MCLAUGHLIN BROTHERS FARMING OPERATIONS LTD., LEIGH JOSEPH MCLAUGHLIN, MICHAEL JOSEPH MCLAUGHLIN, v. BRYAN JOSEPH MCLAUGHLIN,, 2023 NBKB 138

File No. SJC-389-2020 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF SAINT JOHN CITATION: 2023 NBKB 138 BETWEEN: MCLAUGHLIN BROTHERS FARMING OPERATIONS LTD., LEIGH JOSEPH MCLAUGHLIN, MICHAEL JOSEPH MCLAUGHLIN, and BRYAN JOSEPH MCLAUGHLIN, PLAINTIFFS, - and – DOW AGROSCIENCES CANADA INC., GRAND FALLS AGROMART LTD. and BAYER S.A.S DEFENDANTS DECISION BEFORE: Justice Darrell J. Stephenson AT: Saint John, N.B.

DATE OF TRIAL: November 28 – December 16, 2022 POST HEARING SUBMISSIONS January 31, 2023 REPLY SUBMISSIONS: February 17, 2023 DATE OF DECISION: August 1, 2023 COUNSEL: Rodney Gillis, K.C., for the Plaintiffs Thomas O’Neil, K.C. and Melissa Pike, for the Defendant Dow Agrosciences Canada Inc. Blair Fraser, K.C. and Caitlyn Mahoney, for the Defendant Grand Falls Agromart Ltd. William Collette, K.C. and Gabrielle Maltais, for the Defendant Bayer S.A.S. Stephenson, J.

SUMMARY [ 1 ] The Plaintiffs, Leigh McLaughlin, Michael McLaughlin and Bryan McLaughlin, carrying on business in partnership, claim damages against the Defendants in relation to a 2011 potato crop failure that they allege was caused by a defective potato fungicide, Dithane Rainshield, manufactured by or on behalf of the Defendants, Dow Agrosciences Canada Inc. and Bayer S.A.S., and sold to the Plaintiffs by the Defendant Grand Falls Agromart Ltd.

[ 2 ] The claim against Grand Falls Agromart Ltd. is grounded in contract.

The Plaintiffs allege that they made known to Grand Falls Agromart Ltd. the purpose for which they required a potato fungicide, namely the treatment of their potato crop for early and late blight, relied upon Grand Falls Agromart Ltd.’s recommendation that Dithane Rainshield was appropriate for this purpose and that this reliance resulted in the total loss of their 2011 potato crop. [ 3 ] The claim against the Defendants Dow Agrosciences Canada Inc. and Bayer S.A.S. is grounded in negligent manufacture, storage and/or failure to test the Dithane Rainshield to ensure that it contained the guaranteed percentage of the active ingredient Mancozeb.

During closing arguments, counsel for the Plaintiffs conceded that there existed no basis upon which their claim against Bayer S.A.S. could succeed. [ 4 ] The Plaintiffs impressed the Court as valuable long-standing members of the New Brunswick agricultural community; however, the action must fail. No evidence was presented to the Court on the basis of which it could conclude or infer the Dithane Rainshield supplied to the Plaintiffs was defective.

Furthermore, the Record before the Court reflected that the Plaintiffs’ decision to acquire the Dithane Rainshield was not made as a consequence of any representation made by or on behalf of Grand Falls Agromart Ltd. For these reasons, the Plaintiffs action was dismissed.

DECISION INTRODUCTION [ 5 ] This is a decision in the matter of an action (the “ Action ”) in which Leigh McLaughlin (“ Leigh ”), Michael McLaughlin (“ Michael ”) and Bryan McLaughlin (“ Bryan ”) (collectively, the “ Partners ”), carrying on business in partnership (the “ Partnership ”), claim damages against Grand Falls Agromart Ltd. (“ Grand Falls ”), Dow Agrosciences Canada Ltd. (“ Dow ”) and Bayer S.A.S. (“ Bayer ”) in relation to a 2011 potato crop failure that they allege was caused by a defective potato fungicide, Dithane Rainshield.

THE PARTIES [ 6 ] The individual Partners, Leigh, Michael and Bryan, are residents of Grand Falls, New Brunswick. During the course of the trial, it was confirmed that the named Plaintiff, McLaughlin Brothers Farming Operations Ltd., at no relevant time carried on business and hence is irrelevant for purposes of the Action and within decision. [ 7 ] The Defendant Grand Falls is a body corporate under the laws of New Brunswick. The Defendant Dow is a body corporate under the laws of Canada, extra-provincially registered to carry on business in New Brunswick.

The Defendant Bayer is a body corporate under the laws of France, extra-provincially registered to carry on business in New Brunswick. McLaughlin Farming Operations – Leigh McLaughlin [ 8 ] The McLaughlin family are established potato farmers in Carleton County, New Brunswick. Leigh testified that he was 67 years old and has been farming potatoes for 42 – 43 years.

He stated that he started farming with his father and uncle, and that the McLaughlin family has sold potatoes to the McCain organization for 67 years. [ 9 ] Leigh advised that in 2011 the Partnership planted 750 – 800 acres of potatoes and 450-500 acres of grain on parcels of property belonging to various members of the McLaughlin family. He indicated that their normal farming practice was to rotate crops on a three- year cycle of two years potatoes and one year grain, clover and/or alfalfa.

Leigh stated that in 2011 they planted Russet Burbank, Russet Norkotah and Shepody potatoes. [ 10 ] Leigh detailed a business arrangement under which the Partnership functioned ostensibly as a contract grower for McCain Foods (“ McCain ”). The Partnership would agree with McCain in advance of planting what varieties and quantities of potatoes would be planted with the price at which the potatoes would be sold to be later set between McCain and the New Brunswick Potato Agency – which Leigh described as an association that acted on behalf of potato growers.

Leigh advised that this was usual practice for the Partnership and was the arrangement it entered into with McCain for the 2011 growing season.

[ 11 ] Part of the McCain arrangement involved the monitoring by McCain of the farm operations of the farmers who contracted with it and the benchmarking of the performance metrics of the various growers against one another. The McCain Crop Management Evaluation Tool for the Partnership’s 2011 crop was marked as Exhibit P/D1 – 1 – Tab 4. The testimony of Monica Everett, a McCain - employed agronomist who worked with the Partnership during the 2011 growing season, and who completed Exhibit P/D1 – 1 – Tab 4, will be discussed below.

Monica described her job in 2011 as working with McCain – contract growers to improve their agricultural practices, crop yields and economic outcomes. [ 12 ] Leigh testified that planting was delayed in 2011 because of wet ground and cold weather. He advised that they needed to wait for the ground to dry out and warm up. Exhibit P/D1 – 1 – Tab 7 reflects that planting commenced on May 25, 2011. In his testimony, Leigh stated that planting was complete by June 8, 2011. Leigh identified the Pesticide Application Record that appear at Exhibit P/D1 – 1 – Tab 5.

He advised that these records were required by McCain to document the pesticides sprayed on the various fields and when. Leigh indicated that they were completed and signed by his brother Kent McLaughlin. He identified Kent as an employee of the Partnership who looked after the spraying of the Partnership’s potato crop and the transportation and harvesting of potatoes.

Leigh stated that Kent was a licensed pesticide applicator and the individual principally responsible for spraying the McLaughlin potato crops since the 1990’s. [ 13 ] Various photographs, marked as Exhibit P/D 1 – 5 and Exhibits P-3 – P-10, show the McLaughlin family-owned parcels planted by the Partnership with potatoes in 2011 and the deterioration in the crop over the course of the growing season.

In certain instances, these Exhibits were marked with identification numbers that correspond with the identification numbers used in the Pesticide Application/Agronomic Inputs Schedules from Exhibits P/D 1 – 1 – Tabs 5 and 7. [ 14 ] Leigh testified, with reference to Exhibit P/D 1 – 1 – Tab 4, that by mid-September 2011 late blight had spread throughout the Partnership’s potato crop. He stated, and it was not contested by any other witness, that the 2011 crop was a total loss.

Leigh attributed the loss to late blight, which he described as a fungus-like pathogen the spores of which attach themselves to the potato plant. He advised that it first attacks the leaves and stems before ultimately causing the death of the plant. Leigh indicated that you can spot it when it first develops on the potato leaves and later smell it as it causes the potato leaves to crinkle up, turn brown and die. [ 15 ] Leigh testified that Kent commenced spraying in June 2011 with the John Deer 4830 sprayer the Partnership purchased in 2006.

He reviewed Exhibit P/D 1 – 1 – Tab 5, noting that the spraying of pesticides commenced with the spraying of Dithane on June 28, 2011 shortly after the potato plants first emerged from the ground. [ 16 ] Leigh recounted that the pesticide spraying program the Partnership followed was preventative in nature and based on long- established practice. He advised that Kent generally sprayed on Monday and Tuesday, and thereafter Kent and Bryan walked through the fields on Thursday and Friday to determine what would be sprayed the following week.

Leigh stated that in 2011 Dithane was sprayed weekly throughout July as a blight preventative with Allegro (for blight prevention and white mold) and Success (for colorado potato beetle prevention) being sprayed in late July. A similar spray program (employing Dithane and Allegro for blight prevention / treatment) was followed in August, with the addition of Revus on August 9 and 27 (also for blight prevention / treatment).

The spray records reflect that spraying happened at seven – eight day intervals throughout July and August, and that Dithane was sprayed only once (August 1) between July 19 and August 14 (Allegro being sprayed on July 25 and Revus on August 9). Leigh testified that he became aware of the presence of late blight in mid-August when “everything turned brown” (he believes on August 14 and indicated that by August 18 blight was present in all of their potato fields) but continued to spray in hopes of saving part of the crop.

He advised that by early September they realized that was no longer possible so sprayed Reglone (September 7, 12 and 16) to kill the remaining potato plants and Dithane to ensure the late blight did not spread to neighboring properties.

Following that, in mid-October, Leigh stated the potatoes were placed on the ground to freeze to make sure the late blight was killed off for future growing seasons. [ 17 ] Leigh testified that he believed, based on his many years of potato farming experience, that the Partnership lost its 2011 crop because the Dithane did not contain the guaranteed amount (75%) of the active ingredient Mancozeb (the compound in Dithane that is intended to prevent blight). In Leigh’s words “there was something wrong with the Dithane”.

Leigh indicated that, prior to the 2011 season, the sprayer was calibrated by Gary Nadeau (a sprayer specialist working at the John Deere dealership in Presque Isle, Maine) and confirmed to be in good working order. He further advised that they used the amount of chemical compound (Dithane) suggested by their supplier (in the case of Dithane in 2011, Grand Falls) and sprayed at a rate of 15 gallons per acre on the recommendation of Gary Nadeau.

Leigh stated that this was the practice they had followed for many years prior to 2011 without incident. [ 18 ] Leigh identified an invoice that appears at Exhibit P/D 1 – 1 – Tab 11 as being issued by Grand Falls to the Partnership (it named Leigh and a Floyd McLaughlin as purchasers) on June 27, 2011. It was for 300 - 20kg bags of Dithane for a cost of $42,000.00. Leigh testified that the McLaughlin family had been doing business with Grand Falls for 40 – 50 years and had used Dithane since the 1960’s for blight prevention.

He stated that they had originally purchased Dithane from Grand Falls Milling, and that a Mr. Carmel Godbout at Grand Falls Milling advised them what was in Dithane and how it worked. Leigh advised that they had used Dithane regularly for many years, liked the product and never had a problem with it until 2011.

[ 19 ] Leigh confirmed his understanding that the active ingredient that made Dithane effective against blight was Mancozeb, and testified that the McLaughlin family and Partnership have purchased Dithane and other Mancozeb-based products (e.g., Manzate Prostick and Penncozeb) over the years from a variety of suppliers. He accepted that their objective each year was to purchase the product that came with the guaranteed 75% level of Mancozeb for the best price, but acknowledged that if price and supply considerations were not an issue he preferred Dithane as he liked the product.

Leigh indicated that pre-2011, in addition to Grand Falls and Grand Falls Milling, they had purchased Dithane from McCain Products, Dave Bell in Fredericton and New Denmark Trucking. [ 20 ] Leigh advised that by 2011 Mancozeb-based products served a preventative function only and as there was no cure for late blight.

He stated that he had no recollection of Monica Everett informing him of the presence of late blight in early August, and that following the discovery of same (as previously noted, he believes it was August 14) the McLaughlins made the decision to continue to spray pesticides in consultation with Danny Blanchette of Grand Falls. Leigh acknowledged that one of the recommended practices for dealing with late blight was to destroy the diseased plants and burn those around them. [ 21 ] Leigh testified that in 2011 he was not aware of Dr.

Khalil Al-Mugharbi of the New Brunswick Potato Centre and did not attend any sessions organized by the New Brunswick Potato Growers Association on late blight.

He stated that he never called a “McCain late blight hotline” and has no recollection of an August 19, 2011 email sent by Gilles Morneau, an agronomist employed with McCain, to a group of potato farmers (including an email address titled “McLaughlin Bros”) advising that farmers should use more “specialized fungicides” (including Ramen, Revus, Gavel, Allegro and Renson) to manage late blight and prevent tuber infection (the Moreau email was marked Exhibit Dow-7).

Leigh indicated that the only individuals he consulted with, following the discovery of late blight, were Danny Blanchette and Brian Savage of Grand Falls. [ 22 ] Leigh testified that it was Danny Blanchette who made the decision to forward Dithane to RPC for testing in the fall of 2011 from three pallets of Dithane still at the McLaughlin farm. He advised that he was not certain when he became aware of the RPC test results, but did not dispute that they were sent to him in 2011.

Leigh indicated that he never requested any testing on the Revus or Allegro because Dithane was the main pesticide used in 2011 and, based on his experience reinforced by the results of the RPC test, he believed Dithane was the problem. [ 23 ] To this point Leigh’s evidence was clear and consistent. Then we moved to cross-examination. On cross-examination Leigh testified for the first time about a meeting that occurred at the offices of Grand Falls in November 2010 between Leigh, Danny Blanchette and Michael approximately one year after Danny Blanchette started managing Grand Falls.

Leigh described the meeting as follows: “He might have been managing it you know a year or so before that you know more so all the time because Joe had cancer and he wasn’t very well. Anyway, in 2010 we sold them a bunch of grain. After he started managing, generally every Saturday morning, we would go in and visit. And like he owed me some money for some grain; we’d talk about that. And in November sometime that year I remember, Kent wanted to buy a bunch of Dithane Rainshield and he was stuck on the Rainshield part where he said that would stick to the leaves and hold better.

And we talked about Danny for that part, but I never ever though it as a recommendation. We asked him if it would work well for us, and he thought so and I left it at that.”

[ 24 ] Later in the cross-examination Leigh testified further, in relation to his November 2010 conversation with Danny Blanchette regarding Dithane, “But I did talk to him about it then, but it never crossed my mind. I never looked for it to be a recommendation. I asked him how it worked and that’s where I left it… I didn’t call it a recommendation. I don’t know what it was.” [ 25 ] Curiously this meeting, the significance of which to the Plaintiffs’ claim seems apparent, was not addressed on direct examination.

Adding further confusion is the reality that during his October 15, 2018 discovery Leigh stated that there were no discussions with Grand Falls regarding Dithane, for use during the 2011 season, except for price. This was confirmed during Leigh’s cross-examination as follows: “Q. So, my questions were all about 2011 so at the time of purchase anywhere. And you answered you did not have any conversations with Grand Falls Agromart with respect to the dithane use or anything else except for the price and that there was no recommendation by Grand Falls Agromart in 2011 to use Dithane. You agree with that don’t you?

A. I agree that’s what I said but I was mistaken.” [ 26 ] Leigh further advised during his discovery that he had consulted with Michael and Bryan (the other Partners in the Partnership) and his brothers Kent and George in conjunction with his discovery preparation.

He stated that he knew “all the information relating to the subject matter of the Action and that Kent would have nothing to add” (Exhibit GF – 7 pages 137 – 139) [ 27 ] To add to the confusion on the eve of trial (November 11, 2022) counsel for the Plaintiffs forwarded the following communication to counsel for the Defendants on behalf of Leigh: “The answers given on my discovery on October 15, 2018, at page 51 line 19 to line 24 and page 143 line 11 to page 144 line 21 are not correct and/or complete. I would add the following for the complete answer.

Several years before 2011 a request was initially made to Grand Falls Agromart for a fungicide that could be used for both early and late blight for potato crops. Grand Falls Agromart was the first to recommend Dithane as a fungicide that could

be used for early and late blight. After the recommendation of Grand Falls Agromart, Dithane was then purchased by McLaughlin Bros. Repeat purchases were made for Dithane, having been recommend by Grand Falls Agromart as being fit to the purpose of addressing early and late blight, in subsequent years. Over several years, McLaughlin Bros. purchased tens of thousand of dollars of Dithane from Grand Falls Agromart and used such on our potatoes. Grand Falls Agromart knew of the use by us of Dithane as its agronomist attend our farms weekly over the summer growing season.

At no time did Grand Falls Agromart advise it (Dithane) was not fit for the purpose so in 2011 we continued to purchase Dithane from Grand Falls Agromart ….” (Marked as Exhibit GF – 1). [ 28 ] This information was confirmed by Leigh in an Affidavit (requested by counsel for Grand Falls pursuant to Rule 32.09(2)(b) ) delivered on November 24, 2022 (three business days in advance of trial) (marked as Exhibit GF – 2). The Court took particular note of the following:

a) There was no reference to the November 2010 meeting at the offices of Grand Falls in the Affidavit or Leigh’s discovery evidence – Leigh testified he only remembered the meeting somewhere between November 24 and November 28, 2022.

b) The statement Grand Falls was the first to recommend Dithane was inconsistent with both Leigh’s evidence on discovery and his testimony at trial that the McLaughlin family had used Dithane since the 1960’s and Carmel Godbout of Grand Falls Milling was the first to tell them what was in it and how it worked – this inconsistency was highlighted by the reality that Grand Falls did not become a supplier of Dithane until post - 2006 (paragraphs 56 and 96).

c) Leigh’s inability during cross-examination to explain the origins of his choice of the words “fit for purpose” in the November 11 statement and subsequent Affidavit.

d) The reality that neither Danny Blanchette or Brian Savage visited the McLaughlin farm during the 2011 season until contacted by the McLaughlins following the discovery of late blight (paragraphs 46 and 94). The McLaughlin Sprayer – Gary Nadeau [ 29 ] Gary Nadeau testified that he lives in Caribou, Maine and has worked for the local John Deere dealership for 25 years. He advised that he trained on John Deere sprayers and teaches courses on sprayer operation, safety and chemical handling.

[ 30 ] Gary advised that he sold the sprayer to the McLaughlins and serviced it annually each spring as part of a winter maintenance program. He expressed confidence that the sprayer went back to the McLaughlins in good operating condition in the Spring of 2011. [ 31 ] Gary confirmed that he calibrated the sprayer to deliver an output of 15.56 gallons per acre (Exhibit P/D 1 – 3 – Tab 21 – page 863) to accord with the desired sprayer output identified by Kent. He advised that sprayer output is set based on the rate specified by the farmer.

The Spraying – Kent McLaughlin [ 32 ] Kent described himself as a 55-year-old employee of the Partnership who has looked after the McLaughlin spray program since 1988. He estimated that he has sprayed over 340,000 acres since then. Kent advised that he normally sprays on Monday and Tuesday and that it takes approximately 20 hours to spray the entire crop. [ 33 ] Kent identified himself as the author of the Pesticide Application Records that appear in Exhibit P/D 1 – 1 – Tab 5.

He explained that McCain requires these records because it wants to know what pesticides are used on the potatoes it is purchasing and when. Kent reviewed Exhibit P/D 1 – 1- Tab 5 and confirmed the spray program narrative set out in paragraph 16. [ 34 ] Kent confirmed that all Dithane used in 2011 was purchased from Grand Falls and that the application rates for all pesticides was based on manufacturer or supplier recommendations.

He explained that when he started spraying Dithane on June 28, 2011 it was at a rate of 1.18 kg per hectare because the plants were small and just out of the ground, and that this rate was increased to 2.35 kg per hectare in July as the plants matured. [ 35 ] Kent advised that the McLaughlin sprayer has a boom 100 feet long with 60 nozzles and that it has always been his practice to check out sprayer/nozzle functionality on a weekly basis.

He indicated that the fence post nozzles at the end of the sprayer boom are larger and deliver approximately twice the volume as the other 58 – this can be seen at page 865 of Exhibit P/D 1 – 4 – Tab 21. Similar to Leigh, he recounted that sprayer output was set for 15 gallons per acre based on a recommendation from John Deere. Kent stated that an earlier John Deere study concluded that this rate afforded a solid level of crop protection while ensuring an optimal level of fuel, water and chemical consumption.

He advised that he had always sprayed at this rate and never had a problem until 2011. [ 36 ] Kent reviewed a series of photos showing the impact of the late blight on the McLaughlin potato crop (Exhibit P/D 1 – 5 – Tab 2). Pages 51 – 59 of Tab 2 show dead and/or decaying potato plants that Kent identified as being situate in the McLaughlin fields. This contrasts with an adjoining green field that Kent identified as being owned by a Louis LaForge (no evidence was placed before the Court with respect to Mr.

LaForge’s crop in 2011 or his farming practices). [ 37 ] Kent continued on to identify a series of aerial photographs that he stated were taken by Danny Blanchette showing the location of various McLaughlin fields (Exhibit P/D 1 – 5 – Tab 3) and their proximity to the US border. Blown up versions of these photos were placed into evidence and marked Exhibits P-3 – P-10. Once again, the impact of the late blight is apparent.

Kent identified areas with green stirpes as being where the fence post nozzles delivered a greater volume of spray that he advised permitted the potato plants to hold out longer against the late blight – see, for example, Exhibits P-3 – P-5 and P-9. [ 38 ] Kent recalled attending a presentation on Revus at Grand Falls in 2010. He remembers it being a new product that Danny Blanchette wanted him to hear about. Kent testified that in June 2011, after planting was concluded, he went to see Danny to discuss the purchase of pesticides.

He stated that he does this each year. [ 39 ] In 2011 Kent testified that he went to see Danny in mid-June. He advised that he asked Danny what Grand Falls would recommend for pesticides and that he was looking for a product that would be effective against early and late blight.

He stated that he was given a list of Mancozeb-based products and pricing and “I was asking Danny about this Dithane Rainshield, and I said it is a pretty good product, and he said yeah it’s a good product, cause it sticks to the leaves, it’s a good product”. [ 40 ] Kent indicated that he then went to McCain Products and other pesticide suppliers, posed the same question and requested pricing. Thereafter he returned to Grand Falls and purchased the Dithane on June 27, 2011 (Exhibit P/D 1 – 1 – Tab 11). Kent advised that he always gave Grand Falls the last opportunity to provide the best price.

[ 41 ] Kent acknowledged that the McLaughlins had used Dithane and other Mancozeb-based products for “as long as he could recall”: He initially testified that in June 2011, when he had his initial conversation with Danny, he did not know how Dithane worked. Later in Kent’s testimony, he acknowledged that he had purchased Dithane from Grand Falls in 2010 (Exhibit G F – 3) and stated, “I knew how it worked that year but every year when I go in every year, I ask the product I buy, I ask about it”.

Curiously, notwithstanding this statement, and Kent’s testimony that this was an annual practice, there was no reference to the “it’s a good product” discussion with Danny in Leigh’s discovery evidence, November 11, 2022 statement or subsequent Affidavit (paragraphs 23 –28). Kent explained that this was the first time he was telling anyone about the “it’s a good product” discussion with Danny. [ 42 ] Kent stated that when he went back to purchase the Dithane on June 27, 2011 he and Danny also discussed the use of Revus.

He advised that Danny suggested he could purchase Revus and Allegro for use later in the season as the risk of late blight increased. On re- direct, Kent stated that he made the choice to purchase Dithane following his initial “it’s a good product” discussion with Danny. [ 43 ] Kent also discussed the importance of “scouting” (checking potato fields on a regular basis) to identify if blight or other disease is present.

Kent stated that he and his brothers all participate in scouting by walking through the potato fields on a weekly basis and that he is always vigilant when driving the sprayer (Leigh provided similar testimony). Kent testified that he recalls no conversation with Monica Everett regarding the presence of late blight in the McLaughlin fields in August 2011. He did, however, recall that Michel Tremblay from Dow came to visit the McLaughlin farm in August/September 2011.

He stated that Danny Blanchette arranged the visit after the problem with late blight was identified and that it was the only time a Dow representative came to the farm. [ 44 ] Kent advised that his practice in 2011 was to use Revus and Allegro if he believed blight to be present. He acknowledged an August 5, 2011 purchase of Revus from Grand Falls (Exhibit P/D 1 – 3 – Tab 34) and confirmed, with reference to Exhibit P/D 1 – 1 – Tab 5, that he sprayed Revus on August 9, 2011. He stated that he was not certain why he decided to purchase Revus on August 5 and spray it on August 9.

Finally, Kent acknowledged that 2011 was an extremely wet growing season. Other McLaughlin Brothers [ 45 ] Bryan also testified but added nothing of relevance to the testimony of Leigh and Kent. Michael, the third partner in the Partnership, who was reportedly present for the conversation between Danny Blanchette and Leigh in November 2020, did not testify. Brian Savage – Former Grand Falls Employee [ 46 ] Brian grew up on a potato farm, obtained a Bachelor of Agriculture degree from Dalhousie University in 2010, and worked for Grand Falls until 2016 doing sales and agronomy work.

Brian testified that he first visited the McLaughlin farm in mid-August 2011, following the McLaughlins reaching out to Grand Falls to advise they had a late blight problem, by which time the late blight was widespread. He stated that the first field he visited was 3 – 5 (shown on Exhibit P-8) [ 47 ] Thereafter he advised that he or Danny Blanchette visited the McLaughlin farm on a weekly basis. Brian recollected that either he or Danny recommended that the McLaughlins spray Revus and Allegro to try to save some portion of the crop.

He also recounted that he took samples of Dithane from the McLaughlin farm and Manzate Prostick from the Grand Falls pesticide inventory and forwarded same to RPC for testing. He advised that he observed no foul odor or deterioration in the bags of Dithane from which he took the samples. Brian also forwarded foliage samples from where the fence post nozzles would have overlapped (the area of greatest spray concentration) and where there was no overlap to RPC.

He stated that all samples went to RPC in marked sealed plastic bags and were forwarded on two separate occasions in September and October 2011. [ 48 ] The reliability of the RPC testing (Exhibit P/D 1 – 3 – Tab 31) is discussed below (paragraphs 64 – 66 and 83 - 84). The result of the RPC testing was two separate reports (October 17, 2011 and October 24, 2011) stating that the level of Mancozeb in the McLaughlin – sourced Dithane was only 59%.

Brian testified that these results were alarming and resulted in him following up with respect to additional testing the results of which were not placed into evidence. [ 49 ] Brian also addressed the attributes of a robust “scouting program” to check for blight. He stated that all farmers did scouting and that it involved walking the fields looking at the potato plants. Brian advised that if you see lesions on the top of the plant then you flip the leaves over to check for spores, and that once the leaves have turned brown it is to late to do anything. Dr. Jeffrey Miller – Plaintiff Expert [ 50 ] Dr.

Miller is the President and Principal Field Investigator for Miller Research LLC. He holds Masters and Ph.D. degrees in plant pathology from Washington State University and lives and works in Idaho. He was confirmed on agreement “as an expert in the field of plant pathology with expertise in the field of potatoes, diseases of potatoes, treatment for diseases of potatoes and management of diseases of potatoes, including late blight.” [ 51 ] Dr. Miller’s report was marked as Exhibit P-11. His opinion was as follows:

“The use of Dithane Rainshield with a lower than advertised concentration of active ingredient contributed to potato crop loss in 2011 experienced by the plaintiffs”. [ 52 ] Dr. Miller premised his opinion on the accuracy of the RPC testing observing that, with a 59% Mancozeb concentration, the Partnership would have been receiving less than 80% of the guaranteed fungicide protection. Appendix A-15 to Dr. Miller’s report (the results of a Dow Agrosciences clinical trial from 2001) reflects that, while use of higher concentrations of Mancozeb will slow the spread of late blight, it will not stop same.

For example, in the clinical trial, use of Dithane at a rate approximate to the application rate used by the McLaughlins ultimately resulted in a 50% late blight infestation which increased to 75% when the quantity of Dithane used was decreased by approximately 50%. Hence, Dr. Miller’s report evidences that use of a higher concentration of Mancozeb can slow the spread of late blight more effectively than a lower concentration. [ 53 ] As noted, the reliability of the RPC testing is discussed in paragraphs 64 – 66 and 83 - 84. Dr. Miller confirmed Mancozeb is preventative and not curative.

He stated that the McLaughlin spray program was reasonable. Dr. Miller likened the spraying of Dithane to sunscreen that needs to be applied before you go out in the sun. Dr. Miller advised that spray programs like the McLaughlin’s have been shown in university studies to be very effective in preventing late blight, but acknowledged that was in Idaho where late blight is less prevalent. [ 54 ] Dr. Miller confirmed that he premised his report on the accuracy of the RPC testing.

He testified, consistent with the McCain notice of August 19, 2011 (paragraph 21), that once late blight is discovered it is essential to move to stronger pesticides and more aggressive treatment. Consistent with this observation, A-15 to Dr. Miller’s report reflects that Gavel (one of the pesticides recommended in the August 19 McCain notice) was significantly more effective at slowing the spread of late blight (two-three times) than Dithane. [ 55 ] Dr. Miller continued on to advise that he had not reviewed weather records or late blight reports from Maine or New Brunswick for 2011.

He very much deferred to the expertise of Dr. Stephen Johnson observing that he both trusted and respected the judgment of Dr. Johnson. Dr. Miller advised that late blight spores can travel up to 60 miles and spread rapidly. He indicated that to provide effective protection Dithane needed to be applied every seven days (maybe eight at most) and that this interval should be decreased to five days in wet conditions. Dr. Miller concluded by observing that there is less blight in Idaho than in Maine/New Brunswick and hence spray intervals might be different.

Michel Tremblay – Dow Representative [ 56 ] Michel is a professional agronomist from Quebec who was a Dow employee in 2011. He testified that he started working with Rohm & Haas in 1981 and moved to Dow in 2001 when the Division that produced Dithane was purchased by Dow. Michel worked in New Brunswick between 1998 – 2008.

He advised that until 2006 Grand Falls Milling and McCain Products were the two New Brunswick Dithane dealers, and that in 2006 Grand Falls Milling exited the fungicide business and thereafter Grand Falls started selling Dithane. [ 57 ] Michel advised that he did sales work in both Quebec and New Brunswick and indicated that he knew Leigh from Leigh’s attendance at chemical presentations and an annual Dow – sponsored curling event. Michel returned to Quebec in 2008, but maintained a New Brunswick representative on behalf of Dow.

That representative contacted him in August 2011 to advise of a blight problem at the McLaughlin farm. Michel testified that he visited the farm on September 7, 2011 and spoke with Leigh. [ 58 ] Michel observed that the spraying of Mancozeb-based products is preventative in nature and adopted Dr. Miller’s sunscreen analogy. Michel accepted that the McLaughlins applied Dithane at the correct rate, but questioned the sprayer volume.

He stated that the correct sprayer volume is 20 – 25 gallons of water per acre, to ensure optimal coverage, as opposed to the 15.56 gallons per acre the McLaughlin sprayer was set to deliver. He expressed the view that the benefits of a higher sprayer volume are evidenced by the reality the areas sprayed by the fence post nozzles (which put out a significantly greater volume of spray) are greener than other areas in the McLaughlin fields (see, for example, Exhibits P-7, P-9 and P-10).

[ 59 ] Michel also reviewed the label instructions from the Dithane sold to the Partnership (Exhibit P/D 1 – 1 – Tab 9), excerpts from which are as follows: STORAGE Keep away from fire and sparks. Store in cool, dry, well ventilated place. Do not allow to become wet or overheated in storage: decomposition, impaired activity, or fire may result. Keep container closed when not in use. Pallets of containers should not be stacked more than 3 high. Provide access aisles for each 2 rows. Decomposition produces foul odour: if observed, check for hot containers and remove immediately to open areas for disposal.

Do not contaminate food or feed by storage or disposal. ……………………………………………………. Product Specific Precautions Read and understand the entire label before opening this product. If you have questions, call the manufacturer at 1-800-268-4201 or obtain technical advice from the distributor or your provincial agricultural representative. Application of this specific product must meet and/or conform to the following: Volume: Apply the recommended rate in a minimum spray volume of 25 litres per hectare. VEGETABLES POTATOES – For early and late blight.

Begin applications early, apply 1.1- kilograms Dithane DG fungicide per hectare when plants are 10-15 cm high. Increase the rate to 1.75 kilograms per hectare as plants increase in size, and to 2.25 kilograms per hectare at row closure. Apply every 7-10 days throughout the season. Reduced Spray Interval

Schedule During periods of wet weather favouring late blight and/or vigorous crop growth, spray intervals may be reduced to 5-6 days. Apply 1.1 kilograms per hectare until row closure then increase the rate to 1.75 kilograms per hectare until conditions allow the return to the regular spray schedule. Thorough, uniform coverage is essential for good disease control. Do not apply within 1 day of harvest.

Use 40 litres of water per hectare for aerial applications. [ 60 ] Michel accepted that if Dithane became overheated or wet in storage decomposition (resulting in a foul odor) and impaired activity (he described it as a loss of functionality) could result. Michel testified that he had no knowledge of how the Dithane was stored while in the custody of Dow. Curiously, while the label instructions directed the application of Dithane at rates slightly lower than the concentrations used by the McLaughlins, there was no reference to the sprayer volume of 20 – 25 gallons of water per acre recommended by Michel.

The only specific reference to application volume under the Vegetable

section was to “use 40 litres of water per hectare for aerial applications.” The Product Specification

section makes reference to “a minimum spray volume of 25 litres per hectare.” Each of these volumes is obviously much less than 25 gallons per acre. [ 61 ] Michel testified that he inspected the McLaughlin sprayer and expressed concern regarding the sprayer volume. He acknowledged that Leigh expressed concern regarding the quality of the Dithane.

Michel advised that he filed a Quality Report (Exhibit P-15) stating that the McLaughlins had concerns with the Dithane and that he “would like to see the specs of this product so he can show the grower.” Michel stated that this request was passed along to others at Dow, and he (somewhat uncomfortably) acknowledged that he was uncertain how or if it was ultimately addressed.

He acknowledged that he was made aware of the results of the RPC testing in the fall of 2011, and to his knowledge no one from Dow requested that a sample of the McLaughlins’ Dithane be provided to Dow for testing. [ 62 ] Michel testified that 960 - 20 kg bags of Dithane were sold to Grand Falls in June 2011 (Exhibit P/D 1 – 3 – Tab 36). Dithane was

also sold to McCain Products and to other suppliers in Nova Scotia and Prince Edward Island. As noted in paragraph 18, 300 bags of Dithane (approximately 30% of the total purchased by Grand Falls) was subsequently sold to the Partnership. Michel testified that no other complaints were received with respect to the Dithane supplied to Grand Falls, McCain Products or other customers in the Maritime Provinces. Dr. Tony Comb – Dow Expert [ 63 ] Dr. Comb holds a Ph.D. in Chemistry and is employed as a senior chemist with Agro Chemex Environmental.

He described himself as an analytical chemist and was qualified upon consent as an “expert in analytical chemistry with experience in testing pesticides including Mancozeb.” [ 64 ] Dr. Comb testified that he tested and supervised the testing of Mancozeb-based products between 2000 – 2015 while employed by Envigo (formerly Huntington Life Sciences) – his resume was marked as Exhibit D-4. Dr. Comb attached a report dated March 11, 2021 in which he stated as follows: Mancozeb is a dithiocarbamate based fungicide.

The analysis conducted by the analytical laboratory RPC was for the determination of the total mancozeb content in two separate samples of formulated neat product. The following results were obtained: Sample Result (% w/w mancozeb content) Dithane Rainshield Dithane Rainshield #2 Manzate Prostick 59 55 59 56 The latter sample, Manzate Prostick, was a competitor product and was analysed as a control sample.

From the results, the following can be concluded: - All of the results are substantially similar, the only variation being within experimental error within the data set. - All of the results are approximately 75% of the nominal content (75/76% w/w mancozeb) of both products as stated in both manufacturer’s documentation (certificates of analysis and/or product label). - It is therefore possible to state that the active content of all samples were identical, within experimental variation.

Assuming that all test samples were treated in the same manner, then these results would suggest that the analytical method was not robust and lead to the artificially low results.

The procedure used was based on that described within the

article “Residues of Ethylbisdithocarbamates on Field-Treated Fruits and Vegetables.” B.D. Ripley, Bull. Environm. Contam. Toxicol. 22, 182-189 (1979). The method involves an indirect measurement of the ethylbisdithocarbamate contents of residues on crops by acid digestion and then trapping the released carbon disulphide forming a xanthate which was quantified by UV spectroscopy. One of the most relevant issues with using this procedure is that it is designed for low levels of the active substance in residues and not for the assay of a formulated product – as acknowledged by RPC.

In my experience it can often be extremely difficult to transfer a residue method for use on a high concentrated samples for the following reasons: - The test item formulation would have to be diluted significantly into the linear range of the residue method.

This can be quite difficult for any product due to the significant dilution factor, but can be made especially difficult when handling mancozeb formulations since the products are not readily soluble and so serial dilutions of dispersions would have to be made, which usually increase the margin of error in any procedure. - By using larger amounts of mancozeb product there is a distinct possibility that the amount of active substance present may be too high for the traps and thus lead to lower recoveries. - The accepted margin of error for any residue method is significantly higher than that used for the assay of formulated products.

Even within the aforementioned publication, there is discussion on the difficulties of obtaining consistent reference standards – with coefficients of variation of up to 11% cited. Without reviewing the actual procedure and data in detail (which no longer exists) then it would be my conclusion that the method was not appropriate for the assay of the original samples, Dithane Rainshield and Manzate Prostick. As further background, the official procedure for the assay of mancozeb formulations – as recognised by agrochemical regulatory authorities – is the validated method described in CIPAC 1A; 34/1/M/7.3.

It does involve the acid digestion of the product, followed by trapping the released carbon disulphide and titrating the xanthate formed. The procedure uses much larger sample amounts and is considered quite robust with a smaller margin of error (+/- 1%). In my experience of mancozeb assays, the official method can be notoriously difficult to perfect; however, once the equipment is established and the relevant analysts are fully trained then the assay can be very accurate.

As part of routine use, this would be confirmed daily (or for each batch of reagents) by the analysis of the commercial reference item, sodium diethyldithiocarbamate. Conclusion An inappropriate method was used by RPC for the assay for the original assay of the two formulated products. The method was designed for low level analysis of residues of the active substance and such methods will have a potentially large margin of error, which was further exaggerated by the fact that the samples of formulation had to be diluted into the working range of the procedure.

Despite the fact that the method used was not valid for the formulations, it can be concluded that due to the similarity in the results obtained between the two products then the starting content of mancozeb in both products was almost identical. [ 65 ] For purposes of preparing his report, Dr. Comb confirmed that he had reviewed a September 18, 2019 email forwarded by Karen Broad of RPC to counsel for Dow that read as follows: The method for mancozeb testing used to analyse these samples is the method we have developed for potato samples.

Since the sample would have been highly concentrated, we would first dilute it and then test it in the same way as any other sample. Our procedure uses an acid digestion and distillation process to recover the carbon disulfide formed from the breakdown of ethylenebisdithiocarbamates (EBDCs). A sodium hydroxide/toluene trap is used to clean-up the distillate before the final trap where the CS 2 forms a xanthate with a

chromogenic reagent. The absorbance of this solution is then measured at 435 nm. This result is compared to a known concentration of a pure standard of mancozeb to determine the concentration of mancozeb in the sample. Our reference method for this procedure is: Residues of ethylenebisdithiocarbamates on field-treated fruits and vegetables. Ripley, BD. Bull. Environm. Toxicol. 22, 182-189 (1979). Since this method was not specifically designed for testing pesticide formulations, I cannot say if components of the formulation could have caused any suppression or enhancement of the reported values.

I can say that in cases like this, I would usually let the client know that any result could only be considered an approximate concentration. I should add that this sample was not handled according to our legal sample handling procedure, and had it been requested, we would have declined to perform this test as a legal sample. Unfortunately, the lab data has been destroyed, so I don’t have any additional information about the work we did on these samples.

I checked with our department admin. assistant and our records confirm that the files have been destroyed, but the date they were destroyed was not recorded. [ 66 ] Dr. Comb explained that the method employed by RPC to test the Dithane samples forwarded to it by Brian Savage was a methodology designed to “test for residue levels of pesticides on crops to make sure they are safe for human consumption” that was inappropriate for measuring the level of Mancozeb present in a pesticide formulation.

He testified that, even in instances where the residue methodology was appropriate, the “agro chemical regulations for residue studies” permitted a 20% margin of error (the 11% reference in his report having come from the B.D. Ripley publication referenced in Karen Broad’s email). Dr. Comb advised that the accepted methodology for testing the percentage of Mancozeb in a pesticide formulation is the CIPAC (Collaborative International Pesticides Analytical Council) method described in his report. Dr.

Comb advised that he was informed by Marc-Laurent Bomartin of Bayer (paragraph 99) that Bayer utilized the CIPAC method in its preparation of the Certificates of Analysis that were prepared for each batch of Dithane that Bayer manufactured for Dow. Monica Everett – McCain Employee [ 67 ] Monica has worked as an agronomist for McCain since 1999 with contract growers in Carleton, Madawaska and Victoria counties. She described the Crop Management Evaluation Handbook that appears at Exhibit P/D 1 – 1 – Tab 4 as a McCain evaluation tool intended to improve contract growers’ agricultural practices and outcomes.

She accepted during cross-examination that her job was to ensure a high-quality supply of potatoes for use in McCain’s production of french fries. [ 68 ] In 2011 Monica indicated that she worked with the McLaughlins and visited their farm on a weekly basis. Specifically, Monica stated that she monitored Field 5 – 1; a 83.3 acre parcel situate on the McCluskey Road that was planted with Russet Burbank potatoes on June 1, 2011 (Exhibit P/D 1 – 1 – Tab 7 page 118 and Exhibit P/D 1 – 5 – Tab 5 page 155).

Monica testified that during her weekly visits she would scout (walk the field and inspect for lesions on the potato plants that would indicate if blight or other disease was present) for approximately two hours and check a rain gauge that she maintained in the field to measure precipitation.

She noted that 2011 was an extremely wet year with 4.3 inches of rain recorded in June, 4.9 in July, 9.1 in August and 2.3 in September – Monica observed that in a normal potato growing season she would expect to see 4 – 4.5 inches of rain. [ 69 ] Monica stated that her practice was to make handwritten notes during each visit and then type those notes when she was back in the office.

The handwritten record of her August 4, 2011 visit to Field 5 – 1 appears at Exhibit P/D 1 – 1 – Tab 4 page 49 (the typed version appears at page 61) and documents that on that date Monica discovered two plants with late blight lesions in Field 5 – 1 on each side of the sprayer track. Monica testified that she would have marked those plants with flags and, on the same day, notified a member of the McLaughlin family of the presence of the late blight and recommended the removal of the diseased plants and destruction of the plants around them.

She observed that the focus of her scouting was the early detection and elimination of late blight, and that this is the practice she follows in all instances when she discovers late blight. [ 70 ] Monica advised that she was not able to recall the member of the McLaughlin family she spoke to on August 4, and her notes from her August 11 visit were misplaced or destroyed. Hence, she had no record of what, if anything, the McLaughlins did immediately after her August 4 visit (the record reflects that Kent purchased Revus from Grand Falls on August 5 – paragraph 44).

Monica’s August 18 report rates late blight at level 2, which she described as late blight being present throughout Field 5 – 1: that was consistent with Leigh’s advice that late blight was everywhere in the McLaughlin fields by mid – August (paragraph 16).

[ 71 ] Monica recounted that the McLaughlins had a higher incidence of late blight than Louis LaForge, but provided no insight with respect to Mr. LaForge’s agricultural practices. She stated that McCain (Gilles Morneau) would only have sent out the August 19, 2011 notification (Exhibit Dow – 7) if they knew that there was a late blight outbreak. Finally, Monica confirmed that she supported the decision of the McLaughlins to destroy the 2011 potato crop as it was not storable or usable.

Tyler Gorwanbelt – Dow Employee [ 72 ] Tyler has been a Dow employee for 28.5 years and assumed responsibility for managing the McLaughlin litigation in 2013. Similar to Michel Tremblay, he confirmed that Dow became the manufacturer of Dithane in 2001, when it purchased the agricultural business of Rohm & Haas, and that in 2011 Dow supplied Dithane in New Brunswick to McCain Products and Grand Falls. [ 73 ] Tyler testified that he had reviewed the Dow records and the only complaint / problem with respect to Dithane reported in Canada in 2011 was from the McLaughlins.

He indicated that he served as Dow’s sales leader for Canada between 2013 – 2019 and was unaware of any complaints regarding Dithane during that period. [ 74 ] Tyler identified the Formulation and Packaging Services Agreement that appears at Exhibit P/D 1 – 3 – Tab 40. He explained that in 2008 – 2009 Dow closed its manufacturing facility in France and since that time Dithane has been manufactured by Bayer for Dow.

He confirmed that the Agreement obligated Bayer to manufacture Dithane based on Dow’s specifications and to provide a Certificate of Analysis for each batch produced confirming that batches compliance with same. [ 75 ] Tyler accepted that the Dithane sold to the Partnership was manufactured in France in February 2011 and delivered to Dow approximately one month later at which time it became the responsibility of Dow.

At discovery Tyler testified that, prior to being shipped to Grand Falls, the Dithane was stored at a third-party warehouse facility in London, Ontario that had been inspected by Dow and confirmed as being maintained in accordance with Crop Protection Institution of Canada Standards (Exhibit P-13, pages 555 - 561). Tyler undertook at discovery to provide, but was later unable to produce, documentation regarding storage conditions at that facility during the relevant period.

He accepted that Dow was aware in the fall of 2011 that Grand Falls was taking steps to have the Dithane tested and that it was advised of the RPC test results. Tyler was unaware of any independent testing undertaken by Dow, but did recall receiving and reviewing the Certificate of Analysis prepared by Bayer for the relevant batch numbers. He testified that Dow relied on the results of this testing. Dr. Robert Coffin – Dow Agronomy Expert [ 76 ] Dr. Coffin holds a Ph.D. in plant pathology from Guelph University.

He worked as an agronomist for Cavendish Farms for 18 years including work on Prince Edward Island with Cavendish Farms-contract growers. He detailed extensive involvement with the agricultural chemical industry and the treatment of late blight. Upon consent he was confirmed as having the same scope of expertise as Dr. Miller (paragraph 50). [ 77 ] Dr. Coffin’s report was marked as Exhibit Dow – 9. In his report and testimony, Dr. Coffin cited various third-party sources in referencing that 2011 was a wet year in New Brunswick very conducive to the spread of late blight. Dr.

Coffin acknowledged that he did not independently review climate records for New Brunswick for 2011, but his evidence was consistent with the testimony of Kent (paragraph 44) and Monica Everett (paragraph 68). Similar to other witnesses, Dr. Coffin advised that late blight was a fungal disease the spores of which can travel long distances and spread rapidly. He stated that it can destroy unprotected potato plants in one – two weeks. [ 78 ] Dr.

Coffin, again similar to other witnesses, testified that there is no cure for late blight and that the spraying of pesticides serves a preventative function only and that they must be applied before late blight is present. He described a test he undertook while working with Cavendish Farms on PEI in which a plot of potatoes was preventatively sprayed with a Mancozeb-based product every five – seven days while an adjoining plot was left untreated. Late blight was introduced into the field after spraying had commenced.

Exhibit Dow – 12 reflects that the sprayed plot remained healthy while the unsprayed potatoes turned brown and died. Dr. Coffin recounted: “So, when we had an open house there were literally hundreds of people that came and witnessed that and a common question, they put to me how can you have plots that are completely destroyed with late blight right beside other potatoes with no late blight, and I said the fungicides were working because we applied them before any late blight infections had started. We did the spray every five to seven days, we never went longer than seven days between spraying.

We would listen to the weather, and we were getting a good spray pattern, we verified that.”

[ 79 ] Dr. Coffin also testified that he unsuccessfully experimented with different pesticides to determine if it was possible to cure or eradicate late blight. On the basis of this research, he opined “successful control of late blight is accomplished with a protection program, not an eradicate spray program.” [ 80 ] Similar to Monica Everett (paragraph 69), Dr. Coffin testified as to the importance of scouting and the need, once a potato plant infected with late blight is discovered, to immediately remove the plant and destroy the other plants around it.

He explained that infected plants release thousands of spores every day. Dr. Coffin also, consistent with the label instructions for Dithane (paragraph 59), recommended that the spray cycle should be shortened to five – six days during periods of wet weather. Finally, consistent with the testimony of Michel Tremblay (paragraph 58), Dr. Coffin recommended a sprayer volume in the range of 25 gallons per acre to ensure optimal coverage (in his report he referenced 20 gallons per acre).

Like Michel Tremblay, he stated that the importance of this volume was evidenced by the reality that the areas of the McLaughlin fields sprayed by the fence post nozzles remained greener longer. Dr. Raymond Brinkmeyer – Retired Dow Chemist [ 81 ] Dr. Brinkmeyer holds a Ph.D. in Chemistry from Colorado State University and was a Dow employee for 30 years before retiring in 2018. He was qualified on consent as “an expert in organic chemistry and pesticides regulation.” He worked as the U.S. and Global head for Mancozeb regulation between 2005 – 2018. [ 82 ] Dr.

Brinkmeyer filed a report that was marked as Exhibit Dow – 15 in which he stated that “Mancozeb is very effective at controlling late blight.” He testified that Mancozeb serves a preventative function only and must be applied consistently commencing prior to the arrival of the late blight. Dr. Brinkmeyer advised that the formulation of Dithane (including the material added to the formulation to assist Mancozeb in adhering to the potato leaves) has been substantially similar since the 1980’s. He acknowledged that Dow did no independent testing on the Dithane sold to the Partnership. Finally, Dr.

Brinkmeyer testified that Dow has a modern laboratory in Indianapolis that, at all relevant times, had the capability to conduct the CICAP test described by Dr. Comb (paragraph 66) Karen Broad – RPC Employee [ 83 ] Karen is a resident of Fredericton, holds a Bachelor of Science Degree and is employed as a lab supervisor with RPC. The Partnership served a Notice of Intention to call Karen as an expert witness with respect to the RPC testing on November 17, 2020, but did not do so. She was called as a lay witness by Dow.

Karen confirmed that the RPC lab conducted two separate tests on October 17, 2011 and October 24, 2011 (Exhibit P / D 1 – 3 – Tab 31), on the Dithane and plant material forwarded by Brian Savage (paragraph 47), and that she forwarded the email that appears at paragraph 65. [ 84 ] Karen testified that RPC retains records of the tests it conducted for five – seven years, and was not contacted until 2019 with respect to this testing and then only by counsel for Dow. She advised that she was unfamiliar with the CIPAC methodology (paragraphs 64 - 66) referenced by Dr. Comb.

During cross-examination, Karen’s responses were consistent with Dr. Comb’s observation that “an inappropriate method was used by RPC for the assay…of the two formulated products.” This was captured in the following exchange: Q. (Mr. Gillis): It’s much like a recipe that would be all set out in the standard operating procedures with respect to this particular test. A. (Ms. Broad): No, it wouldn’t in this case because the standard operating procedures we were following is intended for potatoes and not for a chemical product.” Bottom line, Karen’s testimony, coupled with Dr.

Combs evidence and Karen’s September 18, 2019 email (paragraphs 64 - 66), make it clear that the RPC testing cannot be accorded scientific or empirical significance. Dr. Stephen Johnson – Grand Falls Agronomy Expert [ 85 ] Dr. Johnson holds a M.S. from the University of Maine at Orono and a Ph.D. from the University of Florida, both in plant

pathology. He has been employed as a Crops Specialist with the University of Maine since 1988 and was confirmed as having the same scope of expertise as Dr. Miller (paragraph 50). Dr. Johnson testified that he has worked most of his life in blight prevention, detection and control. [ 86 ] Dr. Johnson testified that what happens in Northern Maine can be expected to happen in New Brunswick’s potato growing region because the Northern Maine growing region is directly across the border from the Grand Falls area.

He advised that there was a late blight outbreak in Northern Maine in 1994 and that, following same, he developed an algorithm to predict late blight and established a hot line to warn growers when there was a risk of late blight. He stated that he had made his blight prevention software available to Dr. Khalil Al-Mughrabi of the New Brunswick Potato Centre, and for purposes of his modelling collected data from 17 weather stations situate within one to seven miles of the New Brunswick border. [ 87 ] Dr. Johnson prepared a report that was marked Exhibit GF – 5.

In it he notes as follows: a) “The 2011 growing season was one of the worst growing seasons for late blight in the past 30 years. Record rain falls were set nearly every month of the 2011 growing season”.

b) Late blight was discovered in Maine on July 18, 2011 and in New Brunswick on July 20, 2021.

c) The McLaughlins started their spray program nine days late. Specifically, Dr. Johnson observed that only three of the McLaughlin fields (representing 122.7 acres) were first sprayed with Dithane pre – July 5, 2011 (over one month after most of their fields were planted (Exhibit P/D 1 – 1 -Tab 7)). Dr. Johnson observed that the potato plants would have been out of the ground, unprotected and susceptible to attack by late blight in early July which is when he opined (estimated) late blight first arrived in New Brunswick.

d) The McLaughlins applied four fewer applications of protectant (Dithane) than Dr. Johnson recommended by September 2, 2011 and, in addition, should have applied one systematic material and two translaminar materials post the presence of late blight in New Brunswick

e) Maine growers who followed Dr. Johnson’s recommended spray program suffered minimal impacts from late blight in 2011. [ 88 ] In his testimony Dr. Johnson described late blight as having become more aggressive in the 2000’s. As noted, because of the weather conditions and corresponding risk of late blight in 2011, he recommended spraying protectants on a five-day cycle and also spraying systematic and translaminar treatments at the same time.

He described the McLaughlin weekly spray program as a plan that worked well a generation ago, but stated that by 2011 it was no longer effective against more aggressive late blight. Dr. Johnson testified you now needed to adjust your spray program based on the weather, and in 2011 that meant moving to a five-day program (similar to Dr. Coffin’s testimony regarding the need to adjust spraying schedules based on weather – paragraph 78). Specifically, Dr.

Johnson would have recommended the addition of Revus and Allegro in addition to (as opposed to in substitution for) Dithane in the McLaughlin spray program. [ 89 ] On October 24, 2011 Dr. Johnson corresponded with Leigh with regard to potato samples Leigh had brought to him for testing. In that correspondence (marked as Exhibit GF – 6), Dr. Johnson observes the “potatoes are exhibiting symptoms of late blight and pink rot” before continuing on to observe: “The 2011 growing season is rivaling the 1994 and 2004 seasons as one of the worse years for weather-related maladies, late blight and pink rot included.

As expected, these diseases have been showing up in areas of most potato fields in Aroostook County this season. Record rainfalls were set nearly every month of the growing season. Potato production areas bordering Canada have been especially hard hit with late blight. We are now seeing the evidence of late blight and pink rot as some tubers start to breakdown in the field. Please feel free to contact me if you have any questions or require further information.” Danny Blanchette – Owner Grand Falls

[ 90 ] Danny is an agricultural technologist who began working at Grand Falls in 1996 and became the President in 2010 following the passing of Joseph Savage. Danny advised that he owns 25% of the shares of Grand Falls. [ 91 ] Danny recalled meeting with Leigh and Michael in November 2010. He testified they met on a weekly basis, but had no recollection of any conversation regarding Dithane. He testified that he organized a Revus presentation in January 2011 that was attended by Kent.

Danny recalled Kent calling and asking for pricing on Dithane in 2011, and then coming in to make a purchase two – three weeks later. Danny stated that he had no recollection of making any recommendation with respect to Dithane noting, when pressed during cross-examination, “it’s a commodity. We don’t give recommendations on commodities…”. [ 92 ] Danny testified that 2011 was a very wet year that resulted in later than usual planting and a lot of late blight in the Grand Falls area. He stated that, because of those conditions, he did recommend Revus to Kent when Kent came in to purchase the Dithane.

He recollected that Kent told him they would stick with Dithane as they had used it for a long time and were happy with it. Danny advised that he received no other complaints with respect to Dithane in 2011. [ 93 ] Similar to Michel Tremblay, Danny testified that Grand Falls purchased 960 – 20 kg bags of Dithane in 2011 (paragraph 62). He advised that the shipment arrived on June 10, 2011 in sealed containers from which two broken bags were disposed of, and the remainder stored in the Grand Falls warehouse.

He stated that the warehouse was a climate – controlled dry storage facility in which the Dithane was stored on pallets stacked three high. Danny stated that there were no issues with the warehouse in 2011. [ 94 ] Danny advised that he visited the McLaughlin farm following the discovery of the late blight. He confirmed that he contacted RPC to perform testing, and that following receipt of the second RPC test report, he contacted RPC and questioned the results.

He stated that he asked if the results would be “legal to go to court with” and was informed that RPC was not “comfortable” with saying the tests were “done properly or accredited”. Danny stated that he then instructed Brian Savage to arrange for additional testing at other labs as he was not comfortable with the RPC results (paragraph 48). He advised that a further test was performed at another lab at the expense of the Partnership / McLaughlins. As already noted, the results of that testing were not placed into evidence.

Danny testified that he provided the results of both the RPC and additional testing to the McLaughlins – he stated that he did not remember specifically what he said to the McLaughlins about the RPC test results. [ 95 ] Danny described the McLaughlin’s sprayer as “top notch” and testified that they took good care of their equipment. He acknowledged that he confirmed to Kent the kg. per acre volume of Dithane to use (based on the label instructions), and that he took the aerial photos that were marked as Exhibits P-3 – P-10.

He stated that he regarded late blight as a community problem in 2011. [ 96 ] Danny testified that he sold Bravo to Louis LaForge in 2011 and was not aware of him having any problems with late blight. He stated that in 2011 Grand Falls sold other products that were appropriate for the treatment of early and late blight, including Bravo and Gavel. He advised that Revus was twice the cost of Dithane. Danny testified that prior to Grand Falls obtaining distribution rights for Dithane (he thought in 2008 – 2009) the Mancozeb-based product it sold was Manzate Pro-stick.

Peter Skopeck – Bayer Plant Manager [ 97 ] Peter has worked as the Plant Manager at Bayer’s manufacturing facility in Villefranche–sur-Saône, France for eight years. He testified that the Dithane in question was manufactured at that location under the terms of the Formulation and Packaging Services Agreement referenced in paragraph 74 and thereafter shipped in 900 kg bags to the Bayer facility in Marle where it was re-packaged into 20 kg bags for delivery to Dow.

The Certificates of Analysis prepared by Bayer (Exhibit P/D 1 – 3 – Tab 23) reflect that the Dithane contained in excess of a 75% level of Mancozeb (approximately 76%) in close proximity to the time of delivery to Dow, and that such certification was valid until February 2013 [ 98 ] Peter testified that the Dithane was shipped from the Marle facility around April 15, 2011 at which time it became the property and responsibility of Dow (Exhibit P/D 1 – 3 – Tab 40 page 1029). Finally, Peter acknowledged that high humidity levels and/or high temperatures could cause Dithane to degrade.

Marc–Laurent Bomartin – Bayer Quality Manager [ 99 ] Marc-Laurent holds an MS in Chemistry and is employed by Bayer as the Quality Manager at the Villefranche-sur-Saône facility. He testified that the methodology employed by Bayer for testing the percentage of Mancozeb present in the Dithane it manufactures for Dow is the CIPAC method (paragraph 66), and that the testing is conducted in an ISO-9000 certified laboratory facility. Marc-Laurent

advised that since 2011 he has been involved in the production and testing of 540 batches of Dithane (approximately 12,000 tons), and that the complaint from the McLaughlins is the only one he is aware of. Plaintiff’s Position [ 100 ] The Partnership claims against Grand Falls in contract. The Partners allege that they made known to Grand Falls the purpose for which they required a fungicide, namely the treatment of their potato crop for early and late blight, relied upon Grand Falls’ recommendation that Dithane Rainshield was appropriate for this purpose and that reliance resulted in the total loss of their 2011 potato crop. They ground their claim in

section 20(

a) of the Sales of Goods Act (New Brunswick) (the “ Act ”). [ 101 ] The Partnership’s claim against Dow is grounded in negligent manufacture, storage and / or failure to test the Dithane to confirm that it contained the guaranteed percentage of the active ingredient Mancozeb, and failing to warn the Partners that use of the fungicide would not be effective in preventing damage from late blight. The Partners point to the reality that:

a) Dow requested/undertook no independent testing of the Dithane supplied to the Partnership in 2011 despite having ample opportunity to do so after being informed by well-established potato growers, who had used Dithane for many years, that they believed there was a problem with the Dithane (paragraphs 61 and 75);

b) Dow had a world-class laboratory in Indianapolis capable of conducting the CIPAC test identified by Dr. Comb as the appropriate methodology to identify the percentage of Mancozeb present in a pesticide formulation (paragraph 82);

c) Dow was unable to supply any records with respect to the storage and transportation of the Dithane between France and New Brunswick despite being aware it deteriorates over time if it becomes overheated or wet (paragraphs 60 and 75); and

d) despite all of this, and being aware of the RPC test results since late 2011, Dow only commissioned Dr. Comb’s report in March 2021, critical of the RPC testing, well after the data upon which Karen Broad’s report was destroyed as a matter of standard laboratory practice (paragraphs 64 and 75) [ 102 ] On the basis of these realities, the Partners argue that an adverse inference should be drawn against Dow. As a matter of “logic and common sense” based on the personal observations of the McLaughlins and the work of Dr.

Coffin, as reflected in Exhibit Dow – 12, the Partnership maintains that the only logical conclusion is that the level of Mancozeb in the Dithane supplied to the Partnership was below 75% and this materially contributed to the loss of the Partnership’s potato crop in 2011. [ 103 ] During closing arguments, counsel for the Partnership accepted / acknowledged that there existed no basis in law upon which the claim against Bayer could succeed. [ 104 ] The Partners’ arguments give rise to the following legal considerations:

a) Was there a breach by Grand Falls of the implied warranty of application under

section 20(

a) of the Act as a consequence of its sale of the 300 – 20 kg bags of Dithane to the Partnership in June 2011?

b) If so, have the Partners established that such breach materially contributed to the loss of the Partnership’s 2011 potato crop?

c) Finally, is Dow liable in negligence to the Partnership in the circumstances of this case? Implied Warrant – Claim Against Grand Falls

[ 105 ]

Section 20(

a) of the Act reads as follows: 20 Subject to the provisions of this Act and of any statue on the subject, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract of sale, except as follows: (

a) if the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, so as to show that the buyer relies on the sellers skill or judgment, and the goods are of a description that it is in the course of the sellers business to supply, whether the seller is the manufacturer or not, there is an implied condition that the goods are reasonably fit for the purpose , but in the case of a contract for the sale of a specified

article under its patent or other trade name, there is no implied condition as to its fitness for any particular purpose. (Emphasis added) [ 106 ] In

summary, for

section 20(

a) to have application:

a) the sale must be made in the course of the seller’s business,

b) the seller must be aware of why the buyer is purchasing the goods in question, and

c) the buyer must show that they relied on the seller’s skill and judgment in making the purchase. See: Atlantic Potato Distributors Ltd. v. Meersseman , 2009 NBQB 133 , and Atlantic Potato Distributors v. Meersseman, 2010 NBCA 50 . [ 107 ] In this instance, it is not disputed that the sale of Dithane was made by Grand Falls to the Partnership in the ordinary course of business with knowledge that the Dithane was being purchased for use in the prevention of early and late blight. Hence, the sole issue with respect to the applicability of

section 20(

a) is the issue of reliance. [ 108 ] Turning to the issue of reliance, I am compelled to observe that Leigh and Kent were, simply put, not credible witnesses. I will begin with Leigh’s November 11, 2022 statement and subsequent Affidavit. It defies belief and common sense that Leigh, having participated in lengthy discoveries in 2018, would suddenly recall a few days before trial that it was in fact Grand Falls who first introduce the McLaughlin family to and recommended Dithane.

The incredulity of this 11 th hour revelation is compounded by the reality that the evidential record presented at trial reflects that the principal factual elements of this narrative are false – the McLaughlins purchased Dithane from a variety of other suppliers pre-2011 (Leigh testified Carmel Godbout of Grand Falls Milling first introduced them to Dithane), knew what was in it and how it worked (the formulation having been substantially consistent since the late 1980’

s) and liked the product. Moreover, Grand Falls did not obtain distribution rights for Dithane until post – 2006. [ 109 ] Even if I could somehow make sense of Leigh’s statement, I then need to reconcile it with the “it will work well discussion” between Leigh and Danny Blanchette in November 2010 (that Leigh testified he only recalled between November 24 - 28, 2022) and the “it’s a good product discussion” between Danny and Kent in June 2011 (that Kent did not tell anyone about until he was on the stand).

The sheer unbelievability and incredulous nature of these ascertains, arriving 11 years after they purportedly took place and after eight years of litigation, defies belief. [ 110 ] It appears as if Leigh’s November 2022 statement was authored by a middle school student given the assignment of spelling out the elements of a product liability claim in a vacuum following a rudimentary introduction to sale of goods law (note the words “fit for purpose so in 2011 we continued to purchase Dithane from Grand Falls”).

Thereafter, that same student determines that the reliance should relate to 2011 to substantiate the claim and presto we have Leigh’s second revelation regarding the November 2010 conversation with Danny and the need for Kent to reveal from the witness box that which he had diligently kept to himself (and from his brothers and employers) for 11 years.

I will say nothing more on this question of the credibility of Leigh and Kent other than to observe it was not surprising we did not hear from Michael (who was allegedly also in attendance at the November 2010 meeting between Leigh and Danny) [ 111 ] Moving to Danny and Brian Savage, I found both to be credible and consistent witnesses. As the owner of a business that is

dependant on the local agricultural community, Danny endeavored to be a careful and factual witness. When pushed during cross-examination regarding his statement that he had no recollection of making any recommendation to Kent with respect to the usage ofDithane his response was we do not recommend commodities. [112] I accept that statement for its truthfulness, Moreover, it is consistent with the reality that the evidential record reflects that theMcLaughlins’ decision of what pesticides to purchase and where to make those purchases was driven by price.

This was understandable.They were a well-established farming operation who had operated successfully for many years. Kent knew he wanted to purchase theMancozeb-based product he could acquire for the best price, with a preference for Dithane if pricing and supply considerations were noissue. [113] Bottom line, on the basis of the evidential record before the Court and my credibility assessments with respect to the testimony ofKent and Leigh, I find that Danny made no recommendation to Kent or Leigh with respect to the purchase, use or functionality ofDithane in November 2010 or June 2011.

However, even if I had determined the “it will work well” discussion took place with Leigh inNovember 2010 and/or the “it’s a good product discussion” with Kent in June 2011, where would that take us? In Antworth v. Fagan,1969 Carswell NB 190, Justice Creaghan, while discussing the application of

section 20 of the Act (then

section 15), observed asfollows: 11 A leading case of the Supreme Court of Canada dealing with

section 16 of the Sales of Goods Act of Saskatchewan, which is similarto

section 15 of our Act, is Hayes, Trustee of Preload v. The City of Regina (1960), (SCC), 20 D.L.R. (2d) 586. Mr.Justice Martland in delivering the unanimous judgment of the Court approved of the following propositions under the Act at page 604: (

a) the buyer’s reli

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