Executive Summary: Key Legal and Evidentiary Issues

• Dispute centered on whether a fungicide (Dithane) was defective and caused a significant potato crop loss.

• Plaintiffs alleged breach of an implied condition of fitness for purpose under s. 20(a) of the Sale of Goods Act (New Brunswick).

• Trial judge found no evidence that plaintiffs relied on the seller's skill or judgment when purchasing the product.

• Appellants failed to establish that the fungicide was defective or that it contributed to the crop damage.

• Appeal challenged both the trial judge’s factual findings and legal interpretation of reliance and causation.

• Court of Appeal upheld the dismissal, citing lack of reversible error in fact or law and awarded $3,500 in costs.

Facts and outcome of the case

In this case, the plaintiffs were New Brunswick potato farmers who experienced substantial crop loss due to late blight in the 2011 growing season. They had purchased 300 sealed 20-kg bags of “Dithane DG Rainshield,” a fungicide produced by Dow AgroSciences and manufactured by Bayer S.A.S., from Grand Falls Agromart Ltd. The plaintiffs alleged the product was defective, lacking the promised 75% Mancozeb active ingredient, and sued both Dow and Grand Falls for damages.

They claimed Dow was negligent in producing and distributing the product, while asserting that Grand Falls had breached an implied condition of fitness for purpose under the Sale of Goods Act. The claim against Dow was eventually dismissed at trial, and not appealed, after testing showed the product exceeded the guaranteed Mancozeb level upon leaving Bayer’s facility in France.

The trial judge dismissed the case against Grand Falls as well. He found that the plaintiffs did not rely on Grand Falls' skill or judgment when purchasing the fungicide—a critical requirement for triggering the implied condition under s. 20(a). The evidence showed that the plaintiffs had decades of experience using Dithane, had purchased it from multiple vendors over the years, and made buying decisions based on price and familiarity. Additionally, the judge ruled that the plaintiffs failed to prove the product was defective or that it caused the crop loss. The record indicated that their failure to adjust their spraying program to account for extreme rainfall in 2011, not the fungicide’s performance, likely contributed to the blight.

The plaintiffs appealed, arguing the judge erred in assessing reliance and in failing to infer defectiveness from the crop loss. The Court of Appeal rejected these arguments, finding no reversible error in the judge’s factual findings or legal conclusions. It emphasized that any inference of product defect must be supported by exclusion of alternative causes—something the plaintiffs had not achieved.

The appeal was dismissed, and costs of $3,500 were awarded to Grand Falls Agromart Ltd.