[1] The Crown is appealing a Federal Court judgment (2004 FC 1292) dismissing its application for an interim injunction, which would have required the respondent, Mr. Patterson, to deliver to the Crown a certain northern flying squirrel that Mr. Patterson had imported into Canada on June 26, 2004.

[2] Mr. Patterson's importation of the northern flying squirrel contravened the Prairie Dog and Certain Other Rodents Importation Prohibition Regulations, SOR/2003-310, enacted pursuant to the Health of Animals Act, S.C. 1990, c. 21. Those regulations read as follows:

1. No person shall import into Canada or any Canadian port during the period beginning on the day on which these Regulations come into force and ending on January 31, 2008, any of the following:

(a) prairie dogs (Cynomys sp.), African Giant Pouched Rats (Cricetomys gambianus) or any squirrel of the family Sciuridae, from any country; and

(b) any other member of the order Rodentia from Africa.

1. Il est interdit, au cours de la période commençant à la date d'entrée en vigueur du présent règlement et se terminant le 31 janvier 2008, d'importer sur le territoire canadien et à tout point d'entrée canadien les rongeurs suivants :

a) les chiens de prairie (Cynomys sp.), les rats géants de Gambie (Cricetomys gambianus) et les écureuils de la famille Sciuridae, quel qu'en soit leur pays de provenance;

b) tout autre rongeur de l'ordre Rodentia provenant d'Afrique.

[3] The evidence of Dr. Barr, a veterinarian employed by the Canadian Food Inspection Agency, is that northern flying squirrels are squirrels from the family Sciuridae.

[4] The reason for the prohibition on the importation of northern flying squirrels is a concern that they, like other rodents, may carry a highly infectious viral disease called monkeypox. Monkeypox can be transmitted to people, and may be fatal. In the United States, the first known cases of monkeypox affecting people occurred in June of 2003, when several people became infected after contact with pet prairie dogs who carried the virus.

[5] At the time of the events considered in this case, monkeypox was not known to be present in Canada, and there was apparently no evidence that northern flying squirrels may carry the virus for monkeypox.

[6] However, Canadian government officials were, and still are, justifiably concerned that all reasonable steps should be taken to ensure that monkeypox is not introduced into Canada through the unregulated importation of rodents.

[7] Mr. Patterson is a conservationist and naturalist who describes himself as an expert in northern flying squirrels. He had received permission from the government of Ontario, and from the U.S. Fish and Wildlife Service, to bring the northern flying squirrel to Canada. When he crossed the border with the northern flying squirrel, he presented all of the relevant documentation and was permitted to continue.

[8] The record does not disclose why the Canadian border officials did not give effect to the Regulation quoted above that prohibited the importation of northern flying squirrels.

[9] Under subsection 18(1) of the Health of Animals Act, S.C. 1990, c. 21, the Canadian Food Inspection Agency is permitted to order the removal from Canada of any animal that has been imported in contravention of regulations made under that Act. Such an order was made, and served on Mr. Patterson, on July 6, 2004.

[10] After Mr. Patterson learned that the Crown wished to remove his northern flying squirrel from Canada, he had it examined by a veterinarian, who found no sign of illness or disease.

[11] Mr. Patterson did not comply with the order, which led the Crown to apply to the Federal Court for the interim injunction referred to above. The statutory basis for the Crown's application was section 18 of the Canadian Food Inspection Agency Act, R.S.C. 1985, c. 6, which reads as follows:

18. The Agency may apply to a judge of a court of competent jurisdiction for an interim injunction enjoining any person from contravening an Act or provision that the Agency enforces or administers by virtue of section 11, whether or not a prosecution has been instituted in respect of that contravention.

8. L'Agence peut demander à un juge d'une juridiction compétente une ordonnance provisoire interdisant toute contravention à une loi ou disposition dont elle est chargée d'assurer ou de contrôler l'application aux termes de l'article 11 - que des poursuites aient été engagées ou non sous le régime de celle-ci.

[12] The Crown's application was rejected on the basis that the Crown's case did not pass the established tests for an interim injunction. The three tests are from RJR Macdonald Inc. v. Canada, [1994] 1 S.C.R. 311. The first test is the existence of a serious issue for trial. The second test is that the applicant for the interim injunction will suffer irreparable harm if the relief is denied. The third test is that the balance of convenience favours the applicant. All three tests must be met before an interim injunction is granted.

[13] The Judge doubted whether there was a serious issue, but did not reach any conclusion on that point. She decided the case on the basis that the record presented to her disclosed no irreparable harm. She noted in particular that the Crown did not argue, and had not shown, that public health was in issue in this case.

[14] In October of 2004, the Prairie Dog and Certain Other Rodents Importation Prohibition Regulations were amended (SOR/2004-240) to permit the importation of squirrels for scientific research, zoological collections, or educational purposes. As Mr. Patterson's importation of the northern flying squirrel fell within this exception, the status of his northern flying squirrel has now been settled to the satisfaction of the Canadian authorities. They no longer wish to remove it from Canada. That makes this appeal moot.

[15] However, the Crown argues that this appeal should be heard despite its mootness, and the decision reversed or vacated because of the importance of the legal issues involved. In particular, the Crown is concerned that the decision of the Judge may be construed in other cases as precluding the Crown from obtaining an interim injunction under section 18 of the Canadian Food Inspection Agency Act without first obtaining and submitting evidence that the unlawfully imported animal actually poses a public health risk.

[16] We are all of the view that the Crown's concern is unfounded. The Judge did not say, or suggest, that the Crown cannot obtain an interim injunction in relation to an unlawfully imported animal unless there is proof that the animal is infected or presents a health hazard. The statute contains no such precondition, and it would not be correct to say that such a precondition is implicit in the statute, or in the nature of the remedy. Each case in which an interim injunction is sought must be assessed on its own facts.

[17] We are not persuaded that this moot appeal should be heard. As we understand the decision under appeal, it is fundamentally an exercise of the Judge's discretion, based upon her appreciation of the rather unusual facts of the case. It does not establish any new principle of law, nor should it be read as diminishing in any way the effectiveness of the statutory remedies available to the Crown to deal with the illegal importation of animals.

[18] For these reasons, this appeal will be dismissed.

"Karen R. Sharlow"

J.A.

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-486-04

STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA

Appellant

and

STEPHEN JOHN PATTERSON

Respondent

PLACE OF HEARING: TORONTO, ONTARIO

DATE OF HEARING: MAY 30, 2005

REASONS FOR JUDGMENT

OF THE COURT: (LINDEN, SEXTON, SHARLOW, JJ.A.)

DELIVERED FROM THE

BENCH BY: SHARLOW J.A.

APPEARANCES:

Mr. Eric O. Peterson FOR THE APPELLANT

SOLICITORS OF RECORD:

John H. Sims, Q.C.

Deputy Attorney General of Canada

FOR THE APPELLANT

RUBY & EDWARDH

Barristers & Solicitors

Toronto, Ontario

FOR THE RESPONDENT

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