In Berendsen v. Ontario, the Ontario Court of Appeal
recently overturned the trial judge's finding of negligence
against the province for depositing construction waste on
agricultural property in the 1960s. At trial, the Berendsens had
been awarded $1,732,400 in damages and $655,000 in prejudgment
The Ontario Ministry of Transportation deposited the waste on
the dairy farm with the former owner's consent. New owners
purchased the farm in 1981 unaware of the buried waste. Shortly
after, their cows began to suffer serious health effects and
produced little milk.
The Berendsens complained to the Ontario government. In late
1990, Ontario paid for an underground water storage tank and
trucked potable water. However, tests of the Berendsens' wells
failed to disclose exceedences of Ontario's Drinking Water
Objectives for human consumption and the province discontinued the
Ontario conceded that it owed the Berendsens a duty of care. The
principal issues on appeal were causation and whether Ontario had
breached the standard of care.
Although the Court of Appeal questioned the trial judge's
findings with respect to causation, it did not hold that factual
findings should be set aside because it concluded that Ontario did
not breach the standard of care. The Court of Appeal explained that
the Berendsens could not succeed unless they were able to
demonstrate that the harm to the cattle was a foreseeable risk of
depositing the concrete waste in the 1960s. The court found
insufficient evidence that the harm was foreseeable at the time
that the waste was deposited. None of the Berendsens' experts
testified about the known or likely effects of buried waste in the
1960s. Moreover, there was evidence suggesting the risk of harm was
not known. The general prohibition against depositing material that
may impair the quality of water contained in the then Ontario
Water Resources Commission Act was not sufficient to establish
the foreseeability of that particular harm.
The Court also rejected the trial judge's finding of an
obligation to remediate in the 1980s or 1990s, since there were no
exceedences of applicable standards. There was no legal requirement
for Ontario to surpass its own Water Quality Objectives. Further,
there was no legislative basis for requiring the removal of
material, where the water quality did not exceed allowable
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Ontario's Ministry of the Environment and Climate Change continues to roll out its Climate Change Action Plan with its proposed GHG guide for projects that are subject to the province's Environmental Assessment Act.
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