Berendsen v. Ontario, (2001) 150 O.A.C. 270 (SCC)

• Judge: L'Heureux-Dubé, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ.
• Court: Supreme Court (Canada)
• Case Date: April 23, 2001
• Jurisdiction: Canada (Federal)
• Citations: (2001), 150 O.A.C. 270 (SCC);2001 SCC 55;275 NR 175;150 OAC 270;[2001] 2 SCR 849;204 DLR (4th) 318;[2001] SCJ No 57 (QL)

Berendsen v. Ont. (2001), 150 O.A.C. 270 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2001] O.A.C. TBEd. SE.045

Bernard Gerardus Maria Berendsen, Maria Bernardina Helena Berendsen, Yvonne Berendsen, Mary Berendsen and the infant Wilbert Berendsen by his litigation guardian Maria Bernardina Helena Berendsen (appellants) v. Her Majesty the Queen in Right of Ontario (respondent)

(27312; 2001 SCC 55)

Indexed As: Berendsen v. Ontario

Supreme Court of Canada

L'Heureux-Dubé, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ.

September 27, 2001.

Summary:

In the 1960's the Ontario Department of Highways, during highway construction, deposited and buried a substantial quantity of waste asphalt on nearby farm land. The plaintiffs purchased the farm land in 1981 unaware of the asphalt. The plaintiffs operated a dairy farm on the land, but experienced a number of operational difficulties throughout the 1980's, including cattle and chicken deaths, deformed calves and low milk production. The plaintiffs also suffered a number of health problems. The plaintiffs learned about the buried asphalt in 1989. In 1994 the plaintiffs commenced proceedings against the Province of Ontario regarding the buried asphalt. The province moved for summary judgment to dismiss the action, arguing that the action was barred by the six month limitation period set out in s. 7(1) of the Public Authorities Protection Act.

The Ontario Court (General Division) granted summary judgment dismissing the action, holding that s. 7(1) applied. The plaintiffs appealed.

The Ontario Court of Appeal in a brief endorsement dismissed the appeal (see paragraph 9). The plaintiffs appealed.

The Supreme Court of Canada allowed the appeal. The court held that the six month limitation period in s. 7(1) did not apply, rather the six year limitation period in s. 45(1)(g) was applicable. Since the asphalt was first discovered by the plaintiffs in 1989 and the action was commenced in 1994, the action was commenced within the six year limitation period.

Limitation of Actions - Topic 7584

Actions against the Crown - Applicability of limitation period - Exercise of statutory or other public duty - During highway construction in the 1960's the Ontario Department of Highways buried waste asphalt on nearby farm land - The plaintiffs, who purchased the farm land in 1981, discovered the asphalt in 1989 - In 1994, the plaintiffs sued the Province of Ontario, alleging health problems (both animal and human) from water contamination - The Province relied on the six month limitation period in s. 7(1) of the Public Authorities Protection Act (i.e., arguing that the burial of the asphalt was done pursuant to a public duty to construct highways) - The Supreme Court of Canada held that s. 7(1) did not apply - The court held that this was an operational decision made incidentally to the exercise of a public duty - The decision had a predominantly private character - The negligent disposal of the asphalt was too remote from the execution of the public mandate to maintain highways for which the Ontario legislature had intended protection - The six year limitation period in s. 45(1)(g) of the Limitation of Actions Act applied.

Cases Noticed:

Des Champs v. Conseil des écoles séparées catholiques de langue française de Prescott-Russell et al., [1999] 3 S.C.R. 281; 245 N.R. 201; 125 O.A.C. 279, appld. [para. 10].

Ontario (Attorney General) v. Palmer (1979), 28 O.R.(2d) 35 (C.A.), refd to. [para. 12].

Bradford Corp. v. Myer, [1916] 1 A.C. 242 (H.L.), refd to. [para. 15].

Clarke v. St Helens Borough Council (1916), 85 L.J.K.B. 17 (C.A.), refd to. [para. 15].

Edwards v. Metropolitan Water Board, [1922] 1 K.B. 291 (C.A.), refd to. [para. 15].

Greenwood v. Atherton, [1939] 1 K.B. 388 (C.A.), refd to. [para. 15].

Griffiths v. Smith, [1941] A.C. 170 (H.L.), refd to. [para. 15].

McGonegal v. Gray, [1952] 2 S.C.R. 274, refd to. [para. 16].

Berardinelli v. Ontario Housing Corp. et al., [1979] 1 S.C.R. 275; 23 N.R. 298, refd to. [para. 17].

Statutes Noticed:

Highway Improvement Act, R.S.O. 1960, c. 171, sect. 33(1) [para. 20].

Limitation of Actions Act, R.S.O. 1990, c. L-5, sect. 45(1)(g) [para. 11].

Public Authorities Protection Act, R.S.O. 1990, c. L-5, sect. 7(1) [para. 6].

Counsel:

Richard D. Lindgren and Donald R. Good, for the appellants;

William J. Manuel and James W. Smith, for the respondent.

Solicitors of Record:

Canadian Environmental Law Association, Toronto, Ontario, for the appellants;

The Attorney General for Ontario, Toronto, Ontario, for the respondent.

This appeal was heard on April 23, 2001, before L'Heureux-Dubé, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ., of the Supreme Court of Canada. The following decision was delivered for the court, in both official languages, by Iacobucci, J., on September 27, 2001.