frank came back to the nursing station in January, 1992, complaining of injuries a report was sent to the Workers' Compensation Board by Dow, as it was sent on two subsequent occasions when Frank complained of injuries.
No charges were laid under the OHSA in respect of this incident.
It is accepted that the injury to Sheldon Frank would constitute an adverse effect if the Environmental Protection Act applies.
Counsel have agreed to the facts as set out herein and neither the Exhibits nor the evidence are reproduced for this Appeal, by consent of counsel.
2. The Litigation
4The respondent, Dow Chemical Canada Ltd. ("Dow"), was charged with two offences under the Environmental Protection Act, R.S.O. 1980, c. 141 ("EPA"), namely:
-- discharging a contaminant, namely chlorine gas, into the natural environment, contrary to s. 13(1); and
-- f ailing to report such discharge forthwith contrary to s. 14(1).
In fact, these provisions were renumbered as ss. 14(1) and 15(1): Environmental Protection Act, R.S.O. 1990, c. E.19. The parties and judges below agreed that nothing turned on the mis- numbering in the information. I will, therefore, refer to the correct sections throughout these reasons.
5Sections 14(1) and 15(1) of the EPA provide:
14(1) Despite any other provision of this Act or the regulations, no person shall discharge a contaminant or cause or permit the discharge of a contaminant into the natural environment that causes or is likely to cause an adverse effect.
15(1) Every person who discharges a contaminant or causes or permits the discharge of a contaminant into the natural environment out of the normal course of events that causes or is likely to cause an adverse effect shall forthwith notify the Ministry.
6It can be seen that both of these sections refer to "adverse effect". These words are defined in the EPA:
1(1) In this Act,
"adverse effect" means one or more of,
(a) impairment of the quality of the natural environment for any use that can be made of it,
(b) injury or damage to property or to plant or animal life,
(c) harm or material discomfort to any person,
(d) an adverse effect on the health of any person,
(e) impairment of the safety of any person,
(f) rendering any property or plant or animal life unfit for human use,
(g) loss of enjoyment of normal use of property, and
(h) interference with the normal conduct of business;
7The trial was conducted by His Honour A.L. Eddy of the Ontario Court (Provincial Division). Judge Eddy's essential finding was:
I find that the release of chlorine was not totally within the building but clearly was to the natural atmosphere in the vicinity of Mr. Frank as he was working in the area of venting pipes and that he was significantly affected by the same.
Based on this finding, the trial judge convicted Dow of the offence in s. 14(1) of the EPA. Since Dow had not reported the incident to the Ministry of the Environment, he also entered a conviction pursuant to s. 15(1) of the Act. The trial judge imposed fines against Dow in the amounts of $5,000 for the unlawful discharge and $3,000 with respect to the failure to report.
8Dow appealed from both convictions. The Crown appealed against the sentences imposed. The appeal was heard by Ross J. of the Ontario Court (General Division). He allowed Dow's appeal from both convictions and dismissed the Crown's appeal against the sentences.
9In allowing the appeal with respect to the unlawful discharge offence, the appeal judge drew a distinction between direct and consequential effects. He expressed the distinction in this fashion:
The distinction I would draw is between a direct and a consequential effect. It would be my view, restricting my comments and reasons strictly to the discreet factual situation in this case, that it is this consequential effect to which the E.P.A. is directed by its declared purpose and not the direct effect. In other words the Act contemplates an "adverse effect" be produced because the natural environment has been significantly impaired and that impairment has produced the adverse effect. What is sought to be prohibited is the impairment or pollution of the natural environment, which in turn or as a consequence of such pollution or impairment causes or is likely to cause an adverse effect.
10Having articulated this definition, the appeal judge applied it to the matter before him:
The findings of the trial judge which I have previously summarized established the release of a relatively small amount of the contaminant sufficient to harm Mr. Frank, which in the facts of this case I view as a direct application of the contaminant to his person, rather than a state of pollution of the natural environment which consequently produced his injury. As I have stated earlier I would draw a distinction between the direct effect as opposed to the consequential effect of the contaminant. The situation involving Mr. Frank I would think was direct whereas I view the E.P.A. to have a larger purview dealing with the adverse effect resulting from or consequential to the pollution or impairment of the natural environment.
11It followed from this analysis that Dow had not committed an offence under s. 14(1) of the EPA. Similarly, since there was no unlawful discharge, there was no obligation to report to the Ministry pursuant to s. 15(1) of the Act.
12Although agreeing with Dow's position that no offence had been committed, the appeal judge did not accept one of Dow's submissions in support of its position. Dow contended that, on the facts of the case, it was obligated to report to the Ministry of Labour under the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 ("OHSA") since it had done this, an additional report under the EPA was not required.
13The appeal judge rejected this submission. He stated:
I would not, for example, adopt the proposition that an injury to a worker in the workplace, because of workers' health and safety regulatory schemes, automatically exclude the application of the EPA. . . .
One can envision situations wherein the discharge of a contaminant into the natural environment causing impairment to the natural environment is sufficient to cause or likely to cause an adverse effect. Simply because a worker or employee is somehow affected would not in all cases automatically exclude the application of the E.P.A.
14The Crown sought leave to appeal to this court only from the respondent's acquittal for the offence of discharging a contaminant. The Crown did not seek leave to appeal from the respondent's acquittal for the offence of failing to report the discharge. Nor did the Crown seek leave to appeal the matter of sentence. The respondent sought to have an additional ground of appeal added, dealing with that component of the trial judge's decision in which he reasoned that the application of the EPA to the facts of this case was not ousted by the OHSA.
15On April 18, 1997, Robins J.A. granted leave to the Crown to appeal regarding the acquittal for discharging a contaminant contrary to s. 14(1) of the EPA. He also granted the respondent's request in respect of the issue of the relationship between the EPA and the OHSA.
B. ISSUES
16The formal issue on this appeal is whether the appeal judge erred in allowing the appeal from conviction under s. 14(1) of the EPA. This formal issue gives rise to two legal issues:
did the discharge of chlorine at the respondent's work site constitute a violation of s. 14(1) of the Act; and
on the facts of this case, is conviction for the offence of discharging a contaminant under the EPA precluded by the scope and operation of the OHSA?
C. ANALYSIS
1. The Interpretation of s. 14(1) of the EPA
17In Ontario v. Canadian Pacific Ltd., 1995 112 (SCC), [1995] 2 S.C.R. 1031, 125 D.L.R. (4th) 385 ("Canadian Pacific"), the Supreme Court of Canada considered an earlier version of the Ontario EPA. In that case, Canadian Pacific Ltd. ("CP") had conducted controlled burns of the dry grass and weeds on its railway right-of-way. The burns discharged a significant amount of thick dark smoke which adversely affected the health and property of nearby residents. In his reasons for a majority of the court, Gonthier J. described the effects in these terms, at pp. 1061-62:
One resident suffered an asthma attack in his driveway after being exposed to the smoke. The smoke filled the home of another man, with the result that he had to clean the interior walls and furniture thoroughly. Another resident discovered that the shrubs, grass and trees in her backyard had been damaged by the fire and smoke.
The smoke from the April 11, 1988 controlled burn was not only injurious to the health and property of several Kenora residents, but also hampered visibility on a 200-foot stretch of an adjacent road. One driver was forced to engage his vehicle lights and brakes because the smoke was so heavy that he was unable to see the other side of the road.
18CP was charged with committing an offence under the then s. 13(1)(a) of the EPA which provided:
13(1) Notwithstanding any other provision of this Act or the regulations, no person shall deposit, add, emit or discharge a contaminant or cause or permit the deposit, addition, emission or discharge of a contaminant into the natural environment that,
(a) causes or is likely to cause impairment of the quality of the natural environment for any use that can be made of it . . . [See Note 1 at end of document.]
19Before the Supreme Court of Canada, the principal issue was whether the words "for any use that can be made of it" in s. 13(1)(a) were unconstitutionally vague or overbroad and therefore infringed s. 7 of the Canadian Charter of Rights and Freedoms. The court unanimously held that s. 13(1)(a) was not unconstitutionally vague or overbroad. Gonther J. wrote the majority judgment on behalf of six judges; Lamer C.J.C. wrote a concurring judgment which was joined by two other judges. Although the analysis in the judgments was directed principally to the constitutional issues, both judges made statements about the interpretation of s. 13(1) of the EPA (now s. 14(1)). Those statements are directly relevant to the resolution of this appeal.
20In his concurring reasons, Lamer C.J.C. stated that the "starting-point of the interpretive process is the plain meaning of the statute's terms" (at p. 1049). In the present appeal, the provisions which must be interpreted are the offence section, s. 14(1), and the definition section, especially s. 1(1)(c), (d) and (e). For ease of reference, I set them out again:
14(1) Despite any other provision of this Act or the regulations, no person shall discharge a contaminant or cause or permit the discharge of a contaminant into the natural environment that causes or is likely to cause an adverse effect.
1(1) In this Act,
"adverse effect" means . . .
(c) harm or material discomfort to any person,
(d) an adverse effect on the health of any person,
(e) impairment of the safety of any person,
21On the basis of the agreed statement of facts, the parties agree that there was a prima facie violation of s. 14(1) by the respondent. The definition of "contaminant" in s. 1(1) of the EPA includes "any . . . gas". Chlorine is a gas, indeed a potentially lethal gas. The parties also agree that Dow caused "the discharge" of the chlorine and that the discharge was "into the natural environment". Finally, the parties agree that "the injury to Sheldon Frank would constitute an adverse effect if the Environmental Protection Act applies." This is a fair and obvious conclusion; the trial judge's description of the chlorine incident and its immediate impact and long-term effects on Mr. Frank establish conclusively that he suffered harm or material discomfort, an adverse effect on his health, and impairment of his safety.
22In spite of these points of agreement between the parties, Dow submits that the plain meaning of the statute's terms is only, as Lamer C.J.C. said, a "starting-point". In this case, contends Dow, the starting point cannot be the finish line. In support of this position, Dow develops two lines of argument. I would label one "the contextual argument" and the other "the absurdity argument".
(a) The contextual argument
23Dow contends that s. 14(1) is not infringed if the discharge of a contaminant into the natural environment has no, or only a transient or trivial, impact on the natural environment. In advancing this argument, Dow does not rely on the distinction between direct and consequential effects articulated by the appeal judge. Such forbearance is wise, in my view, because the distinction is not an appropriate one, at least in the fashion stated by the appeal judge.
24The distinction between direct and consequential effects is not expressed in s. 14(1) of the Act. Nor is there, as far as I am aware, any support for it in the case law in the environmental protection domain. Indeed, the appeal judge cited no authority for it. Moreover, in the leading case, Canadian Pacific, supra, one of the results of the controlled burn was an attack of asthma for a man who was exposed to smoke in his driveway. The smoke clearly had a direct adverse effect on him, yet this posed no problem for the Supreme Court of Canada.
25Dow's contextual argument is anchored in some of the language, especially in Gonthier J.'s judgment, in Canadian Pacific. In a passage where he discussed all of the components of "adverse effect", Gonthier J. stated, at p. 1081:
It is apparent from these other enumerated impacts that the release of a contaminant which poses only a trivial or minimal threat to the environment is not prohibited by s. 13(1). Instead, the potential impact of a contaminant must have some significance in order for s. 13(1) to be breached.
26Later in his judgment, and referring only to s. 13(1) (a), Gonthier J. said, at pp. 1082-83:
Where an accused has released a substance into the natural environment, the legal debate must focus on whether an actual or likely "use" of the "natural environment" has been "impaired" by the release of a "contaminant". This legal debate is clearly facilitated by the application of generally accepted interpretive principles. In particular, these principles demonstrate that s. 13(1)(a) does not attach penal consequences to trivial or minimal impairments of the natural environment, nor to the impairment of a use of the natural environment which is merely conceivable or imaginable. A degree of significance, consistent with the objective of environmental protection, must be found in relation to both the impairment, and the use which is impaired.
(Emphasis added)
27Relying on these passages, Dow contends that there can be no offence under s. 14(1) of the Act if the discharge of a contaminant poses only "a trivial or minimal threat to the environment", irrespective of its effect on persons like Mr. Frank.
28I do not agree with this argument. It needs to be recalled that the issue in Canadian Pacific was the interpretation of one of the statutory definitions of "adverse effect", specifically the current cl. (a): "impairment of the quality of the natural environment for any use that can be made of it." When Gonthier J. employed the qualifying language of "trivial or minimal" or a "degree of significance", he linked these phrases to the specific words in cl. (a). Thus, it is "trivial or minimal" impairments of the natural environment that are not covered by s. 14(1) of the EPA. And it is a "degree of significance" in relation to both the impairment, and the use which is impaired that gives rise to an infringement of s. 14(1).
29Clause (a) is just one of eight defined adverse effects. It relates to the natural environment, which is defined in the Act as "the air, land and water" (s. 1(1)). The other seven clauses set out other forms of adverse effect. Some relate to plants and animals (cls. (b) and (f)); some relate to people (cls. (c), (d) and (f)) and their property (cl. (g)) and business (cl. (h)).
30In my view, it makes sense, both in logic and in policy, to import the language Gonthier J. used to qualify the definition of adverse effect with respect to cl. (a) into cls. (b)-(h) of the same section. However, that importation of qualifying language does not help Dow in this case.
31The adverse effect of the chlorine discharge on Dow's employee, Mr. Frank, caused him harm and material discomfort (cl. (c)), it adversely affected his health (cl. (d)), and it impaired his safety (cl. (e)). In the agreed statement of facts, the parties set out this description from the trial judge's reasons:
The volume and nature of that chlorine was not as described by Mr. Frank but it was at least sufficient to disable him, to disorient him and cause him to be traumatized. As a result in attempting to escape the area, he incurred going down the various steps and ladders significant physical injuries.
In my view, this description makes it clear that there was nothing trivial or minimal about the effects of the discharge on Mr. Frank.
32There is a second, albeit in my view not as compelling, way to interpret the passages from Gonthier J.'s judgment set out above. This alternative interpretation would be anchored in a single sentence from these passages, at p. 1081:
It is apparent from these other enumerated impacts that the release of a contaminant which poses only a trivial or minimal threat to the environment is not prohibited by s. 13(1) [now s. 14(1)].
33In this sentence, Gonthier J. referred to s. 13(1), not just s. 13(1)(a). It could be contended, therefore, that the "trivial or minimal" qualification applies not just to the words "adverse effect" in s. 14(1), but also to the words "discharge of a contaminant into the natural environment".
34In my view, this alternative interpretation of Canadian Pacific is not as persuasive as the one I set out above which is grounded in an interpretation of Gonthier J.'s entire judgment. However, if I am wrong in this conclusion -- if, for example, a chlorine explosion which killed several people but dispersed almost immediately and had no impact on the natural environment is not captured by s. 14(1) -- then the alternative interpretation does not assist Dow in this case. That is because the chlorine discharge in this case was not trivial or minimal. Indeed, Dow's counsel conceded that the discharge was not trivial and that it had some impact on the environment. In light of the trial judge's description of the nature and scope of the discharge, this was a fair concession.
35On this point, I observe that the contaminant in issue in this case is chlorine, a potentially deadly gas. In Canadian Pacific, Gonthier J. said, at p. 1075:
Recent environmental disasters, such as the Love Canal, the Mississauga train derailment, the chemical spill at Bhopal, the Chernobyl nuclear accident, and the Exxon Valdez oil spill, have served as lightning rods for public attention and concern.
36I note that two of the five examples cited by Gonthier J., the Mississauga train derailment and the chemical spill at Bhopal, involved chlorine. In one of the incidents, Bhopal, several thousand people were killed. Recalling these incidents, and bearing in mind that the purpose of the EPA is to protect the environment and people, in my view it would be a rare case in which any discharge of chlorine into the open air from an industrial plant would warrant the adjectives "trivial or minimal", provided the discharge caused one of the "adverse effects" set out in the statute.
37In summary on this issue, giving the words of ss. 14(1) and 1(1) of the EPA their plain meaning, Dow committed an offence under s. 14(1). Dow discharged a contaminant into the natural environment which had an adverse effect on Mr. Frank. If the "trivial or minimal" language from Canadian Pacific is applied to either or both the words "adverse effect" and "discharge of a contaminant into the environment", the result is the same. The effect of the discharge on Mr. Frank was very serious. And the actual discharge of a potentially deadly gas into the open air from an industrial plant was also serious.
(b) The absurdity argument
38Dow's second argument against its conviction under s. 14(1) of the EPA is one grounded in absurdity. Dow sets out its argument on this point in para. 9 of its factum:
- The problem comes most clearly from cases where the emission of a solid (which is within the definition of contaminant) to the natural environment results in personal injury. If a flying piece of rock was emitted to the air and resulted in injury to a person, it is submitted, that a conviction would not be entered pursuant to the qualifications set out in the Canadian Pacific case, where the only impact on the environment was the rock flying through the air and then hitting a person.
39The appeal judge in this case also discussed potentially absurd consequences that might flow from a literal interpretation of s. 14(1). He referred to an injury caused by a person spraying the contents of an aerosol can into another person's eyes or nose, or someone dropping a hammer onto another person, or even someone shooting waterfowl during hunting season. The plain meaning of s. 14(1) might support charges with respect to all of these incidents.
40The court in Canadian Pacific was also concerned about the possibility of absurd results under the current s. 14(1) of the EPA. Lamer C.J.C. gave a vivid example, at p. 1056:
Thus, for example, under a "plain meaning" interpretation of s. 13(1)(a) all Ontario residents who in wintertime place sand on the icy sidewalks in front of their houses to lessen the risk of passers-by injuring themselves by slipping and falling would seemingly be subject to prosecution and imprisonment: city sidewalks are clearly part of the "natural environment" as defined in s. 1(1)(k) of the E.P.A., and the spreading of sand can render them less suitable for use as cross-country ski trails (making sand a "contaminant", and triggering the operation of s. 13(1)(a)).
41There are two responses to Dow's absurdity argument. First, the potentially absurd consequence is not this case. This case involves the discharge of a serious contaminant (chlorine) by an industrial company (Dow) into the open air and an immediate and serious injury to a person who came into contact with the chlorine. If you asked a person in the street to describe an environmental protection incident, the response might well be something close to: "Deadly gas escapes industrial plant, travels through air, and hurts or kills people." In short, the facts of this case are the paradigmatic facts of an environmental protection case.
42Second, the courts (not to mention government administrators and prosecutors) are used to dealing with potentially absurd results of literal interpretations of the law. In Canadian Pacific, Gonthier J. made an express reference to this problem, at p. 1082:
Where a provision is open to two or more interpretations, the absurdity principle may be employed to reject interpretations which lead to negative consequences, as such consequences are presumed to have been unintended by the legislature. In particular, because the legislature is presumed not to have intended to attach penal consequences to trivial or minimal violations of a provision, the absurdity principle allows for the narrowing of the scope of the provision. In this respect, the absurdity principle is closely related to the maxim, de minimis non curat lex (the law does not concern itself with trifles).
43In summary, the facts of this case do not present a potentially absurd interpretation of s. 14(1) of the EPA. The fact that Dow can conjure up examples of potentially absurd results does not detract from the reality that its conduct in this case, and the consequences of that conduct, are precisely the matters s. 14(1) is intended to address. Just as the spectre of absurd results did not deflect the court in Canadian Pacific from interpreting s. 13(1) to cover the incident and its consequences (thick smoke, through the air, causing injuries to people, property and plants), so should it not deflect the Ontario courts from applying the current s. 14(1) to the facts of this case (chlorine, through the air, causing injuries to a person).
2. The Relationship between the Environmental Protection Act and the Occupational Health and Safety Act
44Dow advances an alternative argument against the application of the EPA in this case. Dow contends that the EPA does not apply where the discharge of a contaminant into the natural environment gives rise to an adverse effect limited to a worker in the workplace. In such a situation, submits Dow, the OHSA applies exclusively. In this case, Dow made a report to the Ministry of Labour as required by the OHSA. Accordingly, it fully complied with the only law applicable to the situation.
45In support of this argument, Dow relies on the fact that both the EPA and the OHSA in force at the time of the chlorine incident contained paramountcy provisions. The EPA provided:
179(1) Where a conflict appears between any provision of this Act or the regulations and any other Act or regulation in a matter related to the natural environment or a matter specifically dealt with in this Act or the regulations, the provision of this Act or the regulations shall prevail.
The OHSA contained a similar provision:
2(2) Despite anything in any general or special Act, the provisions of this Act and the regulations prevail.
46Dow submits that these provisions indicate that an overlap or duplication in the coverage of the EPA and OHSA is not permitted and that in this case the OHSA applies because the only adverse effect of the chlorine discharge was the injury to a worker on site at its plant. Dow summarizes its argument in its factum in this fashion:
- It is submitted that it can be seen on a review of both Statutes that the Environmental Protection Act would have only a disruptive effect on industry and make for useless reporting if the provisions of the E.P.A. applied to releases of contaminants limited to a worker in the workplace which does not cause and is not likely to cause an off site impact.
47This issue was not argued before the trial judge. Dow raised it before the appeal judge, who did not accept it:
I would not, for example, adopt the proposition that an injury to a worker in the workplace, because of workers' health and safety regulatory schemes, automatically excludes the application of the EPA . . . .
One can envisage situations wherein the discharge of a contaminant into the natural environment causing impairment to the natural environment is sufficient to cause or likely to cause an adverse effect. Simply because a worker or employee is somehow affected would not in all cases automatically exclude the application of the E.P.A.
48I agree with the appeal judge's conclusion. It is not unusual for there to be a good deal of overlap between statutes. This is almost a sine qua non of a federal system of government. Federal and provincial laws often cover the same people, events and transactions. So, too, with laws enacted by a single provincial legislature. Many of those laws will overlap, and occasionally even duplicate each other.
49The EPA and the OHSA are a clear example of laws which overlap in an entirely permissible fashion. The purpose of the EPA is to protect the natural environment and the people who live, work and play in it. The purpose of the OHSA is to protect work sites and workers. Incidents occur which implicate both statutes. An easy example would be a large plant located near a school. If there was a serious chlorine explosion at the plant which killed several workers but did not harm any children because the wind was blowing the other way, obviously the OHSA would apply because of the tragic deaths of the workers. But could it be seriously argued that the EPA would not apply? Surely, those concerned with the administration and enforcement of the province's environmental protection laws would (and should) be deeply interested in what went wrong at the plant. They would want to ensure that the cause of the explosion was identified so that remedial steps co uld be taken to protect non-workers (e.g., the school children) from the dangers of another explosion on a day when the wind was blowing towards the school.
50It follows that I do not accept the on-site/off-site distinction proposed by Dow. An incident with only on-site effects today can become one with off-site effects tomorrow. Thus, in many cases both the EPA and OHSA could apply, and those responsible for the administration and enforcement of both laws would have a legitimate interest in knowing about the incident.
51The paramountcy provisions in the EPA and the OHSA do not assist Dow. They are relevant when there is a conflict between statutes. There is no conflict between the EPA and the OHSA. There is an overlap, perhaps even a duplication. But overlap and duplication are different from conflict. As expressed by Dickson J. in Multiple Access Ltd. v. McCutcheon, 1982 55 (SCC), [1982] 2 S.C.R. 161 at p. 190, 138 D.L.R. (3d) 1, "duplication is . . . 'the ultimate in harmony' ". Dickson J. continued, at p. 191:
In principle, there would seem to be no good reasons to speak of paramountcy and preclusion except where there is actual conflict in operation as where one enactment says "yes" and the other says "no"; "the same citizens are being told to do inconsistent things"; compliance with one is defiance of the other.
52Multiple Access talked about duplication, overlap, conflict and paramountcy in the context of a federal law and a provincial law in the same domain. However, Dickson J.'s reasoning is equally applicable in the context of two provincial laws potentially applying to the same incident and people. Applying Dickson J.'s language to the present case, there is no "actual conflict in operation" between the EPA and the OHSA. The former is designed to protect the natural environment and people in it; the latter is designed to protect workers and their work environment. The two laws can stand together.
53Sometimes, as in this case, both laws will apply to a single incident. Dow admits that the OHSA applies; indeed it complied with its reporting obligations under the OHSA. However, Dow complains that the application of the EPA "would have only a disruptive effect on industry and make for useless reporting".
54I do not agree with Dow's complaint. Bearing in mind the important public purposes of both the EPA and the OHSA, and recalling the actual consequences (serious injury to a worker) and potential consequences (chlorine discharged into the open air) of the incident, the alleged "disruptive effect on industry" and "useless reporting" are truly trivial offsetting consequences. Moreover, the trivial consequences to Dow are reduced even farther by the fact that Dow could not be punished for offences under both statutes. Section 26 of the Interpretation Act, R.S.O. 1990, c. I.11, provides:
- Where an act or omission constitutes an offence under two or more Acts, the offender, unless the contrary intention appears, is liable to be prosecuted and punished under either or any of those Acts, but is not liable to be punished twice for the same act or omission.
55I realize that this interpretation of the interplay between the EPA and the OHSA will create some uncertainty for companies. The on-site/off-site distinction has the merit of ease of application. However, in my view, the purposes of the EPA are important and do not permit an interpretation that excludes the Act from operating at work sites. In Canadian Pacific, supra, Gonthier J. said, at p. 1068:
What is clear from this brief review of Canadian pollution prohibitions is that our legislators have preferred to take a broad and general approach, and have avoided an exhaustive codification of every circumstance in which pollution is prohibited. Such an approach is hardly surprising in the field of environmental protection, given that the nature of the environment (its complexity, and the wide range of activities which might cause harm to it) is not conducive to precise codification. Environmental protection legislation has, as a result, been framed in a manner capable of responding to a wide variety of environmentally harmful scenarios, including ones which might not have been foreseen by the drafters of the legislation.
56Companies will have to exercise their judgment when faced with an incident that might implicate both the EPA and the OHSA. They will have to be guided by the wording of the statutes and relevant judicial interpretations such as Canadian Pacific. Sometimes they will not have to report an incident under the EPA because it was, viewed from the perspective of the purposes of the EPA, "trivial or minimal". Dow's example of a hammer being dropped and striking a co-worker comes to mind.
57However, in other cases the line will be crossed. In my view, this case falls into that category. Given the contaminant in issue (chlorine), the nature and scope of the actual discharge (a substantial quantity in the open air), and the fact that a person was seriously injured by the chlorine, the EPA was implicated, as well as the OHSA.
58For these reasons, I conclude that Dow's alternative argument fails. The application of the EPA to the chlorine discharge at Dow's plant was not excluded by the application of the OHSA to the same incident. Both laws could, and did, apply. Accordingly, the charge under the EPA was a lawful charge.
DISPOSITION
59I would allow the appeal. The conviction and sentence imposed by the trial judge for violation of s. 14(1) of the Environmental Protection Act should be restored.
Appeal allowed.
Notes
Note 1: It can be seen that this provision is very similar to the current s. 14(1) of the EPA. The structural change is that the former s. 13(1) has been divided into two parts: first, the new s. 14(1) with its new phrase "adverse effect"; and, second, the definition of "adverse effect" in s. 1(1). One of the definitions, namely cl. (a), is almost identical to cl. (a) of the former s. 13(1).