Court of Appeal overturns Berendsen

The Ontario Court of Appeal has overturned the groundbreaking Berendsen decision on provincial liability for contaminated sites. Berendsen is a dairy farmer who bought a farm where, in the 1960’s, the province had dumped road waste (asphalt and concrete). As a result, his cows wouldn’t drink enough water and didn’t thrive. In the 1980s, the Ministry of the Environment did a negligent investigation, and decided to take no action because the site didn’t exceed MOE drinking water standards for humans.
Last year, after a 15 year legal battle, Judge Seppi ordered the province to pay Berendsen more than $1.7 million in damages and $655,000 in legal costs, for its negligence in both time periods. She was very critical of the Ministry’s experts and standards, and they returned the favour.
Unsurprisingly, the Court of Appeal has unanimously overturned the award:

[85] I would allow Ontario’s appeal, set aside the judgment at trial and dismiss the action. In my view, Ontario was not negligence when it deposited waste materials on the farm in the 1960s. Because the risk of harm was not then reasonably foreseeable, Ontario did not breach the standard of care.

Burying road waste on farms was common in the 1960’s, and no one then expected it to poison drinking water.

[86] Nor did Ontario have a duty in the 1980s or 1990s to eliminate the waste material and remediate the Berendsens’ well water. No duty existed under the Ontario legislative regime protecting our environment. And Ontario was justified in not taking further action when both its investigation and investigation conducted for the Berendsens showed that no chemicals in the Berendsens’ well water exceeded the allowable provincial drinking standards.

The decision will be devastating for the Berendsens, who may have to pay the province’s legal costs on top of all their other losses. It will also rub uncomfortably with the Ministry’s practice of imposing pollution liability retroactively on companies, individuals and municipalities who also had no reason to foresee environmental harm. It is hardly fair for the government to give itself special exemptions from the rules it imposes on everyone else.

More generally, the most lasting impact of this case may be Judge Seppi’s trenchant criticism of the MOE’s standard-setting process, and particularly its failure to consider either cumulative effects or the special sensitivities of species such as cattle. While the Appeal Court was quizzical about Judge Seppi’s language, they did not disturb her findings of fact. And regardless of the MOE’s win in the Berendsen case, the adequacy of MOE standards will still have to be addressed.