Date: 20000420
Docket: T-804-94
OTTAWA, ONTARIO, THE 20TH DAY OF APRIL, 2000
PRESENT: THE HONOURABLE MADAM JUSTICE TREMBLAY-LAMER
Between:
SOCIÉTÉ CANADIENNE D'EXPORTATION DE BISONS INC.
Plaintiff
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
and
THE HONOURABLE MINISTER OF AGRICULTURE OF CANADA
and
THE HONOURABLE MINISTER OF JUSTICE
and
THE DEPUTY ATTORNEY GENERAL OF CANADA
Defendants
O R D E R
The plaintiff's action is dismissed with costs.
| "Danièle Tremblay-Lamer" |
| J. |
Certified true translation
Martine Brunet, LL.B.
Date: 20000420
Docket: T-804-94
Between:
SOCIÉTÉ CANADIENNE D'EXPORTATION DE BISONS INC.
Plaintiff
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
and
THE HONOURABLE MINISTER OF AGRICULTURE OF CANADA
and
THE HONOURABLE MINISTER OF JUSTICE
and
THE DEPUTY ATTORNEY GENERAL OF CANADA
Defendants
REASONS FOR ORDER
TREMBLAY-LAMER J.:
[1] The plaintiff sues Her Majesty in damages alleging that Agriculture Canada arbitrarily quarantined its farm, thereby paralysing the plaintiff's exports.
[2] The plaintiff is a Canadian corporation the principal activity of which is exporting bison from Canada.
[3] On December 6, 1991, the plaintiff had 72 bison slaughtered in a duly qualified abattoir (Abattoir Les Cèdres, Soulanges) in the presence of a veterinarian, Dr. Marcel Asselin.
[4] The 72 bison originated from two suppliers (53 from Western Canada and 19 from Ontario) and were the object of various inspections and transportation permits.
[5] Following inspections by the responsible veterinarian during the slaughter, all of the bison carcasses were accepted for human consumption under the Agriculture Canada and EEC standards, and exported on December 8, 1991.
[6] On December 19, 1991, the plaintiff's representatives were notified that their farm had been quarantined because of contagious tuberculosis originating in a bison; the responsible veterinarian had taken a sample of a granulated ganglion during the December 6 slaughter, which had been sent to the Agriculture Canada laboratory for analysis.
[7] On April 8, 1992, the defendants lifted the quarantine, confirming the non-existence of "mycobacterium".
[8] The plaintiff alleges that the quarantine was ordered arbitrarily and that the defendants' officials deliberately abused their discretionary authority for the purpose of harming the plaintiff by interrupting its export process.
[9] The defendants submit that the plaintiff did have its farm quarantined on or about December 19, 1991, pursuant to section 22 of the Health of Animals Act1 (the Act).
[10] Section 50 of the Act2 contains a clause exonerating the Crown of liability for any negligence committed in the performance of the powers under the Act.
[11] On the assumption that the plaintiff can prove that the quarantine was imposed arbitrarily, the Crown cannot be successfully sued given the immunity under section 50 of the Act, the defence argues.
ISSUES
| 1. Was a sample of granulomatosis ganglion taken on one of the bison carcasses during the December 6, 1991 slaughter? |
| 2. If so, was the defendant [sic] negligent in the process of taking the said sample, thereby incurring liability? |
| 3. Does section 50 of the Health of Animals Act give the Crown immunity in this action? |
APPLICABLE LAW
[12] The plaintiff sues on the basis of subsection 3(a) of the Crown Liability and Proceedings Act,3 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 Health of Animals Regulations4 (the Regulations).
[17] 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...."
[18] 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.
[19] 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.
[20] In regard to quarantines, 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 quarantine imposed by the inspectors. Since this quarantine is an obligation imposed by the Act and the regulations thereunder, this action enjoys the immunity under section 50 of the Act.
[24] 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
[25] Mr. Forgeot testified that on December 6, 1991, a group of 53 bison from his farm was slaughtered at the Abattoir Les Cèdres. These bison originated from Western Canada and had a negative status permit, which allowed livestock farming. Another group of 19 bison, this one from Ontario, was also slaughtered that day. These had a different status, "for slaughter only".
[26] The two groups were transported to the slaughterhouse by Mr. Charbonneau.
[27] According to Mr. Forgeot, the two groups were combined at the slaughterhouse to make room for a herd of cows that were to be slaughtered the same day. Mr. Charbonneau testified to the same effect. Mr. Charbonneau was categorical on this point and I therefore accept his testimony that on the day of the slaughter, the herds were in fact combined.
[28] Mr. Tudino, a meat inspector, and Dr. Asselin, the veterinarian, testifying for the defendants on this point, stated that it is inappropriate to combine distinct groups since it must be possible to identify the owner and origin of the animals. According to Dr. Asselin, the two groups of bison could not have been combined on the day of the slaughter. But he conceded that after the slaughter had begun he did not go outside and thus could not observe what was going on, so his testimony cannot contradict the version of the facts provided by Mr. Forgeot and Mr. Charbonneau.
[29] Mr. Tudino and Dr. Asselin testified concerning the operation of the brucellosis market cattle test program during a slaughter. They began by explaining that in inspection operations the sample collection position is the first to be cancelled when there is a lack of personnel. The sample phials are filled, they said, according to the slaughter sequence. There are 40 phials per kit and each phial contains some information as to the group and the owner. This information is then recorded on a form, which then reflects the sequence of the slaughter in a given day.
[30] An examination of the form5 for the day the bison were slaughtered indicates that there is a sequence of 52 bison that were subjected to blood samples, following the group of cows. Some samples were not taken on the last group of 19 bison, since Inspector Tudino, who was responsible for this duty, left the premises between 2:30 p.m. and 3:00 p.m. But the suspect ganglion was identified prior to his departure. The defendants submit that this interpretation of the facts shows that the suspect ganglion in fact came from the initial group of 53 bison, the group from Mr. Forgeot's farm.
[31] This is not my opinion. This evidence is not conclusive as to the identity of the group from which the suspect ganglion originated. Accepting the evidence of Mr. Forgeot and Mr. Charbonneau that the two groups were combined, this evidence simply establishes that 52 bison from a group of 72 bison were subject to blood sampling before inspector Tudino's departure. The suspect ganglion could therefore, in fact, have come from either of the two groups.
[32] On the other hand, Mr. Tudino testified that he found something abnormal during his inspection on December 6. He therefore placed the suspect carcass on a restraint grid so it would be inspected by Dr. Asselin, the veterinarian.
[33] Dr. Asselin testified that he found some small seeds in a ganglion of the lungs. He sent the sample and the specimen form6 to the laboratory more out of scientific curiosity, he says, and thought there was no danger to consumers as he had not detected any further anomalies in the carcass. Consequently, he signed the export papers attesting that the carcass was exempt from contagious disease.7 In fact, all of the carcasses of slaughtered bison were accepted for human consumption under the Agriculture Canada standards and were exported on December 8, 1991.
[34] A preliminary laboratory diagnosis8 confirmed the presence of "mycobacterium bovis" in the sample sent from the Abattoir Les Cèdres. Subsequently, Dr. Rivard, the regional supervising veterinarian, decided to quarantine Mr. Forgeot's farm pursuant to subsection 22(1) of the Act and the disease control procedures manual.9
[35] According to the manual, the Tuberculosis Division does not impose a quarantine when a sample is made on a group of animals from two original herds.
[36] In this case, notwithstanding Dr. Rivard's statement that "to his knowledge" there was only one original herd, thus justifying the quarantine of Mr. Forgeot's farm, his testimony is to the effect that he was rather uncertain about the origin of the animal in question while nevertheless ordering the quarantine of the plaintiff.
[37] In fact, in a memorandum sent to Mr. Cousineau,10 the inspector ordered by Dr. Rivard to confirm the animal's origin, Dr. Rivard asked him to contact the Abattoir Les Cèdres to obtain some relevant particulars concerning the animal's identity. He even wrote in this memo that Dr. Lemay, the regional supervisor for the health of meat products, confirmed that it was impossible to trace the animal's identity.
[38] Consequently, I do not accept Dr. Rivard's testimony that to his knowledge there was only one original herd. However, given the purpose and spirit of the Health of Animals Act in the fight to protect animals and humans from diseases, Dr. Rivard's conduct does not constitute negligence, since, as I said earlier, section 22 of the Act gives the inspector substantial latitude to declare a site contaminated when he suspects or determines that a disease is present and that it could spread.
[39] Although the disease control procedures manual11 indicates that a quarantine is not required when there is more than one original herd, this is a guideline that lacks force of law; one may always, therefore, decline to apply it, depending on the circumstances.12
[40] Since, in the case at bar, the 53 bison all belonged to the same owner, it was probable, given the number tested for brucellosis, that the suspect carcass came from Mr. Forgeot's farm. Consequently, I believe that in ordering that the plaintiff's operation be quarantined, Dr. Rivard acted as a prudent and diligent veterinarian in the circumstances. The defendant and its officials were not negligent in relation to the plaintiff.
[41] The plaintiff's action is dismissed, with costs.
| "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-804-94 |
| STYLE: SOCIÉTÉ CANADIENNE D'EXPORTATION DE BISONS |
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 S.C. 1990, c. 21.
2 Ibid.
3 R.S.C. 1985, c. C-50 (hereinafter the Crown Liability Act).
4 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 Health of Animals Regulations, C.R.C. 1978, c. 296.
5 Exhibit S-48B.
6 Exhibit S-51.
7 Exhibit W-108 (exhibit no. 6.6).
8 Exhibit S-51.
9 Exhibit S-75.
10 Exhibit P-6.
11 Exhibit S-75.
12 Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3; Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2; Martineau v. Matsqui Institution Inmate Disciplinary Board, [1978] 1 S.C.R. 118; Weatherall v. Canada, [1989] 1 F.C. 18.