COURT FILE NO.: CV-05-287428-00CP
DATE: 20201224
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: FLYING E RANCHE LTD.
Plaintiff
AND:
THE ATTORNEY GENERAL OF CANADA on behalf of
HER MAJESTY THE QUEEN IN RIGHT OF CANADA as represented by
THE MINISTER OF AGRICULTURE
Defendants
BEFORE: Paul B. Schabas J.
COUNSEL: Malcolm Ruby, Duncan Boswell, Rachel McMillan, for the Plaintiff
William Knights, Cynthia Koller, Victor Paolone, for the Defendants
HEARD: December 21, 2020
REASONS ON MOTION FOR ADJOURNMENT
[1] This class action matter has a trial date of January 18, 2021. It was set by Perell J. on March 15, 2019 who said that the “date is meant to be per-emptory [sic] for all parties.” On December 7, 2020, at a trial management conference with me just six weeks before the trial date, the defendants indicated they were seeking an adjournment of the trial.
[2] I instructed the defendants to file material in support of their motion for adjournment, which they did, indicating that they were requesting an adjournment to September 2021. The plaintiff filed responding materials opposing the adjournment, and I heard argument on the motion on December 21, 2020.
[3] At the conclusion of submissions, I declined to adjourn the trial as requested by the defendants but postponed the commencement of it by two weeks to February 1, 2021 and set a schedule for additional steps. I indicated I would provide reasons for my decision in writing, which I do below.
Background
[4] This action commenced in 2005, over fifteen years ago. It arises from the impact of Bovine Spongiform Encephalopathy (“BSE”, known as “mad cow disease”) and the federal government’s actions in response to it, on Canadian cattle farmers. It was certified as a class proceeding by Lax J. on September 3, 2008. There were similar class proceedings in other provinces, including one certified in Quebec by Wagner J. (as he then was), which were suspended or postponed in favour of the Ontario action.
[5] The common issues are as follows:
(1) Does section 9 of the Crown Liability and Proceedings Act bar the Class members’ claims against the federal Crown?
(2) Were the defendants negligent and if so, when and how?
(3) Can the amount of compensatory damages, if any, be reasonably determined on an individual basis? If so, how should individual damages be determined?
(4) If the answer to question 4 [sic] is no, can the amount of compensatory damages, if any, be determined on an aggregate basis? If so, what is the amount of damages and how should they be distributed?
[6] The defendants served their first statement of defence on April 6, 2009.
[7] The action has been going on for many years. The damages claimed are in the billions of dollars.
[8] There were several days of discoveries of a deponent for the defendants, Dr. John Kellar, in 2013 and 2014. The plaintiff served two expert reports in 2014, one from an agri-economist, Dr. John Groenewegen, and one from a veterinary epidemiologist, Dr. Samuel Beckett.
[9] Productions and answers to undertakings were provided by the defendants to the plaintiff over time. This has included many documents produced in 2016 and 2017 which address financial assistance programs that I am told may trigger protection to the