The Class Action
Monsanto and Aventis then sought leave to appeal her discretionary decision. This question was heard on June 26 and the companies were granted leave to appeal (PDF 126KB). The appeal was heard in Saskatoon on September 25, 2002. In its decision, dated October 25, 2002, the Court of Appeal overruled (PDF 42KB) the lower court judge on a procedural point and held that Monsanto and Aventis did not have to file their Statements of Defence until after the certification application was determined. The court was concerned about the certification application being split up or potentially delayed by other court applications by Monsanto and Aventis. We are now proceeding with the Class Action Application, which we expect will occur very soon.
On June 26 we were successful in finally getting a key piece of evidence. A study by the federal agriculture department (PDF 673KB) discloses that growers producing Certified canola seed for the conventional canola market cannot prevent genetic contamination of their seed by Monsanto's Roundup Ready Canola and Aventis's Liberty Link genetically modified (GM) canolas. The contamination was so severe that the research scientists who did the study recommended that four varieties of canola seed sold in the conventional canola market be withdrawn or Breeder and Foundation seed sources for the varieties be cleaned up.
On December 19, 2002 we filed documents with the Court of Queen's Bench to have our legal action certified as a class action.
On February 28, 2003 we were in court to argue against Monsanto and Aventis's application to strike large portions of the evidence we submitted for our certification application. They were claiming that the affidavits they objected to contained information that was inadmissable and/or irrelevant and/or polemic and scandalous.
Judge Smith made her ruling on April 10, allowing us to keep the substance of the material presented in our affadavits in play, though we will have to make some adjustments to how the information is presented. Read the full decision (PDF 2.6MB).
On August 6, 2003 Judge Smith established a timetable (PDF 55KB) leading up to the certification hearing for our class action.
On August 7, 2003 Judge Smith issued her decision (PDF 43KB) regarding Monsanto's objection to Larry Hoffman's reference to Dr. Mae Wan Ho's affidavit in our certification application materials. She clearly stated that Dr. Mae Wan Ho's Report was properly before the Court and once again dismissed Monsanto's effort to exclude it.
On December 5, 2003 there was hearing to consider motions by Monsanto and Bayer to cross examine a number of our affiants (witnesses). We opposed cross-examination, as our legal counsel argued that such cross-examination would be unnecessary for deciding upon certification, and would cause delays. However, Judge Smith ruled that the defendants would be allowed to cross-examine. Read Judge Smith's ruling. (PDF 474KB)
On February 2, 2004 we amended our statement of claim to include compensation for the ongoing costs of removing genetically engineered canola from certified organic farmers fields and seed supplies, to include as members of the class all certified organic farmers as of the date of class certification, and to reflect the fact that Bayer CropScience Inc. has taken over Aventis. See the revised statement of claim. (PDF 780KB)
The defendants did not contest the amendment to our claim, but they did wish to strike some of the affidavits we submitted in its support. The Court heard their arguments and dismissed the defendants' application to strike the affidavits.
Certification Hearing held November 1 to 3, 2004
The class certification hearing dealt with five questions in order to determine whether this case meets the requirements for class certification under the Class Actions Act of Saskatchewan.
- Do the pleadings disclose a cause of action?
- What are the common issues between the members of the class?
- Is there an identifiable class of persons?
- Is class action the preferable procedure for the resolution of the common issues?
- Is the representative plaintiff appropriate?
The pleadings are set out in our statement of claim. Briefly, the cause of action is to determine if, as we claim, the companies have liability and owe damages arising from strict liability, negligence, nuisance and/or trespass, as well as from violation of the Environmental Management and Protection Act of Saskatchewan (EMPA), EMPA 2002 and the Environmental Assessment Act of Saskatchewan.
Legal counsel identified 41 issues of fact and law that comprise the common issues to be tried. A key point in the common issues is the separation of liability from damages. The liability issues are common issues, which will need to be tried. A method of ascertaining the individual damages arising from the liability would be decided for each class member in a second process set out by the Court.
We propose that the identifiable class of persons would be all certified organic grain farmers who were certified at any time between January 1, 1996 and the date of class certification. Since organic certification requires extensive and meticulous record-keeping, it will be possible to make a clear distinction between those inside and those outside of this class definition. We argue that this is the narrowest definition of the class that would include all who have suffered damages as outlined in the statement of claim.
We argue that a class action is the preferable procedure for this legal action. Class actions are meant to provide access to justice for groups of people who would not have the capacity to do so if they were to act individually. This class action provides a way for many small farmers to confront two multinational corporations, something that is beyond the means of any individual.
Class actions provide for judicial economy—a wise use of the Court's time when compared with the resources that would be required for hundreds of individual trials. The costs of preparing thousands of pages of legal documents, research reports and briefs; the costs of providing dozens of expert witnesses; travel costs and court time will be incurred once, by one class action for a trial that will set an important precedent.
Class actions should lead to behaviour modification. If we are ultimately successful in this case, companies that introduce GMO crops would have to take measures to prevent contamination of other crops, and would be liable for the market loss and/or clean-up costs if contamination occurred in spite of these measures.
The representative plaintiffs in this case are Larry Hoffman, L.B. Hoffman Farms Inc. and Dale Beaudoin. Larry and Dale are long-time certified organic farmers with experience growing certified organic canola. Larry decided not to include canola in his crop rotations after GMO canola was introduced so as to avoid contamination. Dale grew his last crop of canola in 1999. When he delivered it, the buyer tested it and refused to take it when it was found to be contaminated with GMO canola. L.B. Hoffman Farms Inc. is the incorporated family farm operation that Larry operates.
Larry Hoffman and Dale Beaudoin understand and agree that as representative plaintiffs they are undertaking a duty to represent the interests of the whole class, not merely their own interests.
In his concluding remarks, Zakreski quoted from a survey of organic traders indicating that the market for certified organic canola was expected to grow from 20 to 60 per cent per year, similar to the growth of other organic crop markets in the same period and that it was lucrative—an uncontaminated producer car shipment was sold for $18.50/bushel in 1999. GMO contamination has all but reduced this market to zero.
Certification decision goes against us
On May 11, 2005 Judge Gene Ann Smith released her decision regarding certification of our action as a class action. She decided against certification. Read the decision (PDF).
We seek to overturn the decision on certification
On May 25, 2005 we filed documents with the Court of Appeal for Saskatchewan in Regina, seeking leave to appeal Judge Gene Ann Smith's May 11, 2005 decision denying us class certification under Saskatchewan's Class Actions Act. The leave to appeal documents identify numerous and serious errors in the lower court judge's decision justifying an appeal. See our Press release (PDF)
Application for leave to appeal sought and granted
Our hearing seeking leave to appeal Judge Gene Ann Smith's decision on certification was held at the Saskatchewan Court of Appeal in Regina, Saskatchewan on August 24, 2005 See our arguments in the Memorandum of Law for the Prospective Appellants. (PDF 3.8MB)
On August 30, 2005 we received the decision by Honourable Mr. Justice Cameron of the Saskatchewan Court of Appeal granting us leave to appeal Judge Gene Ann Smith's May 11, 2005 decision. Read Judge Cameron's decision (PDF 300k). Read our press release (pdf 41k).
The Appeal was heard by The Honourable Mr. Justice S. J. Cameron, The Honourable Madam Justice M. A. Gerwing and The Honourable Mr. Justice N. W. Sherstobitoff of the Saskatchewan Court of Appeal on December 11, 2006. The Appellants' Factum, which outlines the arguments that were made in our Appeal Hearing, is posted here. Read the Factum (pdf 2.7M).
Monsanto and Bayer did not file cross-appeals, yet they challenged those parts of Judge Smith's ruling that were in our favour, namely the causes of action under nuisance, EMPA 2002 and the EAA. During the appeal hearing the Court granted us leave to file a factum in response. Read the Appellants' reply factum. (pdf 976Kb)
Appeal Court decision
On May 2, 2007 the Saskatchewan Court of Appeal released its decision dismissing our appeal (pdf 152k) of the lower court ruling denying class certification.
Leave to Appeal to Supreme Court sought
On August 1, 2007 we applied for leave to appeal the Saskatchewan Court of Appeal decision at the Supreme Court of Canada.
In his Memorandum of Argument (pdf 1.5mb), Council Terry Zakreski states: This case seeks to ask whether biotechnology companies incur responsibility when their patented genetically modified seed, pollen and plants infiltrate farmland, causing harm. While Monsanto Canada Inc. v. Schmeiser confirmed that these companies have significant exclusive rights to GMO seed and plants—the question remains whether they have any corresponding duties.
The case involves legal questions of significant importance to the public, namely liability and rights associated with the development, marketing, sale and dispersal of GMOs, as well as public access to justice through class certification. The prevalence of open-pollinating GM crops on the landscape is a matter of significant environmental and public interest. These issues transcend provincial or territorial boundaries, as organic farmers in Saskatchewan can no longer grow and sell certified organic canola as a crop.