By Norm Keith
The blast, protected by blasting nets, did not go as planned. The safety measure of the blasting nets did not contain all the rock, and “flyrock” shot in the air 90 metres and crashed through the roof of a home, damaging a kitchen ceiling, the siding on the house and eaves troughs. Some of the flyrock also hit a nearby car, breaking the windshield and damaging the hood of the car. Flyrock was also found in the backyard of the home.
In 2007, Castonguay Blasting Ltd. was hired as a subcontractor to conduct blasting operations for a highway-widening project commissioned by the Ontario government, through the Ministry of Transportation.
Castonguay reported the incident to the Ministry of Transportation and also reported the incident to the Ministry of Labour. The reporting obligations under the Ontario Occupational Health and Safety Act, relating to this incident, are found in section 53. It requires flyrock to be reported to the health and safety regulator in the province, even if no individual, worker or member of the public is injured.
By all appearance, Castonguay did what a typical blasting contractor would do and reported the flyrock incident to the appropriate officials both under its contractual obligations and under its Occupational Health and Safety Act obligations. However, Castonguay did not report the incident to another department of the same provincial government: the Ministry of the Environment. Castonguay did not believe that there had been any “environmental” damage. Later, when directed to do so by the Ministry of Transportation, it reported the incident to the Ministry of the Environment.
This flyrock incident became so high profile with the Ministry of the Environment that the province of Ontario initiated a prosecution for failure to report under the reporting provisions of the Environmental Protection Act. Castonguay was charged with failing to report the “discharge of a contaminant into the natural environment” to the Ministry of Environment, under section 15(1) of the Environmental Protection Act. The case therefore raised important issues of the need to report both under health and safety legislation and environmental legislation; or to put it another way, an obligation to turn oneself in to authorities when such an incident occurs.
At trial, Castonguay was acquitted by a judge of the Ontario Court of Justice, holding that there was no need to report to the Ministry of the Environment in the facts of the case. The government of Ontario, through the Ministry of the Environment, appealed the acquittal, and was successful, resulting in a conviction on appeal.
This was further appealed to the Court of Appeal for Ontario, which upheld the conviction. However, in a strongly worded dissent, Justice Blair said there had been no breach of section 15(1) in the circumstances because flyrock did not constitute a contaminant in a manner that was intended to result in reporting under the Environmental Protection Act. In other words, can part of the natural environment, rock, become a contaminant when it becomes flyrock?
The Supreme Court of Canada gave leave to appeal from the decision of the Court of Appeal for Ontario.
The Supreme Court held that since the purpose of the Environmental Protection Act was in place to protect and conserve the natural environment, and since reporting incidents was critical to the role of the Ministry of the Environment, reporting was required since the flyrock was a “potential” contaminant. Although this ruling may be considered “pro-environmental” it seems to expand the meaning of contaminant to include parts of the natural environment.
The court held there was a potential harm or damage to the natural environment, as indicated by the property damage in this case. In other words, because a plant, animal or the natural environment could have been harmed by the flyrock, then there was an absolute requirement to report the incident to the Ministry of Environment.
In this case, all parties admitted there was merely an incident of property damage with no harm to any persons or workers, plant life, animal life or the natural environment, but did not distract the court from its view there was a potential for environmental harm and therefore immediate mandatory reporting to the Ministry of the Environment of the government of Ontario was required. The court held the flyrock amounted to a discharge out of the normal course of events, as an accidental consequence of Castonguay’s blasting operation. In other words, if the blast had been conducted properly, as intended, the flyrock would not have been thrust into the air, resulting in damaged property.
What the court appeared to ignore, in upholding the conviction of Castonguay from the first appeal court, is that there was reasonable doubt with respect to two matters. First, whether in fact there had been environmental damage, which it turns out there was not.
Second, and more importantly from a broad regulatory perspective, the flyrock incident was in fact reported to the government of Ontario, albeit to the Ministry of Transportation and to the Ministry of Labour. In many areas of the law, the provincial government, as established under the Constitution Act, 1867, is held to be one and indivisible. In other words, the provincial government is one legal entity, even if it chooses to have various departments or ministries which it governs.
The question of whether or not notifying the Ministry of Transportation and the Ministry of Labour, in this case, is not sufficient for government reporting as required under the Environmental Protection Act is unclear. Why is there not one central reporting point for one incident that may have both health and safety and potential environmental implications and reporting obligations?
The Supreme Court appears to have ignored this practical concern, while giving support to the need to report potential contaminants such as flyrock. Further, since the province is one and indivisible, arguably reporting to one government ministry should meet other provincial government reporting obligations.
Is it too much to ask for the Ontario government departments to communicate with each other, when there is such an incident? This last question apparently was not canvassed in argument by the parties and not addressed by the Supreme Court in its decision.
For business and organizations operating in Ontario, and other provinces, this case highlights a very frustrating aspect of government regulation. The time and cost of reporting one flyrock incident to multiple government departments, for the same incident, is both inefficient and frustrating. This duplication of government reporting is excess red tape and borders on regulatory overkill. Especially, and ironically, since the Ministry of Labour uses the Ministry of Environment’s “Spills Action Centre” for after-hours reporting of reportable incidents under the Occupational Health and Safety Act.
[span style="letter-spacing: -0.1px;"]The Castonguay prosecution for failure to report may have, in fact, been successfully defended if Castonguay contacted the Ministry of Labour through the Ministry of the Environment’s Spills Action Centre, outside of normal working hours.
To say there is both confusion, duplication and unnecessary red tape is an understatement.
Norm Keith is a partner at Toronto-based law firm Fasken Martineau DuMoulin LLP. He specializes in occupational health and safety, environmental, workers' compensation, and workplace risk management litigation. He advises and represents clients in regulatory and corporate criminal investigations and charges. Norm received his Canadian Registered Safety Professional (CRSP) designation in 1998, making him the first practising lawyer in Canada to achieve the CRSP designation.[/span]
Norm Keith, an OHS lawyer and consultant, is a partner at Fasken in Toronto. He can be reached at (416) 868-7824 or firstname.lastname@example.org
, or visit www.ehslaw.ca
for more information.