Court File and Parties

Court File No.: 225 255 /07 Date: 2016-08-03 Ontario Superior Court of Justice

Between: JANICE MARSHALL, Plaintiff – and – WAYNE HAROLD SHAW, Defendant – and – RUTHERFORD FARMS LIMITED and WESSUC INC., Third Parties

Counsel: Brian R. Kelly, for the Plaintiff Gregory Brimblecombe, for the Defendant Stephen T. Brogden, for the Third Party Rutherford Farms Limited Robert W. Dowhan, for the Third Party Wessuc Inc.

Heard: December 9, 10 & 11, 2014, August 24, 25 & 26, 2015; written argument completed April 1, 2016; transcripts received May 16, 2016

T. A. Heeney R.S.J.:

Reasons for Judgment

[1] In this lawsuit, the plaintiff claims that her water well was contaminated by the application of municipal sewage waste (“biosolids”) to the farmland of her neighbour, the defendant Shaw. Mr. Shaw has brought a third party claim against Rutherford Farms Limited, who was leasing the farm from him at the time and at whose request the biosolids were applied, and against Wessuc Inc., who did the actual application.

[2] As pleaded, the plaintiff sought a finding of strict liability on the basis of the principles in Rylands v. Fletcher. However, that pleading was abandoned at trial, and the claim was confined to one of nuisance and negligence.

[3] It will only be necessary to examine the legal issues relating to liability if the following key factual question is answered in the affirmative: did the application of biosolids by Wessuc during the week of August 27, 2007 cause the plaintiff’s well to become contaminated?

[4] The plaintiff resides on a hobby farm fronting on the south side of Gunn’s Hill Road in the County of Oxford. It is a rectangular property situated in the north-east corner of a large farm lot owned by Shaw. Mr. Shaw occupies a principal residence, immediately to the west of the plaintiff in an extension of that same rectangle. The picture that emerges is that the plaintiff’s property is bordered along the entire southern boundary by a field owned by Mr. Shaw, and along the western boundary of her property by Mr. Shaw’s personal residential property. Further west of Shaw’s residential property, the field wraps around this rectangle, so to speak, and extends to the north all the way to Gunn’s Hill Road.

[5] The plaintiff resides on her property with her partner Phil Wait. They have lived there since the property was purchased in 2004. At all material times they had 2 adult horses and a foal, as well as two dogs, living on the property with them.

[6] On Friday, August 24 [all dates are 2007 unless otherwise noted], Matt Jolley came to visit the plaintiff to advise her of Wessuc’s plan to apply biosolids to the field to the south and west of the plaintiff’s property, commencing the following Monday. He was and is a Land Coordinator Supervisor at Wessuc, and was in charge of this project.

[7] The project had been approved by the Ministry of the Environment (“MOE”) following a rigorous application process involving extensive soil testing and other measures. It involves the application of digested human waste from sewage treatment plants to the soil, to be used as fertilizer. The plan was to fertilize the eastern 90 acres of Shaw’s farm field, which had recently been harvested of its wheat crop. Approval was received to apply biosolids to the western 90 acres as well, but it was still in the midst of growing a soybean crop, so that was not done at this time.

[8] Among other protective measures, Wessuc was required to maintain a set-back or buffer zone of 90 meters from any well. Mr. Jolley described their plans and this set-back requirement to the plaintiff, and answered any questions she had. She showed him were her dug well was, which is just a few feet north of the southerly boundary of her property, in close proximity to the field to the south.

[9] Matt Jolley marked the setback areas with flags, to ensure that biosolids were not applied within the buffer zone. On Monday morning, August 27, the plaintiff testified that she left her house at about 8:30 a.m. for a photography shoot. She photographs livestock as a career. She said that she saw as many as five semi-trucks arrive with biosolids before she left, and observed them “knifing in” biosolids to the south and west of her property.

[10] She was gone all day and returned about 5 p.m. She ran the shower water to have a shower and when it got hot the water was “brown and stinky”. She said it smelled like “vomit material”. She said she had never had a similar problem since purchasing the property. She called Matt Jolley and told him the situation at about 5:30 p.m. He came to her residence the next morning, August 28, at about 7:30 or 8 a.m.

[11] They ran the kitchen and bathroom tap, but Mr. Jolley said he couldn’t smell anything. She offered him a glass of water or a coffee and he declined.

[12] She testified that Matt Jolley spoke to Jack Collonello on the telephone while he was there. Mr. Collenello was an Agricultural Environmental Officer with the MOE at the time, although he has since retired. This was apparently prompted by the “hundreds of calls” the plaintiff claims to have made seeking help or guidance regarding her well problem.

[13] The plaintiff took a water sample from the kitchen tap while Matt Jolley was there, and delivered it to the local Board of Health. The test result dated August 30, 2007 showed 23 total coliform and 0 e. coli. These results represent the number of “colony forming units” or “C.F.U.” per 100 ml. When discussing test results later in these reasons, I will refer to the numbers only.

[14] The spreading of biosolids continued, according to the plaintiff, each day for the remainder of the week, finishing up on in the early afternoon on Friday.

[15] Mr. Collonello came out to her property during the following week, September 5. She found him to be rude and hostile from the outset, making it clear that it was for her to prove that there was a problem. She said he intentionally pushed bugs and other debris into the well when he inspected it. When he saw a manure pile approximately 30 to 40 ft. east of the well, he immediately identified that as the cause of her problem.

[16] Mr. Collonello, in his evidence, denied being rude or intentionally pushing debris into the well. He testified that he ran the water in the kitchen and from the shower. The water was clear and he could not detect any odour, although he admitted that he did not have a strong sense of smell. He returned to the residence the next day, September 6, and again on September 10, when he collected a water sample. This sample was taken from an outside tap in order to obtain raw water, which would be representative of what was in the well. The indoor taps received water after it had passed through a water softener and an ultra violet (“u.v.”) filter which is designed to kill bacteria. The test results from that sample showed total coliform of 1,100 and e. coli. of <10. As explained later by the engineer Matthew Allen, a reading of <10 means that it was below their detectible limit of 10, so the result indicates that no e. coli. was detected.

[17] Mr. Collonello did an investigation and concluded that the well had not been contaminated with biosolids. He found that the most likely cause of the bacteria in the well was the manure pile that sat on the ground approximately 35 to 40 east of the well. However, Mr. Collonello was not qualified as an expert and I give his opinion no weight.

[18] In the meantime, the plaintiff retained a firm of engineers, MTE Consultants Inc., to investigate. The engineer in charge was Robert Fedy, although he did not actually attend the site. Site work was done by a technologist, Andrew Bingeman and an assistant. Mr. Bingeman testified at trial, as did Mr. Fedy. Mr. Bingeman and his assistant attended the plaintiff’s residence on September 7. MTE’s report dated September 25 summarizes all of their findings. He observed the well to be a traditional “dug” well, constructed of brick and mortar and in fair condition. It had a wooden lid with a vinyl covering which was water-tight. The well was just under 14 ft. in depth and the static water level was 2.12 m. (6.95 ft.). This represents the depth from ground level to the surface of the well water.

[19] Mr. Bingeman testified that he observed scum on the surface of the well. In the report, it was stated that “the water in the well exhibited a sewage like odour”. However, he gave no evidence to that effect at trial, nor does it appear he was ever asked to comment on the smell of the water in the well. He was cross-examined as to his observations of the water coming from the kitchen tap when he took a water sample on September 7. He agreed that it would be important to look for turbidity of the water to see whether it was cloudy, and to smell it to see if it contained any odours. He agreed that he made no notation of either in his report.

[20] He testified that he observed desiccation cracks in the field to the west. These are drought cracks that were caused by the fact that it was an unusually hot and dry summer. He testified that they extended quite significantly into the soil. This became an important issue at trial, because such cracks could provide a “preferential pathway” for contaminants to quickly enter the water table, and the existence of such cracks was a critical feature in Mr. Fedy’s opinion at trial as to how the well came to be contaminated. It is interesting, therefore, that no mention was made of desiccation cracks in the September 25 report.

[21] A series of test pits were dug, to a maximum depth of 8 ft., in order to investigate soil conditions and investigate the proximity of field tiles. He described the native soil in the following terms: “a moist to wet, fine grained clay silt with a trace amount of sand”. Two of those pits were dug on Shaw’s property immediately to the south of the well. The furthest of those was 10 m. south of the well, labelled “test pit #2”, and in it a plastic perforated drainage pipe, commonly known as “Big O”, was found, running west to east, parallel with the southerly boundary of the plaintiff’s land. It was found to be dry, and showed no evidence of having carried biosolids. Mr. Bingeman noted that the land to the south slopes away from the well, at a rate of .65 m. over 3 meters.

[22] Three pits were dug to the west and north-west of the well, which is up-gradient of the well. The grade is important because, according to Mr. Fedy’s evidence, confirmed by the engineer Charles Walters in the Genivar report dated February 14, 2011, the flow of ground water tends to follow the same pattern as the flow of surface water above it. The surface topography of the field, and of the rectangular portion of land where the plaintiff and Mr. Shaw reside, slopes in a south-easterly direction. Accordingly, surface and sub-surface water flows in a south-easterly direction. Test pits to the west and north-west of the well would, therefore, be up-gradient of the well and within the zone of capture of the well.

[23] However, those test pits revealed no evidence of contamination by biosolids. The soil description was the same as noted above. No drainage tiles were found, although some clay fragments were found in test pit #5. No “sand seams” were found. This again became an important issue at trial, since the existence of a sand seam to quickly carry groundwater from the area of application, through the buffer zone to the well, was an important feature of Mr. Fedy’s theory as to how the well came to be contaminated.

[24] The manure pile was noted by Mr. Bingeman. The report shows it to be 30 m. to the east of the well, although that was conceded to be a typographical error. On all of the evidence, I conclude that the manure pile was about 35 to 40 ft. east of the well. It was also down-gradient from the well by several feet.

[25] A water sample was taken by Mr. Bingeman from the kitchen tap on September 7, and submitted for analysis. The results were total coliform of 2, and e. coli. of 0. The kitchen tap was chosen because that was the source of previous samples taken by the plaintiff, thereby enabling a direct comparison. However, this water had passed through a water softener, and a u.v. filter designed to kill bacteria. Accordingly, a further sample was taken by MTE on September 11 and submitted for analysis. Surprisingly, that sample was not tested for either total coliform or e. coli. However, readings of 310 for fecal streptococcus and 62 for pseudomonas aeruginosa were made.

[26] A further sample was taken by MTE on September 18, directly from the well, using a sterilized baling device. This was tested for total coliform and the reading was 7,000. It was tested for e. coli. and the result was 0. Fecal coliform was tested, generating a result of 5. Fecal streptococcus readings were 280, and pseudomonas aeruginosa readings were 21.

[27] It is useful to summarize all of the water sampling results in one table, dating from August 27 forward. Water sampling done prior to that date is summarized later in these reasons. It is noteworthy that one result included in the table below was supposedly collected by the plaintiff on August 28, according to the computer records at the Oxford County Board of Health, filed as Ex. #10. However, there is no paper record of that analysis, nor did the plaintiff have any recollection at trial of having taken this sample immediately following the events of August 27. The only sample she recalls collecting was taken in the presence of Matt Jolley, which I have already referred to, and which generated a reading of 23 total coliform and 0 e. coli. The paper record of that test has been marked as Ex. #2. She testified that this sample was taken on August 28, but the paper report shows the collection date as being August 29, which accords with Matt Jolley’s evidence as to when that sample was taken.

[28] So the results of water tests taken from August 27 forward can be summarized as follows. It is noted on this table whether the sample did or did not pass through the u.v. filter. Where a category contains a hyphen entry, that substance was not tested for:

Sample date	E. Coli.	Total Coliform	Fecal Coliform	Fecal strepto-coccus	Pseudo-monas aerugi-nosa	Sample taken by	Treated by U. V. filter?
Aug. 28	0	2	-	-	-	Plaintiff	yes
Aug. 29	0	23	-	-	-	Plaintiff	yes
Sep. 7	0	2	-	-	-	MTE	yes
Sep. 10	<10	1100	-	-	-	MOE	no
Sep. 11	-	-	-	310	62	MTE	no
Sep. 18	0	7000	5	280	21	MTE	no

[29] Based on the water tests she received, and on advice from the plumber and others, the plaintiff concluded that her well had been contaminated by human sewage, and had to be replaced. She arranged for a new well to be drilled, and that was completed by September 11. The new well was hooked up on that day. It was a drilled well, as opposed to the dug well she had previously used, and went to a depth of 101 ft. However, she continued to experience problems with her new well, in that test results continued to show low levels of total coliform. She was unable to get a clearance from the Board of Health until she obtained three consecutive “clear” readings. That did not happen until February, 2008, after she had essentially replaced the plumbing in her house. In the meantime, she had to haul water and have showers at the residences of friends of relatives, and was unable to entertain at her home. The expenses she incurred, and the stress and aggravation she experienced, are reflected in the damages she claims in this action.

[30] Before examining Mr. Fedy’s evidence, I want to make mention of the evidence of Matt Jolley. Despite his relatively young age, he came across as thoroughly knowledgeable regarding his job and was a very helpful and candid witness. The plaintiff herself found him “most kind” and “a star when it came to answering questions” when she met him prior to the application of biosolids. I formed the same impression, and found him to be a most credible and reliable witness.

[31] He confirmed the meeting with the plaintiff on August 24 during which he described the upcoming application. It was he who walked the property and placed the flags that defined the buffer zone. It should be noted that the plaintiff does not allege that Wessuc intruded onto the buffer zones during its application, nor that its application rates were improper, nor that any spillage occurred. In other words, it is conceded by the plaintiff that the application proceeded entirely in accordance with the applicable regulations and the Certificate of Approval issued by the MOE. The sole allegation of negligence is that Wessuc knew or ought to have known about the presence of desiccation cracks in the soil, and should not have applied biosolids in those conditions, given the risk of providing a preferential pathway to the water table and thereby risking contamination of the plaintiff’s well.

[32] Dealing with that issue, Mr. Jolley testified that it had indeed been a hot and dry summer, and the soil on the field was very dry. However, he testified that that was a positive, not a negative condition, since it ensured that the biosolids would be readily absorbed by the dry soil, and the risk of runoff or migration elsewhere would be greatly reduced.

[33] He denied seeing any drought cracks, but he testified that if any were there they would have been dealt with by the process of application in any event. To begin with, the boundaries of the buffer zone were tilled to eliminate the possibility of surface run-off. The application of the biosolids was itself a three-stage process. First, the land is pre-tilled through the use of rotary discs, which would break up any cracks in the surface. Then the biosolids are applied, at a rate that is controlled by a flow metre that accords with the speed of the tractor. Finally, the biosolids are incorporated into the soil through 8 inch “sweeps”. The net result is that 100% of the area where the biosolids are applied is tilled, thereby incorporating the biosolids into the soil.

[34] Biosolids are a black viscous fluid not unlike oil. To get it to the field, a pumping station was set up on Gunn’s Hill Road, where trucks regularly delivered loads. The pump was then connected through a pipe to a hose reel which was situated in the middle of the field. The tractor that applied the biosolids did so by dragging a hose from the hose reel, which fed biosolids to the tractor as it followed a weaving pattern up and down the field.

[35] He testified that the first load arrived at 9:14 a.m. on August 27, and application began thereafter. The second load arrived at 9:45 a.m., and the third at 11:00 a.m. This is at variance with the evidence of the plaintiff, who testified that 3 to 5 semi-trucks had come up the road with their loads by the time she left her residence at 8:30 a.m. The evidence of Matt Jolley is corroborated by detailed Truck Load records, and I prefer it.

[36] Mr. Jolley also testified that biosolids were applied to the field south of the plaintiff’s property on August 27. This is at variance with the evidence of the plaintiff, who said that they were spreading south and west of her property on that day. This is important because the field to the south is clearly downhill of the well. The only portion of the field that is up-gradient of the well is to the north and west of the buffer zone, west of Mr. Shaw’s residential property. The significance of this will become evident when I discuss Mr. Fedy’s evidence, and in particular the timing issue.

[37] Mr. Jolley testified that the hose reel was set up at a position in the middle of the field to the south, and the tractor and hose then travelled in a north-south pattern moving eastward toward the property line. It was only later in the day that they reached the eastern perimeter of the field, at which point they turned the apparatus around and began moving westward in the same north-south pattern, with the hose reel in the same position but pointing the other way. He testified that they did not reach a point west of the plaintiff’s land until about 6 p.m. on August 27. This point was identified on a map found at pg. 000096 of Tab 4 of Ex. #1. It was only at that point that the application reached a position where the topography would have permitted any biosolids to move in the direction of the plaintiff’s well. All of the biosolids applied earlier in the day would have had to travel uphill in a northerly direction through the 90 m. buffer zone in order to reach the plaintiff’s well.

[38] Mr. Jolley was not on site while the application proceeded on August 27, but he was there at the beginning of the day on August 28, and knew where they had left off their spreading on the previous day, which enabled him to estimate when they had first reached a point west of the plaintiff’s property. In addition, Mr. Wait confirmed that they were spreading “to the south of our property, and they worked from the west side of our property going to the east side, and they were going north and south. … If they had gone from the east to the west, they would have been running over the hose all the time.” I am satisfied that the evidence of Mr. Jolley is correct.

[39] He testified that he received a phone call from the plaintiff complaining about her well in the early morning of Wednesday, August 29, and he went to her residence immediately. The plaintiff told him initially that they had smelled an odour from their water on the preceding Saturday, then changed that to say that they smelled it Monday night when they made coffee for friends and noticed the odour. He smelled the kitchen tap and noticed no odour. He smelled the shower and again smelled no odour. He suggested that they boil some water, since she had said she initially noticed the smell while making coffee. They did so, and he was able to detect a faint odour, that smelled like urine. The odour was not one that he was familiar with in connection to biosolids.

[40] He went outside and he and the plaintiff checked the well. He saw no black staining from biosolids on the walls of the well. He smelled no odour from the well water. He did see some bugs in the water, some alive and some dead. He noted the presence of the manure pile 30 to 40 ft. east of the well and thought that might be the source of the problem, but again his opinion cannot be taken into account because he was not a properly qualified expert.

[41] In his presence, the plaintiff took a water sample, which she subsequently took to the Board of Health. The plaintiff confirmed in her evidence that this sample was taken in Mr. Jolley’s presence. Reference has already been made to it, and it is marked as Ex. #2. It shows a collection date of August 29. This coincides with Mr. Jolley’s evidence that that is the date he came to the plaintiff’s residence in response to her complaint, and contradicts the plaintiff’s evidence that he came on Tuesday, August 28. Mr. Jolley was also able to confirm this date by checking his cell phone, since he received a call from Mr. Collonello while he was at the plaintiff’s residence. I prefer the evidence of Mr. Jolley on this point.

[42] That completes my review of the evidence sufficient to set the stage for the discussion that follows. Evidence from other witnesses will be referred to as and when relevant.

[43] Mr. Fedy testified on behalf of the plaintiff. His expertise in the subject matter was conceded by all parties. I have already reviewed the information taken from the site investigation conducted by Mr. Bingeman. The opinions expressed by Mr. Fedy were informed by that data, but also by what he was told by the plaintiff.

[44] She had told him of the foul, sewage-like odour emanating from her well water. She told him she had never experienced any condition like that since she purchased the property.

[45] Mr. Fedy was given only one water test result, from August 16, 2004, which indicated results of 0 total coliform and 0 e. coli., and it is included with his report. No other test results were given to him. At pg. 5 of his report, he stated that “additional water analysis was conducted between August 2004 and August 2007 which reportedly revealed no evidence of bacteriological [sic] as well.”

[46] This information is patently not correct. Tests were, in fact, done by the plaintiff on September 2, 2004 and August 11, 2005. While both results showed e. coli. readings of 0, they revealed total coliform counts of >80 in the first sample and 22 in the second. Both results were categorized as “SIGNIFICANT EVIDENCE OF BACTERIAL CONTAMINATION. May be unsafe to drink.”

[47] I should note that Nancy Latimer, a Senior Technologist with Public Health Ontario who analyzes water samples, testified that they only count total coliforms up to 80. So when a reading says “>80” (greater than 80), there is no way of knowing how much higher than 80 the actual count was.

[48] Furthermore, tests had also been done by the prior owner, Susan McGuire, before she sold the property to the plaintiff. Those results, according to the computer records marked as Ex. #10, were as follows:

Date Collected	TOTAL COLIFORM	E. COLI.
May 13, 2005	23	0
May 25, 2004	37	0
June 14, 2004	9	0
August 11, 2004	57	0
August 13, 2004	23	0
August 23, 2004	0	0

[49] These results, and the results from the samples collected by the plaintiff, clearly demonstrate that this well had a history of coliform bacteriological contamination prior to the events of August 2007. Mr. Fedy conceded that he would have liked to have had those counts prior to doing his report, and “perhaps would have given all of the options a longer look”.

[50] It is noteworthy that the test results obtained by the plaintiff from the sample taken August 29, of 23 total coliform and 0 e. coli., which on her evidence prompted her to make the decision to drill a new well, are consistent with, and in some cases better than, the results obtained before the speading of biosolids. To the extent that those prior readings establish a baseline, they lead to the inference that the condition of the well water was no worse after the spreading of biosolids than it was before.

[51] Based on the information at hand, incomplete as it obviously was, Mr. Fedy set about his analysis. He began by identifying potential sources of the bacteria found in the well, and eliminated them one by one. Those potential sources were:

• Intentional tampering;
• Malfunction of the plaintiff’s septic system;
• Horses grazing in the vicinity of the well;
• The manure pile to the east of the well; and,
• The application of biosolids to the fields adjacent to the plaintiff’s property.

[52] With respect to the first two potential sources, there was no evidence of either tampering or malfunction of the septic system, so these were quickly eliminated.

[53] The concern with respect to horses grazing in the vicinity of the well related to the observations of Mr. Collonello, who said he observed hoof prints in the enclosure where the well was situated. He pointed to scuff marks on the ground shown in photographs found at tab 10, photos 5 to 8, which he believed to be hoof prints. However, he admitted on cross-examination that he did not observe any horse manure or horse urine in the enclosure.

[54] The plaintiff and Mr. Wait testified that the area where the well is situated is protected by an electric wire fence, but that sometimes the horses, particularly the foal, will escape while being moved into or out of the barn, and run in this area. It is a sporadic and short-lived event. Mr. Wait testified that the horses do not urinate or defecate while they are there, largely due to habits formed in their training as show horses.

[55] Mr. Fedy discounted this potential source, because there was no evidence of horse manure being found in proximity to the well, and no evidence of grass burnout around the well, which would have been found had a horse urinated in that area. Furthermore, if the well had been contaminated by urine, there would have been ammonia and nitrogen in the water, which were not found in the chemical analysis of the samples that were taken.

[56] As to the manure pile, it is of considerable size, as is evident from the photographs filed. It is conceded by the plaintiff that its proximity to the well was in violation of the Nutrients Management Act, which requires a setback of 30 meters. This manure pile was little more than 10 m. away from the well. Notwithstanding that, Mr. Fedy discounted it as a source of contamination of the well.

[57] To begin with, the pile was very dry. The plaintiff had testified as to the dryness of horse manure, which she referred to as “road apples”. She said this manure was so dry it would burn if ignited. Objectively, there was no evidence of leachate emanating from the pile. Since the pile was sitting on the ground, as opposed to a concrete pad or other barrier, it could be possible for it to leach downward into the ground. However, if it did so, the leachate would not flow toward the well because it is downhill of the well. As already noted, the prevailing opinion in hydrogeology is that the flow of groundwater is normally topographically controlled. In this case, therefore, groundwater would flow from the manure pile in a southeasterly direction, away from the well.

[58] Accordingly, Mr. Fedy discounted the manure pile as the source of bacteria in the well.

[59] This left one final potential source of contamination: the spreading of biosolids. However, one immediately obvious problem with a theory that attributed the contamination to the application of biosolids was one of timing. How could the biosolids have gotten from the field, through the 90 m. buffer zone, and into the well, in time for the plaintiff to have smelled them in her water around 5:30 p.m. on August 27?

[60] The first consideration was the soil permeability. I have already noted that the soil found in the test pits was a “moist to wet, fine grained clay silt with a trace amount of sand”. Soil of this nature is not particularly permeable, meaning that it does not transmit fluids quickly. However, Mr. Fedy postulated the existence of a sand seam that fed water into the well. If the ground water was travelling in sand then, according to well-established mathematical formulae, it could travel 90 meters in one day.

[61] As already noted, no sand seam was, in fact, found by Mr. Bingeman in the test pits that were dug to the west and north-west of the well, to a depth of 8 ft., nor in any of the other test pits. However, Mr. Fedy noted that the plaintiff and Mr. Wait testified to cleaning out the well on an annual basis. The well was pumped dry, and Mr. Wait climbed down a ladder to the bottom of the well, and scooped up 4 to 5 pails of sand that had been carried into the intake bowl at the bottom of the well during the preceding year. This was indicative of the water having been travelling in sand. Furthermore, the well had been in existence for more than 50 years, and there was no evidence that it had ever run dry, even in times of drought, which is consistent with a strong and steady flow of underground water. Geological data that was available to him, coupled with drilling records from the drilling of the new well and knowledge that sand and gravel pits were in operation to the west, indicated that there were sporadic seams of sand in the area. Given all of this, Mr. Fedy was comfortable in concluding that the water travelled to the well in a sand seam. This would result in a groundwater velocity of 80 to 90 meters per day, one day being 24 hours long.

[62] However, that was still insufficient because, according to the evidence of the plaintiff, she began to smell the biosolids 8 to 10 hours after they began applying it. Mr. Fedy’s answer to this was to point to the Big O that ran parallel to the southerly boundary of the plaintiff’s land. He postulated that the biosolids entered the Big O and travelled for some unknown distance, thereby accelerating their journey to the well, and enabling them to arrive within the 8 to 10 hour window of time. The fact that no biosolids were found in the Big O was not surprising, since they would have leached out through the perforations in the drainage tile on their way to the well, and then entered the water table and ultimately ended up in the well.

[63] But even this is insufficient if one considers Matt Jolley’s evidence as to where biosolids were spread on August 27. As described above, I have accepted his evidence that the bulk of the day on August 27 was spent spreading biosolids to the south of the plaintiff’s property. It would be impossible for those biosolids to have gotten into the well because they would have had to travel uphill over a span of 90 meters.

[64] There is a topographical site plan found in the engineering report prepared by Genivar, marked as Ex. #5, which is very useful. It shows the elevation contour lines in meters over the area in question, and confirms that the land generally slopes in a south-easterly direction. The well is at an elevation of 298 m. The only point where it becomes theoretically possible for biosolids applied outside the buffer zone to flow toward the well is immediately to the west of the south-west corner of Mr. Shaw’s residential property. That point is at an elevation of 300 m. Even then it would have to flow cross-gradient, as opposed to downhill, to do so. According to Matt Jolley’s evidence, they did not reach that point until about 6 p.m. on August 27, which is after the plaintiff states that she smelled the odour in her water.

[65] The other timing issue relates to the time that it takes for the biosolids to move from the surface of the field where they are applied, down to the water table where they can be carried to the well. This time span would be in addition to the time it takes to move 90 m. horizontally once the biosolids reach the water table. Charles Walters, the engineer who authored the Genivar report, opined that, given the extremely dry soil, which would readily absorb the biosolids as they moved downward, and given the composition and low permeability of the soil as demonstrated by the soil samples from the field that his firm took, it could take as long as 20 days for the biosolids to travel downwards a couple of meters to the water table. And even that would require some hydraulic pressure in the form of water to push it. Given that there was no recorded precipitation for a week after the application, there would have been no rain to move the biosolids downward.

[66] Mr. Fedy’s response to this was desiccation cracks. He relied on Mr. Bingeman’s evidence that there were cracks in the soil big enough to put your finger in, that extended to a depth of as much as 3 to 4 feet. I have already noted that no mention was made in the MTE report of the existence of such cracks, and no precise measurements of such cracks were put into evidence, although Mr. Bingeman did make reference to them. In Mr. Fedy’s view, these cracks amount to a preferential pathway, and would have enabled the biosolids to get to the water table relatively instantaneously.

[67] However, Matt Jolley testified that biosolids are applied through a three-stage process as described above. The first stage, pre-tilling, breaks up the soil and would serve to disturb any cracks that may be present, before the biosolids are applied.

[68] Furthermore, the suggestion that the ground was so dry and drought-stricken that cracks as deep as 3 to 4 ft. were formed is entirely inconsistent with the description of the soil found in MTE’s own test pits: “a moist to wet, fine grained clay silt with a trace amount of sand”. One would not expect soil that had a baked and cracked hardpan extending 3 to 4 feet in depth to be described as “moist to wet”.

[69] In arriving at his opinion that it was the application of biosolids that contaminated the plaintiff’s well, Mr. Fedy also relied on the statements of the plaintiff and Mr. Wait as to the condition of the water. The usefulness of that information depends on the credibility and reliability of those reports.

[70] Did the water have an odour and was it cloudy by 5:30 p.m. on August 27 and thereafter?

[71] It must be said that there were some problems with respect to the credibility and reliability of the plaintiff’s evidence. I have already referred to two instances where I have rejected her evidence in favour of the evidence of Matt Jolley, supported by corroborating documentation, with respect to the commencement and initial location of the application and the timing of the complaint to Matt Jolley and his subsequent visit. There are, however, other instances where the plaintiff’s evidence is questionable.

[72] She testified that once she encountered the water problem on August 27, she could no longer feed water to the horses from the well, because she did not want them to get sick. She said she hauled water for the horses in plastic bins, at great expense and inconvenience. She included in her claim for damages a claim for excess mileage on her truck lease, part of which was attributable to all of the running around she did hauling water.

[73] However, on cross-examination she was confronted with her evidence on her examination for discovery that said she continued to water the horses from the barn tap because Matt Jolley said it was safe, and did so until the new well was installed. She agreed that she gave that evidence on discovery, but when she revisited the issue again on re-examination, she reverted to her initial evidence that she had hauled water for the horses.

[74] She testified in chief that they had had no rain at all for 16 weeks prior to the application of biosolids. On cross-examination she was confronted with her evidence at her examination for discovery where she said they hadn’t had rain for 16 weeks, but then the Saturday before they got “like half an inch or something”. She acknowledged the conflict and adopted her discovery evidence.

[75] Matt Jolley did not observe any cloudiness when he attended the plaintiff’s residence on August 29, nor did he smell anything from the kitchen tap or the shower, nor did he detect any odour from the well itself after he lifted the cap. He did smell a faint urine scent when the water was boiled, but it smelled nothing like biosolids, with which he was intimately familiar.

[76] Mr. Collonello said the water was clear when he attended on September 6 and 10, and he noted no odour, although he conceded that he does not have a strong sense of smell.

[77] Andrew Bingeman made no note of the water being cloudy or having an odour when he attended the site on September 7 and took a sample from the kitchen tap. Clearly this is something that would have been noteworthy on an investigation of this nature had those conditions been present, and he admitted that he would have made note of such conditions had they existed. During subsequent attendances at the plaintiff’s property, no notations as to this condition were made either.

[78] If, as Mr. Fedy postulated, this was a groundwater contamination issue due to the application of biosolids, biosolids would have continued to infiltrate the well as time passed and water was drawn from the well and replaced by more groundwater. If the biosolids were sufficient to cause cloudiness and odour on the first day, one would expect that condition to have continued and gotten worse as time passed and more biosolids had time to reach the well. The fact that no-one reported such a condition causes me to doubt the initial report of the plaintiff and Mr. Wait.

[79] I accept that there is some confirmatory evidence of odour, as attested to by Matt Jolley, although it was not an odour associated with biosolids in his view. However, the water clearly had coliform bacteria in it at the time. Even after the u.v. filter treated the water, it still registered 23 total coliform on August 29. Could that coliform have been responsible for any odour that was detected?

[80] I pause to note that the water tests taken prior to September 10 are of limited value because they all tested the water after it had passed through the u.v. filter. The word “filter” is somewhat misleading, since the device doesn’t physically filter the water in any sense of the word. It instead bombards it with u.v. rays which serves to kill bacteria in the water.

[81] The first time raw water that had not been subjected to u.v. rays was tested was September 10, from the sample taken by Mr. Collonello. It was tested by the MOE (not the Board of Health) and found to contain total coliform of 1,100, which is an enormous quantity, given that readings as low as 22 are considered to be “significant evidence of bacterial contamination” such that the water “may be unsafe to drink”. It is not hard to imagine how water with so much bacteria in it would smell and taste foul.

[82] However, just three days earlier, on September 7, a water sample was taken downstream of the u.v. filter. It had a reading of only 2 total coliform. Nothing of significance happened between those two dates that would have led to such a significant change in the total coliform count. One may therefore infer that the actual total coliform in the water on September 7 was likely similar to that measured on September 10, but that the u.v. filter had killed all but 2 of the coliform colonies.

[83] If we go one step further and postulate that the total coliform of the untreated water was in the neighborhood of 1,100 as early as August 27, that may well account for any odour that the plaintiff and Mr. Wait detected. As a matter of common sense, killing all or most of the bacteria should not affect the smell, taste and appearance of the water. If you fill a glass with turbid swamp water, and then blast it with u.v. rays and kill the bacteria, you are still left with a glass of turbid swamp water.

[84] I have already noted that water samples taken by the plaintiff in 2004 and 2005 showed total coliform of >80 and 22 respectively. These were readings of water that had already passed through the u.v. filter. One can only imagine how much total coliform was in the raw water for that much bacteria to have survived u.v. treatment.

[85] Furthermore, when Mr. Fedy was challenged to explain how biosolids could have gotten into the well so quickly that the water smelled foul by 5:30 p.m. on August 27, he said “they could have been smelling ambient air coming in through the doors and windows”. In other words, the general smell of biosolids in the air after a day of spreading could well have led the plaintiff to mistakenly believe that she was smelling that odour from the water.

[86] All of these considerations lead me to doubt the extent to which the water appeared cloudy and smelled foul on August 27 and thereafter. To the extent that it did have an odour, I am not persuaded that it had anything to do with the application of biosolids.

[87] Finally, Mr. Fedy relied on the results of the water tests to support the theory that the well was infiltrated by sewage.

[88] Mr. Fedy considered the increase in total coliform from 1,100 on September 10 to 7,000 on September 18 to be evidence of groundwater contamination. He did so based on his understanding that the well continued to be used during this period, drawing more contaminated water into the well as well water was pumped out. For this same reason, he rejected the suggestion made during cross-examination that the well water had simply stagnated during that period.

[89] However, that factual assumption was not correct. According to the evidence, the well was installed and connected on or about September 11. Once the new well was connected to the plumbing system, the old well was, obviously, disconnected. Accordingly, it would have sat stagnant for about one week during this period.

[90] Most importantly, he relied on the fact that fecal streptococcus and pseudomonas aeruginosa were found in the water samples taken on September 11 and 18, and that a small amount of fecal coliform was found in the sample taken on September 18. Testing of soil from the field where biosolids was applied found both fecal streptococcus and pseudomonas aeruginosa, albeit in greater amounts. All of this led him to conclude that the contamination in the well was the result of sewage entry.

[91] It is important to note at the outset that prior to September 11 the water was never tested for the presence of fecal streptococcus, pseudomonas aeruginosa or fecal coliform. It is impossible, therefore, to establish a baseline for the presence of such bacteria in the well, or to know whether or not it had been present before the application of biosolids.

[92] Matthew Allen is a highly qualified engineer who testified on behalf of Rutherford Farms. Like all of the engineers who testified, his qualifications were conceded. He did not attend at the site, but instead conducted what may be described as a paper review. Based on his calculations and the type of soil observed on the farm, he concluded that the biosolids, once they entered the water table, could not have moved horizontally more than 20 m. per day.

[93] However, it is his evidence regarding the relevant biology that was the most compelling. He is the only witness who provided a detailed explanation as to what the various types of bacteria found in the test results are, and where they come from. His report is dated January 11, 2011, and is filed as Ex. #20. His evidence on these points was comprehensive, coherent and unchallenged, and I accept it.

[94] He began with describing what total coliform is. Coliform is a broad group of bacteria found in the environment, originating from vegetable or animal sources. Fecal coliform is a subset of the larger total coliform grouping, defined by a temperature range found in the digestive tract. They are found in the digestive tracts of humans and animals, but are also found in the natural environment: in vegetation, soil and water, both surface water and groundwater.

[95] Similarly, fecal streptococcus is found within digestive tracts, although is viewed as sometimes more prevalent in animals than humans. It is also more prevalent in the natural environment. Whereas e. coli. (which I will get to momentarily) is more specific to the human digestive tract, fecal streptococcus is a broader grouping.

[96] Pseudomonas aeruginosa is a much more prevalent, naturally occurring bacteria, more related to natural soil environments and not so much related to the digestive tract per se.

[97] This brings us to e. coli. It is recognized as the chosen indicator for exposure to fecal matter. It is a more specific indicator than fecal coliforms, and has been determined to be the most reliable indicator of human waste exposure, and to an extent, animal waste exposure. I note that Mr. Fedy admitted that you would expect to find e. coli. in human and animal waste.

[98] Municipal biosolids are widely accepted as having very high levels of residual e. coli. For example, the average reported e. coli. concentration for City of Toronto biosolids in 2008 was 588,570 colony forming units per gram of dry weight.

[99] It is extremely significant, in Mr. Allen’s view, that no e. coli. was ever detected in any of the water samples tested. In every case, both of water that been treated with u.v. and of raw water, the e. coli. count was 0. The one test done by the MOE showed a result of <10. Mr. Allen indicated that this simply means that the results were less than their detection limit of 10. While theoretically that could mean that the water actually contained anywhere from 0 to 9 colonies, the fact remains that no e. coli. was detected on that test, nor on any other test.

[100] He rejected the suggestion made on cross-examination that e. coli. may have been present in the water on August 27 but degraded and was no longer detectable on or after September 10. He noted that other bacteria had not degraded, and had in fact increased in some cases with the passage of time, and there is no reason to believe that e. coli. would have behaved any differently.

[101] His opinion was that if biosolids had entered this well, there would have been a very high level of e. coli. in the water, that would have been detectable when the water was tested. The total lack of e. coli. in the water led him to conclude that the well had not been contaminated by biosolids.

[102] His evidence was supported by the testimony of Nancy Latimer, whose job it is to test water samples. E. coli. is a member of the coliform family, and is included in the total coliform count, but there is a separate test that isolates it. She stated that e. coli. is specifically used in water testing “as being the most accurate indicator of fecal contamination – sewage or fecal contamination.” If even one C.F.U. of e. coli. is found, the water is deemed unsafe to drink.

[103] In my view, the total absence of any evidence of e. coli. in the well water is the single most significant fact in this case.

[104] In written argument, counsel for the defendant and third parties placed heavy reliance on this evidence as offering conclusive proof that biosolids did not enter the well. There was no response to those arguments in the Reply Submissions of the plaintiff. In my view, there really is no response that could be mounted.

[105] It is clear that biosolids are simply loaded with e. coli. If biosolids had infiltrated the well to the point where it made the water visibly brown and noticeably stinky, a significant quantity of it would have to have arrived there. This is a water column of considerable volume: 8 ft. in depth multiplied by the diameter of the well, which is noted to be 1 meter. While the plaintiff testified that the water comes in at the bottom of the well and is drawn out at the bottom of the well, water cannot be compartmentalized in that fashion. The biosolids would have mixed with the rest of the water as it entered the well and must have resulted in a concentration of biosolids sufficient to colour the water brown and cause an odour. It is inconceivable that such an event would not have also deposited vast quantities of e. coli. into the water column.

[106] As the days passed and more water was drawn from the well, to flush toilets and water the horses, more biosolids would arrive at the well and be drawn in, biosolids which are laden with e. coli. As a matter of probability, one would expect to find e. coli. in the well water in steadily increasing amounts. The fact that no e. coli. was ever found in any of the water tests means that the primary indicator of sewage contamination was totally absent. As a matter of logic, this leads me to conclude that the well was not contaminated by sewage.

[107] It is significant that the bacteria that were found in water sampling are all readily found in the natural environment, and therefore could have found their way into the well through rainwater events or other infiltrations of surface water into this shallow well. The one marker that would have conclusively pointed to sewage contamination was totally absent. I find as a fact that the application of biosolids during the week of August 27 did not contaminate the plaintiff’s well.

[108] So what, if anything, led to the presence of the other bacteria that were found in the well?

[109] My first observation is that this well is a shallow dug well that has a proven history of coliform contamination. There is no reason to believe that the water was any more laden with bacteria after August 27 than it was before.

[110] But if we accept that something happened on or about August 27 that resulted in some smell to the water, a smell that led the plaintiff to jump to the conclusion that her well had been contaminated by biosolids, what was it?

[111] Everyone – counsel, the experts and the parties – focussed on the drought cracks in the ground as they related to the ability of the biosolids to get into the water table in the field. Nobody considered the drought cracks in the plaintiff’s own yard. She testified: “The whole yard was full of cracks. They were everywhere.” Mr. Wait testified that there were “big cracks appearing in the lawn everywhere”. He noticed them when he cut the grass. All experts agree that drought cracks can provide a preferential pathway to the water table.

[112] The evidence is consistent that a shallow dug well like this is susceptible to contamination from surface water. Matthew Allen testified that such a well is subject to contamination from rainwater, where bacteria is carried down into the soil by rain and enters the well. This is not hard to imagine, given that the surface of the water in the well was only 6 ft. below ground level, and the walls of the well are intentionally permeable, so as to allow groundwater to flow in.

[113] The evidence is that there had been about ½ inch of rain within two days before the application of biosolids started. That is not a deluge but it is not an insignificant amount either. Mr. Allen testified that pseudomonas aeruginosa, fecal coliform and fecal streptococcus are all prevalent in the natural environment, as are coliform bacteria in general. He was not challenged on this evidence in cross-examination, nor was any reply evidence called to contradict it, and I accept it. With preferential pathways throughout the yard, it would be easy for rainwater to pick up bacteria on or near the surface, enter the cracks in the ground in close proximity to the well, enter the water table and then enter the well itself. This is essentially the mechanism described by Mr. Fedy with respect to his theory about how biosolids entered the well, except that it does not suffer from the problems inherent in Mr. Fedy’s theory, namely:

• The need for the biosolids to travel 90 m. before entering the well;
• The need for the biosolids to find their way into the Big O and travel an unspecified distance before being released back into the soil through the perforations;
• The need for the biosolids to then find a (speculative) sand seam in order to arrive at the well within the time frame described by the plaintiff;
• The need for the biosolids to get past the drainage tile that would otherwise take it in a south-easterly direction away from the plaintiff’s well; and,
• The need for the biosolids to travel cross-gradient instead of flowing downhill as gravity demands.

[114] Additionally, as I have already noted, drought cracks in the field would have been disturbed by tillage during the first stage of application, and would be less open to infiltration, whereas cracks in the yard would be undisturbed, thus presenting an open preferential pathway.

[115] This theory is also consistent with the scientific evidence gleaned from the water samples, in that only bacteria found in the natural environment was found in the well water, and no e. coli., the primary indicator of sewage, was detected. It is also connected in a temporal sense, since the rain event happened only two days or so before the deterioration in water quality was noticed.

[116] While this theory emerges from the evidence, and therefore can properly be considered by me, it was not raised and considered by the experts, and for that reason I am not prepared to find as a fact that this is what happened. However, it must be emphasized that it is not necessary for the court to determine how the bacteria found in the plaintiff’s well came to be there. It is only necessary for the court to decide whether the plaintiff has proven, on a balance of probabilities, that the application of biosolids by Wessuc during the week of August 27, 2007 caused the plaintiff’s well to become contaminated.

[117] For the reasons outlined above, I find that the plaintiff has failed to do so. Since that threshold factual question has been answered in the negative, it is not necessary to consider the liability issue and the legal issues that are related to it. The plaintiff’s action is dismissed, as is the third party action.

[118] As a matter of housekeeping, I must provisionally assess damages. Had I found that the well had been contaminated by biosolids, and found any party liable in damages, I would have assessed the plaintiff’s general damages for the inconvenience, stress and upset she endured for almost six months at $20,000.

[119] I also would have allowed her claim for the cost of replacing the well and the plumbing system. Once a system is infiltrated by something as disgusting as human excrement, it would not be reasonable to expect the plaintiff to attempt to sanitize the system and go on using it. The result, of course, is some betterment in her situation, in that she now has a modern drilled will that is free of any risk of surface contamination. The negative side of that is that she needed to install a reverse osmosis system, to remove the iron and sulfur that this new well apparently produces. In my view, the cost of the reverse osmosis system serves to offset the betterment enjoyed by the plaintiff.

[120] The plaintiff’s special damages are, therefore, provisionally assessed as follows:

• $5,395.40 for well drilling;
• $13,929.62 for plumbing;
• $159 for analytics

Total: $19,484.02

[121] This is an unfortunate case, and I sympathize with the plaintiff. I have no doubt that she honestly believed that her well had been contaminated by biosolids. Given that she knew that human sewage was being applied to the neighbouring property, she may well have been over-vigilant, causing her to jump to the conclusion that the cause of whatever odour she may have detected was the biosolids application. However, the science simply does not support her.

[122] It is all the more unfortunate because of the dimensions that this lawsuit has taken, and the enormous costs associated with it. It is hoped that the successful parties will take a similarly compassionate view of the plaintiff’s situation as they discuss the issue of costs, with a view to resolving that issue among themselves.

[123] If they are unable to do so, I will accept brief written submissions from the defendant within 20 days, with the submissions of the third parties to follow 15 days thereafter, the submissions of the plaintiff to follow 15 days after that, and any reply to follow 10 days later. Failing that, the parties will be deemed to have resolved the issue of costs as between themselves.

“T. A. Heeney R.S.J.” T. A. Heeney R.S.J. Released: August 3, 2016.