Law Times

PAGE 12 BY MARG. BRUINEMAN For Law Times whether it requires an impact or threat in or- der to attract liability. In its application for leave to appeal an T Ontario Court of Appeal decision, lawyers for Castonguay Blasting Ltd. are seeking clarification on what' a report to the Ministry of Environment's s necessary to trigger spills centre. The company describes the is- sue as one of national importance. "The question raised in this application for leave to appeal is simple — does the term 'adverse effect' as defined in the [Environ- mental Protection Act] require an impact on the natural environment?" asks Bruce Mc- Meekin of Miller Thomson LLP in his brief. " plications which flow from how that ques- tion is answered are wide ranging. The Supreme Court has granted leave to ap- peal and is expected to hear the matter in May. Although the question is simple, the im- " Case to consider reporting obligations, definition of adverse effect In finding that the Castonguay Blasting heads to SCC FOCUS he Supreme Court of Canada is being asked to determine exactly what constitutes an adverse effect on the natural environment and company erred in not re- porting damage, the On- tario Court of Appeal de- termined earlier this year that when fly-rock hits property, it' a contaminant that must be reported. Castonguay Blasting is s a discharge of a subcontractor that was working on a highway proj- ect near Marmora, Ont., in 2007 when a blasting oper- ation went awry and result- ed in fly-rock. The debris flew 90 metres onto anoth- er property where it struck a house and a car. Caston- guay Blasting reported it to the contract administrator that in turn reported it to the labour and transporta- tion ministries. The Ministry of the The case could mean 'very serious environ- mental offences would not be covered by the Environmental Protection Act,' says Ramani Nadarajah. Environment didn't learn of the matter un- til the following May and in October 2009, Castonguay Blasting's position was that injury or damage to private property on overturned the acquittal in 2011. It found the fly-rock to be a contaminant and fined the company the minimum of $25,000. The Ontario Court of Appeal agreed to hear the case based on the wide impact of the issues and ultimate- ly upheld the conviction. Castonguay Blasting was charged with failing to report the discharge of a contaminant into the natural environment. The Ontario Court of Justice acquitted Castonguay Blasting in 2010. It found that significant impair- ment of both the qual- ity of the natural environ- ment and its use would be necessary in order to find adverse effect. But the Superior Court its own wasn't sufficient to trig- ger the reporting requirement and that a party must report a situation only when the con- taminant has caused additional harm or impairment to the nat- ural environment. The ministry argued at the appeal court that if there's some nexus between the activity and the natural environment and it results in damage to prop- erty, the obligation to report is triggered. That the blasting disturbed the rock in its natu- ral state and the fly-rock could have harmed the environment in other circumstances meets all of the prerequisites for liabil- ity, it argued. "I see no policy reason for November 19, 2012 • Law Times limiting the coverage of the EPA to fact situations where seri- ous adverse effects to people, animals, and property can be considered only if the environ- ment is also harmed by the im- pugned activity. In this case, the discharge of fly-rock into the air during a blasting operation was a sufficient trigger for scrutiny under the EPA," wrote Justice James MacPherson in the On- tario Court of Appeal decision. "The plain meaning of the relevant provisions of the EPA . . . establish that the appellant' With more than 1,400 pages of essential legal references, Ontario Lawyer's Phone Book is your best connection to legal services in Ontario. Subscribers can depend on the credibility, accuracy and currency of this directory year after year. More detail and a wider scope of legal contact information for Ontario than any other source: More than 26,000 lawyers More than 9,000 law firms and corporate offices Fax and telephone numbers, e-mail addresses, office locations and postal codes Lists of: Federal and provincial judges Federal courts, including a section for federal government departments, boards and commissions Small claims courts Miscellaneous services for lawyers 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." While neither Castonguay Blasting's lawyers nor the On- s Ontario courts and services, including a section for provincial government ministries, boards and commissions Contact information that is current, up to date and easy to find: Alphabetical tabs on every page for quick reference Complete address information in every lawyer's listing Special binding that allows the directory to lay flat when opened and stay flat tario Ministry of Environment would comment given the ap- plication before the court, pro- vincial lawyers Paul McCulloch and Danielle Meuleman, in their reply to Castonguay Blast- ing' no national significance to this case and no conflicting jurispru- dence in the other provinces. Acting as intervener, the s application, contend there's "Blue pages" to highlight government listings THIS SPECIAL OFFER EXPIRES DECEMBER 1, 2012 Early Bird Multiple Copy Discounts 1-9 copies ................. 10-49 copies ..... .... 100 or more copies On subscription or One time purchase Canadian Law List, a Thomson Reuters business Prices subject to change without notice, and to applicable taxes. Visit carswell.com or call 1.800.387.5164 for a 30-day no-risk evaluation CANADIAN LAW LIST Canadian Environmental Law Association agrees with the decision as it stands. The rami- fications will be dramatic if the company is successful in its ap- peal, says association lawyer Ramani Nadarajah. "It would have significant im- plications," she says. "Why this case is so signifi- cant . . . is very serious environ- mental offences would not be covered by the Environmental Protection Act." The Crown' that any kind of a discharge is enough to warrant action. Nadarajah argues that a rever- sal of that decision would affect any situation in which anything is discharged into the air. She points to the release of chlorine as an example, a substance that' s position is easily dispersed but causes damage in the interim. s LT Untitled-4 1 www.lawtimesnews.com 12-09-11 11:12 AM

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