|
Agriculture - Health of Animals Act. Universal Ostrich Farms Inc. v. Canada (Canadian Food Inspection Agency)
In Universal Ostrich Farms Inc. v. Canada (Canadian Food Inspection Agency) (Fed CA, 2025) the Federal Court of Appeal allowed an stay pending appeal motion regarding an order "made by the Canadian Food Inspection Agency (CFIA) under section 48 of the Health of Animals Act" (for culling ostriches).
On the RJR stay test the court commented:[3] To succeed in its motion, the appellant must demonstrate that it meets the requirements of the conjunctive tripartite test for granting a stay or interlocutory injunction set out by the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311. Specifically, the appellant must establish that the appeal raises a serious issue, that it will suffer irreparable harm if the stay is not granted, and that the balance of convenience favours granting the stay.
[4] Regarding the first element of the test, the appellant raises several grounds of appeal in the notice of appeal. In particular, the appellant submits that the Federal Court erred in its analysis of the CFIA’s "“stamping-out”" policy and the CFIA’s mandate, that it improperly deferred to the CFIA’s expertise in conducting its reasonableness review and failed to fully consider the consequences of the decisions on the appellant, the ostrich herd and the public interest in scientific research, and that it erred in refusing to consider relevant evidence relating to the CFIA’s decisions to restrict or deny testing and in concluding that the CFIA’s dealings with the appellant met the requisite degree of procedural fairness. The appellant further asserts that the Federal Court’s decision should be set aside due to the "“ineffective assistance”" of the appellant’s former counsel at the hearing of the applications.
[5] The threshold for establishing a serious issue is generally a low one and will be met if the issues raised in the notice of appeal are not frivolous or vexatious (RJR-MacDonald at 348). I am satisfied that the appellant has established that the appeal raises a serious issue.
[6] With respect to the second element of the test, the appellant submits that it will suffer irreparable harm if the stay is not granted. The appellant alleges that the disposal of the ostriches would mean the closure of the appellant’s 25-year-old business, the loss of the appellant’s decades-long efforts in cultivating a unique flock of ostriches and the end of the appellant’s scientific and commercial ventures to harvest antibodies from the ostriches’ blood or eggs to create a biomedical product for treating or diagnosing avian influenza.
[7] As the Supreme Court of Canada noted in RJR-MacDonald, irreparable harm refers to the nature of the harm suffered, as opposed to its magnitude. It is "“harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other”" (RJR-MacDonald at 341). The Supreme Court of Canada provided that such harm could include instances where the party seeking the stay will be put out of business by the court’s decision or will suffer permanent market loss or irreversible damage to its business reputation (RJR-MacDonald at 341).
[8] I accept that the depopulation of the appellant’s farm will have a real and negative impact on the appellant. It will undoubtedly seriously disrupt the appellant’s business operations and cause the appellant severe economic loss. Although the appellant may be entitled to compensation under the Compensation for Destroyed Animals and Things Regulations, S.O.R./2000-233, the compensation for an ostrich is limited to a maximum of $3,000 per animal, an amount that is lower than the alleged average price of approximately $7,500 per ostrich. This Court held in David Hunt Farms Ltd. v. Canada (Minister of Agriculture) (C.A.), 1994 CanLII 3464 (FCA), [1994] 2 FC 625, that where the "“amount of the recoverable loss is restricted by statute, and that amount is significantly less than the actual loss to be incurred if the injunction does not issue, irreparable harm is established” "(David Hunt Farms at 633).
[9] Likewise, I accept that a refusal to grant the stay will likely render the appeal moot as the very subject matter of the appeal will be destroyed.
[10] I am therefore satisfied that the appellant will be exposed to irreparable harm if the stay is not granted.
[11] With respect to the third element of the test, I note that a stay was granted by the Federal Court on February 1, 2025, and that the respondent has agreed not to proceed with the disposal of the ostriches pending the determination of the stay motion. That said, I accept that further delay can potentially increase the risks posed by the HPAI virus and cause harm to Canada’s international trade agreements. I also agree that the public interest in the CFIA being able to carry out its mandate of mitigating risks posed by infectious animal diseases is of central importance in determining the balance of convenience. Conversely, the appellant is also entitled to a meaningful right of appeal. I am satisfied that in this case, an expedited hearing of the appeal can achieve an appropriate balance between these two competing interests.
[12] Accordingly, an expedited hearing will be ordered and the stay will thus be granted, but only in respect to the notice dated December 31, 2024, requiring the appellant to dispose of the ostriches pursuant to subsection 48(1) of the HAA. The other two orders sought by the appellant are denied. The stay will be in effect pending the disposition of the appeal, or until another date should the Court order otherwise. . Earl Macdonald and Son Transport Limited v. Canada (Food Inspection Agency)
In Earl Macdonald and Son Transport Limited v. Canada (Food Inspection Agency) (Fed CA, 2025) the Federal Court of Appeal denied a JR, here against a Canadian Food Inspection Agency "notice of violation, imposing a $10,000 administrative monetary penalty on the company under the Agriculture and Agri-Food Administrative Monetary Penalties Act":[1] In 2020, an employee of Earl MacDonald and Son Transport Limited transported 171 pigs in the company’s trailer from two farms in Ontario to a slaughterhouse in Quebec. Three pigs located in the rear compartment of the trailer died. Following an investigation, the Canadian Food Inspection Agency (Agency) concluded the company had loaded and transported the animals in a manner that resulted in overcrowding contrary to subsection 148(1) of the Health of Animals Regulations, C.R.C., c. 296.
[2] In 2022, the Agency issued a notice of violation, imposing a $10,000 administrative monetary penalty on the company under the Agriculture and Agri-Food Administrative Monetary Penalties Act, S.C. 1995, c. 40. The company brought the matter before the Canada Agricultural Review Tribunal (Tribunal).
[3] Because the company agreed the pigs were loaded and transported in its trailer, the only issue was whether there was overcrowding. Following a two-day hearing, the Tribunal concluded that the Agency had established there was overcrowding and that the company violated the regulation: Earl MacDonald and Son Transport Limited v. Canadian Food Inspection Agency, 2024 CART 17. The company now seeks judicial review of the Tribunal’s decision.
[4] The only question before us is whether the Tribunal’s decision is reasonable: Canada (Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at paras. 23-25, 83 [Vavilov]; Canada (Attorney General) v. Fauteux, 2020 FCA 165 at para. 7. In answering that question, we must limit ourselves to considering whether the decision, including its rationale and the outcome, was reasonable.
[5] In its written submissions, the company submits that the Tribunal erred in interpreting the relevant regulation because it requires a finding that the pigs suffered, or were likely to suffer, during transport but the Tribunal made no such finding. This submission is without merit.
[6] The Tribunal set out the text of the regulation, including the definition of "“overcrowding”": Tribunal reasons at paras. 4, 7. Quoting from that definition, the Tribunal stated that overcrowding would "“have occurred if, due to the number of pigs in the compartment, the animal is ""likely to develop hyperthermia…or is otherwise ""likely to suffer from heat or die”": Tribunal reasons at para. 26 (emphasis added); see also paras. 51, 53. This is precisely the interpretation the company advances before us: see Applicant’s Memorandum of Fact and Law at para. 26.
[7] Absent exceptional circumstances, we cannot reweigh and reassess the evidence the Tribunal considered: Vavilov at para. 125. Despite the company’s written and oral submissions, nothing calls into question the acceptability and defensibility of the result and the reasons offered. The reasons indicate that the Tribunal carefully and thoroughly evaluated the evidence, including that of the witnesses, and on that basis found overcrowding: Tribunal reasons at paras. 3, 50, 53. . Fedorenko v. Canada (Attorney General)
In Fedorenko v. Canada (Attorney General) (Fed CA, 2024) the Federal Court of Appeal dismissed a JR against a decision of the Canadian Agricultural Review Tribunal, here regarding "a notice of violation and associated penalty issued to the applicant for failing to declare the importation of meat products, contrary to subsection 16(1) of the Health of Animals Act". A fine was assessed under the Agriculture and Agri-Food Administrative Monetary Penalties Act:[1] The applicant seeks judicial review of a decision of the Canadian Agricultural Review Tribunal: 2023 CART 4 (CanLII), 2023 CART 04. The Tribunal upheld a notice of violation and associated penalty issued to the applicant for failing to declare the importation of meat products, contrary to subsection 16(1) of the Health of Animals Act, S.C. 1990, c. 21. Subsection 16(1) requires that any person importing into Canada any animal, animal product, or animal by-product, among other items, present the product to an inspector, officer or customs officer for inspection, either before or at the time of importation.
[2] The applicant, on arrival to Pearson International Airport in Toronto, completed a declaration at the self-serve primary inspection kiosk ("“PIK”"). She answered "“yes”" to the question whether she was in possession of "“[r]aw or cooked meat, fish, seafood, eggs, dairy products, fruits, vegetables, seeds, nuts…”" and "“no”" to the question whether she had "“any live animals, pets, food, plants, meat or animal items other than the following: nuts, mango, planting, dried fish, dates, breadfruit, group spices, chocolate, cookies, sugar cane..…citrus fruits and/or avocado”".
[3] After a detector dog identified the applicant’s bag as containing meat products, a border services officer asked the applicant about the food in her bag. She responded: "“Just fruits, pomegranates and sweets”". The officer referred the applicant to secondary inspection. A different border services officer asked about the contents of her bag. The applicant said that it contained only fruits and sweets, but after being told that a detector dog had identified meat products, acknowledged the meat products. The bag contained 2.2 kg of chicken sausage, 1.3 kg of beef sausage, and 5.4 kg of pork ears and sausage.
[4] A notice of violation was issued pursuant to section 7 of the Agriculture and Agri-Food Administrative Monetary Penalties Act, S.C. 1995, c. 40 [AAMP Penalties Act] and an administrative penalty of $1,300 was imposed: Division 1 of Part 1 of Schedule 1 of the Agriculture and Agri-Food Administrative Monetary Penalties Regulations, S.O.R./2000-187. The applicant asked the Tribunal to review the notice of violation and penalty.
[5] The sole question before us is whether the Tribunal’s decision—upholding the notice of violation and penalty - was reasonable: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para. 23 [Vavilov]; Canada (Attorney General) v. Chu, 2022 FCA 105 at para. 4. As the reviewing court, we must ask "“whether the decision bears the hallmarks of reasonableness—justification, transparency and intelligibility—and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision”": Vavilov at para. 99. The party challenging the decision must identify flaws that are "“sufficiently central or significant to render the decision unreasonable”": Vavilov at para. 100. Absent exceptional circumstances, this Court is not entitled to interfere with the factual findings of the Tribunal: Vavilov at para. 125.
[6] The Tribunal determined that the central issue was whether the applicant had sufficiently declared the meat products and, therefore, made them available for inspection. The Tribunal found that the applicant correctly answered the first question in the PIK declaration, but made no further express declarations of meat products until told in the secondary inspection that a dog had detected meat in her luggage. The Tribunal found this insufficient to meet the applicant’s disclosure obligations under subsection 16(1), a conclusion that was reasonable.
[7] The Tribunal considered the applicant’s argument that an E311 declaration card, completed on the airplane prior to arrival, satisfied her disclosure obligations. The card was not collected; the applicant was questioned on her PIK declaration. While we question the relevance of the E311 card, we agree with the Tribunal’s observation that a "“yes”" on any declaration, merely creates a rebuttable presumption that all products have been fully declared. It did not excuse the applicant’s failure to provide complete answers to border services officers.
[8] The Tribunal’s approach, that declaration of animal products must be truthful and timely, is consistent with this Court’s decision in Canada (Attorney General) v. Savoie-Forgeot, 2014 FCA 26 (at para. 25): "“[a] traveller is not allowed to gamble that he or she will not be directed to the secondary search area, and to declare the goods only if it appears they will be discovered as a result of a search”. "See also Canada (Border Services Agency) v. Tao, 2014 FCA 52 at para. 25.
[9] The Tribunal also reasonably determined that the applicant did not have a defence to incorrectly answering the second question on the PIK declaration based on a misunderstanding of the question. The Tribunal referred to subsection 18(1) of the AAMP Penalties Act which provides that a person named in a notice of violation does not have a defence by reason of due diligence or mistaken facts, even if "“reasonably and honestly”" believed to be true. As this Court noted in Gantcheff v. Canada (Attorney General), 2019 FCA 317 at para. 9, the scheme under the AAMP Penalties Act is one of absolute liability, leaving the person who commits a violation very few defences: Gantcheff at para. 9, citing Doyon v. Canada (Attorney General), 2009 FCA 152 at para. 27.
[10] In this Court the applicant reiterates arguments raised before the Tribunal about the sufficiency of her disclosure. The applicant further submits that the Tribunal did not consider whether she had been provided with an opportunity to establish that the meat products were eligible for importation pursuant to an exemption in section 40 of the Health of Animals Regulations, C.R.C., c. 296 [HA Regulations], thereby excusing any non-disclosure. We disagree.
[11] In our view, the obligation to declare products for inspection under subsection 16(1) exists regardless of any exemption under section 40 of the HA Regulations. Declaring animal products when required, which did not happen here, enables the border services officers to inspect the animal products and determine whether they meet the requirements for importation. A failure to declare can effectively remove that opportunity for inspection: Savoie-Forgeot at para. 22.
|
