Tracey Tyler LEGAL AFFAIRS REPORTER Toronto Star
A former Kitchener area couple who unwittingly purchased a dairy farm that contained tons of buried road waste suffered a major blow today when the Ontario Court of Appeal ruled the province isn't liable for past environmental sins and set aside their $1.7 million damage award.
In its 3-0 decision, the court said any risk of harm to animals from the tons of concrete and asphalt that were buried about 18 metres from a well on what became Ben and Maria Berendsen's property wouldn't have been generally known in the 1960s.
"Although this result may seem harsh in the light of what we now know about the environment, it is inappropriate to use our current knowledge to measure conduct occurring more than 30 years ago," Justice John Laskin wrote on behalf of the court.
The decision strips the Berendsens, who emigrated from Holland and purchased the land in 1981, of $1.7 million plus interest awarded last year by a trial judge, who had concluded that harmful chemicals in the road waste had migrated to the wells and contaminated the water drank by the couple's cattle.
The animals grew weak and milk production dropped dramatically. About 100 died.
One of the farm's previous owners consented to having Ontario's transportation ministry dump the waste on the property after reconstruction of an intersection at Highways 9 and 23, near Teviotdale. It was an apparently common practise.
In appealing Justice Silja Seppi's decision, lawyers for the Crown argued the ruling could open the door to a flood of lawsuits against the government for environmental contamination dating back decades.
In today's decision, Laskin had some sympathy for the province's claim that Seppi was wrong to have concluded the buried waste made the cows sick. Ten scientific experts disagreed on whether it was possible for the buried waste material to seep into the surrounding land and ground water.
When tested, the water met Ontario drinking water standards.
Evidence in the case was that water is the most important nutrient in a dairy cow's diet and that cows should drink an average of 25 to 40 gallons a day.
The Berendsen's cows were drinking only about 12 to 14 gallons per day, but began consuming normal amounts of water after the province installed a new underground tank on the farm and had water trucked in. But this doesn't prove the well water they drank previously had been contaminated by the waste, Laskin said.
"It merely shows that the cows preferred the delivered water," he said.
In the early 1990s, after Ontario's milk marketing system stopped accepting their milk, the Berendsens were forced to walk away from their farm. They moved to Chpstow, northwest of Walkerton, where they now farm with their son.