The Supreme Court of Canada website has
recently posted that the Berendsen appeal (from the
Ontario Court of Appeal) has been discontinued. A notice of
discontinuance was filed by the Berendsens on January 24, 2011,
just four days before the matter was to be argued before the
court. The reason for the discontinuance, and the terms of
any settlement, are confidential. As a result of the
discontinuance, the Court of Appeal decision remains binding law in
Ontario, establishing important principles of liability in historic
Seventeen years ago, the Berendsen family sued the Ontario
government for negligently contaminating their Bruce County farm
with asphalt road waste. The waste was buried there in the
1960s with the consent of the previous owner. The Plaintiffs
alleged that the ultra-trace levels of polyaromatic hydrocarbons
(PAHs) emanating from the buried waste contaminated their well
water and made it "unpalatable" to their dairy cows,
impacting the health of the cows and halving their milk
production. In 2008, the trial judge agreed, awarding the
Berendsens $2.4 million in damages against Ontario.
In 2009, the Ontario Court of Appeal overturned the trial
decision, confirming a number of important principles for
negligence law generally, and historic pollution cases in
In early 2010, the Berendsens were granted leave to appeal to
the Supreme Court.
As a result of the discontinuance, the decision of the Court of
Appeal, which ruled in favour of the Province of Ontario, stands
unchallenged and remains binding law in Ontario. The court
made critical rulings in three key areas: causation, standard of
care (foreseeability) and negligent inspection/failure to order
On causation, although the Court of Appeal did not find it
necessary to reverse the trial decision on this issue, it was
nevertheless highly critical of the trial decision, strongly
suggesting that in historic pollution cases cause and effect cannot
simply be assumed, but must be clearly proven with solid factual
and expert evidence.
On standard of care, the Court of Appeal reaffirmed the
principle that foreseeability of harm is a crucial component of a
breach of the standard of care. Thus, to establish liability
for historic pollution based upon negligence, a plaintiff must
prove that on the date the defendant deposited or discharged the
contamination it was reasonably foreseeable to the defendant that
doing so would harm future owners such as the plaintiff.
On the subject of negligent inspection and failure by the
government to order remediation, the court noted that even where
the Crown assumes a private law duty to investigate, as here,
breach of that duty to investigate in no way implies a breach of a
duty to remediate. Moreover, there can be no duty of care on
the government to order remediation, because the power of the
Ministry to issue such orders "is discretionary, not
Jack Coop specializes in all aspects of
environmental litigation: civil actions, prosecutions, class
actions, administrative hearings, and judicial review applications,
including advice work on how to avoid such litigation and
successfully deal with regulators
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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