oats

[charliep]

Always back to flax.

I note you highlight Toyota response to their safety issue which I have to agree has been good. This is a design flaw which has killed people. Toyota may have had other design features which people didn't like/my impact their decision to purchase but they are not recalling cars over this issue.

I know this is irrelevant to the current (Europe has rules and Canada broke one) but is the presence of triffid variey flax a food safety issue or a market access one? If I measure risk as a flax consumer, am I more likely to be made sick/killed by eating raw spinach in a salad or triffid flax? Am I more likely to have long term health impacts from microwaving food in plastic or including flaxseed in my hot cereal every morning?

To the discussion, should market access issues be included an evaluation in CFIA evaluation of plants with novel traits?

Perhaps a frustration on my part is none of this discussion would be occurring if the flax industry had the foresight/backbone to register the triffid genetic event in Europe 10 years ago. Canada could likely work through that process today.

[cpallett]

Pars, I do not believe that you are actually speaking of the legal concept of 'severability', but rather the legal concept of 'proximity'. Please do not take offense when I say that much reading and study is required before we can all get into a meaningful discussion on 'proximity'. I've made a career out of trying to figure out what the heck 'proximity' means as a practical matter. The best I can do for you is refer you to a wonderful book by two wonderful people, Federal Court of Appeal Justice Allen Linden and Dean Bruce Feldthusen of the Faculty of Law at the University of Ottawa, entitled 'Canadian Tort Law'.

I will, however, leave you with a very famous, seminal quotation by Lord Atkin:

"The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question."

[cpallett]

charliep,

In response to your question:

"To the discussion, should market access issues be included an evaluation in CFIA evaluation of plants with novel traits?"

You bet. The CFIA should now and should always have conducted an evaluation of the potential effect on the market of genetic drift in the assessment of the safety of any new GMO before it is released for field trials. The fundamental question is who is the CFIA conducting the evaluation for? No matter what the answer to that question, the potential effect on the market of genetic drift of any GMO is important, whether at the developer, manufacturer, producer or consumer level. To ignore the potential effects on the marketplace of genetic drift is akin to treating the loss of a paper clip as equivalent to the loss of a thermonuclear device.

Different potential results require different levels of control/response. This is not rocket science.

[gustgd]

I don't know about the Post city reference. I'm going to hope that it was a compliment.

For what it's worth
Checking that you take the time to write letters puts you many steps up in my books.

My reference to the $12,000 was not to put you on the spot, but to make the point that when dealing with refunds it is an exact number that is needed.
That number could be easily taken from the CWB records for how much that was actually paid. The problem would be where someone made decisions to go off board and sell outside the CWB. If WGRF made a mistake in issuing cheques someone would cry foul.

As to board decisions and how long they take, you would be amazed in how long it takes sometimes to make simple decisions. Let alone ones that may require a legal opinion. Either way they are never made lightly

[oneoff]

Here's a little thought on the way that I am told the law can work:

When a person or company feels offended in some way (physically; financially or whatever) they have the liberty to launch a legal action. To cover all potential bases you name all parties that in any way may have caused your distress. The court will most likely hear the case and determine the per cent liability of each of the parties. Now the kicker; even though you have been determnied to have a relatively minor per cent liability; IF the others contributors are insolvent; or declare bankruptcy; or just don't have the means to pay; then 1% liability can turn into footing the total liability bill. Any lawyers care to comment on the above scenario?
Maybe this ties into the Triffid fiasco.

[cpallett]

Just remember oneoff, you asked for it:

"First, the basic test for determining causation remains the 'but for' test. This applies to multi-cause injuries. The plaintiff bears the burden of showing that 'but for' the negligent act or omission of each defendant, the injury would not have occurred. Having done this, contributory negligence may be apportioned, as permitted by statute.

This fundamental rule has never been displaced and remains the primary test for causation in negligence actions. As stated in Athey v. Leonati, at para. 14, per Major J., '[t]he general, but not conclusive, test for causation is the 'but for' test, which requires the plaintiff to show that the injury would not have occurred but for the negligence of the defendant.' Similarly, as I noted in Blackwater v. Plint, at para. 78, '[t]he rules of causation consider generally whether 'but for' the defendant's acts, the plaintiff's damages would have been incurred on a balance of probabilities.'

The 'but for' test recognizes that compensation for negligent conduct should only be made 'where a substantial connection between the injury and defendant's conduct' is present. It ensures that a defendant will not be held liable for the plaintiff's injuries where they 'may very well be due to factors unconnected to the defendant and not the fault of anyone': Snell v. Farrell, at p. 327, per Sopinka J.

However, in special circumstances, the law has recognized exceptions to the basic 'but for' test, and applied a 'material contribution' test. Broadly speaking, the cases in which the 'material contribution' test is properly applied involve two requirements.

First, it must be impossible for the plaintiff to prove that the defendant's negligence caused the plaintiff's injury using the 'but for' test. The impossibility must be due to factors that are outside of the plaintiff's control; for example, current limits of scientific knowledge. Second, it must be clear that the defendant breached a duty of care owed to the plaintiff, thereby exposing the plaintiff to an unreasonable risk of injury, and the plaintiff must have suffered that form of injury. In other words, the plaintiff's injury must fall within the ambit of the risk created by the defendant's breach. In those exceptional cases where these two requirements are satisfied, liability may be imposed, even though the 'but for' test is not satisfied, because it would offend basic notions of fairness and justice to deny liability by applying a 'but for' approach.

These two requirements are helpful in defining the situations in which an exception to the 'but for' approach ought to be permitted. Without dealing exhaustively with the jurisprudence, a few examples may assist in demonstrating the twin principles just asserted.

One situation requiring an exception to the 'but for' test is the situation where it is impossible to say which of two tortious sources caused the injury, as where two shots are carelessly fired at the victim, but it is impossible to say which shot injured him: Cook v. Lewis, [1951] S.C.R. 830. Provided that it is established that each of the defendants carelessly or negligently created an unreasonable risk of that type of injury that the plaintiff in fact suffered (i.e. carelessly or negligently fired a shot that could have caused the injury), a material contribution test may be appropriately applied.

A second situation requiring an exception to the 'but for' test may be where it is impossible to prove what a particular person in the causal chain would have done had the defendant not committed a negligent act or omission, thus breaking the 'but for' chain of causation. For example, although there was no need to rely on the 'material contribution' test in Walker Estate v. York Finch Hospital, this Court indicated that it could be used where it was impossible to prove that the donor whose tainted blood infected the plaintiff would not have given blood if the defendant had properly warned him against donating blood. Once again, the impossibility of establishing causation and the element of injury-related risk created by the defendant are central."

And if you don't believe me, ask the Chief Justice of Canada. She wrote that in 2007.

[oneoff]

One time I wrote a letter to the editor of the Leader Post. In a very nice way the editor explained that someone has given a concise summary of the 20th century in 30 odd words. (or something like that). Is there any chance the Chief Justice published a condensed version; maybe in lay man's language too.

[cpallett]

That is the condensed version, oneoff. It is not my place to attempt to paraphrase one of the greatest jurists in Canadian history (I'm an unabashed fan). May I respectfully suggest you read it again carefully?

Mark 4:9

[oneoff]

I had that coming; and I could see it coming. I admit that I haven't caught all that was between the lines; even after 3 readings. More examples would be helpful; especially as pertains agricultural operations; as I am sure I am not the only one who did not understood everything the justice wrote. Thanks for the free legal advice.

[oneoff]

I had that coming; and I could see it coming. I admit that I haven't caught all that was between the lines; even after 3 readings. More examples would be helpful; especially as pertains agricultural operations; as I am sure I am not the only one who did not understood everything the justice wrote. Thanks for the free legal advice.