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Tuesday, April 27, 2010

Alberta Court of Appeal throws out negligence claim against manufacturer of "Glean" herbicide

The Alberta Court of Appeal has upheld a non-suit order made by the trial judge in a case by potato growers against Dupont Canada in connection with its "Glean" herbicide.  NPS Farms Ltd. (NPS) alleged that they suffered production losses in several years beginning in 1990 due to the residual presence of the "Glean" herbicide in the soil.  NPS alleged that because Dupont did not make itself aware of the dangerous propensities of the product, it could not, and did not, provide adequate warning to consumers. Dupont’s marketing of the product without adequate warning was said to have been negligent.
The Court of Appeal found that:
... [t]here was ample evidence before the trial judge to demonstrate that the Appellants [NPS] were aware of the presence of Glean on the lands in 1987 and knew that it was harmful to potatoes. They conducted soil tests and planted test strips of potatoes on the lands in 1987, 1988 and 1989 which showed damage to their potatoes. They did not plant full potato crops on the lands in 1988 and 1989 because they were aware of the injury which would result. [...]
At trial, the Appellants sought, but did not obtain, further amendment to the Statement of Claim in order to specifically allege that Glean was a defective product. In our opinion, the trial judge did not err in refusing the request. We endorse the position of the Respondent that the Appellants cannot now seek a remedy premised upon a new cause of action after representing to the Court and to the Respondent on numerous occasions that the only causes of action claimed were failure to warn and negligent misrepresentation. During the opening statement at trial where the matter of the pleadings and the causes of action alleged were specifically raised, no new cause of action was alluded to by the Appellants. On that basis, the Respondent’s cross-examination and defence of the case was based on the Appellants’ express representations to the Court and to the Respondent and their strategic choice to confine themselves to allegations of failure to warn and negligent misrepresentation. To allow the Appellants to recast their case at this late stage of the proceedings would be prejudicial and unfair given also that the limitation period has long since run.
Read the decision at: NPS Farms Ltd. v. Dupont Canada.