Date: 20000420
Docket: T-2990-92
OTTAWA, ONTARIO, THE 20TH DAY OF APRIL, 2000
PRESENT: THE HONOURABLE MADAM JUSTICE TREMBLAY-LAMER
Between:
WADACERF INTERNATIONAL INC.
Plaintiff
- and -
HER MAJESTY THE QUEEN and
THE MINISTER OF AGRICULTURE CANADA
Defendants
O R D E R
The plaintiff's action is upheld in part. I award costs on the portion of the action for which the Crown was found liable.
| "Danièle Tremblay-Lamer" |
| J. |
Certified true translation
Martine Brunet, LL.B.
Date: 20000420
Docket: T-2990-92
Between:
WADACERF INTERNATIONAL INC.
Plaintiff
- and -
HER MAJESTY THE QUEEN and
THE MINISTER OF AGRICULTURE CANADA
Defendants
REASONS FOR ORDER
TREMBLAY-LAMER J.:
[1] The plaintiff sues Her Majesty in damages alleging negligence by officials of Agriculture Canada during the unloading of fallow deer at Mirabel airport and unreasonable quarantines that paralysed its business operations.
[2] Pursuant to an import protocol between the governments of Australia and Canada, the plaintiff imported 663 fallow deer from Australia under an import permit1 duly issued by Agriculture Canada on May 27, 1991.
[3] On June 1, 1991, the 663 fallow deer arrived by plane at Mirabel airport. While being unloaded, some were injured.
[4] Once they arrived at the plaintiff's operations, the deer were placed in quarantine by Agriculture Canada in accordance with the requirements of the import permit,2 until October 1, 1991 ("the first quarantine").
[5] Between June 1, 1991 and October 1, 1991, a large number of deer died.
[6] On December 19, 1991, following a sample taken on December 6, 1991, the plaintiff's farm was again placed in quarantine because of contagious tuberculosis in a bison carcass; this quarantine was lifted on April 8, 1992 ("the second quarantine").
[7] The plaintiff alleges that the defendants, through their acts or omissions, prevented the safe unloading and carriage of the fallow deer from Mirabel airport to the plaintiff's farm, directly causing the loss of a part of the herd.
[8] The plaintiff further alleges that the defendants deliberately, and in violation of the applicable provisions, imposed unreasonable quarantine periods, paralysing its business operations.
[9] The defendants, on the other hand, submit that the Agriculture Canada employees acted professionally during the period in question and were not negligent in regard to the plaintiff. The defendants submit that the employees acted pursuant to the Health of Animals Act3 (the Act) and the Health of Animals Regulations4 thereunder (the Regulations), and in accordance with the conditions set out in the import permit.
[10] In regard to the unloading and transportation of the fallow deer, the defendants argue that they were not liable for the transportation of the deer.
[11] They also submit that even if the plaintiff could prove the quarantines were imposed arbitrarily, the Crown cannot be successfully sued given the immunity under section 50 of the Health of Animals Act.
ISSUES
| 1. Were the defendants, through their officials, negligent in relation to the unloading and transportation of the fallow deer? |
| 2. If so, did the plaintiff suffer damage as a result of this negligence? If so, is there a causal relationship between the alleged negligence and the damages as proved? |
| 3. In regard to the quarantine, does section 50 of the Health of Animals Act give the Crown immunity from this action? |
APPLICABLE LAW
[12] The plaintiff sues on the basis of subsection 3(a) of the Crown Liability and Proceedings Act,5 which provides that the Crown is liable in tort for the acts of its servants as if it were a private person of full age and capacity.
[13] Since section 2 of the Crown Liability Act refers to the concept of délit civil, reference must be had to the applicable law of delictual civil liability in the province of Quebec.
[14] Moreover, because the facts that gave rise to this litigation occurred in 1991, articles 1053 et seq. of the Civil Code of Lower Canada will apply. Thus, it is necessary to ask oneself whether, in the circumstances, the official acted as a prudent and diligent person. However, given the context of this case, the test is rather whether the inspector or veterinarian conducted himself as a prudent and diligent inspector or veterinarian would act in similar circumstances.
[15] Before determining whether the Crown is liable for the acts of its officials, it is necessary to establish the scope of the exoneration clause in the Health of Animals Act. Section 50 reads as follows:
| Her Majesty not liable 50. Where a person must, by or under this Act or the regulations, do anything, including provide and maintain any area, office, laboratory or other facility under section 31, or permit an inspector or officer to do anything, Her Majesty is not liable
|
| Non-responsabilité de Sa Majesté 50. Sa Majesté n'est pas tenue des pertes, dommages ou frais -- loyers ou droits -- entraînés par l'exécution des obligations découlant de la présente loi ou des règlements, notamment celle de fournir des terrains, locaux, laboratoires ou autres installations et d'en assurer l'entretien au titre de l'article 31. |
[16] This immunity, which can be characterized as unconditional, is granted where someone suffers damages as a result of the performance by that person of obligations arising out of the Act or the Regulations.6 It also extends to situations in which a person must permit an inspector to act. The provision, as worded in English, is revealing: "where a person must by or under this Act or the regulations do anything ... or permit an inspector or officer to do anything...."
[17] However, I am of the opinion that this immunity is relative, such that it could not be relied on in a situation in which malice or bad faith of an officer or official was at the origin of the imposed act.
[18] In this context, it is important to note that the purpose of the Act is to allow the Crown to ensure the health of persons and animals. It provides, inter alia, for the appointment of veterinary inspectors. It requires that livestock owners and veterinarians report to veterinary inspectors the presence of any reportable illness or any circumstance that is indicative in this regard. For this purpose, it provides for inspections, searches, establishment of places of inspection, quarantine of animals, prohibition of sales and the disposal of contaminated animals and things.
[19] In regard to quarantine, it is worth pointing out that sections 58 and 59 of the Regulations allow for mandatory imposition of a quarantine on any imported animal.
[20] Furthermore, both the Act and the Regulations give inspectors discretionary authority to impose a quarantine in certain circumstances.
[21] Section 22 of the Act gives an inspector the discretionary authority to declare that a place is contaminated when he suspects or determines that a disease is present and is of the opinion that it could spread or that animals entering the place could become contaminated by it. Similarly, section 5 of the Regulations provides that a veterinary inspector may order that an animal be quarantined when he suspects that it is affected by a communicable disease. And section 7 of the Regulations provides that an inspector may order that imported animals be quarantined when he discovers or suspects that they are affected by a communicable disease.
[22] These statutory provisions grant inspectors a discretion from the moment there is a mere suspicion. This, in my opinion, is a relatively low standard that requires only the presence of certain indicia on which the inspector bases his decision. It is clear that the word "suspects" does not mean that the inspector must have reasonable grounds or a firm belief in the existence of a communicable disease before imposing a quarantine.
[23] I am of the opinion that, owing to the interpretation given to the exoneration of liability clause in the Act, the Crown is not liable for the quarantines imposed by the inspectors. Since these quarantines are obligations imposed by the Act and the regulations thereunder, they enjoy the immunity under section 50 of the Act.
[24] As to the issue of the unloading and transportation of the imported animals, both the Act7 and the Regulations8 contemplate a shared liability between the carrier and Agriculture Canada. I think the immunity does not apply to these acts since this is not a situation in which an obligation under the Act has been imposed on someone. It must therefore be determined whether the officials of Agriculture Canada acted negligently in the circumstances by allowing the unloading and transportation in horse vans.
[25] In my opinion, section 50 of the Act is decisive in exonerating the Crown of liability in regard to the quarantine. However, should I be mistaken in this conclusion, I am going to analyze the evidence and draw findings of fact as to the defendants' liability in delict.
EVIDENCE
Unloading and transportation of the fallow deer
[26] Mr. Forgeot, the president of the plaintiff Wadacerf International Inc., imported 663 fallow deer from Australia after obtaining an import permit issued by Agriculture Canada on May 27, 1991.9
[27] Before the deer were imported, Dr. Paquin, the responsible veterinarian in Agriculture Canada's Lachute district, had visited and certified the facilities.10 After a discussion with Dr. Paquin, the plaintiff agreed that the deer would be carried in their cages on trucks with rollers ("rollerbeds") and the cages would then be destroyed on Mr. Forgeot's farm. Mr. Forgeot had purchased the necessary equipment for this purpose. The fence of the deer corral had not been permanently installed, so the trucks could unload the cages in the corral.
[28] On the day the deer arrived at Mirabel airport, Mr. Forgeot received a telephone call informing him that the type of truck had been changed and that the deer would be unloaded at the airport to be transported in horse "trailers".
[29] The cages used to transport the deer had two floors, so the deer on the second floor had to jump four feet from above in order to enter the trailers. A number of deer were injured in the hoofs when jumping, even after an attempt was made to soften the fall using bales of hay.
[30] According to Mr. Forgeot, the trailers were demanded by the Agriculture Canada officials who had decided that the cages would be destroyed at the airport.
[31] Mr. Forgeot says he discussed with Dr. Paquin whether it was too expensive to destroy the cages at the airport; Dr. Paquin agreed that the cages would be taken to the farm for destruction there, as initially planned.
[32] Dr. Lagrenade, the veterinarian responsible for imports to Quebec in 1991 and 1992, testified that it was not Agriculture Canada's responsibility to choose the means of transportation. She conceded, however, that Agriculture Canada is responsible for humanitarian transport. Notwithstanding a memorandum by the witness confirming that she had been briefed on the issue of the place of destruction of the cages, Dr. Lagrenade testified that she did not remember whether the destruction of the cages was planned at the airport by Agriculture Canada.11
[33] Dr. Vivier, a veterinarian responsible for the arrival of the animals at the airport, also confirms that the type of truck used to transport the animals is the responsibility of the carrier and not Agriculture Canada.
[34] Dr. Vivier was present while the fallow deer were being unloaded at the airport. He remembers that he asked that bales of hay be installed to lessen the impact of the fall when the deer jumped from the cages. He confirms that he is responsible for humanitarian transportation of the animals.
[35] Dr. Paquin was also present at the airport during the unloading, but only as an observer. He later went to the farm to record the death of 12 deer, due, he said, to being crammed together in the first truck. He says that the other deer arrived with no problems, with the exception of a few deer who were limping. He introduced in evidence a number of reports between June 1991 and September 1991 noting the deaths of deer due in some cases to injuries to the hoofs.12
[36] All of the Agriculture Canada representatives categorically deny having been involved in the selection of the mode of transportation. The carrier's representatives did not testify, so there is no evidence that would allow me to conclude that the change in vehicles was ordered by Agriculture Canada. However, Dr. Lagrenade and Dr. Vivier confirmed that they were responsible for ensuring the humanitarian transportation of the animals.
[37] Consequently, I am of the opinion that when Dr. Vivier, a veterinarian, observed that the deer were being injured when jumping and that they were crammed together in the horse van, he should have stopped the unloading, which involved a risk of injury to the deer, and the transportation in inadequate vehicles apt to injure them or cause them undue suffering. In my opinion, a prudent veterinarian responsible for humanitarian transport would not have allowed the unloading and subsequent transportation of the deer in such circumstances.
[38] However, I think this negligence is qualified, given subsection 139(2) of the Regulations, which states that no carrier shall load or unload an animal in a way likely to cause injury or undue suffering to it.
[39] Accordingly, I am of the opinion that the carrier should have provided an adequate vehicle, closed the barriers inside the van and preventing the crowding of the deer. Since Agriculture Canada had the responsibility of ensuring the humanitarian unloading and transportation under the Act13 and the Regulations,14 I am unable to find that this was solely the fault of the carrier.
[40] Since the record confirms that this negligence caused injuries to the animals' hoofs,15 the defendants must be held partially liable in relation to the unloading and transportation of the fallow deer.
THE QUARANTINING
First quarantine
[41] An initial quarantine was imposed under the terms of the import permit16 from June 1, 1991 to late September 1991. Dr. Paquin had to wait fifteen (15) days before beginning the blood sample collections required under the permit since, according to Mr. Forgeot, the deer were stressed and needed to rest.
[42] Dr. Paquin explains that because of a positive result for bluetongue it was necessary to retest the herd on July 3, 1991. The result of the test was released on September 26, 1991.17 But the results of the other tests were released on June 26, 1991.18 Around October 1, 1991, once the tests were ended, the quarantine was lifted.19
[43] Because of a directive from Dr. Paquin, Mr. Forgeot was unable to clean up the excrement within the pens for the duration of the first quarantine. Consequently, the pens were not cleaned for four months, aggravating the injuries to the deers' feet and resulting in the death of a number of them.
[44] In my opinion, the record does not disclose any fault on the part of a Crown agent. At the very least, the duration of the quarantine was extended by several weeks during the summer. Considering that the test is that of a prudent veterinarian in the fight against contagious diseases, and that the duration of the quarantine was extended in part at the plaintiff's request and in part because the deer had to be retested, the period does not appear to me to be arbitrary or unreasonable.
[45] In any event, as I indicated earlier, the immunity under section 50 applies and the Crown cannot be held liable for any damage in relation to the quarantine.
Second quarantine
[46] Following the incident at the Abattoir Les Cèdres, Agriculture Canada placed the fallow deer in quarantine after discovering that they were being kept in a part of the farm previously occupied by bison.
[47] The record discloses that the deer were conveyed to corrals 1, 2 and 3 of the corrals previously occupied by some bison after the bison had left for the abattoir on December 6, 1991. Although the sketches20 prepared by Mr. Paquin, the veterinarian, indicate an error (the deer corral north of the river is not a bison corral), this does not alter the fact that the evidence is conclusive concerning the location of the deer as of that date, i.e. in some corrals previously occupied by some bison.
[48] The owner states that these corrals were cleaned in early December, 1991. However, the veterinarians testified that in December the corrals could not be satisfactorily disinfected because disinfectant freezes at that time.
[49] I accept the testimony of the veterinarians on this point, since they have more expertise than Mr. Forgeot in the area of contamination and disinfection of premises. It is clear, therefore, that notwithstanding the cleaning completed by Mr. Forgeot, it was impossible to disinfect the corrals in a satisfactory way.
[50] Consequently, since the test on the bison carcass proved positive, a quarantine of the premises was warranted, the deer having been housed in the cleansed bison corrals but with no possibility of ensuring they had been adequately disinfected.
[51] Here again, even if there were negligence, the section 50 immunity applies and the Crown cannot be held liable for any damage.
[52] Accordingly, the plaintiff's action is upheld in part. I award costs on the portion of the action for which the Crown was found liable.
| "Danièle Tremblay-Lamer" |
| J. |
OTTAWA, ONTARIO
April 20, 2000
Certified true translation
Martine Brunet, LL.B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| DOCKET NO: T-2990-92 |
| STYLE: WADACERF INTERNATIONAL INC. v. |
HER MAJESTY THE QUEEN ET AL.
| PLACE OF HEARING: Montréal, Quebec |
| DATE OF HEARING: February 14 to 17, 2000 |
REASONS FOR ORDER OF TREMBLAY-LAMER J.
DATED: April 20, 2000
APPEARANCES:
Isabelle Poirier for the Plaintiff
Luc Huppé
Éric Lafrenière for the Defendant
David Lucas
SOLICITORS OF RECORD:
Degrandpré, Chaurette, Lévesque for the Plaintiff
Montréal, Quebec
Morris Rosenberg for the Defendant
Deputy Attorney General of Canada
Ottawa, Ontario
__________________1 Affidavit of documents of William Anderson, veterinarian, representing Agriculture Canada, exhibit W-16.
2 Id.
3 S.C. 1990, c. 21.
4 C.R.C. 1978, c. 296.
5 R.S.C. 1985, c. C-50 (hereinafter the Crown Liability Act).
6 See, for example, subsections 6(1), 7(2), 16(1), 18(1), 31(2) and 48(1) of the Act and sections 3, 5 and 58(3) of the Regulations.
7 Section 64(i) and (ii).
8 Sections 138 et seq.
9 Exhibit W-16.
10 Exhibit W-13.
11 Exhibit W-14.
12 Exhibits W-44A, W-52, W-56, W-62 and W-71.
13 Section 64(i), (ii).
14 Sections 138 et seq.
15 Report of Dr. Paquin, Exhibit W-26.
16 Exhibit W-16.
17 Exhibit W-66.
18 Exhibit W-38.
19 Exhibit W-74.
20 Exhibit W-83.