Appeal Court overturns asphalt dump decision against province

Wednesday, December 2, 2009

by SUSAN MANN

Ben and Maria Berendsen haven’t decided yet if they’ll appeal their case to the Supreme Court of Canada after an Ontario Appeal Court rescinded a $1.7 million judgment this week, ruling the province wasn’t negligent for dumping construction waste on their dairy farm almost 40 years ago.

Reached at his farm in Chepstow this morning, Ben Berendsen says he and his wife plan to discuss the decision with their lawyers. He declined further comment on the Ontario Court of Appeal’s judgment.

The Berendsens were represented in the case by Ottawa lawyer Donald Good and Richard Lindgren, Canadian Environmental Law Association, Toronto.

Ontario Court of Appeal Justice John Laskin wrote in the unanimous decision released Dec. 1 that Justice Silja S. Seppi, Ontario Superior Court of Justice, erred in his January 2008 finding that the province was liable for failing to remove the waste material buried on the Berendsens’ farm over 40 years ago “and for failing to remediate the contamination.”

Laskin’s ruling said: “no duty existed under the Ontario legislative regime protecting our environment.”

In the written decision, Justice Laskin says Ontario wasn’t negligent when in deposited the waste material on the farm in the mid-1960s. “Because the risk of harm was not then reasonably foreseeable, Ontario did not breach the standard of care.”

The Berendsens’ bought the dairy farm in 1981, not knowing waste from a highway reconstruction project  was buried six to eight feet deep in a low spot on the farm and covered with gravel by Ontario’s Transportation Ministry. The waste was buried with the farm owner’s consent..

Soon after they bought the Teviotdale farm the Berendsens’ cows began to suffer serious health problems. The herd cull rate was double what it should have been and milk production was half. Contamination from the waste material made the well water unpalatable for the cows and caused the health problems and poor production.

The Berendsens still own the farm but gave up farming there in 1994 and moved to a farm near Chepstow in Bruce County.

The province was justified in not taking further action when “both its investigator and the investigation conducted for the Berendsens showed that no chemicals in the Berendsens well water exceeded the allowable provincial drinking standards,” Justice Laskin wrote.

At the time, it was common to use asphalt waste on rural properties, Justice Laskin wrote in the decision. BF