Date: 20001005
Docket: T-198-99
BETWEEN:
HER MAJESTY THE QUEEN
Plaintiff
- and -
FERME AVICOLE KIAMIKA INC.
FERME AVICOLE HÉVA INC.
FERME PAUL RICHARD ET FILS INC.
Defendants
JUDGMENT
BLAIS J.
[1] This is an action for recovery of a debt in the amount of $39,324.06 under sections 50 and 60 of the Health of Animals Act.
FACTS
[2] On June 3, 1996, Dr. Anderson of the Department of Agriculture and Agri-Food Canada ordered the disposal by June 12, 1996 of all the hens in poultry houses 6 and 7 of the Ferme Avicole Paul Richard et Fils Inc., and the hens in poultry houses 1 and 2 of the Ferme Avicole Kiamika Inc., on the ground that he suspected they were contaminated by the salmonella enteritidis phage type 4 bacteria.
[3] On June 5, 1996, Dr. Anderson also ordered the destruction of all the shelled eggs produced during the period from May 17, 1996 to June 12, 1996 by the laying hens of these poultry houses. This order was re-amended on June 13, 1996 but without altering its scope.
[4] On June 7, 1996, Mr. Jean Richard, on behalf of the defendants, asked that the slaughter be postponed to allow the development of a structured plan. This request was refused on June 10, 1996.
[5] On June 14, 1996, Dr. Anderson also ordered the disposal by June 23, 1996 of all the hens in poultry houses 23 and 45 of the Ferme Avicole Paul Richard et Fils Inc., and the destruction of all the eggs.
[6] Realizing that the June 12, 1996 date had passed without the disposal being carried out and that the scheduled date in the disposal order affecting the Ferme Avicole Paul Richard et Fils Inc. was about to be exceeded, Dr. Anderson decided to proceed himself with the destruction of the hens, the eggs and other things covered by the orders. On June 20, 1996, he retained the services of Maheu et Maheu Inc., an extermination firm, granting it a contract of up to $95,308.00.
[7] Maheu et Maheu Inc. were unable to execute the contract owing to protection orders (interim injunctions) issued on June 21, 1996 by the Honourable Mr. Justice Louis-Philippe Landry and Jean-Gilles Racicot, a clerk of the Superior Court.
[8] The plaintiff had to pay $39,324.06 in costs and expenditures previously incurred by Maheu et Maheu Inc. It is this sum that she is claiming from the defendants.
[9] The defendants failed to respond to the formal notices dated December 8, 1998, and the plaintiff brought the present action.
PLAINTIFF'S ALLEGATIONS
[10] The plaintiff alleges that she is not liable for the losses, damages or costs entailed by the performance of the obligations under the Act, pursuant to section 50 of the Health of Animals Act.
[11] The plaintiff submits that she is entitled to claim reimbursement from the defendants of what she paid to Maheu et Maheu Inc., under section 50 and subsection 60(1) of the Act.
DEFENDANTS' ALLEGATIONS
[12] The defendants submit that the deadline set by the plaintiff's officials for destroying its [sic] animals had not expired.
[13] The defendants submit that the orders were not accompanied by an animal slaughter program. They maintain that they presented a slaughter program but were not given any cooperation by the Department in developing a safe slaughter program and the discussions in relation to the slaughter program were continuing when the Department decided to assign the slaughter to an independent firm without notifying the defendants.
[14] The defendants submit that on June 20, 1996, they were able to determine that one of the production units was not contaminated and they conveyed the results of the tests to the Department.
[15] The defendants further submit that the scheduled CO2 slaughter represented a significant risk to the safety of the staff and the public and might be ineffective, since CO2 is a heavy gas and, because the animals were suspended, the method should be rejected.
[16] They argue that they acted with care and professionalism and that the plaintiff acted unreasonably, unilaterally and improperly and is liable for the alleged losses, overriding legitimate rights and entering into improper and unreasonable undertakings that make it solely liable for the damage that is alleged.
PLAINTIFF'S REPLY
[17] The plaintiff argues that section 48 does not require that a slaughter program accompany the disposal orders.
[18] In regard to the slaughter method, the plaintiff alleges that it was safe and that the use of CO2 constituted the best method for disposing of the hens in a way that was humane while safe and secure for property and staff. The plaintiff says that a tent was to be constructed outside the poultry houses, the cages would have been placed within it and then the CO2 gas would have been released in this tent and the cadavers transported to an appropriate location.
[19] The plaintiff notes that the Kiamika farm, on the date prescribed in the disposal order, retained the services of Maheu et Maheu Inc. to slaughter the hens and that the CO2 method was used.
[20] The plaintiff submits that this Court did not set aside the disposal notices.
ISSUE
[21] Is the plaintiff entitled to claim from the defendants the costs incurred by her in relation to the measures taken under the Health of Animals Act, in the amount of $39,324.06?
RELEVANT PROVISIONS
[22] Section 48 of the Act allows the Minister to order the destruction of the animals. It provides:
| 48. (1) The Minister may dispose of an animal or thing, or require its owner or any person having the possession, care or control of it to dispose of it, where the animal or thing
(a) is, or is suspected of being, affected or contaminated by a disease or toxic substance;
(b) has been in contact with or in close proximity to another animal or thing that was, or is suspected of having been, affected or contaminated by a disease or toxic substance at the time of contact or close proximity; or
(c) is, or is suspected of being, a vector, the causative agent of a disease or a toxic substance.
(2) The Minister may treat any animal or thing described in subsection (1), or require its owner or the person having the possession, care or control of it to treat it or to have it treated, where the Minister considers that the treatment will be effective in eliminating or preventing the spread of the disease or toxic substance.
(3) A requirement under this section shall be communicated by personal delivery of a notice to the owner or person having the possession, care or control of the thing or by sending a notice to the owner or person, and the notice may specify the period within which and the manner in which the requirement is to be met.
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| 48. (1) Le ministre peut prendre toute mesure de disposition, notamment de destruction, - ou ordonner à leur propriétaire, ou à la personne qui en a la
possession, la responsabilité ou la charge des soins, de le faire - à l'égard des animaux ou choses qui :
a) soit sont contaminés par une maladie ou une substance toxique, ou soupçonnés de l'être;
b) soit ont été en contact avec des animaux ou choses de la catégorie visée à l'alinéa a) ou se sont trouvés dans leur voisinage immédiat;
c) soit sont des substances toxiques, des vecteurs ou des agents causant des maladies, ou sont soupçonnés d'en être.
(2) Le ministre peut par ailleurs soumettre ces animaux ou choses à un traitement, ou ordonner à ces personnes de le faire ou d'y faire procéder, s'il
estime que celui-ci sera efficace dans l'élimination de la maladie ou de la substance toxique ou la prévention de la propagation.
(3) L'ordre est signifié au propriétaire ou à la personne concernée, soit à personne, soit par envoi postal ou autre, sous forme d'avis en précisant éventuellement le délai ou les modalités d'exécution.
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[23] Section 34 allows the Minister to contract with firms in the application of the Act:
| 34. For the purposes of this Act, the Minister may enter into an agreement with any qualified person to perform such duties or functions as the Minister may specify, on such terms and conditions as the Minister may specify.
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34. Le ministre peut, pour l'application de la présente loi, conclure un accord avec toute personne compétente pour l'exercice, aux conditions qu'il précise, de certaines fonctions.
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[24] Section 50 is a clause exempting Her Majesty from liability:
| 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.
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[25] Section 60 allows the Crown to recover the money spent in implementing an order:
| 60. (1) Her Majesty, and any person who has entered into an agreement with the Minister under section 34, may recover from any person referred to in subsection (2) any prescribed fees or charges and any costs incurred by Her Majesty or the other person, as the case may be, in relation to anything required or authorized under this Act or the regulations, including, without restricting the generality of the foregoing,
(a) the inspection, treatment, segregation, quarantine, testing or analysis of a place, animal or thing, as the case may be, or the identification, storage, removal, disposal or return of an animal or thing, required or authorized under this Act or the regulations; and
(b) the forfeiture, disposal, seizure or detention of an animal or thing under this Act or the regulations.
(2) The fees, charges and costs are recoverable jointly and severally from the owner or occupier of the place or the owner of the animal or thing and from the person having the possession, care or control of it immediately before its inspection, treatment, segregation, detention, forfeiture, quarantine, testing, analysis, identification, storage, removal, return or disposal or, in the case of an animal or thing seized under this Act, immediately before its seizure.
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| 60. (1) Sa Majesté ou toute personne ayant conclu avec le ministre un accord en application de l'article 34 peut recouvrer les redevances réglementaires et autres frais exposés par elle et liés aux mesures prises sous le régime de la présente loi et des règlements, notamment l'inspection, le traitement, l'isolation ou la mise en quarantaine, selon le cas, de lieux, d'animaux ou de choses, - ainsi que les tests ou analyses afférents - au titre de la présente loi ou des règlements, ou encore l'identification, le renvoi, l'entreposage, le transfert, la saisie, la confiscation, la rétention ou la destruction, au même titre, de ces animaux ou choses.
(2) Sont alors débiteurs solidaires de ces frais le propriétaire ou l'occupant du lieu, ou le propriétaire des animaux ou des choses et la dernière personne à en avoir eu la possession, la responsabilité ou la charge des soins avant les mesures en cause.
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[26] It should first be noted that pursuant to Rule 292 of the Federal Court Rules, 1998, this action proceeded as a simplified action and the Federal Court Rules applied.
[27] Accordingly, the various parties on both sides filed affidavit evidence and the witnesses were available to reply to questions based on the allegations cited in their respective affidavits.
[28] Counsel for the defendants Ferme Avicole Héva Inc. and Ferme Paul Richard et Fils Inc. filed a preliminary motion for dismissal on the ground that at the time the expenses were incurred the deadline had not yet expired and the plaintiff's action was not admissible.
[29] It was my opinion that this argument was already present in the submissions on the merits of this case and that the defendants had failed to comply with the provisions of Rule 298, under which such a motion should have been presented at the pre-trial conference; this they had not done.
[30] The motion was therefore dismissed since it was out of time and the issue would in any case be pleaded on the merits.
[31] The defendants' counsel also requested an adjournment of the trial of this proceeding in view of the order rendered by the prothonotary Mr. Richard Morneau on September 7, 1999, ordering that the counterclaim in liability filed by Ferme Avicole Kiamika Inc. be considered a distinct action in liability; it would be preferable, they submitted, if that action were heard prior to the present recovery action in order to avert conflicting judgments.
[32] Counsel informed the Court that this issue had been raised at the pre-trial conference before the Honourable Mr. Justice Hugessen, and that he had dismissed the request. I note, incidentally, that Prothonotary Morneau's decision has not been appealed. The motion was therefore dismissed and the parties were advised to confine themselves to their allegations in accordance with their respective affidavits.
PLAINTIFF'S EVIDENCE
[33] The plaintiff filed the affidavit of Dr. William R. Anderson, dated July 25, 2000, with twelve exhibits appended thereto, and an affidavit of Mr. Martin St-Pierre, dated July 24, 2000, accompanied by two exhibits: a repetition of exhibit P-8 already filed in support of Dr. Anderson's affidavit, and exhibit P-13.
[34] The defendants asked to cross-examine Mr. St-Pierre on his affidavit.
[35] It appears from Mr. St-Pierre's testimony that the representatives of Agriculture and Agri-Food Canada asked Maheu et Maheu Inc., his employer, to destroy the hens in the various poultry houses concerned.
[36] It was agreed, from the outset, that he himself was responsible for the matter and that he had to exercise the greatest discretion so as to avoid the farms concerned being informed of the operation, which was scheduled for June 22 and 23, 1996. The first meeting with the Department's authorities took place on June 18, 1996, and there was a further one the next day, June 19, 1996; it was at that point that Maheu et Maheu Inc. presented the disposal program to the Department authorities.
[37] From the outset Mr. St-Pierre was informed of the problem that the salmonella enteritidis phage type 4 bacteria might cause and he was also informed that he should take some completely special measures to ensure the safety and protection of those involved and avoid the propagation of the bacteria beyond the site.
[38] He recalls receiving a number of instructions from a veterinarian with Agriculture and Agri-Food Canada whose name he no longer remembers.
[39] This was a first for this type of salmonella, both for Maheu et Maheu Inc. and for Agriculture and Agri-Food Canada. His company had previously done disinfection work, but they had never eliminated a complete flock as in this case.
[40] They assembled forty persons to do the work; these were assigned for the job to Kiamika, near Mont Laurier, and to the farms located in Malartic, near Val d'Or.
[41] They sub-contracted the hiring of additional personnel, such as "hen catchers", to the Kelly firm.
[42] Mr. St-Pierre says he met with the people who were to carry out the operation before their departure from Longueuil on the morning of June 21, 1996, and that he was also to hold a briefing session in Val d'Or and Kiamika the next day. This session did not take place, owing to the issuance of an injunction.
[43] Mr. St-Pierre stated that the Sûreté du Québec was to be present in order to enter the site and accompany them while they were doing their work, since the owners of the various sites had not been given notice of the team's arrival.
[44] Although the slaughter contract exhibit P-6, dated June 20, 1996, does not expressly refer to the transportation and definitive disposal of the chicken carcasses after the job had been completed, Mr. St-Pierre stated that it was not his job to handle this aspect and that Agriculture and Agri-Food Canada was to ensure that trucks were on hand and to dispose of the chickens after their elimination by gas. He says he was not aware of how the Department proposed to do this but that it was agreed that his company was not involved in this aspect.
[45] He said, finally, that in the late afternoon, while he was driving in his car toward Mont Laurier, he learned that an injunction had been issued to prevent the performance of the work the next day and he also learned, by telephone, that the slaughter, which had been scheduled to begin the next day, had simply been postponed owing to the injunction.
[46] Upon his arrival in Mont Laurier, around 6:00 p.m., he notified the persons who were on site that they could return home or remain, since the hotel was already paid for. He then went on to Val d'Or where, at around 11:00 p.m., he finally notified the other team that they should not proceed and that they could go home.
[47] Questioned as to paragraph 11 of his affidavit, he stated that to his knowledge a certificate of authorization from the Environment ministry was needed to bury carcasses in such numbers. However, he was not aware of what steps had been taken and he had not seen any truck from the Lomex company that could have performed such transportation.
[48] He said his company dealt particularly with parasite management and that he normally attended to the elimination of parasites in a facility. He said that initially he was to handle the elimination of the carcasses but that subsequently it was Agriculture and Agri-Food Canada that decided to attend to the disposal of the carcasses. This involved the elimination of 110,000 hens and he had never had any experience of that scope.
[49] He then testified that he had eliminated the 110,000 hens two weeks later and that it had taken ten days to complete the job with roughly the same staff but in different slaughter conditions.
[50] Mr. St-Pierre explained how his company's employees were to proceed on June 22 and 23, 1996. They were to build some plastic-sheeted tents outside and then transport the hens, while alive, using "hen catchers"; following which the hens would be eliminated by gas and conveyed by the "hen catchers" to the trucks or containers provided for their disposal. The tents would have been so constructed as to allow the gasification to proceed on a continuous basis. In the plan to eliminate the hens that was ultimately implemented in early July 1996, they had arranged for a wooden shelter within the poultry house that was completely airtight and placed the hens on racks in order to carry out the gasification. He claimed this method took much longer (the operation took 10 days, in fact) and he continues to claim that it would not have taken more than two days for his entire team to eliminate the hens on June 22 and 23, 1996 using the method that was initially planned.
[51] He recalled charging about $20,000 for the three farms for the performance of the work over the ten-day period in early July 1996. He said the planned price of $95,000 for the four-day slaughter was completely reasonable in the circumstances; it involved two days of slaughter plus one day to get to the site and one day to return. In this case there was no assistance from the owner that was contemplated, while in the other case, where the costs were $20,000, there was some assistance by the owner, who had provided some personnel to assist the Maheu et Maheu Inc. employees.
[52] He repeated that the request by Agriculture and Agri-Food Canada was to do the work independently.
[53] Mr. St-Pierre was examined at length in regard to the description of the $39,000 that was claimed, and it turned out that the sums claimed are clearly exaggerated. As it happens, the plaintiff, in her submissions at the end, reduced the claim by several thousand dollars. In so far as I am concerned, it seems that some of the suppliers of Maheu et Maheu Inc. exploited the situation and claimed some extravagant amounts in the circumstances; I also wonder about the amounts claimed for the "hen catchers", who had to travel to the site; one of them testified that he had received only $30 all in all, including for his travel, although the total bill for the subcontracted labour came to $3,795.60. It appears that neither Maheu et Maheu Inc. nor Agriculture and Agri-Food Canada took steps to verify the justification of all these sums, which could easily have been reduced by an appreciable amount.
[54] The defendants then cross-examined Dr. Anderson on the allegations in his affidavit. He said he was responsible for enforcing the Health of Animals Act and that he was fully authorized to intervene in cases like this, not only concerning the animals but also in regard to the cages, buildings and incubators and all the equipment in the animals' environment.
[55] Mr. Anderson testified that only one other case of contamination by the salmonella enteritidis phage type 4 bacteria had previously been identified in an outbreak in Arthabaska. However, he did not recall when, although it had occurred only a few months prior to this case. An incubator was contaminated and there was no quarantine. Nor had any action been taken to seize the chicks. He claimed that Agriculture and Agri-Food Canada had monitored the situation in the usual way. There was no illness to report after the samples taken on the equipment, and the disinfection measures were taken by the hatchery, he said. There was no destruction, no quarantine, no contaminated site declaration. However, Mr. Anderson did say that salmonella enteritidis phage type 4 bacteria is extremely dangerous, not only to animals but to human beings as well.
[56] Mr. Anderson said Mr. Jean Dion, the same individual who had notified him at the time of the first contamination, in Arthabaska, came and notified him on May 17, 1996 that there was a new outbreak on the affected farms in this case.
[57] Mr. Anderson explained that this disease, salmonella enteritidis phage type 4 bacteria, is not a voluntary notification disease. About two weeks later, on May 30, 1996, he learned that some deaths had occurred in a home-care centre in the area. He therefore decided very quickly that some proceedings had to be taken to safely eliminate the flocks. However, the Department had no written procedure for carrying out such elimination; there were only some generalities.
[58] Mr. Anderson explained that the elimination of the flocks is the responsibility of the breeders. He said again that this was the biggest instance of contamination he had seen and that it was not a simple case.
[59] He immediately dispatched some teams to meet with the owners and help them comply with the order he issued on June 3, 1996. He mentioned the names of Mr. Jean-Luc Dubois, Ms. Josée Trépanier, Mr. André Vallières, Mr. Denis Bouvier and Mr. Claude Goyer.
[60] He was aware of other disposal methods and he remembered that some simulations had been done with some hens, but never of this scope. He knew there had been experiences in the United States with many flocks. He knew that in any event it was necessary to proceed quickly and carefully.
[61] He claims he made no connection between the information received in May 1996 and that received in the fall of 1995, in Arthabaska, and according to him there was no evidence of contamination by the chicks originating from the initial contamination site. These were two different outbreaks, he said.
[62] Mr. Anderson claims that the deadline in his order of June 3, 1996, that all the hens be eliminated no later than June 12, 1996, was reasonable given the circumstances and considerations of public health. He says he refused an additional period because there was no indication that the owners intended to comply with the order and slaughter the hens. The owners, he said, were too preoccupied by the costs entailed and the need to be compensated.
[63] He alleges that the owners of the farms wanted to get the compensation money before going ahead with the elimination, and this was not possible.
[64] Under insistent questioning, Mr. Anderson was unable to provide any particulars concerning the transportation and burial plans for the carcasses after their elimination. However, he specifically mentioned that safe transportation and burial were as important as safe slaughter of the hens and that there could not be one without the other. He said again that Agriculture and Agri-Food Canada would never have proceeded with the slaughter had he not been sure that the disposal of the carcasses would be done in a safe way consistent with the regulations.
[65] Some of his employees or collaborators, he said, had agreed that the carcasses would be disposed of by the Lomex company. He also stated that he was certain that the Lomex people had been asked to be as discreet as possible so as not to alert the affected farms of the proposed operation. However, it was not possible to find out who had arranged this agreement and no written trace of the agreement exists and no truck was seen on site.
[66] He has absolutely no knowledge of the burial sites located in the Val d'Or region, and although he knows that an authorization from the Quebec Environment ministry is required for burial, he says Agriculture and Agri-Food Canada did not have to concern themselves with this issue, since it was the carriers and the rendering plants if necessary who look into obtaining the permits. He was not aware that the only site in the greater Abitibi-Temiskaming region would be the one in the town of Val d'Or.
[67] Mr. Anderson states in paragraph 63 of his affidavit dated June 23, 1996:
| [Translation] ... the Quebec Environment ministry has informed our department that it will not authorize the burial of fresh shelled eggs and that in order to be capable of burial, such eggs must be hard-boiled. It appears that the burial of a large quantity of fresh shelled eggs may pollute the water table. |
[68] Ms. Renée Lavigne, from his department, in paragraph 25 of her affidavit of June 20, 1996, expressly states that it may take up to one month to obtain an authorization from the Environment ministry:
| [Translation] Moreover, the Quebec Environment ministry has informed our department that the burial of fresh shelled eggs is a problem, owing to the need to conduct an environmental study, which generally lasts a month, and that in order to be buried quickly, these eggs would have to be hard-boiled. It appears that the burial of fresh shelled eggs may pollute the water table. |
[69] Questioned about these two statements, Mr. Anderson stated that he knew that the hens had some eggs within them when they were eliminated and that the burial of the hens necessarily implied the burial of the eggs.
[70] However, Mr. Anderson stated that the one-month deadline referred to in Ms. Lavigne's affidavit may be reduced to a few days in an emergency situation. But he was unable to demonstrate that some steps had been taken to secure the authorizations from the Environment ministry.
[71] He also testified that the eggs produced in the various henhouses that were in quarantine were eliminated accordingly, under the supervision of Agriculture and Agri-Food Canada, and that there was no danger.
[72] Questioned by counsel for the plaintiff, Mr. Anderson reiterated that the discussions with the other government departments and ministries involved had been continued throughout the process.
[73] To counter Mr. St-Pierre's testimony, the defendants called Mr. René St-Pierre, unrelated to Mr. Martin St-Pierre, who was hired as a "hen catcher", and who was seventeen years old. He stated that he had never been hired by Mr. Larue, who had billed Maheu et Maheu Inc., had never been given any instructions by Mr. St-Pierre, and finally, that having learned around 6:00 p.m. that he could go home he was informed that he could leave or remain on site because the hotels were paid for. He claims he received $30 for his trip. He claims that no one spoke to him about the disease other than Mr. René Bergeron who had hired him the day before.
[74] He never met Mr. Martin St-Pierre of Maheu et Maheu Inc. and he claims he was notified when he arrived on site that he would not have to work.
DEFENDANTS' EVIDENCE
[75] The defendants then filed their exhibits: exhibit D-1, which is the affidavit of Ms. Renée Lavigne, and the affidavit of Mr. Jean Richard with five exhibits appended thereto and two affidavits of Mr. Maurice Richard, one as president of Ferme Avicole Paul Richard et Fils Inc. and the other as president of Ferme Avicole Héva Inc.
[76] Prior to cross-examination, the plaintiff's counsel asked to make certain alterations in Mr. Jean Richard's affidavit: in paragraph 9, the word intempestivement ["at an inopportune moment"] was withdrawn by consent; in paragraph 19, the sentence ending et de façon extrêmement imprudente ["and in an extremely imprudent way"] was withdrawn by consent; paragraph 24 was completely withdrawn; in paragraph 26, the phrase ce qui démontre l'empressement de la demanderesse à tenter de se faire justice elle-même quant aux autres fermes ["which demonstrates the plaintiff's eagerness to take the law into its own hands in regard to the other farms"] was withdrawn; and paragraph 27 was withdrawn entirely.
[77] The plaintiff then proceeded to cross-examine Mr. Jean Richard on his affidavit. Mr. Richard testified that he became aware of the problem on May 17, 1996, as a result of some tests that had been taken the previous May 6.
[78] As soon as he knew that the salmonella enteritidis phage type 4 bacteria was present, his employees immediately stopped marketing the eggs of the contaminated flock. They also decided voluntarily to stop marketing the products of another brood, as a precaution.
[79] It seems that it was Ms. Lavigne who learned of it on May 16, 1996 and informed Mr. Richard the next day.
[80] Mr. Richard testified concerning the usual method of slaughter, which consists of loading the hens on a truck and conveying them to an abattoir. He said he has been doing this several times a year since he was born.
[81] He testified that another method had to be found since the standards for destroying these hens represented an enormous task and some other way of proceeding had to be found if the health of the animals and the humans was to be protected.
[82] He worked closely with Agriculture and Agri-Food Canada to try to find a solution and was also advised by Dr. Martine Boulianne, whose affidavit is in the record.
[83] Upon receipt of the orders in early June 1996, they had to act very quickly although there were no guidelines from Agriculture and Agri-Food Canada, and that is why they resorted to an outside veterinarian.
[84] Mr. Richard said that between May 17 and May 31, 1996, he had obtained some slaughter dates, but he was told that these animals had been rejected for slaughter because they were considered diseased. The hens were therefore refused both by the abattoir and by the veterinarian of Agriculture and Agri-Food Canada on site.
[85] It appears that the recall of the eggs on the market was ordered when Agriculture and Agri-Food Canada learned that people had died as a result of the presence of contaminated eggs on the market.
[86] He said that the negotiations with Agriculture and Agri-Food Canada went badly and he filed a letter he had sent on June 20, 1996 before finding out that Agriculture and Agri-Food Canada had decided to proceed on its own with the disposal, the said letter giving the particulars from day to day of what he had done between early June and June 21, 1996. This exhibit was filed in support of his affidavit as exhibit A-F-1.
[87] On June 20, 1996, he learned through Mr. Martin St-Pierre's mother, who was working with her sister-in-law, that Mr. St-Pierre was going to be carrying out a massive slaughter in Abitibi. His employee, Mr. Aubray, also learned through a Lomex employee whom he had called to find out how to transport the carcasses for disposal, that he was the second person to inquire as to Lomex's availability.
[88] Mr. Richard claims he cooperated with the Department's officials until the very end in order to find together the safest and most economical way to carry out the slaughter, and he realized that Agriculture and Agri-Food Canada did not know what to do in the circumstances, either.
[89] He claims that Agriculture and Agri-Food Canada did not demand any plan and that in any event, a lot of hypotheses were developed between May 17, 1996 and June 20, 1996, in an attempt to find some way to slaughter the hens. He says they proceeded to slaughter the hens between July 1 and 10, 1996, without receiving any compensation, although some eggs had been destroyed for many weeks.
[90] He also states that the eggs were entirely paid for later and that the hens were paid for, but at their depreciated value, according to him.
[91] He claims it was his consistent intention to comply with the orders within the deadlines, but that it was not possible to do so before he carried out the slaughter himself between July 1 and 10, 1996.
[92] The plaintiff then cross-examined Mr. Maurice Richard. He simply testified about the content of a letter he sent to Dr. Anderson, dated June 17, 1996, in which he submitted a compensation proposal for poultry house no. 6 of the Ferme Avicole Héva Inc. This letter constituted an admission on his part, however, that the notice of June 14, 1996 to destroy hens in regard to the Ferme Avicole Héva Inc. had indeed been received by Mr. Richard on behalf of the Ferme Avicole Héva Inc.
ANALYSIS
[93] I think it is important to state at the outset that there is no doubt in my mind that the orders to destroy the hens dated June 3, 1996 and June 14, 1996 were lawfully issued and were completely legitimate in the circumstances. It appears that the deadlines cited in each of these orders may have been a bit tight, but in any event I do not have the authority to determine the validity of the said orders, and to my way of thinking the defendants were obliged to comply with them to the best of their ability.
[94] In this regard, the reasons for non-compliance with these orders are more or less relevant in the circumstances, and the economic considerations cited by the defendants, while they may seem completely legitimate for businesses of this size, are unacceptable in the circumstances.
[95] The law is very clear: it allows orders to be issued for the destruction of animals. In particular, the death of individuals as a result of contamination amply justified the Department in taking quick and effective action in the circumstances.
[96] What action are we talking about? The Act specifies that the Minister has three possibilities: he may issue an order that the owner of the hens shall himself destroy the hens, eliminate the hens himself, or ask a third party to do so.
[97] The Department first opted for what was normal in the circumstances: to order the defendants to destroy the hens themselves within a definite period. The Department could also have prescribed the ways in which this would be done, but it chose not to do so.
[98] In fact, it is here that the problem is primarily situated. If the procedure had been specified in the order, everything would have been clear. However, since it was not, and the plaintiff's witnesses reaffirmed several times, both in their correspondence and in their oral testimony, that it was the defendants' responsibility to submit a slaughter plan, this put the responsibility for establishing such a plan back in the hands of the owners. A slaughter plan would allow the safe disposal of the flocks in a way that was consistent with the health of the animals and public health, but at the same time it had to be approved by Agriculture and Agri-Food Canada.
[99] Section 48, which has been cited in this proceeding, does not state that, absent any prescribed procedure in the order, the owners of contaminated flocks should prepare different slaughter plans until such time as the defendants themselves find the solution and it is finally approved by Agriculture and Agri-Food Canada.
[100] This apparently flexibility was in fact the cause of the problem. As the time passed, and the June 12, 1996 deadline was now gone, Agriculture and Agri-Food Canada became impatient and its official finally decided that the Department should proceed itself with the slaughter of the hens.
[101] Once again, this decision was completely legitimate in the circumstances; however, I am concerned about a number of points that were not clarified, and that lead me to conclude that the plaintiff neglected to prove certain essential facts to me.
[102] In fact, Mr. Anderson, who seems quite competent, by the way, and well informed about the problem posed by the elimination of the flocks in this case, clearly stated that Agriculture and Agri-Food Canada had no solution as to the elimination of these flocks and that they themselves were to some degree feeling their way in the discussions between their staff members and the defendants' representatives.
[103] This testimony in itself clearly indicates that if Agriculture and Agri-Food Canada, which is responsible for the enforcement of the Health of Animals Act and the protection of public health, does not know how to carry out the slaughter of such a flock in such circumstances, and has no experience in this area, it is almost inconceivable that within the space of a few days the defendants could themselves discover what the specialists themselves did not know.
[104] I mention in passing as well that Maheu et Maheu Inc., who are specialists in parasite management and the elimination of parasites and contaminated animals, themselves did not know how to proceed in such circumstances.
[105] Saying this does not in any way remove the obligation that was imposed, since the time was running and some people had apparently already died as a result of the contamination.
[106] Another very important item that has concerned me is that Dr. Anderson clearly stated that the transportation and elimination of the carcasses was as important as the elimination of the flocks themselves. He stated several times that they would never have gone ahead with the slaughter if the transportation and elimination of the carcasses had not been contemplated as well.
[107] However, the plaintiff was unable to provide the least evidence that arrangements had been made for the transportation and elimination of the carcasses. I was also surprised that Agriculture and Agri-Food Canada had not planned -- at least, no evidence whatsoever was provided to me -- to have staff on site to ensure that the job was performed in fully compliance with the Act and the regulations.
[108] There was a lengthy discussion of the need for an authorization from the Quebec Environment ministry to bury the 110,000 chicken carcasses, which represents at the very least more than 110 tons of tainted meat that had to be disposed of, containing eggs the burial of which appeared to pose a danger to the water table.
[109] Had this issue not been settled, it seems that they could not have carried out the slaughter of the hens the next day, and in that sense the expenses incurred by the hiring of Maheu et Maheu Inc. would have been a complete loss for which only Agriculture and Agri-Food Canada should be held liable, and in no case the defendants.
[110] A further item flowing from the facts and the law is of even greater concern: the reason cited by the plaintiff for not proceeding with the slaughter of the hens as contemplated on June 22 and 23, 1996 is the issuance of two injunctions, one by Mr. Jean-Gilles Racicot, the clerk of the Superior Court in Val d'Or, dated June 21, 1996, and the other by the Honourable Mr. Justice Louis-Philippe Landry, a Superior Court judge in Mont Laurier, on June 21, 1996.
[111] However, a reading of the two injunction orders indicates that they covered only a small part of the flock in question and that in fact close to 80,000 hens covered by the disposal order could be destroyed, while only about 30,000 were covered by the injunctions; among other things, the injunction issued by Mr. Jean-Gilles Racicot, the clerk of the Superior Court, dated June 21, 1996, specified that only a slaughter using gas in the poultry houses (my emphasis) was contemplated by the order in the case of poultry houses 6 and 7 in Rivière Héva. Since the prescribed slaughter was to be carried out outside the poultry houses, this was not a problem, either.
[112] In paragraph 57 of his affidavit, Mr. Anderson states, and I quote:
| [Translation] In view of the protection orders, the motions for an injunction, and the relationships that exist among the defendants, I asked Maheu et Maheu Inc. to cease its operations and wait until the Superior Court had ruled on the injunction motions. |
[113] Counsel for the plaintiff, in reply to this argument, simply stated that the reason why they had not proceeded in the case of the hens that were not covered by the injunction was that Mr. Anderson had based this decision on the relationships between the defendants.
[114] Since the plaintiff was unable to explain what this assertion meant, I have some difficulty explaining why Agriculture and Agri-Food Canada, which had invested close to $40,000 to bring in the teams of persons supposedly ready to proceed with the slaughter, did not proceed on the pretext of the "relationships" among the defendants; this is not acceptable in the circumstances.
[115] Agriculture and Agri-Food Canada of course had no need to justify its decision not to proceed with the slaughter; Agriculture and Agri-Food Canada was the principal contractor. However, when you present a bill for $40,000 for costs of an operation, the execution of which was decided unilaterally and for which the decision not to proceed was also made unilaterally, it is hard to consider this $40,000 in expenses -- an exaggerated amount in the circumstances -- attributable to the defendants who did not participate in the decision to go ahead or in the decision not to go ahead, other than in respect of a portion of less than 30 percent of the flock.
[116] For obvious reasons, there is no apparent need to comment on the other submissions on either side, although I note that the plaintiff reduced its claim as follows, referring to page 5 of the affidavit of Mr. Martin St-Pierre, I note some amendments in the sums claimed as follows: purchase of cylinders for the CO2 gas, the figure should read $627, a reduction of $1,000; the purchase of materials (polyethylene, cooler, drums, hoses, containers, wood, etc.) is reduced to $1,177.06, a reduction of $2,000; preparation/logistics before the operation, the amount of $5,500 becomes $4,500, reduced by $1,000; administration, the payment of $2,400 is reduced to $2,150, a reduction of $250; and the attorney's fees are eliminated completely, a reduction $1,000, making a grand total of $31,501.16 instead of $36,751.16, plus the GST reduced to $2,205.09, for a grand total claimed of $33,706.25.
[117] In view of the evidence submitted to me concerning the claim of $33,706.25, it is my opinion that this sum should be further decreased under other heads: specifically outside labour, by $2,000; logistical preparation before the work reduced by an additional $2,000; and labour (Maheu et Maheu Inc. staff) should also be reduced by $5,000 and a further $1,000 should be reduced on administration, making a total reduction of $10,000, leaving a balance of actually approved expenses of $21,501.16 plus GST.
[118] In light of the evidence that was heard, although the plaintiff has proved the merit of the two orders that were issued, the plaintiff has not managed to demonstrate that the sums she paid to Maheu and Maheu Inc. can be claimed from the defendants under the provisions of the Health of Animals Act and in particular sections 50 and 60 of the Act.
[119] For all of these reasons, the plaintiff's action is dismissed with costs.
OTTAWA, ONTARIO
October 5, 2000
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| STYLE: Her Majesty the Queen v. Ferme Avicole Héva Inc. et al. |
| PLACE OF HEARING: Mont Laurier, Quebec |
| DATE OF HEARING: September 11 and 12, 2000 |
REASONS FOR ORDER OF BLAIS J.
DATED: October 6, 2000
APPEARANCES:
Marie-Claude Couture FOR THE PLAINTIFF
| Marc-André Simard FOR DEFENDANT FERME AVICOLE KIAMIKA |
| Lucien Cliche FOR DEFENDANT FERME AVICOLE HÉVA AND PAUL RICHARD ET FILS |
SOLICITORS OF RECORD:
Morris Rosenberg FOR THE PLAINTIFF
Deputy Attorney General of Canada
Montréal, Quebec
| Simard Deschênes Barrette FOR DEFENDANT FERME AVICOLE KIAMIKA |
Mont-Laurier, Quebec
| Cliche Lortie Ladouceur FOR DEFENDANT FERME AVICOLE HÉVA |
Val d'Or, Quebec AND PAUL RICHARD ET FILS
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