This post was written prior to our January 2017 merger, under our previous firm name, MacPherson Leslie & Tyerman LLP.
Administrative Monetary Penalty System:
Canada has an administrative monetary penalty (“AMP“) system to enforce legislation related to agriculture and food, including the following agri-food acts:
- the Health of Animals Act;
- the Feeds Act;
- the Meat Inspection Act;
- the Canada Agricultural Products Act; and
- the Fertilizers Act.
Pursuant to the AMP system, if a designated federal agency has reasonable grounds to believe that a person has contravened a provision of an agri-food act or regulation, the agency may issue a notice of violation and impose a monetary penalty. The person alleged to have committed the violation may request a review of the facts of the violation by the Minister of Agriculture and Agri-Food (the “Minister“) or the Canada Agricultural Review Tribunal (“CART“). The Minister or CART must determine whether or not the person committed the violation, and may vary the amount of the penalty.
Overview of the Review:
The Canadian Food Inspection Agency (“CFIA“) issued a local poultry processor (“Processor“) a notice of violation on March 9, 2015, alleging that the Processor transported 5,820 poultry broiler birds in a trailer with undue exposure to the weather contrary to paragraph 143(1)(d) of the Health of Animal Regulations, and imposed a $9,000 penalty.
The Processor requested a review by CART. MacPherson Leslie & Tyerman was counsel for the Processor. Following written submissions and an oral hearing, the Chairperson of CART determined on a balance of probabilities that the Processor did not commit the violation, and is therefore not liable to pay the penalty to CFIA.
The Processor operates a poultry processing facility that sources poultry birds from Saskatchewan poultry farms. On May 8, 2014, the Processor transported 35,520 poultry broiler birds from a poultry farm in southwest Saskatchewan to its processing facility in Saskatoon. While the independent catching crew was loading 5,820 birds onto one of the trailers at the farm, a member of the crew crashed a forklift into the trailer, causing one of the tarp bars to bend. The damage to the tarp bar prevented the tarp on the driver’s side of the trailer from being able to close and be properly secured.
There were no other available trailers at the farm that could transport the birds. Given the cold temperature conditions and various stress concerns, the Processor determined that the birds could not be loaded back into the barn without most of them dying. Therefore, the Processor decided to transport this load of birds with only one tarp. Prior to the truck arriving at its processing facility, the Processor alerted CFIA officials of the situation. Approximately 3% of the birds on this load died. A CFIA veterinarian concluded that their deaths were consistent with hypothermia. As a result, CFIA issued the Processor a notice of violation, and imposed a $9,000 penalty.
During the review, to establish that the Processor committed the alleged violation, CFIA had the burden of establishing each of the following essential elements of the violation on a balance of probabilities:
- an animal was transported;
- the animal was transported in a motor vehicle;
- injury or undue suffering was likely to be caused to the animal by reason of undue exposure to the weather;
- the Processor transported, or caused to be transported, the animal; and
- there was a causal link between
- (a) the transportation likely to cause injury or undue suffering to the animal by reason of undue exposure to the weather; and
- (b) the undue exposure to the weather.
The parties agreed that CFIA established elements 1, 2 and 4. However, CART determined that CFIA did not prove element 3 – that the birds were transported in a manner that was likely to cause injury or undue suffering to the birds because of undue exposure to the weather.
In coming to this determination, CART applied the principles of statutory interpretation, and considered the scheme and object of the Health of Animals Act and the Health of Animals Regulations. CART stated that a balance must be maintained between protecting the health of animals, and the commercial activities of actors in the agriculture and agri-food production systems. CART also focused on the meaning of the qualifier “undue”, and noted that participants in the Canadian meat industry are required to pursue their activities year-round in all types of weather. CART ultimately found that there was no unequivocal evidence from the two expert witnesses that transporting the birds with only one tarp in the prevailing weather conditions was likely to cause injury or undue suffering to the birds because of undue exposure to the weather.
Importantly, in light of CART’s determination that CFIA failed to prove all of the essential elements of the violation, CART did not have to consider the parties’ submissions on the common law defence of necessity, and determine whether it could apply in the AMP context and to the specific circumstances.
To read the decision, click here: 2016 CART 4.