Date: 20011218
Docket: A-264-00
Neutral citation: 2001 FCA 389
CORAM: DESJARDINS J.A.
DÉCARY J.A.
NOËL J.A.
BETWEEN:
SOCIÉTÉ CANADIENNE D'EXPORTATION DE BISONS INC.
Appellant
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
and
THE HONOURABLE MINISTER OF AGRICULTURE CANADA
and
THE HONOURABLE MINISTER OF JUSTICE
and
THE DEPUTY ATTORNEY GENERAL OF CANADA
Respondents
Hearing held at Montréal, Quebec on Wednesday, October 24, 2001
Judgment rendered at Ottawa, Ontario on Tuesday, December 18, 2001
REASONS FOR JUDGMENT BY: DESJARDINS J.A.
CONCURRED IN BY: DÉCARY J.A.
NOËL J.A.
Date: 20011218
Docket: A-264-00
Neutral citation: 2001 FCA 389
CORAM: DESJARDINS J.A.
DÉCARY J.A.
NOËL J.A.
BETWEEN:
SOCIÉTÉ CANADIENNE D'EXPORTATION DE BISONS INC.
Appellant
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
and
THE HONOURABLE MINISTER OF AGRICULTURE CANADA
and
THE HONOURABLE MINISTER OF JUSTICE
and
THE DEPUTY ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR JUDGMENT
DESJARDINS J.A.
[1] The appellant, a company exporting bison to European markets, is objecting to a decision by a trial judge which dismissed his tort action brought pursuant to s. 3(a) of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50. Tremblay-Lamer J. concluded (see Société canadienne d'exportation de bisons inc. v. Canada, [2000] F.C.J. 514) that the federal government, which imposed a quarantine on the farm serving as a transit point for the bison, could not be required to pay damages in view of the immunity set out in s. 50 of the Health of Animals Act, S.C. 1990, c. C-21 ("the Act").
[2] That section reads as follows:
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50. Where a person must, by or under this Act or the regulations, do anything, including provide and maintain any area, office, laboratory or other facility under section 31, or permit an inspector or officer to do anything, Her Majesty is not liable
(a) for any costs, loss or damage resulting from the compliance; or
(b) to pay any fee, rent or other charge for what is done, provided, maintained or permitted.
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50. Sa Majesté n'est pas tenue des pertes, dommages ou frais -- loyers ou droits -- entraînés par l'exécution des obligations découlant de la présente loi ou des règlements, notamment celle de fournir des terrains, locaux, laboratoires ou autres installations et d'en assurer l'entretien au titre de l'article 31.
[My emphasis]
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Facts
[3] At the relevant time the appellant's farm, located in Saint-Augustin, was divided in three parts. The first part was used as facilities for quarantining fallow deer imported by Wadacerf International Inc., a company the shareholders and managers of which are the same as those of the appellant. The second part was used as a corral for the deer after the quarantine ended. The third part, at the southern end, was used as a corral for the bison until they were exported.
[4] In 1991 the bison belonging to the appellant were sent to the Les Cèdres abattoir in Soulanges, located not far from the farm, in small herds. On December 6, 1991 the last herd of 53 bison were taken to the abattoir. They had all been given tests indicating that they were free of tuberculosis and brucellosis.
[5] On the same day, December 6, 1991, the appellant had 19 bison which it bought from Peterborough Farms taken directly from Peterborough, Ontario to the Les Cèdres abattoir to be slaughtered with the 53 bison from its Saint-Augustin Farm. Unlike the 53 bison from the Saint-Augustin farm, these bison had not been tested.
[6] On arrival at the abattoir the two groups of bison were taken to corrals located in the abattoir stables. They were placed in different enclosures to avoid the bisons' natural aggressiveness leading to conflicts which might affect the appearance of the meat after slaughter. The two groups of bison were not the only animals slaughtered on that day. There was also a number of cattle, but these did not belong to the appellant.
[7] The bison and the cattle were slaughtered alternately. An initial group of 10 bison were slaughtered, then cattle, then another group of 10 bison, then cattle, and so on.
[8] At some point, an Agriculture Canada inspector required that the two herds of bison be placed in the same corral, as there was not enough space to accommodate the cattle.
[9] Conflicts resulted between the bison in the two herds. This combination of the two herds also had the effect of placing in the same area bison which had been successfully tested and bison which had not had the tests.
[10] During the day another Agriculture Canada inspector, Rosario Tudino, noticed a tinny ganglion on one of the bison carcasses. According to his testimony, this ganglion came from a bison killed [TRANSLATION] "right in the middle of the lot" of 53, [TRANSLATION] "approximately" the 27th or 28th bison (vol. IV, transcript of February 15, 2000, p. 165, l. 14; p. 171, l. 11; p. 174, l. 18; p. 175, l. 2 (Dr. Marcel Asselin); transcript of February 16, 2000, p. 99, l. 17; p. 101, l. 21 (inspector Tudino)). He showed this ganglion to his superior, Dr. Marcel Asselin. The latter noted that there were small grains in what was a pulmonary ganglion. These were small grains of necrosis resembling a small heap of sand, between yellow and green. In his testimony Dr. Asselin stated (appeal book, vol. IV, transcript of February 15, 2000, p. 167, ll. 17 to 25):
[TRANSLATION]
A. . . . Usually when you catch a lesion, usually when you catch a lesion of what you think is tuberculosis in cattle, for example, it is a casein, it is like - somewhat like cheese, you know, rather like Brie cheese, greenish, y'know, but it did not look like that.
Q. It did not look like that?
A. No, it was rather dry, something like small grains.
[11] Dr. Asselin concluded (appeal book, vol. IV, transcript of February 15, 2000, p. 168, ll. 1 to 16):
[TRANSLATION]
Q. And what did you - what was your conclusion from this?
A. I concluded that there might be a germ which had gone through the ganglion: indeed . . . indeed, that is the role of ganglions, to be the first barrier to any inflamation, and then when there are germs which invade your organism, they are filtered through the ganglions and the ganglion then reacts by excluding them in order to destroy them. In this case there was a germ which had gone through and then left traces.
Q. What did you do after making this observation?
A. I sent it to the laboratory to get an idea of what it might be.
[12] Dr. Asselin added that the ganglion was not dangerous and there was no reason to take special steps regarding the carcass. It was more [TRANSLATION] "through pure scientific curiosity" (vol. IV, transcript of February 15, 2000, p. 172, ll. 12 and 13) that the ganglion was sent to the laboratory for a histopathological test. He also relied on a departmental directive which stated that in the case of exotic animals they should send almost anything which was [TRANSLATION] "somewhat abnormal" in ganglions for research to be done (testimony of Dr. Asselin, vol. IV, p. 177, ll. 15 and 16, p. 207, ll. 17 to 24). He noted on the transmittal slip that the suspected disease was tuberculosis because something had to be written in order to initiate research. He added that he could just as easily have mentioned some other illness (testimony of Dr. Asselin, vol. IV, p. 177, ll. 22 and 23). On the same day he signed, backdating them, export documents to Europe for the carcasses, including the one on which the ganglion had been found, certifying that the meat was tuberculosis-free and was suitable for consumption.
[13] At no time were the appellant or the owner of the abattoir informed that a sample had been taken from one of the bison carcasses and that this sample had been sent to the laboratory for analysis. A preliminary diagnosis from the laboratory dated December 12, 1991 confirmed the presence of mycobacterium bovis in the sample sent to the laboratory (appeal book, vol. I, p. 81).
[14] On December 18, 1991, without the appellant or its representatives being informed of the sample in any way, Dr. Gilles Rivard, a veterinarian employed by Agriculture Canada, imposed a quarantine on the entire Saint-Augustin farm. This decision was made pursuant to s. 22 of the Act. The terms of the quarantine, and the representations made by Agriculture Canada representatives, prohibited the appellant from continuing to operate its business on the farm.
[15] Additional tests were needed to determine whether tuberculosis was definitely present. This procedure had to be followed even if the slaughtered animals came from a herd which had a certificate that there was no tuberculosis, because the first tests were still fallible (testimony of Dr. Asselin, transcript of February 15, 2000, p. 190, l. 9; file A-355-00, testimony of Dr. André Legris, transcript of February 16, 2000, p. 31, ll. 13 to 24).
[16] The final results obtained from the cell culture indicated that the bacterium was not the tuberculosis mycobacterium. However, the result was not known until April 1992. The appellant, for its part, took various steps to get the quarantine lifted, and this was done on April 8, 1992. The quarantine caused an interruption of nearly four months in the operation of the appellant's business.
[17] The appellant then brought an action for damages against the respondents on the ground that the quarantine was arbitrarily imposed and that the defendants' employees had deliberately abused their decision-making authority. It was agreed at the pre-trial conference that only the question of liability would be decided by the Court, and that the determination of damages would ultimately be the subject of a reference under Rules 153 et seq. of the Federal Court Rules.
Decision of trial judge
[18] The trial judge considered that s. 50 of the Act conferred relative immunity, so that it could not be relied on when the malice or bad faith of an officer or employee was responsible for the act committed. She also expressed the opinion that s. 22 of the Act and ss. 5 and 7 of the Regulations allowed inspectors to order quarantine based simply on suspicion. In her view, the word "suspicion" did not mean that before acting the latter had to have reasonable grounds or a firm belief in the existence of a communicable disease. In the view of the trial judge, it was "a relatively low standard that requires only the presence of certain indicia on which the inspector bases his decision" (see para. 22 of her reasons). She found that s. 50 of the Act was conclusive and relieved the Crown of any liability.
[19] However, she made a detailed analysis of the evidence and added her findings of fact in the event that her first conclusion was incorrect.
[20] She noted that the two herds of 53 and 19 bison had in fact been mixed on the day of the slaughter, so that the suspect ganglion could have come from either one of the two. On this point she dismissed the respondents' testimony, indicating that it was [TRANSLATION] "approximately" the 27th or 28th bison in the lot of 53 which had the suspect ganglion. However, she added that even if Dr. Rivard, who imposed the quarantine, was uncertain of the origin of the animal in question because the Les Cèdres abattoir had not given him the relevant details about the origin of the animal, the veterinarian's actions were not negligent since s. 22 of the Act gave the inspector substantial latitude if he simply suspected that there was a communicable disease. Although the disease control procedures manual indicated that quarantine was not required when there were several original herds, the directive did not have the force of law and could properly be ignored in the circumstances. Finally, she concluded that it was probable that the suspect carcass came from the appellant's farm and that Dr. Rivard had acted as a prudent and diligent veterinarian would when he imposed the quarantine. She dismissed the action with costs.
Appellant's arguments
[21] The appellant, which submitted that the quarantine was imposed negligently and recklessly, challenged the trial judge's findings of fact.
[22] It submitted that the sample taken at the abattoir did not justify the imposing of a quarantine, since Dr. Asselin was not concerned when he saw the sample. It further noted that there was no evidence as to the quality of the steps taken to forward the sample to the laboratory or of the analysis done.
[23] The appellant further submitted that the carcass from which the ganglion was taken bore no identification which could connect it to the bison from its Saint-Augustin farm. As the trial judge actually noted, the combining of the two herds made identification impossible. Further, no quarantine was imposed on the Peterborough farm although some of the bison slaughtered on December 6, 1991 came from there. In view of this situation, the appellant said, the conduct of the Agriculture Canada employees was entirely unreasonable. There could not have been any "suspicion", within the meaning of s. 22 of the Act, regarding the Saint-Augustin farm.
[24] Additionally, the disease control procedures manual provides that the quarantine may be imposed only when there is one original herd. The section states (appeal book, vol. II, tab 33, p. 231):
[TRANSLATION]
Methodology following histopathological diagnosis of mycobacterosis
1. Go back to original herd(s). If only one specific original herd, place it in quarantine. Issue form AGR 2192 to owner. If several original herds, do not place them in quarantine.
[25] This manual, the appellant said, is a statement of the Government of Canada's official policy. It creates a legitimate expectation in the public that it will be treated in accordance with the procedure described therein: Sous-ministre du Revenu du Québec v. Transport Lessard (1976) Limitée, [1985] R.D.J. 502. It submitted that the trial judge erred in finding that the suspect ganglion probably came from the Saint-Augustin farm, when she had noted that the combining of the herds made identification impossible (see para. 40 of her reasons).
[26] Finally, the appellant argued that the quarantine imposed was excessive. If the suspicions of the respondents' employees had been justified, only part of the farm should have been quarantined, where the bison had been kept, and only in places where no disinfection had been done, not the farm as a whole.
[27] The appellant concluded that the immunity mentioned in s. 50 of the Act is inapplicable in the case at bar since the respondents' employees had no duty to act.
Analysis
[28] Section 22(1) of the Act, under which the quarantine was imposed, provides the following:
| 22.(1) Where an inspector or officer suspects or determines that a disease or toxic substance exists in a place and is of the opinion that it could spread or that animals or things entering the place could become affected or contaminated by it, the inspector or officer may in writing declare that the place is infected and identify the disease or toxic substance that is believed to exist there, and such a declaration may subsequently be amended by the inspector or officer.
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22. (1) L'inspecteur ou l'agent d'exécution peut, par écrit, déclarer contaminé tout lieu où il soupçonne ou constate la présence d'une maladie ou d'une substance toxique qu'il estime susceptible soit de se propager, soit de contaminer les animaux qui s'y rendent ou les choses qui y sont apportées; il doit alors préciser la nature de la maladie ou de la substance. Il peut ensuite, de la même manière, modifier la déclaration.
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[29] Sections 5 and 7 of the Regulations read as follows:
| 5. (1) Where an animal is affected or suspected of being affected with a communicable disease or has been in contact with an animal so affected or suspected of being so affected, a veterinary inspector may order the person having the possession, care or custody of the animal,
(a) to quarantine, keep separate or treat the animal . . .
7. (1) Where an inspector finds, or suspects that an animal, animal product, animal by-product, feed stuff or other thing that is imported into Canada is affected with a communicable disease, he may order the person having the possession, care or custody of the animal, animal product, animal by-product, feed stuff or other thing to remove it from Canada or to quarantine it within the period of time specified by the inspector.
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5. (1) Un inspecteur-vétérinaire peut ordonner à quiconque a la garde d'un animal atteint d'une maladie transmissible, soupçonné de l'être ou ayant été en contact avec un tel animal,
a) de mettre l'animal en quarantaine, de l'isoler ou de le traiter . . .
7. (1) Lorsqu'un inspecteur découvre ou soupçonne qu'un animal, produit animal, sous-produit animal, qu'un aliment pour animaux ou une autre chose importée sont atteints d'une maladie transmissible, il peut en ordonner la réexpédition ou la mise en quarantaine dans le délai qu'il prescrit, par la personne qui en a la garde.
[My emphasis]
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[30] The report from the first laboratory sufficed as a basis for the suspicion required to justify Dr. Rivard imposing the quarantine. The absence of any evidence of a connection to the group of bison from the Saint-Augustin farm does not affect the validity of this quarantine. It only establishes that the quarantine could have been extended to both farms.
[31] Additionally, Dr. Rivard had no duty to follow the disease control procedures manual. The Act undoubtedly takes priority over the manual.
[32] Dr. Asselin's scientific interest was a sufficient reason for undertaking analysis of the suspect ganglion. Further, he had a duty to follow the policy laid down by the Department that research should be undertaken when any abnormality, however small, was found in exotic animals. He clearly cannot be blamed for acting as he did.
[33] The respondents made no error and demonstrated no negligence in imposing the quarantine.
[34] I would dismiss the appeal with costs.
I concur.
Robert Décary J.A.
I concur.
Marc Noël J.A.
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
Date: 20011218
Docket: A-264-00
Ottawa, Ontario, Tuesday, December 18, 2001
CORAM: DESJARDINS J.A.
DÉCARY J.A.
NOËL J.A.
BETWEEN:
SOCIÉTÉ CANADIENNE D'EXPORTATION DE BISONS INC.
Appellant
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
and
THE HONOURABLE MINISTER OF AGRICULTURE CANADA
and
THE HONOURABLE MINISTER OF JUSTICE
and
THE DEPUTY ATTORNEY GENERAL OF CANADA
Respondents
JUDGMENT
The appeal is dismissed with costs.
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
APPEAL DIVISION
SOLICITORS OF RECORD
FILE: A-264-00
STYLE OF CAUSE: SOCIÉTÉ CANADIENNE D'EXPORTATION DE
BISONS INC.
Appellant
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA, THE HONOURABLE MINISTER OF AGRICULTURE CANADA, THE HONOURABLE MINISTER OF JUSTICE, THE DEPUTY ATTORNEY GENERAL OF CANADA
Respondents
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:
Luc Huppé and FOR THE APPELLANT
Isabelle Poirier
David Lucas and FOR THE RESPONDENTS
Éric Lafrenière
SOLICITORS OF RECORD:
De Granpré, Chaurette, Lévesque FOR THE APPELLANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENTS
Deputy Attorney General of Canada
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