Hoffman v. Monsanto Canada Inc.,

• Jurisdiction: Saskatchewan
• Judge: G.A. Smith, J.
• Neutral Citation: 2005 SKQB 225
• Date: 11 May 2005
• Court: Court of Queen's Bench of Saskatchewan (Canada)

Hoffman v. Monsanto Can. Inc. (2005), 264 Sask.R. 1 (QB)

MLB headnote and full text

Temp. Cite: [2005] Sask.R. TBEd. MY.046

Larry Hoffman, L.B. Hoffman Farms Inc. and Dale Beaudoin (plaintiffs) v. Monsanto Canada Inc. and Bayer Cropscience Inc. (defendants)

(2002 Q.B.G. No. 67; 2005 SKQB 225)

Indexed As: Hoffman et al. v. Monsanto Canada Inc. et al.

Saskatchewan Court Queen's Bench

Judicial Centre of Saskatoon

G.A. Smith, J.

May 11, 2005.

Summary:

The plaintiffs were organic grain farmers who sought to bring an action on behalf of organic grain farmers in Saskatchewan for damages resulting from the defendants' development and commercial introduction into Canada of genetically modified (GM) canola. The plaintiffs' claim was for loss of a market for organic canola due to the alleged inability to produce or guarantee a crop free from the "adventitious presence" of GM canola, and for losses caused by the presence of "volunteer" GM canola in organic fields. The statement of claim asserted causes of action based in negligence, the rule in Rylands v. Fletcher, nuisance and trespass. It also asserted claims for compensation under the Environmental Management and Protection Act (EMPA) and the Environmental Assessment Act (EAA). The plaintiffs applied for certification of the action as a class action.

The Saskatchewan Court of Queen's Bench dismissed the application.

Damages - Topic 531

Limits of compensatory damages - Remoteness - Torts - Recoverable damages - Purely economic loss - [See first Torts - Topic 81 ].

Pollution Control - Topic 1004

Licensing or approval - Application of legislation - The plaintiffs applied to certify a class action brought on behalf of organic grain farmers in Saskatchewan for damages resulting from the defendants' development and commercial introduction into Canada of genetically modified (GM) canola - The plaintiffs alleged that the testing and unconfined release of GM canola into the Saskatchewan environment was a "development" within the meaning of the Environmental Assessment Act (EAA), that the defendants failed to obtain the required ministerial approval, and that pursuant to s. 23 of the EAA the defendants were therefore liable for any loss or damage sustained by organic grain farmers - The Saskatchewan Court of Queen's Bench held that while it might be difficult for the plaintiffs to prove that the testing, development and commercialization of GM canola was a "development" within the meaning of the EAA, it was not plain and obvious that the statute did not apply and that no cause of action under the Act could arise - See paragraph 192.

Pollution Control - Topic 9318

Enforcement - Liability for compensation by owner or person controlling pollutant - The plaintiffs applied to certify a class action brought on behalf of organic grain farmers in Saskatchewan for damages resulting from the defendants' development and commercial introduction into Canada of genetically modified (GM) canola - The plaintiffs' claim was for loss of a market for organic canola due to the alleged inability to produce or guarantee a crop free from the "adventitious presence" of GM canola, and for losses caused by the presence of "volunteer" GM canola in organic fields - The plaintiffs alleged that the defendants' genetic modifications were a "pollutant" and the defendants were liable pursuant to s. 13(3) of the Environmental Management and Protection Act (EMPA) for the damage sustained by the plaintiffs as the result of the introduction of GM canola into the Saskatchewan environment - The Saskatchewan Court of Queen's Bench held that even if GM canola was a "pollutant", the facts alleged in the statement of claim could not sustain a claim under s. 13 of the EMPA where they did not reasonably support the conclusion that the defendants owned or controlled the "pollutants" at the time that they were discharged into the environment - At best, the action would lie against farmers who cultivated GM canola - See paragraphs 137 to 158.

Pollution Control - Topic 9318

Enforcement - Liability for compensation by owner or person controlling pollutant - The plaintiffs applied to certify a class action brought on behalf of organic grain farmers in Saskatchewan for damages resulting from the defendants' development and commercial introduction into Canada of genetically modified (GM) canola - The plaintiffs' claim was for loss of a market for organic canola due to the alleged inability to produce or guarantee a crop free from the "adventitious presence" of GM canola, and for losses caused by the presence of "volunteer" GM canola in organic fields - The plaintiffs amended the statement of claim to assert a cause of action under s. 15 of the Environmental Management and Protection Act, 2002 for compensation from the person responsible for the discharge of a "substance" - The Saskatchewan Court of Queen's Bench held that given the literal wording of s. 15, it was not plain and obvious that the plaintiffs' claim under the statute could not succeed - The provision, so interpreted, would not require the plaintiffs to allege and prove that the "substance" at issue was inherently harmful or unsafe - See paragraphs 159 to 169.

Pollution Control - Topic 9319

Enforcement - Liability for compensation where development proceeds without ministerial approval - The plaintiffs applied to certify a class action brought on behalf of organic grain farmers in Saskatchewan for damages resulting from the defendants' development and commercial introduction into Canada of genetically modified (GM) canola - The plaintiffs' claim was for loss of a market for organic canola due to the alleged inability to produce or guarantee a crop free from the "adventitious presence" of GM canola, and for losses caused by the presence of "volunteer" GM canola in organic fields - The plaintiffs alleged that the testing and unconfined release of GM canola into the Saskatchewan environment was a "development" within the meaning of the Environmental Assessment Act (EAA), that the defendants failed to obtain the required ministerial approval, and that pursuant to s. 23 of the EAA the defendants were therefore liable for any loss or damage sustained by organic grain farmers - The Saskatchewan Court of Queen's Bench stated that there was no definition of "loss or damage" in the EAA, nor had there been any judicial interpretations of the scope of s. 23(1) - It was therefore open to debate whether the section imposed liability for pure economic loss, such as the alleged loss of market for organic canola, and it was not "plain and obvious" that the claim could not succeed - See paragraph 193.

Practice - Topic 209.1

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Members of class - General - The plaintiffs applied to certify a class action brought on behalf of organic grain farmers in Saskatchewan for damages resulting from the defendants' development and commercial introduction into Canada of genetically modified (GM) canola - The plaintiffs' claim was for loss of a market for organic canola due to the alleged inability to produce or guarantee a crop free from the "adventitious presence" of GM canola, and for losses caused by the presence of "volunteer" GM canola in organic fields - The Saskatchewan Court of Queen's Bench held that the plaintiffs had failed to provide a factual basis upon which to conclude that there was an identifiable class in relation to the claims asserted - There was no evidence to indicate that all, a majority, or even a significant minority, of the proposed class of organic grain farmers had suffered a loss due to the inability to produce canola sufficiently free from genetically modified organisms to be marketed as organic - There was also no evidence that the claim asserted in relation to volunteer GM canola on organic farmland was widely shared by members of the proposed class - See paragraphs 234 and 244.

Practice - Topic 209.1

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Members of class - General - The plaintiffs applied to certify a class action brought on behalf of organic grain farmers in Saskatchewan for damages resulting from the defendants' development and commercial introduction into Canada of genetically modified (GM) canola - The plaintiffs' claim was for, inter alia, loss of a market for organic canola due to the alleged inability to produce or guarantee a crop free from the "adventitious presence" of GM canola - The proposed class was composed of all organic grain farmers in Saskatchewan who were certified organic farmers at any time between January 1, 1996 and the date of certification as a class action by any one of six named private certification organizations - The Saskatchewan Court of Queen's Bench held that the definition of the proposed class was overly broad from a temporal perspective where it would include organic grain producers and organic canola producers who were certified at a time when they were subject to no genetically modified organism restrictions either by their individual certifiers or by the export markets - See paragraph 238.

Practice - Topic 209.1

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Members of class - General - The plaintiffs applied to certify a class action brought on behalf of organic grain farmers in Saskatchewan for damages resulting from the defendants' development and commercial introduction into Canada of genetically modified (GM) canola - The plaintiffs' claim was for, inter alia, losses caused by the presence of "volunteer" GM canola in organic fields - The proposed class was composed of all organic grain farmers in Saskatchewan who were certified organic farmers at any time between January 1, 1996 and the date of certification as a class action by any one of six named private certification organizations - The Saskatchewan Court of Queen's Bench noted that the proposed class was under inclusive where the list of six private certifiers in the class definition was not exhaustive of the organic certifiers active in Saskatchewan in the period in question - In addition, the claim in relation to the presence of volunteer GM canola plants in organic fields did not appear to be limited to organic grain farmers, but might affect other organic farmers as well - See paragraph 245.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Certification - Considerations - The plaintiffs applied to certify an action as a class action - Section 6(a) of the Class Actions Act provided that on an application for certification, the court had to be satisfied that the pleadings disclosed a cause of action - The plaintiffs asserted that given the novelty of the causes of action asserted, it should be left for the trial judge to consider whether this was an appropriate case to expand the legal category at issue - The Saskatchewan Court of Queen's Bench held that it was open to it to address the question of whether a novel claim had a reasonable prospect for success - See paragraph 36.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Certification - Considerations - The plaintiffs brought an action on behalf of organic grain farmers in Saskatchewan for damages resulting from the defendants' development and commercial introduction into Canada of genetically modified (GM) canola - The plaintiffs' claim was for loss of a market for organic canola due to the alleged inability to produce or guarantee a crop free from the "adventitious presence" of GM canola, and for losses caused by the presence of "volunteer" GM canola in organic fields - The plaintiffs applied for certification of the action as a class action - The Saskatchewan Court of Queen's Bench dismissed the application - A class action would not be the preferable procedure - In many cases, proposed common issues would inevitably require an individual inquiry and could not be answered across any generally defined class - See paragraphs 316 to 328.

Practice - Topic 209.4

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Certification - Appointment of representative plaintiff - The plaintiffs applied to certify a class action brought on behalf of organic grain farmers in Saskatchewan for damages resulting from the defendants' development and commercial introduction into Canada of genetically modified (GM) canola - Both of the proposed representative plaintiffs had executed a document, titled "Legal Costs Indemnity Agreement" and "Agreement to Act as Representative Plaintiff", the contents of which made it clear that neither of those individuals was instructing counsel nor assuming any responsibility for the action, but, rather, that both had assigned that right to an umbrella organization created to support the organic movement in Saskatchewan - The Saskatchewan Court of Queen's Bench held that the proposed representative plaintiffs were not appropriate representative plaintiffs - A representative plaintiff had the responsibility to prosecute the lawsuit in the interests of the class members - Their duty was akin to that of a fiduciary - They had to have adequate knowledge and ability to instruct counsel and they had to act in the interests of the class members - Those duties could not be delegated to another party who was not answerable to the court - See paragraphs 329 to 339.

Practice - Topic 210.1

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Procedure - General - The plaintiffs applied to certify an action as a class action - The defendants argued that the plaintiffs failed to plead sufficient facts to support particular allegations essential to the causes of action asserted in their twice amended statement of claim - The Saskatchewan Court of Queen's Bench stated that although it could be argued that the plaintiffs' application should stand or fall on the basis of the facts as pled, a more generous approach on a certification application would be for the court to examine whether, on the basis of other evidence before it, it was apparent that the plaintiffs did intend to allege additional facts that would be sufficient to fill any lacuna in the pleadings, and to consider whether an amendment to the pleadings to plead such additional facts should be considered - Whether a further amendment should be permitted was a matter of discretion for the court, the exercise of which would depend primarily on whether it would be unfair to the respondents or catch them by surprise - See paragraphs 27 to 32.

Practice - Topic 2120

Pleadings - Amendment of pleadings - Statement of claim - General - [See Practice - Topic 210.1 ].

Torts - Topic 79

Negligence - Duty of care - Factors limiting or reducing scope of duty of care - [See first Torts - Topic 81 ].

Torts - Topic 81

Negligence - Duty of care - Requirement that duty be owed to plaintiff - The plaintiffs applied to certify a class action brought on behalf of organic grain farmers in Saskatchewan for damages resulting from the defendants' development and commercial introduction into Canada of genetically modified (GM) canola - The plaintiffs claimed that the defendants breached their duties to organic grain farmers to ensure that their GM canola would not infiltrate and contaminate farmland and that they failed and/or neglected to warn growers about cross-pollination or to advise growers of farming practices that would limit the spread of their GM canola - The Saskatchewan Court of Queen's Bench held that the plaintiffs failed to establish a duty of care owed to them by the defendants to prevent or minimize the "adventitious presence" of GM canola on their land - The plaintiffs did not establish foreseeability of the losses claimed or a relationship of proximity - There were also compelling policy reasons for excluding a duty of care - First, the defendants had received government approval for the unconfined release of their GM canola - Further, the bulk of the plaintiffs' claim was for pure economic loss of a category not previously recognized by Canadian courts and this was not a case in which to extend the categories for recovery of such losses - See paragraphs 38 to 81.

Torts - Topic 81

Negligence - Duty of care - Requirement that duty be owed to plaintiff - The plaintiffs applied to certify a class action brought on behalf of organic grain farmers in Saskatchewan for damages resulting from the defendants' development and commercial introduction into Canada of genetically modified (GM) canola - The plaintiffs' claim was for loss of a market for organic canola due to the alleged inability to produce or guarantee a crop free from the "adventitious presence" of GM canola, and for losses caused by the presence of "volunteer" GM canola in organic fields - The plaintiffs claimed, inter alia, that when the defendants commercially introduced their GM canola, they undertook to develop export rules in the form of an identity preservation program and that the defendants breached their duty to the plaintiffs when they abandoned the program - The Saskatchewan Court of Queen's Bench held that no duty of care arose from the defendants' gratuitous undertaking in the absence of some element of detrimental reliance by the plaintiffs, or other detriment - See paragraphs 82 to 88.

Torts - Topic 1417

Nuisance - Injury to property - Neighbouring owners - Trees and crops - [See Torts - Topic 1505 ].

Torts - Topic 1505

Nuisance - Actions - General - Who may be liable - The plaintiffs applied to certify a class action brought on behalf of organic grain farmers in Saskatchewan for damages resulting from the defendants' development and commercial introduction into Canada of genetically modified (GM) canola - The plaintiffs' claim was for loss of a market for organic canola due to the alleged inability to produce or guarantee a crop free from the "adventitious presence" of GM canola, and for losses caused by the presence of "volunteer" GM canola in organic fields - The Saskatchewan Court of Queen's Bench held that the pleadings did not disclose a cause of action in nuisance - The implications of holding a manufacturer or inventor liable in nuisance for damage caused by the use of its product or invention by another would be sweeping - Where the activity complained of was the activity of one who was not in occupation or control of adjoining land, and no independent malfeasance was alleged, then, at the very least, direct causation of the damage had to be alleged - There were no facts alleged that could support a finding that the defendants substantially caused the nuisance alleged - See paragraphs 98 to 124.

Torts - Topic 2004

Strict liability - Application of rule in Rylands v. Fletcher - The plaintiffs applied to certify a class action brought on behalf of organic grain farmers in Saskatchewan for damages resulting from the defendants' development and commercial introduction into Canada of genetically modified (GM) canola - The plaintiffs' claim was for loss of a market for organic canola due to the alleged inability to produce or guarantee a crop free from the "adventitious presence" of GM canola, and for losses caused by the presence of "volunteer" GM canola in organic fields - The Saskatchewan Court of Queen's Bench held that the pleadings did not disclose a cause of action based on the rule in Rylands v. Fletcher - It was not reasonably arguable that the commercial release and sale of the defendants' GM canola seed constituted an "escape" of a substance, dangerous or otherwise, from property owned or controlled by the defendants - See paragraphs 89 to 97.

Torts - Topic 3002

Trespass - Trespass to land - What constitutes - [See Torts - Topic 3003 ].

Torts - Topic 3003

Trespass - Trespass to land - Interference with use of land - The plaintiffs applied to certify a class action brought on behalf of organic grain farmers in Saskatchewan for damages resulting from the defendants' development and commercial introduction into Canada of genetically modified (GM) canola - The plaintiffs' claim was for loss of a market for organic canola due to the alleged inability to produce or guarantee a crop free from the "adventitious presence" of GM canola, and for losses caused by the presence of "volunteer" GM canola in organic fields - The Saskatchewan Court of Queen's Bench held that an action in trespass did not lie against the defendants as the inventors and marketers of GM canola for the adventitious presence of GM canola in the crops and on the lands of organic grain farmers - Even a liberalized requirement for direct interference could not be met in the circumstances of this case - See paragraphs 125 to 133.

Cases Noticed:

Carey Canada Inc. et al. v. Hunt et al. - see Hunt v. T & N plc et al.

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321, refd to. [para. 27].

Abdool et al. v. Anaheim Management Ltd. et al. (1995), 78 O.A.C. 377; 21 O.R.(3d) 453; 121 D.L.R.(4th) 496 (Gen. Div.), refd to. [para. 29].

Daniels et al. v. Canada (Attorney General) (2003), 230 Sask.R. 120; 2003 SKQB 58, refd to. [para. 30].

Hollick v. Metropolitan Toronto (Municipality) et al., [2001] 3 S.C.R. 158; 277 N.R. 51; 153 O.A.C. 279; 2001 SCC 68, consd. [para. 31].

Tottrup v. Lund et al., [2000] 9 W.W.R. 21; 255 A.R. 204; 220 W.A.C. 204; 2000 ABCA 121, consd. [para. 33].

Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), appld. [para. 52].

Cooper v. Registrar of Mortgage Brokers (B.C.) et al., [2001] 3 S.C.R. 537; 277 N.R. 113; 160 B.C.A.C. 268; 261 W.A.C. 268; 2001 SCC 79, consd. [para. 55].

Cooper v. Hobart - see Cooper v. Registrar of Mortgage Brokers (B.C.) et al.

Edwards et al. v. Law Society of Upper Canada et al., [2001] 3 S.C.R. 562; 277 N.R. 145; 153 O.A.C. 388; 2001 SCC 80, consd. [para. 56].

Hasegawa (M.) & Co. v. Pepsi Bottling Group (Canada) Co. (2002), 169 B.C.A.C. 261; 276 W.A.C. 261; 213 D.L.R.(4th) 663; 2002 BCCA 324, refd to. [para. 72].

Perre v. Apand Pty. Ltd. (1999), 164 A.L.R. 606 (H.C.), dist. [para. 73].

Union Oil Co. v. Oppen (1974), 501 F.2d 558 (9th Cir. C.A.), dist. [para. 74].

Brown v. Port Edward (District), [1996] B.C.T.C. Uned. I51; [1997] B.C.W.L.D. 133 (S.C.), consd. [para. 85].

Rylands v. Fletcher (1866), L.R. 1 Ex. 265; (1868) L.R. 3 H.L. 330, affd. (1868) L.R. 3 H.L. 339, refd to. [para. 90].

Campbell (John) Law Corp. v. Strata Plan 1350, Owners, [2001] B.C.T.C. 1342; 8 C.C.L.T.(3d) 226 (S.C.), refd to. [para. 91].

Jackson v. Drury Construction Co. (1974), 49 D.L.R.(3d) 183 (Ont. C.A.), refd to. [para. 113].

Sapone v. Clarington (Municipality) (2001), 14 C.L.R.(3d) 254 (Ont. Sup. Ct.), consd. [para. 115].

In re Star Link Corn Products Liability Litigation, Marvin Kramer v. Aventis CropScience USA Holding Inc. (2002), 212 F. Supp.2d 828 (Dist. Ct., N.D. Illinois), dist. [para. 118].

Southport Corp. v. Esso Petroleum Co., [1954] 2 Q.B. 182; [1954] 2 All E.R. 561 (C.A.), consd. [para. 130].

Saskatchewan Action Foundation for the Environment Inc. v. Saskatchewan (Minister of the Environment and Public Safety) (1992), 97 Sask.R. 135; 12 W.A.C. 135 (C.A.), consd. [para. 181].

Irving et al. v. Kelvington Super Swine Inc. et al. (1997), 163 Sask.R. 87; 165 W.A.C. 87 (C.A.), consd. [para. 185].

Saskatchewan (Minister of Environment and Resource Management) v. Kelvington Super Swine Inc. et al. (1997), 161 Sask.R. 111 (Q.B.), refd to. [para. 185].

Saskatchewan (Minister of the Environment) v. Redberry Development Corp. et al. (1987), 58 Sask.R. 134 (Q.B.), affd. (1992), 100 Sask.R. 36 (C.A.), consd. [para. 188].

University of Regina Faculty Association et al. v. University of Regina et al. (1999), 182 Sask.R. 85 (Q.B.), consd. [para. 188].

Western Canadian Shopping Centres Inc. et al. v. Dutton et al., [2001] 2 S.C.R. 534; 272 N.R. 135; 286 A.R. 201; 253 W.A.C. 201, 2001 SCC 46, refd to. [para. 197].

Bywater v. Toronto Transit Commission (1998), 27 C.P.C.(4th) 172 (Ont. Gen. Div.), refd to. [para. 200].

Mouhteros v. DeVry Canada Inc. (1998), 70 O.T.C. 138; 41 O.R.(3d) 63 (Gen. Div.), consd. [para. 202].

Lau et al. v. Bayview Landmark Inc. et al., [1999] O.T.C. 220; 40 C.P.C.(4th) 301 (Sup. Ct.), refd to. [para. 202].

Pearson v. Inco Ltd., [2002] O.T.C. 515; 33 C.P.C.(5th) 264 (Ont. Sup. Ct.), consd. [para. 204].

Lacroix v. Canada Mortgage & Housing Corp. (2003), 36 C.P.C.(5th) 150 (Ont. Sup. Ct.), consd. [para. 205].

Taub v. Manufacturers Life Insurance Co. (1998), 40 O.R.(3d) 379 (Gen. Div.), consd. [para. 207].

MacDonald (Litigation Guardian of) v. Dufferin-Peel Catholic District School Board (2000), 20 C.P.C.(5th) 345 (Ont. Sup. Ct.), refd to. [para. 212].

Samos Investments Inc. v. Pattison et al., [2001] B.C.T.C. 1790; 22 B.L.R.(3d) 46; 2001 BCSC 1790, affd. [2003] 4 W.W.R. 39; 178 B.C.A.C. 298; 292 W.A.C. 298; 2003 BCCA 87, refd to. [para. 256].

Spencer v. Regina (City) et al. (2003), 231 Sask.R. 68; 2003 SKQB 109, consd. [para. 257].

Bittner et al. v. Louisiana-Pacific Corp. et al., [1997] B.C.T.C. Uned. E73; 43 B.C.L.R.(3d) 324 (S.C.), refd to. [para. 258].

Fehringer v. Sun Media Corp. et al., [2002] O.T.C. 805; 27 C.P.C.(5th) 155 (Sup. Ct.), refd to. [para. 258].

Huras et al. v. Com Dev Ltd. et al. (1999), 105 O.T.C. 402; 36 C.P.C.(4th) 31 (Sup. Ct.), refd to. [para. 258].

Price et al. v. Panasonic Canada Inc., [2002] O.T.C. 426; 22 C.P.C.(5th) 379 (Sup. Ct.), refd to. [para. 258].

Chadha v. Bayer Inc. et al. (2001), 147 O.A.C. 223; 200 D.L.R.(4th) 309 (Div. Ct.), refd to. [para. 258].

Rumley et al. v. British Columbia (1999), 131 B.C.A.C. 68; 214 W.A.C. 68; 72 B.C.L.R.(3d) 1; 180 D.L.R.(4th) 639 (C.A.), affd. [2001] 3 S.C.R. 184; 275 N.R. 342; 157 B.C.A.C. 1; 256 W.A.C. 1; 180 D.L.R.(4th) 639; 2001 SCC 69, consd. [para. 262].

Joanisse et al. v. Barker et al., [2003] O.T.C. 733; 38 C.P.C.(5th) 386 (Sup. Ct.), refd to. [para. 263].

Gariepy et al. v. Shell Oil Co. et al., [2002] O.T.C. 459; 23 C.P.C.(5th) 360 (Sup. Ct.), consd. [para. 266].

Statutes Noticed:

Environmental Assessment Act, S.S. 1979-80, c. E-10.1, sect. 23 [para. 171].

Environmental Management and Protection Act, S.S. 1983-84, c. E-10.2, sect. 13 [para. 137].

Environmental Management and Protection Act, S.S. 2002, c. E-10.21, sect. 15 [para. 159].

Authors and Works Noticed:

Bilson, Beth, The Canadian Law of Nuisance (1991), generally [para. 102]; pp. 10 to 14 [para. 113].

Branch, Ward K., Class Actions in Canada (2004 Looseleaf), pp. 4-1, 4-2 [para. 28].

Bullen, Leake and Jacob, Precedents of Pleadings (13th Ed. 1990), p. 923 [para. 130].

Fridman, Gerald Henry Louis, The Law of Torts in Canada (1989), vol. 1, pp. 126 to 130 [para. 100].

Klar, Lewis N., Tort Law (3rd Ed. 2003), p. 103 [paras. 130].

Klar, Lewis N., Linden, Allan M., Cherniak, Earl A., and Kryworuk, Peter W., Remedies in Tort (1987) (Looseleaf), vol. 3, p. 21-16, para. 3 [para. 91].

Linden, Allen M., Canadian Tort Law (7th Ed. 2001), p. 526 [para. 102].

Solomon, Robert M., Kostal, R.W., and McInnes, Mitchell, Cases and Materials on the Law of Torts (5th Ed. 2000), p. 262 [para. 84].

Counsel:

Terry J. Zakreski, for the plaintiffs;

Gordon J. Kuski, Q.C., and Richard W. Danyliuk, for Monsanto Canada Inc.;

Robert W. Leurer, Q.C., and Jason W. Mohrbutter, for Bayer Cropscience Inc.

This application was heard before G.A. Smith, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following judgment on May 11, 2005.