Rainbow

Rainbow

Wednesday, May 30, 2012

Court of Appeal upholds conviction under EPA for rock debris

The Ontario Court of Appeal, in a split decision 2-1, has upheld the conviction of a highway construction subcontractor under the Environmental Protection Act (EPA) related to rock debris that travelled 90 metres beyond the controlled blasting area.  The "fly-rock" landed on a house and vehicle on neighbouring private property causing damage.  The blasting company did not report the debris and was subsequently charged with failing to report the discharge of a contaminant into the environment contrary to Section 15(1) of the EPA. 

The duty to report depended on whether there had been a discharge within the meaning of Section 14(1) of the EPA.  Section 14(1) prohibits a discharge of a contaminant into the natural environment if the discharge causes or may cause an adverse effect.  "Adverse effect" is a defined term in the Act, and the majority of the Court of Appeal panel found that for the harms listed in subparagraphs (b) to (h), there is no requirement that there necessarily be harm to the environment (i.e. there can be an adverse effect for the purposes of Section 14(1) without harm to the environment).  On this basis, although the "fly-rock" caused no apparent harm to the environment, the conviction was upheld.

Justice Robert Blair wrote a dissenting opinion.  His view was that there could be no "adverse effect" without either non-trivial harm or impairment of the natural environment.  As it was conceded that the "fly-rock" had no more than a trivial or minor impact on the natural environment, Justice Blair would have allowed the appeal.