Duncan C. Boswell

The plaintiff brought a class action on behalf of Canadian cattle farmers against the Government of Canada, alleging negligence in its response to the threat of Bovine Spongiform Encephalopathy (BSE), commonly known as 'mad cow disease'.

The plaintiff claimed that Canada failed to implement a ruminant-to-ruminant feed ban in a timely manner and failed to prevent cattle imported from the United Kingdom from entering the animal feed chain, which led to the discovery of a BSE-infected Canadian cow in May 2003 and the subsequent closure of international borders to Canadian cattle and beef.

The court dismissed the action, finding that the claim was barred by section 9 of the Crown Liability and Proceedings Act because the class members had received compensation through various government financial assistance programs.

Furthermore, the court held that Canada did not owe a private law duty of care to the cattle farmers and that its policy decisions regarding the monitoring of imported cattle and the timing of the feed ban were reasonable and did not breach the standard of care.

The plaintiff in a certified class action regarding the federal government's response to the Mad Cow Disease outbreak brought a motion under the Interprovincial Summonses Act to compel the attendance of the former federal Minister of Agriculture, Ralph Goodale, as a witness at trial.

The court dismissed the motion, finding that while the proposed witness's evidence would be relevant, it was neither necessary nor essential to the administration of justice.

The plaintiff already had copious documentary and oral discovery, and the federal government planned to call sixteen civil servants from Agriculture Canada at trial.

The representative plaintiff in a certified class action regarding the introduction of Mad Cow Disease into Canada brought a motion for approval of a third-party litigation funding agreement.

The court applied the four-factor test for approving such agreements and found that the funding was necessary for access to justice, made a meaningful contribution, protected the defendant's interests, and did not overcompensate the funder.

The court approved the agreement and pre-approved the funder's return of up to 10 percent of any recovery.

Following the dismissal of two related civil actions, the successful defendants sought a costs order requiring the plaintiffs’ counsel personally to pay a portion of the trial costs associated with calling 22 witnesses.

The defendants argued that the evidence of those witnesses was inadmissible under the parol evidence rule and that counsel’s decision to call them wasted approximately ten days of trial time.

The court considered Rule 57.07 of the Rules of Civil Procedure and the court’s inherent jurisdiction to award costs against a solicitor.

The judge held that such orders should be made only in rare circumstances and typically require conduct approaching recklessness, abuse of process, or bad faith.

The court concluded that counsel’s decision to lead the evidence was not reckless or abusive and declined to order costs against counsel personally.