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Yesterday the Supreme Court of Canada denied a group of organic farmers' application for leave to appeal in the case of Hoffman v. Monsanto. I was both surprised and disappointed by this decision. I've spent considerable time during the past several years researching, writing and consulting on this case. Now that this chapter of the legal dispute over liability for genetically modified crop drift is over, I'll surely take the time to prepare a final comment on the case and its implications. Meanwhile, however, I thought I'd offer some initial thoughts about the question: what happened? In a separate posting soon to come, I'll consider the question: what next?

So, what happened? Why did the Court deny the application for leave? There are several possibilities. But first let me back up a month. The Supreme Court announced on November 9 that it would be releasing its decision on the leave application the following week. Yet the day before the decision was due out, the Court reported that the decision would not be announced. At the time, I speculated perhaps this was a clerical error. Perhaps someone was late with some paperwork. Perhaps, just perhaps, the Court had a change of heart. If it was a change of heart, I didn't think the Court would decide to deny an application it initially considered granting. Probably, it could only have been that the Court decided to grant an application it initially would have denied. When in doubt, I thought the Court would take the case. Yesterday, however, we found out the Justices Bastarache, Abella and Charron considered and rejected the leave application.

At first I thought they didn't understand the importance of this case. The case raised significant issues of liability for biotechnological innovation, the co-existence of chemical and organic agriculture, and biodiversity in the Canadian environment. These are surely issues of national if not global importance. How could the Court fail to see this? Well, I don't think it did. Plaintiffs' counsel did a good job of putting these points before the Court. Maybe the judges were so overwhelmed with the breadth of technical issues that they failed to see the crucial legal and social precedents set by this case, but honestly, I think the reason for denial of leave lies elsewhere.

I wondered whether the SCC simply agreed with the merits of the Queen's Bench and Court of Appeal's decisions. As you could probably tell from my rather scathing critiques of the reasoning employed by those Courts, that would be truly heartbreaking. The Queen's Bench took 176 pages to conclude that it was plain and obvious the plaintiffs had no reasonable prospect for success. How can anything that takes 176 pages to decide be plain and obvious! And the Court of Appeal's  decision dodged Supreme Court precedents, put Saskatchewan at odds with other provinces on the test for certification, and contained only a cursory review of the merits of the decision it was supposed to consider. Did the SCC think that was ok?

The answer, I suspect, is no. Nearly everyone would agree that the denial of leave is neither an endorsement nor rejection of the lower courts' reasons or the outcome of the case. I believe there's case law on that point, but am too lazy (or depressed?) to check right now. If I'm correct that the Court's job isn't to correct errors, but is to clarify important principles of law, then even if the lower courts wrongly applied the right principles, this would give the Court the excuse it needed to deny the application for leave. The SCC denies leave in lots of poorly reasoned cases, so maybe this is just another one of those.

It was tempting for me to conclude that the denial was premised on the ground that the appeal was destined to be dismissed regardless of the Court's views on the viability of the cause of action. That is, perhaps the Court felt that this wasn't a certifiable class action, even if liability could be established. But this can't be. It would mean the SCC considered the merits of the case before deciding on leave, which conventional wisdom says it wouldn't do.

So what DID cause the Court to punt this case? Here's my best guess: fatigue with tort cases and class actions. Just in the last 3 months, I've counted 10 applications for leave to appeal in class action cases. Only a pair of companion cases will be heard. And in terms of torts cases, it seems the Court is constantly coming out with new decisions, many of which deal with the question of duty of care. Perhaps the Court just doesn't think there's much more to say about torts and class actions at this point in time. Could that be the reason?

In the end, after putting all of these possibilities in writing, I've got to admit that I'm less sure why the Court denied leave than I was yesterday. I think I have to admit that I've really got no clue what happened here. I do know, however, that this is a disappointing development. I wonder if I'd be less disappointed if I knew why the Court didn't take the case. Would you be?

Comments (3)

	1. 15-12-2007 13:35
	Not to comment on things that I know nothing about, but do you think that the court's reluctance to rule on this could indicate that they would prefer the issue was resolved by the other branches of government?    This is a complex question that involves scientific research, agricultural and environmental policy, and calls for a complex regulatory scheme. It seems to me that the court may not feel competent to pass judgment, or simply not wish to take the brunt of the political fallout that is likely to ensue.     The longer the courts have this issue, the longer the government can dodge the need to take action. Perhaps that's the next step?    Continued confusion on this issue may force the government to act. Perhaps the same way it was forced to act in the area of assisted human reproduction when the level of research and advancement in the field began to outstrip the existing policy and demand more direct regulation. Guest

Darrell

	2. 15-12-2007 14:39
	Darrell,    I see what you're saying. But shouldn't the court hear the case and put deference to the legislature in it's judgment? To me, if this is a case calling for defereence, the legislature is left with no incentive to act where the court remains mum and does not compel it to do so. Guest

Stephanie

	3. 16-12-2007 12:14
	I thought so too Stephanie, but I'm not sure it's possible. It's not like a constitutional challenge, where there is an existing law's validity in question.     The court could take some more months to rule on it, and I suppose they could say in the obiter of their ruling that the government should move to regulate the area more thoroughly - but at the end of the day, the court can't order the government to take on a certain policy, and even suggesting they do so is exactly the kind of judicial activism many in our current government love to decry.     It might add some moral weight to any subsequent calls for regulation, but if the SCC did ultimately reject the farmer's case then the government may decide there's no need to act.     At least this way, arguably, there is still enough confusion in the area that the government may be forced to heed public outcry and step in.     All we need now is a public outcry. Guest

Darrell

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