Foreseeability Cannot Be Viewed Through A Retrospective Lens

In Berendsen v. Ontario, the Ontario Court of Appeal recently overturned the trial judge's finding of negligence against the province for depositing construction waste on agricultural property in the 1960s. At trial, the Berendsens had been awarded $1,732,400 in damages and $655,000 in prejudgment interest.

The Ontario Ministry of Transportation deposited the waste on the dairy farm with the former owner's consent. New owners purchased the farm in 1981 unaware of the buried waste. Shortly after, their cows began to suffer serious health effects and produced little milk.

The Berendsens complained to the Ontario government. In late 1990, Ontario paid for an underground water storage tank and trucked potable water. However, tests of the Berendsens' wells failed to disclose exceedences of Ontario's Drinking Water Objectives for human consumption and the province discontinued the water supply.