Berendsen case settles just days before Supreme Court of Canada hearing

The case by Ben Berendsen, a Bruce County dairy farmer, against Ontario's Ministry of Transportation (MTO) has settled after 17 years of litigation.  In 2008, the Ontario Superior Court of Justice awarded Berendsen $1.7 million in damages related to the effects of contamination left on his farm property by the MTO during a road construction in the 1960's.  In 2009, the damages award was set aside by the Court of Appeal.  Now comes word that the case has been settled as between Berendsen and the MTO.  The hearing before the Supreme Court was to take place yesterday, January 28.  The appeal has now been discontinued. 

Better Farming has reported on the settlement, though it appears that there must be a confidentiality agreement in place: Books shut on Berendsen case.  Neither Berendsen nor the MTO were willing to say much about it.

Tentative date set for Supreme Court of Canada hearing in Berendsen contamination case

The Supreme Court of Canada has tentatively scheduled a hearing in the Berendsen v. MTO appeal for January 28, 2011 at 9:30 a.m.

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.

Berendsen seeking leave to appeal to Supreme Court of Canada

In January, I reported on a decision by the Ontario Court of Appeal overturning a decision in favour of a farm family worth over $2.3 million.  At issue in the case was whether the Ontario government was liable for damages resulting from its deposit of asphalt on a dairy farm in the 1960's during highway construction.  The Court of Appeal ruled that the damages alleged were not reasonably foreseeable and were not recoverable.  My original post is at: Berendsen decision overturned by Ontario Court of Appeal.

The Berendsens are now seeking leave to appeal this decision to the Supreme Court of Canada.  Reply submissions were filed on March 8, so the next step will be the Supreme Court's decision on whether or not to allow the appeal to be heard. 

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