Case information

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Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

Torts - Historical environmental damage - Responsibilities of public authority - Foreseeability of harm - Adequacy of investigation - Adequacy of remediation - What is the proper test for determining foreseeability of harm in the context of the standard of care owed in negligence cases involving historic environmental contamination? - Under what circumstances should a public authority be held liable in negligence for site specific investigations and/or remediation activities carried out by agents and servants of the public authority? - Is it appropriate for an appellate court to overturn a trial judge’s findings of fact, or mixed fact and law, in the absence of palpable and overriding errors by the trial judge?

In the mid 1960s, the Ontario Ministry of Transportation buried asphalt and concrete waste from a highway reconstruction project in an unlined pit on a nearby dairy farm with the owner’s consent. The appellants, experienced dairy farmers, purchased the farm in 1981. Shortly thereafter, their cows began to suffer serious health problems, to have a high cull rate, and to produce an unusually low quantity of milk. The immediate cause of the problems was the cows’ unwillingness to drink enough water, but the appellants claimed that the waste was the root cause. They alleged that chemicals in the waste had migrated to their well, contaminating the water and making it unpalatable for the cows. Testing showed that the chemicals in the water from the well did not exceed the Ontario Drinking Water Objectives, which set the levels allowed for human consumption. A new well 400 feet from the burial site was also rejected by the herd. When the appellants complained to the Ontario government, it arranged for an alternate water source. The herd’s water intake, milk production increased, and overall health improved. Meanwhile, the Ministry of the Environment did some water quality testing of the water in the wells, the barn troughs and the ditch, from which it concluded that the water met the Ontario Drinking Water Objectives and that it was not responsible for the problems. It stopped providing alternate water. The appellants sued Ontario in negligence for depositing the waste and then failing to remove the contamination. The trial judge allowed the action and awarded damages of $1,732,400 plus pre judgment interest and costs. The Court of Appeal allowed the appeal, set aside the trial judgment and dismissed the action.