Supreme Court Agrees to Hear Dairy Farmers' Appeal in Pollution Lawsuit Against Ontario Government

Canada’s highest court has agreed to hear an appeal by a dairy farming family in their pollution lawsuit against the Ontario government.

In a short judgment released yesterday, Justices Binnie, Fish and Rothstein granted the Berendsen family leave to appeal to the Supreme Court of Canada. No reasons were given in the judgment.

Commenced in 1994, the Berendsens’ lawsuit sought compensation for damages caused by the chemical contamination of their farm due to the presence of waste asphalt and other highway debris that had been buried on the farm. The lawsuit stated that chemical contaminants from the buried roadbed materials impaired the Berendsens’ water supply at the farm, and adversely affected the health and productivity of their cattle.

After a five week trial in 2006, the trial judge allowed the Berendsens’ action, and awarded them damages for business losses and property value depreciation. In 2009, however, the Ontario Court of Appeal set aside the trial judgment and dismissed the action.

In granting the Berendsens leave to appeal, the Supreme Court will now decide this dispute after years of litigation. It is anticipated that the appeal will likely focus on whether -- or to what extent -- governmental ministries or agencies should be held liable in negligence for their acts or omissions in relation to historic environmental contamination.

“Our clients are pleased that the Supreme Court has agreed to hear this case, and they look forward to their day in court,” said Richard Lindgren, one of the lawyers representing the Berendsens. Donald R. Good of Ottawa also represents the Berendsen family.

This appeal marks the second time that the Berendsen lawsuit has come before the Supreme Court of Canada. In 2001, the Supreme Court allowed an appeal by the Berendsens in relation to a limitation defence raised by the defendant.

For more information, please contact:
Richard Lindgren (613-385-1686), Donald R. Good (613-228-9676)