RTA #60351
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 148(1)(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.
1301479 Ontario Inc., Applicant
- and -
Canadian Food Inspection Agency, Respondent
CHAIRPERSON BARTON
Decision
Following an oral hearing and a review of all oral and written submissions, 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 Act.
The hearing was held on April 15th, 2009, in Peterborough, Ontario.
The Applicant was represented by Mr. Neil Sutherland, who also gave evidence on its behalf.
The Respondent was represented by its counsel, Ms. Louise Pampalon.
Evidence for the Respondent was given by Dr. Katie Bernard.
Having ascertained each party had copies of the following key documents, I entered them on the record as evidence for the purpose of the hearing:
• Notice of Violation dated November 17th, 2008;
• Letter dated December 11th, 2008, from the Applicant requesting this review;
• Case report received from the Respondent on December 31st, 2008;
• Letter dated February 2nd, 2009, from the Applicant in response to the Respondent’s case report;
• Letter dated February 20th, 2009, from the Respondent’s counsel, enclosing additional documentation;
• Letter dated March 23rd, 2009, from the Respondent’s counsel requesting an interpreter;
• Letter dated March 27th, 2009, from the Applicant with further submissions.
During the course of the hearing, I entered one document in evidence as an exhibit:
• Respondent’s Exhibit #1 being the Tribunal’s decision in West Central Air Ltd., v. Canada (Canadian Food Inspection Agency), RTA #60120.
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The Notice of Violation #0809QC0163 dated November 17th, 2008, alleges that the Applicant, on the 19th day of August, 2008, at Massueville, in the province of Quebec, committed a violation, namely: “confined equines in a motor vehicle for longer than 36 hours”, contrary to provision 148(1)(a) of the Health of Animals Regulations, which states:
148. (1) Subject to subsections (2), (3) and (7), no person shall confine in a railway car, motor vehicle, aircraft or vessel
(a) equines, swine or other monogastric animals for longer than 36 hours; or
Relevant facts
The Applicant is in the business of transporting livestock. In this case, the Applicant agreed with the shipper, Keith Tongen, to transport a load of 27 horses from Brownton, Minnesota, to Viande Richelieu Meat Inc., in Massueville, Quebec.
As explained by Mr. Neil Sutherland, president of the Applicant, he had on call several transport drivers with whom he had made prior sub-contracting arrangements to drive his trailers. In this case, he notified one of his drivers, Glen Hill, of the shipment from Brownton and Mr. Hill agreed to take it. The Applicant is paid by the shipper based on mileage.
Mr. Sutherland indicated there are a number of ways drivers are compensated, but in the case of Mr. Hill, the trailer was provided by the Applicant along with the license and insurance and the driver was paid a percentage of the compensation received by the Applicant.
Although there is some discrepancy as to the exact number of hours between the time of loading of the horses in Brownton and their unloading in Massueville, it is not disputed that the horses were loaded on the morning of August 17th, 2008 and were unloaded on the morning of August 19th, 2008. There was a total elapsed time for the trip of approximately 47 hours (27 hours from Brownton to the border and a further 20 hours from the border to Massueville).
Mr. Sutherland admitted he had engaged the Applicant’s services for this load and that the horses had been confined in the trailer for more than 36 hours without being fed or watered.
Violation committed
I agree with the counsel for the Respondent that in the circumstances, subsections 148(2), (3) and (7) of the Health of Animals Regulations do not apply.
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I find the Respondent has established, on a balance of probabilities, that a violation was committed under paragraph 148(1)(a).
Status of driver
Mr. Sutherland contended that the driver, Glen Hill, was responsible for the load of horses as a sub-contractor of the Appliant and that the Applicant had no control over the driver’s actions during the transportation from Brownton to Massueville.
On the other hand, counsel for the Respondent argued that the facts supported a finding that Mr. Hill was an employee of the Applicant at the time, but if the tests to establish employment were not met, then in the alternative Mr. Hill was an agent of the Applicant.
In support of this position, counsel referred the Tribunal to its earlier decision in West Central Air Ltd. v. Canada (Canadian Food Inspection Agency), RTA #60120. Applying the tests referred to in that case, I find that Mr. Glen Hill was not an employee, but was an agent of the Applicant and at all material times was acting within the scope of the agent’s authority.
Accordingly, the Applicant is liable for the violation by virtue of subsection 20(2) of the Agriculture and Agri-Food Monetary Penalties Act which states as follows:
20. (2) A person is liable for a violation that is committed by any employee or agent of the person acting in the course of the employee’s employment or the scope of the agent’s authority, whether or not the employee or agent who actually committed the violation is identified or proceeded against in accordance with this Act.
Further, counsel for the Respondent submitted that the Applicant was the holder of a licence to transport as evidenced by Tab 4 of the Respondent’s report. By virtue of being a holder of this licence and by virtue of the fact the violation related to an activity under that licence, counsel submitted that subsection 20(1) of the Agriculture and Agri-Food Monetary Penalties Act, applied. This states:
20. (1) The holder of a licence, certificate, letter of accreditation, permit, notice or other document issued under an agri-food Act is liable for a violation that is committed in respect of any matter relating to any activity or requirement under that document, whether or not the person who actually committed the violation is identified or proceeded against in accordance with this Act.
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Having found the Applicant committed the violation as set out in the Notice of Violation, it is not necessary to decide whether subsection 20(1) applies in this case.
However, there was no evidence given as to the circumstances under which the licence was given and it is unclear from the face of the document whether the licence was granted simply to the driver, Glen Hill, or to both the driver and the Applicant.
Further, although the sub-title above section 148 of the Health of Animals Regulations refers to animals in transit, the violation relates solely to the confinement of animals in a motor vehicle, whether or not they are being transported. I question whether the mere confinement of animals is a “matter relating to any activity or requirement” under the licence to transport.
Gravity Value
I agreed with the request by the Respondent’s counsel to reduce the gravity value for “harm” to 3 points, which then reduced the total gravity value to 6 points. As explained to the Applicant, this did not result in a reduction in the overall assessed penalty of $2,000.00.
Nature of violation
Violations under the Agriculture and Agri-Food Administrative Monetary Penalties Act are considered to be in the nature of “strict liability” violations. This means that the Applicant can be held responsible for a violation committed by someone else without the Applicant’s knowledge or consent, even if the Applicant was acting in good faith and had the best of intentions.
In this case, it was the driver, Glen Hill, who appears to have committed the violation. The Applicant, which engaged Mr. Hill’s services to drive the load, is held responsible solely by virtue of subsection 20(2) above.
As Mr. Sutherland pointed out, this situation is even more unsettling considering the Respondent’s inspector at the border would have known from the documentation how long the horses had been in the trailer from the time of transport to the border. He would have also known that, coupled with the anticipated time required to transport the load from the border to Massueville, the 36 hour time limit in the Health of Animals Regulations would have been challenged.
Unfortunately, I am not at liberty to take this into account.
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The Tribunal wishes to point out to the Applicant that this is not a criminal or a federal offence but a monetary violation, and that it has the right to apply after 5 years to have the notation of this violation removed from the Minister’s records in accordance with subsection 23(1) of the Agriculture and Agri-Food Administrative Monetary Penalties Act, which states as follows:
23. (1) Any notation of a violation shall, on application by the person who committed the violation, be removed from any records that may be kept by the Minister respecting that person after the expiration of five years from
a) where the notice of violation contained a warning, the date the notice was served, or
b) in any other case, the payment of any debt referred to in subsection 15(1),
unless the removal from the record would not in the opinion of the Minister be in the public interest or another notation of a violation has been recorded by the Minister in respect of that person after that date and has not been removed in accordance with this subsection.
Dated at Ottawa, this 28th day of April, 2009.
_________________________________ Thomas S. Barton, Q.C., Chairperson