Federal Court of Appeal Decisions

     A-618-96

     (T-1039-96)

CORAM:      PRATTE J.A.

     MARCEAU J.A.

     DESJARDINS J.A.

BETWEEN:

     MINISTER OF AGRICULTURE AND AGRI-FOOD

     Appellant

     (Respondent)

     - and -

     LEON BARNETT

     Respondent

     (Applicant)

     REASONS FOR JUDGMENT OF THE COURT

     (Delivered from the Bench at Ottawa, Ontario,

     on Thursday, December 19, 1996)

PRATTE J.A.

     This is an appeal from an order of the Trial Division setting aside a removal order issued by a veterinary inspector under subsection 18(1) of the Health of Animals Act, S.C. 1990, c. 21, and remitting the matter to a different inspector for reconsideration.

     In order to understand the issues on this appeal, it is necessary to have in mind certain provisions of the Health of Animals Act and of the Health of Animals Regulations adopted pursuant to that Act.

     Paragraph 10(1)(a) of the Regulations prohibits the importation of animals unless the importer does so under and in accordance with a permit issued by the Minister who can impose in the permit the conditions that he considers advisable to prevent the introduction of communicable diseases in Canada. Section 160.1 of the Regulations further provides that:

"Every person to whom a permit or license is issued under these regulations shall comply with the conditions contained in the permit or license."

The breach of the conditions of a permit is therefore a breach of the Regulations.

     Sections 17 and 18 of the Act read in part as follows:

17.      Subject to section 18, where an animal or thing is imported or is attempted to be imported into Canada in contravention of this Act or the regulations, it shall be forfeited to Her Majesty in right of Canada and may be disposed of as the Minister may direct.

18.      (1)      Where an inspector or officer believes on reasonable grounds that an animal or thing has been imported into Canada and that it

(a)      was imported in contravention of this Act or the regulations,

[...]

the inspector or officer may, whether or not the animal or thing is seized, require the owner [...] to remove it from Canada.

[...]

(3)      An animal or thing that is required to be removed from Canada shall be deemed not to have been forfeited under section 17.

(4)      Where the animal or thing is not removed from Canada as required under this section, it shall, notwithstanding section 45, be forfeited to Her Majesty in right of Canada an may be disposed of as the Minister may direct.

     The respondent has obtained a permit to import 250 alpacas from Chile. Many conditions were attached to the permit. Some of them had to be complied with while the animals were still in Chile. More particularly, the animals had, before importation, to be subjected to certain tests and obtain negative results. The permit specified that one or more positive results to the tests would "render the whole group [of animals] ineligible for importation". This condition was not complied with. Apparently, the Chilean authorities did not disclose the fact that some of the animals had tested positive. The animals were imported and were still in quarantine in Canada when this violation of the conditions of the permit was discovered. An officer acting under section 18 of the Act then required the respondent to remove his animals from Canada. It is that removal order which was set aside by the Trial Division on two grounds, namely, that its author had illegally fettered his discretion by proceeding on the understanding that he had no real choice other than to order the animals removed from Canada, and, second, that the removal order in question was not really made by the person who signed it but by another person who had no authority to make it.

     With respect to the first point, the judge of first instance held that there had been a clear violation of the conditions of the permit which resulted in the respondent's animals being "ipso facto" forfeited to Her Majesty under section 17 of the Act with the result that the Minister could dispose of them as he wished. In view of the broad meaning of the word "dispose" in section 17, the officer who made the removal order under paragraph 18(1)(a) should, according to the judge, have taken into consideration that the Minister could, if the removal order was not made, decide to submit the animals to further tests and eventually to release them back to the respondent if it then appeared that this could be done safely.

     Without repudiating the reasoning of the judge of first instance on this point, counsel for the respondent tried to support her conclusion by referring to clause 3 of the General Provisions of the Permit which provides that "if a veterinary inspector of AAFC identifies deficiencies in compliance with import permit requirements, AAFC may decide to ask for additional tests and/or treatment to be done on some or all of the animals, to reject some of the animals, or to cancel the whole importation project without compensation to the owner or the importer". This provision, said counsel, shows that the failure to comply with the conditions of the permit does not necessarily entail the automatic forfeiture provided for in section 17.

     Counsel for the appellant has persuaded us that the position of the judge of first instance on this point as well as that of respondent's counsel must be rejected.

     Dealing first with counsel's submission based on clause 3 of the General Provisions of the Permit, it is sufficient to say that a clear violation of a condition of a permit which, by its very terms, "renders the whole group [of animals] ineligible for importation" cannot be considered as a mere "deficiency" that could subsequently be cured by further testing.

     As to the reasoning of the judge, it is based on the premise that the Minister, who is authorized by section 17 to dispose of the forfeited animals, may dispose of them by keeping them in quarantine and eventually releasing them back to the respondent. We cannot accept that premise. True, the verb "to dispose" has a very broad meaning, but the context in which it is used in this Act indicates that it is used in a much narrower sense.

     According to subsection 15(1), "[n]o person shall possess or dispose of an animal or thing that the person knows was imported in contravention of this Act or the regulations". Certainly, section 17 cannot be read in a way which would not only allow the Minister to ignore section 15 but would also permit him to be instrumental in causing a violation of that section.

     Moreover, the interpretation of section 17 adopted by the judge renders paragraph 18(1)(a) redundant since the Minister could, by exercising his "broad" power of disposition under section 17, return the animal to the importer on the condition that it be removed from Canada.

     Finally, there are provisions in the Act, namely subsection 45(2) and section 60, which show that Parliament made a distinction between the power to dispose of forfeited or seized animals and the power to return them to their owner.

     In our opinion, the Act, harsh as it is, must be read as it is written. It does not provide for any relief against the forfeiture provided for in section 17 otherwise than as a result of the making of a removal order. The only real alternative to the forfeiture of animals imported illegally is, therefore, the removal of these animals.

     On this point, the appeal must succeed.

     It is unnecessary to pronounce on the other point since, once it is determined that the officer who made the removal order did not possess the wide discretion that the judge of first instance gave him, it becomes obvious that the respondent has no real reason to complain of the order made against him.

     The appeal will, therefore be allowed, the decision of the Trial Division will be set aside and the removal order made against the respondent will be reinstated.

     "Louis Pratte"

     J.A.

     A-618-96

     (T-1039-96)

CORAM:      PRATTE J.A.

     MARCEAU J.A.

     DESJARDINS J.A.

BETWEEN:

     MINISTER OF AGRICULTURE AND AGRI-FOOD

     Appellant

     (Respondent)

     - and -

     LEON BARNETT

     Respondent

     (Applicant)

Heard at Ottawa, Ontario, on Thursday, December 19, 1996.

Judgment rendered from the Bench on December 19, 1996.

REASONS FOR JUDGMENT OF THE COURT BY:      PRATTE J.A.

     IN THE FEDERAL COURT OF APPEAL

     A-618-96

     (T-1039-96)

BETWEEN:

     MINISTER OF AGRICULTURE

     AND AGRI-FOOD

     Appellant

     (Respondent)

     - and -

     LEON BARNETT

     Respondent

     (Applicant)

     REASONS FOR JUDGMENT

     OF THE COURT