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BSE class action suit focused on settlement

If the federal government wants to flow aid to Canada’s punch-drunk beef cattle sector, it couldn’t do much better than to settle with the ranchers now suing it.

That’s how Toronto lawyer Cameron Pallett, the lawyer for Niagara Falls-area cattle producer Bill Sauer, plans to press his case with officials in Ottawa to settle Sauer’s class-action suit out of court.

Sauer is the representative plaintiff for a class that includes all Canadian cattle producers (outside Quebec, that is, where a related and certified class action suit by producer Donald Berneche continues).

The two suits claim negligence within the government led directly to the BSE-related closure of the U.S. border and other foreign ports. If successful, Pallett said, the suits stand to benefit about 135,000 producers in all.

And as far as they’re concerned, “anything that speeds (the process) up is good with them,” Pallett said of the response he received after meeting with Interlake-area producers at Ashern, Man., about 160 km east of Dauphin, on Feb. 26.

Cattle producers need help now and don’t want to drag their case for years through trials and appeals, he said. And he doesn’t see the trial getting underway for another four years at best, owing to the “procedural song-and-dance” that accompanies such cases.

Funding the suit itself is the least of their concerns, after wrapping up a settlement in January with the suit’s other original defendant, Winnipeg feed maker Ridley Inc., for $6 million.

(As per its settlement, Ridley made no admission of liability or wrongdoing in the matter and “will continue to contest any allegation it was responsible for the plaintiffs’ damages.”)

Justice Joan Lax of the Ontario Superior Court, in certifying Sauer’s suit as a class action last fall, said Ridley’s settlement “focuses the litigation on the party that is capable of providing meaningful compensation to class members.”

The lawsuits’ allegations against the government and individual federal bureaucrats have not yet been proven in court.

“More favourable terms”

With that war chest available from the Ridley settlement fund, the suits can go to trial if they must. “It’s going to trial, no ifs, ands or buts, now that it’s been certified and (Ottawa’s) avenues of appeal are closed,” Pallett said.

Sauer’s suit, as originally filed in April 2005, had claimed $100,000 for every member of the “class” in “general damages… for pain, suffering and loss of enjoyment of life” as well as “aggravated damages” of $100,000 per class member plus “punitive damages” of $100 million from the suit’s “corporate defendants.”

If it’s willing to settle, he said, the government would benefit from a better resolution, politically speaking, and on “more favourable economic terms.” Cattle producers could then get compensation without “years of litigation.”

Pallett envisions using the Canadian Agricultural Income Stabilization (CAIS) program format, in which negotiators would “adopt, adapt and improve it to create a damages process that’s fair, workable and cost-effective.”

For all the discussion across the western world about tax-funded economic stimulus in light of the current global credit crunch, a settlement in this suit would offer real economic impact, Pallett said.

Many producers have admitted that some of a successful settlement would go to the purchase of, say, a new F-150, thereby reducing the need for stimulus in Canada’s auto sector. The funds would likely also go to tile drainage and other on-farm improvements with potential longer-term economic and environmental benefit.

To that end, he said, “cattle producers need to be asking their reeves, their mayors, their municipal councils” and provincial officials to press the issue directly or indirectly, asking the federal government “What are you going to do about this?”

Were it not for the BSE border closures, he said, “we would be pricing and selling (Canadian beef) as an elite product (into the U.S.) right now.” As it stands, with cattle producers in a financial bind and aging with fewer sons and daughters stepping in to replace them, “this country’s going to potentially lose its ability to produce cattle.”

Now that the federal government has been denied leave to appeal the Ontario suit’s class-action certification, “they owe us a statement of defense by the end of March,” Pallett said.

Spokespeople for Agriculture and Agri-Food Canada and federal Agriculture Minister Gerry Ritz both said March 4 that the government will not comment on cases now before the courts.

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