Percy Schmeiser is going to get his third day in court.
The Supreme Court of Canada has agreed to hear an appeal by the Bruno, Sask., farmer to overturn a decision that he violated Monsanto Canada’s patent on Roundup Ready canola technology.
Schmeiser was originally found guilty of that offence by Federal Court of Canada justice Andrew MacKay on March 29, 2001. MacKay’s decision was upheld by a three-judge panel of the Federal Court of Appeal on Sept. 4, 2002.
A date has not been set for the third courtroom appearance in what has become a high profile agricultural legal battle.
Both parties expect the Schmeiser case will likely come before the court next spring.
That means the final legal battle between the farmer and the chemical company will take place nearly six years after the action was initiated by Monsanto.
Since that time the firm has launched another three patent infringement lawsuits against prairie farmers. Two were settled out of court after the farmers acknowledged they had infringed Monsanto’s patent. The third case, involving a farm family in Eaglesham, Alta., is still pending with no trial date set.
Schmeiser’s is the only lawsuit that has ended up before the Federal Court of Canada. And now it has gone all the way to the highest court in the land.
“We were hopeful the unanimous decision of the Federal Court of Appeal would have put an end to unnecessary and costly legal action in this case,” said Monsanto Canada spokesperson Trish Jordan.
Schmeiser was unavailable for comment but his lawyer said his client is overjoyed.
“It came as a great relief and we’re very pleased,” said Terry Zakreski.
Of course it also means more costs for his client, who already owes Monsanto an award of $19,832 plus $153,000 in legal costs, in addition to his own legal bills. But a decision in his favour would negate what he owes the chemical company.
“It’s just a new day and it’s all wide open,” said Zakreski.
During the first appeal, Zakreski used much of the time arguing that the judge in the original trial stated that Schmeiser hadn’t sprayed his 1998 canola crop with Roundup, so the farmer never benefited from having the herbicide-tolerant canola in his field.
The Federal Court of Appeal shot down that argument, saying MacKay correctly concluded that the essence of the claim was the presence of the Monsanto gene.
In the original trial, it was determined that the gene was widely present in nine of Schmeiser’s fields, where independent tests showed 1,030 acres of Schmeiser’s canola were 95-98 percent tolerant to Roundup herbicide. MacKay ruled that such a high tolerance level meant the seed could only be of commercial quality.
Schmeiser testified that in 1998 he used seed from 1997 fields where he had discovered Roundup Ready plants. He also surmised that Monsanto’s technology could have been brought to his fields by passing trucks, wind, insects or birds.