Province mum on settlement details

Thursday, May 5, 2011

by SUSAN MANN

The Ontario government has refused to divulge the details of a settlement in the case involving dairy farmers Ben and Maria Berendsen and their claim of contamination to their Teviotdale-area farm from buried highway construction waste.

In response to a Freedom of Information request filed by Better Farming, Ruth Maillard, coordinator with the Ministry of the Attorney General, says in an April 20 letter that access to the Minutes of Settlement is denied under two sections of the Freedom of Information and Protection of Privacy Act. One is the record is subject to solicitor-client privilege and the other is the record was prepared by or for Crown counsel for use in giving legal advice or in the contemplation of or for use in litigation.

“The Minutes of Settlement was not filed with the court and is not a public document,” Maillard writes in the letter. The Minutes of Settlement are protected under Section 19 of the Freedom of Information and Protection of Privacy Act.

Maillard says in the letter that Maliha Wilson, assistant Attorney General, legal services division, is responsible for the decision to deny Better Farming access to the settlement details.

Asked for his opinion, Donald Good, who was one of the Berendsens’ lawyers in the case, says “I think the public has a right to know what ever money is being spent on their behalf.”

A settlement between the Berendsens and the government was reached in January just four days before the matter was scheduled to be argued before the Supreme Court of Canada. At the time, Ben Berendsen and one of his lawyers, Richard Lindgren of the Canadian Environmental Law Association, said they couldn’t talk about how the matter was resolved nor could they say why they couldn’t give details. The case was settled without an admission of liability by the province, an Ontario Transportation Ministry spokesman said in an interview in January.

For its part, Maillard says in the letter the government didn’t incur any legal fees in defending the case. “The government parties in this matter were represented by counsel of the Ministry of the Attorney General who are all salaried employees.”

The government incurred costs of $175,666.25 to defend the case, including $169,330.51 for miscellaneous disbursement costs other than legal fees, such as costs for expert reports or printing. There was also $6,335.74 in costs awarded to the Berendsens by the Supreme Court of Canada on their successful appeal of the motion for summary judgment in 2001.

The Berendsens, who still own the Teviotdale farm but have abandoned it, began their legal battle in 1994. They now have a dairy farm in Chepstow in Bruce County.

The Berendsens bought the Teviotdale farm in 1981. They didn’t know highway construction waste was buried on the property in the 1960s with the permission of the farm’s owner at the time. About a year after they bought the farm, the Berendsens’ cows began suffering health problems and their milk production was half of 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. BF