[2] On February 5, 2003, a Canadian Food Inspection Agency inspector inspected cattle at the auction market at Ponoka, Alberta. The inspector noted that two cows did not have proper ear tags in their ears. Subsection 176(2) of the Health of Animals Regulations, SOR/91-525, provides:

176(2) Subject to section 183, no person shall remove, or cause the removal of, an animal from a farm or ranch other than its farm of origin unless the animal bears an approved tag.

176(2) Sous réserve de l'article 183, nul ne peut retirer ou faire retirer un animal de toute ferme ou tout ranch, autre que sa ferme d'origine, à moins que l'animal ne porte une étiquette approuvée.

[3] The inspector determined that the respondent was the registered owner of the cows and that they had been removed from his farm to Ponoka on February 4, 2003. She issued a notice of violation under the Agriculture and Agri-Food Administrative Monetary Penalties Act, S.C. 1995, c. 40, to the respondent fining him $500.

[4] The respondent appealed the notice of violation to the Review Tribunal. The proceeding was conducted on written submissions. In his written submission, the respondent said that:

1. he had put ear tags on the cows on Mother's Day, 2002;

2. the ear tags might have become dislodged in a self feeder on the farm;

3. the ear tags could have come off in rough action between cows in the herd; and

4. the tags may have become dislodged at the Ponoka auction market.

[5] He continued in his written submission:

And as further justification, I would like to advise that I believe that when I shipped the cows they had their ear tags. However, I will state that I did not do an inspection which I realize now I should have and which I will always do in the future.

DECISION OF THE REVIEW TRIBUNAL

[6] In his decision, the Chairman of the Review Tribunal stated:

The Applicant provided evidence that he purchased approved ear tags on April 9, 2002, and that his wife assisted him in tagging their cows on Mother's Day, 2002. He further believed that when he shipped the cows they had their ear tags.

....

In order to succeed, the Respondent must establish, on a balance of probabilities, that the Applicant removed the cows from his farm without bearing approved tags. In this case, it has not done so. The evidence of the Applicant considerably outweighs that of the Respondent.

[7] As a result, the Chairman of the Review Tribunal held that the respondent did not commit the violation and was not liable for payment of the $500 penalty.

ANALYSIS

[8] In our respectful opinion, the Review Tribunal erred in law in coming to this conclusion.

[9] Section 19 of the Act provides:

19. In every case where the facts of a violation are reviewed by the Minister or by the Tribunal, the Minister must establish, on a balance of probabilities, that the person named in the notice of violation committed the violation identified in the notice.

19. En cas de contestation devant le ministre ou de révision par la Commission, portant sur les faits, il appartient au ministre d'établir, selon la prépondérance des probabilités, la responsabilité du contrevenant.

Read in isolation, section 19 would justify the Review Tribunal weighing the evidence and concluding on a balance of probabilities that the respondent did not commit the violation.

[10] However, subsection 18(1) of the Act provides:

18. (1) A person named in a notice of violation does not have a defence by reason that the person

(a) exercised due diligence to prevent the violation; or

(b) reasonably and honestly believed in the existence of facts that, if true, would exonerate the person.

18. (1) Le contrevenant ne peut invoquer en défense le fait qu'il a pris les mesures nécessaires pour empêcher la violation ou qu'il croyait raisonnablement et en toute honnêteté à l'existence de faits qui, avérés, l'exonéreraient.

Therefore, due diligence or a reasonable and honest belief that the cows were tagged are not permissible defences.

[11] The evidence before the Review Tribunal was that when the cows were inspected on February 5, 2003, in Ponoka, they did not have ear tags. The cows were taken to Ponoka on February 4, 2003. Prima facie, the inference to be drawn from that evidence was that the cows were removed from the respondent's farm without ear tags.

[12] It was open to the respondent to provide proof that the cows did have ear tags when they were removed from the farm. For example, if tags were found at the Ponoka auction market, that might have been sufficient proof.

[13] However, for the respondent to say, as he did, that he believed the cows had ear tags when they left the farm is, by reason of paragraph 18(1)(b), not a permissible defence, especially when he conceded he did not do an inspection at that time. His other explanations, that the tags were put on on Mother's Day 2002 and that the ear tags may have come off at the Ponoka auction market are statements of due diligence and belief. They also are not permissible defences.

[14] There was no relevant evidence before the Review Tribunal to refute the appellant's prima facie evidence that when the cows were inspected in Ponoka, the day after they were removed from the respondent's farm, they had no ear tags and the inference that the cows were therefore removed from the farm without ear tags.

[15] The reason for subsection 18(1) is apparent. In its absence, it would be open to anyone to avoid the requirements of subsection 176(2) by simply saying that he or she put tags on an animal and that when the animals were removed from the farm, there was a belief that the tags were still on the animals. Government inspectors do not inspect animals when they leave the farm and there would be no way for the violation to be proven.

[16] That is not to say that no defences are available; only that defences of due diligence and honest belief are not.

CONCLUSION

[17] We would therefore allow the appeal, quash the decision of the Review Tribunal, and remit the matter to the Tribunal for redetermination on the basis that the respondent did violate subsection 176(2) of the Regulations and that the respondent's appeal to the Tribunal should be dismissed.

[18] In view of the well known depressed condition of the cattle industry in western Canada at this time, the appellant was asked whether a reduction of the $500 penalty would be acceptable to the government or whether a warning might be substituted. Counsel advised that the government is not prepared to modify the $500 penalty.

"Marshall Rothstein"

J.A.

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-323-03

(APPLICATION FOR JUDICIAL REVIEW OF A DECISION OF THE REVIEW TRIBUNAL (AGRICULTURE AND AGRI-FOOD) DATED JUNE 4, 2003)

STYLE OF CAUSE: Attorney General of Canada on behalf of the Canadian Food Inspection Agency v. Dwayne Magnowski

PLACE OF HEARING: Edmonton, Alberta

DATE OF HEARING: December 17, 2003

REASONS FOR JUDGMENT

OF THE COURT: ROTHSTEIN, NOËL, MALONE JJ.A.

DELIVERED FROM THE

BENCH BY: ROTHSTEIN, J.A.

APPEARANCES:

Camille Audain

FOR THE APPLICANT

Dwayne Magnowski

ON HIS OWN BEHALF

SOLICITORS OF RECORD

Morris Rosenberg

Deputy Attorney General of Canada

Ottawa, ON

FOR THE APPLICANT

Date: 20031217

Docket: A-323-03

EDMONTON, ALBERTA, DECEMBER 17, 2003

CORAM: ROTHSTEIN J.A.

NOËL J.A.

MALONE J.A.

BETWEEN:

ATTORNEY GENERAL OF CANADA on behalf of the

CANADIAN FOOD INSPECTION AGENCY

Applicant

and

DWAYNE MAGNOWSKI

Respondent

JUDGMENT

The appeal is allowed, the decision of the Review Tribunal is quashed, and the matter is remitted to the Tribunal for redetermination on the basis that the respondent did violate subsection 176(2) of the Regulations and that the respondent's appeal to the Tribunal should be dismissed.

"Marshall Rothstein"

J.A.

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Canada (Attorney General) v. Magnowski, 2003 FCA 492

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