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Summary of Recent Court Events

December 5, 2003 and February 2, 2004 Hearings

by Marc Loiselle, OAPF Communications and Research Director

In the past couple months we have had two court hearings, an amendment to our claim and court decisions as described below. The timeline set in August 2003 has been changed and the much anticipated Certification hearing has been pushed back again.

The December 5th, 2003 hearing was to consider applications pertaining to the motions by Monsanto and Bayer to cross examine a number of our affiants (witnesses). Monsanto’s legal counsel argued that although it has not been the practice in Saskatchewan to cross examine witnesses based on past jurisprudence (prior to enactment of the new class action legislation) there appear to be significant conflicts between some of the affidavits, warranting cross examination of six affiants. Furthermore, he argued that Monsanto wants to get information necessary to the case that is not included in the affidavits, and that it questions whether our two representative plaintiffs are the best representative plaintiffs.

Bayer’s legal counsel noted the extraordinary nature of the class action. He said that if it is certified the case would mean a considerable expenditure and effort by all parties involved. He argued that it has been difficult getting information relevant to the case. Bayer argued that it was difficult to obtain information about the organic industry because those in it have an aversion to speaking to large multinational companies such as Monsanto and Bayer. He is questioning the size of the class and the absolute prohibition for presence of any “adventitious GMO material” as per organic certification standards.

Our legal counsel countered by arguing that it has been a long and well-established rule in this province, which is unique within Canada, to not allow cross examinations prior to trial. He argued that insofar as the motion to cross-examine was concerned, the defendants were relying mainly on Ontario practice where rules expressly permit such cross examinations, however cross examinations in Saskatchewan are done very rarely. He argued that there has to be a legitimate and sincere need to cross-examine and that any request be based not on merits of the case but refer only to issues pertaining to granting certification of the class action.

As to the defendants’ complaints about the representative plaintiffs being linked to the Saskatchewan Organic Directorate (SOD), our legal counsel argued the fact the plaintiffs need to take direction from the class, the organic farmers of Saskatchewan, represented by SOD, the organization that best represents their interests and concerns. He further argued there would be nothing to be gained by cross-examining the two representative plaintiffs and therefore the defendants’ request is pedantry (nitpicking).

As to the defendants’ questioning affidavits regarding amount of monetary loss and number of farmers eligible for inclusion in the class, our legal counsel argued that these figures were introduced to establish merit, not to be so specific in actual loss. If the class action is granted, then global losses will need to be determined for trial. As to number of farmers in the class, he restated the fact that the class is not restricted to those who had been growing canola and/or to certain regions of the province, and that it does necessarily include all organic grain farmers regardless of location in the province. The defendants’ assertions that canola is not well suited for organic production is ridiculous.

In concluding arguments Bayer’s legal counsel again suggested that there is an issue as to where canola is or isn’t grown and that there are maybe 4 or 5 class actions being wrapped up into one request that also includes Roundup Ready wheat.

Our legal counsel argued that there is an onerous burden on the representative plaintiffs, therefore there is need for the Saskatchewan Organic Directorate to support the action with the Organic Agriculture Protection Fund and committee. He concluded that overall, for the purpose of certification hearings, the defendants’ requests for cross examinations is not founded. Ontario legal practice should not be used as precedent for Saskatchewan.

Judge Smith suggested that if there were to be cross examinations, they would need to be done in January. We were disappointed that Judge Smith, in her December 31st decision (PDF 474KB), decided to allow cross examinations of our affiants.

Claim amended, February 2nd, 2004 This date was set last summer for the long-awaited class action certification hearing, but by January we knew that the certification hearing would likely be postponed to late March pending what transpired in court on February 2. (Note: We need to get our case certified as a Class Action lawsuit before we can proceed to trial, but we are considered a class action unless we are told otherwise by the Court.)

The February 2nd hearing was therefore set for arguing our latest amendment (PDF 780KB) to our statement of claim, which expands the time parameters for the plaintiffs involved, uses Bayer’s name in the proceedings from now on, and expands the claim to include recognition of the ongoing organic crop contamination by GM canola and the need for subsequent and on-going cleanup.

It appears that the defendants had already conceded the amendment. Judge Smith announced that she will grant the amendment to our claim. We are of course very pleased with this decision.

However, Monsanto has applied to the court for a motion to strike down some of the recent affidavits in support of this amendment to the claim. Bayer is likely to do the same.

There appears to be intent by the defendants to delay advancing the case, increasing our costs and pushing back an eventual decision on our claim.

This lawsuit is the first class action case in Saskatchewan. The Class Action Act was proclaimed into law January 1st, 2002 and we launched our lawsuit very shortly afterward on January 10th. Because this is the first case, precedents will be established at each step along the way. This in itself prolongs the case and delays advancing to trial. The defendants therefore appear to be taking full advantage of the circumstances to make whatever requests of the court they hope might be granted.

So the February 2nd court hearing dealt quickly with our motion to amend the claim, allowing it. The remainder of the time was spent scheduling Monsanto's further motion to strike affidavits filed with the new amendments, although our counsel was prepared to proceed with argument that day. Cross examinations of some or our affiants, granted in Judge Smith’s Dec 31 decision, have not yet been completed. Add to that the probability that Bayer will file its own motion to the court to cross examine new affiants, and absences due to winter vacations and other hearing and trial dates for the lawyers and judge, the timeline was deemed too tight for getting all steps done prior to the rescheduled Certification hearing date at the end of March.

It was decided that the next court hearing would be February 26th to hear arguments on motions to strike affidavits filed in support of the amendment to our claim. Allowing time for a decision to be rendered and possible cross examinations, the Certification hearing was re-scheduled to mid-May, 2004.

Please note that these court sessions take place at the Court House on Spadina Crescent in Saskatoon and are open to the public. You can come and take in some of the ongoing action as we move forward slowly but surely towards certified class action status and trial dates.

February 26, 2004 Hearings

by Doug Bone

The February 26 hearing in Court of Queen's Bench Saskatoon was to consider motions by Monsanto and Bayer to strike recent affidavits in support of amendments to the Plaintiff's claim. The amendments included expanding the time frame for the Plaintiffs involved, using Bayer's name in the proceedings, and to expand the claim to include recognition of the ongoing organic crop contamination by GM canola and the need for subsequent and on-going cleanup. (See February update for details of amended claim.)

Legal counsel for Monsanto applied to strike the affidavits of Marc Loiselle, Bob Willick, Martin Pratchler, Douglas Sawatsky and Brian Kozisek, and dealt with each in some detail. Counsel for Bayer moved to strike portions of affidavits by Willick and Pratchler.

In general, Monsanto argued that the affidavits in question were redundant and anecdotal with too much irrelevant "editorializing", and thus did not meet the criteria of admissibility. Counsel said that because this case is important and precedent-setting, the criteria for accepting affidavits has to be kept very clear. He said "if read as a group, they were prejudicial to Monsanto". He said of the Pratchler and Sawatski affidavits, that it would "not affect the plaintiffs case if they were thrown over the gunnel."

The portion of the Willick affidavit Bayer applied to strike concerned the affiant's negative opinion of Liberty Link canola. Counsel also suggested that paragraphs 5 to 11 in the Pratchler affidavit tended to impugn reputations.

In his opening response to the Defendants, counsel for the Plaintiffs,Terry Zakreski, stated that the amendments and the affidavits supporting them are important to show that even if the plaintiffs are not growing canola, they are still experiencing GMO contamination. With such contamination there is an associated cost to remove the contaminating material, and a difficulty to grow subsequent crops such as mustard.

Counsel for the Plaintiffs then dealt with each motion to strike in turn:

  • Loiselle: In his Brief, Zakreski stated that the Defendant's attack on this affidavit was primarily regarding a letter from the affiant's certifier, OCIA, which the Defendant claimed had been altered. The letter was not altered and appeared to be missing text because of a misprint. Council for the Plaintiffs filed an affidavit from Loiselle and a letter of explanation from OCIA, and remarked that "…a courtesy phone call or letter would have been appreciated before launching a court application accusing Mr. Loiselle or counsel herein of doctoring a court document".
  • Willick: This affidavit is not prejudicial and establishes a number of facts integral to the Plaintiff's claim. These include a copy of the Technology User Agreement (TUA) used by Monsanto, which verifies that Monsanto retains ownership of its transgene (and therefore under pollution legislation and common law, also the consequences for damages caused).
    This affidavit verifies the Plaintiff's claim that there was a segregation system put in place by Monsanto and Bayer's predecessor in 1996 to protect the export market. It was dropped in 1997 despite the companies' knowledge that this action would spell the collapse of the European canola export market.This affidavit confirms the Plaintiff's contention that the Defendants did not warn the users of their products about potential contamination or (apart from 1996) necessary segregation measures.
    The comment in this affidavit of dissatisfaction with the herbicide and product is fair, given the Defendant's affidavits which put organics in a negative light.
  • Pratchler: This affidavit further verifies contamination issues and clean up costs associated with stray transgenic canola, although Monsanto has not yet confirmed whether the samples they have taken are Roundup Ready. Monsanto appears to be sitting on the samples. If Monsanto verifies the samples do not contain their gene, the affidavit will be withdrawn.
  • Sawatsky: This affidavit documents an instance of how a certified organic farmer can suffer loss even though not growing canola. Brown mustard seed he had saved from his own farm was unusable because it was discovered to be contaminated by GM canola. The affidavit also verifies the subsequent costs of lab testing and seed replacement.
  • Kozisek: The purpose of this affidavit is to clarify the position of OCIA International on the issue of adventitious GMO contamination under the National Organic Program (NOP), by correcting a misleading statement which appeared in an earlier affidavit filed by the Plaintiffs. The OCIA position is important because it is authorized to interpret and apply the NOP ... unlike Edward Korwek, the expert relied upon by Bayer Cropscience.

During the proceedings Judge Smith stated that she had a general concern with the defendant's motion, and was disinclined to strike these affidavits. In her decision (PDF 99KB) rendered the same day, she refers to the affidavits describing GMO contamination: “…it is in my view broadly relevant to the issues raised in the pleadings and offers some evidence that members of the proposed class are affected by cleanup problems, even if they do not grow or market canola. This is an issue that is relevant to the section 6 criteria.” (Class Actions Act) (PDF 126KB)

Judge Smith dismissed the Defendants’ application to strike all or portions of the Plaintiff's recent affidavits. In the ruling she says in part, "...I am not prepared to take a narrow view of relevance to the certification application prior to the hearing of that application, when I will have all of the material before me, including the parties' arguments."

Counsel for both the Defendants and the Plaintiffs will be cross examining some of each other's witnesses prior to the Certification hearings. It was also reaffirmed that the date for hearing the Application for Certification will likely not take place until mid May at the earliest.

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