Farmers can expect to be named in lawsuits arising from food poisonings, a lawyer from Hanover told a food safety and traceability forum organized by the Ontario Ministry of Agriculture, Food and Rural Affairs here recently.
Bryan Hicks said “we’ve only seen the tip of the iceberg” in class-action lawsuits so far, and also said traceability programs mean the lawyers will include farmers – along with everybody else who handled the food – in their lawsuits.
He advised farmers to implement best management practices and to keep meticulous and accurate records, and to hang on to those records for six to seven years.
He warned it is the courts that are setting the standards because so far there is no legislation setting out standards for on-farm food safety programs.
Hicks was invited to speak from his role as a lawyer for Trillium Mutual Insurance Co., the second-largest farm mutual in the province. He also defended David Biesenthal in the Walkerton water crisis, settling a $340 million lawsuit out of court.
He said the class-action lawsuit has so far collected $240 million, and the total continues to rise as more cases involving children are settled. “And they haven’t even started on businesses yet,” he said.
He said Biesenthal had implemented a Farm Environmental Plan and had extensive records for crop production, including volumes of manure, varieties, etc., because he was constantly running trials in his search for improvements.
His barns “were impeccable.”
Hicks said “doing everything right” on the farm not only helps farmers survive a classaction lawsuit, but they also “get back on their feet faster” after the crisis.
“You owe a duty of care to your customers,” he said, noting this is not about finding immunity from prosecutions.
He predicted there will be more than a few farmers losing their farms over food safety lawsuits. Eventually politicians may respond with on-farm food safety standards and enforcement, he said.
Compliance with those standards will mean that the farmer can’t be sued, he predicted.
The move to brand products, and to claim they are healthier “is going to come back and hit them hard” when somebody gets sick, Hicks warned.
Deb Stark, assistant deputy minister for food safety at OMAFRA, said some people are calling for stricter regulation, but others are complaining about the time, effort and costs involved in food safety and environmental protocols.
“I don’t think this is a yes-no situation, but a continuum,” she said of the opposing calls on government.
Hicks said food safety lawsuits against farmers are still relatively rare in Canada, and said most of the cases he handles are about tractors on roadways.
Hicks said farmers who sell directly to the public will be held to a much higher standard of food safety. It won’t be enough to prove that they are following best farming practices, he said. “They will have to meet the same standard as Loblaws,” he said.
He recommended they buy insurance, and said if the premiums are too high, they ought to reconsider their strategy and whether the extra income from retail sales is worth the risks.
He predicted that insurance premiums will rise when classaction lawsuits increase and name farmers among the list of all those involved in getting that product to the consumer.