Appeal Tribunal sets aside CFIA Health of Animals Violation

The Canada Agricultural Review Tribunal has overturned a decision of the Minister of Agriculture and Agri-Food that imposed a $2,600 penalty on Chilliwack Cattle Sales Ltd. for "loading, transporting or causing to be loaded or transported an animal that could not be transported without suffering contrary to paragraph 138(2)(a) of the Health of Animals Regulations".  The original notice of violation was issued by the CFIA, and the matter was then referred to the Minister for review.  The Minister confirmed the original violation decision.

The Tribunal in this case was reviewing the decision of the Minister to determine whether there had been an error in the exercise of the Minister's discretion or an error in law.  These errors might include, according to the Tribunal:

1. The powers were exercised in bad faith.

2. The powers were delegated in an inappropriate manner.

3. The powers were exercised without regard for the principles of natural justice or fairness.

4. The powers were exercised for inappropriate purposes.

5. No element of the evidence supports the Minister's decision.

6. The decision was based on irrelevant considerations.

7. An error was committed in the interpretation of the connected or enabling legislation, the principles of common law in general or in the application of legal principles to the facts.

8. A decision is so unreasonable that no reasonable person in the Minister's place would have made such a decision.

In its review, the Tribunal noted that nowhere in the Minister's decision were there found the words "undue suffering" or "unduly suffered", which are essential elements for the finding of liability under paragraph 138(2)(a) of the Regulations.  Therefore, the Tribunal ruled, the Minister had made an error of law which requires that the decision be set aside.  The Tribunal went on to identify other errors in the decision, including setting the penalty at $2,600 when there was no basis for doing so.

Read the decision at: Chilliwack Cattle Sales v. Canada (Minister of Agriculture and Agri-Food).

Appeal Tribunal weighs in again on liability of transporters for CFIA tagging

In a subsequent decision of the Canada Agricultural Review Tribunal, Dr. Don Buckingham wrote again about the extension of liability for tagging to "transporters":

Considering that a transporter is often working under sub‑optimal conditions for tag verification-limited lighting, the high speed of animals going into the truck, the hairiness of animals' ears which often hides tags, and the multiplicity of tags present in animals ears-the Regulations do impose a heavy, and at times, superhuman burden on a transporter to verify the continuing and constant presence of an approved tag in the ear of each of the animals being transported, failing which, the transporter faces liability for regulatory non‑compliance. Part XV does appear to impose a heavy responsibility on one sector for the benefit of all consumers and producers in Canada to assure traceability and food safety in the food system. Fair or not, this is, however, the regulatory burden that Parliament and the Governor in Council have placed on, in this case, the applicant Knill, and the Tribunal must interpret and apply the law to the facts of this case.

According to Buckingham, the common refrain from those appearing before the Tribunal to appeal fines levied by the CFIA is that the current identification system is unfairly exposing players in the agri-food continuum to liability for violations of Part XV of the Regulations because of a significant problem with the permanency of approved tags.

Read the decision at: H.S. Knill Company Ltd. v. Canada (CFIA).

CFIA Tagging Liability Extended to Agents of Owners

In a recent case before the Canada Agricultural Review Tribunal, Chairman Dr. Don Buckingham confirmed that his decision would effectively extend liability for CFIA-approved tagging violations to agents of owners.  In other words, not only will the owners of animals have a responsibility to ensure that proper tagging is in place whenever animals are moved, but agents of the owners such as truckers will share the same responsibility.  Dr. Buckingham commented: 

The Tribunal is mindful that its finding in this case will constitute an extension of liability to agents of owners under Part XV of the Health of Animals Regulations. However, considering the legislative provisions and the guidance offered to it by the Federal Court of Appeal on the matter, the Tribunal finds that the Agency has proved, on the balance of probabilites, the first element of the violation, "that Schaus caused the movement of" the cattle on February 18, 2009 from the farm of origin, in this case Ikendale. Considering that now, not only the producer but the transporter, or their agents must purchase, apply and verify the continuing and constant presence of a RFID‑CCIA tag in the ear of each of their animals whenever they are moved off their farm or face liability for regulatory non-compliance, Part XV does appear to impose a heavy, if not impractical, responsibility on one sector for the benefit of all consumers and producers in Canada to assure traceability and food safety in the food system. Fair or not, this is, however, the regulatory burden that Parliament and the Governor in Council have placed on, in this case, the applicant Schaus, and the Tribunal must interpret and apply the law to the facts of this case.

Read the decision at: Schaus Land and Cattle Co. Limited v. Canada (CFIA).

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).

Saskatchewan cattle producer liable for $500 fine for moving cattle without tags

In a recently released decision, the Canadian Agricultural Review Tribunal has upheld a Notice of Violation and a $500 fine against a Saskatchewan rancher who had alleged moved cattle from his farm without proper CFIA tags.  Cecil Coward testified that he is a farmer/rancher in southwestern Saskatchewan and, with his wife, have 175 cow/calf pairs.  In 2009, he transported 125 pairs to his own pastures and 50 pairs to the Shamrock Community Pasture.  He transported the 50 pairs on May 19 in two loads.  After he was home again that morning, he received a call around 11:30 a.m. from the Pasture Manager telling him that some of his cows were missing their RFID-CCIA approved tags.
Once again in this decision, Dr. Donald Buckingham takes note of the practical difficulties in ensuring 100% compliance with the tagging requirements of the Health of Animals Regulations:

Practical difficulties arise in attempting to have 100% of Canadian cattle, bison and sheep 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 by the Health of Animals Regulations, they too face liability when tags are missing. Owner and transporters of sheep are among those identified under the Health of Animals Regulations with such responsibilities. The Agency has the responsibility of ensuring compliance with these provisions either through criminal prosecutions or through the levying of administrative monetary penalties for violations identified in the Agriculture and Agri-Food Administrative Monetary Penalties Regulations.

For the purposes of this case, such approved tags are RFID-CCIA approved tags made of plastic bearing a front piece printed with a bar code and a back button which, when applied to an animal's ear, is meant to lock the tag into place permanently. Such a permanent locking device would permit farm-to-processor tracking and thus meet the objectives of the Regulations to establish a permanent and reliable system to track the movements of all bison, cattle and sheep in Canada from the birth of such animals on their “"farm of origin"” to their removal from the production system, either through export or domestic slaughter. Almost every system of mandatory identification is, however, subject to mechanical failure or human error.

The evidence in this case is that the system that the Regulations rely upon, or perhaps more accurately the equipment and technology to support that system, does not establish a permanent and infallible system to track the movements of all bison, cattle and sheep in Canada. The Tribunal accepts the evidence of Coward that on May 1, 2009, he tagged all of his cattle with RFID-CCIA approved identification tags. If there was human error in the application of the RFID tags on May 1, 2009, there was no evidence of it presented at the hearing. The Agency and its officials were never at the Coward farm and there is no evidence which contradicts the testimony of Coward and his wife on this point. [emphasis added]

However, Buckingham could not overlook that 10 of Coward's cows were found in the Shamrock Community Pasure without approved tags.  He found that, on a balance of probabilities, CFIA had proven that at least one and up to ten of the cows had been loaded on May 19 without a proper tag.  Unlike in the recent Habermehl case, there was an admission by Coward here that he had not verified each cow as it was loaded for travel to the pasture.  Buckingham found it likely that at least one tag fell out between the time they were applied on May 1 and the time the cattle were loaded on May 19.

As usual with the regulations, the Tribunal has no discretion once it has found that the CFIA has proven its case on a balance of probabilities:

The Tribunal finds that the Agency has, therefore, made out all of the essential elements of this case. The Tribunal has no reason to doubt Mr. and Mrs. Coward's assertions that “"due to drought + the price of cattle it is hard enough to make a profit"” (statement by Coward in his request for review) and that they are good cattle producers who agree with the tagging program for Canadian cattle. However, in light of the evidence and the applicable law, the Tribunal must conclude that the Agency has established, on a balance of probabilities, that Coward committed the violation and is liable for payment of the penalty in the amount of $500.00 to the Agency within 30 days after the day on which this decision is served.

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

Quebec company found to have transported a "compromised pig" in violation of Health of Animals Regulation

The Canadian Food Inspection Agency (CFIA), alleged that Trans-Porcs B.M. inc. (Trans-Porcs), on March 12, 2008, in Yamachiche, Quebec, transported a compromised pig that could not be transported without undue suffering during the expected journey, contrary to paragraph 138(2)(a) of the Health of Animals Regulations.  Trans-Porcs challened the notice of violation that was issued by the CFIA before the Canadian Agricultural Review Tribunal at a hearing in Drummondville, Quebec.  On review of the case, Dr. Donald Buckingham, Chairman of the Tribunal, found that the CFIA had proven all necessary elements of the violation on a balance of probabilities.

The following evidence was not contested at the hearing:

•On March 12, 2008, Trans-Porcs loaded 223 pigs, including a compromised pig, transported the pigs for more than one hour, and unloaded them all at the Atrahan Transformation inc. abattoir at or about 1:30 p.m.

•The compromised pig was lame, bore the owner's tattoo (No. 12066), was placed in the holding pen after unloading and was given a holding tattoo (No. S-14-1). The pig was examined ante mortem. The pig was euthanized, and a post mortem examination was conducted on the carcass.

The contested evidence in this case was in answer to the following question: "What was the condition of the compromised pig before transportation, during transportation and upon arrival at the abattoir on March 12, 2008?".

For there to be a violation of paragraph 138(2)(a) of the Health of Animals Regulations, the CFIA must establish the following elements (from an earlier case called Doyon):

1. that the animal in question was loaded (or was caused to be loaded) or transported (or caused to be transported);

2. that the animal in question was loaded onto or transported on a railway car, motor vehicle, aircraft or vessel;

3. that the cargo loaded or transported was an animal;

4. that the animal could not be transported without undue suffering;

5. that the animal suffered unduly during the expected journey ("voyage prévu" in French);

6. that the animal could not be transported without undue suffering by reason of infirmity, illness, injury, fatigue or any other cause; and

7. that there was a causal link between the transportation, the undue suffering and the animal's infirmity, illness, injury or fatigue, or any other cause.

In finding that a violation had been committed, Dr. Buckingham's ruled:

In this case, the pig was not transported without undue suffering. Upon the pig's arrival at the abattoir, the animal was observed to have grade 4 lameness. As it is unlikely that the pig had already been suffering from grade 4 lameness on the farm of origin (given that it had walked up the truck ramp), that deterioration resulted from transportation to the abattoir. If the pig had already been suffering from significant lameness on the farm of origin, according to the Court's reasoning in Cèdres, the Tribunal finds that it was very unreasonable to have transported the pig, since the industry prohibits producers and transporters from transporting a pig in such a condition. It is assumed that transporting an animal in such a condition will undoubtedly cause undue suffering. However, if the deterioration in the pig's condition occurred during transportation, the Court's reasoning in Doyon would apply, and the Tribunal is satisfied that the Agency has proven elements 4, 5, 6 and 7, as required in Doyon, above.

The violation resulted in a fine of $2,200 to Trans-Porcs, but Dr. Buckingham did note at the end of his decision that the violation is not a criminal offence:

However, the Tribunal wishes to inform Trans-Porcs that this violation is not a criminal offence. After five years, Trans-Porcs will be entitled to apply to the Minister to have the violation removed from its record, in accordance with section 23 of the Agriculture and Agri-Food Administrative Monetary Penalties Act:

23. (1) Any notation of a violation shall, on application by the person who committed the violation, be removed from any records that may be kept by the Minister respecting that person after the expiration of five years from

(a) where the notice of violation contained a warning, the date the notice was served, or

(b) in any other case, the payment of any debt referred to in subsection 15(1),

unless the removal from the record would not in the opinion of the Minister be in the public interest or another notation of a violation has been recorded by the Minister in respect of that person after that date and has not been removed in accordance with this subsection.

Read the decision at: Trans-Porcs B.M. v. Canada (CFIA).

Agricultural Review Tribunal clears Saskatchewan farmer of CFIA cattle tagging infraction

In May, 2009, Ken Habermehl was moving cattle from his farm to the Elbow Community Pasture about 67 kilometres away.  Three trucks left the farm.  On arrival, it was discovered that seven cattle were missing the identification tags required by CFIA and federal regulations.  A CFIA inspector was on hand.  Habermehl immediately left the pasture and drove about 2 hours to obtain new tags.  The cattle were re-tagged as soon as was humanly possible in the circumstances.  No harm, no foul.  However, under the current regulations, the missing tags were a problem for CFIA and Habermehl was cited for a violation of the Health of Animal Regulations (moving cattle without a tag) and a $500 fine.

Habermehl decided to fight the charge and, in a decision delivered earlier this month, he was exonerated by the Canadian Agricultural Review Tribunal.  In his decision, Dr. Don Buckingham made the following findings of fact central to the validity of the charge:

The evidence in this case is that the system that the Regulations rely upon, or perhaps more accurately the equipment and technology to support that system, does not establish a permanent and infallible system to track the movements of all bison, cattle and sheep in Canada. The Tribunal accepts the evidence of Habermehl that he tagged all of his cattle in 2006 with RFID (CCIA approved) identification tags and that again on the weekend of May 22-24, 2009 he did the same, even though some cattle tagged in 2006 had to be retagged because they had lost their 2006 tag. If there was human error in the application of the RFID tags during the weekend of May 22-24, 2009, there was no evidence of it presented at the hearing and it is not unimportant to note that Habermehl was a trained professional practitioner of veterinary medicine as well as being an experienced cattleman. On transport day, Habermehl again verified that all cows and calves were ready to leave his farm on May 25-26, 2009 for community pastures. The Agency and its officials were never at the Habermehl farm and there is no evidence which contradicts the testimony of Habermehl and his son on this point.

Given these facts, Dr. Buckingham could not find that the violation (moving cattle without the proper tag) had been proven on a balance of probabilities:

What is lacking from an evidentiary perspective by the Agency in this case is proof that the seven cattle did not have RFID tags when they left the Habermehl farm. Over 200 cattle had been prepared, verified and shipped from the farm between May 22 and May 26. They had all been tagged with RFID tags and then shipped in several trailers to several different pastures. Tags and buttons were found in the chute and in the trailers, but to which cattle did they belong? Agency officials failed to look for any evidence of lost tags in the trailers, or of ripped ears (or lack thereof) in the retagged cattle that would have provided the Tribunal with perhaps enough evidence to determine whether the cattle lost their tags on the Habermehl farm or on their way to, or in the holding pens of, the Elbow Community Pasture.

Given the lack of sufficient evidence on the matter, it would be "mere conjecture ... speculation, hunches, impressions or hearsay" to conclude that, on the balance of probabilities, any of the seven cows were without tags on the morning of May 26, before they were loaded into transport trailers. These tags are, after all, supposed to be permanent identification tags. The fact that any or all of these permanent tags would be lost within less than 48 hours is not proved from the evidence presented to the Tribunal.

In his decision, Dr. Buckingham also noted the problems with the imperfect nature of the tagging technology, which puts farmers in a difficult position given the flexibility of the tagging regulations.  There is no defence of due diligence (i.e. that you did everything reasonably possible to avoid the violation) available to farmers and very few instances in which a lost tag will not result in an automatic violation and fine.  As Dr. Buckingham notes, this is a "not insusbtantial problem" of RFID identification tags:

Evidence from Habermehl and Rutledge indicated that there is a problem with the current tagging system of RFID (CCIA approved) identification tags. Whether the Tribunal accepts the opinion evidence of witness Rutledge, or the actual case of the seven cows in this case, a not insubstantial problem of RFID (CCIA approved) identification tag failure exposes players in the beef, bison and sheep industry to liability for violations of Part XV of the Health of Animals Regulations.

At the end of the day, Habermehl was exonerated and the $500 fine cancelled.  However, this case highlights the extreme difficulty the tagging regulations create for farmers.  Habermehl still had to prepare for and participate in a one-day hearing in Saskatoon over a $500 fine.  CFIA also participated in the hearing represented by counsel - over a $500 fine.  The system is set up in a way that almost necessitates that farmers just eat the fine.  Almost no defences are available if a tag is found to be missing, and there is even a discount on the fine offered if it is paid immediately.  This might be acceptable if the tags themselves were foolproof and sure to stay attached to the animals indefinitely.  But that isn't the case.  Something needs to change.  Either the tags need to be perfected, or the regulations need to be made fairer to farmers by being made more flexible.

Read the full decision at: Habermehl v. CFIA.