Nearly two decades on, BSE class-action lawsuit goes to trial

The trial is expected to last until late June and it may be next year before a verdict is handed down

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A long-awaited class-action lawsuit which could award Canadian ranchers and dairy farmers reparations for damages caused from bovine spongiform encephalopathy (BSE) is finally before the courts.

The class-action lawsuit against the federal government, initially launched in 2005, 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 the federal government was negligent because it didn’t prevent the imported cattle from being used for feed ingredients.

After the first BSE cow was discovered in Alberta in 2003, the border slammed shut and caused immense financial and personal losses, said Duncan Boswell, one of the lead counsels on the suit, and a senior partner with WLG Gowling in Toronto.

“People’s life work was lost,” he said. “It was an economic disaster. It was preventable and foreseen by the government that these things would happen. And it did not take the right step, in our view, to have prevented this.”

Between 100,000 and 130,000 ranchers and dairy producers suffered losses from the time the American border closed in May 2003 to its reopening (to cattle and bison under age 30 months) in July 2005, he said.

Duncan Boswell. photo: Supplied

“It was estimated that the losses were between $7 billion and $8 billion,” said Boswell. “The government did provide some assistance to the farmers. When you take that into account, the losses are between $3 billion and $5 billion.”

Bringing the case to trial has been a very long affair. The original representative of the plaintiffs was an Ontario rancher named Bill Sauer. But he passed away before the case went to trial and was replaced by Larry Sears of Flying E Ranch near Stavely.

The court has scheduled 77 days for testimony from witnesses but even if the trial ends as scheduled in June, a decision from Justice Paul Schabas is some ways off.

“It’s likely that after all the evidence comes in, the judge may want us to take some time before we do our closing argument, to try to marshal all the evidence together to assist the judge, with both sides bringing in arguments,” said Boswell. “That may not happen until a month or two later, depending on the judge’s wishes and availability.”

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The judge will then write a decision, and Boswell expects it will be another six months before it is issued.

But despite the passage of all these years, the lawsuit raises important questions about the responsibility of government to take meaningful action when a clear threat has been identified, he said.

BSE was a recognized threat by the mid-1980s and the U.K. imposed a ruminant feed ban in 1988 after determining it could be transmitted through feed (that used ingredients from rendered cattle). Ottawa banned U.K. feed imports in 1990.

“At the same time, it recognized that imported cattle that had come in since 1982, could also be potentially infected. It said it would monitor the cattle,” said Boswell.

“From the plaintiff’s perspective, monitoring does nothing. It just tells you if one of them ends up showing the disease.

“The government did not keep those cattle out of the feed chain. As a result, about 60 of those cattle ended up going into the feed chain before 1993.”

BSE can only be diagnosed posthumously, by dissecting the animal’s brain. One of the U.K. imports was killed in December 1993 and confirmed to have BSE.

“In 2003, the first Canadian-born cows affected with BSE were diagnosed, and that’s when the borders were shut and cattle prices fell off a cliff,” said Boswell.

“It’s frustrating for the plaintiffs in this case, because the government did not learn from history. Scrapie was also exported from the U.K. back in the 1940s or 1950s. The government took a very narrow view of how to stop it from coming in and was unsuccessful. Scrapie is still in Canada.”

The trial is open to the public and can be watched on Zoom.

About the author

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Alexis Kienlen

Alexis Kienlen lives in Edmonton and has been writing for Alberta Farmer since 2008. Originally from Saskatoon, Alexis is also the author of two collections of poetry, a biography, and a novel called "Mad Cow."

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