Sylvain v. Canadian Food Inspection Agency, 2004 FC 895

Date: 20040623

Docket: T-223-04

Citation: 2004 FC 895

Ottawa, Ontario, June 23, 2004

PRESENT: THE HONOURABLE MR. JUSTICE BEAUDRY

BETWEEN:

                                                     GASTON JOSEPH SYLVAIN

                                                                                                                                            Applicant

                                                                           and

CANADIAN FOOD INSPECTION AGENCY

                                                                                                                                        Respondent

and

ATTORNEY GENERAL OF CANADA

                                                                                                                                    Mise en cause

                                            REASONS FOR ORDER AND ORDER

[1]                This is an application for judicial review seeking an order of mandamus to require the respondent, the Canadian Food Inspection Agency (the CFIA), to comply with subsection 105(1) of the Health of Animals Regulations, C.R.C., c. 296 (Regulations).

FACTS

[2]         The applicant, in his capacity as a Canadian citizen, representing himself, is seeking to force the respondent to comply with subsection 105(1) of the Regulations and to ensure that items used to transport poultry in Canada are thoroughly cleaned and disinfected.

APPLICANT'S SUBMISSIONS

[3]         The applicant contends that subsection 105(1) of the Regulations requires the respondent to ensure that the crates and containers used for transporting poultry are thoroughly cleaned and disinfected.

[4]                According to the applicant, the respondent admitted that it had difficulty enforcing subsection 105(1) of the Regulations and that it had not undertaken any concrete steps to rectify the situation prior to 2002.

[5]                Further, the applicant submits that the respondent chose not to apply the provisions of the Regulations giving it the power to impose financial penalties on members of the avian industry. In doing so, it avoided promoting awareness among members of the industry on the importance of cleaning and disinfecting poultry transport crates.

[6]                The applicant also claims that the respondent does not give its inspectors and veterinarians the scientific or technological means necessary to carry out rigorous quantitative and qualitative assessments of the performance of the obligations required by subsection 105(1) of the Regulations. Moreover, the respondent is depriving its veterinarians and inspectors of the material and budgetary resources necessary to rigorously apply subsection 105(1) of the Regulations.

RESPONDENT'S SUBMISSIONS

[7]         The respondent maintains that the applicant does not have a legal interest to apply for mandamus. It submits that the applicant had not made any application to it that had been refused. Further, it states that he cannot act in the public interest.

[8]                It also contends that the facts on which the applicant's application is based are false. The respondent claims that it does apply subsection 105(1) of the Regulations. It also states that the state of emergency alleged by the applicant does not exist. The respondent also claims that there is nothing in the record that establishes a connection between the spread of avian influenza and the crates used for poultry transport.

[9]                In the alternative, the respondent claims that the application does not satisfy the strict requirements for mandamus. First, subsection 105(1) imposes obligations on the owners or persons in charge of crates and not on the respondent. Second, the application does not meet the tests set out in the case law for obtaining mandamus.

[10]            The respondent claims that it enforces the Regulations. This is a broad discretionary power, and mandamus cannot be allowed for the purposes of guiding the use of the respondent's discretionary powers.

[11]            Furthermore, the respondent maintains that the applicant did not establish how the order sought would have any practical effect. In fact, the respondent maintains that its action plan meets international standards.

[12]            Finally, the respondent maintains that the applicant's arguments are inconsequential to this application. Moreover, he did not file any evidence to support most of his allegations.

LEGISLATION

[13]       Subsection 105(1) of the Regulations provides as follows:

ISSUES

[14]       The following issues were raised:

1.          Does the applicant have an interest to act?

2.          If so, has the applicant proved that it would be appropriate to issue an order of mandamus?

[15]            For the following reasons, I answer both questions in the negative, even though I need only answer the first. Accordingly, the application for judicial review will be dismissed.

ANALYSIS

[16]       In this case, the validity of the Regulations is not in dispute. The applicant is seeking rather to force the respondent to enforce the Regulations in a different manner.

[17]            In order to have the interest to act in a case which does not raise any issue regarding the constitutionality of an act or a regulation, the applicant must establish that he has a particular interest or will suffer a personal injury [1975] 1 S.C.R. 138">Thorson v. Canada (Attorney General), [1975] 1 S.C.R. 138). In this case, the applicant is not seeking to enforce a right or to obtain relief following a decision made by the respondent. In essence, this application is meant to force the respondent to monitor the application of the Regulations in accordance with the requirements that the applicant considers appropriate.

[18]            The applicant did not file any claim with the respondent and therefore cannot claim the existence of a right. Moreover, he does not allege having suffered damage because of the respondent's acts or omissions.

[19]            On May 9, 2002, the applicant, as vice-president of the company Terra Nova Systèmes inc. (Terra Nova) ratified a Scientific Collaboration Agreement with Her Majesty the Queen In Right of Canada (Agriculture and Agri-Food Canada) regarding a research project entitled [TRANSLATION] Assessment and Control of Pathogens in Cleaning and Sanitizing Poultry Cages.

[20]            Under this agreement, the Terra Nova company received on July 16, 2003, a letter from Dr. Robert Charlebois, a copy of which was sent to Dr. Richard Lemay stating, inter alia, "[TRANSLATION] the preliminary results are very encouraging and show that performance requirements could be established in order to quantify the capacity of establishments to obtain crates meeting specific microbiological requirements. . . . Breaking the cycle of the spread of these pathogens is perceived as being of the utmost importance and will contribute to food safety as well as to the improvement of animal health in Canada. . . .".

[21]            Relying on this letter, the applicant maintains that the respondent is not adequately enforcing subsection 105(1) of the Regulations.

[22]            There is a conflict between the parties to the agreement dated May 9, 2002. On February 18, 2004, a notice was sent by counsel of the Department of Justice of Canada legal services, on behalf of the co-contracting party, i.e. Agriculture and Agri-Food Canada, as a reminder that Terra Nova had not yet delivered the prototype for sanitizing crates for transporting poultry pursuant to its undertaking. The time limit to do so elapsed on March 3, 2004. To date, Terra Nova has not discharged its obligation.

[23]            The affidavit of Dr. Richard Lemay (veterinarian at the CFIA) establishes that the majority of federally inspected slaughterhouses use different safety programmes (paragraph 16). Since 1981, this person has visited all of Quebec's slaughterhouses on a regular basis and he maintains that the current state of relevant knowledge and technological development is not sufficient to enforce the requirement that there be a total absence of bacteria in cleaning the crates (paragraph 25). He adds that the presence of salmonella in avian livestock is a fact of nature in the sense that this bacteria normally lives (asymptomatically) in the digestive system of all poultry (paragraph 26). He therefore concludes that it is inaccurate to claim that any one relevant factor, such as cleaning the crates, take precedence over the others (paragraph 29). He confirms that the presence of inspectors is always appropriate at the different stages, i.e.: at the slaughter, evisceration, inspection, packaging and shipping of the product ready to be cooked (paragraphs 11 and 32).

[24]            Dr. André Vallières (veterinarian at the CFIA) is involved in the international emergency response teams to which Canada belongs. These teams managed the foot-and-mouth disease crisis in the field in the United Kingdom in 2001 and the Classical Swine Fever crisis in the Netherlands in 1997. In his affidavit, he states that Canada is part of the International Office of Epizootics (IOE). Included in the main purposes of the IOE: contributing expertise and stimulating international solidarity in order to control animal diseases, as well as guaranteeing food health security and promoting animal welfare by using a scientific approach.

[25]            As a member of the IOE, Canada implements the recommendations from this organization in an effort to prevent the introduction of serious animal diseases into the country and to control them in the event that they are accidentally introduced. Dr. Vallières identifies many ways that contamination can be transmitted, such as: direct contact between an infected animal and an animal that is healthy but susceptible to infection; indirectly through contamination of food or drinking water; the movement of personnel whose protective clothing is soiled with infected matter (faeces); use of contaminated equipment and others (paragraph 32). Wild birds can also be responsible for infecting domestic poultry.

[26]            This is why the veterinarian finds that the crates are only one of many other risks for the spread of avian diseases and not necessarily the greatest risk (paragraph 58). He adds at paragraph 60, "[TRANSLATION] it is wrong to say that improperly cleaned crates are the primary source of infection by exotic animal diseases of domestic poultry farms. Such a claim is inconsistent with recognized scientific data." (Emphasis added).

[27]            The applicant had the opportunity to question the representatives of two of the largest slaughterhouses in Quebec (75 % of the poultry market) and they explained to him how the industry imposed protective measures on itself against contamination when the cleaning of crates was taking place. One of the representatives admitted that, despite all of the precautions taken, the occasional crate remains dirty, not unlike a glass that remains dirty after being washed in a dishwasher.

THE REQUIREMENTS FOR OBTAINING MANDAMUS

[28]            The Federal Court of Appeal listed the requirements for issuing an order of mandamus in Apotex Inc. v. Canada (Attorney General), [1994] 1 F.C. 742 (C.A.) :

[44]          Most issues raised by counsel concern the availability of orders in the nature of mandamus. I propose to outline in general terms the principles governing such orders before clarifying those issues central to this appeal.

(1) Mandamus-The Principles

[45]          Several principal requirements must be satisfied before mandamus will issue. The following general framework finds support in the extant jurisprudence of this Court (see generally O'Grady v. Whyte, [1983] 1 F.C. 719 (C.A.), at pages 722-723, citing Karavos v. Toronto & Gillies, [1948] 3 D.L.R. 294 (Ont. C.A.), at page 297; and Mensinger v. Canada (Minister of Employment and Immigration), [1987] 1 F.C. 59 (T.D.), at page 66.

1.             There must be a public legal duty to act: Minister of Employment and Immigration v. Hudnik, [1980] 1 F.C. 180 (C.A.); Jefford v. Canada, [1988] 2 F.C. 189 (C.A.); Winegarden v. Public Service Commission and Canada (Minister of Transport) (1986), 5 F.T.R. 317 (F.C.T.D.); Rossi v. The Queen, [1974] 1 F.C. 531 (T.D.); Canadian Wildlife Federation Inc. v. Canada (Minister of the Environment), [1989] 3 F.C. 309 (T.D.); affd [1990] 2 W.W.R. 69 (F.C.A.); Bedard v. Correctional Service of Canada, [1984] 1 F.C. 193 (T.D.); Carota v. Jamieson, [1979] 1 F.C. 735 (T.D.); affd [1980] 1 F.C. 790 (C.A.); and Nguyen v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 232 (C.A.).

2. The duty must be owed to the applicant: [See Note 6 below] Rothmans of Pall Mall Canada v. Minister of National Revenue (No. 1), [1976] 2 F.C. 500 (C.A.); Distribution Canada Inc. v. M.N.R., [1991] 1 F.C. 716 (T.D.); affd [1993] 2 F.C. 26 (C.A.); Secunda Marine Services Ltd. v. Canada (Minister of Supply & Services) (1989), 38 Admin. L.R. 287 (F.C.T.D.); and Szoboszloi v. Chief Returning Officer of Canada, [1972] F.C. 1020 (T.D.); see also Jefford v. Canada, supra.

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Note 6:    Generally, the rule is that mandamus cannot issue with respect to a duty owed to the Crown. Historically, this issue has been framed as one concerning standing to bring a mandamus application. The Supreme Court has considerably loosened the requirements for standing over the decades; see[1975] 1 S.C.R. 138">Thorson v. Attorney General of Canada et al., [1975] 1 S.C.R. 138; [1976] 2 S.C.R. 265">Nova Scotia Board of Censors v. McNeil, [1976] 2 S.C.R. 265; [1981] 2 S.C.R. 575">Minister of Justice of Canada et al. v. Borowski, [1981] 2 S.C.R. 575; Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607. For a discussion of the application of these cases to mandamus proceedings, see Distribution Canada Inc. v. M.N.R., supra, per Desjardins J.A. at pp. 38-39.

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3. There is a clear right to performance of that duty, in particular:

(a) the applicant has satisfied all conditions precedent giving rise to the duty; O'Grady v. Whyte, supra; Hutchins v. Canada (National Parole Board), [1993] 3 F.C. 505 (C.A.); and see Nguyen v. Canada (Minister of Employment and Immigration), supra;

(b) there was (I) a prior demand for performance of the duty; (ii) a reasonable time to comply with the demand unless refused outright; and (iii) a subsequent refusal which can be either expressed or implied, e.g. unreasonable delay; see O'Grady v. Whyte, supra, citing Karavos v. Toronto & Gillies, supra; Bhatnager v. Minister of Employment and Immigration, [1985] 2 F.C. 315 (T.D.); and Canadian Wildlife Federation Inc. v. Canada (Minister of the Environment), supra.

4. Where the duty sought to be enforced is discretionary, the following rules apply:

(a) in exercising a discretion, the decision-maker must not act in a manner which can be characterized as "unfair", "oppressive" or demonstrate "flagrant impropriety" or "bad faith";

(b) mandamus is unavailable if the decision-maker's discretion is characterized as being "unqualified", "absolute", "permissive" or "unfettered";

(c) in the exercise of a "fettered" discretion, the decision-maker must act upon "relevant", as opposed to "irrelevant", considerations;

(d) mandamus is unavailable to compel the exercise of a "fettered discretion" in a particular way; and

(e) mandamus is only available when the decision-maker's discretion is "spent"; i.e., the applicant has a vested right to the performance of the duty.

See Restrictive Trade Practices Commission v. Director of Investigation and Research, Combines Investigation Act, [1983] 2 F.C. 222 (C.A); revg [1983] 1 F.C. 520 (T.D.); Carota v. Jamieson, supra;Apotex Inc. v. Canada (Attorney General) et al., supra; Maple Lodge Farms Ltd. v. Government of Canada, [1980] 2 F.C. 458 (T.D.); affd [1981] 1 F.C. 500 (C.A.); affd [1982] 2 S.C.R. 2">[1982] 2 S.C.R. 2; Jefford v. Canada, supra; Merck & Co. Inc. v. Sherman & Ulster Ltd., Attorney-General of Canada, Intervenant (1971), 65 C.P.R. 1 (Ex. Ct.); appeal dismissed [1972] S.C.R. vi; Distribution Canada Inc. v. M.N.R., supra; and Kahlon v. Canada (Minister of Employment and Immigration), [1986] 3 F.C. 386 (C.A.).

5. No other adequate remedy is available to the applicant: Carota v. Jamieson, supra; Maple Lodge Farms Ltd. v. Government of Canada, supra; Jefford v. Canada, supra; [1979] 2 S.C.R. 561">Harelkin v. University of Regina, [1979] 2 S.C.R. 561; and see Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources), [1987] 1 F.C. 406 (C.A.); appeal dismissed [1989] 2 S.C.R. 49.

6. The order sought will be of some practical value or effect: Friends of the Oldman River Society v. Canada (Minister of Transport), [1990] 2 F.C. 18 (C.A.), per Stone J.A., at pages 48-52; affd [1992] 1 S.C.R. 3, per La Forest J., at pages 76-80; Landreville v. The Queen, [1973] F.C. 1223 (T.D.); and Beauchemin v. Employment and Immigration Commission of Canada (1987), 15 F.T.R. 83 (F.C.T.D.).

7. The Court in the exercise of its discretion finds no equitable bar to the relief sought: Penner v. Electoral Boundaries Commission (Ont.), [1976] 2 F.C. 614 (T.D.); Friends of the Oldman River Society v. Canada (Minister of Transport), supra.

8. On a "balance of convenience" an order in the nature of mandamus should (or should not) issue.

(Emphasis added.)

[29]            In my view, the applicant has not satisfied the requirements set out above. The provision at the heart of this litigation, subsection 105(1) of the Regulations, does not impose any obligation on the respondent but rather on the owners and persons in charge of the crates used to transport poultry. The respondent's role is to ensure that the Regulations are enforced, which is within its discretionary power. The applicant did not show how the respondent failed to fulfill its legal obligation to act.

[30]            The applicant did not file any evidence establishing that the respondent does not discharge its obligation to ensure that the owners and persons in charge of crates respect the obligations imposed on them under subsection 105(1) of the Regulations.

[31]            Moreover, the applicant did not establish that the respondent acted unfairly or oppressively when exercising its discretionary power. In fact, the respondent has unlimited supervisory powers, meaning that pursuant to requirement 4(b) described in Apotex, supra, that mandamuscannot issue. Moreover, the application in this case is designed to give a specific orientation to the respondent's discretionary power. I do not see how I can grant mandamus for this purpose.

[32]            Besides, the applicant has not established the practical effect of an order of mandamus. The Court and the applicant are not more able than the respondent to determine how it should exercise its supervisory power.

[33]            An analogous situation existed in Distribution Canada Inc. v. Canada (Minister of National Revenue - M.N.R.), [1991] 1 F.C. 716 (Trial Division), conf. [1993] 2 F.C. 26 (F.C.A.). In that matter, the Court of Appeal decided that a grocers' organization did not have sufficient interest to make a motion for mandamus to compel the Minister of National Revenue to strictly comply with section 4 of the Customs Tariff, R.S.C. 1985, c. C-54, which provided for the collection of custom tariffs on some items coming into Canada. In that case, the Court determined that when a public officer has been given discretion in terms of what he does, how he does it, when he does it, or the recipient or beneficiary of the acts in question, there is no judicially enforceable duty on his part. The Court cannot compel a Department or a public officer to do a particular thing at a particular time or in favour of a particular person. The Court of Appeal added that the relief that can be sought to sanction the failure to act or the misconduct of a department or a public official is related to policy and not to the courts. The Court cannot direct the Minister with regard to how to enforce the law. Strayer J.A. states the following at page 729:

[14] . . . I believe the present case is not one where the Minister of National Revenue has totally refused or failed to carry out any enforcement of the Customs Tariff. Instead, it is his policy and practice to enforce that Act through collections to the extent that it is feasible to do so, given the resources made available to him by Parliament through the funding of staff and facilities. He has also obviously taken into account the impact of different levels of enforcement on U.S. tourist traffic into Canada and the impact on U.S. border areas in respect of lineups for entry into Canada. The law is clear that, if these considerations were completely irrelevant to the proper administration of the Act or if they involved bad faith or improper motives on the part of the Minister and his Department, they might invite some sort of judicial review. . . .

[34]            In my view, the findings of the Court of Appeal in Distribution Canada Inc., supra, are particularly fitting in this case.

[35]            By applying that case here, I find that the applicant does not have the interest to act because the respondent has no obligation toward it.

[36]            Even if the applicant did have sufficient interest, he did not establish that the respondent was not ensuring the enforcement of subsection 105(1) of the Regulations. There is nothing in the record to support a finding that it did not exercise its discretionary power in good faith and for legitimate reasons.

[37]            For these reasons, the application for judicial review is dismissed.

                                   ORDER

THE COURT ORDERS that:

1.         The application for judicial review is dismissed.

2.         As to costs, a lump sum of $1,500 shall be paid by the applicant to the respondent no later than July 31, 2004.

                                                                                 "Michel Beaudry"               

                                                                                                   Judge                         

Certified true translation

Kelley A. Harvey, BA, BCL, LLB

                                                 FEDERAL COURT

                                          SOLICITORS OF RECORD

DOCKET:                                                                      T-223-04

STYLE OF CAUSE:                                                      GASTON JOSEPH SYLVAIN and

CANADIAN FOOD INSPECTION AGENCY and

ATTORNEY GENERAL OF CANADA

PLACE OF HEARING:                                                Montréal, Quebec

DATE OF HEARING:                                                  June 8, 2004

REASONS FOR ORDER

AND ORDER:                                                               THE HONOURABLE MR. JUSTICE BEAUDRY

DATE OF REASONS AND OF ORDER:                   June 23, 2004

APPEARANCES:

Gaston Joseph Sylvain                                                      FOR THE APPLICANT

(representing himself)

Guy M. Lamb                                                                   FOR THE RESPONDENT

SOLICITORS OF RECORD:

Gaston Joseph Sylvain                                                      FOR THE APPLICANT

Montréal, Quebec                                                            (representing himself)

Morris Rosenberg                                                             FOR THE RESPONDENT

Deputy Attorney General of Canada

Montréal, Quebec