The Saskatchewan Court of Appeal has upheld a lower court decision denying organic growers their day in court.
In its 34-page ruling, the court was sharply critical of the case put forward by the Saskatchewan Organic Directorate, which was attempting to launch a class action lawsuit against Monsanto Canada and Bayer Cropscience, the developers of genetically modified canola.
“The application for certification was replete with weakness in every respect,” said the three judges in their unanimous decision.
They agreed with nearly every aspect of justice Gene Ann Smith’s May 11, 2005, Court of Queen’s Bench ruling that determined the action did not meet any of the five criteria for certification as a class action lawsuit.
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The judges even questioned the merits of the claim, noting that organic certification bodies had no GM contamination standards in place until well after the federal government had approved the unconfined release of Liberty Link and Roundup Ready canola.
And they pointed out that the defendants did not grow the GM canola. They only provided seed to farmers who wanted to do so.
“Despite these weaknesses, those in control of the action decided to press on with it,” the judges said in their May 2 decision.
Arnold Taylor, chair of SOD’s Organic Agriculture Protection Fund Committee, is disappointed that after five years of legal expenses, organic growers still haven’t been able to overcome the procedural hurdle required to proceed with their case.
“We’ve never had a chance to present our case in court and that’s all we want,” he said.
“We think we have a point to make. I still can’t grow canola as an organic farmer without getting contaminated.”
Monsanto Canada was delighted with the judgment.
“Hopefully now the plaintiffs in this case will accept the court’s determination that their claims are without merit and stop trying to deny growers access to this beneficial technology,” said company spokesperson Trish Jordan.
“SOD and its supporters are completely ignoring the reality that all types of farming can coexist with good farm management practices, the establishment of reasonable tolerances and thresholds for adventitious presence and co-operation between neighbours.”
Martin Phillipson, a University of Saskatchewan law professor who has been following the SOD case, said a lot can be read into Monsanto’s comments.
“They’re really crowing. They’re really happy about that. Usually they’re a bit more circumspect when they comment on these things,” he said.
“I can understand that to a certain extent on the basis of this judgment in that it absolutely and utterly backs up the first judgment and it really does question whether or not there is a case to answer.”
Phillipson said the decision contained strong judicial language indicating Saskatchewan courts are not prepared to entertain lawsuits surrounding the obligations of the developers of GM crops.
“The courts just appear to be skeptical about this.”
He suggested it may be up to individual farmers to challenge the biotechnology companies. That way the merits of the case will be debated in court rather than the procedural issue of trying to get certified as a class.
Derrick Rozdeba, spokesperson for Bayer, said his company is ready for any eventuality.
“We will continue to defend ourselves vigorously should the complainants lodge individual claims, which we also consider to be without merit,” he said.
