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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?
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