Court rejects claim against seed company

Wednesday, February 27, 2013

by BETTER FARMING STAFF

A small claims court judge in Cobourg found that a farm supply company is not responsible when a crop it provided advice to grow fails. The farmer was ordered to pay for the seed.

According to testimony at a trial Tuesday, presided over by Deputy Judge Teresa Kowalishin, Port Hope area farmers John Kordas and his brother Mike (since deceased) planted about 210 acres to oats in 2009, using certified Sherwood seed purchased from Thompsons Limited’s nearby Pontypool elevator, and contracted with Thompson to deliver the crop to Quaker Oats in Peterborough. When the planted acreage did not produce a merchantable crop, Kordas refused to pay for oat and soybean seed and weed sprays used that year, about $17,500. Thompson sued for the value of the crop inputs and interest.

Kordas, citing defective oat seed, countersued Thompsons for $25,000, the largest amount that can be claimed in that court. Kordas testified that he was expecting a yield of about 1.5 tonnes an acre at $300 a tonne, and should have grossed nearly $95,000 from the crop. Instead he harvested 65 acres of 15-pound test weight oats. The normal test weight is 30 pounds. “There was no crop. There was no straw,” he said.

Back in 1987 Kordas sued Stokes Seeds for $60,000, over a 6.8 –acre cabbage crop involving about $350 worth of seed.  Although Kordas won at trial, the Ontario Court of Appeal overturned that decision leaving Kordas with an estimated $150,000 in costs and losses, virtually all his assets at the time.

Kordas, who was represented in his latest case by Ottawa lawyer Donald Good, testified that he asked Thompsons to sell him seed to grow for the lucrative Quaker milling market, but that when it was apparent at harvest that the crop was a failure, Pontypool general manager Cory McDonald told him Sherwood oats “were genetically pooped out” and no longer provided resistance to crown rust. McDonald testified he did not make such a statement.

Kowalishin ruled that because the seed was bagged and tagged “it meets all quality control standards.” During the trial, Kordas testified that he paid nearly $1,800 for genetic testing of a sample of the same seed lot. “He provided no results,” the deputy judge noted, and no expert witnesses were called.  

Timothy Beatty, president of ISO standard Beatty Seeds, Bloomfield, who provided the seed to Thompsons, testified that a seed sample was sent to Ottawa for purity identification, but Beatty did not receive a result back. “They would be notifying me, absolutely” if there was a problem with the seed, Beatty said. CFIA inspectors “came and looked at all our paperwork.”

“I am not satisfied that the plaintiff (Thompsons) caused the failure,” Kowalishin noted. She ruled that based upon the evidence presented, the crop most likely failed because of crown rust. During the hearing, Pontypool general manager Cory McDonald testified that in 2009 he sent oat seed customers a warning that “the risk was higher than normal” for crown rust, but that Kordas didn’t buy a fungicide from Pontypool. Kordas did not recall receiving such a notice. He said he and his brother used the fungicide Tilt on their crop in 2008, saw no benefit, and made a “conscious decision” not to spray the fungicide in 2009. Kordas testified that “Tilt is supposed to increase yield by 10 bushels an acre. Nowhere in any of the literature has anyone gone on to say that without using Tilt you will have a total wipeout. “

Kordas testified that he had a long relationship Thompsons and he “trusted” the advice of the general manager McDonald. Kordas testified that he had a degree in agriculture from the University of Guelph and that he did not see crown rust in his oat crop that year. McDonald and Beatty both indicated they also held agriculture degrees from Guelph.

Beatty testified that the seed provided to Kordas via Thompsons was registered seed “demoted” to certified seed. “That is a common practice.” Registered seed can only be grown by registered seed growers and can’t be sold to the public, he said.

The deputy judge ordered Kordas to pay $17,453.49 plus interest, along with court costs totaling about $3,540. Kordas’ case against Thompsons was dismissed without costs.  BF