In Berendsen v Ontario, the Ontario Court of Appeal recently overturned the trial judge’s finding of negligence against the province for depositing construction waste on agricultural property in the 1960s. At trial, the Berendsens had been awarded $1,732,400 in damages and $655,000 in prejudgment interest.

The Ontario Ministry of Transportation deposited the waste on the dairy farm with the former owner’s consent. New owners purchased the farm in 1981 unaware of the buried waste. Shortly after, their cows began to suffer serious health effects and produced little milk.

The Berendsens complained to the Ontario government. In late 1990, Ontario paid for an underground water storage tank and trucked potable water. However, tests of the Berendsens’ wells failed to disclose exceedences of Ontario’s Drinking Water Objectives for human consumption and the province discontinued the water supply.

Ontario conceded that it owed the Berendsens a duty of care. The principal issues on appeal were causation and whether Ontario had breached the standard of care.

Although the Court of Appeal questioned the trial judge’s findings with respect to causation, it did not hold that factual findings should be set aside because it concluded that Ontario did not breach the standard of care. The Court of Appeal explained that the Berendsens could not succeed unless they were able to demonstrate that the harm to the cattle was a foreseeable risk of depositing the concrete waste in the 1960s. The court found insufficient evidence that the harm was foreseeable at the time that the waste was deposited. None of the Berendsens’ experts testified about the known or likely effects of buried waste in the 1960s. Moreover, there was evidence suggesting the risk of harm was not known. The general prohibition against depositing material that may impair the quality of water contained in the then Ontario Water Resources Commission Act was not sufficient to establish the foreseeability of that particular harm.

The Court also rejected the trial judge’s finding of an obligation to remediate in the 1980s or 1990s, since there were no exceedences of applicable standards. There was no legal requirement for Ontario to surpass its own Water Quality Objectives. Further, there was no legislative basis for requiring the removal of material, where the water quality did not exceed allowable limits.