Canada’s Highest Court Upholds Broad Interpretation of Environmental Laws in Protecting Public Reporting Requirements and Affirms for First Time Application of Precautionary Principle to Ontario Environmental Legislation
This case dealt with the ambit of the reporting requirement under s.15(1) of the Environmental Protection Act (EPA).
At issue was whether the Crown is required to prove that the discharge of a contaminant must separately impair the natural environment (air, land water), in addition to causing another adverse effect, such as property damage, within the meaning of s.1(1) of the EPA. The Supreme Court of Canada in a unanimous 7-0 judgment on October 17, 2013 upheld a conviction of a company under s. 15 of the EPA for failing to immediately notify the Ministry of the Environment following a blast that caused property damage but not environmental harm. The essence of the Court’s decision, penned by Madame Justice Abella, was “when in doubt, report”. The Court also observed that s. 15 is consistent with the precautionary principle, as had been argued by CELA and Lake Ontario Waterkeeper in their joint factum to the Court.
The Supreme Court decision follows a 2012 Ontario Court of Appeal decision that by a 2-1 split also favoured a broad interpretation of the s. 15 reporting requirement.
CELA intervened on its own before the Ontario Court of Appeal and before the Supreme Court of Canada (with LOW) to argue for a broad interpretation of the EPA, one that involves consideration of both the common law as well as international law principles, specifically the precautionary principle, and that does not require, in the context of s. 15, that the Crown establish that a discharge of a contaminant also separately impair the environment.