When Worlds Collide: Biotechnology Meets Organic Farming in Hoffman v. Monsanto

Posted: 17 Aug 2007

See all articles by Kathryn Garforth

Kathryn Garforth

Environmental Law & Policy Consultant

Paige Ainslie

affiliation not provided to SSRN

Abstract

The case of Hoffman v Monsanto Canada Inc. involves a group of Saskatchewan organic farmers bringing an action for certification as a class in order to pursue class action litigation against both Monsanto Canada Inc. and Bayer Crop-Science Inc. The farmers are seeking redress for alleged damage caused to them by Monsanto's and Bayer's genetically modified (GM) varieties of canola. The Saskatchewan Class Actions Act requires a court to assess the pleadings and be satisfied that they disclose a cause of action as one step in deciding whether to certify the class thus the decision from the court of first instance addresses this issue rather than the potential liability of Monsanto and Bayer for the damage alleged against them.

The plaintiff farmers have three major complaints against Monsanto and Bayer: that the release of the GM varieties of canola has resulted in the spread of the plants and modified genes such that it is impossible to grow organic canola; that volunteer GM canola plants appear in fields of organic farmers, even those not trying to grow organic canola; and that the creation and subsequent abandonment of an identity preservation programme by the companies resulted in the loss of the European market for all Canadian canola.

The three complaints against Monsanto and Bayer are broken down into six causes of action: negligence, the rule in Rylands v Fletcher, nuisance, trespass, The Environmental Management and Protection Act (EMPA) of Saskatchewan and The Environmental Assessment Act (EAA) of Saskatchewan. The court assessed the pleadings under each of these causes of action and determined that only the causes of action under the EMPA, 2002 and the EAA could be sustained. The court also determined that the proposed class failed to meet the other requirements necessary for certification.

The decision from the court of first instance raises a number of underlying concerns. These include how questions of the safety of GM organisms are shrouded in an economic veil in the dispute, the rights and responsibilities of biotechnology companies in light of other relevant Canadian case law and international commitments, and the issue of access to information on GM organisms held by their proponent companies.

Keywords: biotechnology, organic farming, liability, negligence, strict liability, Rylands v. Fletcher, nuisance, trespass, statutory liability, economic damage, litigating the safety of genetically modified organisms, patent rights and responsibilities, access to information, environmental impact assessment

JEL Classification: K13, K32, K33, Q16, Q17, Q18

Suggested Citation

Garforth, Kathryn and Ainslie, Paige, When Worlds Collide: Biotechnology Meets Organic Farming in Hoffman v. Monsanto. Journal of Environmental Law, Vol. 18, pp. 459-477, 2006, Available at SSRN: https://ssrn.com/abstract=1006827

Kathryn Garforth (Contact Author)

Environmental Law & Policy Consultant ( email )

Montreal, Quebec
Canada

HOME PAGE: http://kathryn.garforthmitchell.net

Paige Ainslie

affiliation not provided to SSRN ( email )

No Address Available

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