Breach of historic standard of care?

Today's important decision in Berendsen v. Ontario, 2009 ONCA 845 makes clear that the standard of care in historical tort cases must be established by evidence of the what was known at the time of the alleged tort. Evidence is required and the knowledge of today cannot be used to assess the conduct of the past.

The Court writes:

(b) Breach of the standard of care?

[58] A defendant's conduct breaches the standard of care, or in ordinary parlance, is negligent, if it creates an unreasonable risk of harm. In the words of McLachlin C.J. in Resurfice Corp. v. Hanke, [2007] 1 S.C.R. 333 at para. 6: "Liability for negligence requires breach of a duty of care arising from a reasonably foreseeable risk of harm to one person, created by the act of omission of another".

[59] From this quote, it is evident that foreseeability of harm is a crucial component of a breach of the standard of care. To succeed in showing a breach of the standard of care in this case, the Berendsens had to show that, back in the 1960s when Ontario deposited asphalt and concrete waste on the dairy farm, harm to the cattle from this buried waste material was a reasonably foreseeable risk. It is not necessary that the precise way the harm occurred be foreseen; but the risk of harm in a general way from drinking or not drinking the water had to be reasonably foreseeable to impose liability.

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[61] For virtually every other finding that the trial judge made in her lengthy and detailed reasons, she cited the supporting evidence that she relied on. In contrast, her finding on foreseeability of harm is stated baldly without any supporting evidence. Instead, the trial judge wrote at para. 262: "There is also no evidence to suggest potential harmful effects of waste roadbed materials buried on the dairy farm next to a water course and close to the barn, residence and well would not be known to a reasonably prudent servant or agent of the Crown in mid 1960s."

[62] Of course, the Berendsens had the onus of showing that harm to their cattle from the deposit of waste material on the dairy farm was a reasonably foreseeable risk. And foreseeability of harm had to be assessed when the conduct in issue occurred, in the 1960s, not today when we know so much more about the risks of toxicity from waste material.

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[64] What was needed was evidence of foreseeability of harm. Yet despite the voluminous amount of expert evidence called by the Berendsens, not one of their many experts testified about the known or likely harmful effects of buried waste material in the 1960s. The Berendsens conceded as much because, both in their factum and in oral argument, the only evidence on foreseeability of harm that they could point to was the evidence of Ontario's expert, Dave McLaughlin, of the Ministry of the Environment.