Berendsen v. Ontario, (2009) 266 O.A.C. 39 (CA)

• Judge: Laskin, Juriansz and Epstein, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: Monday April 06, 2009
• Jurisdiction: Ontario
• Citations: (2009), 266 O.A.C. 39 (CA);2009 ONCA 845

Berendsen v. Ont. (2009), 266 O.A.C. 39 (CA)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. AU.032

Bernard Gerardus Maria Berendsen, Maria Berdina Helena Berendsen, Yvonne Berendsen, Mary Berendsen and Wilbert Berendsen (plaintiffs/respondents) v. Her Majesty the Queen in Right of Ontario (defendant/appellant)

(C48391; 2009 ONCA 845)

Indexed As: Berendsen v. Ontario

Ontario Court of Appeal

Laskin, Juriansz and Epstein, JJ.A.

December 1, 2009.

Summary:

In the 1960s the Ontario Minister of Transportation, during highway construction, deposited and buried a substantial quantity of asphalt and concrete waste on nearby farmland. The plaintiffs purchased the farmland in 1981 unaware of the asphalt, and operated a diary farm on the land. Soon after their purchase, the plaintiffs' cows began to suffer serious health problems and to produce an unusually low quantity of milk. The immediate cause of the health and poor production problems was the cows' unwillingness to drink enough water. However, the plaintiffs claimed that the root cause was Ontario's deposit of waste material on their farm. 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. The plaintiffs appealed.

The Supreme Court of Canada, in a decision reported 275 N.R. 175; 150 O.A.C. 270, 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. The matter proceeded to trial, with the plaintiffs claiming that Ontario was negligent for depositing the waste and then failing to remove the contamination.

The Ontario Superior Court, in decisions reported at [2008] O.T.C. Uned. 63 and [2008] O.T.C. Uned. D64, granted judgment in favour of the plaintiffs on both branches of their claim and awarded damages of $1,732,400, plus interest and costs. Ontario appealed, arguing that the trial judge erred in her finding of negligence.

The Ontario Court of Appeal allowed Ontario's appeal, set aside the judgment at trial and dismissed the plaintiffs' action.

Pollution Control - Topic 8072

Land - Waste disposal - General - Negligence - By Crown - [See Torts - Topic 60 ].

Torts - Topic 60

Negligence - Causation - Foreseeability - In the 1960s during highway construction, the Ontario Minister of Transportation deposited asphalt and concrete waste on nearby farmland - The plaintiffs purchased the land in 1981 unaware of the asphalt and operated a diary farm on the land - Soon after their purchase, the plaintiffs' cows began to suffer serious health problems and to produce an unusually low quantity of milk - The immediate cause of the health and poor production problems was the cows' unwillingness to drink enough water - However, the plaintiffs claimed that the root cause was Ontario's deposit of waste material on their farm - The plaintiffs learned about the buried asphalt in 1989 and in 1994 sued the Province of Ontario, alleging that Ontario was negligent for depositing the waste and then failing to remove the contamination - The Ontario Court of Appeal dismissed the plaintiffs' action - Because the risk of harm was not reasonably foreseeable when the waste material was deposited on the dairy farm, Ontario did not breach the standard of care - Thus the plaintiffs' negligence action failed - Further, Ontario did not have a duty in the 1980s or 1990s to eliminate the waste material and remediate the plaintiffs' well water - No duty existed under the Ontario environmental legislative regime - Also, Ontario was justified in not taking further action when both its investigation and the investigation conducted for the plaintiffs showed that no chemicals in the plaintiffs' well water exceeded the allowable provincial drinking standards.

Cases Noticed:

Mustapha v. Culligan of Canada Ltd., [2008] 2 S.C.R. 114; 375 N.R. 81; 238 O.A.C. 130, refd to. [para. 24].

Kalogeropoulos and Millette v. Cote, Ontario (Minister of Highways) and the Ontario Provincial Police Force, [1976] 1 S.C.R. 595; 3 N.R. 341, refd to. [para. 57].

R. v. Cote et al. - see Kalogeropoulos and Millette v. Cote, Ontario (Minister of Highways) and the Ontario Provincial Police Force.

Hanke v. Resurfice Corp. et al., [2007] 1 S.C.R. 333; 357 N.R. 175; 404 A.R. 333; 394 W.A.C. 333; 2007 SCC 7, refd to. [para. 58].

Nielsen v. Kamloops (City) and Hughes, [1984] 2 S.C.R. 2; 54 N.R. 1, refd to. [para. 73].

Bingley v. Morrison Fuels et al. (2009), 248 O.A.C. 176; 95 O.R.(3d) 191; 2009 ONCA 319, dist. [para. 68].

Heighington et al. v. Ontario et al. (1989), 35 O.A.C. 228; 69 O.R.(2d) 484 (C.A.), dist. [para. 80].

Statutes Noticed:

Ontario Water Resources Commission Act, R.S.O. 1960, c. 281, sect. 27(1) [para. 63].

Counsel:

William J. Manuel and Erin Rizok, for the appellant;

Richard D. Lindgren and Donald R. Good, for the respondents.

This appeal was heard on April 6, 2009, before Laskin, Juriansz and Epstein, JJ.A., of the Ontario Court of Appeal. The following decision was delivered for the court by Laskin, J.A., on December 1, 2009.