RTA # 60357
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 142(b) of the Health of Animals Regulations, alleged by the Respondent, and requested by the Applicant pursuant to subsection 9(2)(c) of the Agriculture and Agri-Food Administrative Monetary Penalties Act.
David Voss, Applicant
- and -
Canadian Food Inspection Agency, Respondent
CHAIRMAN BUCKINGHAM
Decision
[1] Following a review of all written submissions, the Tribunal, by order, determines the Applicant committed the violation and is liable for payment of the penalty in the amount of $500.00 to the Respondent within 30 days after the day on which this decision is served.
REASONS
The Notice of Violation
[2] The Notice of Violation #0809ON330802 dated April 9, 2009, alleges that the Applicant, on or about 16:00 on the 15th day of January 2009, at Proton Station, in the province of Ontario, committed a violation, namely: Transport or cause to be transported animals to wit: horses, without adequate drainage or absorption of urine contrary to provision 142(b) of the Health of Animals Regulations.
The Record
[3] The Applicant (Mr. Voss) requested a written review of the Notice of Violation, in English on April 28, 2009.
[4] Written representations for Mr. Voss were made by Jack D. Hennan in an undated letter stamped by the Tribunal, "Received April 28, 2009." No written representations were made in this matter by Mr. Voss himself.
[5] The Respondent (CFIA) submitted its report on May 27, 2009. It also provided additional written representations on July 2, 2009.
The Incident
[6] Both parties have received copies of the other's submissions and the record shows the following facts. Horses were loaded into the Applicant's trailer in Minnesota on January 14, 2009 and hauled by truck on January 15, 2009 to the Canadian slaughter facility at Proton Station, Ontario known as Establishment 418. Upon the arrival of the truck and trailer at Proton Station all but one of the horses disembarked from the trailer into the slaughter facility. The remaining horse was found dead and had to be removed from the trailer. What is at issue is the condition of the trailer in which the horses were travelling.
The Evidence
[7] CFIA representations include the following submissions from Dr. Brenda Stewart, a veterinarian employed by the CFIA who was on duty at Establishment 418 in Proton Station, Ontario on January 15, the day that the alleged violation by Mr. Voss occurred: Notes (TAB 1 of Annex E of the May 27, 2009 submission), a non-compliance report (TAB 2 of Annex E of the May 27, 2009 submission), and photos taken on January 15, 2009 (TAB 5 of Annex E of the May 27, 2009 submission).
[8] Evidence from the CFIA also includes photos of the drivers' licences of Mr. Michael Hornick and Mr. Michael Kotschevar. It is not contested that the truck and trailer carrying the horses were driven by Mr. Michael Hornick and Mr. Michael Kotschevar, who had taken turns driving in order to drive straight through from Minnesota to Ontario.
[9] The evidence of Dr. Stewart is that the drivers' employer's name is HD Voss Trucking, and that for both drivers this was their first load of horses transported.
[10] Corporate and company searches were conducted by Thomas Rippey, a Senior Investigator with USDA, APHIS, IES in Romulus Michigan, USA at the request of Mr. Desroches, Investigator for the CFIA, to determine the legal status of Voss Trucking. In a report by Mr. Rippey sent to Mr. Desroches, Mr. Rippey states that following a corporate name search of Voss HD Trucking and HD Voss Trucking, no corporate registration matches were found but that the company name H D Voss Trucking does list Voss, David as its owner. Mr. Rippey concludes that Voss is a solely owned operation with no public stock offerings.
[11] The hand written notes of Dr. Brenda Stewart at TAB 1 are titled: "January 15/09 - Hennen Load" and contain the following entries on page one: "5 + 1 DOA back compat Chestnut mare Rt. lateral. Bloated. Stiff. No bedding! Lots of shit!" It is not contested that this is the load that contained the 30 live horses and one dead horse that arrived at Proton Station on January 15th, 2009 driven by Hornick and Kotschevar.
[12] In her "Inspector's Non Compliance Report" (Tab 2) dated January 15, 2009, Dr. Stewart reports that "When the trailer was backed up to the loading dock we unloaded 5 horses from the rear compartment. This compartment floor was covered in wet, soupy manure, with no evidence of sawdust, straw or any bedding material whatsoever. There was a lot of exposed areas of the metal floor. A chestnut mare was lying dead in right lateral recumbency with her head partially propped up against the partition door. She was quite stiff and had started to bloat. There was some evidence of blood on the door. I asked the driver if he had placed bedding in the trailer prior to loading and he said they had put sawdust. I told him I didn't think that was true based on the evidence in the trailer. We moved the dead horse over to the side of the compartment in order to open part of the partition door and allow the next compartment of horses off to access the compartment the stuck horse was in. This compartment was also full of wet, soupy fecal material."
[13] Dr. Stewart's evidence includes 7 photos that she took on January 15, 2009, of the truck, trailer and horses in question. Photos 2, 5, 6 and 7 reveal the state of the trailer's floor with respect to manure and the provision and absorption of urine from the horses. Photo 2 gives a rear view of the trailer and shows mounds of manure that have accumulated against the back door of the trailer. Photo 5 provides a clear view of the head and front quarter of the dead horse and the floor and wall areas of the trailer around it. Photo 6 provides a rear view of the rear and hind quarter of the dead horse and the floor and wall areas of the trailer around it. Finally, Photo 7 provides a view of the empty trailer compartment. These photos substantiate, to my satisfaction, Dr. Stewart's written observations that the "compartment floor was covered in wet, soupy manure, with no evidence of sawdust, straw or any bedding material whatsoever. There was a lot
exposed areas of metal floor."
[14] Mr. Voss has made no direct representations in this case. However, in an undated letter a Mr. Jack Hennan writes to the CFIA "also on the behalf of David Voss trucking". In that letter, Mr. Hennan writes: "I-we-have hauled over 100 loads of horses to Canada thru your ports in North Dakota to a Canadian plant in Newdorf over the past 2 years. Never had we had any more sawdust in any trailer than we had in January on the First load to Proton Station. No one ever questioned this before so it set a presidant (sic). And we were never notified we needed this especially after a 900 mile haul in 10 below weather it would Freeze if there was any urine left in a horse."
Analysis
[15] Section 142 of the Health of Animals Regulations C.R.C., c. 296 (Regulations) reads as follows:
142. No person shall transport or cause to be transported animals in a railway car, motor vehicle, aircraft or vessel unless
(a) each animal is able to stand in its natural position without coming into contact with a deck or roof; and
(b) provision is made for the drainage or absorption of urine from all decks or levels.
[16] It is important to note that paragraph 142(b) states that "provision is made for the drainage or absorption of urine from all decks or levels." It does not read "adequate provision" or "adequate drainage" or "adequate absorption" of urine. Nor does the paragraph specifically mention what exact provisions, if any, must to be made for the drainage or absorption of fecal matter other than urine.
[17] There is no direct evidence from the Applicant Voss or the Applicant's employee drivers Hornick and Kotschevar that they made any provision for the drainage or absorption of urine. There is indirect evidence from Mr. Hennan that implies there may have been some sawdust in the trailer that delivered the horses to Proton Station. There is also indirect evidence from the notes of Dr. Stewart that the driver Hornick replied to Dr. Stewart when questioned that they had put sawdust in the trailor prior to loading the horses.
[18] There is direct evidence from Dr. Stewart of the CFIA on the issue, both in terms of her notes and her photos.
[19] The photos and the evidence of Dr. Stewart lead me to the conclusion that the Applicant or his employees did not provide for the drainage or absorption of urine from all decks or levels. The direct evidence submitted by Dr. Stewart is that she saw "no evidence of sawdust, straw or
any bedding material whatsoever". I accept that evidence which is supported by the photos that she has taken.
[20] However, should the evidence of Dr. Stewart be considered insufficient to support the outcome of this decision, it is my finding that if the drivers distributed any sawdust for the trailer floor for the transportation of the horses from Minnesota to Ontario, it was in amounts too small to meet the threshold envisaged by paragraph 142(b) of the Regulations. The paragraph employs the word "provision" which in the Canadian Oxford Dictionary is defined as: "1(a) the act or an instance of providing, (b) something provided, (c) preparation that is made to meet future needs or eventualities."
[21] Paragraph 142(b) of the Regulations is located in Part XII entitled "Transportation of Animals", a Part whose regulations safeguard animal health, safety and protection from sickness and injury while travelling. In this context, the protection offered to animals afforded by paragraph 142(b) is that "provision" must be made such that animals will not be exposed to unnecessary risks of falling and injuring themselves and from sickness or injury that might occur from contact with urine or urine solutions mixed with fecal matter accumulating on vehicle floors. In this regard, the third definition cited in paragraph 20 above best captures the requirement set down for transporters of livestock. The sawdust or any other bedding material provided by haulers for the transportation of animals must be sufficient in quantity for the preparation to meet the future needs or eventualities of the haul. As conditions change, so will the absolute quantity of sawdust or other bedding.
[22] In the present case, I find that the Applicant Voss, through his employees, did not meet the required standard for the provision of drainage or absorption of urine from some of the decks or levels of his trailer that hauled the horses in question.
[23] In this case, the Respondent has established that:
1. the loading (including the loading itself) or transportation (including the fact of having transported) occurred;
2. the loading or transportation occurred on a railway car, motor vehicle, aircraft or vessel;
3. the cargo loaded or transported was an animal; and
4. the Applicant failed to meet the required standard for the provision of drainage or absorption of urine from some of the decks or levels of his trailer that hauled the horses in question.
[24] The evidence is not contested on the first three elements. The fourth element has been established by the CFIA with the evidence and photos of Dr. Stewart. The indirect evidence of the Applicant or his representative Hennan or his driver employees is insufficient to rebut the evidence of the Respondent on this point.
[25] In light of this analysis of the evidence, the Tribunal concludes that the Respondent has established, on a balance of probabilities, that the violation was committed. Therefore, the Tribunal orders the Applicant to pay the penalty in the amount of $500 within 30 days after the day on which this decision is served.
Dated at Ottawa, this 17th day of July, 2009.
_______________________________
Dr. Donald Buckingham - Chairman