Date: 20040921
Docket: T-1455-04
Citation: 2004 FC 1292
Ottawa, Ontario this 21st day of September 2004
Present: The Honourable Madam Justice Heneghan
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
STEPHEN JOHN PATTERSON
Respondent
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] The Attorney General of Canada (the "Applicant") seeks an interim injunction directing Mr. Stephen John Patterson (the "Respondent") to "forthwith forfeit and surrender possession" to officers of the Canadian Food Inspection Agency ("CFIA") a northern flying squirrel in his possession that he imported from the United States of America into Canada on or about June 26, 2004, through the port of entry at Windsor, Ontario.
[2] The Applicant brings this application pursuant to the Canadian Food Inspection Agency Act, S.C. 1997, c. 6, as amended, (the "Act") and the Federal Court Rules, 1998, SOR/1998-106, as amended (the "Rules").
BACKGROUND
[3] The Respondent, according to his affidavit filed in this proceeding, is a conservationist and naturalist who has spent the last ten years studying flying squirrels. He describes himself as an expert in that area and a few years ago he created a web site to provide information to interested persons about flying squirrels.
[4] The Respondent states that the flying squirrels are indigenous to Canada but it is prohibited to capture such an animal and keep it in captivity, for any purpose. In the spring of this year, he decided to legally import a northern flying squirrel for educational purposes, in order to provide presentation to nature groups, such as children and other visitors to provincial parks.
[5] The Respondent obtained an authorization from the Ministry of Natural Resources for the Province of Ontario on June 8, 2004. According to its face, this authorization was issued pursuant to the Fish and Wildlife Conservation Act, 1997, S.O. 1997, c. 41. The authorization is entitled "Authorization to Keep Specially Protected and Game Wildlife in Captivity" and identifies the species of wildlife as "Northern Flying Squirrel". The authorization refers to one animal and is effective from June 8, 2004 until December 31, 2006.
[6] The Respondent obtained a permit from the U.S. Fish and Wildlife Service on June 15, 2004. This written authorization is described as an "Import/Export Licence" with effect between June 15, 2004 and May 31, 2005.
[7] On June 25, 2004, the Respondent executed a "Declaration for Importation or Exportation of Fish or Wildlife" with the U.S. Fish and Wildlife Service. This permit identifies the species of wildlife by both its official name, "glaucomys sabrinus" and its common name, "northern flying squirrel".
[8] On June 26, 2004, the Respondent purchased the northern flying squirrel from Ratkateers Rodentry of Marshall, Indiana. That entity issued the Respondent a "Record of Acquisition, Disposition or Transport of Animals" under the auspices of the U.S. Department of Agriculture, Animal and Plant Health Inspection Service.
[9] On the same day, that is June 26, 2004, the Respondent entered Canada by car at the Windsor Ambassador Bridge. He provided all the previously mentioned documentation to the Canada Customs and Revenue Agency officer and was allowed to enter Canada with the northern flying squirrel.
[10] On July 5, 2004, the Respondent was contacted by a representative of the CFIA who wanted to know if he had imported a northern flying squirrel into Canada. The Respondent confirmed that he had done so. He was advised that such importation was illegal and that he would "likely have to remove it".
[11] On the following day, July 6, 2004, the Respondent received an "Order to Remove" from the CFIA directing the removal of the animal from Canada by July 9, 2004. The Respondent did not remove the northern flying squirrel pursuant to the Order and offered to submit the squirrel to quarantine and to pay the costs to have it tested for any disease. That offer was refused by the Applicant.
[12] The Respondent states, in his affidavit, that on August 16, 2004, he brought the squirrel to the Britannia Animal Hospital in Mississauga, Ontario for an examination. According to the affidavit of the examining veterinarian, Dr. Jaques, the squirrel was free of any sign of illness or disease.
[13] On or about July 8, 2004, the Respondent made inquiries of the Centre for Disease Control ("CDC") in Atlanta, Georgia, United States of America. He says that he was informed that that body had not found an association between monkeypox and flying squirrels. Further, the Respondent says that he was advised by the CDC that the same information was relayed to Dr. Mroz. of the CFIA.
[14] The Applicant filed the affidavit of Dr. Debbie Barr, a Senior Staff Veterinarian with the CFIA. In her affidavit, Dr. Barr related the steps undertaken by the CFIA to effect the removal of the flying squirrel after becoming aware of its presence in Canada. The CFIA issued an Order to Remove pursuant to the Health of Animals Act, S.C. 1990, c. 21, as amended, on July 6, 2004, and specified a removal date of July 9, 2004.
[15] As well, Dr. Barr discussed the regulation of imported animals and the monkeypox virus. She described that virus as a "rare viral disease that occurs mostly in central and western Africa." She said that an outbreak of monkeypox was reported in the United States of America in June 2003. The Canadian response to the outbreak of monkeypox in the United States was to exercise its power under the Health of Animals Act, supra, to refuse entry into Canada of "susceptible animals based on suspicion of disease."
[16] This led to the enactment of the Prairie Dog and Certain Other Rodents Importation Prohibition Regulations, SOR/2003-310 ("Importation Prohibition Regulations") on September 10, 2003. According to these Regulations, the importation of any squirrel of the family Sciuridae from any country is prohibited.
[17] Dr. Barr deposed that when the Importation Prohibition Regulations came into effect, the CDC had not completed its investigation into the monkeypox outbreak in the United States. The CFIA considers the Importation Prohibition Regulations to be part of its ongoing policy to prevent the introduction of animal disease into Canada that could affect either human health or the Canadian livestock industry.
[18] The CFIA seeks injunctive relief from the Court because the Respondent has failed to comply with the Order to Remove. Although the issue of the monkeypox virus was addressed in the affidavit of Dr. Barr, the Applicant made it clear on the record during the hearing of this application that he was not relying on that issue as a basis for his request for an interim injunction.
DISCUSSION
[19] The Applicant is seeking an interim injunction pursuant to section 18 of the Act which provides as follows:
| 18. The Agency may apply to a judge of a court of competent jurisdiction for an interim injunction enjoining any person from contravening an Act or provision that the Agency enforces or administers by virtue of section 11, whether or not a prosecution has been instituted in respect of that contravention.
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18. L'Agence peut demander à un juge d'une juridiction compétente une ordonnance provisoire interdisant toute contravention à une loi ou disposition don't elle est chargée d'assurer ou de contrôler l'application aux termes de l'article 11 - que des poursuites aient été engagées ou non sous le régime de celle-ci.
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[20] Section 11 of the Act authorizes the CFIA to supervise the implementation of the statutes, including the Health of Animals Act, supra under which the Order to Remove was issued. Section 11(1) provides as follows:
| 11. (1) The Agency is responsible for the administration and enforcement of the Agriculture and Agri-Food Administrative Monetary Penalties Act, Canada Agricultural Products Act, Feeds Act, Fertilizers Act, Fish Inspection Act, Health of Animals Act, Meat Inspection Act, Plant Breeders' Rights Act, Plant Protection Act and Seeds Act.
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11. (1) L'Agence est chargée d'assurer et de contrôler l'application des lois suivantes_: la Loi sur les sanctions administratives pécuniaires en matière d'agriculture et d'agroalimentaire, la Loi sur les produits agricoles au Canada, la Loi relative aux aliments du bétail, la Loi sur les engrais, la Loi sur l'inspection du poisson, la Loi sur la santé des animaux, la Loi sur l'inspection des viandes, la Loi sur la protection des obtentions végétales, la Loi sur la protection des végétaux et la Loi sur les semences.
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[21] The Applicant says that this statutory provision is the only means available to obtain possession of the flying squirrel, for removal from Canada. The Applicant has provided a written undertaking in his submissions to respect any order for damages that may be made by this Court.
[22] The parties agree that the applicable test for the granting of an interim injunction is that set out in RJR Macdonald Inc. v. Canada, [1994] 1 S.C.R. 311, that is the existence of a serious issue for trial, irreparable harm if the relief sought is denied and that the balance of convenience favours the moving party. The Applicant bears the burden of establishing all three factors.
[23] According to the Applicant, the serious issue arises in relation to the Respondent's alleged continuing violation of the Importation Prohibition Regulations.
[24] In the present case, the sole basis for the underlying application for judicial review is the request for an interim injunction for the delivery up of the flying squirrel now in the possession of the Respondent. The Applicant says that this is the only way that he can seek this relief pursuant to section 18 of the Act. The Respondent says this is not a "serious issue", within the meaning of RJR-MacDonald, supra, since the activity complained about, that is the "importation of the squirrel", is not continuing but has already occurred.
[25] In my opinion, it is doubtful whether the Applicant has shown that a serious issue exists here. It is not necessary to decide that issue, however, because I am not satisfied that the Applicant has met the test of irreparable harm.
[26] The Applicant characterizes the Respondent's disobedience of the Order to Remove as constituting irreparable harm. I disagree. The test for irreparable harm is well known. An applicant must produce evidence of irreparable harm that is clear and not speculative, and that evidence must show that irreparable harm would occur, not that it is likely. In this regard, I refer to Centre Ice Ltd. v. National Hockey League (1994), 53 C.P.R. (3d) 34 (Fed. C.A.).
[27] The Applicant is not arguing nor has he shown that public health is an issue in this motion. At the same time, the Applicant submits that the Health of Animals Act, supra, prohibits a person from possessing an animal that was known to be imported contrary to that Act or regulations passed pursuant to it.
[28] The Respondent has not been charged with any breach of the applicable regulations or of a statute. There is no evidence that he knowingly acted in breach of any statutory regime and that issue is not before this Court. It is not necessary to address the issue of balance of convenience since the Applicant has failed to establish irreparable harm.
[29] The Applicant is seeking an interim injunction and it has not met the legal test for obtaining that relief. Accordingly the motion is dismissed with costs to the Respondent.
ORDER
The motion is dismissed with costs to the Respondent.
"E. Heneghan"
J.F.C.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1455-04
STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA
Applicant
and
STEPHEN JOHN PATTERSON
Respondent
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: September 13, 2004
REASONS FOR ORDER
AND ORDER: HENEGHAN J.
DATED: September 21, 2004
APPEARANCES:
Eric Peterson
FOR APPLICANT
Clayton C. Ruby
Brian Shiller
FOR RESPONDENT
SOLICITORS OF RECORD:
Morris Rosenberg
Deputy Attorney General of Canada
FOR APPLICANT
RUBY & EDWARDH
Barristers & Solicitors
Toronto, ON
FOR RESPONDENT
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