Supreme Court of Canada has granted leave to appeal in Berendsen farm contamination case

In the mid-1960s, the Ontario Ministry of Transportation buried asphalt and concrete waste from a highway reconstruction project in an unlined pit on a nearby dairy farm with the owner’s consent. The Berendsens, experienced dairy farmers, purchased the farm in 1981. Shortly thereafter, their cows began to suffer serious health problems, to have a high cull rate, and to produce an unusually low quantity of milk. The immediate cause of the problems was the cows’ unwillingness to drink enough water, but the Berendsens claimed that the waste was the root cause. They alleged that chemicals in the waste had migrated to their well, contaminating the water and making it unpalatable for the cows. Testing showed that the chemicals in the water from the well did not exceed the Ontario Drinking Water Objectives, which set the levels allowed for human consumption. A new well 400 feet from the burial site was also rejected by the herd. When the Berendsens complained to the Ontario government, it arranged for an alternate water source. The herd’s water intake, milk production increased, and overall health improved. Meanwhile, the Ministry of the Environment did some water quality testing of the water in the wells, the barn troughs and the ditch, from which it concluded that the water met the Ontario Drinking Water Objectives and that it was not responsible for the problems. It stopped providing alternate water. The Berendsens sued Ontario in negligence for depositing the waste and then failing to remove the contamination. The trial judge allowed the action and awarded damages of $1,732,400 plus pre‑judgment interest and costs. The Court of Appeal allowed the appeal, set aside the trial judgment and dismissed the action.

The Supreme Court of Canada has granted leave to the Berendsens to appeal the decision of the Ontario Court of Appeal, with costs of the leave application in the cause (i.e. the issue of the costs of the leave to appeal application will be left until the appeal is actually decided by the court).  The hearing date for the appeal has not been set.