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.

Another canola failure case, another failure to prove cause

Last week, I posted a case in which a farmer alleged that defective seed was the cause of his poor canola crop. This week, I have another case along the same lines. This time Pioneer Grain Company sued Saskatchewan farmer Dale Ortynsky after he refused to pay for herbicides he had purchased because he alleged they were the cause of his crop's poor yield. The spray manufacturers, Bayer and Dupont, were added as third parties to the action. Ortynsky also made a counter claim against Pioneer for damages related to the poor yield.

Once again, lack of evidence about the actual cause of the crop failure meant a finding against the canola farmer. Justice J.E. McMurtry of the Saskatchewan Court of Queen's Bench concluded, "The defendants have not satisfied me that the poor canola crop resulted from herbicides sold by Pioneer and not by some other factor such as weather, soil conditions, farming practice, and/or application of the [herbicide]." Civil claims must be proved on a balance of probabilities (basically, 50% plus 1 or more likely than not). In this case, as Ortynsky could not prove on a balance of probabilities that the herbicide was the cause of the crop failure, his counter claim failed and he was ordered to pay for the herbicide he had purchased, plus interest and costs.

http://www.canlii.org/en/sk/skqb/doc/2009/2009skqb513/2009skqb513.html