Patrick G. Welsh, Jennifer Fairfax, Daniel Kirby, Jack Coop, Joshua Krusell
Mar 27, 2013
In February 2013, Justice Green of the Ontario Court of Justice held that sunlight reflected from a building can be considered a contaminant under the Ontario Environmental Protection Act (EPA). Justice Green’s ruling, while surprising, appears to be consistent with other recent Ontario court decisions that have recognized unconventional “contaminants” under the broad definition contained in the EPA. This decision also highlights the importance of harm reduction efforts on the part of businesses in order to establish a due diligence defence for environmental offences.
In Podolsky v. Cadillac Fairview Corp. (Cadillac Fairview) 2013 ONCJ 65 (click here for decision), the plaintiff Podolsky, acting as a nominal plaintiff on behalf of the environmental advocacy group Ecojustice, brought a private prosecution against the defendants, who were the owners and managers of the Yonge Corporate Centre (YCC), a complex of office buildings in northern Toronto. The plaintiff alleged that the defendants were guilty of certain regulatory offences under the Ontario Society for the Prevention of Cruelty to Animals Act (OSPCAA), the EPA and the federal Species at Risk Act (SARA) relating to a series of deaths of migratory birds when they flew into windows at the YCC. The plaintiff maintained that the reflective glass of the windows, in combination with the park-like setting at the YCC, caused or substantially contributed to, a significant number of bird-strike deaths in 2010.
The Court dismissed the plaintiff’s charges under OPSCAA. Although the Court held that the defendants had committed the environmental offences under section 14 of the EPA and section 32(1) of SARA, it ultimately dismissed these charges as well on the basis that the defendants had made out a defence of due diligence.
Section 14 of the EPA prohibits the discharge of a contaminant into the natural environment if that discharge causes an adverse effect. The Court accepted the explanation of a scientific expert that sunlight reflected from the YCC’s windows could be considered an “emission” of “radiation” and thus would fall within the statutory definition of a contaminant under the EPA. Therefore, the Court found that the defendants had discharged a contaminant – reflected light – that caused an adverse effect, namely the bird deaths.
Similarly, the Court accepted that the unintentional and inadvertent bird collisions at the YCC were sufficient to ground the defendants’ liability for “killing” or “harming” an endangered or threatened species, which is prohibited under section 32(1) of SARA.
Having found that the defendants had committed the EPA and SARA offences, the Court considered whether the defendants could prove that they exercised sufficient due diligence and reasonable care to establish a lack of fault. The Court accepted that the defendants had exercised sufficient due diligence by complying with municipal building and industry standards; implementing and maintaining a policy to respond to nocturnal light pollution; cooperating with environmental advocacy groups in bird-strike tagging programs; and conducting test installations of window treatments designed to deter bird strikes. The Court noted that the problems faced by the YCC were complex and site-specific, and that there were no “quick-fix solutions.”
This decision, particularly the Court’s willingness to recognize reflected sunlight as a contaminant, is surprising. However, the Ontario Court of Appeal recently recognized in Ontario v. Castonguay Blasting that fly-rock discharged during a blasting mishap could be considered a “contaminant” under the EPA. Ontario courts increasingly appear willing to interpret the EPA in a literal, as opposed to a purposive, fashion: the courts in Castonguay Blasting and in Cadillac Fairview considered “rock” and “reflected sunlight” to be “contaminants” under the EPA because the broad language in the EPA seemingly allowed for such an interpretation. The Supreme Court of Canada will hear Castonguay Blasting’s appeal in May 2013, and it is expected that this ruling will provide more insight into how courts should interpret the EPA.
Additionally, this decision is a helpful reminder to businesses that efforts aimed at reducing a business’s impact on the environment are not only socially responsible but also legally prudent. Cadillac Fairview’s efforts, even when unsuccessful, were sufficient to establish a due diligence defence against these private prosecutions.
Ultimately, it is unclear what precedential value Cadillac Fairview will have. The Court itself recognized that “this case is close to unique.” Furthermore, because of the split decision – a finding that the defendants committed the offences but were found not guilty due to their due diligence – it is unlikely that either party will appeal this decision. As a result, Justice Green’s finding that reflected sunlight can be a contaminant under the EPA will likely remain “on the books”. It is hoped that the Supreme Court of Canada will provide further clarification on the reach of the EPA when it rules on Castonguay Blasting.