Canadian courts have long acknowledged that the field of environmental law falls within a family of statutes and regulations known as public welfare offences, which includes occupational health and safety (OH&S), consumer protection and ecological conservation legislation. Legislative overlap can and does occur, such as with environmental and OH&S legislation.
The recent Ontario Court of Appeal case of R. v. Dow Chemical Canada Inc. provides some clarity. The case arose out of an incident that occurred in November 1991 at Dow’s chemical manufacturing complex in Sarnia, Ontario when an uncontrolled emission of chlorine gas occurred in a section of the plant where a Dow employee was working on the roof. The gas enveloped the employee, blinding and choking him. After stumbling and falling he was able to escape the gas cloud and seek first aid. He was hospitalized overnight for his injuries. Dow complied with the Ontario Occupational Health and Safety Act (OHSA) the next day by completing and keeping a record of the injury. No charges were laid under the OHSA.
The crux of the matter was that having complied with its obligations under the OHSA Dow believed that it was not required to file a report of the chlorine emission pursuant to the Ontario Environmental Protection Act (EPA). The Court of Appeal reviewed two primary issues in order to resolve the matter. The first was whether the discharge of the chlorine constituted a violation of the EPA, and if so, whether Dow’s compliance with the OHSA meant that it did not have to comply with the EPA.
The Court found that the EPA had been violated by the discharge of chlorine gas. The effect of this finding was to overturn the earlier appeal decision on the matter by a lower Court. (The lower Court found that the effects of the chlorine on the employee did not fall within the jurisdiction of the EPA.) This finding is significant.
The Court then considered Dow’s position that the EPA did not apply where the discharge of a contaminant into the natural environment gives rise to an adverse effect limited to a worker in the workplace. Dow’s belief was that in such a situation the OHSA applies exclusively and it also argued that the application of the two legislative regimes created conflict that was not permitted.
The Court of Appeal disagreed with Dow and found that there was no conflict between the EPA and the OHSA. In fact, the Court went further to say that this is a clear example of laws that overlap in an entirely appropriate manner. The purpose of the EPA is to protect the natural environment and the people who live, work and play in it. The purpose of the OHSA is to protect the workplace and workers.
There are many conceivable situations where both statutes would be applicable. Many waste management operations have neighbours who could be affected by releases of materials such as chemical gases (i.e., from a hazardous waste treatment facility) and less dangerous substances such as landfill gas. In these cases, OHSA clearly has an effect where workers are involved and the EPA has an effect where neighbours might be impacted.
In order to separate the effect of the EPA and the OHSA an onsite/offsite distinction would have to be accepted, with offsite impacts dealt with by the EPA and onsite impacts dealt with by the OHSA. In rejecting this approach, the Court stated that “an incident with only onsite effects today can become one with offsite effects tomorrow.”
The decision of the Ontario Court of Appeal is not binding outside Ontario. However, in provinces with similar legislative regimes this case will have persuasive value and may be considered by courts in those provinces.
In an unusual acknowledgement of the commercial implications of its decision, the Court of Appeal stated that this case would create some uncertainty for companies and municipalities whose operations are likely to be subject to environmental regulation and health and safety laws (as most waste management operations are). However, the purposes of the EPA are important and cannot be read to exclude it from application at work sites.
The result is that facility managers will have to exercise judgment when faced with incidents that could involve both regulatory regimes. Sometimes they will not have to report an incident under both, sometimes not. There are no easy answers and incidents must be examined on a case-by-case basis.