A class-action lawsuit seeking compensation for losses cattle producers suffered during the BSE crisis is now expected to go to trial in September 2019.
The lawsuit is seeking $8 billion in damages from the federal government for losses incurred when the U.S. border was closed to Canadian cattle from 2003 to 2005. It has been filed in four provinces, but the case is being dealt with by an Ontario court. In late April, Ontario Superior Court Justice Paul Perell set a trial date and made some other rulings, said Duncan Boswell, a senior partner with Gowling WLG in Toronto and one of the lawyers in charge of the class-action suit.
“He ordered a couple of findings including replacing the representative plaintiff because (Ontario rancher) Mr. Bill Sauer has unfortunately passed away,” said Boswell.
Flying E Ranch Ltd. from Alberta is the new representative plaintiff, he said.
“We finally finished up the fine tunings of the pleading that we have been doing discoveries on,” said Boswell, adding it is hoped the remaining discoveries (pre-trial procedures for obtaining evidence) will be completed by this fall.
The class-action suit includes all ranchers and dairy farmers — about 135,000 in all — who were in business from May 2003 (when the first case of BSE was confirmed and the U.S. border abruptly closed to Canadian cattle) until July 2005 (when export of live cattle under the age of 30 months to the U.S. was again allowed).
“We’re hopeful this will get to trial,” said Boswell. “By then, we can finally get this resolved for all producers.”
The lawsuit against the federal government centres around cattle imported from the U.K. and Ireland from 1982 to 1990, when Ottawa banned the importation of live cattle from countries with BSE. The suit alleges that despite promising to monitor an estimated 198 cattle imported during that time, at least 80 of those animals were “potentially rendered… and then entered the cattle feed system.” 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.
“It comes down to basically 200 cows that had been imported into Canada prior to the ban in 1990,” Boswell said in an interview in early 2017. “The government recognized the issue of BSE and recognized that it had an obligation to prevent BSE from coming to Canada, so it implemented a ban in 1990.”
But the government should have done much more, the suit alleges. It says Britain banned using bovine meat and bone meal in feed in 1988 to prevent the spread of BSE, but federal officials didn’t do the same until 1997 (even though a purebred cow imported from the U.K. in 1987 was diagnosed with BSE).
The suit alleges 80 of the 198 imported U.K. cattle — “at least 10 of which came from herds known to have BSE” — entered the animal food chain between 1990 and 1994 and were the “most likely source of the first generation of BSE in Canadian cattle.”