Toronto, Ontario, October 28, 2005
PRESENT: THE HONOURABLE MR. JUSTICE O'KEEFE
BETWEEN:
ALBERTA WAPITI PRODUCTS COOPERATIVE LTD.
and
MINISTER OF AGRICULTURE AND AGRI-FOOD and
CANADIAN FOOD INSPECTION AGENCY
REASONS FOR ORDER AND ORDER
[1] This is an application pursuant to section 18.1 of the Federal Courts Act, R.S.C. 1985, c.F-7, for an order in the nature of mandamus and declaratory relief relating to a determination by the respondent, Canadian Food Inspection Agency (the "CFIA"), that it did not have the mandate to award compensation to the applicant pursuant to section 52 of the Health of Animals Act, S.C. 1990, c.21 (the "Health of Animals Act").
[2] The applicant seeks:
1. A writ of mandamus directing the respondent Minister of Agriculture and Agri- Food (the "Minister") to consider the applicant's claim pursuant to section 52 of the Health of Animals Act, for compensation for the market value of the meat of 95 head of elk (the "95 elk") which was directed to be destroyed on or about April 9, 2002 (the "elk meat");
2. A declaration that the Minister has authority under section 52 of the Health of Animals Act to order compensation to be paid to the applicant for the elk meat, and that the Minister is to exercise his authority reasonably and in accordance with the law;
3. In the alternative, a direction for the relief claimed in paragraphs 1 and 2 against both the respondents or against CFIA;
4. Such further and other relief as the Court may think appropriate and just in the circumstances; and
5. The costs of this application.
Background
[3] The applicant, Alberta Wapiti Products Cooperative Ltd. (the "applicant") is a cooperative incorporated in 2001 pursuant to the Alberta Co-operative Associations Act, R.S.A. 2000, c. C-28 and is composed of a membership involved in the production of elk, which is also known as wapiti and cervids.
[4] The applicant entered into agreements to purchase elk from its members. The members of the cooperative were required to sign a Delivery Rights Contract, outlining their obligations, including the delivery of one elk per year for slaughter.
[5] The applicant entered into a contract with Bouvry Exports Calgary Ltd. ("Bouvry") to slaughter its elk at a facility in Fort Macleod, Alberta. Bouvry's role was also to assist the applicant in marketing the elk meat for a percentage of the profit. Bouvry holds a licence to operate a registered establishment under the Meat Inspection Act, R.S.C. 1985, c.25 (1st Supp.) (the "Meat Inspection Act").
[6] Chronic wasting disease ("CWD") is a transmittable spongiform encephalopathy ("TSE") which causes a progressive fatal neurological disease in deer and elk. It is believed to be caused by an abnormal protein called prions, which affects the brains of elk. CWD is similar to bovine spongiform encephalopathy in cattle. It has not been conclusively shown that TSE poses a health risk to humans.
[7] Although CWD can be tentatively diagnosed based on clinical signs, the presence of CWD can only be confirmed by laboratory examination of brain tissue from the infected elk after it is dead.
[8] CWD in elk has been a reportable disease under both the Health of Animals Act and the Reportable Diseases Regulations, SOR/91-2, since April 2001.
[9] The respondent follows a policy whereby it will not permit products or by-products contaminated with CWD to enter the human or animal food chain, notwithstanding the lack of conclusive proof that it poses a health risk.
[10] In 2001, the applicant either developed, or entered into, a CWD surveillance and testing program in conjunction with Alberta Agriculture, Food and Rural Development ("AAFRD"), pursuant to which the heads of slaughtered elk were taken to AAFRD's Lethbridge laboratory so the brains and spinal cords could be tested for CWD. The elk carcasses or meat were to be held pending release of test results.
[11] In February 2002, the applicant purchased 155 elk from its members for slaughter. Two of the elk were purchased from Bonnie Walter ("Walter"). The elk had been inspected by a veterinarian and certified as not under any animal health restrictions. The elk were delivered to the Bouvry plant for slaughter. By letter dated February 26, 2002, AAFRD advised the applicant that all carcasses from the proposed slaughter were to be held pending the results of a CWD.
[12] The 155 elk were slaughtered by Bouvry on March 7, 2002 and the elk heads and spinal cords were delivered to the Lethbridge laboratory for CWD testing on that same day. Both ante-mortem and post-mortem examinations of the elk carcasses had been done at the Bouvry plant by CFIA inspectors, as required by the Meat Inspection Regulations, SOR/90-288 (the "Meat Inspection Regulations").
[13] On March 8, 2002, Bouvry processed 60 of the elk carcasses into various cuts of meat, and some were ground into hamburger. The remaining 95 carcasses were processed on March 11, 2002.
[14] Unbeknown to the applicant at the time, cuts of meat resulting from the two processing dates were shipped from the Bouvry premises after the processing, but before the results of the CWD testing were known.
[15] On March 26, 2002, AAFRD verbally advised CFIA that one of the elk sent to the laboratory, which was one of the Walter elk, had testified positive for CWD. The Walter elk was among the 95 elk processed on March 11, 2002.
[16] CFIA began an immediate program of recall to track down and recover the shipped elk meat from the March 11 batch. CFIA issued a number of detention orders to hold the meat products that had been shipped. Some orders stated that they were issued under authority of the Meat Inspection Act, while others indicated that they were issued under authority of the Health of Animals Act. CFIA later noted that in its opinion, all detention orders should in fact have been made under the authority of the Meat Inspection Act.
[17] On the recommendation of Dr. Karen Dodds ("Dr. Dodds"), Director General of Health Canada, Dr. Sturm of CFIA ordered the meat from the 95 elk processed on March 11 to be destroyed (ultimately by incineration). The meat processed on March 8 was not ordered to be destroyed, and is not in issue here.
[18] The only elk identified as CWD positive was one of the Walter elk. The applicant stated that the reason the additional 94 elk processed that day were ordered to be destroyed was because the meat was in contact with, or in close proximity to, the meat from the one infected elk. In some cases, meat from the other elk had been mixed together with the meat from the Walter elk and could not be distinguished. The respondents contended that as the cuts of meat from the infected elk could not be identified or isolated from the balance of the March 11 production, CFIA determined that the entirety of the meat processed on March 11 was to be destroyed.
[19] In May 2002, CFIA inspectors attended the Walter farm and ordered the elk herd destroyed. They were removed from her farm and destroyed during June and July of 2002. CFIA notified Walter that she may be entitled to compensation for the destroyed elk pursuant to subsection 51(1) of the Health of Animals Act. She was later awarded compensation.
[20] The applicant became aware during the summer of 2003 that Walter had been offered compensation for the destroyed elk. The applicant first received documentation related to the incineration of the meat product in or around September 2003.
[21] On March 3, 2004, the applicant sent a letter to the Minister requesting compensation pursuant to section 52 of the Health of Animals Act for the destroyed meat from the 95 elk. On March 9, 2004, the applicant sent a similar letter to the president of CFIA. The respondents did not respond in writing to the applicant's request for compensation. During cross-examination on her affidavit, Shirley Toms ("Toms"), the area operations coordinator of Western operation for CFIA, informed the applicant that CFIA is of the opinion that it has no mandate to award compensation in the circumstances of this case.
Issues
[22] The issues as framed by the applicant are:
1. What statute or regulation did CFIA act under in directing that the meat from the 95 elk be destroyed?
2. Does CFIA have the jurisdiction to order compensation for elk meat destroyed under the Health of Animals Act?
3. Did CFIA err in refusing to consider the applicant's claim for compensation?
4. Should a writ of mandamus issue?
5. Should a declaration issue?
Applicant's Submissions
[23] Issue 1
What statute or regulation did CFIA act under in directing that the meat from the 95 elk be destroyed?
The applicant submitted that the only jurisdiction available to CFIA to direct the destruction of the meat from the 94 non-infected elk was section 48 of the Health of Animals Act which permits the destruction of an animal or a "thing" which 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 the contact or close proximity." CFIA only had jurisdiction under the Meat Inspection Act to "condemn" the one infected elk which was not edible. The applicant further submitted that it should be presumed that CFIA acted within its jurisdiction.
[24] The applicant submitted that the elk meat could only have been ordered destroyed under the Meat Inspection Act if the elk meat was not "edible" within the meaning of subsection 9(1) of the Meat Inspection Regulations. As all of the standards and inspections prescribed by the Meat Inspection Regulations had been complied with, the only issue remaining under subsection 9(1) was whether the Food and Drug Regulations, C.R.C., c.870 (the "Food and Drug Regulations") had been complied with. The Food and Drug Regulations prohibit the sale of a dead animal which was ". . . affected with disease at the time it was killed."
[25] The applicant submitted that Dr. Dodd's recommendation to CFIA to destroy the elk meat was in fact restricted to the infected animal. The applicant further submitted that Toms confirmed that CFIA made the decision to direct that all of the meat processed on March 11, 2002 be destroyed, as the meat from the infected animal had come into potential contact or was in close proximity to the meat from the other elk processed on that date.
[26] The applicant submitted that therefore, the meat from the 94 non-infected elk was "edible" within the meaning of subsection 9(1) of the Meat Inspection Regulations, and the only jurisdiction CFIA could rely upon to direct the destruction of the meat was paragraph 48(1)(b) of the Health of Animals Act. The applicant further submitted that Toms acknowledged that the use of the word "condemned" when referring to the meat from the 94 non-infected elk in her affidavit, was merely her interpretation of what happened and does not appear in any internal documents or memoranda.
[27] The applicant submitted that on the basis of proper statutory interpretation (see Re Rizzo & Rizzo Shoes Ltd., [1998] 1 S.C.R. 27) the word "thing" as used in paragraph 48(1)(b) can include meat from an animal. The applicant submitted that the dictionary definition and meaning of the word "thing" is very broad. In reading the Health of Animals Act as a whole, it is apparent that (i) a "thing" must be something other than an animal, and (ii) the thing must be capable of being affected or contaminated by the reportable disease. The applicant submitted that it is therefore apparent that meat and animal products easily fall within the definition of a "thing".
[28] The applicant further submitted that in light of the confusion by CFIA regarding which sections apply, the five notices issued by CFIA should be given no weight in this matter.
[29] Issue 2
Does CFIA have the jurisdiction to order compensation for elk meat destroyed under the Health of Animals Act?
The applicant submitted that the Minister's jurisdiction has been delegated to CFIA. CFIA has jurisdiction pursuant to section 52 of the Health of Animals Act to order compensation to be paid to the owner of a "thing" that is destroyed under that Act.
[30] The applicant further submitted that the Minister's power under section 52 is mandatory not discretionary, despite the fact that section 52 provides that the Minister "may" order compensation to be paid. The applicant submitted that the presumption that "may" is permissive is rebuttable (see Ruby v. Canada(Solicitor General), [2002] 4 S.C.R. 3).
[31] The applicant submitted when section 52 is read in the context of the entire statute, it does not have a merely permissive meaning. Section 52 empowers the Minister to pay compensation. Section 54 then restricts the Minister from providing compensation under specified circumstances. Similarly, section 56 allows for an appeal assessor to refer the matter back to the Minister for such further action as the assessor directs. Parliament would not have included the right of an appeal and given the assessor the authority and the power to direct the results of the appeal, if the award of compensation was intended to be merely a discretionary exercise.
[32] Issue 3
Did CFIA err in refusing to consider the applicant's claim for compensation?
The applicant submitted that CFIA has erred in law in concluding that it does not have the "mandate" to compensate owners of meat products directed to be destroyed, because the meat was infected with, or in contact with, or in close proximity to, meat infected with a reportable disease. Further, CFIA has fettered its authority by applying a policy which prevented it from doing so.
[33] The applicant submitted that CFIA is following an internal policy whereby compensation is given for the destruction of live animals (referred to as the "farm gate policy") and refused in regards to the meat product after slaughter (referred to as the "dinner plate policy"). The applicant submitted that there is no legitimate basis in law for CFIA's differentiation as it pertains to compensation.
[34] Issue 4
Should a writ of mandamus issue?
The applicant submitted that a writ of mandamus should issue to direct CFIA to exercise its statutory power (delegated to it by the Minister pursuant to section 11 of the Canadian Food Inspection Agency Act, S.C.1997, c.6 (the "Canadian Food Inspection Agency Act"), to award compensation for the elk meat. Section 52 of the Health of Animals Act should be interpreted as imposing a mandatory duty to award compensation. In the alternative, mandamus should issue in the circumstances of this case even if this duty is discretionary.
[35] The applicant submitted that it has met all of the requirements for the issuance of a writ of mandamus as set down by the Federal Court of Appeal in Apotex Inc. v. Canada (Attorney General), [1994] 1 F.C. 742 as follows:
1. The Minister's duty was a public one;
2. The applicant owned the destroyed meat so the duty was owed to the applicant;
3. The conditions precedent of both the applicant's ownership of the meat, and an order for the destruction of the meat under the Health of Animals Act have been met, and the respondents failed to respond to the applicant's request for compensation. Therefore, the applicant had a clear right to expect performance of the duty;
4. The applicant had no other remedy available to it under the Health of Animals Act;
5. Granting the order will have some practical effect as it should result in reasonable compensation;
6. There is no equitable bar to the Court granting mandamus, and
7. The balance of convenience favours granting the writ of mandamus.
[36] The applicant further submitted that if the Court finds CFIA's duty is discretionary, mandamus should still issue as:
1. CFIA fettered its discretion in applying the "farm gate" and "dinner plate" policy which operated to bar compensation for the meat products, despite the meat being ordered destroyed because they were either infected with a reportable disease or because they were in contact with or in close proximity to an infected animal or thing;
2. CFIA erred in applying its internal policy rather than exercising its legal authority and obligations to award compensation under the statutes and regulations;
3. CFIA's policy and conduct is unfair. There is no basis for discriminating between the owners of live animals and the owners of meat, especially in this case where it has been acknowledged that 94 of the 95 elk did not test positive for CWD; and
4. The applicant has a vested right in the performance of the discretionary duty.
[37] Issue 5
Should a declaration issue?
The applicant submitted that a declaration that CFIA has the authority to order compensation for destroyed meat products under section 52 of the Health of Animals Act should be granted, given CFIA's policy and position that it does not have the mandate to do so. The applicant submitted that it has met the requirements for declaratory relief as set out in Solosky v. The Queen, [1980] 1 S.C.R. 821, in that (i) the issues are real as neither the issue of compensation or of jurisdiction has been resolved; (ii) the declaration is capable of having a practical effect in resolving the issues as with a declaration, the rights and obligations of all parties (including the respondent's jurisdiction) will be clarified.
[38] The applicant requested costs.
Respondents' Submissions
[39] Standard of review
The respondents submitted that in applying the pragmatic and functional analysis, as the factual determinations are matters within the expertise of CFIA and the decision-makers in the process have significant expertise with respect to food derived from animals, substantial deference should be given to any factual conclusions. However, the question of whether there is a statutory duty on the respondents to award compensation in these circumstances is a question of whether a statute has been interpreted properly and therefore that aspect should be reviewed on a standard of correctness.
[40] The respondents submitted that because Bouvry is a registered establishment under the Meat Inspection Act, all animal and meat products in that establishment are subject to that Act and associated regulations. The Meat Inspection Act defines "carcass" as "the body of a dead animal" and "meat product" as a "carcass or . . . product or by-product of a carcass . . ." The Meat Inspection Regulations contain the following definitions: "condemn" means, "in respect of a food animal or a meat product, to determine that the food animal or meat product is inedible"; "edible" means, "in respect of a meat product, a meat product that is fit for use as human food". The Meat Inspection Regulations also define "meat".
[41] The respondents submitted that while the word "inedible" is not defined in the Meat Inspection Regulations, it is defined in the dictionary as "not edible". Thus, if a meat product is determined not to be fit for use as human food, it must, by definition, be not edible or inedible. If determined to be inedible, it is by definition, condemned. That is what occurred in this case.
[42] The respondents submitted that while Dr. Dodds did not use the phrase "unfit for use as human food" in her March 28, 2002 letter to CFIA recommending that "the elk meat product processed on March 11 and determined to contain the infected animal be removed from the food chain", the effect of her conclusions is the same. As the cuts from the specific animal could not be isolated, all the meat processed on March 11 posed a potential health risk and was unfit for human food. Once that occurred, the meat product was automatically condemned by operation of the legislation.
[43] The respondents submitted that the conditions listed in subsection 9(1) of the Meat Inspection Regulations are minimum conditions necessary before a product can be found to be edible. They are not automatically sufficient for that determination.
[44] The respondents submitted that as the meat product in question was not fit for use as human food, it did not meet the requirements of paragraph 9(1)(c) of the Meat Inspection Regulations, and thus, it necessarily could not be edible.
[45] The respondents further submitted that the Food and Drugs Act, R.S.C. 1985, c. F-27 (the "Food and Drugs Act") forbids the sale of a food that has in it any poisonous or harmful substance, is unfit for human consumption, or is adulterated. Food products which do not meet the standards set under the Food and Drugs Act are considered to be unfit for human consumption (see Wild Rose Mills v. Ellison Mining Co., a Division of Parrish and Heimbecker Ltd., [1985] B.C.J. No. 489 (1985), 32 B.L.R. 125 (S.C.)). The Food and Drug Regulations do not specifically state that meat sold shall not contain any infectious agents or pose a danger to human health, but it is a requirement of the enabling legislation. Accordingly, the meat product could not meet the remaining requirement under paragraph 9(1)(c) of the Meat Inspection Regulations.
[46] The respondents submitted that as the meat from the CWD infected elk could not be isolated from other cuts of meat, the entire production of March 11 posed an unacceptable risk to human health. Alternatively, if the sole reason the majority of the meat processed on March 11 was a danger was because it had been "in contact" with the CWD infected meat, it would be contaminated with the CWD prions, thereby rendering it inedible pursuant to the standards specified in the Meat Inspection Regulations. In the further alternative, if the prions were present on the meat, there would be a poison or decomposed substance on the meat which would render it unadulterated and inedible as defined in the Meat Inspection Regulations.
[47] The respondents submitted that CFIA had the authority to detain the meat product in question pursuant to section 15 of the Meat Inspection Act. The initial confusion over the proper statutory authority under which the meat was held should not be fatal to CFIA's authority to issue detention orders under the Meat Inspection Act. All steps taken in this matter as related to the meat product were done under the authority of the Meat Inspection Act.
[48] The respondents did not dispute that "thing" is undefined in the Health of Animals Act and would appear to be applicable to a wide array of material including meat. However, the meaning of any provision must be determined by reading it with regard to the legislation as a whole.
[49] The respondents submitted that the Meat Inspection Act is legislation intended to protect public safety. It sets standards for slaughterhouse facilities and meat product generated from those facilities. The standards for meat are informed by regulations promulgated under the Food and Drugs Act, legislation designed to protect, inter alia, the health and welfare of Canadians. The Health of Animals Act, by contrast, is concerned with the prevention of the spread of diseases among live animals, and diseases that may spread to humans.
[50] The only reference to the Health of Animals Act in this case was in the method of disposal referenced in the Meat Inspection Regulations. If Parliament had intended that the compensation provisions of the Health of Animals Act should also apply, it would have been explicit in the legislation. As the Meat Inspection Act does not provide for any compensation for the condemned meat, there was and is no duty on the respondents to either compensate the applicant or notify the applicant that it would be eligible for compensation.
[51] The respondents submitted that in keeping with the requirements outlined in Apotex, supra, no writ for mandamus lies in the circumstances of this case:
1. The applicants are aware that a decision has already been made not to compensate the applicants even though there has been no written response to the request for compensation;
2. There is no duty to award compensation to the owner of meat condemned under the Meat Inspection Act;
3. The applicant had other remedies available to it. For example, under the terms of its agreement with Walter, the applicant had the right to reject the elk and pursue her for all losses arising from the rejection of her elk. Alternatively, it could have brought a civil action against either Walter or Bouvry for failing to use packages that would have specifically identified the meat product from the infected elk. It did none of those things;
4. An order of mandamus will not have any practical effect. A review of the decision not to grant compensation would lead to a more practical result;
5. There is an equitable bar to the granting of mandamus as the applicant has unreasonably delayed in requesting compensation. The applicant was aware of the detention of the meat product since 2002 and has known about Walter's compensation since the summer of 2003. Also, the applicant was aware since September 2003 of the directive to incinerate the meat. However, the applicant waited until March 2004 to commence this application; and
6. The balance of convenience lies in favour of not granting the order for mandamus.
[52] The respondents submitted that the alleged "farm gate" and "dinner plate" policy is simply a concept utilized by Toms to describe the interaction between two different legislative schemes. It is not a stand-alone CFIA policy, nor was any such "policy" used as the basis for CFIA's actions.
[53] The respondents further submitted that the fact that Parliament has chosen to provide compensation in only certain circumstances is not a matter subject to judicial review.
[54] The respondents submitted that no declaration should be made in favour of the applicants in this case.
[55] The respondents request costs.
Relevant Statutory Provisions:
[56] The relevant statutory provisions of the Health of Animals Act, supra, state:
| An Act respecting diseases and toxic substances that may affect animals or that may be transmitted by animals to persons, and respecting the protection of animals
2. (1) In this Act,
"animal" includes an embryo and a fertilized egg or ovum;
"disease" includes
(a) a reportable disease and any other disease that may affect an animal or that may be transmitted by an animal to a person, and (b) the causative agent of any such disease;
"dispose" includes slaughter or otherwise destroy, bury or render;
. . .
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.
. . .
52. The Minister may order compensation to be paid from the Consolidated Revenue Fund to the owner of a thing that is destroyed under this Act and the amount of compensation shall be the market value, as determined by the Minister, that the thing would have had at the time of its evaluation if it had not been required to be destroyed, up to a prescribed amount, less any amount received in respect of it.
|
|
Loi concernant, d'une part, les maladies et substances toxiques pouvant affecter les animaux ou transmissibles par ceux-ci aux personnes, d'autre part, la protection des animaux
2. (1) Les définitions qui suivent s'appliquent à la présente loi.
« animal » Sont assimilés aux animaux les embryons ainsi que les oeufs et ovules fécondés.
« maladie » Les maladies déclarables et toute maladie animale ou transmissible par un animal à une personne; y sont assimilés les agents causant ces maladies.
. . .
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.
. . .
52. Le ministre peut ordonner le versement, sur le Trésor, au propriétaire de choses détruites en application de la présente loi d'une indemnité égale à la valeur marchande, selon l'évaluation du ministre - jusqu'à concurrence du montant réglementaire - qu'elles auraient eue au moment de l'évaluation si leur destruction n'avait pas été ordonnée, déduction faite des sommes reçues par celui-ci à leur égard. |
[57] The relevant definitions in the Meat Inspection Act, supra, state:
| An Act respecting the import and export of and interprovincial trade in meat products, the registration of establishments, the inspection of animals and meat products in registered establishments and the standards for those establishments and for animals slaughtered and meat products prepared in those establishments
2. (1) In this Act,
"carcass" means the body of a dead animal;
"meat product" means
(a) a carcass,
(b) the blood of an animal or a product or by-product of a carcass, or
(c) a product containing anything described in paragraph (b);
. . .
20. The Governor in Council may make regulations for carrying out the purposes and provisions of this Act and, without limiting the generality of the foregoing, may make regulations
. . .
(i) prescribing standards for meat products that are prepared or stored in registered establishments, for meat products that enter into interprovincial or international trade and for meat products in connection with which the meat inspection legend is applied or used;
. . .
(l) respecting the withholding from slaughter of animals and the inspection, holding, treatment, condemnation, confiscation and disposal of animals, meat products or other things in registered establishments that are or are suspected on reasonable grounds of being injurious to health or otherwise in contravention of this Act or the regulations; |
|
Loi concernant l'importation, l'exportation et le commerce interprovincial des produits de viande, l'agrément des établissements, l'inspection des animaux et des produits de viande dans les établissements agréés et les normes relatives à ces établissements, aux animaux qui y sont abattus et aux produits de viande qui y sont préparés
2. (1) Les définitions qui suivent s'appliquent à la présente loi.
« carcasse » Le cadavre d'un animal.
« produit de viande »
a) Carcasse;
b) le sang d'un animal ou les produits ou sous-produits d'une carcasse;
c) les produits dans la composition desquels entre un des éléments visés à l'alinéa b).
. . .
20. Le gouverneur en conseil peut prendre des règlements d'application de la présente loi, notamment en vue:
. . .
i) d'établir les normes visant les produits de viande qui sont préparés ou entreposés dans des établissements agréés, qui sont destinés au commerce interprovincial ou international ou en rapport avec lesquels l'estampille est apposée ou utilisée;
. . .
l) d'empêcher l'abattage d'animaux et de prévoir l'inspection, la détention, le traitement, la condamnation, la confiscation et la destination des animaux, des produits de viande ou d'autres objets, dans des établissements agréés, qui sont nuisibles ou non conformes à la présente loi et à ses règlements ou sont soupçonnés, pour des motifs raisonnables, être nuisibles ou non conformes à la présente loi et à ses règlements; |
[58] The relevant definitions in the Meat Inspection Regulations, supra, state:
| 2. (1) In these Regulations,
"Act" means the Meat Inspection Act;
"adulterated" means, in respect of a meat product intended for sale, use or consumption as an edible meat product in Canada,
(a) containing or having been treated with . . .
(iii) any poison, decomposed substance or visible contamination, or
(b) failing to meet the standards set out in Part I;
"Agency" means the Canadian Food Inspection Agency established by section 3 of the Canadian Food Inspection Agency Act;
"condemn" means, in respect of a food animal or a meat product, to determine that the food animal or meat product is inedible;
"edible" means, in respect of a meat product, a meat product that is fit for use as human food;
"inedible products area" means that part of a registered establishment in which inedible meat products are received, held, processed, shipped or otherwise dealt with;
"meat" means the edible part of a carcass that is the muscle associated with the skeleton, tongue, diaphragm, heart, gizzard or mammalian oesophagus, with or without accompanying and overlying fat, together with those parts of the bones, skin, sinews, nerves, blood vessels and other tissues that normally accompany the muscle and are not ordinarily removed in dressing a carcass, but does not include the muscle associated with the lips, snout, scalp or ears, mechanically separated meat or meat to which an ingredient other than meat has been added;
. . .
9. (1) Subject to subsection (2) and section 121, no meat product shall be identified as edible unless
(a) the food animal from which the meat product is derived was subjected to an ante-mortem examination or an ante-mortem inspection, as the case may be, and slaughtered in accordance with these Regulations;
(b) the carcass from which the meat product is derived is dressed and subjected to a post-mortem examination or a post-mortem inspection, as the case may be, in accordance with these Regulations; and
(c) the meat product conforms to the applicable standards prescribed by these Regulations and the Food and Drug Regulations.
. . .
54. (1) Every meat product that is condemned in a registered establishment, other than a condemned meat product sent by an inspector for laboratory examination or a meat product referred to in subsection 85(2), shall be identified as condemned, conveyed immediately to the inedible products area of the establishment and
(a) rendered or otherwise treated to destroy pathogenic and potentially pathogenic microorganisms; (b) denatured and conveyed to another registered establishment or to a rendering plant for the rendering or treatment referred to in paragraph (a);
(c) in the case of meat products judged by an official veterinarian not to be harmful to the health of animals and permitted by the official veterinarian to be used as animal food, denatured and used for animal food;
(d) identified for use for medicinal purposes, with the consent of an official veterinarian;
(e) in the case of meat products that are judged by an official veterinarian to be unacceptable for rendering due to dangerous residues or for other reasons, disposed of in accordance with local environmental requirements; or
(f) disposed of pursuant to subsection 48(1) of the Health of Animals Act.
. . .
85. (1) The operator shall ensure that
(a) every carcass of a food animal and every part of a carcass of a food animal identified as condemned is handled in accordance with section 54; and
(b) if the carcass of a food animal is condemned, all blood harvested from that food animal is also condemned and is handled in accordance with section 54. |
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2. (1) Les définitions qui suivent s'appliquent au présent règlement.
« Loi » La Loi sur l'inspection des viandes.
« falsifié » Qualifie le produit de viande destiné à être vendu, utilisé ou consommé au Canada comme produit de viande comestible, qui:
a) soit contient une ou plusieurs des matières suivantes, ou a été traité au moyen de celles-ci: . . .
(iii) tout poison, toute substance décomposée ou toute source de contamination visible;
b) soit ne satisfait pas aux normes prescrites par la partie I.
« Agence » L'Agence canadienne d'inspection des aliments constituée par l'article 3 de la Loi sur l'Agence canadienne d'inspection des aliments.
« condamner » Établir qu'un animal pour alimentation humaine ou un produit de viande est incomestible.
« comestible » Qualifie le produit de viande qui est propre à la consommation humaine.
« aire des produits incomestibles » Aire de l'établissement agréé où les produits de viande incomestibles sont reçus, détenus, transformés, expédiés ou autrement manutentionnés.
« viande » Partie comestible d'une carcasse, soit la musculature attachée au squelette, la langue, le diaphragme, le coeur, l'oesophage mammalien ou le gésier, avec ou sans le gras qui les accompagne et qui les recouvre, ainsi que les parties des os, de la peau, des tendons, des nerfs, des vaisseaux sanguins et des autres tissus qui accompagnent normalement le tissu musculaire et qui ne sont pas ordinairement enlevés au cours de l'habillage de la carcasse. La présente définition exclut les muscles des lèvres, du groin, de l'épicrâne et des oreilles, ainsi que la viande séparée mécaniquement et la viande à laquelle a été ajouté un ingrédient non carné. . . .
9. (1) Sous réserve du paragraphe (2) et de l'article 121, un produit de viande ne peut être désigné comme étant comestible que si les conditions suivantes sont réunies:
a) l'animal pour alimentation humaine dont provient le produit de viande a été soumis à un examen ante mortem ou une inspection ante mortem, selon le cas, et a été abattu conformément au présent règlement;
b) la carcasse dont provient le produit de viande est habillée et soumise à un examen post mortem ou une inspection post mortem, selon le cas, conformément au présent règlement;
c) le produit de viande satisfait aux normes applicables prescrites par le présent règlement et le Règlement sur les aliments et drogues.
. . .
54. (1) Le produit de viande qui est condamné dans l'établissement agréé, sauf celui envoyé par l'inspecteur au laboratoire pour examen ou celui visé au paragraphe 85(2), doit être désigné comme étant condamné, être transporté sans délai dans l'aire des produits incomestibles et être, selon le cas:
a) fondu ou autrement traité de façon à détruire tous les microorganismes pathogènes ou potentiellement pathogènes; b) dénaturé et envoyé à un autre établissement agréé ou à un fondoir pour y être fondu ou traité conformément à l'alinéa a);
c) dénaturé et utilisé comme aliment pour animaux, si le médecin vétérinaire officiel le juge sans risque pour la santé des animaux et qu'il en autorise l'utilisation comme aliment pour animaux;
d) désigné, avec l'autorisation du médecin vétérinaire officiel, comme étant destiné à des fins médicinales;
e) détruit en conformité avec les exigences environnementales locales, si le médecin vétérinaire officiel le juge impropre pour être fondu à cause de résidus dangereux ou de toute autre raison;
f) soumis aux mesures de disposition prises en application du paragraphe 48(1) de la Loi sur la santé des animaux. . . .
85. (1) L'exploitant doit veiller à ce que:
a) toute carcasse d'un animal pour alimentation humaine ou toute partie de celle-ci qui est désignée comme étant condamnée fasse l'objet des mesures prévues à l'article 54;
b) si la carcasse est condamnée, tout le sang recueilli de cet animal pour alimentation humaine soit aussi condamné et fasse l'objet des mesures prévues à l'article 54. |
[59] The relevant statutory provisions of the Food and Drugs Act, supra, state:
| 4. No person shall sell an article of food that
(a) has in or on it any poisonous or harmful substance;
(b) is unfit for human consumption;
(c) consists in whole or in part of any filthy, putrid, disgusting, rotten, decomposed or diseased animal or vegetable substance;
(d) is adulterated; or
(e) was manufactured, prepared, preserved, packaged or stored under unsanitary conditions.
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4. Il est interdit de vendre un aliment qui, selon le cas:
a) contient une substance toxique ou délétère, ou en est recouvert;
b) est impropre à la consommation humaine;
c) est composé, en tout ou en partie, d'une substance malpropre, putride, dégoûtante, pourrie, décomposée ou provenant d'animaux malades ou de végétaux malsains;
d) est falsifié;
e) a été fabriqué, préparé, conservé, emballé ou emmagasiné dans des conditions non hygiéniques.
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[60] The relevant statutory provisions of the Food and Drug Regulations, supra, state:
| In this Division,
"animal" means any animal used as food, but does not include marine and fresh water animals;
B.14.002. [S]. Meat shall be the edible part of the skeletal muscle of an animal that was healthy at the time of slaughter, or muscle that is found in the tongue, diaphragm, heart or oesophagus, and may contain accompanying and overlying fat together with the portions of bone, skin, sinew, nerve and blood vessels that normally accompany the muscle tissue and are not separated from it in the process of dressing, but does not include muscle found in the lips, snout, scalp or ears.
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Dans le présent titre,
« animal » comprend les animaux utilisés comme aliments, mais ne comprend ni les animaux marins ni les animaux d'eau douce.
B.14.002. [N]. La viande doit être la portion comestible du muscle squelettique d'un animal sain au moment de l'abattage, ou du muscle que l'on trouve dans la langue, le diaphragme, le coeur ou l'oesophage; elle peut renfermer la graisse qui y adhère ou le recouvre, ainsi que les portions d'os, de peau, de tendons, de nerfs ou de vaisseaux sanguins, qui accompagnent normalement le tissu musculaire et n'en sont pas séparés au moment de l'habillage, mais ne comprend pas le muscle trouvé dans les lèvres, le groin ou le museau, la peau de la tête ou les oreilles.
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[61] The relevant statutory provisions of the Canadian Food Inspection Agency Act, supra, state:
| 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.
(2) The Agency is responsible for the enforcement of the Consumer Packaging and Labelling Act as it relates to food, as that term is defined in section 2 of the Food and Drugs Act.
(3) The Agency is responsible for
(a) the enforcement of the Food and Drugs Act as it relates to food, as defined in section 2 of that Act; and
(b) the administration of the provisions of the Food and Drugs Act as they relate to food, as defined in section 2 of that Act, except those provisions that relate to public health, safety or nutrition.
(4) The Minister of Health is responsible for establishing policies and standards relating to the safety and nutritional quality of food sold in Canada and assessing the effectiveness of the Agency's activities related to food safety. |
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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.
(2) L'Agence est chargée de contrôler l'application de la Loi sur l'emballage et l'étiquetage des produits de consommation en ce qui a trait aux aliments, au sens de l'article 2 de la Loi sur les aliments et drogues. (3) L'Agence est chargée:
a) de contrôler l'application de la Loi sur les aliments et drogues en ce qui a trait aux aliments, au sens de l'article 2 de cette loi;
b) d'assurer l'application des dispositions de cette loi en ce qui a trait aux aliments, sauf si celles-ci portent sur la santé publique, la salubrité ou la nutrition.
(4) Le ministre de la Santé est chargé de l'élaboration des politiques et des normes relatives à la salubrité et à la valeur nutritive des aliments vendus au Canada et de l'évaluation de l'efficacité des activités de l'Agence relativement à la salubrité des aliments. |
[62] The relevant statutory provisions of the Interpretation Act, supra, state:
| 11. The expression "shall" is to be construed as imperative and the expression "may" as permissive.
12. Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.
. . .
15. (1) Definitions or rules of interpretation in an enactment apply to all the provisions of the enactment, including the provisions that contain those definitions or rules of interpretation.
(2) Where an enactment contains an interpretation section or provision, it shall be read and construed
(a) as being applicable only if a contrary intention does not appear; and
(b) as being applicable to all other enactments relating to the same subject-matter unless a contrary intention appears. |
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11. L'obligation s'exprime essentiellement par l'indicatif présent du verbe porteur de sens principal et, à l'occasion, par des verbes ou expressions comportant cette notion. L'octroi de pouvoirs, de droits, d'autorisations ou de facultés s'exprime essentiellement par le verbe « pouvoir » et, à l'occasion, par des expressions comportant ces notions.
12. Tout texte est censé apporter une solution de droit et s'interprète de la manière la plus équitable et la plus large qui soit compatible avec la réalisation de son objet. . . .
15. (1) Les définitions ou les règles d'interprétation d'un texte s'appliquent tant aux dispositions où elles figurent qu'au reste du texte.
(2) Les dispositions définitoires ou interprétatives d'un texte :
a) n'ont d'application qu'à défaut d'indication contraire;
b) s'appliquent, sauf indication contraire, aux autres textes portant sur un domaine identique. |
Analysis and Decision
[63] Standard of Review
The central issue of whether the respondents had a statutory duty to award compensation in this case involves a question of the proper interpretation of statutes which is reviewable on a standard of correctness.
[64] The parties were in agreement at the hearing, that the major issue in this case was whether the Health of Animals Act and the regulation made thereunder or the Meat Inspection Act and its regulations applied to the facts of this case. If the Health of Animals Act applies, the question of remedies will arise.
[65] The parties are generally in agreement as to the facts of the case. The applicant purchased 155 elk from its members. The applicant had the elk slaughtered at a meat packing plant (Bouvry) on March 7 and the carcasses were processed (cut into steaks, roasts, etc.). Bouvry processed 60 elk on March 8 and processed 95 elk on March 11. During processing, meat from some elk came into potential contact with meat from other elk. After processing the meat products, they were boxed and sent to storage at various locations.
[66] After the elk were slaughtered, their heads were sent to a laboratory for testing for CWD. It was determined that one elk tested positive for CWD. The meat from the infected elk was processed on March 11. The meat products from the March 11 processing were able to be identified and separated from the meat products processed on March 8.
[67] CFIA issued notices of detention for the meat products. Some notices were issued under the Meat Inspection Act and its regulations and some were issued under the Health of Animals Act.
[68] CFIA requested Health Canada to assess the human health significance of the consumption of elk meat products coming from the slaughter of 155 elk with one elk infected with CWD. Dr. Dodds of Health Canada sent two letters to CFIA on March 28. The first letter read in part as follows:
· Health Canada is concerned with potential health risks posed to people who may unknowingly consume elk meat product from the March 7th slaughter as a result of the diagnosis of CWD in one animal. Therefore, as it is Health Canada's position that Transmissible Spongiform Encephalopathy (TSE) should not knowingly be consumed or allowed to enter the food chain, we recommend the following:
· Based on information provided by CFIA that the elk meat product from the March 11th processing date contained the CWD positive elk and mate and the two elk immediately following in the slaughter sequence, and can be separated and identified by the March 11th processing date and no other date, the consumption of elk meat product from March 11th date, will potentially expose the consumer to the CWD agent. Therefore, it is recommended that elk meat product processed on March 11th and determined to contain the infected animal be removed from the food chain.
· Based on information provided by CFIA that all the elk meat product from the March 8th processing date can be separated, identified and does not contain any elk material from the index farm nor two elk carcasses immediately following, the consumption of elk meat derived product from March 8th processing date is not considered to pose a risk to human health due to TSEs.
[69] The second letter read as follows:
Dear Dr. Baker
This is further to my earlier letter of today concerning the human health significance of elk meat products from the slaughter of 155 elk in Alberta with one elk infected with Chronic Wasting Disease (CWD) and your email indicating that the two elk that immediately followed the CWD positive and its mate should be included in the March 8th processing date and not the March 11th processing as was previously indicated.
Given we have confirmation from the Canadian Food Inspection Agency that the head and spinal cord, which represent the highest risk tissues, were removed at slaughter, even though the two elk that followed the CWD positive and mate are now included in the March 8th processing date, the consumption of elk meat product from March 8th processing is not considered to pose a risk to human health due to TSEs.
With respect to your request in relation to rendered material; given that the Report of Inspection shows that "the material was processed as "prohibited material" and subsequently sent to "prohibited material" silos and the plant is in compliance with relevant Acts, we consider the measures taken in relation to the rendered material to be satisfactory.
[70] CFIA relied on the recommendations in these letters when it ordered the meat products processed on March 11 to be destroyed.
[71] It appears from the testimony of Shirley Toms, the area operations coordinator of CFIA, that all of the meat products processed on March 11, not just from the one infected animal, were ordered to be destroyed because it had come in potential contact with meat from the one infected elk or the one infected animal was in close proximity to the meat from the other animals. Ms. Toms stated, in the applicant's application record at pages, 246, 247 and 250 to 255 as follows:
. . . sequence and can be separated and identified by the march processing date and no other date, the consumption of elk meat product from the March 11 date will potentially expose the consumer to the CWD agent.
And then the paragraph concludes:
Therefore, it is recommended that elk meat product processed on March 11th and determined to contain the infected animal be removed from the food chain.
That's what it reads?
A That's what it says.
Q The recommendation from Health Canada refers to elk meat product that was processed and determined to contain the infected animal; right?
A Correct.
Q The recommendation relates to the meat from the infected animal?
A Correct.
Q The problem from the CFIA's perspective, was that the meat from the infected animal could not be easily separated from the meat from the other animals that had been processed on March 11, 2002; right?
A I'm just trying to recollect. Correct, I think.
Q The meat had been boxed and the meat from the infected animal had come into potential contact with meat from other elk processed on the same date?
A Correct.
Q It was in close proximity to the meat from those other elk; right?
A Right.
Q So CFIA made the decision to direct that all of the meat destroyed - - all of the meat processed on March 11 be destroyed, not just the meat from the infected animal; right?
A Right.
Q For that reason?
A Right.
Q Now, the second letter from Karen Dodds, which is Exhibit J, relates to the elk that were processed on March 8; right?
A Okay. Yes.
Q And the gist of that letter, or at least CFIA took that letter to mean that the meat processed on March 8 did not present a health risk and could be released from detention; would that be correct?
A That's what Health Canada determined, yes.
Q The CFIA ultimately acted on that recommendation?
A Yes.
. . .
Mr. Kaliel: If you could take a look, please, at paragraph 24 of your Affidavit, I would like to refer you to the last sentence in paragraph 24 and the last two sentences on page 4 of your Affidavit. This paragraph goes on to refer to Exhibit I and Exhibit J of your Affidavit, being letters we just discussed; right?
A Right.
Q In paragraph 24 of your Affidavit you state - - and this is the second sentence of the paragraph:
However, it also advised that there was potential health risk from the consumption of meat product from the March 11, 2002 processing date and directed that the March 11 product should be removed from the food chain.
A Correct.
Q This direction, you say in your Affidavit, came from the food directive; right?
A That's what I said, yes.
Q Now, we earlier spent some time reviewing Karen Dodds' March 28, 2002 letter which is marked as Exhibit I; right?
A Right.
Q You would agree with me that Dr. Dodds did discuss the potential risk of exposure to meat containing the CWD agent. She refers to that in her letter; right?
A Correct, the first bulleted paragraph.
Q Yes, Her recommendation, however, was specifically restricted to the meat from the infected animal; right? That's what her letter says?
A What I read here is:
It is recommended that elk meat product processed on May 11th (sic) and determined to contain the infected animal be removed from the food chain.
Q So that was my question. This recommendation specifically relates to the infected animal; right?
A (No response)
Q I think you indicated that earlier, and I'm just asking you to confirm that.
A When I read it, I think of it more on a batch basis. The elk meat product processed on March 11th and determined to contain the infected animal is larger than just the infected animal.
Q I'm just trying to determine who made the decision as to what meat to destroy.
Dr. Dodds' letter, her recommendation related to the infected animal; right? Right?
Ms. McCaffery: Well, her recommendation says what it says.
Mr. Kaliel: All right. Well, we have what the recommends says.
I think you said earlier that the decision to condemn - - or maybe to put it a little differently - - destroy all of the meat, that decision was made by the CFIA; right?
A Would you repeat the question?
Q The decision to destroy all of the meat, that decision was made by CFIA? - - the meat from all of the 95 elk?
A Based on recommendations from Health Canada, the CFIA - -
Q Yes, and the fact that the meat from the infected animal was together or was - - had been in contact and in close proximity to the meat from the other 95 elk; right?
A Okay, yes.
Q So paragraph 24, where you say that Dr. Dodds directed that the March 11 product should be removed from the food chain, her recommendation was in relation to the infected elk.
The decision with respect to the removal of the balance of the animals from the food chain, the meat from the balance of the 95 elk, that decision was actually made by CFIA; right?
Ms. McCaffery: If I could just clarify, if you look at paragraph 25 - -
Mr. Kaliel: This is an important question.
Ms. McCaffery: - - she says what she says in her Affidavit.
Mr. Kaliel: I know. This is an important question. I would prefer you not to interfere. I would like the answer from this witness.
This may be self-evident. I want the witness's answer, because the distinction is important.
I'm just referring you to paragraph 24 of your Affidavit. I appreciate you may not have drafted this paragraph, but you will agree with me that Dr. Dodds' recommendation related to the one animal that was infected and that the decision to remove all of the meat from all of the 95 animals from the food chain was a decision made by the CFIA. You'll agree with me?
A No, I don't agree with that. I don't agree that Dr. Karen Dodds was speaking specifically about the infected animal's carcass only.
Q You don't agree that her letter referred to the infected elk? You're saying that it referred to other animals in addition to the infected elk?
A I believe from what it's saying:
It is recommended that elk meat processed on March 11th and determined to contain an infected animal . . .
What I'm reading from that is that the infected animal wasn't an isolated element here, and other meat processed on the 11th would have been wrapped up in the decision.
Q Where does it say in her letter, Exhibit I, that all of the March product should be removed from the food chain?
Your Affidavit said that the food directorate indicated that the March 11th product should be removed from the food chain. Can you point out to me where she states in her letter, which is Exhibit I to your Affidavit, that all of the product should be removed?
A I believe it is that last sentence.
Q Quote the sentence to me that you are referring to.
A Therefore, it is recommended that elk meat product processed on March 11th and determined to contain the infected animal be removed from the food chain.
Q Okay. There was one infected animal; right?
A Right.
Q There were a total of 95 animals that were processed on the same day, however; right?
A Right.
Q The meat from those 94 other animals came into contact with or was in close proximity to the meat from the infected animal?
A Or could not be distinguished by the labeling on the boxes.
Q Okay. So we have that, too; right?
A (Witness nods)
Q And for those reasons, CFIA directed the meat to be destroyed?
A Correct.
[72] The applicant submitted that CFIA had no authority to condemn the meat from the 94 non-infected elk under the Meat Inspection Act or the Meat Inspection Regulations. For ease of reference, the following legislation is reproduced. Subsection 9(1) of the Meat Inspection Regulations state:
| 9. (1) Subject to subsection (2) and section 121, no meat product shall be identified as edible unless
(a) the food animal from which the meat product is derived was subjected to an ante-mortem examination or an ante-mortem inspection, as the case may be, and slaughtered in accordance with these Regulations;
(b) the carcass from which the meat product is derived is dressed and subjected to a post-mortem examination or a post-mortem inspection, as the case may be, in accordance with these Regulations; and
(c) the meat product conforms to the applicable standards prescribed by these Regulations and the Food and Drug Regulations.
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9. (1) Sous réserve du paragraphe (2) et de l'article 121, un produit de viande ne peut être désigné comme étant comestible que si les conditions suivantes sont réunies:
a) l'animal pour alimentation humaine dont provient le produit de viande a été soumis à un examen ante mortem ou une inspection ante mortem, selon le cas, et a été abattu conformément au présent règlement;
b) la carcasse dont provient le produit de viande est habillée et soumise à un examen post mortem ou une inspection post mortem, selon le cas, conformément au présent règlement;
c) le produit de viande satisfait aux normes applicables prescrites par le présent règlement et le Règlement sur les aliments et drogues.
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[73] Sections B.14.010, B.14.011 and B.14.012 of Division 14 of the Food and Drug Regulations state:
| B.14.010. No person shall sell as food a dead animal or any part thereof.
B.14.011. No person shall sell as food, meat, meat by-products, preparations containing meat or meat derivatives obtained, prepared or manufactured from a dead animal.
B.14.012. For the purpose of Sections B.14.010 and B.14.011, "dead animal" means a dead animal that
(a) was not killed for the purpose of food in accordance with commonly accepted practice of killing animals for the purpose of food, which shall include exsanguination; or
(b) was affected with disease at the time it was killed. |
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B.14.010. Est interdite la vente comme aliment d'un animal mort ou de n'importe quelle partie d'un tel animal.
B.14.011. Est interdite la vente comme aliment de la viande, des sous-produits de la viande, des préparations contenant de la viande ou des dérivés de la viande, obtenus, préparés ou fabriqués à partir d'un animal mort.
B.14.012. Aux fins des articles B.14.010 et B.14.011, « animal mort » signifie un animal mort qui
a) n'a pas été abattu pour servir comme aliment, conformément aux pratiques acceptées couramment d'abattre les animaux pour utiliser comme aliment, et qui doit comprendre la saignée; ou
b) était atteint de maladie au moment de l'abattre. |
[74] Section 2(1) of the Meat Inspection Regulations state:
| "condemn" means, in respect of a food animal or a meat product, to determine that the food animal or meat product is inedible;
"edible" means, in respect of a meat product, a meat product that is fit for use as human food; |
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« condamner » Établir qu'un animal pour alimentation humaine ou un produit de viande est incomestible.
« comestible » Qualifie le produit de viande qui est propre à la consommation humaine. |
[75] There is no dispute between the parties that the requirements of paragraphs 9(1) (a) and (b) of the Meat Inspection Regulations were satisfied in this case. The next question is whether the meat product conformed with the applicable standards prescribed by the Meat Inspection Regulations and the Food and Drug Regulations. There is no question that the meat product from the one infected animal did not comply with the Food and Drugs Act and Food and Drug Regulations, as it was infected with CWD at the time it was killed.
[76] In addition to the one infected animal that was processed on March 11, 94 other animals were processed that were not infected with a disease at the time they were killed. With respect to those 94 animals, there is no evidence to show that the meat products processed from these animals were not fit for human consumption (definition of "edible"). I will not deal with the outcome if such evidence had been available. The reason for the destruction order with respect to the meat products from these 94 animals was that the meat product had potentially come in contact or was in close proximity to the meat product from the one infected animal.
[77] There is no doubt that CFIA needs to have the authority to keep meat products such as the meat product from the 94 non-infected animals out of the human food chain as it may have been in contact with or in close proximity to the meat product from the one animal with CWD.
[78] I am of the view that the Health of Animals Act provides such authority for the CFIA. Paragraph 48(1)(b) of that act states:
| 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 . . .
(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 |
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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: . . .
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; |
[79] The evidence presented in this case showed that the meat product from the 94 animals was in potential contact or close proximity to the meat product from the one elk infected with CWD. I am of the view that "thing" is a broad enough term to include meat products so that the facts of the present case fit paragraph 48(1)(b) of the Health of Animals Act. The Oxford Shorter Dictionary provides in part at page 309, for the meaning of the word "thing":
8(b) A being without life or consciousness; an inanimate object, as distinguished from a person or living creature.
11(b) A material substance (usually of a specified kind); stuff; material; in mod. use chiefly applied to substances used as food, drink, or medicines.
[80] Thus, since "thing" would include the meat product in question, paragraph 48(1)(b) of the Health of Animals Act applies so as to give the CFIA authority to order the meat product from the 94 animals destroyed.
[81] Based on the facts of this case, I do not find any conflict between the operation of the Health of Animals Act and the Meat Inspection Act.
Remedy
[82] Since paragraph 48(1)(b) of the Health of Animals Act applies, the applicant is entitled to ask the Minister to order compensation be paid to the owner of a "thing" (meat product) pursuant to section 52 of the Health of Animals Act.
[83] The applicant has sought mandamus and a declaration. I am satisfied that the applicant has met the requirements for the issuance of a writ of mandamus and for a declaration.
[84] The requirements for a writ of mandamus to issue have been outlined in Apotex Inc. v. Canada(Attorney General), [1994] 1 F.C. 742 (F.C.A.). Each of the requirements are discussed below.
1. A public legal duty to act
The duty, in this situation, is a public duty.
2. Duty must be owed to the applicant
The applicant is the owner of the meat product that was destroyed.
3. There is a clear right to performance of that duty, in particular:
(a) the applicant has satisfied all conditions precedent giving rise to the duty
The applicant is the owner of the destroyed meat and there is an order which ordered the destruction of the meat.
(b) there was (i) a prior demand for the performance of the duty; (ii) a reasonable time to comply with the demand unless refused outright; and a subsequent refusal which can be either expressed or implied
The applicant made a demand on the Minister on March 3, 2004 and on CFIA on March 9, 2004. There was also an offer to hold proceedings in abeyance to give time for a response. There was no response. CFIA did not respond as it felt it could only compensate for live animals not meat products.
4. No other alternative remedy is available to the applicant
There would appear to be no other alternative remedy.
5. The order must be of some practical value or effect
The order will have some practical effect as it most likely would result in reasonable compensation to the applicant for the meat product that was destroyed.
6. There is no equitable bar to the relief sought
No equitable bar was put forward.
7. On a "balance of convenience" a writ in the nature of mandamus should issue
The balance of convenience favours the issuance of the order.
[85] The applicant also sought a declaration that the Minister and CFIA have authority under section 52 of the Health of Animals Act to order compensation to be paid to the applicant for the elk meat and that the Minister and CFIA is to exercise their authority in accordance with the law.
[86] In order to grant declaratory relief, the issues must be real, not moot or fictitious, and the declaration must be capable of having practical effect in resolving the issues.
[87] The issues are real, not moot or fictitious
The dispute is not moot or fictitious. The CFIA will not pay compensation for the destroyed elk meat as it believes it has no jurisdiction to pay the compensation. The issues of jurisdiction to award compensation and the amount of compensation have not been determined.
[88] The declaration must be capable of having some practical effect
The declaration will determine the jurisdiction of the Minister to award compensation.
[89] I am of the view that the declaration should issue.
[90] The applicant's request for a writ of mandamus directing the Minister and CFIA, to consider the applicant's claim pursuant to section 52 of the Health of Animals Act for compensation for the market value of the destroyed elk meat is granted.
[91] The request for a declaration that the Minister and CFIA have authority under section 52 of the Health of Animals Act to order compensation to be paid to the applicant for the elk meat that was destroyed and that the Minister and CFIA are to exercise their authority reasonably and in accordance with the law is granted.
[92] The applicant shall have its costs of the application.
ORDER
IT IS ORDERED that:
1. The applicant's request for a writ of mandamus directing the Minister and CFIA to consider the applicant's claim pursuant to section 52 of the Health of Animals Act for compensation for the market value of the destroyed elk meat is granted.
2. The applicant shall have its costs of the application.
IT IS DECLARED that the Minister and CFIA have authority under section 52 of the Health of Animals Act to order compensation to be paid to the applicant for the elk meat that was destroyed and that the Minister and CFIA are to exercise their authority reasonably and in accordance with the law.
"John A. O'Keefe"
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-512-04
STYLE OF CAUSE: ALBERTA WAPITI PRODUCTS COOPERATIVE LTD.
Applicant
and
MINISTER OF AGRICULTURE AND AGRI-FOOD and CANADIAN FOOD INSPECTION AGENCY
Respondents
PLACE OF HEARING: EDMONTON, ALBERTA
APPEARANCES:
Brian Kaliel FOR THE APPLICANT
Robert Drummond FOR THE RESPONDENTS
SOLICITORS OF RECORD:
Corbett Smith Bresee LLP FOR THE APPLICANT
Edmonton, Alberta
John H. Sims, Q.C. FOR THE RESPONDENTS
Deputy Attorney General of Canada