EPA: ‘When in Doubt, Report’ — According to Supreme Court

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Environmental laws may be interpreted broadly to protect the public, the Supreme Court of Canada has found.

The unanimous October decision, Castonguay Blasting Ltd. v. Ontario (Environment), 2013 SCC 52 involved a blasting company. It had been acquitted in 2010, and convicted on appeal in 2011, of a charge laid under s.15(1) of the Environmental Protection Act R.S.O. 1990, c. E.19, s. 15(1) (EPA), by failing to report an incident to Ontario’s Ministry of the Environment. The Canadian Environmental Law Association (CELA) intervened in the case.

Debris from a blast damaged a home and vehicle in Eastern Ontario, but did not harm the natural environment.

The court agreed with an earlier split decision from the Ontario Court of Appeal, which suggested a broad interpretation of the s. 15 reporting requirement.

At issue in Castonguay is whether, under s.1(1) of the EPA, the Crown must prove that the discharge of a contaminant separately impaired the natural environment, in addition to causing another adverse effect. The court upheld the conviction. Writing for the court, Madame Justice Abella found, “In other words: when in doubt, report.”

The decision refers to an emerging international environmental law “precautionary principle.” This recognizes inherent limits in determining and predicting environmental impacts with scientific certainty.

“Environmental policies must anticipate and prevent environmental degradation,” the court found. “Section 15(1) gives effect to the concerns underlying the precautionary principle by ensuring that the Ministry of the Environment is notified and has the ability to respond once there has been a discharge of a contaminant out of the normal course of events, without waiting for proof that the natural environment has, in fact, been impaired.”

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