Judge awards more than $1.7 million in Teviotdale dairy lawsuit

Thursday, January 24, 2008

by DON STONEMAN

When Ben and Maria Berendsen bought their farm east of Teviotdale in 1981 the immigrants from Holland were fulfilling their dream of dairying in Canada.

Their dream turned into a nightmare of low milk production, sick and dying cows, financial woes, personal health problems and accusations that they weren't good farmers.

No one had told them that their farm had been a dumpsite for highway construction waste during the 1960s. The buried materials were located 18 to 20 metres from their well.

The Berendsens and their three adult children received some vindication when Ontario Superior Court Judge Silja Sepi ruled in their favour last week.

In a Jan. 18 judgement Sepi ordered the provincial Ministry of Transportation (MTO) to pay the couple and their three adult children more than $1.7 million.

"I'm excited for the Berendsens," says Richard Lindgren, legal counsel from the Canadian Environmental Law Association, which represented the farmers. "I'm excited at the prospect that this long legal ordeal may be over."

Lundgren says the court rejected the arguments by the Crown "that all of this was caused by Mr. Berendsen's incompetence as a dairy farmer and it did say that the government itself was negligent in its handling and investigation of the whole matter."

In her 168-page judgement, Sepi referred to the "unsubstantiated accusation about Berendsen's poor farm management."

The judge described Ontario Ministry of the Environment tests on the Berendsen's water as "unreliable."

"Errors and omissions were ignored and incomplete reports were filed away without ever retesting to obtain reliable results," the judge wrote. Furthermore, the tests weren't capable of detecting the chemicals that a private consultant hired by Berendsen found in the water.

In 1994 the Berendsens abandoned the Teviotdale farm and moved to Bruce County to resume dairying.

"On all the evidence it is obvious that the dairy herd health problems experienced at the Teviotdale farm no longer exist at the Berendsen farm at Chepstow."

The Berendsens received $1,161,400 for business loss, $385,000 for loss of farm value, total general damages of $150,000 and $36,000 for special damages. The judge rejected a punitive damages claim of $500,000.

"As MTO's legal team is reviewing the decision it is not appropriate to comment at this time," said Bob Nichols, media liaison officer for the ministry.

The judgment is posted on the Internet at: http://www.canlii.org

"The farm remains vacant and abandoned," the judgment says. BF