The Saskatchewan Organic Directorate wants to follow in the footsteps of Percy Schmeiser and take its case all the way to the Supreme Court of Canada.
“There’s no question we’re heading that way,” said Arnold Taylor, chair of SOD’s Organic Agriculture Protection Fund Committee. The group is attempting to launch a class action lawsuit against the developers of genetically modified canola for preventing organic growers from producing and marketing the oilseed.
SOD recently lost its appeal to overturn a May 11, 2005, Court of Queen’s Bench ruling that its case did not meet the criteria for a class action suit under Saskatchewan’s new Class Actions Act.
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Taylor thinks there are some issues in the case that might convince the Supreme Court to grant the organic growers a leave of appeal.
“They’ve ruled on the ownership of the gene and the cell in the Schmeiser decision. But they have yet to rule on the liability. So this may interest them,” he said.
Not according to Martin Phillipson, a law professor at the University of Saskatchewan, who has read the initial Court of Queen’s Bench ruling and the subsequent Saskatchewan Court of Appeal decision, both of which resoundingly rejected the case put forward by the organic growers.
“Given these two judgments I doubt whether the Supreme Court would grant leave, to be honest,” he said.
Phillipson said the case SOD is attempting to launch is far more interesting than Monsanto’s much publicized legal battle with Schmeiser, a Bruno, Sask., farmer who was found guilty by the highest court in the land of violating the company’s Roundup Ready patent.
While that case established that biotechnology companies own the gene technology contained in crops like canola, the SOD case would have explored what obligations companies have when those genes end up in unwanted places.
Taylor is determined to have that legal debate, but even if the Supreme Court refuses to entertain an appeal he feels the money raised from donations by organic growers and associations was well spent.
He said the action focused public debate on the responsibilities of biotechnology firms.
Phillipson said the SOD case has received some media attention but nowhere near as much as the Schmeiser case, which was billed as a David versus Goliath story by the international press.
He thinks the SOD lawsuit has run its course, although he noted that Schmeiser also lost his initial case and appeal and still managed to get an audience at the Supreme Court. But since this is a procedural issue, he doubts it will have much allure.
If the liability argument over unwanted genes is going to be heard by the courts, it will have to be through a torte claim launched by an individual farmer, which is highly unlikely, he said.
“Those things go on forever. They would just cost an arm and a leg. I just don’t know who has that sort of money,” said Phillipson.
Taylor said it is only a matter of time.
“Somebody, somewhere, some time will take them to task for liability,” he said.
