Legal Research

Hard cases, maybe good law

By David Cheifetz

Some substantive law both because of what happened and because it may give some people cause to think about the consequences of our past action on our environment.

If the decision stands – I expect  the plaintiffs will try to get leave to appeal to the Supreme Court of Canada given the amount involved: more than $1.7 million plus interest plus legal fees – it’s proof that the courts aren’t the answer to all problems.

I’ve set out  all that’s needed to understand what the problem was, and the end result.

Berendsen v. Ontario, 2009 ONCA 845

http://www.ontariocourts.on.ca/decisions/2009/december/2009ONCA0845.htm

[1]              In the mid-1960s, the Ontario Ministry of Transportation deposited asphalt and concrete waste from a highway reconstruction project on a nearby dairy farm.  It did so with the farm owner?s consent.

[2]              In 1981, the respondents, Bernard and Maria Berendsen, purchased the dairy farm.  Soon after their purchase, the Berendsens? cows began to suffer serious health problems and to produce an unusually low quantity of milk.  The immediate cause of these health and poor production problems was the cows? unwillingness to drink enough water.  However, the Berendsens claimed that the root cause was Ontario?s deposit of waste material on their farm.  They alleged that harmful chemicals in the waste material migrated to the wells on their property, thereby contaminating the well water and making it unpalatable for the cows.  Although testing showed that the chemicals in the well water did not exceed the limits under the Ontario Drinking Water Objectives for human consumption, the Berendsens maintained that the water was unfit for their cows.

[3]              In 1994, nearly 30 years after the act they complain about occurred, the Berendsen family sued Ontario in negligence for depositing the waste and then failing to remove the contamination.  In a lengthy judgment, after a five-week trial, Seppi J. found in favour of the Berendsens on both branches of their claim.  She awarded damages of $1,732,400 plus pre-judgment interest at six per cent annually and costs of $655,000.

[4]              On its appeal, Ontario accepts that it owed a duty of care to the Berendsens but submits that the trial judge erred in her finding of negligence.  It puts forward two arguments in support of this submission.  First, it contends that the trial judge?s finding on causation ? that the waste deposit materially contributed to the unpalatability of the well water ? was tainted by palpable and overriding errors and was unreasonable.  Second, Ontario contends that the trial judge erred in law in finding that it breached the standard of care because there was no evidence a reasonable person in the 1960s would have foreseen the risk a deposit of waste material 60 feet away would contaminate the well water and cause harm to animals.

[5]              Finally, Ontario attacks the trial judge?s finding that it had a duty in the 1980s and 1990s to eliminate the harmful effects of the buried waste material and that it breached this duty.  Ontario contends that it had no statutory duty to remove the waste material or remedy the contaminated well water.

….

[85]         I would allow Ontario?s appeal, set aside the judgment at trial and dismiss the action.  In my view, Ontario was not negligent when it deposited waste material on the farm in the 1960s.  Because the risk of harm was not then reasonably foreseeable, Ontario did not breach the standard of care.

[86]         Nor did Ontario have a duty in the 1980s or 1990s to eliminate the waste material and remediate the Berendsens? well water.  No duty existed under the Ontario legislative regime protecting our environment.  And Ontario was justified in not taking further action when both its investigation and the investigation conducted for the Berendsens showed that no chemicals in the Berendsens? well water exceeded the allowable provincial drinking standards.

Full post as published by Slaw.ca on December 02, 2009 (boomark / email).