Date:
20110124
Docket:
A-82-10
Citation:
2011 FCA 25
CORAM: BLAIS
C.J.
EVANS
J.A.
STRATAS
J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
(CANADA FOOD INSPECTION AGENCY)
Applicant
and
ROSEMONT
LIVESTOCK
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered from the Bench at Toronto, Ontario on January
24, 2011)
STRATAS J.A.
[1]
The
Attorney General of Canada applies for judicial review of a decision dated
January 25, 2010, made by the Canada Agricultural Review Tribunal.
[2]
The
Tribunal concluded that the Canadian Food Inspection Agency had not proven on
the balance of probabilities that the respondent, Rosemont Livestock, violated subsection
177(1) of the Health of Animal Regulations, SOR/91-525. Subsection
177(1) of the Regulations prohibits the “[transportation], or [causing]
the transportation of, an animal…that does not bear an approved tag.”
[3]
The
Tribunal offered a number of grounds in support of its conclusion. In this
application, the Attorney General of Canada challenges all of those grounds. In
our view, it is only necessary for us to deal with one of the grounds.
[4]
In this
case, in order to establish a violation of subsection 177(1), the Agency had to
prove on the balance of probabilities that lambs found to be untagged belonged
to Rosemont and that Rosemont had failed to tag the lambs.
[5]
The Agency
did not satisfy the Tribunal on these two essential matters.
[6]
Only a
brief review of the facts is necessary. The Agency’s hygiene inspector, Ms.
Ashley Lalonde, found untagged lambs in pens at the Ontario Stockyards at Cookstown, Ontario. She conducted an
investigation and concluded that the untagged lambs belonged to Rosemont. Ms.
Lalonde testified to that effect before the Tribunal. In response, Rosemont
called two witnesses. They testified that Rosemont tagged all of the lambs
destined for Ontario.
[7]
The
Tribunal observed (at paragraph 57 of its decision) that the Agency had failed
to present direct evidence establishing that the untagged lambs were those of
Rosemont. The Tribunal noted the existence of indirect and circumstantial
evidence to that effect, but it was left unsatisfied on this factual issue.
[8]
The
Tribunal was also not satisfied that Rosemont had failed to tag the lambs. In
reaching this conclusion, the Tribunal reviewed the conflicting evidence. It
found (at paragraph 58 of its decision) that “[w]hile the tagging
conditions…were not ideal, it would be conjecture, not legal inference,
that…lambs escaped tagging” when they were at Rosemont’s farm.
[9]
Overall,
the Tribunal concluded (at paragraph 62 of its decision) that “too much
speculation, impression and hearsay must be entertained to uphold a violation
before the Tribunal in this case” and that the Agency’s case was “not supported
by sufficient evidence of ownership and control of the lambs.” As the Agency
had not established all of the essential elements of the violation, Rosemont
was found not liable for the violation.
[10]
Based on
the evidence before it, the Tribunal was entitled to make these factual
findings. Given the deferential standard of review of reasonableness that
applies in this case, there is no basis upon which we can set aside these
factual findings. Therefore, the Tribunal’s conclusion that there was no
violation must stand.
[11]
The Attorney
General submitted before us that the Tribunal required the Agency to prove its
case on a standard higher than the balance of probabilities. It pointed to the
Tribunal’s observation that the Agency failed to adduce direct evidence of
ownership of the lambs.
[12]
On a
reading of the Tribunal’s reasons as a whole, we conclude that the Tribunal did
apply the correct standard of proof, proof on the balance of probabilities. At
the outset of its analysis (at paragraph 46), it reminded itself of that
standard. It observed correctly that it was bound by section 19 of the Agriculture
and Agri-Food Administrative Monetary Penalties Act, S.C. 1995, c. 40 to
apply that standard and quoted this Court’s decision in Doyon v. Attorney
General of Canada, 2009 FCA 152 to the same effect. Finally, in summarizing
its conclusions on the facts, it mentioned the balance of probabilities standard
three times (at paragraphs 60, 61 and 63 of its decision). In referring to the lack
of direct evidence from the Agency, the Tribunal did not impose a higher
standard of proof upon the Agency. Rather, we are satisfied that the Tribunal weighed
the evidence before it and, taking it in its totality, found that it did not
establish a violation on the balance of probabilities.
[13]
Therefore
we dismiss the application. As Rosemont did not file a notice of appearance and
did not file a memorandum, it will not be awarded any costs of the application.
"David
Stratas"
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-82-10
(AN
APPLICATION FOR JUDICIAL REVIEW OF A DECISION OF THE CANADA AGRICULTURAL REVIEW TRIBUNAL,
DATED JANUARY 25, 2010, IN THE REVIEW TRIBUNAL FILE NO.: RT#1509)
STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA v. ROSEMONT LIVESTOCK
PLACE OF HEARING: BY VIDEOCONFERENCE BETWEEN TORONTO, ONTARIO AND REGINA, SASKATCHEWAN
DATE OF HEARING: JANUARY 24, 2011
REASONS FOR JUDGMENT
OF THE COURT BY: (BLAIS
C.J., EVANS, STRATAS, JJ.A.)
DELIVERED FROM THE BENCH BY: STRATAS J.A.
APPEARANCES:
|
Philippe Alma
|
FOR
THE APPLICANT
|
|
Greg McKelevey
|
FOR
THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
Myles J. Kirvan
Deputy
Attorney General of Canada
|
FOR THE APPLICANT
|
|
Greg McKelevey
Caron, Saskatchewan
|
FOR THE RESPONDENT
|
Email this Content