by Angela Hall, The Regina Leader-Post

Saskatchewan organic farmers will get another opportunity to try to launch a class-action lawsuit against Monsanto and Bayer CropScience.

The farmers' first attempt to have the case against the two companies certified as a class action was rejected in a 179-page ruling by Justice Gene Anne Smith in May 2005. On Tuesday, the Saskatchewan Court of Appeal granted them leave to appeal that decision.

Two farmers were named as plaintiffs in the suit, which aims to include all Saskatchewan organic farmers certified from 1996. The producers, supported by the Organic Agriculture Protection Fund, are seeking compensation for losses they say are the result of the introduction of genetically modified canola.

In granting the leave to appeal, Justice Stuart Cameron wrote that the proposed appeal raises "some comparatively new and potentially controversial points of law." Smith had ruled that prerequisites needed to certify an action as a class action -- according to Section 6 of the Class Actions Act -- were not satisfied. Cameron noted the Class Actions Act was enacted fairly recently, and Smith's decision "constitutes the most comprehensive application" of Section 6 of the act undertaken so far in the province. "It stands as the seminal authority in the province on class actions," Cameron wrote.

"Without suggesting that Justice Smith's decision is in any respect flawed, I do believe her appreciation and application of the prerequisites of Section 6 raises some issues of sufficient importance generally to warrant consideration by this court." For example, some of the arguments before Cameron centred on the "rigour" Smith applied in considering each of the prerequisites that had to be met to allow the class action, wrote Cameron.

On one hand, it was argued the application for certification as a class action was subjected to more exacting standards than called for by the act. On the other, Smith was said to have approached it rigorously "in the sense of carefully and thoroughly."

Terry Zakreski, the lawyer representing the farmers, said they will now file documents with the Court of Appeal and wait for an appeal date to be set. Zakreski said he feels the decision shows they raised good arguments for the higher court to consider on the basis the lower court may have "set the bar too high" regarding what's needed in order to be certified as a class action.