Books shut on Berendsen case

Wednesday, January 26, 2011

by SUSAN MANN

After 17 years of litigation, Bruce County dairy farmer Ben Berendsen has reached a resolution with the Ontario government in his lawsuit against the province for contaminating his Teviotdale-area farm with buried highway construction waste but the details are being kept confidential.

Reached Tuesday night at his dairy farm in Chepstow, which he bought in 1994 after abandoning the Teviotdale farm, Berendsen says “the only thing I can tell you is that our problems are partly resolved.”

Berendsen declined to answer any questions about the resolution or give his reaction to it. Asked when he expects the other portion to be resolved, Berendsen says “probably never.”

One of his lawyers, Richard Lindgren, of the Canadian Environmental Law Association, says if the Berendsens weren’t happy with the resolution they wouldn’t have agreed to it.

Lindgren says on Jan. 24, just four days before the matter was to be argued before the Supreme Court of Canada, the Berendsens filed a notice of discontinuance with the court. The notice effectively withdraws the appeal so it will no longer be argued, heard or decided by the Supreme Court, Lindgren explains.

Berendsen and Lindgren both say they can’t talk about how the matter was resolved nor can they say why they can’t give details. “It’s a legal matter; a matter that was negotiated by the parties and that’s sort of the end of it,” Lindgren says. The resolution means the matter is finished and the “Berendsens are moving on.”

Asked if either the province or the Berendsens wanted the resolution kept confidential, Lindgren says he couldn’t answer that.

The Ontario Ministry of the Attorney General couldn’t be reached for comment.

Lindgren says he’s not at liberty to say why the Berendsens filed the discontinuance notice or on what basis. “All I can say is that the appeal was resolved without an admission of liability (by the province).”

The Berendsens, Ben and his wife, Maria, began their legal battle in 1994. When they bought the Teviotdale farm in 1981, they didn’t know highway reconstruction waste was buried there in the 1960s with the permission of the farm’s owner at that time. About a year after they bought the farm, the Berendsens cows began suffering from health problems and their milk production was half what it should have been.

An Ontario Superior Court justice awarded the Berendsens more than $1.7 million in 2008 but the province appealed that decision. In 2009, the Ontario Court of Appeal ruled the risk of contamination from the buried waste wasn’t reasonably foreseeable at the time it was buried and overturned the Superior Court’s ruling. The matter was then headed for the Supreme Court before it was resolved.

Lindgren says the Berendsens still own the Teviotdale farm, which is sitting vacant. “There is some uncertainty about the future of that farm.” BF

Update:

Bob Nichols, senior media liaison officer with the Ontario Transportation Ministry, says in an email the appeal has been resolved without an admission of liability and the province “believes that this is appropriate.”

Asked why the details aren’t being made public, Nichols says “the parties have agreed that the terms of the resolution are confidential.” BF