Court File and Parties

COURT FILE NO.: CV-05-287428-00CP DATE: 2021-03-02 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, Defendant

BEFORE: Paul B. Schabas J.

COUNSEL: Malcolm Ruby, Duncan Boswell, Rachel McMillan, Andrew Locatelli and Cameron Pallett for the Plaintiff William Knights, Cynthia Koller, Victor Paolone and Adam Gilani for the Defendant

HEARD: February 25, 2021

Ruling on Admissibility of McCrea Evidence

[1] This common issues trial began on February 16, 2021. The case arises from the impact of an outbreak of Bovine Spongiform Encephalopathy (“BSE”), known as “mad cow disease,” on Canadian farmers. The outbreak occurred in Canada in and after 2003. The defendant is the federal government which, it is alleged, was negligent in failing to prevent BSE from entering Canada and infecting Canadian cattle.

[2] The action has a long history, having been commenced in 2005. At that time the representative plaintiff was Bill Sauer. On the motion for certification the plaintiff led evidence of Mr. Mel McCrea, who swore an affidavit in support of the motion dated February 25, 2006, exactly 15 years before the motion to admit the affidavit was argued before me.

[3] Mr. McCrea was the owner of a cattle farm at which the first Canadian-born cow diagnosed with BSE was born and, it appears, was infected with BSE from feed given to it as a calf. This led to an immediate closing of the border to the export of cattle and beef products which impacted cattle producers and led to this case.

[4] Mr. McCrea’s affidavit described the events in 2003 immediately following the BSE diagnosis, including the investigation of his farm and farming practices by government officials at the time as well as the destruction of his herd. The affidavit also contains evidence of Mr. McCrea’s practices in 1997 with respect to feed supplements he fed to his calves, including the calf that later developed BSE, which was born in 1997 and fed calf-starter at that time, and his understanding of the contents of that feed.

[5] Mr. McCrea was cross-examined on his affidavit by counsel for the co-defendant at the time, Ridley Inc., which manufactured calf feed. That cross-examination took place on August 2, 2006. Counsel for the Attorney General of Canada chose not to cross-examine Mr. McCrea. The co-defendant Ridley Inc. is no longer a defendant in the action.

[6] Both Mr. Sauer and Mr. McCrea have since died. Mr. McCrea died in May 2010. Mr. Sauer died in March 2017. A new representative plaintiff has taken over, Flying E Ranche Inc., and the common issues trial is underway before me.

[7] The plaintiff wishes to have the affidavit of Mr. McCrea together with the transcript of his cross-examination admitted as part of its case.

[8] As plaintiff’s counsel points out, the discovery of the “McCrea cow” was a pivotal part of the narrative of BSE in Canada, which is addressed in the pleadings, documents and expert reports. Undoubtedly, if Mr. McCrea were alive, he would have testified at this trial about the events related in his affidavit.

[9] To admit Mr. McCrea’s evidence, I must decide whether it is admissible under the principled exception to the rule against admitting hearsay, which involves considering whether it is necessary and reliable. This exception is described by the Supreme Court in R. v. Khelawon, 2006 SCC 57, [2007] 2 S.C.R. 787, at para. 2 as follows:

When it is necessary to resort to evidence in this form, a hearsay statement may be admitted if, because of the way in which it came about, its contents are trustworthy, or if circumstances permit the ultimate trier of fact to sufficiently assess its worth. If the proponent of the evidence cannot meet the twin criteria of necessity and reliability, the general exclusionary rule prevails. The trial judge acts as a gatekeeper in making this preliminary assessment of the "threshold reliability" of the hearsay statement and leaves the ultimate determination of its worth to the fact finder.

[10] In Khelawon, the Supreme Court emphasized that the critical concern with hearsay is its reliability, which cannot be tested in court. As the Court put it at para. 35:

The general exclusionary rule is a recognition of the difficulty for a trier of fact to assess what weight, if any, is to be given to a statement made by a person who has not been seen or heard, and who has not been subject to the test of cross-examination. The fear is that untested hearsay evidence may be afforded more weight than it deserves. The essential defining features of hearsay are therefore the following: (1) the fact that the statement is adduced to prove the truth of its contents and (2) the absence of a contemporaneous opportunity to cross-examine the declarant.

[11] The proposed evidence readily meets the reliability threshold, as it was given under oath, was subject to cross-examination, and much of it is corroborated in documents. Mr. McCrea’s evidence was also obtained relatively soon after the events.

[12] Although the cross-examination was not conducted by counsel for the Attorney General, the Attorney General was a party to the motion, had the opportunity to cross-examine, and chose not to do so. In any event, there was a cross-examination by the then co-defendant and there is no suggestion that the cross-examination was not thorough or competently conducted. The transcript of the cross-examination is over 170 pages long, and includes hundreds of pages of exhibits consisting of invoices (including for feed), veterinary records, and other documents regarding Mr. McCrea’s farm operation.

[13] The Attorney General objects on the basis of necessity. This is a class action, they point out, not an action by Mr. McCrea. There are other cattle farmers who can testify as to the impact of BSE on them and their farms, they argue, noting that the plaintiff produced four other cattle farmers for discovery. The Attorney General cites CanWest Mediaworks Inc. v. Canada (Attorney General), 2007 ONCA 567, at para. 15 in which the Court of Appeal stated: "where the information is available from another source, the evidence of the out-of-province witness is neither necessary for the adjudication of the proceeding, nor essential to the due administration of justice in Ontario."

[14] However, I am advised that none of the four people discovered can speak to the events at the McCrea farm, nor did any of them supply their cattle with feed containing ruminant meat and bone meal, the likely source of BSE.

[15] Further, the investigation at the McCrea farm was indeed an important part of the narrative in determining the likely cause of BSE, including the source and content of the feed supplement fed to Mr. McCrea’s calf. This is seen in government documents and was the subject of examination for discovery of the defendant’s witness, Dr. John Kellar, who confirmed he had read, at least in part, the transcript of Mr. McCrea’s cross-examination. Counsel for the Attorney General has confirmed that Dr. Kellar will be a witness for the defendant at this trial.

[16] It has been suggested that perhaps Mr. McCrea’s wife, who attended the cross-examination and assisted with the records, could be called. There is no evidence as to her availability, or whether she is still alive. She married Mr. McCrea in 1962, almost 60 years ago. In any event, Mr. McCrea’s evidence provides his first-hand account of his purchase and use of calf-starter feed and his understandings surrounding it which is unlikely to be able to be provided by anyone else, especially given the passage of time.

[17] One must be cautious not to apply the necessity test so rigorously that it frustrates the fact-finding process. The rules must be applied to prevent unfair results. This includes, as the Court stated in Khelawon at para. 59, ensuring “that they facilitate rather than impede the goals of truth seeking, judicial efficiency and fairness in the adversarial process.” The key question, then, is “whether the trier of fact will be in a position to rationally evaluate the evidence. The search is for adequate substitutes for the process that would have been available had the evidence been presented in the usual way, namely through the witness, under oath or affirmation, and subject to the scrutiny of contemporaneous cross-examination.” (para. 76)

[18] Mr. McCrea did effectively testify “in the usual way” and the “criteria of necessity and reliability intersect.” (Khelawon, para. 86) Mr. McCrea is dead. What happened to him and at his farm is pleaded and is relevant to the issues in this case. There is no indication that his evidence can be presented by someone else, which is not surprising as the events occurred up to 24 years ago. His evidence was given relatively contemporaneously with the events, and meets the indicia of reliability. It will be admitted.

[19] I recognize that there are portions of Mr. McCrea’s evidence in which he refers to what others told him. This is not surprising due to the fact that his affidavit was for a motion and could contain evidence based on information and belief. I leave open the question of what weight, if any, I should give to that evidence, and to all of his evidence, which can be addressed in submissions at the conclusion of the trial.

Paul B. Schabas J. Date: March 2, 2021