Failed appeal could leave farmer broke

Perhaps fittingly, Percy Schmeiser’s appeal came to a close with

lawyers spatting about money.

At the end of the second day of proceedings, lead lawyers for Schmeiser

and Monsanto Canada duked it out about how much profit the Bruno,

Sask., farmer derived from his 1998 canola crop.

According to Schmeiser’s lawyer, Terry Zakreski, profit determination

was one of 17 errors that Federal Court justice Andrew MacKay made in

finding Schmeiser guilty last year of violating Monsanto’s patent for

the Roundup Ready canola gene.

Schmeiser is appealing the March 29, 2001, decision and supplementary

judgment in which MacKay awarded Monsanto $153,000 in legal costs and

the profits from Schmeiser’s 1998 canola crop, which he determined to

be $19,832.

Monsanto lawyers say the case is all about protecting the company’s

patent. Schmeiser says it’s about property rights and the right of a

farmer to grow his own seed.

But at the heart of the Schmeiser appeal is a battle about money –

Monsanto’s ability to control the profits derived from growing Roundup

Ready canola and Schmeiser’s attempt to avoid paying hundreds of

thousands of dollars to the chemical company.

As it stands, Schmeiser is on the hook for $172,832, but the appeal

could end up costing him a whole lot more or a whole lot less.

If he wins the appeal, he may owe nothing. If he loses, he could end up

paying Monsanto another $86,103 plus legal costs associated with the

appeal, which a company spokesperson has estimated at around $30,000.

That would bring Schmeiser’s total bill to $288,935, not including his

own legal expenses.

Zakreski told the three Federal Court of Appeal justices that MacKay

went too far in granting relief. He said the objective of the trial

judge should not have been to punish Schmeiser but to prevent “unjust

enrichment” of the farmer.

Evidence in the trial showed that Schmeiser didn’t spray his canola

crop with Roundup so he never made “one nickel of profit” from the

genetically modified canola found on his land, said Zakreski.

Therefore, taking away all of the profit from his canola crop was

“inequitable and unjust.”

Monsanto’s cross appeal also focused on MacKay’s profit figure. Company

lawyers pointed out that during a cross examination in the original

trial, Schmeiser’s accountant determined that the profit from the

farmer’s 1998 canola crop was $105,935, about $86,103 more than the

amount awarded to Monsanto.

MacKay’s award was scaled back from that $105,935 figure because it

didn’t include Schmeiser’s labour costs, which should be recognized in

a proper accounting of profits.

But during the appeal, Monsanto lawyer Art Renaud argued the onus was

on Schmeiser’s lawyers to prove those costs, something they never did

during the original trial.

Neither argument seemed to sway the appeal judges, who indicated that

$19,832 was a good compromise. At one point during the appeal, justice

Julius Isaac expressed his views to Zakreski.

“The trial judge must be right if you are unhappy with it and Mr.

Hughes is unhappy with it.

“He was asked for the moon and he didn’t give it to them.”

Toward the end of the appeal, Zakreski pointed out that in pre-trial

documents, Monsanto was originally seeking a much smaller profit figure

of $35,034. Hughes said Monsanto was prepared to accept that figure in

an attempt to bring the issue to a close, but Zakreski declined the


Schmeiser said if he loses the appeal, it will leave him broke.

“I’d have to sell the rest of my land. It would totally destroy me as a

farmer,” said Schmeiser on the steps of the Saskatoon courthouse.

Monsanto spokesperson Trish Jordan said any money the company gets from

the trial will be placed in its corporate giving program, which helps

fund groups like 4-H.

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