BSE class-action suit takes another step

Legal: News Roundup from the June 2018 issue of Canadian Cattlemen

The BSE class-action lawsuit against the federal government launched on behalf of producers that was moving toward a possible trial date last fall is still moving through the courts.

Duncan Boswell, a senior partner with Gowling WLG in Toronto, says an amended litigation plan was approved by the court on April 30 and offers hope that a trial date can be set by next fall.

The plan contains a timetable for final discoveries of the 6,700 new documents the government introduced last fall as the case appeared headed for a trial date in late 2017.

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“These new documents are on one specific issue so they are going to produce a new person for that and we can’t do that until this fall.

“Our hope is that as soon as that discovery is done we immediately put it down onto the trial list, then it depends how quickly we can get a date.”

The original class-action claims were filed in April 2005 in the courts of Alberta, Sask­atchewan, Ontario and Quebec on behalf of cattle producers who were residents in Canada on May 20, 2003, alleging that negligence on the part of the federal government and Ridley Inc. caused the BSE crisis in Canada and billions in losses for cattle producers.

The class action was initially run co-operatively by lawyers in the four provinces but the class action was certified first in Quebec and Ontario and it was later agreed that suit would be waged first in the Ontario court. The lawsuit is seeking $8 billion in damages due to BSE from 2003 when the first case was discovered to 2005 when the U.S. agreed to accept Canadian cattle under 30 months of age.

The case focuses on the 198 head of cattle imported from the U.K. and Ireland from 1982 to 1990, when Ottawa banned the importation of live cattle from countries with BSE, and began monitoring these cattle.

In 1993, after a cow imported in 1987 was diagnosed with BSE, the government instituted a trace on all cattle imported from the U.K. and Ireland. Of the 198 head the suit alleges at least 80 had potentially been rendered and possibly turned into meat and bone meal. At least 10 of the 80 were from U.K. herds that had animals diagnosed with BSE.

It was known that the prions that cause BSE could be transmitted via feed, the lawsuit says, and the federal government was negligent because it didn’t prevent the imported cattle from being used for feed ingredients.

Britain banned bovine meat and bone meal in ruminant feed in 1988 but Canada didn’t apply its feed ban until 1997.

The Canadian Food Inspection Agency’s summary report of the first case of BSE in a Canadian cow concluded that the most likely source of BSE would have been the consumption of feed made with meat and bone meal contaminated with the BSE prion before the U.S. and Canada implemented a feed ban in August 1997.

The class-action suit has been ongoing since April 2005 when lawyers from Alberta, Saskatchewan, Ontario, and Quebec filed class-action claims on behalf of all Canadian cattle producers. Boswell and another class-action specialist were brought in by Ontario lawyer Cameron Pallett to manage the lawsuit for the original Ontario plaintiff who has since passed away. The new plaintiff for the class is the ranch named in the original Alberta case.

Feed maker Ridley Inc. settled in 2008 and agreed to pay $6 million to a trust fund, which has been used to fund the case against the federal government. Ridley was sued for having manufactured infected feed fed to a cow later diagnosed with BSE.

Although the class-action suit was filed on behalf of “representative ranchers” in the four provinces, all producers raising beef or dairy cattle between 2003 and 2005 would be eligible for a share of the award if the suit is successful.

“In the litigation plan there is provision for mediation, as well, but we have to have the government willing to do that, and if not then we go to trial,” says Boswell.

For more information on the lawsuit and court documents, see bseclassaction.ca.

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