[1] The appellants are appealing from a judgment of Tremblay-Lamer J. (see Wadacerf International Inc. v. Canada, [2000] F.C.J. 517) which allowed in part an action in tort brought by the respondent pursuant to s. 3(a) of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50.

[2] Wadacerf International Inc., a business importing and exporting members of the deer species (cervidae), obtained an import permit from Agriculture Canada for 663 fallow deer from Australia. The fallow deer were scheduled to arrive at Mirabel airport and were to be taken to a farm used by the respondent at Saint-Augustin for the compulsory quarantine mentioned in the Health of Animals Act, S.C. 1990, c. 21. The quarantine facilities had also been approved by Agriculture Canada. The respondent hired the services of the Danzas company to transport the deer from Australia to the Saint-Augustin farm. When they left Australia the deer were placed in large two-storey cages for transport. To guarantee the animals' safety, it was arranged that on arrival at Mirabel the cages would be placed on roller-beds to be taken to the farm. A roller-bed is a transport vehicle onto which the cages could be slid on a roller system, so making it unnecessary to transfer the animals. An area was also set apart in the quarantine facilities to clean and disinfect the cages. The respondent had in fact purchased specific equipment for that purpose.

[3] However, on arrival at Mirabel on June 1, 1991 the deer were taken out of the cages and transferred to four transport trailers awaiting them. These transport trailers had been used to carry horses. None was a roller-bed.

[4] The deer on the second level of the cage had to jump four feet before getting onto the trailers. The deer on the first level did not have to jump. They only had to walk onto the trailers, which were on the same level as the cage floor.

[5] Fearing that the deer on the second level would be injured jumping into the trailers because they were sliding, Dr. Pierre Viviers, a veterinarian responsible for implementing the Act and its Regulations (C.R.C. 1978 c. 296), suggested that bales of straw be placed in the trailers to ease the fall and reduce the distance between the second-level cage and the trailer floor. He later found that the deer did not use the bales to get into the trailer, but jumped further into it. He made no objection to the unloading of the deer proceeding, as it had begun, in keeping with a comment by the Australian exporter's representative Pat Stratten that there was no risk for the deer because the four-foot jump was not so high for them. As he did not have [TRANSLATION] "a lot of experience with this kind of animal", Dr. Viviers admitted that he relied on people [TRANSLATION] "who said they had experience" (transcript of February 15, 2000, p. 18, ll. 1-10; p. 19, l. 25). However, he stated that the appellants had a [TRANSLATION] "humanitarian" responsibility when the animals were unloaded (hearing of February 15, 2000, p. 19, ll. 9-15):

[TRANSLATION]

Q. So you have a responsibility for the health of the animals?

A. Yes, including transportation. In our regulations, there is a part which indicates that transportation must be carried out in a humanitarian way, and then there is the loading and unloading of the animals: that is also part of the transportation.

[6] It should be noted that this was the first time fallow deer had been unloaded at Mirabel (testimony of Dr. Charles Paquin, transcript of February 15, 2000, p. 27, ll. 20-25).

[7] Dr. Viviers did not subsequently observe the deer being seriously injured when they jumped into the trailers. He also did not hear anyone say, when the carriers returned to get other cargo to be taken to the farm, that the deer had injured themselves jumping into the trailers, which he would have expected if it had been the case.

[8] Twelve deer died on the first trip from the airport to the farm. Gilles Forgeot, the respondent's principal representative, ascribed their death to stress. According to Dr. Charles Paquin of Agriculture Canada, who was present at the unloading of the deer at the airport before the first trip to the farm and who accompanied the first trip to the farm, where he remained, the death of the deer was due to the fact that they were crammed closely together and the truck had to brake on the trip to the farm.

[9] At the suggestion of this veterinarian, the carriers used barriers in the horse trailers to make the later trips.

[10] No other deaths caused by the transportation were reported.

[11] However, at the farm Dr. Paquin observed that some deer were limping, but did not regard the injuries to their hooves as serious.

[12] In the days following the arrival of the deer at the farm, the tests for diseases indicated in the import permit were delayed at the respondent's request in order to allow the deer to calm down after their travel from Australia and to give them time to become accustomed to their new surroundings.

[13] At the time blood samples were taken by Dr. Paquin for testing on June 25, 1991, and in the days following, 35 deer had been separated by the respondent for hoof treatment. According to Dr. Paquin, these were the only animals whose hooves had been injured. Mr. Forgeot, on the other hand, claimed that there were many more, about half, that had hoof problems which he said had been caused by the unloading at the airport.

[14] In early August 1991 further blood samples were taken when certain tests prescribed in the import permit proved positive.

[15] The death of several deer was reported by the respondent: five in June from hoof injuries, four in July from a hoof infection and nine on August 1 for the same reasons.

[16] When four more deer died on August 16, 1991 autopsies were carried out. At that time worms were found in the bronchi. Suitable treatment was given.

[17] Further deaths were reported by the respondent: one on August 22 from a hoof injury, three on August 28 from hoof injuries and three on September 3 from hoof injuries. Autopsies were done on the six carcasses. It was found that the deer had foot abscesses with septicemia or infections.

[18] In early September 1991 further blood samples were taken when a deer tested positive from one of the tests prescribed in the import permit. The stress of the tests caused three other deer to die.

[19] Other fatalities among the deer were reported by the respondent: 11 on September 17 from hoof infections and 7 on September 25 from the same cause. Autopsies were done but nothing special was noted.

[20] On September 30, 1991 the quarantine at the farm was lifted. There were 588 deer left.

[21] The respondent subsequently reported further fatalities among the deer: 16 in late October due to freezing rain, 20 in late November also due to freezing rain and about 80 on December 4 because of the cold.

[22] On December 13 an autopsy was done at the animal pathology laboratory in Saint-Hyacinthe at the request of the Society for the Prevention of Cruelty to Animals (SPCA), when about 440 animals died in two weeks. It was found that the animals were suffering from severe cachexy.

[23] On December 18, 1991, when a microbacterium similar to tuberculosis was discovered in the carcass of a bison suspected of coming from the respondent's farm, a second quarantine was imposed on the Saint-Augustin farm to prevent animals, including deer, being removed. At that time there were 420 deer at the farm. This quarantine was lifted on April 8, 1992.

[24] Further autopsies were carried out by Agriculture Canada in January 1992 when other deer died. Once again, it was found that these animals were suffering from severe cachexy.

[25] In December 1992, the respondent sued the appellants, holding them responsible for the improper unloading conditions and the hoof injuries from which the animals later suffered. It also held the appellants responsible for the unusual length of the first quarantine, caused by the time needed to complete the permit requirements. Finally, the respondent maintained that there was no reason for the second quarantine in December 1991.

[26] A pre-trial conference the parties agreed first to submit the question of the appellants' liability to the Court, and subsequently to proceed by reference under Rules 153 et seq. for damages.

[27] The evidence remained contradictory on the question of whether the appellants or the respondent authorized the change in the method of transporting the animals.

[28] On the damages suffered during the first compulsory quarantine, the respondent explained at the hearing that throughout this lengthy quarantine Agriculture Canada prevented it from cleaning the cages in which the deer were kept. The injured animals, weakened by stress, were forced to live in their own excrement. All the females which were pregnant when they left Australia had aborted.

Decision of trial judge

[29] The trial judge noted that the carrier did not testify. She concluded that there was no evidence to indicate that the change of vehicle was ordered by Agriculture Canada (para. 36 of her reasons). However, she noted the admissions by the appellants' representatives, in particular Dr. Viviers, that the inspectors were responsible for ensuring the [TRANSLATION] "humanitarian" transportation of the animals. She wrote that as Dr. Viviers had observed that the deer were injuring themselves as they jumped and were crammed together in the horse trailers, she considered that he should have stopped the unloading since there was a risk the deer would be injured and they would be transported in inadequate vehicles, likely to cause them injury or undue suffering. She held the appellants liable under the duty to ensure [TRANSLATION] "humanitarian" transportation for the animals, based on s. 64(i) and (ii) of the Act and ss. 138 et seq. of the Regulations. She added that the liability was reduced by s. 139(2) of the Regulations, which provides that "An animal shall not be loaded or unloaded by a carrier in a way likely to cause injury or undue suffering to it".

[30] She further considered that the imposing of quarantines was a duty under the Act and its Regulations. In this connection, she cited ss. 58 and 59 of the Act, dealing with the compulsory quarantining of any imported animal, and s. 22 of the Act and ss. 5 and 7 of the Regulations, dealing with inspectors' discretionary powers to impose quarantine in certain circumstances. She concluded that the decisions made had not been unreasonable and, moreover, they were covered by the immunity contained in s. 50 of the Act.

Analysis

[31] The respondent stated that it was not the one who took the decision to change the method of transporting the deer from the airport to the farm. It held the appellants responsible for that decision.

[32] The respondent argued that its representatives were not present at the airport when the deer arrived, since they were preparing for the arrival of cages on the roller-beds in the farm's quarantine facilities. It added that shortly after the deer arrived at the farm Pat Stratten, the Australian exporter's export representative, told Mr. Forgeot that Agriculture Canada had changed the method of transportation and required that the cages stay at the airport and be destroyed. The respondent's representatives then went to the airport to look into the matter.

[33] The respondent stated that for reasons which were not explained a decision was made that the cages used in transporting the deer should remain on the airport premises and be destroyed by Mirabel firemen. A statement to this effect is contained in a memorandum note dated May 24, 1991, written by Dr. Danielle Lagrenade-Lefebvre, a veterinarian employed by Agriculture Canada (Exhibit W-14, tab 16). This memorandum, written a little over a week before the deer arrived at the airport, ended with an exclamation mark. Dr. Lagrenade-Lefebvre explained in her testimony that she got the information either from Dr. Viviers in Mirabel or Mr. Forgeot, but she could not say with certainty. She added the exclamation mark to her memorandum to indicate her surprise, as she did not think that things would happen in this way (transcript, hearing of February 14, 2000, pp. 200-201).

[34] The cages were in fact stored at the airport in a hangar used for warehousing goods, without even being disinfected. They were not destroyed until a few days later, after being taken to the respondent's farm at Saint-Augustin in closed trucks (transcript, hearing of February 14, 2000, pp. 62-63). Dr. Viviers said that, for his part, he did not know who had made the decision not to transport the deer from the airport to the farm in their cages. No notation about this was made on the import permit. He had also never discussed it with Dr. Lagrenade-Lefebvre (transcript, hearing of February 15, 2000, pp. 11-12).

[35] Mr. Forgeot categorically denied that he could have been involved in the decision about changing the transportation of the deer. On the morning of June 3, 1991 he was at the farm, busy inspecting the provisions made for the compulsory quarantining of the deer that were about to arrive, when he received a telephone call from Pat Stratten telling him of the change which Agriculture Canada had allegedly made. On arrival at the airport the representatives of the carrier Danzas and the exporter's representative Mr. Stratten told him that Agriculture Canada had changed the roller-beds to horse trailers. They added that if the unloading was not done in this way Agriculture Canada could have ordered that the cargo be returned to Australia.

[36] The appellants noted that the carrier was never called to testify and that it was up to the respondent to prove how the change in the transportation method originated. The appellants' witnesses, veterinarians responsible for implementing the Act and Regulations, stated that none of the appellants' representatives had imposed any particular choice of transport, or given any order that the method allegedly chosen by the respondent be changed to horse trailers. There was also nothing about this in the import permit (transcript of February 15, 2000, p. 11, ll. 17-21, (Dr. Viviers); p. 25, l. 22, p. 26, l. 20 (Dr. Paquin)). Dr. Paquin stated that it was the owner of the animals, not Agriculture Canada, which had to decide how the animals would be transported. Dr. Paquin also stated that he was not opposed to use of the roller-bed trucks (transcript of February 15, 2000, p. 120, l. 1.19, p. 121, l. 1.7 (Dr. Paquin)).

[37] In view of the contradictory evidence by witnesses at the hearing and the fact that the carrier did not testify, it was not unreasonable for the trial judge to say in s. 36 of her reasons: "there is no evidence that would allow me to conclude that the change in vehicles was ordered by Agriculture Canada".

[38] However, the trial judge's mistake was in accepting the accuracy of the statements by the respondent's representatives, including Dr. Viviers, that the inspectors were responsible for ensuring that the animals were given [TRANSLATION] "humanitarian" transport.

[39] Section 64(1)(i) of the Act provides in part as follows:

64. (1) The Governor in Council may make regulations for the purpose of protecting human and animal health through the control or elimination of diseases and toxic substances and generally for carrying out the purposes and provisions of this Act, including regulations

. . . . .

(i) for the humane treatment of animals and generally

(i) governing the care, handling and disposition of animals,

(ii) governing the manner in which animals are transported within, into or out of Canada, and . . .

64. (1) Le gouverneur en conseil peut, par règlement, prendre des mesures visant à protéger la santé des personnes et des animaux par la lutte contre les maladies et les substances toxiques ou leur élimination, ainsi que toute autre mesure d'application de la présente loi, et notamment:

. . . . .

i) empêcher que les animaux soient maltraités, notamment en:

(i) régissant leur garde, y compris les soins à leur donner et les mesures concernant leur disposition;

(ii) régissant leur transport tant à l'intérieur qu'à destination ou en provenance du Canada . . .

[My emphasis.]

[40] Section 139(2), contained in Part XII of the Regulations, with the heading "Transportation of Animals", is directed only at the carrier and provides as follows:

139. (2)An animal shall not be loaded or unloaded by a carrier in a way likely to cause injury or undue suffering to it.

139. (2) Un transporteur ne peut embarquer ou débarquer un animal d'une façon susceptible de lui causer des blessures ou des souffrances indues.

[My emphasis.]

[41] Dr. Viviers' testimony regarding the appellants' [TRANSLATION] "humanitarian" duty is not based on any legislative provision. The trial judge therefore could not hold the appellants liable in unloading the animals. The facts were that Dr. Viviers first suggested that bales of hay be placed in order to ease the impact. Seeing that his suggestion was useless, it was not unreasonable for him then to rely on the expertise of the exporter Mr. Stratten. Dr. Paquin, for his part, suggested adequate measures when he proposed that barriers be used on the road from the airport to the farm to avoid crowding and crushing the animals.

[42] The appellants clearly cannot be held liable in the case at bar.

[43] I would allow the appeal, set aside the judgment of the trial judge and dismiss the action in tort brought by the respondent.

[44] The whole with costs both at trial and on appeal.

Alice Desjardins

J.A.

I concur.

Robert Décary J.A.

I concur.

Marc Noël J.A.

Certified true translation

Suzanne M. Gauthier, LL.L. Trad. a.

FEDERAL COURT OF CANADA

APPEAL DIVISION

SOLICITORS OF RECORD

FILE: A-355-00

STYLE OF CAUSE: HER MAJESTY THE QUEEN and

THE MINISTER OF AGRICULTURE CANADA

Appellants

- and -

WADACERF INTERNATIONAL INC.

Respondent

PLACE OF HEARING: Montréal, Quebec

DATE OF HEARING: October 24, 2001

REASONS FOR JUDGMENT: Desjardins J.A.

CONCURRED IN BY: Décary J.A.

Noël J.A.

DATE OF REASONS: December 18, 2001

APPEARANCES:

David Lucas and FOR THE APPELLANTS

Éric Lafrenière

Luc Huppé and FOR THE RESPONDENT

Isabelle Poirier

SOLICITORS OF RECORD:

Morris Rosenberg FOR THE APPELLANTS

Deputy Attorney General of Canada

De Granpré, Chaurette, Lévesque FOR THE RESPONDENT

Montréal, Quebec

Date: 20011218

Docket: A-355-00

Ottawa, Ontario, Tuesday, December 18, 2001

CORAM: DESJARDINS J.A.

DÉCARY J.A.

NOËL J.A.

BETWEEN:

HER MAJESTY THE QUEEN and

THE MINISTER OF AGRICULTURE CANADA

Appellants

- and -

WADACERF INTERNATIONAL INC.

Respondent

JUDGMENT

The appeal is allowed, the trial judge's judgment set aside and the action by the respondent in tort is dismissed.

The whole with costs both at trial and on appeal.

Alice Desjardins

J.A.

Certified true translation

Suzanne M. Gauthier, LL.L. Trad. a.

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Canada v. Wadacerf International Inc., 2001 FCA 390

Citations2001 FCA 390

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2001 FCA 390