Her Majesty the Queen in Right of the Province of Ontario as represented by the Minister of the Environment v. Castonguay Blasting Ltd.

[Indexed as: Ontario (Minister of the Environment) v. Castonguay Blasting Ltd.]

109 O.R. (3d) 401

2012 ONCA 165

Court of Appeal for Ontario,

MacPherson, Simmons and Blair JJ.A.

March 16, 2012

Environmental law -- Offences -- Sections 14(1) and 15(1) of Environmental Protection Act not limited to situations where impugned activity causes harm to environment in addition to harms set out in paragraphs (a) to (h) of definition of "adverse effect" in s. 1(1) of Act -- Environmental Protection Act, R.S.O. 1990, c. E.19, ss. 1(1), 14(1), 15(1).

One of the appellant's blasting operations went awry, sending rock debris ("fly-rock") flying through the air. The debris damaged a house and a vehicle on neighbouring private property. The appellant did not report the incident to the Ministry of the Environment. It was subsequently charged with failing to report the discharge of a contaminant into the environment contrary to s. 15(1) of the Environmental Protection Act (the "EPA"). The appellant was acquitted, but the acquittal was reversed by the Superior Court of Justice and a conviction was entered. The appellant appealed.

Held, the appeal should be dismissed.

Per MacPherson J.A. (Simmons J.A. concurring): Section 14(1) of the EPA prohibits the discharge of a contaminant into the natural environment if the discharge causes or may cause an adverse effect. "Adverse effect" is defined in s. 1(1) of the EPA as meaning one or more of the effects set out in paras. (a) to (h) of the definition. Paragraphs (a) to (h) are to be read as independent triggers for liability. The substantive content of the first part of para. (h) -- "impairment of the quality of the natural environment" -- is not an umbrella over all of the effects set out in paras. (b) to (h). The harms listed in paras. (b) to (h) are not required to also cause harm to the environment. There is no policy reason for limiting the coverage of the EPA to fact situations where serious adverse effects to people, animals and property can be considered only if the environment is also harmed by the impugned activity.

Per Blair J.A. (dissenting): A non-trivial harm or impairment of the natural environment is an essential component of an "adverse effect", whatever paragraphs of the definition, or combination of them, is brought into play.

APPEAL from the judgment of Ray J., [2011] O.J. No. 364, 2011 ONSC 471 allowing an appeal from an acquittal on a charge under the Environmental Protection Act.

Cases referred to

Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031, [1995] S.C.J. No. 62, 125 D.L.R. (4th) 385, 183 N.R. 325, J.E. 95-1497, 82 O.A.C. 243, 99 C.C.C. (3d) 97, 17 C.E.L.R. (N.S.) 129, 41 C.R. (4th) 147, 30 C.R.R. (2d) 252, 27 W.C.B. (2d) 485; R. v. Dow Chemical Canada Inc. (2000), 47 O.R. (3d) 577, [2000] O.J. No. 757, 130 O.A.C. 26, 144 C.C.C. (3d) 161, 32 C.E.L.R. (N.S.) 279, 45 W.C.B. (2d) 419 (C.A.), revg [1997] O.J. No. 3301 (Gen. Div.), apld Other cases referred to Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, [2002] S.C.J. No. 43, 2002 SCC 42, 212 D.L.R. (4th) 1, 287 N.R. 248, [2002] 5 W.W.R. 1, J.E. 2002-775, 166 B.C.A.C. 1, 100 B.C.L.R. (3d) 1, 18 C.P.R. (4th) 289, 93 C.R.R. (2d) 189, REJB 2002-30904, 113 A.C.W.S. (3d) 52; [page402] R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606, [1992] S.C.J. No. 67, 93 D.L.R. (4th) 36, 139 N.R. 241, J.E. 92-1019, 114 N.S.R. (2d) 91, 74 C.C.C. (3d) 289, 43 C.P.R. (3d) 1, 15 C.R. (4th) 1, 10 C.R.R. (2d) 34, 34 A.C.W.S. (3d) 1092, 16 W.C.B. (2d) 460; R. v. Glen Leven Properties Ltd. (1977), 15 O.R. (2d) 501, [1977] O.J. No. 2185, 76 D.L.R. (3d) 172, 34 C.C.C. (2d) 349, 1 W.C.B. 161 (Div. Ct.); Rizzo & Rizzo Shoes Ltd. (Re) (1998), 36 O.R. (3d) 418, [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2, 154 D.L.R. (4th) 193, 221 N.R. 241, J.E. 98-201, 106 O.A.C. 1, 50 C.B.R. (3d) 163, 33 C.C.E.L. (2d) 173, 98 CLLC Â210-006, 76 A.C.W.S. (3d) 894

Statutes referred to

Canadian Charter of Rights and Freedoms, s. 7 Environmental Protection Act, R.S.O. 1990, c. E.19, ss. 1(1), (a)-(h), 3(1), 13(1), (a), 14(1), 15(1) Occupational Health and Safety Act, R.S.O. 1990, c. O.1 [as am.]

Bruce McMeekin, for appellant. Paul McCulloch and Danielle Meuleman, for respondent. Joseph F. Castrilli and Ramani Nadarajah, for intervenor Canadian Environmental Law Association.

BLAIR J.A. (dissenting): -- Background and Overview

[1] On November 26, 2007, Castonguay Blasting Ltd. was engaged as a subcontractor at a highway construction site in the town of Marmora, Ontario when one of its blasting operations went awry, sending rock debris flying through the air beyond the controlled blasting area. Known as "fly-rock" in the industry, the debris travelled some 90 metres in the air, landing on and damaging a house and a vehicle on neighbouring private property.

[2] The project involved the widening of the Marmora Cut. The cut was deep and conventional means of retaining rock fragments thrown off by the blasting were ineffective. An acceptable alternative was employed by Castonguay but the mishap occurred in any event. Fortunately, no one was hurt, and the owners of the property have been fully compensated for the damage.

[3] Castonguay reported the mishap to the contract administrator who, in turn, reported it to the Ministry of Labour (pursuant to the Occupational Health and Safety Act, R.S.O. 1990, c. O.1) and to the Ministry of Transport (under whose aegis the road widening was taking place). No one reported the incident to [page403] the Ministry of the Environment, however, which did not learn of it until May 2008. One and one-half years later, in October 2009, Castonguay was charged with failing to report the discharge of a contaminant into the natural environment contrary to s. 15(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19 (the "EPA"). It was acquitted by Hunter J. in the Ontario Court of Justice on June 21, 2010, but the acquittal was reversed and a conviction entered by Ray J. of the Superior Court of Justice on January 28, 2011.

[4] Castonguay seeks to set aside that conviction. Its principal argument is that injury or damage to private property alone is not sufficient to trigger the reporting requirement, but that the obligation only arises where the discharge of the contaminant has caused more than trivial or minimal harm to or impairment of the natural environment (either alone or in conjunction with uses of the natural environment, such as property). Counsel submit that, while there was damage to private property as a result of the flying rock generated by the blasting operation, there was no (or no more than trivial or minimal) harm to or impairment of the natural environment ("air, land and water", as defined in the EPA). Therefore, Castonguay was not under an obligation to report the discharge under s. 15(1).

[5] The Ministry acknowledges that there must be some nexus between the activity being regulated and the natural environment, but, for its part, submits that the application of the EPA cannot be limited to activities or conduct that impact the natural environment and also have a negative impact on uses of the natural environment, such as property. If there is some nexus between the activity or conduct and the natural environment -- as there is here because the blasting disturbed the rock in its natural state and the generation of fly-rock could, in other circumstances, have harmed the environment -- and the conduct or activity results in damage to property (or affects other uses set out in the relevant provisions of the Act), the Ministry submits the obligation to report the discharge of a contaminant is triggered.

[6] The Canadian Environmental Law Association was granted leave to intervene and made submissions in support of a broad interpretation of the EPA as well.

[7] For the reasons that follow, I would allow the appeal.

The Statutory Framework

[8] Section 14(1) of the EPA creates the offence of discharging a contaminant into the natural environment and s. 15(1) [page404] requires that any such discharge be reported to the Ministry of the Environment:

14(1) Subject to subsection 2 but despite any other provision of this Act or the regulations, a person shall not discharge a contaminant or cause or permit the discharge of a contaminant into the natural environment, if the discharge causes or may 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 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] The meanings to be ascribed to the terms "contaminant" and "adverse effect" in the foregoing provisions are key issues on the appeal. Both are defined in s. 1(1) of the EPA:

"contaminant" means any solid, liquid, gas, odour, heat, sound, vibration, radiation or combination of any of them resulting directly or indirectly from human activities that causes or may cause an adverse effect . . . . .

"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 persons, (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[.]

Analysis

[10] There is no dispute that Castonguay "discharged" a substance "into the natural environment". What is at issue is whether the substance that was discharged -- the fly-rock -- was a "contaminant" and, if so, whether the discharge caused or, in the words of s. 15(1), was likely to cause an "adverse effect", as those terms are to be understood in the context of the EPA. Since a contaminant is something that causes or may cause an adverse effect, it is the latter notion that is at the heart of the appeal. [page405]

[11] Although s. 14(1) of the EPA is the provision that creates the offence of discharging a contaminant into the natural environment, Castonguay is charged under s. 15(1) with failing to report such a discharge. For purposes of the appeal, the operative words in s. 15(1) are these:

15(1) Every person who discharges a contaminant . . . into the natural environment shall forthwith notify the Ministry if the discharge . . . causes or is likely to cause an adverse effect.

[12] The discharge of the fly-rock in this instance meets all of the prerequisites for liability under that provision if an "adverse effect" as contemplated by the EPA requires only injury to property without any accompanying impairment of or harm to the natural environment, as a literal reading of the definition of "adverse effect" might suggest. Fly-rock is a "solid" resulting from human activities and, in this case, it caused damage to property and would, on that interpretation, constitute an "adverse effect" (para. (b) of the definition) and be a "contaminant". However, if the notion of "adverse effect" carries with it some element of impairment to the natural environment that is more than transient or trivial -- an "environmental event", in the words of the trial judge -- the discharge of the fly-rock here did not constitute a "contaminant" as that term is defined nor did it cause or was it likely to cause, in the circumstances here, an "adverse effect". Those are the parameters of the debate on the appeal.

[13] Both Castonguay and the Ministry rely upon the decision of the Supreme Court of Canada in Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031, [1995] S.C.J. No. 62 and the decision of this court in R. v. Dow Chemical Canada Inc. (2000), 47 O.R. (3d) 577, [2000] O.J. No. 757 (C.A.) in support of their opposing contentions in this debate. I turn to a brief review of those authorities before continuing with the analysis.

Ontario v. Canadian Pacific Ltd.

[14] In Canadian Pacific, the Supreme Court of Canada was asked to determine whether what was then s. 13(1)(a) of the EPA was unconstitutionally vague or overbroad, thereby infringing s. 7 of the Canadian Charter of Rights and Freedoms. Section 13(1) was the counterpart of the current s. 14(1), cited above, except that each of the eight paragraphs that now comprise the definition of "adverse effect" were listed as subparas. (a)-(h) to s. 13(1). The separate effects have now been removed to the definition of "adverse effect" in s. 1(1) of the current legislation and replaced in s. 14(1) by the words "adverse effect". [page406]

[15] The part of s. 13(1) at issue in Canadian Pacific was para. 13(1)(a), the equivalent of para. (a) in the present definition -- "impairment of the quality of the natural environment for any use that can be made of it". It was the word "use" in particular that was attacked as being vague and overly broad.

[16] The court held that s. 13(1)(a) was not unconstitutional. The court was not required to -- and did not -- determine whether liability under the section presupposed some impact on the natural environment in all circumstances. However, both Lamer C.J.C. (concurring in the result, and speaking for three judges) and Gonthier J. (speaking for six) made observations during their analyses that bear on the interpretation of s. 13(1) as a whole.

[17] Chief Justice Lamer concluded that s. 13(1)(a) was neither too vague nor overly broad because, although it may have been open to an interpretation of that nature that would render it unconstitutional, it was also open to an alternative interpretation that avoided absurdity and would render it constitutional. Lamer C.J.C. preferred the latter interpretation, relying for his conclusion on the interpretative technique known as the presumption of constitutionality. Lamer C.J.C. explained the alternative interpretation in this fashion, at pp. 1058-59 S.C.R.:

As I noted earlier, the most natural manner of viewing s. 13 is to view all of the various subsections as directed at different (albeit overlapping) evils. However, it is also possible to interpret s. 13(1)(a) as expressing the general intention of the section as a whole, and to treat paras. 13(1)(b) through (h) as setting out specific examples of "impairment[s] . . . of the natural environment for any use that can be made of it".

. . . I believe it is appropriate to interpret s. 13(1)(a) in this manner, as providing the best reflection of the intentions of Ontario's legislature. That is, the term "for any use that can be made of [the natural environment]" in s. 13(1)(a) should be understood as covering situations captured by paras 13(1)(b) through (h) and analogous situations, if any indeed exist. (Emphasis added)

[18] Gonthier J. took a different view, but arrived at a similar result. He felt it was unnecessary to rely upon the presumption of constitutionality because in his opinion s. 13(1)(a) was easily interpreted, using standard interpretative techniques, in a fashion that was not vague or overly broad or that led to absurd results. The impugned phrase, "for any use that can be made of [the natural environment]", did not falter on those constitutional shoals because a proper interpretation of s. 13(1)(a) precluded liability unless the release of the contaminant posed more than "trivial or minimal threat to the environment" and could have an impact of some significance (more than trivial or minimal) on a use of the natural environment: see pp. 1080-83 S.C.R. [page407]

[19] The observations of Gonthier J. concerning the interrelationship between the various paragraphs in s. 13(1) -- now the listed effects in paras. (a) through (h) of the definition of "adverse effect" in s. 1(1) of the EPA -- and his characterization of those effects reveal that his above conclusion does not apply solely to s. 13(1)(a). He classified all paragraphs of s. 13(1) as "environmental impacts" (emphasis added). He canvassed the impacts in paras. (b) through (h) as examples of types of significant potential impact the threat to the environment must have. These observations are apparent from the following passage, at p. 1081 S.C.R. of his reasons:

Various interpretive techniques are of assistance. First, as I observed in Nova Scotia Pharmaceutical Society, supra, at pp. 647-48, [See Note 1 below] legislative provisions must not be considered in a vacuum. The content of a provision "is enriched by the rest of the section in which it is found and by the mode of inquiry adopted by courts as they have ruled under it". Thus, it is significant that the expression challenged by CP as being vague (i.e., "for any use that can be made of [the natural environment]") appears in s. 13(1)(a) alongside various other environmental impacts which attract liability. 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. The contaminant must have the potential to cause injury or damage to property or to plant or animal life (s. 13(1)(b)), cause harm or material discomfort (s. 13(1)(c)), adversely affect health (s. 13(1)(d)), impair safety (s. 13(1)(e)), render property or plant or animal life unfit for use by man (s. 13(1)(f)), cause loss of enjoyment of normal use of property (s. 13(1)(g)), or interfere with the normal conduct of business (s. 13(1)(h)). The choice of terms in s. 13(1) leads me to conclude that polluting conduct is only prohibited if it has the potential to impair a use of the natural environment in a manner which is more than trivial. Therefore, a citizen may not be convicted under s. 13(1)(a) EPA for releasing a contaminant which could have only a minimal impact on a "use" of the natural environment. (Emphasis added; underlining in original)

[20] Thus, while Gonthier J. was concerned with the constitutionality of s. 13(1)(a), I do not read his reflections on the overall contours of what was then s. 13(1) to be limited to para. (a) alone. Indeed, what I take from the foregoing is that both the majority and the minority in Canadian Pacific viewed the provisions of s. 13(1) as targeting harm to the natural environment that was of "some significance" or more than "a trivial or minimal threat to the environment", and considered that some impairment of the natural environment in that sense was a [page408] characteristic of s. 13(1) in all of its aspects. Lamer C.J.C. reached this conclusion on the basis that para. (a) expressed the intention of the section as a whole and that paras. (b) through (h) set out specific examples of impairments of the natural environment that are caught by the section. Gonthier J. did so on the basis that "environmental impact" was a component of each listed effect and that the "choice of terms in s. 13(1)" -- he did not refer to s. 13(1)(a) here -- "[led him] to conclude that polluting conduct is only prohibited if it has the potential to impair a use of the natural environment in a manner that is more than trivial" (emphasis added). As my analysis, beginning at para. 31, will show, this is the proper interpretation to apply to the term "adverse effect" in ss. 14(1) and 15(1). A non-trivial harm or impairment of the natural environment is an essential component of an "adverse effect" whatever subparagraphs of that definition, or combination of them, may be brought into play.

R. v. Dow Chemical Canada Inc.

[21] The lessons I have drawn from Canadian Pacific, and the similar interpretation which I view as the proper one for s. 15(1) of the EPA and the definition provisions of s. 1(1) that are incorporated into it, may seem to be at odds with this court's decision in Dow Chemical. For reasons I will explain, however, I do not believe that to be the case.

[22] The Dow Chemical case involved an uncontrolled emission of chlorine gas into the air above one of Dow's chemical manufacturing facilities. An employee working on the roof was injured and hospitalized as a result. Dow was charged with two offences: (i) discharging a contaminant into the natural environment, contrary to s. 14(1) of the EPA; and (ii) failing to report that discharge, contrary to s. 15(1). It was convicted at trial in the Ontario Court of Justice, but the conviction was reversed on appeal to the Superior Court of Justice [[1997] O.J. No. 3301 (Gen. Div.)]. [See Note 2 below] The conviction was restored by this court.

[23] Writing for the court, MacPherson J.A. said that he did not agree with Dow's argument that no offence arises under s. 14(1) of the EPA if the discharge of a contaminant poses only a trivial or minimal threat to the environment, irrespective of its effect on the injured employee: see paras. 27-28. Respectfully, however, it does not appear that he decided the case on that basis because, at the end of the day, liability seems to have [page409] rested on the fact that there was more than trivial or minor impact on both the employee and the natural environment.

[24] MacPherson J.A. drew two possible interpretations from the reasons of Gonthier J. in Canadian Pacific. On the first interpretation, Dow's responsibility turned on the fact that there was nothing trivial or minimal about the effects of the discharge on the employee. On the second -- which MacPherson J.A. said he found "less compelling" but did not reject -- Gonthier J.'s qualifying phrase "trivial or minimal threat to the environment" applied to both the words "adverse effect" and the words "discharge of a contaminant into the natural environment" in s. 14(1). He concluded [at para. 31] that Dow could not prevail in either case. The chlorine discharge "caused [the employee] harm and material discomfort (para. (c)), it adversely affected his health (para. (d)), and it impaired his safety (para. (e))". [See Note 3 below] And it was conceded by Dow on the appeal "that the discharge [of the chlorine] was not trivial and that it had some impact on the environment" (emphasis added): at para. 34.

[25] In dealing with the first meaning, MacPherson J.A. noted that the issue in Canadian Pacific revolved around the interpretation of what is now para. (a) of the definition of "adverse effect" -- impairment of the quality of the natural environment for any use that can be made of it. He observed that in that definition provision only the wording of para. (a) makes reference to the natural environment while the other paragraphs set out other forms of adverse effect. But, at para. 28, he also said:

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). (Emphasis added)

[26] This statement, which is in the midst of the foregoing analysis, is not qualified by connecting it to para. (a) of s. 1(1) through s. 14(1). And at the end of his discussion on the first interpretation, MacPherson J.A. added, at para. 30:

In 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 paragraph (a) into paragraphs (b)-(h) of the same section. However, that importation of qualifying language does not help Dow in this case. (Emphasis added) [page410]

[27] The language Gonthier J. used to qualify the definition of adverse effect was [at para. 25] "trivial or minimal threat to the environment" (emphasis added).

[28] Finally, after drawing on the memory of the chemical spills that resulted from the Mississauga train derailment in November 1979 and the disaster at Bhopal in India in December 1984 (where several thousand people were killed) -- both of which involved chlorine -- MacPherson J.A. concluded his discussion of the interpretation of s. 14(1) by saying, at para. 37:

In 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 [the employee]. 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 [natural] environment", the result is the same. The effect of the discharge on [the employee] was very serious. And the actual discharge of a potentially deadly gas into the open air from an industrial plant was also serious. (Emphasis added)

[29] For the foregoing reasons, I do not think that Dow Chemical, when read in conjunction with Canadian Pacific, precludes the interpretation that I seek to place on ss. 14(1) and 15(1) of the EPA and, in particular, on the meaning to be attributed to the term "adverse effect" on which liability under those provisions turns. I note in leaving this part of my reasons that there is a qualitative difference between the discharge of a deadly chemical such as chlorine into the natural environment and the discharge of flying rock. While it is true, as Mr. McMeekin concedes, that fly-rock is dangerous and that there may be situations where flying rock from a blasting explosion could be a "contaminant" causing or likely to cause an "adverse effect" in environmental terms, this is not one of those situations in my view.

The principles of statutory interpretation and their application here

[30] As stated above, as I read ss. 14(1) and 15(1) and the term "adverse effect", something amounting to more than trivial or minimal harm to or impairment of the natural environment is an essential component of an "adverse effect", as defined in the EPA, whatever subparagraphs of that definition, or combination of them, may be brought into play.

[31] I accept the pivotal role that environmental legislation plays in today's society. I agree with counsel for the Ministry that the EPA is important remedial legislation and should therefore be interpreted broadly to ensure the protection and [page411] preservation of the natural environment and with the necessary flexibility to achieve those objectives. But that does not mean the Act is to be interpreted in a completely open-ended manner and in a fashion that overreaches its intended mandate. It is not super-legislation governing every aspect of life -- although interpreted literally it could be taken to have that effect in some respects if one were inclined to follow that approach.

[32] The irony of this case is that it is the narrower, literal interpretation of the Act that is being advocated by the Ministry in order to promote a broader reach of the legislation. Subject to their differences over whether harm (or likely harm) to the natural environment is a necessary component to liability where the uses of the environment listed in paras. (b) through (h) of the definition of "adverse effect" are engaged, the parties agree that the fly-rock incident here is caught by s. 15(1). Castonguay has "discharged" a substance "into the natural environment"; the discharge was "out of the normal course of events", and it caused damage to "property" (para. (b)). The substance is a "contaminant", according to the Ministry, because fly-rock consists of a bundle of "solids", those solids "[resulted] directly . . . from human activities", and they caused an "adverse effect" because they caused damage to property. End of story, the Ministry would have it.

[33] But not so fast, Castonguay submits. The broader, contextual interpretation suggested in Canadian Pacific leads to a different view -- albeit one that happens to result in a narrower application of the Act in the circumstances -- and Dow Chemical does not mandate a contrary approach.

[34] I share Castonguay's view.

[35] The modern principle of statutory interpretation involves a purposive analysis. The words of a statute are to be read in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act and the intention of the legislature: Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, [2002] S.C.J. No. 43, 2002 SCC 42, at paras. 26-27; Rizzo & Rizzo Shoes Ltd. (Re) (1998), 36 O.R. (3d) 418, [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2, at para. 21. Moreover, as Gonthier J. noted in R. v. Nova Scotia Pharmaceutical Society, supra, at pp. 647-48 S.C.R., legislative provisions must not be considered in a vacuum.

[36] The interpretation I advance here reflects these principles.

[37] First, it is consistent with the purpose of the EPA which, as stated in s. 3(1), "is to provide for the protection and conservation of the natural environment" (emphasis added). Embedded in this notion is the need to preserve that environment "for some [page412] range of use by humans and animals" (Canadian Pacific, at p. 1056 S.C.R.) and to protect "the people who live, work and play in it" (Dow Chemical, at para. 49). Requiring some impairment to the natural environment in situations where ss. 14(1) and 15(1) are triggered is in harmony with the overarching theme of the EPA, which is to preserve and protect the natural environment. To say that adverse effects call for an environmental impact reconciles the purpose and objects of the Act with the plain language of ss. 14(1) and 15(1) and the definition of "adverse effect", in my view.

[38] Secondly, this interpretation is derived from and takes its colour from a reading of ss. 14(1), 15(1) and the definition of "adverse effect" in context. Respectfully, the literal interpretation of paras. (a) through (h) of the definition that is advocated by the Ministry -- treating those provisions, as it does, as separate water-tight compartments, none of which give any meaning to the other and without taking into account the environmental protection rationale underpinning the legislation -- ignores the context in which that definition provision operates and as well ignores the purpose and object of the EPA.

[39] The EPA has no interest in regulating the "effects" listed in paras. (b) through (h) in and of themselves, and in my view the legislature did not intend that it would have such an interest. For ease of reference, I set those paragraphs out again: (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 persons, (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[.]

[40] Civil liability for these kinds of wrongs is governed by tort law in such fields as negligence, nuisance, strict liability and trespass. The public regulatory interest is governed by other legislation dealing with health and safety, expropriation and so forth. It is where there is some overlap characterized by a natural environment impact that the effects outlined in paras. (a) through (h) become relevant for EPA purposes. The meaning to be attributed to them emerges when viewed in the context of the paragraph preceding them -- (a) impairment of the quality of the natural environment for any use that can be made of it -- and in the context of their function in the legislation, which is to [page413] sketch out the types of uses of the environment likely to be impacted by acts and events that impair or harm the quality of the natural environment. Whether they are seen as "environmental impacts which attract liability", as Gonthier J. viewed them [at para. 64] in Canadian Pacific, or as specific examples of the types of situations contemplated in para. (a), as Lamer C.J.C. considered them, makes no difference in the result. An "adverse effect", as contemplated by the EPA is something that has a component involving harm to or impairment of the environment entrenched within it, in my view.

[41] As noted above, the Canadian Environmental Law Association was granted leave to intervene. The main thrust of its submissions was to the effect that the EPA has codified the common law torts of negligence, nuisance, strict liability and trespass as environmental offences to be regulated and enforced by government, whether the circumstances involve an element of environmental harm or not.

[42] I reject this argument. It is based on certain language that is common to the torts and the statutory provisions within the definition of "adverse effect". However, I see nothing in that correlation alone, or anything else in the text of the EPA, which would suggest the legislature had any such intention. In addition, the purposes of the four torts and of the EPA are quite different. I agree with Mr. McMeekin that the EPA is public welfare legislation designed for the specific purpose of protecting and preserving the natural environment, whereas the torts mentioned above are concerned with the recovery of quantifiable damages to private persons or property and/or rights related to them. Environmental protection may be one benefit that arises from a successful lawsuit in tort, but it is not the interest the torts seek to protect.

[43] In the end, then -- and to repeat -- ss. 14(1) and 15(1) and the term "adverse effect", as defined in the EPA, contemplate something amounting to more than trivial or minimal harm to or impairment of the natural environment as an essential element of liability relating to the discharge of a contaminant into the natural environment, whatever subparagraphs of that definition, or combination of them, may be engaged.

[44] Both the Ministry and the appeal judge relied upon the Divisional Court's decision in R. v. Glen Leven Properties Ltd. (1977), 15 O.R. (2d) 501, [1977] O.J. No. 2185 (Div. Ct.). That decision is not inconsistent with the foregoing interpretation. There, the removal of topsoil during a construction project had allowed the underlying sand to become windblown over a significant period of time, reducing air quality in the neighbourhood [page414] and causing considerable discomfort and some health problems to people living nearby, and some damage to property. The blowing sand was held to be a contaminant discharged into the natural environment because Glen Leven had changed the natural state of the sand by removing the topsoil and creating a situation where the sand was likely to be borne by the wind. In such circumstances, Southey J. noted, "a substance may be a contaminant under [s. 14(1)]" (emphasis added): at p. 506 O.R.

[45] I agree with that decision. A substance discharged into the air in that fashion may be a contaminant, and will be if the substance causes or on the facts may cause more than trivial or minimal harm to or impairment of the natural environment. That is what happened in Glen Leven Properties. It is not what happened here.

Conclusion and Disposition

[46] In the circumstances here, it is conceded that the fly- rock generated by Castonguay's blasting activities did not have any (or, at least, no more than a trivial or minor) impact on the natural environment or cause any harm to it. The fly- rock did not constitute a "contaminant" therefore, nor did it cause or was it likely to cause an adverse effect in terms of the EPA. Accordingly, Castonguay could not properly be convicted of failing to report the discharge of a contaminant, contrary to s. 15(1) of the EPA.

[47] I would therefore allow the appeal, set aside the order of the Superior Court and restore the acquittal entered by Hunter J. in the Ontario Court of Justice. I do not think this is an appropriate case for costs.

MACPHERSON J.A. (SIMMONS J.A. concurring):

[48] I have had the opportunity to consider the draft reasons prepared by my colleague Blair J.A. His ultimate conclusion is stated, at para. 43:

In the end, then -- and to repeat -- ss. 14(1) and 15(1) and the term "adverse effect", as defined in the EPA, contemplate something amounting to more than trivial or minimal harm to or impairment of the natural environment as an essential element of liability relating to the discharge of a contaminant into the natural environment, whatever subparagraphs of that definition, or combination of them, may be engaged.

[49] With respect, I do not agree with this conclusion. In my view, it is inconsistent with the plain wording of the relevant provisions of the EPA, it flows from an incorrect interpretation of [page415] both Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031, [1995] S.C.J. No. 62 and R. v. Dow Chemical Canada Inc. (2000), 47 O.R. (3d) 577, [2000] O.J. No. 757 (C.A.), and it inappropriately constricts the important public purposes of the Environmental Protection Act, R.S.O. 1990, c. E.19. I will address these three points in turn.

(1) The Plain Meaning of the Relevant Statutory Words

[50] I agree with my colleague that s. 14(1) of the EPA forbids discharging a contaminant into the natural environment and s. 15(1) requires that any such discharge be reported to the Ministry of the Environment. For ease of reference, I set out these provisions again:

14(1) Subject to subsection (2) but despite any other provision of this Act or the regulations, a person shall not discharge a contaminant or cause or permit the discharge of a contaminant into the natural environment, if the discharge causes or may 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 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.

[51] The term "adverse effect" and the words "contaminant" and "discharge" are defined in s. 1(1) of the EPA:

"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[.] . . . . .

"contaminant" means any solid, liquid, gas, odour, heat, sound, vibration, radiation or combination of any of them resulting directly or indirectly from human activities that causes or may cause an adverse effect; [page416]

"discharge", when used as a verb, includes add, deposit, leak or emit and, when used as a noun, includes addition, deposit, emission or leak[.]

[52] The fly-rock incident in this case comes within the plain meaning of the words "contaminant" and "discharge" and the term "adverse effect", as my colleague recognizes, at para. 12 of his draft reasons:

The discharge of the fly-rock in this instance meets all of the prerequisites for liability under the provision if an "adverse effect" as contemplated by the EPA requires only injury to property without any accompanying impairment of or harm to the natural environment, as a literal reading of the definition of "adverse effect" might suggest. Fly-rock is a "solid" resulting from human activities and, in this case, it caused damage to property and would, on that interpretation, constitute an "adverse effect" (para. (b) of the definition) and be a "contaminant". (Emphasis in original)

[53] In my view, as a matter of statutory analysis, this passage is precisely right; it accords completely with the ordinary sense of the words as defined in the EPA.

[54] However, rather than concluding that this resolves the statutory interpretation exercise in this case, in the next two sentences of para. 12 my colleague opens the door to a different analysis:

However, if the notion of "adverse effect" carries with it some element of impairment to the natural environment that is more than transient or trivial -- an "environmental event", in the words of the trial judge -- the discharge of the fly- rock here did not constitute a "contaminant" as that term is defined nor did it cause or was it likely to cause, in the circumstances here, an "adverse effect". Those are the parameters of the debate on the appeal.

[55] I agree with my colleague that the parameters of the debate are as he describes in para. 12 of his draft reasons. In the end, he concludes that there must be both a harm to the environment and one of the eight harms listed in the definition of "adverse effect" before liability for an offence under ss. 14(1) and 15(1) of the EPA can be made out. In reaching this conclusion, my colleague contends that both Canadian Pacific and Dow Chemical are consistent with, or at least permit, such a result and that the purpose of the EPA suggests such a linkage. I turn to these points.

(2) Canadian Pacific and Dow Chemical

[56] The interpretation advanced by my colleague is inconsistent with Canadian Pacific and Dow Chemical.

[57] In Canadian Pacific, the Supreme Court of Canada considered the constitutionality of the EPA prohibition on discharges [page417] that "impair the quality of the natural environment for any use that can be made of it". The court unanimously upheld the provision. At the time, the statute included the definition of "adverse effect", now contained in s. 1(1) of the EPA, as part of the provision prohibiting discharges. Justice Gonthier, writing for the majority, interpreted the language of part (a) of that definition [at para. 65]:

[Section 14(1)] 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.

[58] The majority reasons did not suggest that a significant impact on the quality of the natural environment would be required to make out an "adverse effect" under what is now (b)- (h) of the definition.

[59] Writing for three concurring judges, at para. 20, Lamer C.J.C. offered an alternative construction of the definition of adverse effect:

As I noted earlier, the most natural manner of viewing s. 13 is to view all of the various subsections as directed at different (albeit overlapping) evils. However, it is also possible to interpret s. 13(1)(a) as expressing the general intention of the section as a whole, and to treat ss. 13(1) (b) through (h) as setting out specific examples of "impairment[s] of the natural environment for any use that can be made of it." That is, s. 13(1)(a) can be read as if it were part of the main body of the section, with words to the effect of "and, without limiting the generality of the foregoing, that" interposed between it and the other subsections.

[60] My colleague relies on this interpretation to conclude that for a discharge to have an adverse effect, it must impair the quality of the natural environment in addition to triggering (b)-(h). I cannot agree, for three reasons.

[61] First, only three members of the Supreme Court of Canada supported Lamer C.J.C.'s proposed interpretation in Canadian Pacific. Although Gonthier J.'s majority reasons do not explicitly reject the chief justice's interpretation, I understand the majority reasons to read the definition of adverse effect as providing independent, alternative grounds for liability.

[62] Second, the EPA has been amended since the Canadian Pacific discharge in 1988 in a way that reduces the plausibility of Lamer C.J.C.'s interpretation. Under the current version of the EPA, the language concerning damage to property is now part of the s. 1(1) statutory definition of "adverse effect". This definition provides that "'adverse effect' means one or more of'" (emphasis [page418] added) eight kinds of damage. This is a clear indication that (a)-(h) are to be read as independent triggers for liability.

[63] Third, this court rejected my colleague's approach in Dow Chemical. In that case, Dow discharged chlorine (a contaminant) into the air, harming an employee (an adverse effect). The company made precisely the same argument that the appellant makes here, and which my colleague accepts. As the court in Dow Chemical said [at para. 23], "Dow 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".

[64] The court explicitly rejected this contention, at paras. 28-31, saying, "[we] do not agree with this argument", and then setting out its supporting reasons:

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 paragraph (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 paragraph (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).

Paragraph (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 paragraphs set out other forms of adverse effect. Some relate to plants and animals (paragraphs (b) and (f)); some relate to people (paragraphs (c), (d) and (f)) and their property (paragraph (g)) and business (paragraph (h)).

In 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 paragraph (a) into paragraphs (b)-(h) of the same section. However, that importation of qualifying language does not help Dow in this case.

The adverse effect of the chlorine discharge on Dow's employee, Mr. Frank, caused him harm and material discomfort (paragraph (c)), it adversely affected his health (paragraph (d)), and it impaired his safety (paragraph (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. [page419]

[65] I interpret this passage as follows. All of paragraphs (a)-(h) of s. 14(1) of the EPA deal with the effects of the discharge of contaminants into the environment. The qualifying language "trivial or minimal" and "degree of significance" applies to those eight effects. Thus, with respect to para. (a), these words apply to both components, "impairment of the quality of the natural environment" and "for any use that can be made of it". Similarly, as suggested in the quoted passage, they also apply to the effects in paras. (b)-(h). For instance, for a safety impairment to constitute an adverse effect, the impairment must be more than trivial or minimal.

[66] However, this analysis does not suggest, as my colleague asserts, that the substantive content of the first part of para. (a) -- "impairment of the quality of the natural environment" -- also becomes an umbrella over all of the effects set out in paras. (b)-(h).

[67] This new umbrella is not supported by Canadian Pacific and is specifically rejected by Dow Chemical. In my view, for the above reasons the case law does not support such an expansion.

(3) The Purposes of the EPA

[68] My colleague's conclusion is also at odds with the purposes of the EPA as discussed in both Canadian Pacific and Dow Chemical.

[69] In Canadian Pacific, Gonthier J., writing for six judges, stated, at para. 43:

[O]ur 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.

[70] In the same case, Lamer C.J.C., speaking for three judges, said, at para. 18:

[T]he objectives of the Act thus seem to encompass the preservation of the natural environment for some range of use by humans and animals. I agree with my colleague Gonthier J.' s observations that environmental protection is a very broad subject matter.

[71] In Dow Chemical, this court said, at para. 49, that the purpose of the EPA "is to protect the natural environment and the people who live, work and play in it". [page420]

[72] The contents of paras. (a)-(h) of the definition of "adverse effect" clearly reflect the purpose of the EPA set out in Canadian Pacific and Dow Chemical. The definition encompasses harm to the environment itself (paras. (a), (b) and (f)), to people, their activities and occupations (paras. (b), (c), (d), (e), (f), (g) and (h)), and to animals (paras. (b) and (f)).

[73] My colleague's interpretation of "adverse effect" is, with respect, an unduly constricted one that does not reflect the broad purposes of the EPA. My colleague says that an "adverse effect" that grounds offences under ss. 14(1) and 15(1) of the Act has two components -- harm to the environment and one of the eight harms listed in paras. (a)-(h) of the s. 1(1) definition of "adverse effect".

[74] I do not agree with the first component of this two- pronged test. It is inconsistent with Canadian Pacific and was explicitly rejected in Dow Chemical, as explained in the previous section of these reasons. In addition, from the perspective of the important public purposes of the EPA, it would remove a great deal of problematic activity connected to the environment from the purview of the Act.

[75] My colleague is correct to regard the protection of the environment itself as a key purpose of the EPA. That is why para. (a) and, to a lesser extent, paras. (b) and (f), relating to plants, are included in the definition of "adverse effect".

[76] However, the EPA is, in my view, also concerned with uses of the environment that cause harm to people, animals and property -- for example, as a conduit for contaminants that cause damage or harm to people, animals or property. Blasting is a perfect example. In many cases, blasting will not harm the environment; para. (a) of the definition of "adverse effect" will not be triggered. However, where blasting causes the discharge of a contaminant, such as fly-rock, into the natural environment, blasting may harm people, animals or property. That is what happened in this case. A blasting activity gone wrong (as the appellant concedes) may not have caused more than trivial or minimal harm to the air, land or water. However, the fly-rock generated by the blasting did cause significant harm to property, a different adverse effect under the Act. Importantly, the direct conduit resulting in this harm was the appellant's use of the environment (the air) to disperse a contaminant (fly-rock).

[77] In conclusion, I see no policy reason for limiting the coverage of the EPA to fact situations where serious adverse effects to people, animals and property can be considered only if the environment is also harmed by the impugned activity. In this [page421] case, the discharge of fly-rock into the air during a blasting operation was a sufficient trigger for scrutiny under the EPA.

(4) Conclusion

[78] The plain meaning of the relevant provisions of the EPA, a proper understanding of the broad purposes of the EPA, and the application of the decisions of the Supreme Court of Canada in Canadian Pacific and this court in Dow Chemical, taken together, establish that the appellant's discharge of the fly- rock from a blasting operation being carried out in the natural environment is the discharge of a contaminant that caused an adverse effect under the EPA. The appellant, therefore, should have reported the incident to the Ministry of the Environment pursuant to s. 15(1) of the Act.

[79] I would dismiss the appeal. This is not a case for costs.

Appeal dismissed.

Notes

[Note 1] R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606, [1992] S.C.J. No. 67.

[Note 2] These courts were known respectively at the time as the Ontario Court (Provincial Division) and the Ontario Court (General Division).

[Note 3] The paragraph references are to the respective paragraphs in the s. 1(1) definition of "adverse effect".