Dead lawn points to neighbour's herbicides, but standard of proof not met

The Plaintiff in a Saskatchewan small claims suit alleged that the Defendant applied a substance in the back alley next to his property that caused damage to the Plaintiff's lawn.  The judge hearing the case was satisfied on a balance of probabilities that a substance from the back alley did migrate to the Plaintiff's lawn, either through run-off or leaching, and killed it.  This finding was supported by viva voce testimony, an investigation report, and photographs.  However, the judge was not satisfied on a balance of probabilities that the Defendant had anything to do with putting the substance into the back alley or that the substance came from the Defendant's property.

Of course, the judge accepted that the Plaintiff's suspicions about the Defendant's involvement were not unwarranted.  The Defendant was employed by a crop production services company and the Plaintiff's wife had seen the Defendant dump liquid in the back alley.  The Defendant told the Plaintiff that he has used glyphosate and Ally, and may have "mixed one a little strong".  The Defendant's yard is directly across the back alley from the Plaintiff's yard, and the alley slopes from the Defendant's yard to the Plaintiff's yard.  And there was no plant kill in any other yard in the area.

In spite of this circumstantial evidence, the judge did not find for the Plaintiff.  There was no evidence of what substance had actually killed the Plaintiff's lawn, and no samples had been taken from the back alley to test for chemicals in that area.  The Plaintiff suggested that the cost of testing for numerous substances until the correct one was found would be prohibitive, but it appears to have left the Plaintiff without the evidence necessary to prove the claim.

The Court dismissed the Plaintiff's claim, but (perhaps tellingly) made no order as to costs. 

Read the decision at: Charbonneau v Statchuk.

Tingle voltage appeal dismissed by Ontario Court of Appeal

The Court of Appeal for Ontario has upheld the dismissal of a damage claim by dairy farmers who alleged tingle voltage or stray voltage as the cause of reduced milk production.  The trial judge accepted the expert evidence of the claimants that tingle voltage could cause the type of harm alleged, but found that it was not the cause in this case.  The Court of Appeal noted:

"The trial judge considered the whole of the evidence and importantly found that if tingle voltage had been the cause of the reduced milk production from 1997 forward, there would have been overt signs on the herd. He concluded that the evidence did not demonstrate such signs and accordingly the appellants had not established that the herd was being affected by tingle voltage. In his view, milk production had been relatively good in 1995 and 1996 and declined thereafter and there was no change in the hydro system that could account for the changes after 1997."

While the trial judge had found that Hydro One had breached the standard of care in failing to give adequate warning to farmers about the possible harms caused by tingle voltage, the lack of causation between the tingle voltage and the loss of milk production was fatal to the claim.  The trial judge found that the only cause of milk production loss proven on a balance of probabilities was inadequate labour, and the Court of Appeal declined to interfere with this finding.

Read the decision at: Cowan v. Hydro One Networks Inc.

Saskatchewan farmer acquitted of Stray Animals Act charges

A Saskatchewan farmer has been acquitted by the Provincial Court of three charges under the Stray Animals Act for "allowing his cattle to run unlawfully at large".  The Court found in the end that the farmer had made out the defence of due diligence.

The Court accepted the evidence of a neighbour that on August 31, 2010, she was in her house, when suddenly five or six bulls came into her yard, from all directions, and a couple of them started fighting.  Being afraid, she called the police, and a complaint ensued.  She said that either she or the police phoned the farmer to come and get the bulls.  The neighbour also stated that the cattle got into an organic alfalfa field, which her son was farming for her.  She made a complaint about the August 31, 2010 incident, as well as two subsequent incidents of the same sort.

In his defence, the farmer presented evidence of his general practices, including the maintenance of fencing.  He argued that he had exercised due diligence by checking his fences twice a week, and repairing breaks whenever they were located.  The Court found that the farmer's fencing was good and substantial, well-built and well-maintained.  In the end, the Court agreed that the farmer had exercised due diligence and was not guilty of the strict liability offences under the Act:

The test ... is whether or not Mr. Potoreyko has satisfied me, on a balance of probabilities, that he took all reasonable steps to avoid the doing of the prohibited act.  I am satisfied that he has met that test.  He is not required to guarantee that his cattle will not run at large.  I find that he took reasonable steps, in both patrolling his fence line, and in repairing the fence line when required, to prevent his cattle from running at large.

Read the decision at: R v Potoreyko.

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).

Saskatchewan farmer convicted for offering a stray animal for sale

On inspecting cattle delivered by the accused, Douglas Lamb, to the Spiritwood stockyards on January 19, 2010, Brand Inspector Kenneth Wasden noticed that one calf was of a different colour, had a different ear tag, and a brand on the left rib. The brand could not be clearly identified before clipping the hair covering it, but was noticeable because the hair covering it was of a lighter colour. The animal was black with a black and white spotted face, referred to as “brockle face”. Wasden had noticed the brand from six to eight feet away. The ear tag was hand printed with a letter and numbers, whereas the other cattle had factory printed ear tags with numbers only. Both types of ear tag were yellow in colour. 

The animal appeared to be stunted, which he attributed to lack of nourishment from early weaning and its hair was rougher. If born in the spring, it should have weighed between 600 and 800 pounds, rather than 450.  The other 20 cattle delivered by the accused were exotic cross-breeds (Simmental and Charolais) and were larger, heavier animals. None of the others were black in colour. The calf in question was a Black Angus cross. The body condition was similar to that of the others, but it was smaller in size.

Richard Williams is a large cattle rancher from Alberta, but brings some cattle to Saskatchewan to pasture in the summer. He brought between 230 and 240 head of cattle to the Rabbit Lake pasture in 2009. He recalled a fence being down between his pasture and that of the accused, which he repaired. When the cattle were transported back to Alberta in the fall, there was one calf missing. Williams identified the calf’s brand and the type of hand lettered ear tag as his, and the black brockle face calf as a product of his cross-breeding Herefords and Black Angus, born in the spring of 2009.

In the eyes of the Court, the Crown proved on this evidence beyond a reasonable doubt that the accused offered a stray animal for sale in violation of the Stray Animals Act. As the charge is a strict liability offence, the defence of due diligence would apply if the accused could prove on a balance of probabilities that he took all due care.  Due care is simply what a reasonable person would have done in the circumstances. The accused must have taken all reasonable steps to avoid the event in order to show that he was not negligent.

The Court disbelieved Lamb's evidence about what he knew and didn't know about the calf in question, and found that he had not taken reasonable steps to avoid committing the offence.  To not recognize your own calves in such a small herd alone shows lack of a reasonable standard of care, in the judge's opinion. In addition, failing to notice a bawling, orphaned calf, and failing to observe an obvious brand also shows lack of due diligence. The accused should have been checking his animals carefully enough and been familiar enough with them to have detected this stray calf among them.

Read the full decision at: R. v. Lamb.

Saskatchewan Provincial Court dismisses neighbour's lawsuit over crop damage, etc.

The Provincial Court of Saskatchewan has dismissed three claims by landowner Kelly Bzdel against his neighbour, Twin Creek Dairy Ltd.  The claims were as follows:

• The first claim is that during the crop year of 2008, the defendant, while spraying chemicals on his own crop, over sprayed, resulting in the loss to the plaintiff of approximately 20 acres of oats valued at $7,200.00. “Claim One: Over Spraying”
• The second claim is that on or about August 22, 2008, the plaintiff, while driving his vehicle, struck a cow from the defendant’s operation resulting in damage to the plaintiff’s vehicle and a loss to the plaintiff of $700.00, which was his insurance deductible. The plaintiff claims that the defendant had inadequate fencing for his cattle in this area. “Claim Two: Vehicle - Calf Collision”
• The third claim is that “as a result of the cattle escaping from the defendant’s property, cattle trampled approximately 10 acres of the plaintiff’s oat crop” resulting in the loss of 10 acres of oats worth $4,200.00.  “Claim Three: Cattle Damage to Crop”

The trial judge dismissed all three claims, finding that Bzdel had failed to prove on a balance of probabilities (i.e. 50% plus 1, more likely than not, etc.) that the Defendant had caused any of the damages.  In fact, for the over-spraying claim, the trial judge determined that less than 20 acres of oats had been killed or damaged as claimed by Bzdel.  Costs of $400 were awarded to the Defendant.

Read the decision at: Bzdel v. Twin Creek Dairy Ltd.

Another canola failure case, another failure to prove cause

Last week, I posted a case in which a farmer alleged that defective seed was the cause of his poor canola crop. This week, I have another case along the same lines. This time Pioneer Grain Company sued Saskatchewan farmer Dale Ortynsky after he refused to pay for herbicides he had purchased because he alleged they were the cause of his crop's poor yield. The spray manufacturers, Bayer and Dupont, were added as third parties to the action. Ortynsky also made a counter claim against Pioneer for damages related to the poor yield.

Once again, lack of evidence about the actual cause of the crop failure meant a finding against the canola farmer. Justice J.E. McMurtry of the Saskatchewan Court of Queen's Bench concluded, "The defendants have not satisfied me that the poor canola crop resulted from herbicides sold by Pioneer and not by some other factor such as weather, soil conditions, farming practice, and/or application of the [herbicide]." Civil claims must be proved on a balance of probabilities (basically, 50% plus 1 or more likely than not). In this case, as Ortynsky could not prove on a balance of probabilities that the herbicide was the cause of the crop failure, his counter claim failed and he was ordered to pay for the herbicide he had purchased, plus interest and costs.

http://www.canlii.org/en/sk/skqb/doc/2009/2009skqb513/2009skqb513.html