Berendsen decision overturned by Ontario Court of Appeal

The Ontario Court of Appeal has overturned an award of damages of more than $1.7 million (plus costs of $655,000) to a farm family who claimed that the province of Ontario was liable for the contamination of their well water and the resulting health problems and under-production of their dairy herd. After a five-week trial, the Ontario Superior Court of Justice had ruled that Ontario was liable for the damage as a result of having dumped asphalt from a road project on the Berendsen farm in the 1960's. The Court of Appeal disagreed.

The Berendsens did not purchase the property until 1981. The previous owners of the farm had consented to the dumping by the province. On appeal, Ontario did not take issue with the trial judge's finding that damages were suffered or with the amount of her award. Instead, Ontario contended that it was not the cause of the damage and, in any event, had acted in accordance with the standard of care required (conduct will breach the standard of care, i.e. will be negligent, if it creates an unreasonable risk of harm).

The Court of Appeal found that for Ontario to have been negligent and liable for the damages alleged, the Berendsens needed to have shown that the risk of damage to their cattle was a reasonably forseeable consequence of the deposit of the asphalt on the farm in the 1960's. The Court noted that the risk of harm must be seen through the lens of public understanding of toxicity and contamination in the 1960's, not our understanding of the risk today. The Berendsens were unable to put forward evidence that the risk was forseeable in the 1960's.

What comes next is a decision on costs. The Court of Appeal will need to decide on the costs of the appeal and on what to do with the $655,000 in costs that was awarded to the Berendsens.

Read the Court of Appeal's decision at:

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