CITATION: R. v. Castonguay Blasting Ltd., 2011 ONCA 292

DATE: 20110414

DOCKET: M39747

COURT OF APPEAL FOR ONTARIO

Winkler C.J.O. (In Chambers)

BETWEEN

Her Majesty the Queen in right of the Province of Ontario as represented by the Minister of the Environment

Respondent

and

Castonguay Blasting Ltd.

Moving Party

Bruce McMeekin, for the moving party

Paul McCulloch, for the respondent

Heard: March 24, 2011

On a motion for leave to appeal from the judgment of Justice Timothy D. Ray of the Superior Court of Justice dated January 28, 2011, as amended on February 1, 2011.

ENDORSEMENT

[1] This motion relates to the breadth of the duty to report under s. 15(1) of the Environmental Protection Act, R.S.O. 1990, c. E. 19 (the “EPA”).

[2] The moving party, Castonguay Blasting Ltd., seeks leave to appeal the decision of Ray J. of the Superior Court of Justice overturning a trial judge’s decision and convicting the moving party of failing to fulfill its duty to report pursuant to s. 15(1) of the EPA.

[3] Ray J., sitting in appeal, determined that the discharge of fly-rock from a blasting operation at a highway construction project, which caused property damage to a residential home and automobile, was a discharge of a contaminant that caused or was likely to cause an adverse effect as defined in the EPA and therefore should have been reported forthwith to the Ministry of the Environment.

The Facts

[4] The facts in this case were the subject of an agreed statement of fact and may be summarized as follows.

[5] The moving party is in the blasting business wherein it uses explosives in road construction. In the fall of 2007, the moving party was working as a subcontractor on a construction project commissioned by the Ontario Ministry of Transportation for the widening of provincial Highway 7 in and around the Town of Marmora. While the company was working on the project, rock fragments, known in the industry as “fly-rock”, were unintentionally released into the air by an explosion at a blasting site. The fly-rock flew about 90 metres causing damage to a house and an automobile. There were no personal injuries. The owners of the property were compensated by the moving party in an amount in excess of $15,000.

[6] The blast was reported to the Ministry of Labour as required under the Occupational Health and Safety Act, R.S.O. 1990, c. O1. The moving party did not report the incident to the Ministry of the Environment.

[7] The moving party was charged with failing to report the blast under s. 15(1) of the EPA.

[8] The EPA provides for a duty to report in the following circumstances:

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.

[9] “Contaminant” is defined in s. 1 of the EPA to include “any solid… resulting directly or indirectly from human activities that causes or may cause an adverse effect”.

[10] “Adverse effect” is defined in s. 1(1) of the EPA to mean one or more of the following:

(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[.]

Decisions Below

[11] At trial in the Ontario Court of Justice the moving party was acquitted. The trial judge held that it was “inconceivable that the Environmental Protection Act would be interpreted so broadly as to consider that this was an ‘environmental’ event.” He reasoned that “the purpose of the legislation is to broadly protect the natural environment. It does not, and was never intended, to capture the events which occurred here.” In consequence, he found that s. 15 of the EPA did not apply and the moving party had no duty to report this incident to the Ministry of the Environment.

[12] On appeal, Ray J. of the Superior Court of Justice overturned this decision and the moving party was convicted. He found that there is nothing in the EPA that limits the application of the duty to report in s. 15 to the natural environment or an environmental event as was decided by the trial judge. He decided that the fly-rock constituted a contaminant and that the damage to the house and automobile amounted to an “adverse effect” within the meaning of any one of ss. 1(1)(b), (e) or (h). It is this decision that the moving party seeks to appeal.

The Test for Leave to Appeal

[13] The Provincial Offences Act, R.S.O. 1990, c. P.33 (the “POA”), requires leave to appeal this decision to this court:

131. (1) A defendant or the prosecutor or the Attorney General by way of intervention may appeal from the judgment of the court to the Court of Appeal, with leave of a judge of the Court of Appeal on special grounds, upon any question of law alone or as to sentence.

(2) No leave to appeal shall be granted under subsection (1) unless the judge of the Court of Appeal considers that in the particular circumstances of the case it is essential in the public interest or for the due administration of justice that leave be granted.

[14] Thus, the moving party must satisfy two requirements: special grounds and a question of law alone. What constitutes “special grounds” in s. 131(1) is informed by s. 131(2), that is, whether it is essential in the public interest or for the due administration of justice that leave to appeal be granted.

[15] The threshold for granting leave to appeal is very high: see Ontario (Labour) v. Enbridge Gas Distribution Inc., 2011 ONCA 13.

Analysis

[16] The moving party has raised several grounds of appeal, the thrust of which, based upon a construction of the EPA, is that the potential environmental impact of an incident must be more than trivial or minimal before the incident gives rise to a duty to report. In support of this position, the moving party argues that the relevant sections of the statute must be interpreted consistently with the scheme and purpose of the EPA, as set out in s. 3(1):

The purpose of this Act is to provide for the protection and conservation of the natural environment.

[17] As such, the moving party submits that the interpretation of the pertinent provisions in the decision below constitutes an error in law. I agree that this issue raises a question of law for the purposes of the test.

[18] This brings me to the next part of the test: whether it is essential in the public interest that leave to appeal be granted.

[19] The moving party submits that Ray J.’s interpretation of the relevant provisions as not requiring any nexus to the environment has the potential to have wide-ranging implications for conduct to which the statute was never intended to apply.

[20] The respondent states that the legal issues involved in the case are limited to a very narrow segment of society – those who carry out blasting operations. The respondent also submits that any concerns over the wider implications of the Superior Court of Justice’s interpretation of the duty to report may be dealt with by prosecutorial discretion; in other words, the Crown will simply not prosecute in absurd circumstances that were not intended to be captured by s. 15 of the EPA.

[21] I disagree. In my view the relative breadth of the duty to report is an issue that is potentially relevant to a broad range of activities beyond blasting. Moreover, the duty to report is a proactive duty imposed on members of the public requiring direction from the statute as interpreted by the court, as to when this duty will be triggered. The respondent’s suggestion of an after-the-fact prosecutorial discretion would not provide adequate guidance to members of the public on how they can meet the regulatory requirements of the EPA. In other words, if a member of the public makes a conscious decision not to report on the assumption that the ministry would view the incident as inconsequential and that decision differed ultimately from the subjective assessment of the crown, that person would only learn of this when they were charged. This approach is unacceptable. The public must be able to make a more informed decision as to their obligation to report. I cannot accede to the respondent’s contention that prosecutorial discretion alone is a sufficient answer to any uncertainty in the scope of the duty to report. The interpretation of the duty to report is thus an issue with great importance to the public.

[22] The respondent further states that the applicable law raised in the instant case has already been decided by this court in R. v. Dow Chemical Canada Inc. (2000), 2000 CanLII 5685 (ON CA), 47 O.R. (3d) 577 (C.A.). It is the contention of the respondent that in Dow the court considered, but was not persuaded by, an argument that it was necessary to interpret the statute as requiring that the discharge of the contaminant into the natural environment itself had to be more than minimal or trivial.

[23] In Dow Chemical, an employee was exposed to a release of chlorine gas, but there was no offsite impact, nor any onsite impact except on the employee. Dow argued that it could not be found guilty of an offence for discharge of a contaminant causing an adverse effect if the discharge posed only a trivial or minimal threat to the environment. MacPherson J.A. was not persuaded by this argument. However, it was ultimately unnecessary for him to decide whether a more than minimal impact on the environment was necessary because he found that the discharge of chlorine gas was not trivial. Recalling two notorious incidents of chlorine discharge, he wrote at para. 36 that “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.” Dow Chemical did not, therefore, decide the issue of whether there could be a duty to report where there was an adverse effect but negligible or no effect on the environment, because those were not the facts in that case. Thus, I am not persuaded that the issues raised in this case have been definitively determined by this court.

[24] Based on the above, I am satisfied that consideration of the issues of law raised in this case is essential in the public interest.

Conclusion

[25] Therefore, I am persuaded that the moving party has demonstrated there are special grounds for this court to consider a question of law as set out in s. 131 of the POA.

[26] Accordingly, leave to appeal is granted.

“W. Winkler CJO”