Supreme Court of Canada affirms for first time validity of applying precautionary principle to Ontario environmental legislation
For Immediate Release
Ottawa, ON – On Thursday, October 17, 2013, the Supreme Court of Canada held that environmental laws may be interpreted broadly to protect the public.
The case raising this issue involved a company acquitted in 2010, but convicted on appeal in 2011, for failing to report to the Ontario environment ministry under the province’s Environmental Protection Act (“EPA”). A blasting operation the company conducted for a highway-widening project in eastern Ontario damaged a nearby home and vehicle with fly-rock from the blast-site, but did not harm the natural environment. The company’s conviction for failing to report the incident to the environment ministry was upheld by a 2-1 majority in the Ontario Court of Appeal in early 2012. The company was granted leave to appeal to the Supreme Court of Canada and argued before the Court in May 2013 that the EPA does not apply if the natural environment (air, land, water) is not also harmed by its conduct. A unanimous Supreme Court of Canada dismissed the company’s appeal and agreed with the majority of the Ontario Court of Appeal that the company was required to report the incident to the environment ministry.
Madame Justice Abella, writing for the seven-member Court, held that the EPA is entitled to a generous interpretation and that based on prior Supreme Court jurisprudence environmental protection is a complex subject matter and the wide range of activities that might harm it are not easily conducive to precise codification. Therefore, environmental legislation takes an expansive approach to ensure that it can adequately respond to a wide variety of environmentally harmful scenarios in order to protect the public. Justice Abella held that the statute’s reporting provision is preventive and is also consistent with, and gives effect to, concerns underlying the precautionary principle. This principle of international law recognizes that because there are limits to being able to determine and predict environmental impacts with scientific certainty, environmental laws and policies must anticipate and prevent environmental degradation without waiting for proof that the natural environment has, in fact, been impaired. In short, the reporting requirement requires that when in doubt, report. The Court was concerned that the company’s restrictive interpretation would narrow the scope of the reporting requirement and restrict its remedial capacity and the ministry’s ability to fulfill its statutory mandate.
Lake Ontario Waterkeeper (“LOW”) and the Canadian Environmental Law Association (“CELA”) were concerned that the company’s interpretation could restrict the application of the EPA and similar provincial and territorial environmental laws across the country and leave under-regulated key environmental issues such as noise, the ozone layer, climate change, as well as human health and safety. CELA and LOW were granted leave to intervene by a single judge of the Supreme Court of Canada in March 2013 and participated in the oral argument before the full Court in May of this year arguing, among other things, that the reporting provision should be interpreted using the precautionary principle.
The decision – Castonguay Blasting Ltd. v. Her Majesty the Queen in Right of Ontario as represented by the Minister of the Environment – Court File No. 34816 – may be obtained from the Supreme Court’s website.
For more information contact:
Joseph F. Castrilli or Ramani Nadarajah, CELA Counsel at: (416) 960-2284; 1-647-234-4424
Mark Mattson, LOW President and Waterkeeper at 416-861-1237.