Hard Cases, Maybe Good Law

Some substantive law both because of what happened and because it may give some people cause to think about the consequences of our past action on our environment.

If the decision stands – I expect the plaintiffs will try to get leave to appeal to the Supreme Court of Canada given the amount involved: more than $1.7 million plus interest plus legal fees – it’s proof that the courts aren’t the answer to all problems.

I’ve set out all that’s needed to understand what the problem was, and the end result.

Berendsen v. Ontario, 2009 ONCA 845


[1] In the mid-1960s, the Ontario Ministry of Transportation deposited asphalt and concrete waste from a highway reconstruction project on a nearby dairy farm. It did so with the farm owner’s consent.

[2] In 1981, the respondents, Bernard and Maria Berendsen, purchased the dairy farm. Soon after their purchase, the Berendsens’ cows began to suffer serious health problems and to produce an unusually low quantity of milk. The immediate cause of these health and poor production problems was the cows’ unwillingness to drink enough water. However, the Berendsens claimed that the root cause was Ontario’s deposit of waste material on their farm. They alleged that harmful chemicals in the waste material migrated to the wells on their property, thereby contaminating the well water and making it unpalatable for the cows. Although testing showed that the chemicals in the well water did not exceed the limits under the Ontario Drinking Water Objectives for human consumption, the Berendsens maintained that the water was unfit for their cows.

[3] In 1994, nearly 30 years after the act they complain about occurred, the Berendsen family sued Ontario in negligence for depositing the waste and then failing to remove the contamination. In a lengthy judgment, after a five-week trial, Seppi J. found in favour of the Berendsens on both branches of their claim. She awarded damages of $1,732,400 plus pre-judgment interest at six per cent annually and costs of $655,000.

[4] On its appeal, Ontario accepts that it owed a duty of care to the Berendsens but submits that the trial judge erred in her finding of negligence. It puts forward two arguments in support of this submission. First, it contends that the trial judge’s finding on causation – that the waste deposit materially contributed to the unpalatability of the well water – was tainted by palpable and overriding errors and was unreasonable. Second, Ontario contends that the trial judge erred in law in finding that it breached the standard of care because there was no evidence a reasonable person in the 1960s would have foreseen the risk a deposit of waste material 60 feet away would contaminate the well water and cause harm to animals.

[5] Finally, Ontario attacks the trial judge’s finding that it had a duty in the 1980s and 1990s to eliminate the harmful effects of the buried waste material and that it breached this duty. Ontario contends that it had no statutory duty to remove the waste material or remedy the contaminated well water.


[85] I would allow Ontario’s appeal, set aside the judgment at trial and dismiss the action. In my view, Ontario was not negligent when it deposited waste material on the farm in the 1960s. Because the risk of harm was not then reasonably foreseeable, Ontario did not breach the standard of care.

[86] Nor did Ontario have a duty in the 1980s or 1990s to eliminate the waste material and remediate the Berendsens’ well water. No duty existed under the Ontario legislative regime protecting our environment. And Ontario was justified in not taking further action when both its investigation and the investigation conducted for the Berendsens showed that no chemicals in the Berendsens’ well water exceeded the allowable provincial drinking standards.


  1. This is another example of courts (and society generally) projecting back today’s models, laws and concerns into an earlier time.

    One wonders what the Ontario MTC (with perfect hindsight) was supposed to have done in the 1960s – anticipate the growth of environmental testing and the imposition of stricter forms of environmental liability.

    And beyond this – think about Delgamuukw, and the Kemano Completion Project, and the spate of historical apologies. And the unprincipled exceptions within Limitations Act reforms.

    L.P. Hartley: “The past is a foreign country: they do things differently there”

  2. Remembering the past doesn’t entail paying for it. People more significant than me are reported to said that we pay for our sins for a number of generations. What they didn’t say was how.

    My ReCaptcha words are “up” and “odysseus”. The system has a sense of humour. Could it have been referring to the siren call of money?

  3. Simon, I think the Court of Appeal refused to project today’s standards to the 1960s, reversing the trial decision.

    I would be interested in what exceptions to the Limitations Act you consider, but feel free to contact me offline.

  4. This is a very interesting case – one thing surprises me though – what were the pollutants? The constituents of asphalt and concrete are not especially soluble so for there to have been pollution to the extent needed to harm the cows something out of the normal must have been going on.

    Is there any suggestion of spillage of say diesel which might have acted as an organic solvent of the hydrocarbons in the asphalt?

    A link to the technical evidence would be much appreciated.

  5. When a stated rule of law works injustice in a particular case; that is, would determine it contrary to “the settled convictions of the community,” the rule is pretty certain either to be denied outright or to be undermined by a fiction or a specious distinction. It can be said with at least as much truth that hard cases make good law. It was largely the crystallization of the rules of the common law that caused the constant appeals to the conscience of the king and his chancellor, and developed the system of law that we know as equity. Even the common law judges themselves had a “conscience”. When their stated rules developed hard cases, the rules were modified by the use of fiction, by exceptions and distinctions, and even by direct overruling.

  6. George Heighington

    Asphalt is considered a noxious substance. It was in 1960 and it is still today a noxious substance.

    The plume from the asphalt, a noxious substance, is simply a direct result of dumping a noxious substance in a swamp.

    If it were not a noxious substance, all the homes in the wealthy areas would have swimming pools of asphalt.

    There is an Ontario Government Public Health Act concerning noxious substances dating in 1937 or 39 which is still on the books.

    It is not a question of applying today’s laws to past times, it is taking a past law and applying it appropriately in the modern times.

    Salt in the orchards is a noxious substance and was so found in a Supreme Court of Canada ruling in 1986. Radon gas and cigarettes attributed to the death of a Deloro person. The out of court settlement was willfully taken by the survivors.

    In the Spanish Wabigoon System, the mercury tainted fish seriously affected the diet of the local people. Sadly, they too, settled of court.