RTA# 60170
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 138(2)(a) 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.
Ferme Horégam inc., Applicant
- and -
Canadian Food Inspection Agency, Respondent
TRIBUNAL MEMBER P. ANNIS
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 Québec City on May 3, 2005.
The Applicant was represented by its administrator, Mr. Gaétan Gagnon.
The Respondent was represented by its solicitor, Me Patricia Gravel.
The Notice of Violation dated August 10, 2004, alleges that the Applicant, on the 24th day of February, 2004, at St-Henri, in the Province of Québec, committed a violation, namely: “A fait charger et fait transporter un porc, à bord d’un véhicule moteur, qui pour des raisons de maladie, de blessure, d’infirmité, ne pouvait être transporté sans souffrances indues au cours du voyage prévu” contrary to provision 138(2)(a) of the Health of Animals Regulations which states as follows:
138(2) Subject to subsection (3), no person shall load or cause to be loaded on any railway car, motor vehicle, aircraft or vessel and no one shall transport or cause to be transported an animal
(a) that by reason of infirmity, illness, injury, fatigue or any other cause cannot be transported without undue suffering during the expected journey.
In this context, “undue” has been defined by the Federal Court of Appeal in Procureur général du Canada c. Porcherie des Cèdres Inc., [2005] F.C.A. 59, to mean “unjustified” or “unwarranted”. The Court held that the loading and transporting of a suffering animal would cause the animal unwarranted or unjustified suffering, and hence would be contrary to the purpose of the Regulations.
Subsequently, in Canadian Food Inspection Agency v. Samson, [2005] F.C.A. 235, the Court summarized its position as follows:
What the provision contemplates is that no animal be transported where having regard to its condition, undue suffering will be caused by the projected transport. Put another way, wounded animals should not be subjected to greater pain by being transported. So understood, any further suffering resulting from the transport is undue. This reading is in harmony with the enabling legislation which has as an objective the promotion of the humane treatment of animals.
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The Tribunal is of the view that the Court did not intend to eliminate a threshold to determine what constitutes undue suffering, but intended to broaden the scope of situations where suffering is considered undue.
This conclusion is supported by the fact that the wording of the paragraph makes it evident that not every “infirmity, illness, injury, fatigue or any other cause” constitutes suffering worthy of a violation. Had this been the case, there would have been no need to use the word “undue”.
It is further bolstered by the fact that this type of violation has been designated under the Agriculture and Agri-Food Administrative Monetary Penalties Regulations as a “serious” violation.
Also, the likely consequence of concluding that an animal would be caused undue suffering would be severe. The animal would, in most cases, have to be put down.
Finally, this conclusion is consistent with the position taken by the Canadian Agri-Food Research Council in its Guide to Handling Livestock at Risk set out on page 15 of its publication titled “Transportation Code of Practice for the Care and Handling of Farm Animals”, [Canadian Agri-Food Research Council : 2001], which document is frequently relied upon by the Respondent in establishing that a violation was committed.
Whether an animal was suffering, and could not, then, be loaded or transported without undue suffering during the expected journey, is a question of fact to be determined in each case by the condition of the animal at the time and the circumstances of the expected journey.
The evidence on this matter is that on February 24, 2004, the transporter, L. Bilodeau et Fils, delivered a load of 93 pigs to Establishment #330 in St-Henri. Included in the load was a pig, found by the veterinarian called by the Respondent, Dr. Jeanne Dufour, to be in a situation of severe distress. The pig was identified bearing tattoo number 20911 as originating from the Applicant.
Dr. Dufour testified, supported by photographs, that the pig in question was suffering from a large abscess of about 5 inches in its right back leg which had caused the leg to swell to grotesque proportions. The abscess was open in places and oozing fluids. The skin on the swollen leg was tender and warm to the touch. Dr. Dufour concluded that the condition of the abcess and swelling pre-existed considerably the transport of that day by a minimum of 24 hours.
The distressed pig evidenced suffering from the effects of the abscess. It could not walk or place weight on the injured leg, and appeared lethargic, maintained a rounded back
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position and did not move away from humans approaching it, as would normally be the case. It clung close to the walls of the pen and groaned throughout Dr. Dufour’s inspection. She ordered the animal to be put down. The Tribunal concludes that the pig, when examined by Dr. Dufour, was suffering unduly.
The Applicant, in his initial request for a review dated August 26, 2004, raised a number of defences. Firstly, he denied delivering the pig identified as 20911. However, the Agency, in its written observations to the Tribunal, declared that the transporter, Mr. Bilodeau, had confirmed that the pig in question originated from the Applicant. This issue was not seriously pursued at the oral hearing and Dr. Dufour confirmed that she had personally seen the tattoo number. The Review Tribunal is satisfied that the animal found to be suffering belonged to the Applicant.
Secondly, the Applicant claimed that he was not responsible for the injury caused to the pig that occurred after he had placed his pigs under the control of the transporter. M. Gaetan Gagnon testified on behalf of the Applicant that the animal in question was able to walk easily on all four legs and showed no signs of distress when delivered to a holding compound before transport. He stated that the open wounds seen on the abscess and other marks on the ears and left rear member of the pig were likely caused by other pigs which had bitten pig 20911. He added that the pig had been kept in an isolated pen for over 6 weeks to enable it to recover sufficiently from the abscess in the leg to allow it to be transported .
He had transported it to a temporary holding pen at Honfleur from where it was transported (after a wait of about 3-4 hours) by L. Bilodeau et Fils to St-Henri. He testified that the suffering described by Dr. Dufour was caused by the other animals; either while awaiting transport in the holding pen or during the transport. He acknowledged in cross-examination, however, that although he had maintained the animal in isolation throughout its recovery and during transportation to Honfleur, he had nevertheless left it in a common holding pen with the other animals, where he states the animal must have suffered from the attacks of other animals.
Even accepting Mr. Gagnon’s evidence, it is clear from all the evidence before the Tribunal that the pre-existing condition of the pig’s abscessed leg, when delivered by Mr. Gagnon, made it likely that it would suffer unduly during the expected journey. When an owner causes a pig with such an obvious and serious infirmity to be transported even though the pig at the beginning of the trip may not be manifesting signs of undue suffering, the likelihood of suffering during loading and transportation should be anticipated. In this case, for example, it should have been anticipated by Mr. Gagnon that by travelling with other pigs, undue suffering would occur to the pig with a significantly abscessed leg.
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Accordingly the Tribunal is satisfied that the Respondent has established, on a balance of probabilities, that the pig could not have been transported for the expected journey without under suffering. It is no defence to a violation under the Regulations to claim that the undue suffering of animal was caused by other animals when this eventuality was forcibly something that could happen during the expected journey.
Dated at Ottawa this 5th day of August, 2005.
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Peter Annis - Member