RTA# 60179
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 provision 9(2)(c) of the Agriculture and Agri-Food Administrative Monetary Penalties Act.
Réseau Encans Québec Inc., Applicant
- and -
Canadian Food Inspection Agency, Respondent
CHAIRMAN BARTON
Decision
Following 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
.../2
REASONS
The Applicant did not request an oral hearing.
The Notice of Violation dated April 25th, 2005, alleges that the Applicant, on the
22nd day of December, 2004, at St-Isidore, in the Province of Quebec, committed a violation, namely: “A chargé des bovins par véhicule moteur qui, pour des raisons d’infirmité, de maladie, de blessure, de fatigue ou pour toute autre cause, ne pouvait être transportés sans souffrance indue au cour du voyage prévu”, contrary to provision 138(2)(a) of the Health of Animals Regulations, which states:
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.
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”.
.../3
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 salient evidence on this issue is as follows:
The uncontested evidence of the Respondent is that the Applicant loaded and caused to be transported 40 cull dairy cows from its auction at St-Isidore to the Colbex slaughterhouse in St-Cyrille-de-Wendover, a distance of approximately 123 kilometres. Without evidence to the contrary, the Tribunal assumes this was a normal journey with no unforseen circumstances.
The load arrived at 1:30 p.m. on December 22nd, 2004, and was inspected on arrival by Dr. Peter O’Donnell, a veterinarian employed by the Respondent.
The full particulars of Dr. O’Donnell’s inspection are set out on page 7 of the report and also in his non-compliance report set out at tab 2. It is not necessary to repeat these details.
Of the load of 40, 1 cow was dead on arrival, 7 more had to be euthanised as they were unable to get up and 21 were either totally or partially condemned as unfit for human consumption.
The Applicant made written submissions dated May 9th, 2005 and June 15th, 2005. In these submissions, the Applicant admits loading the cattle but states that “the cows were all in good enough shape to make the journey that your report estimates to have lasted 1.5 hours”. The Applicant speculates that “if the cows had shown symptoms such as those
.../4
described in the report the animals would not have been able to get into the trailer under their own power and would immediately been set aside until a decision was made by the slaughterhouse”. The Applicant further suggests that the time between loading and inspection was much longer than 1.5 hours and implies this may have contributed to the condition of the cattle.
The person making representations on behalf of the Applicant, however, does not have any direct knowledge of the condition of the cattle just prior to loading, which is the critical time to assess whether the animals were fit for loading and transporting. His evidence is based on speculation and hearsay .
The Applicant further alleges its responsibility concluded once the cattle were all loaded. This may very well be the case, but this violation relates to the time when the Applicant made its decision to cause the loading and transporting of these animals.
From the Respondent’s evidence, it is clear that the deplorable condition of some of the cattle existed well prior to the time of inspection and that symptoms of undue suffering would have been evident at the time the Applicant made its decision to load these animals for transport to the slaughterhouse.
The Tribunal is satisfied the Respondent has established, on a balance of probabilities, that the Applicant committed the violation.
Dated at Ottawa this 22nd day of August, 2005.
___________________________________
Thomas S. Barton, Q.C., Chairman