Ontario Court Of Appeal Limits Historic Environmental Liability

Copyright 2009, Blake, Cassels & Graydon LLP

Originally published in Blakes Bulletin on Environmental Law, December 2009

In an important recent decision involving contaminated land, the Ontario Court of Appeal has overturned a questionable trial decision that found the Government of Ontario liable to compensate a farmer who acquired land contaminated with construction waste that originated from a provincial road project in the 1960s.

In the case of Berendsen v. Ontario, the Court reversed a 2008 trial decision (see our August 2008 Blakes Bulletin on Environmental Law: Environmental Duty of Care Lives On and On) that had decided that the Government of Ontario was liable to compensate the Berendsen family for C$1.7-million in business, property value and related damages. The Berendsen family had sued the government, as represented by the Ministry of Transportation, for having allowed certain unknown road construction contractors to deposit old concrete and asphalt