Date: 20050620
Docket: A-156-05
Citation: 2005 FCA 235
SEXTON J.A.
SHARLOW J.A.
BETWEEN:
CANADIAN FOOD INSPECTION AGENCY
Applicant
and
RICHARD SAMSON
Respondent
Heard at Ottawa, Ontario, on June 14, 2005.
Judgment delivered at Ottawa, Ontario, on June 20, 2005.
REASONS FOR JUDGMENT BY: NOËL J.A.
CONCURRED IN BY: SEXTON J.A.
SHARLOW J.A.
Date: 20050620
Docket: A-156-05
Citation: 2005 FCA 235
CORAM: NOËL J.A.
SEXTON J.A.
SHARLOW J.A.
BETWEEN:
CANADIAN FOOD INSPECTION AGENCY
Applicant
and
RICHARD SAMSON
Respondent
REASONS FOR JUDGMENT
[1] The Canadian Food Inspection Agency (CFIA) is seeking judicial review of a decision made by the Agriculture and Agri-Food Review Tribunal (Review Tribunal), dismissing a Notice of Violation issued against Mr. Samson on the basis that it had not been shown that Mr. Samson had subjected an animal to "undue suffering" contrary to paragraph 138(2)(a) of the Health of Animal Regulations SOR/91-525 (Regulations).
[2] The provision in question reads as follows:
|
138(2) Subject to subsection (3), no person shall load or cause to be loaded on any railway car, motor vehicle, aircraft or vessel and no one shall transport or cause to be transported an animal
(a) that by reason of infirmity, illness, injury, fatigue or any other cause cannot be transported without undue suffering during the expected journey. |
138(2) Sous réserve du paragraphe (3), il est interdit de charger ou de faire charger, ou de transporter ou de faire transporter, à bord d'un wagon de chemin de fer, d'un véhicule à moteur, d'un aéronef ou d'un navire un animal :
(a) qui, pour des raisons d'infirmité, de maladie, de blessure, de fatigue ou pour toute autre cause, ne peut être transporté sans souffrances indues au cours du voyage prévue. |
The Facts
[3] On January 4, 2004, the respondent, Samson, caused a number of pigs to be loaded and transported by truck from North Lancaster, Ontario, to Rivière-du-Loup, Quebec.
[4] Upon arrival at Rivière-du-Loup, one of the pigs was segregated and inspected by a veterinarian employed by CFIA. The veterinarian concluded that the pig had sustained an injury prior to loading. The state of the animal is described in the case summary (Application Record, page 29) as follows:
The animal was showing lacerations on both hinds, including skin and muscles of 10 centimetres deep or more and 35 centimetres in length on his left hind, 15 centimetres on the right hind. The animal was lethargic and weak due to the infection and necrosis of the wounds (lacerations). Swelling of the upper hind completed the clinical picture. The necrose of the wounds indicated that they dated of more than one week.
[5] The veterinarian concluded that the extent of the pain was such as to require that the animal be euthanised immediately.
[6] On May 19, 2004, a Notice of Violation was issued by the CFIA, stating that the respondent Samson had violated paragraph 138(2)(a) of the Regulations. The Notice of Violation states: "avoir fait charger et avoir fait transporter un animal de ferme (porc), dans un véhicule moteur de la compagnie Guy Latouche, qui ne pouvait pas être transporté sans souffrances".
Decision Under Review
[7] Although the respondent Samson alleged that the pig did not belong to him, the Review Tribunal concluded that, on the balance of probabilities, the injured pig was part of the load from the respondent Samson's farm.
[8] The sole issue for the Review Tribunal was therefore whether by reason of the condition of the pig, it could not have been transported without undue suffering during the expected journey from Lancaster, Ontario, to Rivière-du-Loup, Quebec as per paragraph 138(2)(a) of the Regulations.
[9] After reviewing the materials, the Review Tribunal concluded that there had been no undue suffering. The Review Tribunal stated:
The issue in this case is not whether an injured animal was loaded and transported, but whether the injured pig could have been transported without undue suffering during the expected journey. A common dictionary definition of "undue" is "excessive".
This is clearly a subjective determination. Although there is little doubt that the animal was injured and likely very uncomfortable during its loading and transportation as a result of the wounds it sustained a week before the shipment, there is no evidence that the pig's condition was any worse after shipping than before shipping, or that there was any undue suffering.
This being the case, the Tribunal finds the Respondent has not established, on the balance of probabilities, that the loading and transportation of the pig caused undue suffering. (emphasis added)
[10] The CFIA maintains that such a reading of the words "undue suffering" is inconsistent with the clear intent of the Health of Animals Act S.C. 1990, c. 21 (Health of Animals Act), the enabling legislation that allows the Governor-in-Council to make Regulations, which have as an objective the promotion of the humane treatment of animals in Canada. Rather, the CFIA states that the word "undue" in paragraph 138(2)(a) of the Regulations should be read as requiring that no animal be transported in instances where it would experience unnecessary suffering.
Analysis and Decision
[11] In my respectful view, the Review Tribunal committed an error of law in conducting its analysis on the basis that the word "undue" in paragraph 138(2)(a) of the Regulations can be equated with the word "excessive" (see in this regard the decision of this Court in Procureur général du Canada c. Porcherie des Cèdes 2005 CAF 59) and that the provision contemplates an aggravation of the condition of the animal resulting from the transportation. The provision bears no such requirement.
[12] What the provision contemplates is that no animal be transported where having regard to its condition, undue suffering will be caused by the projected transport. Put another way, wounded animals should not be subjected to greater pain by being transported. So understood, any further suffering resulting from the transport is undue. This reading is in harmony with the enabling legislation which has as an objective the promotion of the humane treatment of animals.
[13] In the present case, there can be no doubt that, having regard to the condition of the pig prior to the transport (see paragraph 4 above), undue suffering was caused by the transport. This conclusion is unescapable when regard is had to the fact that the animal had to be euthanised on arrival.
[14] The application for judicial review will therefore be allowed, the decision of the Review Board will be set aside, and the matter will be remitted to the Review Board with a direction that the application for a review of the alleged violation made pursuant to the Agriculture and Agri-Food Administrative Monetary Penalties Act be dismissed on the basis that the respondent did commit the act alleged by the Notice of Violation.
"Marc Noël"
J.A.
"I agree.
J. Edgar Sexton, J.A."
"I agree.
K. Sharlow, J.A."
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-156-05
STYLE OF CAUSE: Canadian Food Inspection Agency v. Richard Samson
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: June 14, 2005
REASONS FOR JUDGMENT BY: NOËL J.A.
CONCURRED IN BY: SEXTON J.A.
SHARLOW J.A.
DATED: June 20, 2005
APPEARANCES:
Alexander Gay FOR THE APPLICANT
Ronald Lunau FOR THE RESPONDENT
SOLICITORS OF RECORD:
John H. Sims, Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE APPLICANT
Gowling Lafleur Henderson LLP
Ottawa, Ontario FOR THE RESPONDENT