A Court of Queen’s Bench judge has rejected an attempt by Saskatchewan organic growers to mount a class action lawsuit against the developers of genetically modified canola.
In her May 11 decision, justice Gene-Ann Smith ruled the plaintiffs did not meet the five criteria of certification as outlined under the Class Actions Act of Saskatchewan.
“I conclude that a class action would not be the preferable procedure in this case,” she wrote.
The plaintiffs, Larry Hoffman and Dale Beaudoin, were attempting to mount a large-scale lawsuit against Monsanto Canada and Bayer CropScience for damage caused to organic growers by the introduction of Roundup Ready and Liberty Link canola.
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Hoffman and Beaudoin were the representative growers singled out in a suit that was to include all Saskatchewan organic grain farmers certified after Jan. 1, 1996.
According to the Saskatchewan
Organic Directorate, the group co-ordinating the lawsuit, GM canola had caused more than $14 million in damage to the organic sector by the end of 2002.
But throughout her 179-page decision, Smith made repeated references to the lack of proof that there was a sizable identifiable class of organic growers harmed by the introduction of GM canola.
She noted SOD received “fewer than five replies” to a November 2001 advertisement in a newsletter distributed to 550 of its members soliciting examples of damage caused by GM contamination.
Perhaps more damning was that out of all the evidence presented to her by the plaintiffs, there was only one instance of an organic crop rejected by a buyer due to GM contamination. That crop was later sold to a different buyer as certified organic.
While the judge heard evidence that some organic fields have been contaminated by GM canola, she concluded those claims amounted to individual grievances.
“There is no evidence that the problem is widespread among members of the proposed class,” wrote Smith in her judgment.
SOD president Arnold Taylor said he is disappointed and frustrated by the ruling.
Taylor claimed the group had all kinds of proof of harm but was under the impression that since this was just a preliminary procedural trial to determine if it had what it takes for a class action suit, it wasn’t necessary to bring all that evidence forward.
“Now all of the sudden she says you just about have to prove your case,” he said.
He sees inconsistencies in Smith’s criticism that the plaintiffs presented only one instance of a crop rejected by an organic buyer.
“That’s what the class action is all about. You have one or two plaintiffs to represent the entire class,” said Taylor.
If the lawsuit ever makes it to trial there will be all kinds of other cases before the court, he added.
Monsanto Canada spokesperson Trish Jordan said the decision sends an important message to organic activists.
“It is fine to make unsubstantiated claims, but in a court of law you have to present evidence and you have to present facts and the judge said their application was deficient in this regard.”
Jordan said SOD was using the court case as a platform for its anti-GMO beliefs and that the judge sent the group a clear signal that a courtroom is not the proper forum for that debate.
“It’s not appropriate to do that under a class action suit,” said Jordan.
Wider repercussions
Derrick Rozdeba, communications manager at Bayer, said the company is pleased with the ruling and even happier that it appears to extend beyond the certification issue.
He said the decision indicates the plaintiffs’ primary claims were not substantive enough for further judicial review.
“Even if the complainants proved everything in their claim, we feel there is no basis for liability against us. It was quite clear,” said Rozdeba.
Despite receiving an outright rejection from the judge on the bulk of the case it put forward, Taylor said SOD intends to appeal Smith’s decision and is confident the association will get the donations it needs to continue its legal battle.
“We will have enough money for an appeal, there is no question about it. And we’ll have enough money to take it to the
Supreme Court if necessary.”
