AGRICULTURE AND AGRI-FOOD ADMINISTRATIVE
MONETARY PENALTIES ACT
DECISION
In the matter of an application for a review of the facts relating toof 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.
Les Fermes C. Girard Inc., Applicant
-and-
Canadian Food Inspection Agency, Respondent
MEMBER H. LAMED
DecisionECISION
Following an oral hearing and a review of all written and oral submissions of the parties, the Tribunal, by order, determines that the Applicant did not commit the alleged violation.
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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 hearing was held inat Sherbrooke on May 28, 2008.
The Applicant was represented by its counsel, Ms. Michèle Gérin.
The Respondent was represented by its counsel, Ms. Louise Panet-Raymond.
Notice of Violation No. 0708QC0141, dated November 8, 2007, alleges that the Applicant, on August 6, 2007, atat St-Alexandre, in the in the Province of Quebec, committed a violation, namely:, namely, “Avoir fait transporter des animaux dans un véhicule à moteur qui, pour des raisons d’infirmité, de maladie, de blessure, de fatigue ou pour toute autre cause, ne peut être transporté sans souffrances indues au cours du voyage prévu ”, contrary to provision 138(2)(a) of the Health of Animals Regulations, which reads 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;
Theis case concernss three hogs delivered on August 6, 2007, to a slaughterhouse operated by Aliments Asta Inc. (“the Establishment”). The parties dido not contest that theose three hogs should not have been transported. What wais contested, however, wais the identity and the origin of said hogs, and that wais the issue the Tribunal had tomust consider.
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In the course of presenting its evidence, the Respondent produced a document entitled [translation] “Bill of lading” (Tab 2), an official acknowledgment of receipt issued by the Establishment when it receives a delivery. The document statess that five lots of hogs from three different producers were delivered on August 6, 2007. The tattoo number for each load wais indicated atat Tab 2 It also appear. at Also indicated at Tab 2, the hogs from the Applicant may have borne the numbers 08883 or 08893; those from 2418-7064 Québec Inc., number 08683; and those from Le Gîte Porcin Inc., numbers 15390 or 05931.
The parties agreed that theose tattoos came from these producers and, in the case of the Applicant, were applied a few days before shipmenttransport, according to the testimony of Jonathan Girard’s testimony. At the bottom of Tab 2, there wais a note to the effect that the three detained hogs bore tattoo No. 08893, which indicatesthus indicating that they came from the Applicant.
However, the Non-Compliance Report (Tab 8) prepared by Dr. Yves Lamothe, the veterinarian on duty at the Establishment at the time of the delivery in question and author of the ante-mortem examination of the three detained hogs, stateds the following in the last paragraph:
[translation]
It should be noted that the hogs dido not bear anythe tattoo numbers normally found on hog skinthe skin of hogs. However, the information provided by the truck driver, Mr. Bryan Fontaine, which wasand written on the bill of lading for the delivery of the hogs and on report CFIA/ACIA 1438, corresponds to tattoo No. 08893. The tattooed carcass number also appeared oncan also be seen in the computerized electronic compilation forof the August 6, 2007 slaughter on August 6, 2007, and the numbers 08883 and 08893 weare the two possible tattoos for detained hogs 1, 2 and 3. Both of those numbers are used by Les Fermes C. Girard of Ayers Cliff use both of these numbers to identify their animals.
The Tribunal immediately noteds that no other documents concerning the carcasses and tattoos wereas introduced, and there wereis no other documents on that subject in the Agency’s report submitted to the Applicant and the Tribunal. It should also be noted that the file containing the Agency report in this case was file bears the number 1436, whereas the Report, at Tab 8, referss to the Agency report number 1438. Thisat discrepancy also remained unresolvedwas not cleared up either.
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In his testimony, Dr. Lamothe reiteratedmerely repeated that scraping the skin of the three hogs had not revealed uncovered any tattoos in any of theall three cases. He stateds that he had relied on [translation] “documents” from the Establishment—without specifying which one in particularalthough he could not say exactly which ones, other thanapart from the Bill of lading (Tab 2)—to conclude that the hogs had comecame from the Applicant. On cross-examination, Dr. Lamothe stated that he knew that the truck, which that had unloaded the three hogs, was carrying several loads from several producers, but could not say whether the Applicant’s hogs from the Applicant had been loaded and transported separately from the others.
The uncontradicted, and highly credible testimony of Jonathan Girard, who is the son of the owner of the Applicant and works forin the company, clarified cleared up this important element of the story for the Tribunal. Mr. Girard explained that he is in charge of sorting hogs forto be sent to the slaughterhouse. He weighs the hogs about one week prior to shipmentbefore they are transported, and he indicated stated that at least as far was hog #2 was concerned, he would have noticed its pitiful condition state during the weigh-ining and would have euthanized it immediately. He stateds that he himself tattooed 42 hogs himself with the number 08893 on the Saturday morning before they were shipped and confirmeds that none of the hogs were ailingsuffering. He also stateds that he took care of loading that lot. The truck was equipped withhad three decks, and the Applicant was the second producer on the truck driver’s route. The driver had loadedspread the first producer’s hogs on allload over the three decks of his truck, so there were already hogs on all three decks when the Applicant’s load bearing the tattoo 08893 was loaded. The driver also loaded spread the Applicant’s load ontoover all three decks of the truck. Later, hogs from two other producers were loadeddistributed in the same manner onto allover the three decks.
The Tribunal determinedfinds that hogs from four producers were thus intermingled in the truck. There was no way to identify the hogs, apart from their tattoos, and the three detained hogs did not have any.
The Tribunal acceptss Ms. Gérin’s argument that the Bill of lading, inat Tab 2, which indicateding that the detained hogs bore tattoo No. 08893, wais falsified. This was evident in light of is clear from the Non-Compliance Report (Tab 8), which noteds that the three detained hogs did not have tattoos. The Respondent did not providegive any explanation for thisat flagrant contradiction.
The TribunalCommission concludeds that the Respondent did not meetdischarge the burden of proof in with respect toof the identity and origin of the detained hogs and, worse yetstill, did not adequately verify its own file before issuing the Notice of Violation.
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ConsequentlyAccordingly, the Tribunal declares that the Applicant did not commit any violation.
Issued inDated at Montréal, on this 10th day of September, 2008.
____________________________ Member H. Lamed