Berendsen v. Ontario

April 26, 2011 | Brian P. Kaliel

Bernard Berendsen, Maria Berendsen, and their children sued her Majesty the Queen in Right of Ontario for losses sustained by their dairy farm operations as a result of contamination of their water supply by toxic road fill.  The previous land owner had allowed the Ontario Minister of Transport (MTO) to bury the road fill on the farm.

In the 1960s, the MTO undertook roadwork at a highway intersection near the farm.

The previous owner of the farm gave the MTO permission to deposit a large amount of concrete and asphalt waste near the farm well. No information was given to the previous owner concerning what was in the waste. No release was signed or payment made to him.

The waste material was spread out and covered with a layer of gravel. The Berendsens purchased the farm in 1981 and converted it into a dairy operation. Their total investment in the farm, cattle, and equipment was about $550,000.

Within a year after taking possession serious problems emerged. There were unusual numbers of sick and dying cows, as well as low milk production. The Berendsens noticed the water had an oily smell. By 1988 they had stopped using the water for drinking. By 1989, Mr. Berendsen started hauling water for his cattle.

In 1989, Mr. Berendsen drilled a new well away from the buried materials, however, herd health problems continued.

In 1980, two veterinarians started monitoring the water intake of the cattle. The veterinarians concluded that the health problems and lack of milk production resulted from under consumption of water. They believed the cattle were not drinking the water because it was unpalatable. Corrective measures to filter the water were attempted without success.

In 1992, an independent environmental consultant conducted tests on both the waste materials and the water. He concluded that there were a number of “organic hazardous contaminants” in both the buried asphalt and the water. The contaminants included significant levels of benzo(a)pyrene, and dioxins and PCBs.

The MTO and the Minister of Environment were provided with the results, but refused to take remedial action. The Ontario Government took the position that the amount of chemicals detected in the water did not exceed “Ontario Drinking Water Objectives for Human Consumption”.

In 1994, theBerendsens moved to a different location, at which they eventually developed a successful dairy. The previous farm was abandoned, but had not been sold. The buried materials remain on the farm which was uninhabited and inoperable as a working farm.

A number of expert witnesses gave evidence at trial, including veterinarians with expertise in dairy herd health and production, veterinary pathologists, veterinary toxicologists, environmental toxicologists and hydrogeologists. The immediate cause of the health problems in the cattle was their unwillingness to drink enough of the contaminated water.

Madam Justice Seppi of the Superior Court of Justice held at trial that the Ontario Government was negligent and liable for damages of $1,732,000 for health, hardship and related losses sustained by the Berendsens. She found the Government negligent for both its initial careless disposal of toxic materials in the 1960s, as well as its subsequent careless investigation and its failure to remedy the problem once it was brought to its attention in the 1980s and 1990s.

The Government of Ontario appealed on the following grounds:

Causation: The Government challenged the trial judge’s finding that it materially contributed to the unpalatability of the well water provided to the cattle.

Duty of Care: The Government argued that the trial judge erred in finding that it had breached a standard of care because there was no evidence a reasonable person in the 1960s would have foreseen the risk of a deposit of waste material 60 feet away would contaminate a water well and cause harm to animals, and that it had no statutory duty to remove the waste material or remedy the contaminated well water in the 1980s and 1990s.

Laskin, J.A., Juriansz and Epstein, J.J.A. of the Ontario Court of Appeal allowed the appeal of the Ontario Government, set aside the decision of the trial judge, and dismissed the action.  Laskin, J.A. considered the following issues:

1. Did the Ontario Government owe the Berendsens a duty of care?

The Ontario Court of Appeal had previously granted summary judgment dismissing the Berendsens’ claim on the ground there was no duty of care, however the Supreme Court of Canada reversed this decision and stated:

…the disposal of waste asphalt on private land gives rise to a duty of care owed only to the landowner involved and possibly a few other individuals who could be impacted by the disposal.

This issue was not, therefore, in contention before the Court.

The Government did not challenge the trial judge’s finding that the Berendsens had sustained damages of approximately $1.7 million.

2. Causation

Laskin, J.A. reviewed the evidence with respect to causation in detail. Although Laskin J.A. was critical of a number of the trial judge’s findings, (in particular on the issue of whether or not the chemicals made the well water unpalatable to the Berendsens’ cows), he did not decide whether these concerns would warrant setting aside the factual finding of causation.

3. Was the standard of care breached with respect to the Government’s contamination of the land in the 1960s?

Laskin, J.A. observed that:

To succeed in showing a breach of the standard of care in this case, the Berendsens had to show that, back in the 1960s when Ontario deposited asphalt and concrete waste on the dairy farm, harm to the cattle from this buried waste material was a reasonably foreseeable risk. It is not necessary that the precise way the harm occurred be foreseen; but the risk of harm in a general way from drinking or not drinking the water had to be reasonably foreseeable to impose liability.

Laskin, J.A. concluded that there was no evidence to support the trial judge’s finding that the Ministry of Transport knew or ought to have known in the 1960s that dumping a large quantity of road bed waste near the site could potentially result in toxicity to the natural water supply to the farm. Neither common sense nor the statutory provisions in place at the time answered the question of whether this was reasonably foreseeable. No expert evidence was called by the Berendsens on this point, and Laskin, J.A. concluded that the cross-examination of the one Government witness who testified on this point did not establish reasonable foreseeability.

Laskin, J.A. also concluded that there was evidence to establish that this type of loss was not foreseeable in the 1960s, including the fact that the disposal of waste material was not regulated and was reasonably common at the time.  No guidelines for the disposal of toxic waste existed in the 1960s, and none of the witnesses could point to any studies or evidence which supported the proposition that it was understood, in the 1960s, that toxic materials could migrate or contaminate water or make it unfit for cattle. He concluded:

In the present case, I am not persuaded there is any evidence that the harm occurring to the Berendsens was reasonably foreseeable when Ontario deposited waste material on the dairy farm. Absent evidence, the trial judge’s finding that Ontario breached the standard of care was an error of law. Since Ontario did not breach the duty it owed to the Berendsens, the Berendsens’ negligence action must fail. Although this result may seem harsh in the light of what we now know about the environment, it is inappropriate to use our current knowledge to measure conduct occurring more than 30 years ago.

4. Did the Ontario Government breach its duty to investigate well water, and to remove the waste and remediate the contaminated well water?

Laskin, J.A. agreed that having made the policy decision to investigate whether the Berendsens’ well water was contaminated in the 1980s, the Ontario Government owed a duty to carry out the investigation properly relying on Kamloops (City) v. Nielsen.

The Ontario Government did not challenge the trial judge’s finding that its investigation was negligent, however it argued that nothing turned on the finding because it had no duty to remove waste material or remedy the well water. Laskin, J.A. agreed. Laskin, J.A. observed the investigation was conducted for the specific and limited purpose of determining whether it met the applicable water standards for human consumption — the Ontario Drinking Water Objectives. Testing showed that none of the chemicals in the water exceeded this standard. There were no standards at the time for water consumed by animals. Even if the investigation was negligent, there was no duty at the time to remove contaminants in excess of the existing standards for human consumption. He stated:

After in concluded that the Berendsens’ well water met the Objectives it was not required to spend more public money to go beyond the enforcement of its own standards. Therefore, Ontario cannot be held liable in damages for failing to remove the waste material or remedy the contaminated well water: see Kamloops.

An appeal to the Supreme Court of Canada was abandoned, and hence, the decision stands.


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