3 lessons from the Supreme Court of Canada’s Castonguay decision
The Supreme Court of Canada has released its decision in the Castonguay case. It’s good news. The best news possible, actually. And it feels like it’s been 12 years in the making.
Back in 2001, we started Lake Ontario Waterkeeper to ensure that everyone who lives near Lake Ontario can safely swim, drink, and fish. We created an institution that will speak for our lake and ensure that everyone who does business in our watershed is following the rules. Over the years, we have laid charges, challenged bad decisions in court, and appealed to tribunals and commissions when we felt someone was trying to skirt the rules at the public’s expense.
One of the most odious projects we ever challenged was the Red Hill Creek Expressway, a highway built through Hamilton’s last remaining river valley 39-years after it was first proposed. The project was fraught with problems, including a blasting incident in which rocks rained down on people’s homes. The company responsible failed to report the incident to the government. Lake Ontario Waterkeeper and Environment Hamilton investigated, filed a brief with the Ontario government; the government laid charges and the company eventually pled guilty.
Just three years after that incident, a different company - Castonguay Blasting Ltd. - went to work widening an Ontario highway. In the process of dynamiting steep stone walls to widen Highway 7 in Marmora, the company launched fly-rock (literally, rock that flies through the air) onto residential property. The rock damaged a house and a car.
Once again, a company felt that it had no obligation to report the incident to the Ministry of the Environment. Again, the Ministry disagreed and took that company to court. This time, the company fought the charges all the way to the Supreme Court of Canada.
The Canadian Environmental Law Association and Lake Ontario Waterkeeper felt that this case was important, so we intervened in support of the Ministry of the Environment. Arguments were heard in May. This October, the Supreme Court of Canada ruled against Castonguay, putting an end to a six-year saga.
Here’s what you you need to know about the decision:
1. The decision affirms the purpose of environmental laws
The SCC calls Ontario’s Environmental Protection Act the province’s “principal environmental protection statute”. As such, says the court, the EPA is entitled to “generous interpretation” and a reach that is “wide and deep”. By saying this, the court shuts down those who have tried to argue over the last few years that environmental laws should be narrowed.
2. The decision underscores the province’s role in environmental protection
The SCC notes that government has unique “expertise and resources” that allow it to decide what “preventative or remedial measures are appropriate”. Not only that, the Court notes that the Ministry of the Environment has an obligation to investigate the discharge of a contaminant into the environment. In saying this, the Court underscores the importance of the Ministry of the Environment’s role in protecting Ontario’s environment.
3. The decision reminds industry to help government protect the environment
When there is an abnormal incident that might have an environmental impact, industry must report it to the Ministry of the Environment. The SCC writes that “the discharger may not know the full extent of the damage caused or likely to be caused.” That’s why, notes the court, “it is the Ministry, and not the discharger, who decides what, if any, further steps are required.”
“In other words: when in doubt, report.”
The Castonguay case comes at an important time. It’s been a tough few years for environmental law. Three national laws that offered Canadians some of their most valuable environmental protections were stripped and defanged - the Fisheries Act, the Canadian Environmental Assessment Act, and the Navigable Waters Protection Act. At the same time, the people responsible for giving meaning and force to the law (scientists and staff at places like the Department of Fisheries and Oceans) were systematically silenced, defunded, and fired. Provincially, government is shifting to a “self-regulation” process that means fewer officials looking out for you.
In the face of all these rollbacks, the Environmental Protection Act is more important than ever before. We’re honoured to have had an opportunity to be part of this historic case. Our counsel at CELA deserve much credit for their effort. And we thank our generous donors whose donations make our work possible.
