BSE-Affected Producers Get Their Day In Court

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The statement of claim alleges officials knew by 1990 that at least 10 of the U. K. imported cattle came from herds with animals diagnosed with BSE.

Effective systems are in place to protect Canadians from exposure to BSE.”

– Federal memo, 1993.

Ten years later, on May 20, 2003, beef producers found that was not the case. For many, blame goes to federal bureaucrats who, they allege, knew BSE was a ticking time bomb, but failed to prevent it from exploding.

Another target of blame is Ridley Inc., the feed manufacturer alleged to have produced the contaminated livestock feed which caused the BSE bomb to explode.

Now producers will finally get their day in court.

An Ontario judge last month upheld a lower court ruling denying the federal government leave to appeal the certification of a national class action by Canadian cattle producers. The ruling means the action can now go to trial, nearly four years after its launch in April 2005.

The action represents Ontario cattle producers and its lead plaintiff Bill Sauer, a producer from Niagara Falls. It also includes producers in all other provinces except Quebec, where a separate case was certified as a class action in June 2007.

Producers are claiming general, punitive and unspecified damages for losses running into the billions of dollars. It is believed to be one of the largest class actions in Canadian legal history.

Cameron Pallett, the lawyer representing the plaintiffs, outlined their case in a recent interview.

Pallett said the issue began, not on May 20, 2003, but nearly 10 years earlier when Canada’s first-known case of BSE was actually confirmed.

The unlucky animal was a purebred Saler beef cow on a farm in central Alberta.

It was one of 182 U. K. cattle imported directly into Canada between 1982 and 1990.

The cow, imported from the U. K. in 1987 with seven herd-mates, became ill and was killed by its owner on November 21, 1993. Subsequent laboratory tests on brain tissue confirmed BSE.

The suspect animal was incinerated. The herd was quarantined. Herdmates and offspring of the infected animal were tracked down and destroyed.

That, from the federal government’s point of view, should have been the end of the matter. In fact, it was just the beginning.

Mechanisms in place

A December 3, 1993 memorandum from federal officials to then-agriculture minister Ralph Goodale, obtained under the Access to Information Act, outlined the department’s response. It assured the minister that “(e) ffective systems are in place to protect Canadians from exposure to BSE.”

What officials didn’t tell Goodale, according to Pallett, was that:

BSE was a feed-borne disease spread to cattle and calves through meat and bonemeal (MBM) rendered from diseased ruminants;

A ruminant feed ban was the only recognized means of preventing the spread of BSE;

Eighty of the imported cattle had already gone either to slaughter or rendering;

Denmark, which also experienced a single BSE case, had a ruminant feed ban.

In short, BSE was already in the system. And federal officials either knew it or should have known, Pallett alleges.

By 1987, British scientists had concluded that BSE was spread through feed which contained MBM from infected animal carcasses. A 1992 OIE report recommended a ruminant-to-ruminant MBM ban as the best way to prevent the spread of BSE. The British had already enacted such a ban in 1988.

Feed ban delay

Canada banned the import of live cattle from the U. K. in 1990. But it did not implement a feed ban until 1997. In the meantime, potentially BSE-infected cattle were either still living on Canadian farms or had gone to rendering. And the prion causing BSE was already present in livestock feed.

The government of Canada’s Animal, Plant, Food Risk Analysis Network risk assessment in May 1994 rated the potential economic impact of BSE on Canada as high. It warned, “(F) urther cases of BSE would likely prompt a trade embargo against Canadian exports of cattle, beef and dairy products for an indefinite period of time by some or all of importing countries.”

The risk assessment also warned about the “loss of animals and production to individual producers,” that BSE would “necessitate changes in rendering policies and industry measures,” and that the “political and public outcry would be damaging to confidence in government programs.”

Which is exactly what would happen, although no one realized it at the time.

But Pallett charged that officials knew that BSE was in the system and did nothing about it until too late.

The statement of claim alleges officials knew by 1990 that at least 10 of the U. K. imported cattle came from herds with animals diagnosed with BSE.

Officials also allegedly knew in 1993 that potentially infected imported animals were in Canada, that MBM from such animals was in cattle feed and that even a small ingested amount could cause BSE in a healthy cow.

Too late

Nonetheless, Ottawa did not announce a ruminant-to-ruminant MBM ban until April 1997. It went into effect in October. According to Pallett, the MBM shipment which would have infected the 2003 Alberta cow left the feed mill in late February 1997. The ban came seven months too late.

What should have been done? Pallett said bureaucrats should have imposed a feed ban immediately after the infected Saler cow died. Not only that, but they should have done an immediate traceback of the dead imported cows, determining where they went and where they ended up, he said.

The federal government purportedly had a “monitoring program” for the cattle. But it appears to have applied only to live animals, not dead ones, Pallett said.

The statement of claim concluded “it was reasonably foreseeable in 1990 that permitting the feeding of ruminant remains to cattle in Canada could and would result in the transmission of BSE to healthy Canadian cattle.”

It also calls Ridley negligent in the matter. The formerly Australian-owned feed company has reached a settlement capping its liability at $6 million. The money has gone into a fund that will pay for the ongoing legal action.

Sauer’s suit now also includes a claim of “misfeasance in public office,” alleging that John Kellar, then-associate director for animal disease control at Agriculture and Agri-Food Canada, knowingly withheld knowledge of BSE in Canada until May 20, 2003. (NOTE: John Kellar is not named as a co-defendant in Sauer’s suit. Earlier versions of this article which stated otherwise are incorrect. Alberta Farmer Express regrets the error.)

All the above allegations are only claims which have not been proved in court. The federal government has until April 6 to file a statement of defence.

Pallett said his clients are open to settling the matter out of court. The case could take up to another four years to come to trial and possibly even four more years to wind its way through the courts.

The immediate issue right now is not the amount of damages; it’s the process, he said. [email protected]

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