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N.B. farmers step closer to collecting on lawsuit

September 19, 2008, Moncton, N.B.
– The New Brunswick Court of Appeal has overruled a trial judge on the
question of liability in a lawsuit over a virus that devastated the
province’s potato farms nearly two decades ago.

September 19, 2008, Moncton, N.B. – The New Brunswick Court of Appeal has overruled a trial judge on the question of liability in a lawsuit over a virus that devastated the province’s potato farms nearly two decades ago.

The development brings more than 180 potato farmers a step closer to collecting on a multimillion-dollar lawsuit launched against the federal government.

Justice Joseph Robertson ruled the matter be sent back to the trial judge who dismissed the case to assess damages.

“Hopefully, this means the government will now sit down with (the farmers) and negotiate a settlement with them reasonably,” said John Friel, the lawyer representing the farmers.

“If not, it would not mean recalling more evidence. All the evidence has been heard. It means just re-arguing that portion of the case in front of the Crown judge.”

New Brunswick potato farmers launched an appeal last year after a 14-year court battle with the federal government was dismissed by Judge Judy Clendenning.

The farmers hoped to win $70 million in compensation from Ottawa for the way the federal agriculture department dealt with an outbreak of PVY-n virus in 1989. Though the potato virus poses no risk to human health and doesn’t seriously affect potatoes, it can kill tobacco crops.

An outbreak in a tobacco field at Port Bruce, Ont., in September 1989 was traced to an adjacent potato crop produced from seed from Prince Edward Island. That kicked off years of costly border closures and the loss of key markets for many New Brunswick farmers.

The lawyers for the farmers have argued for over a decade that PVY-n spread to the Upper St. John Valley potato district because Agriculture Canada did not test seed from P.E.I. grown in New Brunswick.

Last year, Clendenning ruled that Agriculture Canada did not realize the P.E.I. connection to the diseased tobacco field in Ontario until 1990. The judge originally found no liability and because of that, did not assess damages.

“She invited the Court of Appeal, if it disagreed with her, to send it back to her so she could,” said Friel. “It’s not going to take an excessive amount of time to get back in front of the judge and argue what we feel the damages should be.

“I feel much more confident now than I did with this case.”

In his decision, Robertson wrote that he feels the two parties should be able to sit down and negotiate a settlement before returning to court.

“Unless otherwise agreed, I presume that the matter of costs will be dealt with at the hearing to be scheduled for the assessment of damages,” wrote Robertson. “However, I am optimistic that the parties will be able to settle the case without the need to return to the trial judge.”

The Canadian Food Inspection Agency, which inherited many of the responsibilities of Agriculture Canada, decline to comment on the ruling, stating it needed time to review it.