RTA #60162
AGRICULTURE AND AGRI-FOOD ADMINISTRATIVE
MONETARY PENALTIES ACT
DECISION
In the matter of an application for a review of the facts of a violation of provision 143(1)(d) of the Health of Animals Regulations, alleged by the Respondent, and requested by the Applicant pursuant to paragraph 9(2)(c) of the Agriculture and Agri-Food Administrative Monetary Penalties Act.
Glenview Livestock Ltd., Applicant
-and-
Canadian Food Inspection Agency, Respondent
CHAIRMAN BARTON
Decision
Following an oral hearing and a review of the written submissions of the parties including the report of the Respondent, the Tribunal, by order, determines the Applicant committed the violation and is liable for payment of the penalty in the amount of $2,000.00 to the Respondent within 30 days after the day on which this decision is served.
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REASONS
The Applicant requested an oral hearing pursuant to subsection 15(1) of the Agriculture and Agri-Food Administrative Monetary Penalties Regulations. The oral hearing was held in Kitchener on March 16, 2005.
The Applicant was represented by its Import/Export Manager, Mr. Terrance S. Fulton.
The Respondent was represented by its solicitor, Ms. Diane Guilmet-Harris.
All relevant documentation submitted to the Tribunal by the parties prior to the hearing was reviewed and entered on the record.
Oral evidence was given for the Respondent by Dr. Marcel Asselin and by Mr. Nick Melchiorre.
Oral evidence was given for the Applicant by Mr. Terrance S. Fulton and by
Mr. Arlin Martin.
The Notice of Violation dated September 3, 2004, alleges that the Applicant, on the 16th day of February, 2004, at St‑Stanislas‑de‑Kostka, in the province of Quebec, committed a violation, namely: “Did transport animals between Woodstock in the province of Ontario and St‑Stanislas‑de‑Kostka in the province of Quebec with undue exposure to weather” contrary to provision 143(1)(d) of the Health of Animals Regulations. Subsection 143(1) states 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
(a) inadequate construction of the railway car, motor vehicle, aircraft, vessel, container or any part thereof;
(b) insecure fittings, the presence of bolt-heads, angles or other projections;
(c) the fittings or other parts of the railway car, motor vehicle, aircraft, vessel or container being inadequately padded, fenced off or otherwise obstructed;
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(d) undue exposure to the weather; or
(e) inadequate ventilation.
Provision 143(1)(d) of the Health of Animals Regulations is a separate violation pursuant to the Agriculture and Agri-Food Administrative Monetary Penalties Regulations.
The undisputed evidence of the Respondent is that the Applicant transported a load of 93 milk fed veal calves from Woodstock, Ontario to St‑Stanislas‑de‑Kostka, in the province of Québec. The shipment left Woodstock on February 15, 2004 at approximately
11:00 p.m. and arrived at the destination on February 16, 2004 at 5:00 a.m. The distance is approximately 640 km. The temperature at both departure and arrival was -21oC , and the wind-chill during transportation was at least -48 oC .
About 3/4 of the openings on the truck were panel covered and were not changed throughout the relevant time period.
At the time of inspection by Dr. Marcel Asselin, three calves were dead, five were lying in a lateral decubitus position and two were lying in a ventral decubitus position. It would appear that the remaining calves were unloaded sometime prior to this inspection.
The Applicant submitted that the veal calves could have died between the time of arrival and the time of inspection. However the Applicant’s driver acknowledged that he was responsible for the welfare of the animals during this time period.
The Tribunal finds there was undue suffering by the ten veal calves. The sole remaining question is whether the undue suffering was caused by undue exposure to the weather or by some other means.
The Respondent testified that the calves died from hypothermia and that the recumbent calves had the ends of their limbs freezing with all other extremities very cold. There were no fractures on the animals, but those on the floor had been trampled. According to the Respondent, the injuries were clearly caused by the cold weather conditions.
The Applicant submitted that the average milk fed veal calf slaughtered weighed approximately 285 pounds, while these calves weighed closer to an average of 400 pounds. This would have made them weaker at the time of transportation.
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Even if this were to be the case, extra precautions should have been taken to ensure the welfare of the animals. There is no direct evidence to substantiate that the calves could have unduely suffered from any causes other than the cold weather. Accordingly, the Tribunal is satisfied that the cold weather caused the undue suffering, and that the Respondent has established on a balance of probabilities, that the Applicant committed the violation.
Although the Applicant gave evidence that this was a rare incident and that the driver handled the animals well and did his job properly, the Tribunal wishes to point out that due diligence is not a defence to a violation by reason of subsection 18(1) of the Agriculture and Agri-Food Administrative Monetary Penalties Act which states as follows:
18.(1) A person named in a notice of violation does not have a defence by reason that the person
(a) exercised due diligence to prevent the violation; or
(b) reasonably and honestly believed in the existence of facts that, if true, would exonerate the person.
Dated at Ottawa this 24th day of March, 2005.
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Thomas S. Barton, Q.C., Chairman