Alberta Growers File Suit To Block Disclosures

Published online: Jun 30, 2004
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Potato Growers of Alberta, Canada, have filed suit to block the Canadian Food Inspection Agency from disclosing information about a bacterial ring rot outbreak in Canada.

Filed in the Court of the Queen's District of Lethbridge-Macleod, the suit stipulates that the CFIA has 15 days from the date of filing on June 23 to file a statement of defense or demand of notice.

A warning has been given by the growers' representative, Sugimoto and Company, barristers and solicitors of Calgary, that the plaintiff may get a court judgement if no motion is filed.

The growers contend that one farm had its potatoes inspected by the CFIA and reported that they met Canadian standards. In fact an on-farm inspection was made by CFIA in 2002-2003 for extensive testing of seed potato fields, crops, buildings, facilities, equipment and operations due to the suspicion of the CFIA that bacterial ring rot might be present.

The suit also alleges that CFIA instituted an inspection and testing program for this grower's crops and facilities that were substantially more vigorous than inspection and testing required by the normal operations of CFIA. This established that the farm had met BRR zero-tolerance standards relating to the growing, harvesting, cutting, storage, detection and control of pests related to the seed potatoes grown on this particular farm during the inspection period.

In March or April of 2003, the farm's 2002 seed crop received certification from CFIA, thereby confirming to potential purchasers of the farm's seed that the Canadian standards regarding BRR zero tolerance were satisfied.

The farm had entered into an agreement with Ochoa Ag Unlimited LLC  carrying on the business of growing potatoes in the state of Washington with seed supplied by the Alberta farm.

In March 2003, Ochoa was delivering seed potatoes from the Alberta farm using Ochoa trucks. Although Ochoa had been purchasing seed from this farm since 1997, an action was filed in the state of Washington against the principals for damages amounting to $10 million alleging breach of agreement.

The Alberta farm is saying that because its seed had been inspected by CFIA, that that the farm's defense rests extensively on CFIA.

The CFIA notified the farm that Ochoa in March through June of 2004 had made requests to the CFIA under the Access to Information act to produce records relating to inspection and exports of potatotes from the farm.

The nature of the Washington action will rest on the CFIA inspections and the farm's merchantability. Alberta growers state that the information from CFIA to be used by Washington will allow a foreign court to rule on the appropriateness of the Canadian standards or the implementation by CFIA which would indirectly compel Canada or its agents to adjust policies in order to prevent other U.S. courts from using a judgement as a precedent against other Canadian seed potato growers selling to the United States.

The plaintiff seeks a declaration that the Public Interest Immunity applies to all documents and evidence in the possession of the CFIA requested by Ochoa or its agents, the contents of which relate to the farm in question and its shareholders and that of other Alberta seed potato growers connected with BRR investigations of the farm or other farms in Alberta or any other issue, and also which relate to any actions of the CFIA, its employees, agents or represenatives regarding the practice, enforcement or administration of the Canadian standards; analysis of the Canadian standards; analysis of the practice, enforcement or administration of Canadian standards; investigations based on the Canadian Standards of Practice, enforcement or administration thereof, or the results of any of the foregoing.

Also, that such documents and evidence shall not be used or provided for use in Washington state action or any other foreign litigation, arbitration, judicial or quasi-judicial proceedings.

Also, an order enjoining any person receiving any such documents or evidence from the CFIA from uisng or providing for use such documents or evidence in the Washington action or any other foreign litigation without leave of the court.