Date: 20040227
Docket: T-223-04
Citation: 2004 FC 295
Ottawa, Ontario, February 27, 2004
PRESENT: THE HONOURABLE MR. JUSTICE SHORE
BETWEEN:
GASTON JOSEPH SYLVAIN
Applicant
and
CANADIAN FOOD INSPECTION AGENCY (CFIA)
Respondent
REASONS FOR ORDER AND ORDER
[1] This is a motion under section 364 of the Federal Court Rules, 1998, through which the applicant is seeking an interim injunction pursuant to the provisions of subsection 374(1) of the Rules.
[2] Gaston Joseph Sylvain, the applicant, is asking that the Court order the respondent to implement, without further delay, subsection 105(1) of the Health of Animals Regulations and to apply forthwith its Meat Hygiene Directives on the cleaning and disinfecting of crates used for the transportation of poultry; that the Court order the respondent to put an end to the offending practices of the two facilities covered by the scientific investigations attached to the application and any other facilities that to its knowledge are not in compliance with subsection 105(1) of the Regulations and in breach of the Meat Hygiene Directives, Schedule III, clause 3.8.3, and to file with the Court a remedial plan based on microbiological performance criteria certifying that each of the premises covered by this order shall thoroughly disinfect the chicken transportation crates passing through the said premises.
ALLEGATIONS
[3] Gaston Joseph Sylvain directed a research project with Agriculture and Agri-Food Canada (AAC) on the control of pathogens present in poultry transportation.
[4] Mr. Sylvain alleges that this research led him to the conclusion that there is a serious risk of an epidemic of type H7 influenza due to the fact that the abattoirs do not properly disinfect the poultry transportation crates before putting the poultry in them.
[5] Mr. Sylvain communicated his fears to AAC, but AAC answered that it lacked the resources to ensure that the cages are disinfected as provided by subsection 105(1) of the Regulations.
ISSUES
[6] Does Gaston Joseph Sylvain have a legal interest in this matter?
[7] Is there such urgency that there is no other means of proceeding in order to prevent the harm that could occur?
[8] Is there a serious question to be tried?
[9] Would there be irreparable harm if the application were refused?
[10] Who does the balance of convenience favour?
ANALYSIS
Does Gaston Joseph Sylvain have a legal interest in this matter?
[11] It is possible that Mr. Sylvain does have a legal interest. However, it is unnecessary to decide this question, since even if he does have a legal interest he has not demonstrated that an injunction is necessary.
Is there such urgency that there is no other means of proceeding in order to prevent the harm that could occur?
[12] In R.J.R. MacDonald Inc. v. Canada (Attorney General), Sopinka and Cory JJ. summarized the three stages that the courts must apply when considering a motion for an interlocutory injunction. They said:
First, a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried. Secondly, it must be determined whether the applicant would suffer irreparable harm if the application were refused. Finally, an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits. ...
[13] In motions for interim injunctions, there is one further stage to be completed before the Court will issue the order. The Rules cover some situations of such urgency that the applicant cannot await the hearing on the application for an interlocutory injunction. In those situations, the respondent moves under subsection 469(2) for an interim injunction. Since it is a case of urgency, the applicant need not follow certain procedural rules; for example, the application may be presented ex parte, and the applicant need not file the record at least 10 clear days prior to the hearing date.
[14] The applicant thus benefits from the departure from the procedural rules, but at the same time he must demonstrate that it is urgent that he obtain the injunction. If he cannot demonstrate this, he risks the dismissal of his motion if the Court finds that the applicant filed a motion for an interim injunction for the purpose of circumventing the Rules.
[15] In this case, Mr. Sylvain has not claimed that there was such urgency that he could not await the hearing of an application for an interlocutory injunction. However, the Court does not deem his motion should be dismissed simply because he has moved for an interim, not interlocutory injunction.
[16] First, the motion proceeded as a regular motion. Mr. Sylvain filed his record ten days before the hearing. Moreover, the proceeding is not ex parte. Finally, both parties have filed complete affidavits and the Court is of the view that the arguments were comprehensive. Mr. Sylvain has gained nothing from the fact that the motion is entitled "interim" instead of "interlocutory".
[17] Second, it is quite possible that Mr. Sylvain moved for an interim, and not interlocutory, injunction by mistake. He is acting alone, and the difference between interim and interlocutory injunctions is not necessarily obvious for someone who is not a lawyer. Consequently, the Court is of the view that this error should not be fatal to the motion.
Is there a serious question to be tried?
[18] Gaston Joseph Sylvain has filed the report he wrote for AAC, some reports explaining that avian influenza is highly contagious and transmissible by poultry transportation crates, and an affidavit by Pierre Dion, president of the company that did the research on the control of pathogens in the transportation of poultry.
[19] The respondent has filed an affidavit by Richard Lemay, a veterinarian and employee of the Canadian Food Inspection Agency (the CFIA), who attests that it is impossible to totally sterilize a crate. He also attests that the CFIA inspectors have the power to inspect facilities to verify compliance of their cleaning process with the Regulations and to require that the facilities take corrective measures when they are not in compliance. The respondent also filed a letter written by Patrick Folz, a lawyer with the Department of AAC, in which he reminds Gaston Joseph Sylvain of the terms of the contract between Terra Nova Systèmes and AAC and states that Terra Nova Systèmes is in breach of the contract.
[20] The Court is of the view that, although the respondent has raised some doubt that the matter is a problem of contract and not of hygiene, the applicant has nevertheless filed sufficient evidence to determine that the issue is neither frivolous nor vexatious. Consequently, there is a serious question to be tried.
Would there be irreparable harm if the application were refused?
[21] The Court is of the view that Gaston Joseph Sylvain is contending that if the CFIA does not require the facilities using poultry crates to disinfect them properly, there will be an epidemic of avian influenza.
[22] The Court does not deem that the evidence presented by Mr. Sylvain is sufficient to demonstrate that there will be an epidemic of avian influenza if the application is dismissed.
[23] Mr. Sylvain conducted his research in two abattoirs. Although the research shows that there are probably some hygiene problems in both of these abattoirs, it does not show that there is a systematic problem of disinfection of the poultry crates. Furthermore, Mr. Sylvain's evidence does not show that once the CFIA was alerted to the problems in the two abattoirs, the problems were not resolved.
[24] The evidence presented by the respondent is not strong, either. The affidavit of Richard Lemay is general in nature and does not address the situation in the abattoirs examined by Mr. Sylvain. The latter could have cross-examined Mr. Lemay, but he chose not to do so. Mr. Lemay contradicts Mr. Sylvain's evidence, therefore, if only in a general way.
[25] In the last analysis it is Gaston Joseph Sylvain who has the burden of proof, and the burden is a heavy one. He must demonstrate not only that it is possible there will be irreparable harm, but also that he is certain that irreparable harm will result if the Court dismisses his motion. The Court is of the view that he has demonstrated only that it was possible that irreparable harm would result.
Who does the balance of convenience favour?
[26] Since Mr. Sylvain has not established the second step in the test applicable to applications for interlocutory injunctions, it is the Court's opinion that he fails in regard to the third step.
CONCLUSION
[27] For all of these reasons, the motion is dismissed.
ORDER
THE COURT ORDERS that the motion be dismissed.
In obiter
Although the motion is not granted, further to the detailed documentation and explanations provided by both parties, the Court finds that the applicant is alerting the respondent to its fundamental responsibility in regard to the Canadian public and, thus, of the need for continuous vigilance. As a result of the experience with Severe Acute Respiratory Syndrome (SARS), the state of the art has necessitated the respondent to publicize its responsibility for prevention and not only for reaction. Therefore, not only should a project be ready for the future, whenever and wherever, circumstances require dissemination of information, but it is imperative to assure the Canadian public, step by step, that the Agency monitors and attends to all potential contingencies that might arise inasmuch as is ascertainable in light of the existing state of knowledge.
"Michel M.J. Shore"
Judge
Certified true translation
Suzanne Gauthier, C.Tr., LL.L.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-223-04
STYLE: GASTON JOSEPH SYLVAIN
v. CANADIAN FOOD INSPECTION AGENCY
PLACE OF HEARING: QUÉBEC, QUEBEC
DATE OF HEARING: FEBRUARY 26, 2004
REASONS FOR ORDER
AND ORDER: THE HONOURABLE MR. JUSTICE SHORE
DATED: FEBRUARY 27, 2004
APPEARANCES:
Gaston Joseph Sylvain FOR THE APPLICANT
Guy Lamb FOR THE RESPONDENT
SOLICITORS OF RECORD:
GASTON JOSEPH SYLVAIN FOR THE APPLICANT
MORRIS ROSENBERG FOR THE RESPONDENT
Deputy Attorney General of
Canada
SOR/91-525 (the Regulations).
Kun Shoulder Rest Inc. v. Joseph Kun Violin and Bow Maker Inc., [1997] F.C.J. No. 1386 (QL) in paras. 23-24.
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