The Supreme Court of Canada website has recently posted that the Berendsen appeal (from the Ontario Court of Appeal) has been discontinued. A notice of discontinuance was filed by the Berendsens on January 24, 2011, just four days before the matter was to be argued before the court. The reason for the discontinuance, and the terms of any settlement, are confidential. As a result of the discontinuance, the Court of Appeal decision remains binding law in Ontario, establishing important principles of liability in historic pollution cases.

Seventeen years ago, the Berendsen family sued the Ontario government for negligently contaminating their Bruce County farm with asphalt road waste. The waste was buried there in the 1960s with the consent of the previous owner. The Plaintiffs alleged that the ultra-trace levels of polyaromatic hydrocarbons (PAHs) emanating from the buried waste contaminated their well water and made it “unpalatable” to their dairy cows, impacting the health of the cows and halving their milk production. In 2008, the trial judge agreed, awarding the Berendsens $2.4 million in damages against Ontario.

In 2009, the Ontario Court of Appeal overturned the trial decision, confirming a number of important principles for negligence law generally, and historic pollution cases in particular.

In early 2010, the Berendsens were granted leave to appeal to the Supreme Court.

As a result of the discontinuance, the decision of the Court of Appeal, which ruled in favour of the Province of Ontario, stands unchallenged and remains binding law in Ontario. The court made critical rulings in three key areas: causation, standard of care (foreseeability) and negligent inspection/failure to order remediation.

On causation, although the Court of Appeal did not find it necessary to reverse the trial decision on this issue, it was nevertheless highly critical of the trial decision, strongly suggesting that in historic pollution cases cause and effect cannot simply be assumed, but must be clearly proven with solid factual and expert evidence.

On standard of care, the Court of Appeal reaffirmed the principle that foreseeability of harm is a crucial component of a breach of the standard of care. Thus, to establish liability for historic pollution based upon negligence, a plaintiff must prove that on the date the defendant deposited or discharged the contamination it was reasonably foreseeable to the defendant that doing so would harm future owners such as the plaintiff.

On the subject of negligent inspection and failure by the government to order remediation, the court noted that even where the Crown assumes a private law duty to investigate, as here, breach of that duty to investigate in no way implies a breach of a duty to remediate. Moreover, there can be no duty of care on the government to order remediation, because the power of the Ministry to issue such orders “is discretionary, not mandatory.”

For a more detailed review of the Court of Appeal decision, visit Osler Update, December 2, 2009, Appeal Court Overturns Trial Decision in Berendsen, Confirming Foreseeability Required for Historic Contamination Lawsuit.