Solid Waste & Recycling

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The Berendsen Case

A recent decision of the Ontario Superior Court of Justice awarded significant damages in a case against the Ontario Government that involved buried road waste materials and the impact of those materi...


A recent decision of the Ontario Superior Court of Justice awarded significant damages in a case against the Ontario Government that involved buried road waste materials and the impact of those materials on a dairy farm operation. The case should be of special interest to those who deal with construction and demolition (C&D) waste.

Background

In the mid-1960s, the Ontario Ministry of Transportation undertook roadwork near a highway, as a result of which truckloads of road surface waste (consisting of concrete and asphalt) were buried beside a watercourse on a nearby farm. The owner of the farm at the time gave permission for the burial of the waste, but was never provided with any information about what was in the waste material. There was no release or waiver signed by the owner, who did not pay or get paid for the material. When the property was sold, the owner disclosed the buried waste and showed the purchaser its location.

The Berendsen family purchased the property in 1981 as a dairy operation. After settling on the farm, they observed that their cattle were refusing to drink water at the creek near the barn where the waste was buried. This caused illness and poor milk production amongst the cattle. In addition, some of their farm animals died prematurely and family members suffered unexplained health problems. Eventually, the Berendsens moved their dairy farming operation to another location. They were unable to sell the farm, which still remains vacant.

While the Berendsens had noted some concrete and asphalt jutting out of the bank of the creek before they purchased the farm, they were told by the agent that it came from a barn fire. By the late 1980’s, however, erosion had caused more asphalt and concrete to become visible near the barn beside the creek, and the Berendsens became suspicious. They began to investigate. The owner who had occupied the farm at the time the materials were buried visited the farm in 1989, and showed the Berendsens the location of the materials.

Between 1990 and 1993, the Ministry of the Environment took samples of the well water and creek water but — as noted by the judge in the decision — this testing was “minimal and ultimately unreliable.” Specifically, none of the testing conducted by the ministry was designed to test for the kind of contaminants eventually discovered in the water.

Plaintiffs’ claim

The Berendsens brought a claim against the province in 1994, claiming that the buried roadbed waste materials caused serious water quality problems on the farm and that the province was liable in negligence. The Berendsens claimed that the negligence began with the dumping of potentially toxic waste close to a water supply, and continued with the failure to properly remedy the problem when the harmful effects of the buried waste materials became known.

The plaintiffs initially had their claim struck on the basis that it was not brought within six months, as required by statute. This ruling was upheld at the Court of Appeal and then overturned in 2001 by the Supreme Court of Canada, which ruled that burying waste asphalt on private lands was not an act undertaken by the government as a “public duty”, and only such acts had a six-month limitation period applicable to them. Therefore, the action was allowed to proceed on the basis that there was a six-year limitation period applicable, and the action commenced within that timeframe.

Negligence

The government denied liability, arguing that the burial of waste roadbed material was common on rural property at the time, and that it was not reasonably foreseeable that the deposit of this waste would cause contamination on the farm, or result in health and production problems for a diary herd. The government also denied that there was any cause or connection between the buried materials and water contamination, and that the Berendsens ought to have known about the buried asphalt and therefore assumed any risk from the waste by purchasing the farm.

The court considered whether the government was liable in negligence for harm arising from the burial of waste materials on the diary farm, and for failing to investigate and remediate the impaired farm water.

The court found that the province owed the Berendsens a “duty of care” in that it ought to have been in its reasonable contemplation that careless disposal of waste roadbed material on private farmland might cause damage to lawful occupiers of the land. The court held that it would have been obvious that waste roadbed material likely contained various automotive fluids within the asphalt and concrete. Further, the location of the deposit was on a diary farm next to a natural watercourse and close to a residence and well. As such, it was reasonably foreseeable that harm could result to occupiers of the farm as a result of this carelessness in depositing potentially contaminated material.

The court also found that the ministry properly failed to exercise its statutory powers of investigation and remediation of environmental contaminants in the farm water. Although the Berendsens were successors in title to the property owner at the time the waste material was deposited, the court held that there was support for extending liability and duty of care to successors in title.

The court noted that, even when the Berendsens provided the results of their testing (which showed the presence of various contaminants to the ministry) this did not result in any remedial action or independent testing. The ministry took the position that these results did not matter because the chemicals detected in the well water did not exceed the Ontario Drinking Water Objectives for human consumption. The judge referred to this and other actions of the ministry as the “cavalier and careless attitude of the defendant to what was obviously a serious problem.”

The farm, cattle, milk quota and equipment was purchased by the Berendsens for about $555,000 in 1981. After finding in their favour, the court awarded a total of $1,732,400.00 in damages to the Berendesens. The province is appealing the decision.

Rosalind Cooper, LL. B. is a partner with Fasken Martineau DuMoulin LLP, with offices across Canada. Ms. Cooper is based in Toronto, Ontario. Contact Rosalind at rcooper@tor.fasken.com


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