Farm couple takes waste dispute to a higher court

Wednesday, April 14, 2010

by SUSAN MANN

Dairy farmers Ben and Maria Berendsen are continuing their fight against the Ontario government for negligence in contaminating their Teviotdale-area farm with buried highway reconstruction waste almost 40 years ago.

The Berendsens filed a leave to appeal with the Supreme Court of Canada in March. In December 2009 an Ontario Appeal Court sided with the province and dismissed a Superior Court of Justice judgment from 2008 that awarded the Berendsens more than $1.7 million for the province’s negligence in contaminating the farm and then failing to remove the waste.

Their lawyers, Richard Lindgren of the Canadian Environmental Law Association and Donald Good, could not be immediately reached for comment.

The Berendsens bought the Teviotdale farm in 1981 but didn’t know the province’s transportation ministry dumped asphalt and concrete from a highway reconstruction project there in the mid-1960s. The waste was dumped and buried with the previous owner’s consent. The Berendsens first learned about it in 1989.

Soon after they bought the farm in 1981, the Berendsens cows began to suffer serious health problems and they produced an unusually low quantity of milk. Their cull rate doubled and their milk production dropped in half. They determined that harmful chemicals from the buried highway waste contaminated their well water making it unpalatable for the cows.

The couple still owns the 190-acre farm but moved to another farm in Chepstow in late 1994.

In their unanimous decision, the three Appeal Court justices determined Ontario wasn’t negligent when it deposited waste material on the farm because the risk of harm wasn’t then reasonably foreseeable. They also determined that the province didn’t have a duty in the 1980s or 1990s to eliminate the waste material and remediate the Berendsens’ well water because there was no duty described under Ontario's legislative regime protecting our environment at that time.

The justices said in their December written ruling that the Superior Court of Justice trial judge erred in finding Ontario liable for failing to remove the waste material buried on the Berendsens farm and for failing to remediate the contamination. BF