Mad-cow class action gets judge's clearance

This may be a very big case

The Globe and Mail
Kirk Makin

A $10-billion class action lawsuit targeting the federal government for economic losses caused by a devastating outbreak of mad-cow disease in 2003 has been given a green light to proceed.

Madam Justice Joan Lax of Ontario Superior Court permitted the class action yesterday by 115,000 cattle farmers to pass the all-important stage of legal certification, noting that the evidence they have amassed "speaks to the enormity of the economic consequences to cattle farmers from the discovery of bovine spongiform encephalopathy.

"BSE was a catastrophic event for Canadian cattle farmers," Judge Lax added.

The case will proceed to trial unless the defendants elect to settle - as is commonly the case after a class action is certified.

In her ruling, Judge Lax explicitly rejected a federal argument that a messy courtroom battle could play into the hands of the U.S. cattle lobby, which hopes to permanently close the border to Canadian beef and cattle products. "This may be a difficult political decision, but it is not a reason to deny certification," she said.

The class action faults federal inspectors for negligently allowing a situation where a single case of bovine spongiform encephalopathy - a fatal neurological disease in cattle that is transmitted when healthy cattle eat food containing the rendered remains of infected cattle - closed international borders to Canadian cattle.

The plaintiffs allege that the diseased cow was infected as a direct result of the failure of a federal program set up to monitor 198 cattle imported from Britain in the late 1980s. They claim that 80 of the 198 cattle, which could potentially have been exposed to BSE in Britain, were negligently allowed to enter the food chain.

Regardless of who was at fault, "BSE was a common disaster for cattle farmers," Judge Lax said yesterday. "Immediately following May 20, 2003, the livestock of all cattle farmers was worth significantly less. Cattle and calf receipts were cut in half. Foreign sales were eliminated for all."

Cameron Pallett, a lawyer for the plaintiffs, said in an interview that the government's failure in the case "wasn't just a screw-up, it was a cover-up.

"Given that the Prime Minister has continually brought to our attention his fundamental belief in family values - and given the widespread and incontrovertible suffering caused by the BSE crisis to hard-working Canadian farm families - one can only hope he would choose this moment to step up to the plate and compensate these people for the losses caused by the gross negligence of his predecessors," he said.

Government lawyers vigorously opposed certification before Judge Lax, arguing that the farmers' cases have little in common with one another, and that existing compensation programs offer a better solution to their problems.

However, Judge Lax said that the negligence issue can be resolved with relative speed at an eight- to 12-week trial, giving the farmers access to justice in a case where no individual farmer could possibly have taken on the government alone.

While the class action also targeted the company that allegedly manufactured the contaminated feed, Ridley Inc., Judge Lax approved a measure yesterday that effectively eliminates it from the legal fray.

Ridley agreed to pay a $6-million settlement to the plaintiffs - a sum that will be used to cover legal fees for the continuing litigation, Mr. Pallett said.

"Even if we had turned them into a smoking crater, Ridley didn't have enough money to provide meaningful compensation to the class members," Mr. Pallett remarked. "Not even close."