The risk of harmful contamination was not foreseeable in the 1960s when waste was buried on an Ontario dairy farm that later failed and as such the province was not negligent, Ontario's top court wrote today in striking down a $1.7-million decision against the province.

When Ben and Maria Berendsen bought their dairy farm in Teviotdale, Ont., northwest of Kitchener, in 1981, they were unaware that surface waste from highway reconstruction had been buried there in the 1960s.

Within a year of taking possession of the property, the couple noticed their herd of cows was not drinking enough water and had started suffering from health problems. The herd's cull rate was double what it should have been and milk production half what it should have been.

Ontario Superior Court Justice Silja Seppi awarded the Berendsens $1.7 million in January 2008, but the province appealed.

Appeal Court Justice John Laskin, writing for the three-judge panel in its unanimous decision, wrote that there was “considerable evidence” harm to the cows from the waste materials was not foreseeable in the 1960s.

“I am not persuaded there is any evidence that the harm occurring to the Berendsens was reasonably foreseeable when Ontario deposited waste material on the dairy farm,” Laskin wrote.

“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.”

The Berendsens askedMediaviewer Wire Source: DF
14:57ET 01-12-09 Ontario to investigate contamination of the farm's well water in the 1980s and it found it met standards for human consumption. No standards then existed for water consumption for animals.

Seppi found the investigation was negligent - a finding the province doesn't challenge. But Laskin said since the investigation found the water was acceptable Ontario didn't have a duty to then remove the waste from the property.

“In my opinion, therefore, the trial judge erred in finding Ontario liable for failing to remove the waste material buried on the Berendsens' farm now over 40 years ago and for failing to remediate the contamination,” Laskin wrote.

The Berendsens gave up on the farm in 1994 and moved to a farm in Chepstow, Ont., near Walkerton. Last year their lawyer said they still owned the now abandoned contaminated property because no one would buy it.

Neither a lawyer for the Berendsens nor the Ministry of Transportation was immediately available for comment.