It’s been more than a decade since it started, but a class-action suit against the federal government for damages incurred as a result of BSE could be going to trial by the end of the year.
“We had the first round of discoveries for 2015 and various questions arose from that, that there were outstanding for the government to get back to us,” said Duncan Boswell, a senior partner with Gowling WLG in Toronto, and one of the lawyers in charge of the class-action suit.
The lawsuit is seeking $8 billion in damages stemming from the BSE crisis from 2003 to 2005. It has been filed in four provinces, but the legal battle will be first waged in an Ontario court.
“The thought process here is that if the class action proceeds, if it goes to trial in Ontario, the results of that would be influential across the other provinces,” said Boswell.
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,” said Boswell. “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).
“Why that didn’t happen earlier — that’s up to the government to answer, which is the lawsuit,” said Boswell.
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.”
The government was negligent in allowing that to happen and for not warning producers about the risk of using feed containing meat and bone meal, it says.
The class-action suit has been dragging 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 (Malcolm Ruby, also of Gowling WLG), were brought in by Ontario lawyer Cameron Pallett to manage the lawsuit for the original plaintiff, a cattle producer from Ontario.
The class action now includes all ranchers and dairy farmers 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 focused on damages in that time frame,” said Boswell. “It had a devastating impact on the farmers. There have been lost farms, tragic circumstances, and personal circumstances for a variety of these farmers. It was complete devastation to the industry.”
In a 2009 statement of defence, federal government lawyers argued the government consistently took appropriate steps over the years.
At first, there was only “minimal understanding” of BSE following its discovery in 1986.
“When BSE came to the world’s attention, the prevalent theory was that the vector for BSE transmission was contaminated sheep material in cattle feed,” the statement of defence says. “However, scientific experts working on the disease could not rule out the possibility that the original occurrence of the disease was spontaneous, or that the disease was spread by other means.”
Even when it was recognized that meat and bone meal used in cattle feed could be a means of transmitting BSE, it was believed that this “did not represent a risk of transmission if the animal did not show signs of being infected at the time it was slaughtered,” the lawyers argued in the statement of defence.
It was only in 1996 that the World Health Organization recommended banning the use of animal protein in livestock feed and Ottawa did just that the following year, despite opposition from cattle organizations, the statement says. However, the imported British cattle weren’t considered an issue because all but 10 had died, been exported, or came from herds with no history of BSE. Moreover, the feed-manufacturing system in North America is so complex, it would have been impossible to monitor everything and ensure there was zero cross-contamination, the statement adds.
“Even if a feed ban had gone into effect prior to 1997, it is likely there would have been an indigenous case of BSE of U.K. origin,” says the statement. “The only way the introduction of BSE from that source could have been prevented would have been to completely ban the import of U.K. cows in 1980 or earlier. There was no reason to do so, nor where (sic) there any grounds to do so.”
End in sight?
Dealing with the lawsuit has taken so long because there were a number of motions at the beginning of the process certifying it as a class action, and a number of appeals.
“By the time that all resolved itself, you had to deal with the heavy lifting of marshalling the facts and doing the discoveries and getting the documents from the government going forward,” said Boswell. “It took from 2015 to get the discoveries to occur. We’ve been told by the government that an extremely large volume of further documents will be coming our way.
“It is a very massive case and it takes a long time to gather the documents, review the documents, figure out questions you need to ask, and ask them.”
Although the class-action suit was filed on behalf of “representative ranchers” in Alberta, Saskatchewan, Ontario, and Quebec, all producers with beef or dairy cattle during the 2003-05 period will get a share of the proceeding if the suit is successful.
“Provided we are successful on the lawsuit, we will be involving and publicizing to the ranchers about how they would be able to come and collect,” said Boswell.
While the government is providing documents for the case, Boswell said he is hopeful either a trial or settlement will happen this year.
“I’ve had discussions with counsel for government and we have agreed it would be beneficial to try to complete the discoveries by early spring or summer if at all possible, with the game plan of trying to set the matter down for trial by the end of the year,” he said.
Feed maker Ridley Inc. was also named in the original suit, but the company settled in 2008. Ridley 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.
For more information on the lawsuit and court documents, see bseclassaction.ca.