The Rural Voice, 2006-08, Page 48Paul G.
Vogel, a
partner in the
London law
firm of Cohen
Highley LLP.
By Paul Vogel
Canadian cattle farmers have
suffered severe financial losses as a
result of detection of BSE in a single
Alberta cow and the closure of the
borders to the United States, Mexico
and Japan to Canadian cattle and beef
products in May, 2003. For farmers
who did not purchase the
contaminated feed which caused the
"mad cow disease", did not lose any
cattle as a result of using the feed,
and who may never have exported a
cow across an international border,
does the law provide any remedy for
their Toss?
The Ontario Superior Court of
Justice has recently considered a
proposed class action brought by
such a cattle farmer on behalf of
commercial cattle farmers in Ontario
and some other Canadian provinces.
This action seeks recovery of the
economic losses of these farmers
arising from the international border
closures. Named as a defendant in
the action is the Canadian
manufacturer of the contaminated
cattle feed,
Upon a motion by the defendant to
strike out this claim as disclosing no
reasonable cause of action, the court
described the plaintiff's claim as
follows:
"As against (the manufacturer) the
plaintiff pleads breaches of a duty
of care and of a duty to warn. In
particular, it is pleaded that (the
manufacturer) owed a duty of care
to the plaintiff to use all due care
in ensuring its animal feed
products were safe, and was
grossly negligent in the
manufacture and sale of the
(contaminated feed) ...
"As stated previously, there is no
44 THE RURAL VOICE
Agri law
BSE - Who palls!
direct relationship between the
plaintiff and (the manufacturer) in
contract or arising from the usage
of the (manufacturer's) product by
the plaintiff. Nor is it alleged that
there is any other direct
commercial relationship between
them. Similarly, the plaintiff has
not lost any cattle or suffered any
property damage from usage of the
(manufacturer's) product. Rather,
the plaintiff claims, in essence,
that (the manufacturer)
negligently, recklessly or
knowingly sold a product to
another farmer that had the
potential to, and did, shut down
the Canadian cross border cattle
trade when used by the purchasing
farmer. As a result, the plaintiff
alleges that (the manufacturer) is
liable to Canadian cattle farmers at
large."
In order to pursue such a claim,
the court required that the plaintiff be
able to demonstrate both a
foreseeable risk of harm arising from
the defendant's conduct and a
relationship between the plaintiff and
defendant sufficiently proximate in
law to give rise to a duty of care.
With respect to foreseeability of
harm, the court concluded:
"When considered in conjunction
with other allegations in the
Statement of Claim which include
the voluntary ban on (ruminant
meat and bonemeal) in Australia
i,► 1996 as a prudent practice
because of the potential for BSE
infection from the use of such
feed, the participation of (the
manufacturer's Australian parent
company) in the industry group
that concluded a voluntary ban
was advisable and the allegation
that (the parent company) and (the
manufacturer) shared a common
chairman of the board of directors,
I am satisfied that the harm
alleged by the plaintiff was
reasonably foreseeable by (the
manufacturer)."
With respect to the issue of
proximity of the plaintiff and
defendant, the court considered that
liability of the manufacturer may be
determined on the basis of its
introduction into the marketplace of a
contaminated feed product which had
the potential to, and which did,
disrupt the whole of the cattle
industry in Canada. The court stated:
" ... where BSE is concerned, it
brings the supplier of feed to one
cattle owner into proximity with
all other cattle owners. If feed is
supplied which causes an outbreak
of BSE, regardless of how
isolated, all cattle and cattle
owners are affected. In other
words, all cattle owners are treated
as one contiguous whole.
"Proximity is a relative term.
Here, there are recognized
international procedures in place
that in essence mandate a
relationship between otherwise
disparate interests where BSE is at
issue. There does not seem to be
any policy reason to ignore this
reality in a consideration of
whether a proximal relationship
may exist between parties who, in
other circumstances, might not be
regarded as proximate."
In response to the defendant
manufacturer's assertion this would
unfairly impose upon it unlimited
liability to an unlimited class, the
court stated:
"(The manufacturer) allegedly
knew or ought to have known that
cattle farmers throughout Canada
were at risk should a BSE
outbreak occur as a result of the
normal use of its product ... There
is no authority for the proposition
that extensive liability is
equivalent to indeterminate
liability. It is the very nature of
tort law that seemingly
insignificant acts can have
catastrophic consequences in the
context of a proximal relationship
... Whether a person takes steps to
avoid the risks or mitigate the