Property owners and managers in Ontario should heed a recent Supreme Court of Canada decision and report any irregular discharges to the environment with potentially adverse repercussions — even if they don’t appear damaging to the natural environment or human health. This obligation can apply to a broad list of prospective contaminants including solids, liquids, gases, heat, odours, sounds and vibrations.
The Supreme Court decision upholds the earlier appeal decisions of the Ontario Superior Court and Court of Appeal that a highway construction subcontractor was required to report an errant blasting incident to the Ministry of the Environment (MOE), and reinforces that it is the Ministry’s prerogative to determine what constitutes an environmental impact.
In this case, the contractor had complied with the regulatory obligation to report the mishap to the Ministry of Labour. It had also reported to the Ministry of Transportation and had made restitution for the damage that the misdirected rock blast had caused to a nearby property and vehicle. However, MOE later charged the company for failing to report the discharge as required under section 15(1) of Ontario’s Environmental Protection Act (EPA).
“The result of this decision is that there will now be over-reporting,” predicts Gabrielle Kramer, a partner and expert in environmental litigation with Borden Ladner Gervais LLP. “From the individual corporate entity perspective, reporting is not time-consuming or expensive. The real question will be on the Ministry response side and whether it can handle the burden.”
Ontario’s EPA sets out eight parameters for defining an adverse effect. As might be expected, this covers harm or potential harm to natural systems, plants, animals and humans. It also includes parameters that might not be so straightforwardly viewed as an environmental impact, such as property damage, loss of enjoyment of normal use of property and interference with the normal conduct of business.
The legislation is not intended to capture trivial adverse effects, but Kramer foresees it will take some time and further legal decisions to establish what trivial means in light of the Supreme Court decision. Notably, it states: “When in doubt, report.”
“The case does not provide guidance for line drawing. If you’re managing a renovation or restoration project, for example, and you have some kind of unexpected release, you should be thinking about whether it’s something that needs to be reported. If it’s confined to your own property and unlikely to escape, there’s probably not much likelihood you’ll be obligated,” she says. “If you have a major spill to a sewer or a lake, the Ministry will be very quick to respond. If you have glass falling from a window, it may take no interest.”
The Canadian Environmental Law Association and Lake Ontario Waterkeeper, which were interveners at the Supreme Court hearing earlier this year, maintain that broad reporting provisions support an emerging international law principle, known as the precautionary principle. This recognizes that environmental impacts cannot be determined or predicted with scientific certainty; therefore policies must anticipate and prevent environmental degradation even in advance of proof of harm. The organizations’ joint submission argued, and the Court concurred, that MOE must be notified of any atypical discharge of a contaminant so that it can act accordingly.
“Many potential harms may be difficult to detect without the expertise and resources of the Ministry. As a result, the statute places both the obligation to investigate and the decision about what further steps are necessary with the Ministry and not the discharger,” the Supreme Court decision states. “Notification provides the Ministry with the opportunity to conduct an inspection as quickly as possible and to obtain information in order to take any necessary remedial action and to fulfill its statutory mandate.”
Although the case pertains to Ontario’s EPA, the decision does have implications for the reporting requirements in all provincial and territorial environmental legislation. Beyond simply notifying MOE as required, Kramer recommends that companies document what they’ve reported, their responsive actions and the Ministry’s response. This record keeping should be incorporated into companies’ regulatory compliance or environmental management best practice initiatives.
In this case, the Ontario company received a $20,000 fine, but there could be costlier consequences if a company repeatedly fails to report or has other convictions under the EPA on its record.
“The legislation is cumulative in terms of the way fines are calculated,” Kramer warns.
Barbara Carss is the editor-in-chief of Canadian Property Management and Building Strategies & Sustainability magazines.