Date: 20070705
Docket: P-1-07
Citation: 2007
FC 703
Ottawa, Ontario,
July 5, 2007
PRESENT: The Honourable Mr. Justice Martineau, Deputy Assessor
BETWEEN:
MJ
FARM LTD.
Appellant
and
THE MINISTER OF AGRICULTURE
AND AGRI-FOOD CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1]
This is an
application made by the respondent requesting an order summarily dismissing the
present appeal, which was filed under section 56 of the Health of Animals
Act, S.C. 1990, c. 21 (the Act) on December 21, 2006, on the grounds that
it was filed well out of time and that there are no "special reasons"
to extend the usual three-month time limit.
[2]
The appellant
raises Silkie chickens (growers and breeders) in Abbotsford, B.C. It is run and
operated by Mr. John Giesbrecht. On March 11, 2004, due to the detection of Avian
Influenza in poultry farms in the Fraser
Valley, the Minister of Agriculture and Agri-Food (the Minister) declared the
establishment of a control area. Accordingly, on May 4, 2004, the Minister required
that the appellant’s stock be destroyed, pursuant to subsection 48(1) of the
Act. Shortly thereafter, all of the appellant’s breeding stock was euthanized.
[3]
On or
about May 11, 2004, the appellant applied for compensation of his stock
pursuant to paragraph 51(1)(a) of the Act. He submitted a valuation that
claimed a total of $116,929.55, which included the amount of $70,072.26 for the
breeders. This valuation made by the appellant was based on the cost of
production of the stock and assumed retention of some of the breeder chick
eggs, not yet hatched, and a hatch rate of 60-70% (an assumption which proved
later to be in error). While the appellant was awarded $48,813.42 for the silky
breeder stock, overall the appellant was awarded compensation of $114,218.48 on
July 21, 2004.
[4]
Mr.
Giesbrecht sent a letter of appeal with respect to the compensation award on or
about December 21, 2006. On January 11, 2007, the Honourable Allan Lutfy,
Assessor, ordered that the letter be filed as a notice of appeal pursuant to
section 56 of the Act. On March 14, 2007, the respondent filed an application requesting
that the Assessor grant an order striking out the appellant’s appeal on the
grounds that the appeal was filed outside the three month limitation period
fixed by subsection 56(2) of the Act.
[5]
Pursuant
to section 56 of the Act, a person who is dissatisfied with the Minister’s
disposition of their claim under the Act may bring an appeal to the Assessor.
The only grounds of appeal are that the failure to award compensation is unreasonable
or that the amount awarded is unreasonable. Subsection 56(2) provides the time
limit for bringing the appeal:
|
(2)
An appeal shall be brought within three months after the claimant receives
notification of the Minister’s disposition of the claim, or within such
longer period as the Assessor may in any case for special reasons allow.
|
(2)
L’appel doit être interjeté dans les trois mois suivant la notification à
l’intéressé de la décision ministérielle contestée ou dans le délai plus long
que l’évaluateur peut exceptionnellement accorder.
|
[6]
In the
case at bar, it is agreed by both parties that the appellant is well outside
the three-month period provided for in section 56 of the Act. However, the appellant
contends that there are “special reasons” for allowing the appeal at this time.
Specifically, the appellant relies on the decision Donaldson v. Canada (The Minister of Agriculture
and Agri-Food
Canada), 2006 FC 842, rendered on
June 30, 2006. In that decision, the Assessor (Justice Michael Kelen) allowed
an appeal filed by Mr. Donaldson who, according to the appellant, is the only
other Silkie breeder in the Fraser Valley. Mr. Donaldson had taken issue with the
amount awarded in compensation for his Silkie breeders, which had been
destroyed in 2004. Specifically, he claimed that the amount awarded was less
than the market value of the stock. As there is no commercial market available
to establish value by use of comparables (the Silkie breeders are not traded on
the open market), the Assessor noted that the replacement cost or cost of
production was the proper method of determining the market value of the Silkie
breeders. In the decision, based on the evidence submitted by the parties, the
Assessor found that the respondent had failed to distinguish between Silkie
meat stock birds (the growers) and breeding stock birds (the breeders).
Accordingly, the Assessor allowed the appeal, finding that the amount of
compensation paid “was based upon a fundamental misunderstanding by the
respondent with respect to the market value of Silkie breeders” (para. 22).
[7]
The Act
does not define the term “special reasons” which is used at subsection 56(2) of
the Act in relation to the power given to the Assessor to extend the time
period for filing an appeal where an appeal is not brought within the
three-month limitation period. Nor was any jurisprudence found by the Assessor that
defines this term under the Act. The Pesticide Residue Compensation Act, R.S.C.
1985, c. P-10 (subsection 15(2)), as well as subsection 40(2) of the Plant Protection
Act, S.C. 1990, c. 22 also contain provisions that are almost identical and
that also use the term “special reasons”. However, neither of these statutes contains
a definition of “special reasons”. Nor was any jurisprudence found by the
Assessor or tendered by the parties that interpreted these terms under those latter
statutes.
[8]
That being
said, by analogy, the parties have referred the Assessor to decisions rendered
by the Federal Court with respect to the criteria regarding extensions for
filing applications for judicial review under paragraph 18.1(2) of the Federal
Courts Act, R.S.C. 1985, c. F-7. The principles which apply to cases of
this nature have been set out by the Federal Court of Appeal in Grewal v. Canada (Minister of Employment and Immigration), [1985] 2 F.C. 263 (F.C.A.).
The relevant factors may include any or all of the following: (a) the merits of
the application; (b) whether the applicant has had a continuing intention to
bring the application; (c) the reason for the delay; and (d) whether the
responding party has suffered any prejudice because of the delay. In this
regard, there is no need for an applicant who is seeking an extension of time
to demonstrate "special reasons" (Maple Lodge Farm Ltd. v. Canada (Minister of National Revenue), [1997] F.C.J. No. 288 at
para. 9 (T.D.)(QL)).
[9]
The
Assessor has also been referred by counsel to cases that were decided by judges
of the Federal Court, sitting as umpires under the Employment Insurance Act,
S.C. 1996, c. 23. More particularly, under subsection 114(1) of the latter
statute, a claimant or other person who is the subject of a decision of the
Commission, or the employer of the claimant, may appeal to the board of
referees in the prescribed manner at any time within 30 days after the day on
which a decision is communicated to them or such further time as the Commission
may in any particular case for “special reasons” allow. The jurisprudence has
established that "special reasons" include compassionate reasons or
circumstances which are beyond the claimant's control. However, ignorance of
the appeal process, forgetfulness, or simple negligence does not constitute
"special reasons" (Sharon J. Collins, CUB 61940A). Furthermore,
in William L. Roulston, CUB 19019, Cullen J. reviewed case law to the
effect that a change in jurisprudence does not constitute “special reasons.” In
support of this proposition, see also CUB 17581 and CUB 17741.
[10]
The appellant
argues that the rendering of the decision in Donaldson in June 2006 constitutes
a “special reason” that warrants an appeal being allowed today. Since the
assessment process has been corrected by the respondent for Mr. Donaldson’s
operation, but not for the appellant, this creates an injustice that must be
remedied by allowing the appellant to pursue the present appeal. The appellant
also contends that at the time he was offered compensation, he was
unrepresented and that the respondent had made assurances that they had arrived
at the appropriate amount with due diligence. The appellant also believed at
the time that it would be able to salvage some of the eggs, from which it could
hatch replacement breeder stock. However, it was ultimately unable to salvage
the majority of its eggs. In his affidavit, Mr. Giesbrecht states that he found
out about the Donaldson decision on September 21, 2006. Immediately
thereafter, with the help of a consultant, he recalculated his compensation
using the method of calculation described in the Donaldson case, and
wrote a letter of appeal on December 21, 2006.
[11]
In my view,
there are no “special reasons” that warrant extending the period for filing the
notice of appeal in the present case. "Special reasons" for a delay
in launching an appeal under subsection 56(2) of the Act certainly include
compassionate reasons or circumstances which are beyond an appellant's control.
However, simple negligence or ignorance of the law cannot be accepted as
"special reasons". I agree with the respondent that a change in
jurisprudence or in the law is not in itself a “special reason” that would
justify the late filing of an appeal. The fact that the appellant would have a
better case in 2006, based on the Donaldson decision, is simply not
enough to overcome the unreasonable delay to file the appeal.
[12]
That being
said, I doubt that Donaldson has introduced a fundamental change in the
law as urged by the appellant's counsel. As noted by my colleague Justice Kelen
in that case at paragraph 19:
As other assessors have decided under the
Health of Animals Act, when there is no commercial market available to
establish value by use of comparables, then the depreciated replacement value
method is reasonable for estimating the market value of an animal that is
destroyed. See Ferme Avicole Héva Inc. v. Canada (Minister of Agriculture) (1998), 203 F.T.R. 218 per
Tremblay-Lamer J., Assessor, at paragraphs 31 and 32.
[13]
A close
reading of the Assessor's analysis in Donaldson shows that the reasons
for allowing a greater compensation than that awarded by the respondent are
fact-driven. The Assessor noted in Donaldson that "[t]he witnesses
for the appellant were credible and experienced". On the other hand, the
Assessor found that "[t]he witnesses for the respondent did not provide
any credible evidence regarding the proper market value of the Silkie
breeders" (para 22).
[14]
In the
case at bar, the appellant was already claiming in 2004 compensation based on
the cost of production or replacement value of the lost stock (which he had
evaluated at $70,072.26, a figure that had been revised by 2006 to
$108,836.31). In the present case, the appellant has not satisfied the Assessor
that he was unable to file a notice of appeal within the three-month period provided
for in the Act. This is what Mr. Donaldson, the owner of Bradner Farms, had
done in 2004. The evidence demonstrates that the appellant was aware of its
right to appeal as of April 15, 2004. The appellant waited until December 21,
2006, to file its appeal. (This is some three months after he allegedly found
out about the Donaldson decision on September 21, 2006.)
[15]
Mr.
Giesbrecht has not raised in his affidavit any compassionate reasons or
illness, or any impossibility to act or any circumstances that were beyond his
control. The fact that the appellant had no reason to suspect in 2004 that what
the representatives of the respondent had told him was incorrect is not a
"special reason". Moreover, the appellant was not diligent and
certainly did not demonstrate a continuous intention to pursue its appeal and I
find the fact that the appellant was unrepresented by counsel in 2004 is not a
reasonable explanation for the delay of nearly two and a half years that have
elapsed since the appellant received notification of the Minister's disposition
of its claim.
[16]
The
present application to strike shall be allowed. Accordingly, it is appropriate
to summarily dismiss the present appeal. Costs shall be in favour of the respondent.
ORDER
THE ASSESSOR ORDERS that the application to strike
made by the respondent be allowed. Accordingly, the appeal is summarily
dismissed. Costs are in favour of the respondent.
“Luc
Martineau”
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