On December 1, 2009 the Ontario Court of Appeal released its decision in the case of Berendsen v. Ontario, overturning the 2008 trial decision that had awarded more than $1.7 million dollars in damages against the Province of Ontario for burying road waste (asphalt and concrete) under the plaintiffs farmland in the 1960s, thereby causing the contamination of their well water and the resulting health problems and under-production of their dairy herd.

The Berendsens’ purchased the dairy farm in 1981. Soon after their purchase, the Berendsens’ cows began to suffer serious health problems and to produce an unusually low quantity of milk. In 1994, the Berendsens’ sued the Province of Ontario, through the Ministry of Transportation, in negligence for depositing the waste and then failing to remove the contamination. This, they alleged, resulted in harmful chemicals from the waste migrating to the wells on their property, thereby contaminating the well water and making it unpalatable for the cows.

After a 15-year legal battle, including a five-week trial, the trial judge found in favour of the Berendsens on both branches of their claim, finding that the Province of Ontario had breached the “standard of care” owed to the Berendsens’ by negligently depositing and then failing to remove the waste. The Court of Appeal disagreed.

The Court of Appeal found that for the Berendsens’ to succeed in showing that the Province had breached the “standard of care” owed to the Berendsens’ and therefore being found to be negligent for the deposit of the waste onto their property, the Berendsens had to show that, back in the 1960s when the Province deposited the asphalt and concrete waste on the dairy farm, harm to the cattle from this buried waste was a “reasonably foreseeable” risk. In this respect, the Court of Appeal emphasized that the “foreseeability of harm” had to be assessed from when the conduct in issue occurred, being the 1960s, and not from the present day when much more about the risks of toxicity from waste material is known. The Berendsens were unable to put forward evidence that the risk was forseeable in the 1960's. Indeed, the Court of Appeal found there was considerable evidence considerable evidence “going the other way – suggesting that harm to the Berendsens’ well water and to its herd from the deposit of waste materials was not foreseeable in the 1960s.”

The Court of Appeal decision confirms what was assumed to be the status of the law prior to the 2008 trial decision, being that courts must assess “foreseeability of harm” based upon evidence of what was “reasonably foreseeable” at the point in time the contamination is discharged or deposited, rather than what may be foreseeable today.

The Court of Appeal’s decision can be viewed at:

http://www.canlii.org/en/on/onca/doc/2009/2009onca845/2009onca845.html