No, organic farming hasn't yet fallen out of fashion. But given last week's legal developments, it soon may. The Saskatchewan Court of Appeal has rejected
organic farmers' appeal of a lower court decision denying their claim
that Monsanto and Bayer CropScience might be liable for contaminating
organic crops with genetically modified canola. In doing so, the Court
ignored abundant expert opinions and scholarly research that
overwhelmingly suggested the lower court decision was wrong in several
respects. We will know by August 2 whether the organic farmers will try
to take the case to the Supreme Court of Canada.
In their initial application for certification as a class action the
plaintiffs had employed a shotgun strategy, alleging all conceivable
bases of liability with the hope that one would stick. I discuss the
challenges arising from such tactics, and possible solutions, in an
article forthcoming in the UBC Law Review called, "The Rights and
Responsibilities of Biotech Patent Owners." In short, it overwhelmed
the plaintiffs and consequently Justice Smith. So much so that she felt
it was plain and obvious that there was no reasonable prospect for
success.
To explain how anything that takes 177 pages (the
length of Justice Smith's reasons) to resolve can be "plain and
obvious," Justices Cameron, Gerwing and Sherstobitof of the Court of
Appeal remarked that "thoroughness is not to be confused with excessive
rigour." Rather than considering whether it is plain and obvious that
the statement of claim disclosed no cause of action, as the Supreme
Court has said is appropriate to do, they rejected the application of
that test. Surprisingly, the appellate judges dismissed the
"embellishments" adopted by courts in other provinces as misleading
gloss, and substituted their own requirement that there exist "a
plausible basis in principle and presumed fact for supposing the
defendant could be held liable."
Noting that Justice Smith had "painstakingly"
considered each alleged cause of action, the appellate review of her
findings was rather cursory. The judges lumped together the common law
principles of negligence, nuisance and trespass. They found no material
error in her analysis, and stated that they largely agreed with her
analysis.
There was, according to both Justice Smith and the
Court of Appeal, no sufficiently proximate relationship to give rise to
a duty of care. And even if there were, the fact that the government
permitted the unconfined release of genetically modified crops into the
environment was a powerful policy reason to deny liability. The
appellate judges also seemed to blame private organic organizations for
setting standards concerning genetically modified crops too late and
too high. With that brief analysis, they concluded there is no
plausible basis for a claim in negligence. They ignored the fact that,
in my view, this case involved a fairly routine products liability
claim in which duties of care are well-established.
The Court of Appeal referred to Justice Smith's
belief that the implications of holding a manufacturer, or even
inventor, liable in nuisance would be too sweeping. While that's true,
the Court ought to have considered whether the defendants -- as patent
owners -- could have been liable for the actions of their licensees,
just like landlords can be liable for the actions of their tenants. I
make this point regarding the law of trespass in an article forthcoming
in the Bulletin of Science, Technology and Society called
"Biotrespass." And speaking of trespass, the appellate judges agreed
that the defendants' actions did not directly cause the plaintiffs'
losses.
As for the statutory causes of action, Justice Smith had held that the Environmenal Management and Protection Act, 2002 or the Environmental Assessment Act
might give rise to a narrow cause of action. But the Court of Appeal
took even this tiny success away from the plaintiffs, saying that such
a claim is "unrealistic."
Not only did the appellate judges reject the
appeal on the ground that there was no plausible cause of action, they
also upheld all other aspects of Justice Smith's decision. The Court of
Appeal agreed that organic farmers were not an "identifiable class",
there were no "common issues" and a class action was not the
"preferable procedure" to deal with any claims organic farmers might
have. Perhaps most problematically for the Court, the entire action
appeared to be driven not by the proposed representative plaintiffs but
by the Saskatchewan Organic Directorate.
On the whole, if one thought things couldn't get
worse for organic farmers than Justice Smith's decision, think again.
The Court of Appeal extinguished the plaintiffs hopes for a class
action. More than that, however, by endorsing Justice Smith's analysis
of the causes of action the Court slammed the door on any would-be
individual suits.
Given the inter-provincial conflicts the Court has
created, the important legal principles at stake and the obvious
significance of this case to Canada's entire agricultural sector, I
have a hunch the Supreme Court would grant leave to appeal. However,
whether the plaintiffs have the will or the means to press on is
another matter.
In addition to the legal principles and practical questions raised
above, there are many other things about this decision one could gossip
about. For starters, why did the Court of Appeal refuse to hear from
environmental organizations as intervenors? Isn't it strange that the
Court did not cite a single one of the literally dozens of academic
articles written on this topic and even on this specific case? Did it
matter that shortly after the decision on the initial application,
Justice Smith was elevated to the Court of Appeal and now sits
alongside the authors of the appellate judgment? Stay tuned for my
thoughts on these and other intriguing questions in a more formal case
comment, which I'm already working on.
[UPDATE: LexisNexis' Law/Net Digest of the case is now available here.]
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