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Last week's Lawyers Weekly featured a commentary by me and my colleague, Heather McLeod-Kilmurray, about the case of Hoffman v. Monsanto. Our argument is that the Court has a real opportunity to step up to the environmental plate by granting leave to appeal in this case.

We note that five years ago, Justice Binnie began his judgment in the so-called Harvard Mouse case by pointing out that the biotechnology revolution “presents potential and serious dangers as well as past and future benefits.” The question of benefits was seemingly settled in biotech firms' favour after the Court held in Monsanto v. Schmeiser that gene patents can be used to control entire plants as well as their progeny. Now the tables are turned in Hoffman v. Monsanto. The Hoffman plaintiffs say that the “serious dangers” Justice Binnie spoke about include uncontrollable and ongoing genetic contamination of canola crops and fields. Alleged damages also include clean-up costs and economic losses resulting from the inability to meet organic certification requirements. The plaintiffs lost at both the application stage and on appeal. 

We deal more with the merits of the claim in our article, but also point out that by granting leave the Supreme Court can properly put these issues in a broader biotechnological and environmental context, where they belong. If it refuses the plaintiffs' application, it will have squandered the chance to engage important national (or global) issues about biotechnology and biodiversity. This case could thrust Canada back into the global debate over genetically modified organisms and biotechnology more generally. We write that the Supreme Court should seize this opportunity to demonstrate its commitment to the environmental ideals it has already endorsed, and restore balance to this area of the law.