Law Times

Law TiMes • March 28, 2011 FOCUS PAGE 13 Activists disappointed as Berendsen abandoned Controversial court ruling dealt with historic pollution on rural property BY ROBERT TODD Law Times pollution lawsuit has some advocates disappointed that a controversial ruling will stand as the law of the land. Ecojustice staff lawyer Lynda Col- A lins, who was set to represent intervener Friends of the Earth Canada at the Jan. 28 hearing in Bernard Gerardus Maria Be- rendsen, Maria Berdina Helena Berendsen, Yvonne Berendsen, Mary Berendsen, and Wilbert Berendsen v. Her Majesty the Queen in Right of Ontario, believes the discontin- uance constitutes a missed opportunity. She describes the Ontario Court of Ap- peal's ruling in the case as "troubling from an environmental policy perspective." "Th e environmental law community as a whole was very pleased when the Supreme Court granted leave, so it's cer- tainly disappointing that they didn't have a chance to rule," she says. Th e Ontario Ministry of Transporta- tion acknowledges that the appeal has been resolved without any admission of liability. "Ontario believes that this is appro- priate," spokeswoman Emna Dhahak told Law Times in an e-mail. "Th e par- ties have agreed that the terms of the resolution are confi dential." Richard Lindgren, Berendsen's lawyer and counsel to the Canadian Environmen- tal Law Association, confi rms that but was unable to off er further details. "My clients are greatly relieved that their legal ordeal is over," he says. "It took them 16 years of litigation to get to where they are today and it's defi nitely been a roller- coaster ride every step of the way." Th e case demonstrates that environ- mental law plaintiff s must be prepared for prolonged litigation if they hope to obtain a remedy, says Lindgren. Th e issues plaintiff 's decision to discon- tinue an appeal to the Supreme Court of Canada in a historic surrounding the case date back to the 1960s, when the Ministry of Transpor- tation deposited asphalt and concrete waste from a road project in an un- lined pit on a dairy farm in Teviotdale, Ont. Bernard Berendsen bought the farm in 1981, but his cows soon began to face signifi cant health problems and produced a low quantity of milk. Berendsen alleged the road waste had caused the problems, suggest- ing chemicals had con- taminated well water and made it unpalatable for the cows. Testing revealed the at the time the contami- nation occurred, it was reasonably foreseeable that it would harm fu- ture owners. Addition- ally, it held that even when the Crown takes on the private law duty to investigate, breach of that obligation doesn't imply a breach of the re- quirement to remediate. Osler Hoskin & Harcourt LLP partner Jack Coop believes the appeal court decision confi rms existing law. "Th ere's always pres- 'My clients are greatly relieved that their legal ordeal is over,' says Richard Lindgren. chemicals in the water were in line with al- lowable levels under provincial guidelines. After the Ontario government nevertheless agreed to provide an alternate water source, the herd began to consume more water and its health and milk production increased. Th e province stopped providing water to the farm after subsequent testing by the Ministry of the Environment determined the well water indeed met standards and hadn't caused the herd's health problems. Berendsen sued the government, and in 2008 Ontario Superior Court Justice Silja Seppi found in his favour and award- ed $2.4 million in damages. Th e Ontario Court of Appeal overturned that ruling the following year while issuing impor- tant fi ndings on causation, standard of care, and negligent inspection. Th e appeal court asserted that there must be strong factual and expert evi- dence to support cause and eff ect in his- toric pollution cases. It also said plaintiff s attempting to establish liability through negligence in such cases must prove that sure on the law to change, but what the court is really saying is that you don't judge historic con- tamination by contemporary standards, not in negligence law at least," he says. "Th ere's always an ability by govern- ment to ensure that necessary remedia- tion is done where it's warranted, so this in no way undermines our legislative re- gime," he adds. "What it's saying is, from a civil liability point of view, the law of negligence as it has existed in Canada and the common law jurisdictions for hundreds of years has not changed. So I'm not sure it was necessary for the Su- preme Court to deal with this." But Collins sees two signifi cant prob- lems with the judgment. She believes the appeal court largely retried the case on its facts and overturned a fi nding of breach of the standard of care that "was well reasoned and based on the trial court's evaluation of the credibility of the various witnesses." In her view, the court was also mistak- en in its fi nding that if there was no neg- ligence in the initial deposit of the road waste in the 1960s, it was therefore im- material that the province was negligent in its subsequent investigation. "It said if they weren't negligent in the '60s, there was no duty to investigate in the '80s and '90s and therefore it did not matter if the investigation was carried out without due care," Collins notes. "Th at purports to overturn many decades of law on af- fi rmative duty. We all know of Torts 101. Th ere's no duty to rescue, but once you undertake the rescue, it must be carried out with due care." Overall, Collins considers the ruling to be troubling from an environmental pol- icy perspective as the aim in that forum is to encourage careful investigations. For Lindgren, however, the Court of Appeal decision was "very fact-specifi c." "I don't think it would stand as a prec- edent in many other cases," he says. Coop believes the Court of Appeal ruling, now that it stands, will force plaintiff s in historic contamination cas- es to think long and hard about their ability to assert liability. He emphasizes that as the case dealt pri- marily with negligence law, plaintiff s going forward may rely on other causes of action that don't hinge upon the establishment of foresight of harm. Th ey may turn to nui- sance, strict liability, trespass or statutory causes of action such as the right to sue for compensation for a spill under the Ontario Environmental Protection Act, says Coop. For her part, Collins believes the courts will eventually revisit the issues in Berendsen. Th e bottom line, she sug- gests, is that society must own up to the fact that actions taken in the past have created current contamination prob- lems that require a response. "Th e province, in its own argument, says that the practice of depositing road waste on agricultural lands was not un- usual in the '60s," she says. "Th at im- mediately makes me wonder how many other properties are there that have this kind of contamination issue?" LIQUOR AND HOST LIABILITY LAW IN CANADA Lorne Folick, Michael Libby and Paul Dawson UNDERSTAND THE RISKS AND DUTIES ARISING FROM THE SALE OR SERVICE OF ALCOHOL This is the first resource to address all aspects of liquor liability in commercial, employment and social host settings. It includes analysis and discussion of all the leading cases and key legislation from across the country. Topics include: duties related to the condition of licensed premises and to activities on the premises • • • • • • • Hardbound • 262 pp. November 2010 • $95 P/C 1001010000 ISBN 978-0-88804-515-7 Prices subject to change without notice, to applicable taxes and shipping & handling. the obligations of commercial hosts to take reasonable steps to ensure that patrons are not injured by other patrons whether a commercial host may be responsible for the conduct of patrons who have left the premises conduct of employees and the use of excessive force social host liability at private functions the risks facing employers who provide alcohol to employees criminal, regulatory and administrative matters ... and more! An invaluable resource Lawyers in private practice (both plaintiff and defence) and in-house counsel will find the summary of key defences particularly useful and will greatly benefit from this thorough review of the law. Visit canadalawbook.ca or call 1.800.565.6967 for a 30-day no-risk evaluation CANADA LAW BOOK® LT0214 www.lawtimesnews.com

• Cover
• Evidence Tossed
• Duty To Consult
• Focus On Energy Law/Environmental Law