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To no one’s surprise, the Ontario government is appealing their loss in Berendsen v. the Queen. This is the case that ordered the Crown to pay $1.7 million in damages for contaminating a dairy farm, 40 years ago, with waste asphalt from road construction. Road waste is still deposited on farms to this day. The decision was extraordinary for many reasons, including:

Toxic Asphalt?

  • soil and water on the farm met Ministry of the Environment (MOE) Standards;
  • the asphalt was dumped in accordance with the standards of the day, and with the consent of the then property owner; and
  • the judge ruled that the MOE’s entire system of regulating contamination was inadequate, because (among other things) it failed to consider additive effects of multiple contaminants.

The Crown appeal attacks every feature of the trial decision, but its strongest ground is the question of limits to regulators’ responsibilities. When must the MOE use public money to investigate complaints of contamination? Can the MOE focus its resources on sites that don’t meet the MOE’s published standards, and refuse to take responsibility for those that do? Must the MOE change its standards so they protect even the unusually sensitive?We must now wait a year or two for the Court of Appeal to decide the appeal. Meanwhile, watch for the MOE to be even more risk averse than usual.

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