‘Adverse Effect’ doesn’t require an impact on the natural environment

Environmental, Energy and Resources Law

April 10, 2012

The Court of Appeal for Ontario released an important decision this week on the definition of “adverse effect” under the Environmental Protection Act (the “EPA”). Many provisions of the EPA, particularly those prohibiting certain activities or requiring reporting of certain events to the Ministry of the Environment (the “MOE”) are triggered only if there is a possibility of an adverse effect.  Further, the EPA definition of “contaminant” hinges on whether a product may cause an adverse effect.

The EPA sets out the definition of adverse effect as one or more of any 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.

On its face, this definition is extremely broad and could include many impacts which do not actually negatively affect the natural environment. Until recently, however, the EPA was generally only applied by enforcement officials where there was concern over impacts to the natural environment.

In Ontario (Environment) v. Castonguay Blasting Ltd. the situation arose, however, where the Defendant, Castonguay Blasting Ltd. (“Castonguay”) was charged with a violation of the EPA for an event which caused property damage, but had no negative impacts on the natural environment. Specifically, Castonguay was responsible for errant blasting work which resulted in rock debris landing on a house and vehicle. Castonguay took responsibility for the property damage, provided compensation to the property owners, and notified both the Ministry of Labour (pursuant to the Occupational Health and Safety Act) and the Ministry of Transport (as they were working on roadway construction at the time of the incident). They did not report the incident to the MOE, believing that the lack of negative impact on the natural environment negated such a need. The MOE disagreed, however, and charged Castonguay with failing to report the discharge of a contaminant into the natural environment that causes or is likely to cause an adverse effect, under section 15(1) of the EPA.

At an Ontario Court of Justice trial, Castonguay was acquitted of the charge, but this decision was reversed on appeal to the Superior Court of Justice. On March 16, 2012 the Court of Appeal for Ontario released its decision pursuant to a further appeal in the matter. Finding for the MOE, the Court of Appeal relied on a plain reading of the EPA and the definition of “adverse effect”, as set out above, and saw no reason to constrict its application to situations involving threats to the natural environment. The Court seems to acknowledge that there must be some nexus between the natural environment and the act in question, but that this connection does not have to be as strong as requiring an actual or potential negative impact on the natural environment before the EPA can be engaged. In this case, the fact that the debris was a natural material – blasted rock – was sufficient.

Whether a particular material is considered a “contaminant” having an “adverse effect” will be an very fact specific investigation, but parties should take this decision as a cautionary tale to carefully consider whether the EPA may apply to their operations even where there is no real or potential adverse impact on the natural environment.