RTA # 60354
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)(a) of the Health of Animals Regulations, alleged by the Respondent, and requested by the Applicant pursuant to subsection 8(1) of the Agriculture and Agri-Food Administrative Monetary Penalties Act.
Ferme Prébel Inc., Applicant
- and -
Canadian Food Inspection Agency, Respondent
MEMBER H. LAMED
Decision
Following an oral hearing and a review of all oral and written observations, the Tribunal, by order, determines that the Applicant did not commit the violation.
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REASONS
The Applicant requested a hearing pursuant to subsection 15(1) of the Agriculture and Agri-Food Administrative Monetary Penalties Regulations.
The hearing was held in Trois Rivières, province of Quebec, on April 20th, 2009.
The Applicant was represented by Denise Béland.
The Respondent was represented by Anne-Marie Lalonde.
René Béland, the President of the Applicant, testified on behalf of the Applicant.
Sylvie Lavoie, Inspector, testified on behalf of the Respondent.
This is an application for a review of the facts of a Notice of Violation with warning under paragraph 143(1)(a) of the Health of Animals Regulations C.R.C. c. 296 c. 21.
Notice of Violation 0607QC0066 dated October 26, 2006 alleges that the Applicant, on the 14th day of the month of June, 2006, at St-Léon-le-Grand, in the province of Quebec, committed a violation, namely: “A transporté des veaux par véhicule moteur, qui pouvaient se blesser, à cause d’une construction inadéquate du véhicule moteur”, contrary to provision 143(1)(a) of the Health of Animals Regulations, which reads 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;
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The evidence
Sylvie Lavoie, animal inspector for the Respondent since 1999, testified that she was on duty at the St-Léon-le-Grand sorting centre on June 14, 2006. She explained that the centre is a building with three decks, separated from one another by mobile doors made
of boards. Other mobile doors, also made of boards, separate the decks from the inside of the building. Inside the building, there is an office to the left and a stowage area. Ms. Lavoie provided a sketch of the sorting centre, which shows the facility’s sections as described above, labelled I-1. The Applicant does not contest that this sketch illustrates the sections of the sorting centre. Ms. Lavoie testified that when the animals arrived, she went inside the building, in the stowage area, so that she would not be in the central area where the animals were after being unloaded.
Ms. Lavoie identified her signature on the animal transportation Inspection Report of June 14, 2006. (Tab 2 of the Respondent’s Report). Her Inspection Report indicates that the first carrier arrived at 9:37 a.m. at Deck #2, the one reserved for trailers. She testified that while the animals were being unloaded from this trailer, as usual she was inside the centre, in the stowage area. Mr. Béland arrived at Deck #1 (reserved for pick-up trucks) at 9:44 a.m. He parked with the back of his truck towards the building. Ms. Lavoie said that she waited inside until the animals were unloaded. The moving doors between Decks 1 and 2 were open. Once the unloading was completed, she went to inspect Mr. Béland’s truck. Her observations are contained in the Non-Compliance Report (Tab 5 of the Respondent’s Report). She repeated them at the hearing, indicating that the calves were not attached, that Mr. Béland’s truck had no roof, no rear barrier aside from the truck’s metal tailgate, and no barriers on the sides. She indicated that there were planks nailed on the sides and behind the cab, with gaps between the planks. There is a sketch of the truck drawn by Ms. Lavoie at Tab 3 of the Respondent’s Report. Ms. Lavoie testified that she spent three or four minutes beside Mr. Béland’s truck as Mr. Béland was getting ready to leave, but she also indicated that she was inside the building in Deck 2 near the doors when Mr. Béland left. She said she spoke to him, but does not remember what she said to him. Her Report contains a statement to the effect that “M. Béland n’était pas réceptif à mes arguments” (Mr. Béland was not receptive to my arguments).
Mr. Béland testified that when he arrived at the St-Léon-le-Grand sorting centre on June 14, 2006, there were no other trucks, and there was nobody outside. He said that he removed the tailgate of his truck to unload the calves.
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Mr. Béland provided 5 photos of his truck, appended as exhibit R-1. The truck is a GMC pick-up, with licence plate number 595 CXZ. It should be noted that this same plate number appears next to Mr. Béland’s name on the animal transportation Inspection Report prepared by Ms. Lavoie. The photos show a truck with panels forming the walls on three sides and measuring approximately 5 feet in height from the floor of the cab of
the truck without boards or gaps, other than a few inches between the frame and the top of the panels. The panels are attached to a wood frame that is anchored to the truck with bolts. A fourth panel, this one mobile, is used to close the back of the truck, and is also visible. Mr. Béland testified that his truck has had panels like this since 1992, and he has never had any problems or received any reprimands when making deliveries.
Mr. Béland testified that when Ms. Lavoie appeared next to the truck, he was placing the tailgate in the cab of his truck. He said he does not know whether Ms. Lavoie saw him do this because she was writing. He said that Ms. Lavoie only asked him for his name and the name of the farm, and did not give him any other explanation.
Analysis
The Tribunal has two contradictory testimonies, except in regard to the plate number of the truck in question. The sketch of the truck drawn by Ms. Lavoie, with large gaps between the wood boards does not look anything like the photos of Mr. Béland’s truck, which show the wood panels installed in a mounting attached to the truck. Perhaps the difference between the two descriptions of the truck is due to the fact that Ms. Lavoie was looking at the truck from a certain distance, given that according to her own testimony she was inside the centre when Mr. Béland was unloading the calves, and when she walked up to the truck it was only to get and write down Mr. Béland’s address. This distance also sheds doubt on her statement that Mr. Béland’s calves were not attached when they arrived.
It stands to reason that when Ms. Lavoie was next to the truck the tailgate would no longer have been on since the unloading was already completed. Ms. Lavoie was not very diligent in her inspection if she did not even make the effort to look in the truck, where she would have seen the fourth panel. The Tribunal points out that it will not consider Ms. Lavoie’s comment about Mr. Béland’s “receptiveness” to her explanations. First of all, the evidence is contradictory in regard to what was said by Ms. Lavoie to Mr. Béland: Ms. Lavoie herself does not remember what she said, and Mr. Béland testified that she only asked him for his address. Second, this is not a factor that is pertinent to determining whether or not there was a violation with warning under paragraph 143(1)(a), and seems to be an attempt to shed a negative light on the case.
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Between the contradictory descriptions of the same truck, identified by its plate number, the Tribunal will accept that of Mr. Béland. The testimony of Ms. Lavoie is contradictory, and it appears that she was too far from the truck to see it well. For these reasons, the Tribunal concludes that the Respondent did not establish the elements of the violation with warning.
Dated at Montréal, this 10th day of June, 2009.
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Helena Lamed, Member