Canada Agricultural Review Tribunal Decisions

Citation:              Maple Lodge Farms Inc. v. Canada (CFIA), 2016 CART 8
Date: 20160314
Docket: CART/CRAC‑1728
BETWEEN:
Maple Lodge Farms Inc., Applicant
‑ and ‑
Canadian Food Inspection Agency, Respondent
BEFORE:	Member Bruce La Rochelle
WITH:	Ronald E. Folkes, counsel for the Applicant
	Jacqueline Wilson and Laura Tausky, counsels for the Agency
In the matter of an application made by the applicant, pursuant to paragraph 9(2)(c)  of the Agriculture and Agri‑Food Administrative Monetary Penalties Act, for a review of the facts of a violation of paragraph 143(1)(d) of the Health of Animals Regulations, alleged by the respondent.
DECISION
Following an oral hearing and a review of all oral and written submissions of the parties, the Canada Agricultural Review Tribunal, by order determines, on the balance of probabilities, that the Applicant committed the violation, as set out in Notice of Violation 1213ON0387 dated June 19, 2013, despite exercising reasonable care in the circumstances, and is therefore liable to pay the respondent, the Canadian Food Inspection Agency, a monetary penalty of $6,000, within thirty (30) days after the day on which this decision is served.
The hearing was held in Brampton, ON, on October 15, 16 and 17, 2014; January 6, 7, 8 and 9, 2015; May 25, 26, 27, 28 and 29, 2015; June 24, 2015 (half day); September 9, 2015 (half day); and followed by written submissions of both parties, dated November 27. 2015.

 

REASONS

 

Preliminary:  Extent of Hearing Time and Criminal Conviction

 

[1]              As a preliminary matter, the Tribunal wishes to note that the extent of the hearing time was due in part to the fact that the hearings concerned two notices of violation rather than one, involving separate dossiers. The first alleged violation is associated with the current decision and dossier (CART/CRAC‑1728), while another violation and dossier (CART/CRAC‑1729) concerns the same parties, but different incidents, time frames and weather conditions. The consolidation of the hearings in relation to both dossiers was at the request of the Tribunal, to which counsel for both parties consented. The evidence common to both dossiers, primarily relating to expert testimony as to the condition of the chickens, will be identified during the course of the two decisions. The extent of the hearing time is also associated with the high quality and detailed advocacy on the part of counsel for the Applicant Maple Lodge Farms and counsel for the Respondent Agency.

 

[2]              Mr. Folkes, counsel for Maple Lodge Farms, acknowledged that a vigorous and thorough defence was viewed as necessary in relation to both matters, given that Maple Lodge Farms was subject to a probation order stemming from its criminal conviction in R. v. Maple Lodge Farms, 2013 ONCJ 535, hereinafter referred to as “Maple Lodge Farms (2013)”. The sentence and related probation order is found in R. v. Maple Lodge Farms, 2014 ONCJ 212, hereinafter referred to as “Maple Lodge Farms (2014)”. The criminal convictions were followed by a proposed agreement as to sentence between the Crown and Maple Lodge Farms, which was accepted by the presiding judge, Madame Justice Kastner. Maple Lodge Farms was originally charged with 60 counts in relation to offences pursuant to the Health of Animals Regulations (C.R.C., c. 296). Maple Lodge Farms was convicted on two counts considered to be representative, both of which related to offences contrary to paragraph 143(1)(d) of the Health of Animals Regulations (Maple Lodge Farms [2013], paragraph 7), which provides as follows:

 

143. (1) No person shall transport or cause to be transported any animal in a railway car, motor vehicle, aircraft, vessel, crate or container if injury or undue suffering is likely to be caused to the animal by reason of

 

(d) undue exposure to the weather…

 

[3]              The section of the Health of Animals Regulations under which Maple Lodge Farms was convicted is also the same section under which Maple Lodge Farms has been alleged to have committed a violation, subject to a monetary penalty, in the present case. The events in the present case preceded the criminal conviction and sentence of Maple Lodge Farms. There was no explanation by the Agency as to why these circumstances did not form part of the numerous counts to which Maple Lodge Farms was subject in the criminal proceedings. It remains the Agency’s prerogative as to procedural choices, but the fact remains that Maple Lodge Farms has already been subject to a lengthy criminal trial and significant sentence in relation to the same or similar practices as in the present case, and in relation to the same relative time period. The principal difference is that Maple Lodge Farms was convicted in the criminal proceedings, with the Crown proving its case beyond reasonable doubt. In the present case, involving similar facts and comparable time periods, the Agency is subject to the lower burden of proof of balance of probabilities, while Maple Lodge Farms is highly restricted in the defences that it can raise. In particular, since the current proceedings involve violations of absolute liability, as opposed to strict liability, Maple Lodge Farms cannot raise the defence that it took all reasonable care to avoid the events under consideration. Furthermore any defence that Maple Lodge Farms raises must be established on the balance of probabilities, rather than succeeding in its defence based on raising a doubt, as is the case in criminal proceedings. Thus, Maple Lodge Farms is in a more difficult position in relation to its defence in the present case, while the Agency is in an easier position, relative to establishing the violation, compared to criminal proceedings. Any issue of the redundancy of the current proceedings, involving similar facts and comparable time periods as the criminal proceedings, is a matter of policy decision outside of the purview of the Tribunal.

 

 

Preliminary: Joinder of Violation Hearings

 

[4]              Despite the fact that the two alleged violations involved two separate incidents involving different times and weather conditions, hearings with respect to both alleged violations were held concurrently. The decision to join the hearings was that of the Tribunal, without apparent objection of counsel for the Agency or Maple Lodge Farms. The Tribunal notes that similar joinder occurred in relation to the criminal trial of Maple Lodge Farms.

 

[5]              Based on the volume of evidence before the Tribunal and the fact that some, but not all of such evidence applied to both incidents, it may appear at first instance that joinder of hearings was particularly efficient and fair. Upon reflection on the volume of evidence and the complexities of the two cases, the Tribunal is of the opinion that joinder of hearings involving completely separate incidents is to be avoided, and that any counsel objections in that regard should be respected. It may be that evidence as to the general physical states of animals and effects of weather can be incorporated by reference to previously sworn testimony as to the then state of the research, should efficiency considerations be of concern. To conduct both hearings concurrently, in relation to different facts, can result in a disparate and at times confusing focus.

 

[6]              The Tribunal notes that the criminal proceedings of Maple Lodge Farms involved the contemporaneous evaluation of two separate sets of facts, at two different times, and involving different chicken types, which nonetheless resulted in one judgement applicable to both counts. The Tribunal has adopted a different approach herein, and will be rendering two separate decisions in relation to the two separate incidents. This is to a degree consistent with the Tribunal’s procedural approach in the “Little Rock Farm Trucking” trio of cases (2014 CART 29, 30 and 31), where concurrent hearings were held in relation to three separate fact situations, and three separate decisions were concurrently issued, albeit with substantial repetitions of text. In the present case, the two decisions will be issued both separately and not concurrently. By way of comparison, in L. Bilodeau et Fils Ltée and Patrice Guillemette v. Canada (Canadian Food Inspection Agency), 2015 CART 22, two hearings were held concurrently involving the same set of facts, resulting in one decision being issued in relation to the two matters.

 

 

Preliminary: Quality of The Record and Submissions

 

[7]              At the initiative of Mr. Folkes, on behalf of Maple Lodge Farms, the recorded testimony was transcribed and available in written transcript form, which was effectively used by Mr. Folkes at various earlier points in the hearings. As a result, Ms. Wilson, on behalf of the Agency and Mr. Folkes agreed that the entire proceedings would be available in written transcript form, with the cost of transcription shared between Maple Lodge Farms and the Agency. The parties then graciously provided a complete set of transcripts to the Tribunal, at no cost.

 

[8]              The requirement by the Tribunal that the parties submit concluding arguments in writing was significantly complemented by the transcript initiative of Mr. Folkes and the adoption of same by the Agency. Both parties made submissions involving extensive referencing to transcript pages, in a manner that could not have been achieved as effectively had the parties been relying on oral recordings only. It is to be hoped that other parties involved in comparably complex and lengthy matters before the Tribunal will consider following the practices of the parties herein.

 

[9]              The Tribunal also wishes to express its appreciation for the high quality of oral and written advocacy on behalf of both parties. Such high quality is exemplified by the concluding written submissions.

 

 

Procedural History

 

[10]         By Notice of Violation 1213ON0387, the Applicant, Maple Lodge Farms Inc. (Maple Lodge Farms) is alleged to have committed the following violation (verbatim, from Notice of Violation) “Transport or cause to be transported an animal with undue exposure to weather; to wit‑‑7000 fowl to Maple Lodge Farms on trailer DEL‑74, including 863 birds found dead on arrival”. The violation is specified to be a contravention of paragraph 143(1)(d) of the Health of Animals Regulations (C.R.C., c. 296), found under the heading “Protection of animals from injury or sickness”, and which provides as follows:

 

143. (1) No person shall transport or cause to be transported any animal in a railway car, motor vehicle, aircraft, vessel, crate or container if injury or undue suffering is likely to be caused to the animal by reason of

 

(d) undue exposure to the weather…

 

As previously noted, this is the same section pursuant to which most of the criminal convictions of Maple Lodge Farms, previously discussed, were recorded.

 

[11]         The violation is legislatively classified as “serious”, pursuant to Schedule 1, Part 1, Division 2 of the Agriculture and Agri‑Food Administrative Monetary Penalty Regulations (SOR 2000‑187). Pursuant to subsection 5(3) of these regulations, Maple Lodge Farms became subject to a penalty of $6,000, which was increased by $1,800 to $7,800, based on gravity value considerations, to be discussed. Briefly, the penalty amount was increased by 30%, as is permitted under Schedule 2 of the Agriculture and Agri‑Food Administrative Monetary Penalty Regulations. Such increase is based on the violation history of Maple Lodge Farms, plus the Agency’s view that it could establish, on the balance of probabilities, negligence of Maple Lodge Farms and serious harm to the animals, as particularized in Schedule 3 of these regulations.

 

[12]         The Notice of Violation was served on Maple Lodge Farms by electronic means on June 19, 2013, as referenced to in a Certificate of Service by A. P. Roberts, Inspector for the Agency. Maple Lodge Farms responded by letter from Carol Gardin, Director of Corporate Affairs, dated July 5, 2013, and received by the Tribunal on July 11, 2013. The letter referenced five Notices of Violation, including the current matter, and a review by way of oral hearing was requested in each case. No reasons were provided in the Request for Review, which was not in the Tribunal’s standard form for such requests. Rather, the Tribunal was advised in writing by Ms. Gardin that further communication should be directed to Mr. Ron E. Folkes (Mr. Folkes), solicitor for Maple Lodge Farms.

 

[13]         By letter to Mr. Folkes dated July 12, 2013, the Tribunal requested reasons in support of the Request for Review by Maple Lodge Farms, further to Rule 34 of the Rules of the Review Tribunal (Agriculture and Agri-Food) (SOR/99‑451) and further to Practice Note 11, Determining Admissibility of Requests for Review and Practices Regarding the Exchange of Documents Amongst Applicants, Respondents and the Tribunal, issued by the Tribunal in May of 2013. Pursuant to subsection 9(2)(c) of the Agriculture and Agri‑Food Administrative Monetary Penalties Act (S.C. 1995, c. 40) Maple Lodge Farms is entitled to request a review by the Tribunal “in the prescribed time and manner”:

 

9. (2) Instead of paying the penalty set out in a notice of violation…the person named in the notice may, in the prescribed time and manner,

 

(c) request a review by the Tribunal of the facts of the violation.

 

The “prescribed time and manner” are referenced in sections 11 and 14 of the Agriculture and Agri‑Food Administrative Monetary Penalties Regulations. Maple Lodge Farms must submit a request for review within 30 days following service of the Notice of Violation, and may do so by several means: “by hand or by sending it by registered mail, courier, fax or other electronic means”. Submission by fax or other electronic means (such as a scanned attachment in an email message) must be followed by a submission of the same document by registered mail:

 

11. (2) Where a person named in a notice of violation that contains a penalty requests, pursuant to subsection 9(2) of the Act, a review of the facts of the violation by the Minister or the Tribunal…the request shall be made in writing within 30 days after the day on which the notice is served.

 

…

 

14. (1) A person may make a request….by delivering it by hand or by sending it by registered mail, courier, fax or other electronic means to a person and place authorized by the Minister.

…

 

(3) Where a request is sent by fax or by other electronic means, another copy of the request shall be sent by registered mail.

 

[14]         There is no prescribed form for a Request for Review under the Agriculture and Agri‑Food Administrative Monetary Penalties Act or Regulations. While the Tribunal has developed its own Request for Review form, found on its website, the Rules of the Tribunal (Agriculture and Agri‑Food) do not prescribe any particular form. However, under the Rules, an additional review requirement is imposed, not found in the related legislation or regulation. Under Rule 34, an applicant must provide reasons in the Request for Review:

 

34.  An applicant who requests a review by the Tribunal must indicate the reasons for the request…

 

While it may at first instance appear that the Tribunal is, of its own initiative, adding a requirement of a lower legislative order to the requirements of the Agriculture and Agri‑Food Administrative Monetary Penalties Act and related Regulations, where no reasons are required to be submitted in a Request for Review, the Tribunal Rules take the form of regulations made under the Tribunal’s constituent statute, the Canada Agricultural Products Act (R.S.C., 1985, c. 20 (4^th Supp.)). Therefore, the provisions of the Tribunal Rules and the Agriculture and Agri‑Food Administrative Monetary Penalties Regulations should, wherever possible, be read as complementary regulations and in any event be subject to a presumption of legislative coherence.

 

[15]         By letter of July 24, 2013, Mr. Folkes, counsel for Maple Lodge Farms, submitted a Request for Review in the form developed and published by the Tribunal. The reasons provided in support of the Request for Review are summarized as follows:

 

(a)              Maple Lodge Farms had no control over the driver or the loading and hauling procedures from the point of origin in Chazny, New York, to the facilities of Maple Lodge Farms in Brampton, Ontario. Transport was by a transporter independent of Maple Lodge Farms. Maple Lodge Farms had no control over precautions taken to protect the load from undue exposure to the weather, until the load was delivered to Maple Lodge Farms in Brampton.

 

(b)              Given that other loads from the same farm, transported at the same time, had significantly lower death rates discovered upon arrival at Maple Lodge Farms, any issues with respect to the load in question must be attributed to driver error, over which Maple Lodge Farms had no control.

 

(c)               Maple Lodge was not informed of any problems with the load as of the time of its arrival in Brampton.

 

(d)              There was no undue exposure to weather after Maple Lodge Farms took control of the load in Brampton. (emphasis added by Tribunal)

 

[16]         Without providing reasons to the parties, the Tribunal determined that the Request for Review of Maple Lodge Farms was admissible, and the parties were so advised by letter dated July 26, 2013. By this letter, the Agency was requested to submit its report on the matter, which it did by letter dated August 7, 2013, and received by the Tribunal on August 11, 2013. This was followed by a document brief submitted by Maple Lodge Farms under letter dated November 15, 2013, which also included a copy of a report by Dr. Rachel Ouckama, dated November 15, 2013. This was followed by additional submissions by the Agency.

 

[17]         As particularized at the commencement of this decision, the hearings in this matter and another matter involving Maple Lodge Farms, but involving unrelated facts and a different time period, commenced in October of 2014, and continued at various intervals until September of 2015. In January of 2015, anticipating an earlier conclusion as to testimony and evidence, the Tribunal issued an Order, with reasons, requiring that the parties make final submissions by written submissions only. A copy of the Order is appended to this decision. These submissions were concluded in December of 2015.

 

 

Facts Not in Dispute

 

[18]         The facts of the case which are not in dispute are now discussed. The case concerns the transport, on January 2, 2013, of a load of so-termed “spent hens” from a chicken farmer in Chazny, New York to the slaughtering and processing facilities of Maple Lodge Farms in Brampton, Ontario. The facts may be summarized as follows, based on the reports and submissions of the parties and witness testimony:

 

(a)              The chicken farmer, Pete & Jerry’s Organic Eggs, raises what are termed “free range” chickens, from which it collects and markets eggs. Once these chickens have reached the end of their laying life, they are thereafter categorized as “spent hens”, and need to be removed from the farmer’s property in order that they may be replaced by other egg-laying hens.

 

(b)              At the time that the hens reach the “spent hen” status, they are of no further economic use of the farmer, but are of economic value to chicken processors, who acquire the hens for their meat. Most processed chicken meat comes from spent hens.

 

(c)               The spent hens cost little, if anything, to the processor, beyond the cost of facilitating the catching, loading and transport of same.

 

(d)              Since the spent hens in question were not caged, it took approximately four hours to catch the chickens and collect them in loading compartments. Loading commenced at around 7:30 a.m., on January 2, and was completed at approximately noon.

 

(e)              For reasons not entirely clear, but speculated by both the Agency and Maple Lodge Farms to be due to mechanical problems with closing the trailer in which the spent hens had been loaded and were awaiting transport, commencement of the transport was delayed by approximately four hours. During this time, the spent hens remained in the unheated trailer.

 

(f)                During the four hours of loading the hens and the approximately four additional hours while the hens remained stationary, in the unheated trailer, the temperature was between -7 and -14 degrees Celsius, in addition to wind being present.

 

(g)              Once the transport of the spent hens commenced, it took approximately twelve further hours for the hens to arrive at Maple Lodge Farms, arriving at around midnight on January 2. The transport was conducted entirely during sub‑zero temperatures, where most periods of transport were in temperatures colder than at the time of the delayed loading.

 

(h)              At the time of arrival at Maple Lodge Farms, the transportation driver reported in writing that there were approximately 100 dead hens in the load. In response to this report, personnel from Maple Lodge Farms examined the load and reported noticing 12 dead birds, rather than 100.

 

(i)                Following arrival at Maple Lodge Farms, the hens spent nearly an additional twelve hours in an unheated holding area, prior to being moved into the facility and slaughtered shortly before noon on January 3.

 

(j)                Upon unloading the birds, it was discovered that 863 birds were dead, representing in excess of 12% of the birds in the load.

 

 

Evidence and Assessment

 

[19]         The parties presented voluminous written evidence and extensive testimony. Within the economic and time constraints to which this part‑time Member is subject, the parties may be assured that the evidence has been considered to the most thorough extent possible. It is to be noted that the decision of Madame Justice Kastner in the criminal proceedings involved a detailed review of the evidence in a judgement of 100 pages, prior to her separate decision as to sentence, with matters ultimately being resolved approximately fifteen months following final submissions. Admittedly, Madame Justice Kastner was addressing two counts in the same judgement, plus ancillary count implications and a resulting detailed sentence and associated probation order. While the issues in the present case are no less important to the parties, and involve evidence and testimony viewed to be comparable in extent and complexity to that before Madame Justice Kastner, this part‑time Member is not in a position to explicitly review matters to a comparable extent. It is nonetheless considered that there is fairness in the decision herein, despite its comparative brevity.

 

[20]         The Tribunal, having considered all of the testimony and related evidence, chooses to concentrate explicitly on the testimony of Dr. Martin Appelt, on behalf of the Agency, and Dr. Rachel Ouckama, on behalf of Maple Lodge Farms., with the testimony of other witnesses being duly considered otherwise. Both Dr. Appelt and Dr. Ouckama are experienced veterinarians who also continue to research issues relating to the health of chickens. Both agreed that spent hens are frequently with missing or few feathers, due to age and the fact that they will peck each other in closed quarters, such as an enclosed compartment on a transport, which is typically filled to capacity. Both agreed that such spent hens would typically be calcium deficient, being at the end of their egg-laying lives. Where the two veterinarians disagreed was in relation to the comparative health of such older chickens. In Dr. Ouckama’s view, such spent hens might well be healthier, due to age and size than might at first be conjectured. In Dr. Appelt’s view, quite apart from age and size issues, the exposure of the spent hens to sub‑zero temperatures, for such an extended period prior to transport, would have created a shock to the system from which recovery was unlikely, under the unheated circumstances of the transport under consideration. Given their generally compromised feathering, the situation would be similar to a naked human being exposed for an extended period to sub‑zero temperatures. If a group of such humans were to huddle for warmth, they might warm to an extent, but the temperatures would never recover to their pre-existing state until they were in heated facilities.

 

[21]         A similar state exists with respect to spent hens, as described by Dr. Appelt. The practice within the industry is to adjust the tarpaulins of the trailer, periodically during transport, to address heat loss and to minimize condensation effects. However, the underlying assumption within the industry is that the birds will huddle together during transport and collectively generate enough heat to counter any significant effects of cold. Evidence to that effect was presented during the hearing. This enables parties in the industry to argue that transporting spent hens in unheated trailers, in sub‑zero temperatures, where transport travel would logically aggravate the effects of cold, does not result in circumstances where injury or undue suffering is likely, or where exposure to the weather is undue.

 

[22]         Dr. Appelt pointed out that research specific to spent hens, and in particular spent hens during transport, is not extensively developed, presumably due to their marginal market value at that point. Funded research on broiler chickens, in contrast, is more extensive. At the same time, Dr. Ouckama acknowledged that she has the largest samples of spent hens with respect to which research could be undertaken. The lack of extensive and definitive research on the health of spent hens is a regrettable circumstance in the present case. It is to be hoped that greater research funding in this area will be dedicated by various sources, including industry participants.

 

[23]         In the Tribunal’s view, the evidence of Dr. Appelt is particularly convincing. Under the circumstances of the present case, the spent hens would have been shocked from the cold at the outset of the transport, in a manner from which they would never have fully recovered during the course of transport. Despite their asserted hardiness, in the opinion of Dr. Ouckama—an assertion which was not, in any event, generalized or referenced to this particular transport—the Tribunal is of the view that these spent hens, under these particular circumstances, should never have been subject to further unheated transport, once shocked by the cold. Such circumstances amount to undue suffering being likely during transport, resulting from undue exposure to the weather. It is to be noted that Maple Lodge Farms agrees that the four hour transportation delay, in sub‑zero weather may be viewed as the primary cause of the death of such a significant number of birds in this particular load. Maple Lodge Farms takes the position that it is not responsible for such circumstances and that, accordingly, it has committed no violation. The Tribunal disagrees, as will be discussed.

 

 

Applicable Law and Analysis

 

Control and the Relevance of Control

 

[24]         In any contract for the purchase and sale of spent hens, there will be three parties: the farmer, who is interested in disposing of the hens, at the end of their laying life; the transporter of the spent hens and the ultimate purchaser of the spent hens—in this case, Maple Lodge Farms. Control of the process is premised on the legal rights of the parties under the agreement of purchase and sale of the spent hens. Details of the contractual relationship between or among the parties therefore become very important to any determination of control: Ferme Alain Dufresne Inc. v. Canada (Canadian Food Inspection Agency), 2015 CART 6, at paragraph 26.

 

[25]         Mr. David Robert, Director of Live Logistics and Hen Procurement at Maple Lodge Farms, presented evidence on behalf of Maple Lodge Farms in relation to control of the process of acquiring spent hens from the United States. The evidence of Mr. Robert, which was uncontroverted, was that in relation to spent hens being acquired from the United States, Maple Lodge Farms does not control the process from the outset. Rather, Maple Lodge Farms controls the process from the time that the spent hens arrive at Maple Lodge Farms.

 

[26]         Mr. Robert testified that circumstances of control by Maple Lodge Farms differ between Canada and the United States, in relation to the acquisition of spent hens. In addition, there is a higher degree of competition with Maple Lodge Farms with respect to the acquisition of spent hens in the United States. In response to a question from the Tribunal, Mr. Robert agreed that the process of acquiring spent hens is similar to that of “got junk” operations. Without any intent to denigrate the lives of the animals, the fact remains that the egg farmer is interested in getting spent hens off his or her property as quickly as possible, in order to replace such spent hens with fresh laying hens. The “got junk” analogy refers to the fact that the spent hens, with no further market value to the farmer but with a distinct market value to Maple Lodge Farms, will generally be acquired by Maple Lodge Farms at no or negligible cost paid to the farmer. In return for obtaining the spent hens at no or negligible cost, Maple Lodge Farms bears the cost of removal and transport.

 

[27]         The animals, having laid the largest number of eggs that they can lay for the farmer, are of no further use to him or her. The farmer therefore contacts Maple Lodge Farms and others and advises that a number of hens are ready to be removed from the farmer’s property. According to Mr. Robert, it is the farmer who will specify the time frame during which the spent hens must be removed from the property, such as during a particular week. Maple Lodge Farms will then engage a transporter to arrange for the catching and the transport of the spent hens. The transporter is required to use Maple Lodge Farm trailers. According to Mr. Robert, since there is competition for spent hens in the United States, if Maple Lodge Farms cannot remove the animals within a particular time frame specified by the farmer, the farmer will simply call on a Maple Lodge Farms competitor to effect the removal.

 

[28]         Since the trailers used are those of Maple Lodge Farms and it is Maple Lodge Farms that has undertaken to transport the spent hens, which have a distinct value to Maple Lodge Farms, it would seem logical that Maple Lodge Farms would want to assert control over the transport. As noted by Madam Justice Kastner in the Maple Lodge Farms criminal proceedings, (Maple Lodge Farms (2013), at paragraph 77) the industry operates on a “just in time” basis, which means that Maple Lodge Farms would logically be planning for the arrival of the spent hens on a particular day in order to plan the slaughter and processing of same.

 

[29]         The problem for the Tribunal in the present case is that what may seem logical has not been established by the Agency through evidence. Mr. Robert’s testimony remains largely uncontroverted. Maple Lodge Farms did not call the transporter or the farmer as a witness and the Agency did not seek to compel the attendance or the submission of evidence by other means of either the transporter or the farmer. This is so notwithstanding that the parties knew in advance what witnesses each would call, which then gave either party an opportunity to compel witness attendance through the summons process available upon application to the Tribunal. Convenience and cost issues could have been thereafter addressed through seeking Tribunal permission to submit such evidence by alternate means, such as via video, audio or affidavit, as authorized by the Tribunal Rules.

 

[30]         Mr. Robert testified that, in lieu of a formal written contract, the arrangements for the removal of spent hens are through telephone and email arrangements. In response to a request from the Tribunal for any evidence from Maple Lodge Farms to demonstrate such forms of communication, Mr. Robert submitted a series of email communications in relation to the specific load. It is unclear what, if any, contractual implications may be drawn from such communications. Neither party made representations in that regard.

 

[31]         In cases such as this, with an evidentiary record such as this, the caution to the Tribunal by the Federal Court of Appeal in Doyon v. Canada (Attorney General) 2009 FCA 152 against conclusions based on conjecture becomes particularly important. As Mr. Justice Létourneau stated (Mr. Justice Blais and Madame Justice Trudel concurring), at paragraph 28:

 

[28]  Therefore, the decision-maker must be circumspect in managing and analysing the evidence and in analysing the essential elements of the violation and the causal link. This circumspection must be reflected in the decision-maker’s reasons for decision, which must rely on evidence based on facts and not mere conjecture, let alone speculation, hunches, impressions or hearsay.

 

[32]         The Tribunal is simply not at liberty to infer that control must exist when there is uncontroverted evidence to the contrary, which is also supplemented by explanations as to how circumstances differ between Canada and the United States in the acquisition of spent hens by Maple Lodge Farms. Thus, in this case, Maple Lodge Farm asserts that it was the responsibility of the catchers and the transporter to determine whether the acquisition and transport of these spent hens should have been interrupted. How such parties would have been paid in such circumstances—or, for that matter, how they were to be paid in any event—was not presented in evidence by Maple Lodge Farms, or questioned by the Agency. Payment arrangements become relevant to motivations to halt or delay the catching and transport, as well as issues of conflict in control. No such evidence was before the Tribunal.

 

[33]         Maple Lodge Farms asserts that ownership of the birds is irrelevant to the determination of whether a violation has been committed. The Tribunal disagrees, since ownership is a form of ultimate control. If the transporter is a bailee of spent hens owned by Maple Lodge Farms, the bailor (Maple Lodge Farms) nonetheless controls the terms and nature of the bailment, unless it chooses to demonstrate an indifference to the treatment of its own property. Regrettably, the contractual issues in this case necessitate further development.

 

[34]         Based on the foregoing and the jurisprudential cautions associated with matters of evidence in cases such as this, the Tribunal is constrained to hold that, on the evidence presented, control of the transport by Maple Lodge Farms has not been established by the Agency. Rather, the control by Maple Lodge Farms of the load commences from the time that the trailer of spent hens is delivered to Maple Lodge Farms at its Brampton facility.

 

 

Causation and Control

 

[35]         In her concluding written submissions, Ms. Tausky, on behalf of the Agency, makes an alternate argument (at paragraphs 128 to 134) to that of focusing on control as an essential element of the violation. She references the wording of section 143(1)(d) that “no person shall transport or cause to be transported…” (Tribunal emphasis). She then argues that, in accordance with the rule against tautology in statutory interpretation, “causing” the transport must have a distinct meaning from that of actually transporting the animals, and that a violation includes parties who “caused” the transport. As discussed by Ms. Tausky, at paragraph 129:

 

In the Oxford English Dictionary, the verb “cause” means to “make something happen”. Properly construed, therefore, the phrase “cause to be transported” does not require that the alleged violator be in direct control of the transport. Liability attaches to any person who makes a transport happen in circumstances where injury or undue suffering is likely to be caused by reason of undue exposure to the weather. Such an interpretation is consistent with the legislative scheme, which does not distinguish among different stages of transport or categories of transporter. Responsibility for the transport in its entirely rests with any person who causes the transport of an animal.

 

[36]         In Ms. Tausky’s view, Maple Lodge Farms, having what is described as a “standing arrangement” with the egg producer for the removal of the spent hens, “causes” the transport every time it makes arrangements to pick up and transport the hens. As described in paragraph 130 of Ms. Tausky’s concluding submissions:

 

…by maintaining this standing agreement, supplying a trailer for the transport of the hens, and by paying for the catchers and the transportation itself, Maple Lodge caused the birds to be transported, in the sense that Maple Lodge made the transport happen.

 

Maple Lodge Farms did not avail itself of an opportunity to respond to these arguments.

 

[37]         The Tribunal finds the arguments of Ms. Tausky to be compelling. However, as will be discussed, the Tribunal has determined, for other reasons, that control is not necessary for an absolute liability violation to occur here, and therefore need not address Ms. Tausky’s “cause the transport” arguments explicitly.

 

 

The Meaning of “Undue Suffering”

 

[38]         In Guy D’Anjou Inc. v. Canada (Canadian Food Inspection Agency) 2015 CART 2, the Tribunal discussed the nature of undue suffering and the Tribunal’s role in assessing the existence or likely existence of same, citing the Tribunal’s earlier decisions in E. Grof Livestock v. Canada (Canadian Food Inspection Agency) 2014 CART 11 and Jérôme Fournier v. Canada (CFIA), RTA# 60202 (2005), plus the related jurisprudence from the Federal Court of Appeal. The Tribunal discussed the matters as follows:

 

[22]  Citing the Tribunal’s decision (by former Tribunal Member Mr. Justice Annis, currently a judge of the Federal Court) in Jérôme Fournier v. Canada (CFIA), RTA# 60202 (2005), at page 5, Mr. Imbeau presented the following arguments on this issue (Agency’s additional submissions, page 2) [translation]:

 

The Tribunal has already noted that the matter of clinical observations of the animal’s infirmities and its related manifestation of distress as described by professional veterinarians and other undue suffering is to be determined based primarily upon common sense experiences of what would constitute suffering in an animal in relation to persons experienced in the field of animal agri-food production.

 

In addition, Member Annis (as he was then known) expressed the following sentiments, at page 5 of his decision:

 

In deciding this matter, the Tribunal does not agree with the Applicant’s submission that the determination as to whether an animal may be transported without undue suffering should be based upon usage or custom in the industry. …Besides, any usage in the industry that would condone a situation of cruelty to animals would reflect poorly on the industry and not be in its best interest.

 

[23]  The Tribunal wishes to emphasize that evidence of suffering in an animal differs from a conclusion about undue suffering. The Tribunal must weigh the evidence, particularly evidence that comes, as noted by former Member Annis, from “clinical observations of the animal’s infirmities and its related manifestation of distress as described by professional veterinarians and other persons experienced in the field of animal agri‑food production”.

 

[24]  “Undue suffering” is a legal term, in interpretive evolution. As the Tribunal discussed in E. Grof Livestock v. Canada (Canadian Food Inspection Agency), 2014 CART 11, at paragraphs 82 and 86:

 

[82]  More precisely, from a reading of paragraph 26 of Porcherie des Cèdres [2005 FCA 59],…there are actually four categorizations of “undue”, rather than three, with some issue as to the translation into English of the decision originally rendered in French:

 

[26]  …“undeserved”, “unwarranted”, “unjustified”, “unmerited” or “inapproprié”, “inopportun”, “injustifié”, “déraisonnable”.

 

While all such categorizations would appear to involve difficulties in application, being associated with varying degrees of subjective review, the Court in Doyon appears to have adopted “inopportun” (inappropriate), “injustifié” (unjustified) and “déraisonnable” (unreasonable), to the exclusion of “inapproprié” (translated as “undeserved”, but also commonly understood to mean “incongruous” or “wrong”). What will therefore be inappropriate, unjustified or unreasonable suffering, and therefore undue suffering, will depend on the facts of the case.

 

…

 

[86]  Based on the foregoing, it is the responsibility of the Tribunal to determine, on the basis of reasonableness and as referenced to a balance of probabilities burden of proof (a) whether the suffering is “inappropriate”, “unjustified” or “unreasonable”, according to the statutory interpretation of “undue suffering” in Doyon and (b) whether such inappropriate, unjustified or unreasonable suffering may be associated with the transport of the animal.

 

[25]  In the present case, the Tribunal considers that it is not necessary to determine which definition of “undue suffering” applies. The transportation of an emaciated cow, in the present case, caused “inappropriate”, “unjustified” or “unreasonable” suffering, without the need to precisely define those words. Even though defining those words remains the Tribunal’s responsibility, as circumstances require, the Tribunal welcomes more direction from the Federal Court of Appeal, with respect to the definitions, and in general.

 

[39]         Repeating the sentiment expressed in Guy D’Anjou Inc., the Tribunal welcomes further judicial guidance in this area, ideally without any significant degree of judicial deference: Ferme Alain Dufresne, previously cited, at paragraphs 41 to 46.

 

[40]         The Tribunal is also obliged to assess whether the Agency has established, on the balance of probabilities, that either injury or undue suffering to the spent hens is likely to be caused by undue exposure to the weather, during loading or transport and whether, on the balance of probabilities, such conditions of injury or undue suffering are present during that portion of the transport for which Maple Lodge Farms is responsible. One implication of the use of both “injury” and “undue suffering” in the legislative provision is that the spent hens could be subject to undue suffering, due to undue exposure to the cold, quite apart from any physical injuries. In the present case, among the dead spent hens examined by the Agency, physical injuries were also found.

 

[41]         Notwithstanding the juridical imprecisions of the terms, which await further judicial refinement, the Tribunal adopts the definition of “undue” as being “inappropriate”, “unjustified”. “unreasonable” or “unmerited” and applies such definition of “undue” to both “suffering” and “exposure to the weather”. Tribunal is of the view that it cannot reasonably be argued that the spent hens, in their physical circumstances and in the circumstances of lengthy and continuous exposure to sub‑zero temperatures, could be otherwise than subject to undue suffering, due to undue exposure to the weather. The Tribunal further concludes that such undue suffering occurred in fact, with the “likelihood” of such undue suffering being a virtual certainty, under the circumstances.

 

 

State of the Spent Hens at Maple Lodge Brampton Facility:  Point in Time of Violation

 

[42]         When trailers arrive at Maple Lodge Farms, there are procedures in place to identify and address what are termed “stressed loads. On the evidence, this load was not identified as a stressed load, based on an examination of the dead birds in the dolly containers. This examination was a visual examination by a Maple Lodge Farms employee. Such observations were accompanied by the monitoring of temperatures in the crates to ascertain if there were any significant drops in temperature while the trailer was in the unheated holding area. The assumption is that the birds, crowded as they are in the crates, will generate enough collective warmth to counter any negative effects of external temperatures. This is also a basic assumption used to justify transporting the birds in unheated trailers, irrespective of outside temperatures. The employee in question was not called to testify by Maple Lodge Farms nor compelled by the Tribunal to testify, through application by the Agency.

 

[43]         When the dolly containers were unloaded, it was discovered that there were far more dead hens than had been indicated by the initial visual inspection. To the extent that this is an error in judgement on the part of the Maple Lodge Farms employee, despite reasonable care otherwise exercised and if otherwise established, this becomes irrelevant in an absolute liability regulatory regime. One issue is whether the state of the hens at the time of their removal from the dolly containers reflects a state that occurred or continued while the hens were in lairage at Maple Lodge Farms. A further issue is whether such a state may be determined to be, on the balance of probabilities, reflective of “undue exposure to the weather”. A third issue is whether such undue exposure to the weather, on the balance of probabilities, causes or is likely to cause undue suffering.

 

[44]         On the facts of the case, loading spent hens in sub‑zero weather, followed by a four hour delay in the commencement of movement of the transport vehicle, and where such hens remain in such sub‑zero weather, would appear, on those facts alone, to indicate that undue suffering is in fact caused, or is likely to be caused, by undue exposure to the weather. It is important to remember that it is not the fact of the death of any hen, or the number of deaths of hens, that determines whether there has been undue exposure to the weather of such a degree as to cause or be likely to cause undue suffering. One can nonetheless extrapolate that a high mortality rate from exposure to sub‑zero temperatures, established on the balance of probabilities, would indicate that the general load is subject to, or likely to be subject to, undue suffering due to undue exposure to the weather.

 

[45]         From the perspective of Maple Lodge Farms, given that the Tribunal has determined that Maple Lodge’s control of the transport commenced at the time that the trailers were placed in lairage at Maple Lodge Farms, the issue becomes one of addressing how Maple Lodge Farms could have addressed a load that was otherwise compromised, irrespective of whether Maple Lodge Farms had reason to believe that it was compromised. In other words, if Maple Lodge Farms is considered to be a party to the transport from the time that the birds are delivered until the time that they enter into the facility to be slaughtered, what, if anything, could it have done to avoid being subject to a violation?

 

[46]         It could be argued that the Agency need establish, on the balance of probabilities, that the circumstances of the birds became worse from the time they arrived in lairage, where they spent a further twelve hours, in unheated facilities, prior to being moved into the plant to be slaughtered. On the other hand, if the circumstances of the birds improved from the time of arrival at Maple Lodge Farms, does such improvement mean that the fact or the likelihood of undue suffering, due to undue exposure to the weather, has been eliminated, on the balance of probabilities?

 

[47]         The evidence of Dr. Appelt is that, similar to humans, once there is a shock to the system, as a result of cold, there may be some degree of improvement, but not full recovery. Applied to this transport, the Tribunal holds that, on the balance of probabilities, the birds were subject to undue suffering, or likely to be subject to undue suffering, as a result of undue exposure to the weather, during the stationary period following loading. On the balance of probabilities, their compromised state could not have improved to a state of no undue suffering during the course of transport or during the period of lairage at Maple Lodge Farms. The load should not have been transported, given the four hours of stationary exposure in sub‑zero weather. If slaughter was the only option to alleviate suffering, such slaughter should have occurred near the transport location, rather than transporting the animals northward, through the United States to Canada. However, Maple Lodge Farms is not, in the Tribunal’s view, a party to the transport at that point.

 

[48]         When the compromised load arrived at Maple Lodge Farms, and Maple Lodge Farms at that point became a party to the transport, the question becomes whether there was anything that Maple Lodge Farms could have done to avoid being subject to a violation at that point. Does the fact of arrival of a compromised load, irrespective of the knowledge of Maple Lodge Farms as to the state of compromise, mean that a violation has thereby been committed by Maple Lodge Farms? The answer is “yes”.

 

[49]         Maple Lodge Farms is in the unenviable position of not being able to avoid a violation, once it is in control of a compromised load, where “compromised” refers to a load associated with actual or potential injury or undue suffering, due to undue exposure to the weather. Even slaughtering the load immediately may not be adequate to avoid the commission of an absolute liability violation.

 

[50]         On the facts, immediate slaughtering was not an option in any event. In terms of processing schedules, the evidence was that the trailer arrived at a time when the slaughtering facilities were not operating, since there is one 8‑hour shift when the facilities are cleaned. While this may be a necessary sanitary practice of Maple Lodge Farms, in the larger public interest, it places Maple Lodge Farms in a position where it could not have alleviated suffering due to its own processing configuration, even if it had had actual knowledge of the nature and extent of compromise to the load. There were no contingency processing strategies in place, to address compromised loads arriving during the “sanitizing shift”.

 

[51]         The knowledge of Maple Lodge Farms of the fact of the compromised load, as of the time of loading and prior to the commencement of transport, was not established. In an absolute liability regime, a lack of such knowledge does not help Maple Lodge Farms. Maple Lodge Farms would have been in a better position, from the perspective of avoiding the commission of a violation, had it known about the compromised load at an earlier point, so that it could have declined to accept the load, and thus not been a party to the violation. For example, Maple Lodge Farms could have declined the load and suggested to the transporter that the load be transferred to the nearest slaughter location. This creates a practical obligation on the part of Maple Lodge Farms to keep itself informed of the circumstances and progress of a load, irrespective of whether it has control of the load at that point.

 

[52]         The fact that the condition of the birds may have improved subsequent to control of the transport being assumed by Maple Lodge Farms is largely irrelevant, if the birds arrive in a compromised state, as has been found by the Tribunal. In other words, in assessing whether a violation has occurred, one does not move forward from the point in time that the birds have been delivered to Maple Lodge Farms, but instead reviews the state of the birds as of the time of arrival, relative to the effects of prior circumstances of transport. In this regard, one of the reasons provided by Maple Lodge Farms in support of its Request for Review was that the birds did not suffer unduly from the time that they were within the care and control of Maple Lodge Farms. As noted, the Tribunal considers that, from the perspective of an absolute liability violation, the issue relates to the state the birds were in at the time of arrival of Maple Lodge Farms, rather than the quality of care by Maple Lodge Farms afterwards.

 

[53]         The foregoing conclusion is similar to determinations that the Tribunal has been directed by the Federal Court of Appeal to make in relation to travellers who have been held to have violated prohibitions against the importation of particular food products. The violation is associated with the fact that one arrives at the Canadian border and does not declare that the prohibited product is in one’s luggage. How the product got into one’s luggage, such as through the carelessness or negligence of a relative involved in packing the luggage or otherwise, is irrelevant. At one time, the Tribunal had thought that third‑party intervention was a reasonable defence, such as a credible explanation that a family member had packed the prohibited item, without the alleged violator’s knowledge. After all, how could one make a declaration about an item in one’s luggage, when one had no knowledge that it was there? The Federal Court of Appeal set aside the Tribunal’s decisions in two such cases: Canada (Attorney General) v. El Kouchi 2013 FCA 292 (setting aside El Kouchi v. Canada (Canada Border Services Agency), 2013 CART 12)and Canada Border Services Agency v. Castillo, 2013 FCA 271 (setting aside Castillo v. Canada (Canada Border Services Agency), 2012 CART 22). As the Federal Court of Appeal noted in Castillo at paragraph 24 (per Mr. Justice Near, concurred in by Madame Justice Sharlow and Mr. Justice Mainville):

 

24.  Mr. Castillo may have been unaware that the chicken was in his luggage, but this is of no assistance to him given a plain reading of the provisions and the clear intention of Parliament to provide for an absolute liability regime for these types of violations. As this Court has noted before, the AMP system can be harsh (Westphal-Larsen [Canada (Canadian Food Inspection Agency) v. Westphal-Larsen, 2003 FCA 383] at paragraph 12) but it is clear that Parliament intended that it be so, given the important stated objective of protecting Canada from the introduction of foreign animal diseases.

 

[54]         During the course of its deliberations on the “caused by another” defence in El Kouchi, (El Kouchi v. Canada (Canada Border Services Agency), 2013 CART 12), the Tribunal referred to an interruption in the chain of causation, relying in part on two of its decisions relating to responsibility for injury or undue suffering in relation to the transportation of animals. As the Tribunal stated, at paragraph 36 of El Kouchi:

 

[34]      Moreover, in Exceldor v. Canada (CFIA), 2013 CART 9 and Exceldor v. Canada (CFIA), 2013 CART 10, the Tribunal found that if the causal link is broken by a third party, it is impossible to establish the causal link required to support a violation under the Agriculture and Agri‑Food Administrative Monetary Penalties Act and its Regulations.

 

[55]         Exceldor Cooperative is a Quebec‑based slaughterhouse. The Tribunal has developed a number of its views on control or lack thereof in relation to transport, and the consequences associated therewith, in relation to Exceldor cases. In Exceldor Coopérative v. Canada (Canadian Food Inspection Agency) 2014 CART 8 (hereinafter “Exceldor (2014)), the Tribunal reviewed these developments at length. Similar to the case at hand, the case involved trailers of chickens (so described and presumably being other than spent hens) being left for a period in the heat, where a number perished, prior to slaughter. The position of Exceldor, as solely a slaughterhouse in relation to the transport, is similar to the position advocated by Maple Lodge Farms and accepted by the Tribunal in the present case. It is important to quote from the Exceldor (2014) decision at length, from the perspective of the implications of the reasoning therein for the present case. In Exceldor (2014), the Tribunal reasoned as follows:

 

[32]  With respect to element 4, did Exceldor transport, or cause to be transported, the animals in question? Even though the violation provided for in paragraph 143(1)(d) of the HA Regulations deals the transportation of animals, that does not mean that only animal carriers are concerned (e.g., Glenview Livestock Ltd. v. Canadian Food Inspection Agency, RTA‑60162 (2005)). In such cases, the burden on the Agency to prove that the applicant “transported” the animals is relatively easy to meet. In the present case, Exceldor is not a carrier in the usual sense, but rather the party responsible for the birds once they arrived at the slaughterhouse.

 

[33]  The Tribunal is guided by five of its own decisions – Volailles Grenville Inc. v. Canadian Food Inspection Agency, RTA‑60277 (2007) (Volailles); Sure Fresh Foods Inc. v. Canada (Canadian Food Inspection Agency), 2010 CART 16 (Sure Fresh); Exceldor Coopérative v. Canada (Canadian Food Inspection Agency), 2013 CART 4 (Exceldor 2013 CART 4); Exceldor Coopérative v. Canada (Canadian Food Inspection Agency), 2013 CART 9 (Exceldor 2013 CART 9); and Exceldor Coopérative v. Canada (Canadian Food Inspection Agency), 2013 CART 10 (Exceldor 2013 CART 10) – which all share some similar facts with the present case. In each of those cases, the Tribunal was tasked with determining whether a slaughterhouse could “transport or cause to be transported chickens” while they were being held at the slaughterhouse awaiting slaughter. In Volailles, Exceldor 2013 CART 9 and Exceldor 2013 CART 10, the Tribunal found that the slaughterhouse in each of those cases did not have control or influence over the manner in which the birds were caged, loaded into the truck or transported. In addition, the actions of the slaughterhouse in each of those cases during the waiting period between the arrival and the slaughter of the animals were not suspicious. As a result, the Tribunal dismissed the Notice of Violation against the slaughterhouse in each of those cases.

 

[34]  In Sure Fresh, however, the Tribunal’s finding on this point is set out in paragraph 34:

 

[34]  The Tribunal finds that there is sufficient evidence to determine that Sure Fresh did have sufficient control and influence to “transport or cause to be transported” the chickens on load C150, even though it did so only at the end of the voyage of the chickens. The Health of Animals Act and Regulations provide rules for the humane transport of animals. To this end, the rules that provide for the safe “transport” of an animal must encompass the activities involving the movement of animals which will, unless special circumstances exist, include the loading, moving in the transporting vehicle, and unloading of an animal. With such an expansive definition of “transport or cause to be transported” a number of parties ‑‑ producers, transporters and even auction marts and slaughter houses ‑‑ can conceivably “transport or cause the transport of an animal”.

 

[35]  The Tribunal’s finding on this point is also set out in paragraph 37 of Exceldor 2013 CART 4:

 

[37]  Moreover, given the evidence of the Agency and Exceldor, it is clear that Exceldor exercises a high degree of control over the selection of, and timing for, delivery of poultry shipments to its plant. In addition, in the letter of July 12, 2012, Mr. Cormier stated that [Translation] “Exceldor promptly parked the trailers under the dome to protect the poultry from weather” (emphasis added). But at the same time, knowing that there might be concerns with these shipments, Exceldor neither examined the birds in the trailer nor sped up their slaughter. The Tribunal thus concludes that Exceldor did indeed have sufficient power and control over the shipment of chickens waiting in its yard on November 17, 2010, and that, within the meaning of the Health of Animals Regulations, it did indeed cause the shipment of birds to be transported. Consequently, the Agency has demonstrated elements 1, 2 and 3.

 

[36]  Moreover, the FCA endorsed a similar expansive definition for the term “in the course of transport” in Canada (Attorney General) v. Ouellet, 2010 FCA 268, in which it was held that “transport” continued throughout the period in which the animals were in the truck (paragraph 2).

 

[37]  As well, in Canada (Attorney General) v. Denfield Livestock Sales Limited, 2010 FCA 36 (Denfield), the FCA commented on the meaning of the words “move, or cause the movement of, an animal” in section 176 of the HA Regulations. Although this is not the section in question in the present case, the Court’s discussion of the meaning of words that are similar to the ones found in paragraph 143(1)(d) is telling. The FCA held in Denfield that an auction mart exercised sufficient power and control over the movement of an animal so as to cause the movement of the animal for the purposes of section 176 (paragraphs 18, 29 and 31).

 

[38]  In the present case, the same type of logic can be applied. Exceldor exercised sufficient control over the movement of the chickens in trailer C136. First, the entire transaction for the sale of the 8,070 chickens in trailer C136 is recorded on an Exceldor bill of lading (Report, Tab 3). Once the chickens had arrived at the slaughterhouse, Exceldor exercised control over the chickens. Paquet, in her letter dated September 9, 2013, states that [translation] “…upon arrival, the trailer containing the birds was stored in the shed of Establishment 311, in accordance with the procedures set out in Exceldor’s welfare code, which had been deemed satisfactory by the CFIA”. Moreover, during the waiting period at the slaughterhouse, Exceldor exercised, through its employees, control over the trailer containing the chickens. Exceldor exercised that control in two ways: the power to determine priority for slaughter, and the verification of waiting conditions. The document at Tab 6 of the Report shows that the Exceldor employees checked the shelter in which the chickens were kept and even the cages on three occasions (1 p.m., 3 p.m. and 4 p.m.) and that the employees knew that the temperature had risen above 30 °C. Of course, they did turn on the cooling misters at 3 p.m. Based on these facts, the Tribunal concludes that Exceldor did indeed exercise sufficient power and control over the shipment of chickens waiting on its premises on July 31, 2012, and that, within the meaning of the HA Regulations, Exceldor did indeed cause the shipment of birds to be transported. Therefore, the Agency has demonstrated element 4.

 

[39]  With respect to element 5, the Agency must prove that there was a causal link between the transportation of an animal carried out by or on behalf of the violator, in which the animal was likely to incur injury or suffer unduly by reason of undue exposure to the weather, and the exposure to the weather. Given that the day was very hot and humid and that a large number of chickens were stacked on top of one another in crates, there was a real risk that the animals would incur injury or suffer unduly during transport, including during the waiting period at Exceldor before slaughter. The trailer arrived on the Exceldor premises at 11:25 a.m., when the outdoor temperature was about 30 °C, and was parked in the large yard underneath a shelter, where fans were running. The Exceldor employees’ primary inspection took place at 1:10 p.m., nearly two hours after the trailer had arrived. During the primary inspection, the temperature in the shelter was 29 °C, which should have triggered corrective measures, as indicated in the inspection report, but that did not happen. For example, as corrective measures, Exceldor could at that time have proposed driving the trailer around, or operating more fans and turning on cooling misters in the shelter. Nearly two hours later, at 3 p.m., the temperature was 31 °C inside the shelter and had risen to 34 °C inside the crates. But it was too late. The corrective measures taken at that time (cooling misters) reduced the temperature inside the crates by only 1 °C. The chickens, which were already very hot, were not unloaded for slaughter until after 5 p.m.

 

[40]  Paquet, in her letter dated September 9, 2013, argues that many of the chickens in trailer C136 were in poor condition and therefore had [translation] “a predisposition to die arising from pre‑existing physical conditions…”. There is very little evidence to support that argument. The evidence provided in support of that argument has no scientific basis and was not prepared by an expert. That argument therefore has very little probative value, as a result of the conflicting evidence that was submitted. In contrast, according to the evidence submitted by Inspector Valérie Maurice and by Vaillancourt (the veterinarian), the dead chickens had all suffered hyperthermia. In his necropsy report, at Tab 8 – with photographs at Tab 9 that also confirm this point – Vaillancourt concluded that many chickens had died from hyperthermia, and he even found an internal temperature of 43 °C in the carcass of a bird that had been dead for a number of hours.

 

[41]  The test set out in paragraph 143(1)(d) of the HA Regulations requires that injury or undue suffering to the animals need only be “likely” to be caused by undue exposure to the weather. The Tribunal considers that, on a balance of probabilities, the evidence shows that Exceldor, by not proceeding to process the birds with due dispatch, is responsible, directly or through a cause‑and‑effect relationship, for their injury or undue suffering, or for their likely injury or undue suffering, caused by prolonged exposure to high temperatures. Given the high temperature recorded on that day as well as the rapid increase in temperature inside the crates between 1 p.m. and 3 p.m., the Exceldor employees should have taken corrective measures to prevent the increased mortality in trailer C136.

 

[42]  Exceldor submits that it followed industry practices, as described in the Canadian Agri‑Food Research Council’s [translation] Recommended Code of Practice for the Care and Handling of Farm Animals – Chickens, Turkeys and Breeders from Hatchery to Processing Plant (Code), which is included in the Agency’s Report at Tab 12. The Code sets out the responsibilities of “drivers”, or in this case their analogues, toward poultry arriving in adverse weather conditions and recommends continuous processing and monitoring. The shipment of chickens would certainly have met this definition if the shipment had been inspected by Exceldor and if corrective measures had been taken as soon it arrived at the slaughterhouse rather than nearly two hours later. The Code provides the following guidelines in paragraphs 5.3.4 and 5.4.3 [translation]:

 

5.3.4  The air temperature in a load of live poultry should be maintained between 5 °C (42 °F) and 30 °C (86 °F). Development and installation of environmental monitoring devices on live haul trailers should be encouraged to provide drivers [or other workers] with continual information on the load. Drivers [or other workers] should use this information in conjunction with his/her experience to respond appropriately.

 

…

 

5.4.3  Birds may be severely affected by extremes of cold or heat.… The birds must be closely monitored and weather protection should be adjusted if necessary to provide increased ventilation.

 

[43]  In this case, it was Exceldor’s duty, under the Code and the HA Regulations, to monitor the shipment of chickens and make sure that they would not be subject to injury or suffering, and since the employees knew that the wait time before slaughter was quite long, they had an enhanced responsibility. There is no evidence that Exceldor had any other priority shipments on that day, and it appears that Exceldor followed the slaughter sequence, as planned.

 

[44]  With respect to element 5, the Tribunal is satisfied in this case that the evidence shows a causal link between, on one hand, the transport – including the wait at the slaughterhouse – and the undue suffering or clear likelihood of such suffering and, on the other hand, the undue exposure of the birds to weather.

 

[56]         In the extracts from the Exceldor (2014) decision quoted, it would appear that there was no issue of the load being compromised prior to the assumption of control by Exceldor. The compromised circumstances, whereby injury or undue suffering became likely, appears to have occurred subsequent to the assumption of control by Exceldor, due to an excess waiting time, prior to slaughter. In the present case, the Tribunal has determined that the Agency has established, on the balance of probabilities, that injury or undue suffering was likely from the time the birds were originally loaded. This means that Maple Lodge Farms, from the time of assumption of control, is responsible for any condition of the load existing at that time. Issues of determining whether the slaughter of a particular load should be accelerated, as well as the various attempts to monitor crate temperatures, therefore become irrelevant. As mentioned, in these circumstances, where likely injury or undue suffering to the birds has been established from an earlier point, the only option of Maple Lodge Farms, to avoid an absolute liability violation, is to refuse to accept the load. This places an obligation on the part of Maple Lodge Farms, as the receiving slaughterhouse, to inform itself as to the conditions of transport, prior to assuming control of the load, should it wish to minimize the possibility of being a party to an absolute liability violation. Under the present circumstances, had Maple Lodge Farms been informed of the delays in loading and transport in sub‑zero weather, it could have informed the chicken farmer and the transporter that the transport should be cancelled. Under the circumstances, the most humane approach to adopt would have been to slaughter the birds onsite, to alleviate their unreasonable, or undue, suffering of remaining stationary in sub‑zero weather for some four hours.

 

 

Value of the Life of a Spent Hen

 

[57]         In cases of this type, it is noted that a decision as to whether to investigate a particular load is generally a function of the percentage of dead chickens discovered. However, as the Tribunal has noted in Poirier‑Bérard v. Canada (Canadian Food Inspection Agency), 2012 CART 23, at paragraph 61, in a discussion of negligence in relation to a gravity assessment, an individual chicken’s life under section 143 of the Health of Animals Regulations is not legislatively distinguished from the life of any other animal:

 

[61]  In the present case, Poirier‑Bérard admitted that a certain mortality rate is always to be expected after live poultry is transported. The Agency must address the following question, which the Agency says provides evidence of negligence: Is the mortality rate higher than normal? In the Tribunal’s opinion, the mortality rate is not relevant. If a single rooster, among all the others, is found frozen to death, the connection with negligence is that it is up to Poirier‑Bérard to decide whether or not to transport the birds in extreme cold. Even if transporting live poultry in extreme cold is industry practice, the practice itself could be considered to amount to negligence. A chicken must be treated in the same manner as a cow. If Parliament wanted to make an exception based on the type of animal, it could have done so. Parliament has made no such exception to date. However, the Tribunal notes that Parliament did create an exception for chicks, in subsection 138(3) of section 138:

 

138. (3)  Paragraph (2)(b) does not apply to a chick of any species if the expected duration of the chick’s confinement is less than 72 hours from the time of hatching.

 

There is no similar exception in section 143.

 

[58]         From the foregoing, one may conclude that undue suffering due to undue exposure to the weather, associated with the commission of a violation under the Health of Animals Regulations, is not also associated with the size of the animal, death percentages, or death at all. The Tribunal remains mindful of the directions of the Federal Court of Appeal in Attorney General of Canada v. Stanford, 2014 FCA 214 (per Madame Justice Dawson, with Madame Justice Sharlow and Mr. Justice Near concurring) , in relation to assessing statutory provisions from the perspectives of the text, context and purpose of the legislation.

 

[59]         The Tribunal appreciates that there are constraints on regulatory power. In his extensive oral concluding address, of a duration of in excess of five hours, in Ferme Alain Dufresne, previously cited, Alexandre Dufresne, legal counsel for Ferme Alain Dufresne, provided a detailed review of statutory interpretation and arguments in relation thereto. The Tribunal regrets that it did not require concluding submissions to be in writing, as in the present case. To the best of the Tribunal’s knowledge, Mr. Dufresne’s exceptional submissions remain in oral recorded form only, without transcription or translation from the original French.

 

[60]         Mr. Dufresne pointed to authorities demonstrating that regulation cannot be used to destroy an industry and, in that regard, regulations that restrict business activities should be interpreted from the perspective of being subsidiary legislation to generally enabling statutes, or activities that are legally permitted, at first instance. The Tribunal is in general agreement with these sentiments. A legislature cannot eliminate an industry or principal industrial activities through regulation. It cannot do indirectly what it chooses not to do directly. If a legislature wishes to eliminate an industry or prohibit particular activities in that industry, it must do so explicitly. Reference is made to those who find the transport and processing of spent hens to be particularly inhumane, and wish to see certain industry practices prohibited. The prohibition must be legislatively explicit.

 

[61]         The current decision is therefore not intended to be interpreted as involving any general prohibition of an industry practice. The fact remains that it is currently legally permissible to transport spent hens, over extensive distances, in any sort of weather. It is also legally permissible to transport spent hens in circumstances where their suffering during transport is likely or in fact occurs. It is also legally permissible, in terms of the current violation section, to transport spent hens in circumstances where they are likely to suffer unduly or in fact suffer unduly, in circumstances where such undue suffering is not associated with undue exposure to the weather.

 

[62]         It is also a fact, as noted in evidence in the Maple Lodge Farms criminal trial, that there will always be spent hens that will die during transport. It is for this reason that the violation references “undue” suffering and “undue” exposure to the weather. The majority of these types of transport may continue, without any violation having been committed, in the absence of specific legislative prohibition to the contrary or enhanced legislative requirements as to transport comfort. A legislature is at liberty to require that spent hens be transported in heated trailers, when in sub‑zero temperatures, as an example. No legislature has done so.

 

 

Gravity Assessment

 

[63]         As noted, the penalty to which Maple Lodge Farms was subject was increased by 30%, based on gravity value considerations. The nature of such gravity value calculations has been discussed in detail in a number of Tribunal decisions, such as in A.S. L’Heureux Inc. v. Canada (Canadian Food Inspection Agency), 2014 CART 17, at paragraphs 25 to 33. In the case of Maple Lodge Farms, the increase is based on a gravity value of 13 points. Five points are assessed in relation to Maple Lodge Farms having more than one previous violation within the preceding five year period; 38 previous violations are referenced. Five points are assessed for the violation being one that causes serious harm to an animal. The Tribunal is in agreement with this assessment.

 

[64]         An additional 3 points are assessed for the violation being one that is committed through a negligent act. The Tribunal is not in agreement with this assessment. From a review of the evidence, the Tribunal is of the opinion that Maple Lodge Farms did everything that any reasonable processor would have done from the time that the load arrived at the Maple Lodge Farm facilities. While the load was left in an unheated area for twelve hours, Maple Lodge Farms reasonably believed, based on its monitoring of crate temperatures, that the spent hens were not in such danger as to necessitate accelerated and immediate slaughter. Given its emphasis on a defence of lack of control, Maple Lodge believed that it had no responsibility to monitor the circumstances of the load from the time of loading in the United States until its arrival in Brampton. As has been noted earlier in this decision, in so acting, Maple Lodge Farms eliminated an opportunity to decline to accept what was in fact a compromised load, leading to its commission of a violation from the moment of acceptance. Such actions do not amount to negligence. Given a lack of legal obligation based on control, any indifference of Maple Lodge Farms to the circumstances of the transport also cannot be viewed as a form of wilful blindness, or a degree of inaction amounting to intent. The Tribunal acknowledges that, had the Tribunal considered it necessary to evaluate Ms. Tausky’s alternative “cause the transport” argument, the obligations of Maple Lodge Farms might be viewed differently.

 

[65]         The Tribunal is of the view, based on the extensive evidence of and arguments by Maple Lodge Farms, that in the present case it exercised reasonable care during the period in which the spent hens were under its control. Maple Lodge Farms summarized its conduct as follows (concluding submissions of Mr. Folkes, paragraph 98):

 

…All reasonable actions were taken quickly and prudently, guided by industry standards, to abate the adverse effects of weather, based upon the facts, which were reasonably known to MLF staff when D-74 arrived. It was placed in a protected holding barn. It was monitored hourly during the lairage period. There was no human error, on the part of MLF staff, including improper tarping and protection of the birds within the holding barn, excessive waiting, or poor protective equipment or processes. The MLF monitoring staff followed the protocols set out in the load monitoring sheets, and no human error, on the part of MLF, has been disclosed on the evidence.

 

Based on a review of the evidence, the Tribunal is in general agreement, based on balance of probability considerations, with the assessment by Maple Lodge Farms of its conduct, subsequent to receiving and thereby assuming control the load. In addition, based on these practices, if one were considering solely the period of time when the birds were under the control of Maple Lodge Farms, it would be substantially more difficult to determine whether the spend hens were unduly exposed to weather during that period.

 

[66]         This does not excuse Maple Lodge Farms from having committed the violation, where the exercise of reasonable care is irrelevant to the commission of an absolute liability violation, but may go to the reduction of penalty. While the number of dead spent hens turned out to be significantly larger than initially estimated by a Maple Lodge Farm employee, such estimate was based on technology to estimate crate temperatures considered by Maple Lodge Farms to be a reliable proxy for direct temperature measurements, and quite apart from any clear determination as to when the spent hens actually died. As Dr. Appelt pointed out, disputes as to the effectiveness of such technology could be readily resolved by simply installing thermometers in the trailers or in the crates. Maple Lodge Farms cannot be found to be negligent for following what it reasonably believed to be a reliable proxy for such direct measurements of temperature. However, it was noted in evidence that the technology does exist to record temperatures more precisely in relation to animal transport. What is not before the Tribunal is evidence of general industry practices in relation to temperature measurements relating to animal transport.

 

[67]         Since the Tribunal has determined that Maple Lodge Farms was not negligent, the additional gravity points become 10, rather than 13. Pursuant to Schedule 2 of the Agriculture and Agri‑Food Administrative Monetary Penalties Regulations (SOR/2000‑187), a gravity value of between 6 and 10 results in no increase or decrease in the monetary penalty. The Tribunal therefore determines that the monetary penalty in this matter should be $6,000, rather than $7,800.

 

 

Conclusion

 

[68]         The Tribunal therefore by order determines, on the balance of probabilities, that the Applicant committed the violation, as set out in Notice of Violation 1213ON0387 dated June 19, 2013, despite exercising reasonable care in the circumstances, and is therefore liable to pay the respondent, the Canadian Food Inspection Agency, a monetary penalty of $6,000, within thirty (30) days after the day on which this decision is served.

 

 

Dated at Ottawa, Ontario, this 14th day of March, 2016.

 

 

 

 

 

 

_____________________________________________

Dr. Bruce La Rochelle, Member

 

ANNEX 1
Date:  20150119
Dockets:  CART/CRAC‑1728 and 1729
BETWEEN:
Maple Lodge Farms Ltd., Applicant
‑ and ‑
Canadian Food Inspection Agency, Respondent
BEFORE:	Member Bruce La Rochelle
WITH:	Ronald E. Folkes, counsel for the Applicant and
	Jacqueline Wilson, counsel for the Agency
In the matter of the form of closing arguments in relation to files CART/CRAC‑1728 and CART/CRAC‑1729.
ORDER
Counsel for the Applicant and Counsel for the Respondent shall submit their closing arguments in relation to CART/CRAC‑1728 and CART/CRAC‑1729 by written submissions only. Such written submissions must be received by the Tribunal by 5:00 p.m. within ten juridical days from the completion of the submission of evidence in both CART/CRAC‑1728 and CART/CRAC‑1729.
			.

REASONS

 

[1]              At the time of this writing, there have been six hearing days in relation to two requests for review submitted by the Applicant, Maple Lodge Farms Ltd. (“Maple Lodge Farms”). The first set of hearing days was October 15‑17, 2014, followed by second set of hearing days during January 7‑9, 2015 inclusive. The number of hearing days remaining to complete the submission of evidence is estimated by both counsel to be at least four days, though counsel vary in their estimates as to the maximum number of days required. The evidence in both files is highly complex and detailed, involving extensive review by counsel on examination-in-chief and in cross‑examination of witnesses. In addition, there is substantial veterinary evidence, either presented to date or to be presented, also involving or anticipated to involve extensive review by counsel on examination‑in‑chief and in cross‑examination.

 

[2]              At the conclusion of the second set of hearing dates, counsel were canvassed by the Tribunal as to the views of counsel with respect to closing arguments being submitted in writing. Mr. Folkes, on behalf of Maple Lodge Farms, advised the Tribunal that he was not opposed to making written closing arguments but that he wished to preserve a right to make subsequent oral arguments in reply. Mr. Folkes cited this practice as being consistent with a recent, unspecified court case with which he had been involved. The Tribunal notes that such an approach would in any event be consistent with the practice adopted by Madame Justice Kastner in R. v. Maple Lodge Farms, 2013 ONCJ 535, where Mr. Folkes was also counsel for Maple Lodge Farms. In that case, extensive written submissions were made by the Crown and by Mr. Folkes, followed by oral submissions shortly thereafter. It is unclear whether the procedure adopted was on consent of counsel or as ordered by Madame Justice Kastner, independent of such consent.

 

[3]              During the course of discussion at the hearing, Ms. Wilson, counsel for the Respondent. the Canadian Food Inspection Agency (“the Agency”) expressed her reservations in relation to closing arguments being both written and oral. Her view was that such arguments should be exclusively written or oral. In a later written communication to the Tribunal, copied to Mr. Folkes, Ms. Wilson expressed her preference for the closing arguments to be exclusively oral, based on her views that such form of submission would be more efficient.

 

[4]              The Tribunal must balance various interests, with the primary consideration being a balancing of fairness and efficiency considerations, as provided in section 3 of the Agriculture and Agri‑Food Administrative Monetary Penalties Act (S.C. 1995, c. 40):

 

3.  The purpose of this Act is to establish, as an alternative to the existing penal system and as a supplement to existing enforcement measures, a fair and efficient administrative monetary penalty system for the enforcement of the agri-food Acts.

 

[5]              In the Tribunal’s view, procedural and substantive fairness to both parties must be the primary consideration in its deliberations, notwithstanding potential conflicts with efficiency. Efficiencies can take the form of considerations of cost or celerity in the resolution of a matter. In many cases, given the limited defences available in an absolute liability regime, matters can be resolved quickly and in a cost-effective manner. This has been the Tribunal’s experience with a large number of cases involving the Canada Border Services Agency and violations in relation to the importation of food. As mentioned by the Tribunal during the hearing, the same efficiency considerations are not as readily experienced by the Tribunal in cases involving violations initiated by the Canadian Food Inspection Agency. These cases are often far more complex, from an evidentiary perspective and at times from the perspective of procedural issues. The applicants are frequently parties whose business reputations are potentially seriously impacted by the violation, and whose defences are accordingly far more vigorously pursued. Thus, the Tribunal must be particularly concerned that the parties consider that the matter has been addressed by the Tribunal in a procedurally and substantively fair manner, even though such matter may involve longer hearing periods, with associated elevated costs, as well as longer time periods generally to resolve the matter by way of rendering a decision.

 

[6]              The preeminent nature of fairness in the Tribunal’s proceedings is recognized in the Tribunal’s own rules. Rule 3 of the Rules of the Review Tribunal (Agriculture and Agri‑Food) (SOR/99‑451; “Tribunal Rules”) provides as follows:

 

3.  If the application of any rule would cause unfairness to a party, the Tribunal may avoid compliance with the rule.

 

There is no rule that permits the Tribunal to avoid compliance based on efficiency considerations. Subject to judicial review as to the resolution of any perceived conflict between Rule 3 of the Tribunal Rules and section 3 of the Agriculture and Agri‑Food Administrative Monetary Penalties Act, the Tribunal is of the opinion that efficiency considerations become relevant only when they do not conflict with the Tribunal’s views as to procedural and substantive fairness to the parties. In addition, subject to judicial review to the contrary, it is the Tribunal’s view that the Tribunal’s conclusions as to fairness govern matters here, irrespective of sentiments of a party or parties to the contrary. The assessment and conclusion by the Tribunal of what is fair to the parties will be a function of the nature and complexity of the matter before the Tribunal. In many cases, the parties’ views as to fairness in relation to an approach to a particular matter, particularly if agreed to by both sides, will be readily adopted by the Tribunal, though it is not bound to do so.

 

[7]              R. v. Maple Lodge Farms, previously cited, was a trial involving two representative criminal charges under the Health of Animals Act, relating to events occurring in 2008 and 2009. The trial involved fifteen hearing days between September, 2011 and June, 2013, in addition to a day of oral submissions on January of 2013, which itself was preceded by extensive written submissions by the parties in December, 2012 and January, 2013: The Crown’s written submission was nearly 40 pages, while the written submission by the defence exceeded 100 pages. The judgement contains no procedural review, and so the reason for the hearing date in June, 2013, following closing submissions, is unexplained. The judgement of 484 paragraphs and nearly 100 pages was rendered in September, 2013, convicting Maple Lodge Farms on both counts. Following conviction, there were two days of sentencing representations in March of 2014, and a sentence rendered. Reasons for sentence were issued in April, 2014, as reported in R. v. Maple Lodge Farms, 2014 ONCJ 212. Thus, the time from commencement of proceedings to the release of the reasons for sentence amounted to over two and a half years. These are summary observations of the facts, without any negative imputation intended.

 

[8]              The current proceedings involve administrative monetary penalties relating to absolute liability violations under the Health of Animals Regulations, where the burden of proof of the violation elements is the balance of probabilities, rather than beyond reasonable doubt. In addition, being an absolute liability regime, the defences available to Maple Lodge Farms, beyond challenging the Agency’s evidence as not satisfying the burden of proof, are very restricted. It is therefore understandable that Maple Lodge Farms will be spending significant time in challenging the Agency’s evidence and in introducing evidence in support of the countervailing versions of the facts. To date, six hearing days have been held. If, as is anticipated, another four hearing days are required to complete the introduction and examination of the evidence, these hearings will be approaching 70% of the time expended in evidentiary introduction and review in the criminal proceedings referenced.

 

[9]              In matters before the Tribunal, an applicant has, by regulation, a right to an oral review, or hearing, upon request. The other form of review is by written submissions only. Implicitly, the review is by written submissions only, unless the applicant requests otherwise. Subsection 15(1) of the Agriculture and Agri‑Food Administrative Monetary Penalties Regulations (SOR/2000‑187) provides as follows:

 

15. (1)  A review by the Tribunal shall be conducted orally where the person named in the notice of violation requests that the review be oral.

 

[10]         In the context of the Tribunal’s review mandate, the term “hearing” exclusively refers to an oral review. The other form of review is by written submissions only. This restricted view of the nature of a “hearing”, in the context of the Tribunal’s review mandate, is supported by Rule 34 of the Tribunal Rules, which provides as follows:

 

34. An applicant who requests a review by the Tribunal must indicate the reasons for the request, the language of preference and, if the notice of violation sets out a penalty, whether or not (sic) a hearing is requested.

 

Pursuant to the Tribunal Rules, the default review format is therefore by written submissions only, in the absence of a request for an oral review, which takes the form of a hearing. The hearing process, as described in Rules 12 to 15, of the Tribunal Rules, is referenced to an oral hearing only, as follows:

 

12. (1)  A hearing before the Tribunal may, on the request of any party to the hearing, be held in camera if that party establishes that the circumstances of the case so require.

(2)  The Tribunal may order a witness at a hearing to be excluded from the hearing until called to give evidence.

13.  All hearings before the Tribunal must be recorded.

14.  Unless the order of proceeding has been agreed to by all parties in advance, the Tribunal must establish the order of proceeding at the start of the hearing.

15. (1)  Witnesses at a hearing may be examined orally on oath or affirmation.

(2)  Either party at a hearing is entitled to examine their (sic) own witnesses, to cross-examine any witnesses of the other party, and to re-examine their own witnesses for clarification.

 

[11]         At issue is whether the right to an oral review, or hearing, means that the parties have a right to make concluding arguments orally. In the absence of any judicial views to direct or influence the Tribunal to the contrary, the Tribunal has determined that the right to an oral hearing is not associated with a right, in any absolute sense, to make concluding arguments orally. A primary function of the oral hearing is that of credibility determinations, where an applicant believes that such is warranted, and where such credibility determination is particularly complemented through an oral examination and cross‑examination process. In this regard, in Khan v. University of Ottawa, 1997 CanLII 941 (unparagraphed), the majority of the Ontario Court of Appeal (Laskin, J.A., with Brooke, J.A. concurring), commented as follows:

 

In many academic appeals, procedural fairness will not demand an oral hearing. An opportunity to make a written submission may suffice. For example, I doubt that students appealing their grades because they believe they should have received a higher mark would ordinarily be entitled to an oral hearing. What distinguishes this case is that the determining issue before the Examinations Committee was Ms. Khan's credibility. In denying Ms. Khan relief the Committee judged her credibility adversely. In my view, the Committee should not have done so without affording her an in-person hearing and an opportunity to make representations orally. In the most recent edition of his text entitled Administrative Law (3^rd ed., Toronto: Carswell, 1996) Professor Mullan wrote at para. 108:

 

An oral hearing may be required in certain circumstances and particularly where Charter rights are at stake and in those common situations where credibility of the parties and witnesses is a factor in the decision‑making process….

 

 

Many courts in many different settings have emphasized that when a decision turns on credibility, a decision-maker should not make an adverse finding of credibility without affording the affected person an oral hearing. In Singh v. Canada (Minister of Employment and Immigration), [1985] 1 S.C.R. 177, 17 D.L.R. (4th) 422, Wilson J., after observing that "fundamental justice" in s. 7 of the Canadian Charter of Rights and Freedoms includes procedural fairness, explained at pp. 213‑14 S.C.R., p. 465 D.L.R. why an issue of credibility should not be determined on written statements:

 

I should note, however, that even if hearings based on written submissions are consistent with the principles of fundamental justice for some purposes, they will not be satisfactory for all purposes. In particular, I am of the view that where a serious issue of credibility is involved, fundamental justice requires that credibility be determined on the basis of an oral hearing. Appellate courts are well aware of the inherent weakness of written transcripts where questions of credibility are at stake and thus are extremely loath to review the findings of tribunals which have had the benefit of hearing the testimony of witnesses in person: see Stein v. The Ship "Kathy K" (1975), 62 D.L.R. (3d) 1 at pp. 3-5, [1976] 2 S.C.R. 802 at pp. 806-8, 6 N.R. 359 (per Ritchie J.). I find it difficult to conceive of a situation in which compliance with fundamental justice could be achieved by a tribunal making significant findings of credibility solely on the basis of written submissions.

 

[12]         Furthermore, as the Supreme Court of Canada noted, per Madame Justice L’Heureux‑Dubé, in Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 S.C.R. 817, at paragraphs 22 and 28:

 

[22]  Although the duty of fairness is flexible and variable, and depends on an appreciation of the context of the particular statute and the rights affected, it is helpful to review the criteria that should be used in determining what procedural rights the duty of fairness requires in a given set of circumstances.  I emphasize that underlying all these factors is the notion that the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker.

 

[28]  …The values underlying the duty of procedural fairness relate to the principle that the individual or individuals affected should have the opportunity to present their case fully and fairly, and have decisions affecting their rights, interests, or privileges made using a fair, impartial, and open process, appropriate to the statutory, institutional, and social context of the decision.

 

[13]         More recently, the Federal Court, per Mr. Justice de Montigny, in Black v. Canada (Advisory Council for the Order), 2012 FC 1234 (affd. 2013 FCA 267), commented as follows, at paragraph 68:

 

[68]  …the duty of procedural fairness does not confer an unqualified right to an oral hearing. The core issue, from a procedural fairness perspective, is whether an oral hearing is necessary to provide a reasonable opportunity for parties to effectively make their case…

 

[14]         Based on the nature and extent of the evidence introduced to date in both matters, and in view of the complexity of such evidence and its comprehensive examination and cross‑examination by counsel, the Tribunal is of the view that written closing arguments are required by both parties, and that this will be the exclusive form of submission. The Tribunal anticipates that the balance of the evidence to be introduced will be similarly complex and subject to a similar degree of rigorous examination and cross‑examination by counsel. It is the Tribunal’s view that fairness to both parties requires that their closing arguments, necessarily involving a review and assessment of a complex and voluminous amount of evidence, be in writing. The Tribunal is of the view that the integrity and credibility of the evidence will have been comprehensively addressed by both counsel during the hearing, through viva voce testimony and argument and the requirement of written closing arguments or submissions does not compromise fairness to counsel in this regard.

 

[15]         The Tribunal notes that the Federal Court of Appeal has recently commented on the correctness review standard in relation to administrative determinations of procedural fairness. In Re: Sound v. Fitness Industry Council of Canada, 2014 FCA 48, the Court of Appeal, per Mr. Justice Evans, discussed the standard of review in paragraphs 34 to 42 as follows:

 

[34]  The black-letter rule is that courts review allegations of procedural unfairness by administrative decision-makers on a standard of correctness: Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at para. 43.

 

[35]  Courts give no deference to decision-makers when the issue is whether the duty of fairness applies in given administrative and legal contexts. This is evident from the discussion in Dunsmuir v. New Brunswick, 2008 SCC 9; [2008] 1 S.C.R. 190 at paras. 77 et seq. (Dunsmuir) of whether David Dunsmuir was entitled to procedural fairness before his employment in the provincial public service was terminated.

 

[36]  However, the standard of review applicable to an allegation of procedural unfairness concerning the content of the duty in a particular context, and whether it has been breached, is more nuanced. The content of the duty of fairness is variable because it applies to a wide range of administrative action, actors, statutory regimes, and public programs, with differing impacts on individuals. Flexibility is necessary to ensure that individuals can participate in a meaningful way in the administrative process and that public bodies are not subject to procedural obligations that would prejudice the public interest in effective and efficient public decision-making.

 

[37]  In the absence of statutory provisions to the contrary, administrative decision-makers enjoy considerable discretion in determining their own procedure, including aspects that fall within the scope of procedural fairness: Prassad v. Canada (Minister of Employment and Immigration), [1989] 1 S.C.R. 560 at 568-569 (Prassad). These procedural aspects include: whether the “hearing” will be oral or in writing, a request for an adjournment is granted, or representation by a lawyer is permitted; and the extent to which cross-examination will be allowed or information in the possession of the decision-maker must be disclosed. Context and circumstances will dictate the breadth of the decision-maker’s discretion on any of these procedural issues, and whether a breach of the duty of fairness occurred.

 

[38]  Dunsmuir does not address the standard of review applicable to tribunals’ procedural choices when they are challenged for breach of the duty of fairness. However, the Court held (at para. 53) that the exercise of administrative discretion is normally reviewable on a standard of reasonableness. This proposition would seem applicable to procedural and remedial discretion, as well as to discretion of a more substantive nature. It is therefore not for a reviewing court to second-guess an administrative agency’s every procedural choice, whether embodied in its general rules of procedure or in an individual determination.

 

[39]  That said, administrative discretion ends where procedural unfairness begins: Prassad at 569. A reviewing court must determine for itself on the correctness standard whether that line has been crossed. There is a degree of tension implicit in the ideas that the fairness of an agency’s procedure is for the courts to determine on a standard of correctness, and that decision-makers have discretion over their procedure.

 

[40]  Thus, writing for the majority in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at para. 27, Justice L’Heureux-Dubé included the decision-maker’s procedural choice and agency practice as factors that courts must take into account when determining the contents of the duty of fairness in any given context. She stated that considerable weight should be given to this choice when the legislature had conferred broad procedural discretion on the agency or its expertise extended to procedural issues.

 

[41]  Justice Abella endorsed these observations when writing for the majority in Council of Canadians with Disabilities v. VIA Rail Canada Inc., 2007 SCC 15, [2007] 1 S.C.R. 650 at paras. 230-231. She said (at para. 231):

 

Considerable deference is owed to procedural rulings made by a tribunal with the authority to control its own process. The determination of the scope and content of a duty to act fairly is circumstance-specific, and may well depend on factors within the expertise and knowledge of the tribunal, including the nature of the statutory scheme and the expectations and practices of the Agency’s constituencies.

 

[42]  In short, whether an agency’s procedural arrangements, general or specific, comply with the duty of fairness is for a reviewing court to decide on the correctness standard, but in making that determination it must be respectful of the agency’s choices. It is thus appropriate for a reviewing court to give weight to the manner in which an agency has sought to balance maximum participation on the one hand, and efficient and effective decision-making on the other. In recognition of the agency’s expertise, a degree of deference to an administrator’s procedural choice may be particularly important when the procedural model of the agency under review differs significantly from the judicial model with which courts are most familiar.

 

[16]         As noted by Mr. Justice Evans in Re: Sound, “administrative discretion ends where procedural unfairness begins”. On the particular procedural matter that is the subject of this Order, there would appear to be no specialized expertise that the Tribunal brings to its determination that would, it itself, merit deference from a superior court. While the tendency towards judicial deference appears to continue to broaden, as exemplified recently by the Supreme Court of Canada in McLean v. British Columbia (Securities Commission), 2013 SCC 67, the Tribunal continues to benefit from superior court correction and guidance, without any particular deference being demonstrated. Recent examples include the decisions of the Federal Court of Appeal in Canada (Border Services Agency) v, Tao, 2013 FCA 52, Canada (Attorney General) v. Tam, 2014 FCA 220 and Canada (Attorney General) v. Stanford, 2014 FCA 234. Such decisions, given their precedential effects, also provide more general guidance to others, beyond that specifically provided to the Tribunal.

 

[17]         The purpose of issuing this Order at this time is to put the parties on notice as to the expectations of the Tribunal, so that they may commence at least framing or thinking about their written submissions now. The issuance of the Order is also timed so that either party may determine whether it wishes to seek judicial review of same, prior to the commencement of a further period of hearing days, anticipated to be in April, 2015, at the earliest. In such circumstances, the actual hearing of evidence need not be postponed, in the Tribunal’s view. Rather, concluding arguments would not be heard, pending a decision from the Federal Court of Appeal as to whether the Tribunal is within its rights to insist on written concluding arguments exclusively, contrary to the wishes of counsel for the Agency, and also contrary to the wishes of counsel for Maple Lodge Farms, who wishes to preserve a right to make oral submissions, following the submission of written concluding arguments.

 

 

Order

 

[18]         The Tribunal therefore makes the following Order:

 

Counsel for the Applicant and Counsel for the Respondent shall submit their closing arguments in relation to CART/CRAC‑1728 and CART/CRAC‑1729 by written submissions only. Such written submissions must be received by the Tribunal by 5:00 p.m., within ten (10) juridical days from the completion of the submission of evidence in both CART/CRAC‑1728 and CART/CRAC‑1729.

 

 

Dated at Ottawa, Ontario, this 19th day of January, 2015.

 

 

 

Original signed by:

 

 

_____________________________________________

Dr. Bruce La Rochelle, Member