CFIA and the Transportation of Animals

Recently there have been a number of decisions involving prosecutions by the Canadian Food Inspection Agency dealing with the transportation of animals and the application of the Health of Animals Regulations.

A. Serbo Transport inc. and F. Ménard inc.  v.  Canada  (CFIA),  2016  CART  19

On July 23, 2013, employees of the applicant trucking company, Serbo Transport inc. (“Serbo”) loaded and transported a load of 193 hogs owned by the applicant pork producer F. Ménard inc.  (“Ménard”) from a Quebec farm to the Agromex slaughter house  (“Agromex”). After the pigs were unloaded, one pig in particular was observed to have a serious limp and, upon further examination, a Canadian Food Inspection Agency (Agency) veterinarian, Dr. Marius Liviu Dumitru (“Dr. Dumitru”), ordered the pig euthanized by a slaughter house employee. Dr. Dumitru then carried out a post mortem of the pig.

Given Dr. Dumitru’s observations, which formed part of the Agency’s investigation of the event, the Agency issued a Notice of Violation with Penalty on September 11, 2014, to each of Serbo and Ménard in the amount of $6,600 for loading, having loaded, transporting or having transported an animal which could not be loaded or transported without causing undue suffering contrary to paragraph 138(2)(a) of the Health of Animals Regulations (HA Regulations).

Serbo and Ménard then separately requested that the Canada Agricultural Review Tribunal  (“Tribunal”) review the facts surrounding the issuance of their respective Notices of Violation.

The crux of the violation was whether Pig #19 was non‑ambulatory and unfit for transport prior to the time it was found in the holding pen at Agromex.

For a conviction, the Agency must establish each of the seven elements of the offence:

1.      that the animal in question was loaded (or was caused to be loaded) or transported (or caused to be transported);

2.      that the animal in question was loaded onto or transported on a railway car, motor vehicle, aircraft or vessel;

3.      that the cargo loaded or transported was an animal;

4.      that the animal could not be transported without undue suffering;

5.      that the animal suffered unduly during the expected journey (“voyage prévu” in French);

6.      that the animal could not be transported without undue suffering by reason of infirmity, illness, injury, fatigue or any other cause; and

7.      that there was a causal link between the transportation, the undue suffering and the animal’s infirmity, illness, injury or fatigue, or any other cause.

The regime established by the Agriculture and Agri-Food Administrative Monetary Penalties Act  [“AMP Act”]  and Regulations is harsh. It grants to the Agency the ability to prove the violation using a burden of proof, on a “balance of probabilities”, rather than the heavier burden of “beyond a reasonable doubt”. The AMP Act creates an absolute liability regime whereby it specifically disallows any defence of due diligence and mistake of fact.

The Chairperson of the Canada Agricultural Review Tribunal [CART] had to deal with an event which took place three years prior to the hearing. The Tribunal Chairperson stated:

When faced with a request to review of the facts of this case, I take notice of the practical difficulties the alleged violator faces in producing an evidentiary record to counterbalance that offered by the Agency. In this case, Serbo was able to have the driver of the load, containing the pig in question, testify, but he had no recollection of the pig. This is understandable given that he testified that he hauls thousands of pigs per year and the hearing of this matter occurred nearly three years after the event.

One key element of the offence that the Tribunal Chairperson took into account was the establishment of “undue suffering”. 

The Tribunal Chairman referred to the decision of Attorney General of Canada v. Porcherie des Cèdres Inc., 2005 FCA 59 (CanLII), where the issue was to determine the meaning of the expression “undue suffering” found in paragraph 138(2)(a). The Court in that case was of the opinion that the Tribunal had interpreted “undue” too restrictively by giving it the meaning of “excessive”. The Court gave it the more usual, all-encompassing meaning of “unjustifiable”, “unreasonable” and “inappropriate”. The Court stated at paragraphs 31 to 36:

 [31]   The case at bar does not dispute this interpretation. However, it does challenge the very parameters of the violation, that is, its essential elements and their scope. At issue are also the sufficiency and the probative value of the evidence of undue suffering, the causal link and the Tribunal’s interpretation and application of that evidence.

 [33]   Contrary to what the applicant suggests, it is not necessary for an animal to be suffering at the time and place of its being loaded for transportation for a violation of paragraph 138(2)(a) of the Regulations to be committed. Although this Court’s decision in Samson v. Canada (Canadian Food Inspection Agency), 2005 FCA 235 (CanLII), at paragraphs 11 and 12, may be somewhat ambiguous in that respect, it is clear to me, first, that the provision is not limited to cases in which an animal’s condition worsens as a result of its being transported. It prohibits transportation in conditions that cause undue suffering to an animal thus transported.

  [34]   Beyond the reasons of an animal’s infirmity, illness, injury or fatigue, the provision also proscribes the imposition of undue suffering for “any other cause” on an animal, which may otherwise be healthy. Undue suffering can result from suffocating, unsuitable, gruelling and intolerable transport conditions caused by, for example, cramped space, overcrowding, temperature, the length of the journey or a combination of such factors.

 [35]   Of course, proof of undue suffering can, with respect to the owner of the animal, be made more easily if, during loading, the animal was visibly ill and suffering before the decision to include it in the load was made.

 [36]   But it is also clear to me, second, that the fact that an animal is compromised and suffering does not necessarily mean that it cannot be transported, especially if it remains ambulatory. The literature to help producers and transporters comply with the regulations identifies the class of “lameness”. It indicates that hogs that fall into classes 1 to 3 may be transported to the slaughterhouse as long as the following measures are taken: isolating them from healthy hogs, transporting them to the slaughterhouse as quickly as possible, loading them last in the rear compartment of the trailer and unloading them first upon arrival at the slaughterhouse...

The Tribunal Chairman in this decision added:

While Parliament has enacted a specific provision to protect animal health for animals during transport from undue suffering, the provision must be interpreted so as to maintain a balance between the regular commercial activities of actors in agricultural and agri‑food production systems and the protection of the animals in those systems. The deliberate intention of Parliament to use the phrase “undue suffering” must therefore be read in the context of this balancing in mind, given the scheme and object of the HA Act and HA Regulations.

 “Undue” under this legislative scheme means “undeserved”, “unwarranted”, “unjustified”, or “unmerited” (Porcherie des Cèdres, at paragraph 26) and “unjustified”, “unmerited” or “unwarranted” (Doyon, at paragraph 30). As such, liability will generally attach to an actor in the Canadian agri‑food system where animals in the care and control of that actor are exposed to “undeserved”, “unwarranted”, “unjustified” or “unmerited” suffering.

The Chairman dealt with the evidence and noted:

Beyond his own ante mortem and post mortem examinations, Dr. Dumitru did not order any further tests, such as a histography, to determine the exact pathology of the tissue and bone in the pig’s injured hip area.

The Tribunal Chairman also noted that the interpretation of the results of Dr. Dumitru’s post mortem examination was disputed by the experts.

The Chairman stated:

Undue suffering can result from suffocating, unsuitable, gruelling and intolerable transport conditions caused by, for example, cramped space, overcrowding, temperature, the length of the journey or a combination of such factors … There is no evidence of such factors in this case.

There is no evidence which showed that the loading, transit or unloading of the pigs was in any way unusual or compromised.

The Chairman found that on a balance of probabilities the Agency had failed to prove the seven elements of the offence.

B. 1301479 Ontario Inc. (dba Utica Livestock Carriers) v. Canada (Canadian Food  Inspection Agency), 2016 CART 22

American horses are shipped to Canada for slaughter and processed here into consumable meat products. Mr. Fred Bauer (“Mr. Bauer”) of La Rue, Ohio, is one such shipper who regularly retained the services of 1301479 Ontario Inc., doing business as Utica Livestock Carriers (“Utica”), to transport his American slaughter horses to Canada. On November 1, 2012, Ms. Gina Arsenault (“Ms. Arsenault”), an employee of Utica and driver of one of Utica’s horse transport trailers, received onto her trailer 29 horses from Mr. Bauer’s farm in Ohio.

At the Canadian border, Ms. Arsenault’s load was inspected and certified, and, when all was found to be in order, the Canadian Food Inspection Agency (“Agency”) officials sealed the trailer and Ms. Arsenault resumed her journey across Ontario and into Quebec.

The next day, Ms. Arsenault arrived with her load at the Viande Richelieu Meats inc. (“Richelieu Meats”) slaughterhouse in Massueville, Quebec. An Agency veterinarian, Dr. Véronique Martel (“Dr. Martel”) observed all the horses coming off Ms. Arsenault’s trailer and then inspected Ms. Arsenault’s empty trailer, which was found to be in good order. Later that morning, Dr. Martel inspected the holding pens of Richelieu Meats containing the horses that came off Ms. Arsenault’s trailer and found one horse (“Horse 9584”) to be in poor condition.

Twenty months later, on July 14, 2014, the Agency issued to Utica a Notice of Violation with a penalty in the amount of $6,600 for loading, having caused to be loaded, transporting or having caused to be transported an animal which could not be loaded or transported without causing undue suffering during the expected journey contrary to paragraph 138(2)(a) of the Health of Animals Regulations (HA Regulations).

Interestingly, the Chairman of the Tribunal referred to the difficulties of the respondent in gathering evidence a number of months after the violation, stating:

Required to recall or reconstruct events that occurred three years prior, Utica is faced with a significant documentary and testimonial challenge. I take notice of the practical difficulties Utica faces in producing an evidentiary record to counterbalance that offered by the Agency. In this case, Utica was able to have the driver of the load Ms. Arsenault, testify, but she had no recollection of Horse 9584. This is understandable given that she testified that she hauls thousands of horses per year and the hearing of this matter commenced three years after the event.

The Chairman reviewed the evidence that was available and concluded:

There is no direct evidence in the record or from the hearing that Horse 9584 was suffering any physical ailment prior to Dr. Martel’s discovery of it in the holding pens of Richelieu Meats the morning of November 2, 2012. In fact, all of the direct evidence points to Horse 9584 being an unremarkable, fit-for-transport animal.

The Chairman found that Utica had not committed the violation.

C. Christensen  v.  Canada (Canadian Food Inspection Agency), 2016 CART 23

This case concerns the state of a trailer used for animal transport, where the same facts resulted in the issuance of two Notices of Violation. The Canada Agricultural Review Tribunal (“Tribunal”) determined that it would first address the alleged violation with respect to whether “insecure fittings, the presence of bolt-heads, angles or other projections” in relation to the trailer amounted to a circumstance where injury or undue suffering to the animals transported was likely. Depending on the result of such evaluation, the Tribunal was then to determine whether it was necessary to address the second Notice of Violation, addressing whether the state of repair of such trailer amounted to inadequate construction that made injury or undue suffering to the transported animals likely.

The Tribunal used the same analysis of the elements of the offence and reviewed the available evidence. It concluded that the Agency established, on the balance of probabilities, that Carsten Christensen committed the first violation as alleged. In particular, he transported an animal in a container where injury or undue suffering is likely, by reason of insecure fittings.

A review of the case law indicates an increase in the number of violations being pursued by the CFIA and also being subjected to review.