CFIA loses bid for judicial review of tagging decision

The Federal Court of Appeal has rejected an application by the Canadian Food Inspection Agency for judicial review of a decision by the Canadian Agricultural Review Tribunal made last January.  In the decision, Dr. Don Buckingham of the Tribunal determined that CFIA had failed to prove on a balance of proabilities that lambs which arrived untagged after transport from Saskatchewan to Ontario had been untagged when they left the farm. 

The Federal Court of Appeal's decision was simple: "Based on the evidence before it, the Tribunal was entitled to make these factual findings. Given the deferential standard of review of reasonableness that applies in this case, there is no basis upon which we can set aside these factual findings. Therefore, the Tribunal’s conclusion that there was no violation must stand."

The decision itself in this case is not extraordinary.  However, it does raise practical questions about how farmers can respond to CFIA allegations related to untagged animals.  Note that the appeal took place in Toronto.  The farmer is located in Saskatchewan.  While it is likely that the hearing would have taken place in Saskatchewan had the farmer participated in the appeal (which he did not), one can question whether it would ever be worthwhile for a farmer to expend resources to respond to an appeal in a case involving a $500 penalty.  Having won at the Tribunal, at his own cost, could the farmer be expected to pay more money to fight a CFIA appeal of the decision?

Read the Federal Court of Appeal decision at: Canada (Attorney General) v. Rosemont Livestock.

Read the original decision of the Canadian Agricultural Review Tribunal at: Rosemont Livestock v. Canada (Canadian Food Inspection Agency), 2010 CART 004.

Virtually no defence available - fines against Manitoba cattleman upheld

The Canada Agricultural Review Tribunal has imposed several $500 administrative monetary penalties on a Manitoba farmer named Gordon Kropelnicki. The penalties result from a breach of the health of animals regulations administered by the Canada Food Inspection Agency (CFIA). In particular, Kropelnicki was alleged to have failed to retire the tag numbers of several cattle there were exported to the United States in 2009.

On March 16 and 17, 2009, Kropelnicki exported 33 cattle to the United States via Pembina, North Dakota. In August, 2009, Kropelnicki received a letter of warning sent from the CFIA stating that three of the cattle he had transported to the United States had not had their identification tag retired within 30 days of their export. The warning letter said that the farmer must bring himself into compliance with the section by retiring the tags no later than September 15, 2009. Kropelnicki took no steps on his own to retire the tags. Instead, Kropelnicki says that he called the veterinarian clinic in Glenboro on August 29 or 30, 2009 to have them retire the tags and that the clinic said that they would do so. However, the clinic did not retire the tags.

According to the chairperson of the Appeal Tribunal, Dr. Don Buckingham, the “undeniable facts” of the case are:

That Kropelnicki shipped his cattle to the U.S.A. and their tag numbers were not retired on or before September 15, 2009. The Tribunal has no reason to doubt that Kropelnicki fully relied on the Glenboro clinic to carry out his wishes and to protect his interests by retiring the tag numbers of the cattle exported to the U.S.A. It is clear that Kropelnicki took some preliminary steps to have the tags retired to meet his obligations and the agency’s August request. Unfortunately for whatever reason, the retirement of the tags did not occur prior to September 15, 2009.

In his decision, Buckingham notes that Section 18 of the applicable legislation excludes practically any excuse that Kropelnicki might raise in the case. Given Parliament’s clear statement on the issue, Buckingham accepted that due diligence statements by Kropelnicki are not permitted defences under the applicable legislation. Moreover, reliance by Kropelnicki on individuals who are acting as his agents in the export transaction to the U.S., is not a defence to the violation alleged in the case.

In light of those findings, the Tribunal rejected the appeal and imposed the administrative monetary penalties required under the leglislation.

Read the decision at: Kropelnicki v. Canada (CFIA).

Review Tribunal decision highlights inflexibility in CFIA tag requirements

In a January, 2010 decision just posted on the internet, Dr. Donald Buckingham of the Canadian Agricultural Review Tribunal has once again reiterated that due diligence on the part of farmers is not enough to save them from paying for violations of cattle tagging regulations.  In this case, Doug Morningstar was found to have violated subsection 177(1) of the Health of Animals Act because two of the cattle he transported from his farm to an abattoir in 2008 did not have an approved identification tag. 

As Dr. Buckingham notes, keeping tags on the cattle at all times is no easy task:

Practical difficulties arise in attempting to have 100% of Canadian cattle tagged with approved tags. Some animals, requiring identification pursuant to Part XV of the Health of Animals Regulations, may never be tagged, through neglect or opposition to the present regulatory scheme. Most animals, however, will be tagged, but, even among these, some will lose their tags somewhere between the birthing pen and the slaughter house floor. To minimize “"slippage"” and to maximize the number of animals that are tagged with approved tags for the full duration of the animal's life, the Health of Animals Regulations require several actors in the production chain to tag animals which are either not yet tagged or which have lost their tags. If actors inside or beyond the farm gate do not tag as required, they face liability when tags are missing. Transporters of cattle are among those identified under the Health of Animals Regulations with such responsibilities.

However, having tags on the cattle at all times when they are being moved from location to location is the rule, and there is virtually no exception to the rule:

The Tribunal has no reason to doubt Mr. Morningstar's assertion made at the hearing that he is a conscientious producer who knows where his cattle originate and where they go to, or his assertion that he does his uttermost to ensure that cattle leaving his farm bear approved tags. However, in light of this analysis of the evidence, the Tribunal must conclude that the respondent has established, on a balance of probabilities, that the violation was committed. Therefore, the Tribunal orders the applicant to pay the penalty in the amount of $500 within 30 days after the day on which this decision is served.

Read the decision at: Doug Morningstar v. Canadian Food Inspection Agency.