Organic Class Action Against Monsanto Moves Forward in Canada

Saskatchewan Organic Directorate
Organic Agriculture Protection Fund
Box 130 Canwood, SK S0J 0K0 CANADA
Phone: 306-468-2218 Fax: 306-468-2346

wyatt@saskorganic.com
lester.wyatt@saskorganic.com

http://www.saskorganic.com

Media Release

November 8, 2004,

Saskatoon, Sask. CANADA

Court hears farmers’ bid for class certification in GMO liability case

The class certification hearing for the certified organic farmers of
Saskatchewan versus Monsanto and Bayer, Hoffman et al versus Monsanto et al,
was held at the Court of Queen’s Bench in Saskatoon, Saskatchewan on
November 1, 2 and 3, 2004. Hoffman et al versus Monsanto et al stands to
establish Monsanto and Bayer’s liability for losses due to contamination of
certified organic crops and farms by the two companies’ genetically
engineered canola.

GMO contamination has occurred to the point that farmers have all but
stopped attempting to grow certified organic canola in Saskatchewan. Farmers
have thus been denied the opportunity to serve the growing and lucrative
market for certified organic canola which was developing at the time GMO
canola was introduced. Furthermore, GMO canola from neighboring farms
increasingly appears as weeds or volunteers in certified organic fields. It
must be removed, and steps must be taken to ensure that GMO canola does not
contaminate current or future crops in that field in order to maintain
certified organic status for the crop, field or farm.

The costs of cleaning GMO canola are presently born by the certified organic
farmers. If successful, this case will instead place liability for these
costs and losses on the corporations that developed and commercialized these
GMO crops.

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 (see HYPERLINK
"http://www.saskorganic.com/oapf/legal.html"
http://www.saskorganic.com/oapf/legal.html ). 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.

Judge Smith reserved judgment. We expect she will deliver her decision early
in the new year.

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For more information please contact:

Arnold Taylor, Chair, OAPF Committee, phone: (306) 252-2783 or (306)
241-6125

Marc Loiselle, Research Director, OAPF Committee, phone (306) 258-2192 or
(306) 227-5825

For details of the class action suit, please see http://www.saskorgan