BC Horse Farm case sent back to Farm Industry Review Board - original decision was unreasonable

In 2009, PH constructed a new barn on her farm property in Kelowna, BC to accommodate an equestrian business.  Her neighbours to the south brought a claim before the Farm Industry Review Board claiming that they were suffering from the effects of noise, lights, flies and odour from the farm.  In March, 2013, the Board found that a section of the horse farm and equestrian centre was not a normal farm practice - turning out horses within 15 metres of the southerly property line was deemed not a normal farm practice based on the City of Kelowna's zoning by-law and the Ministry of Agriculture's Farm Practice Review Guide.

 

The Board dismissed the noise and light complaints and determined that the farm's manure management practices were normal farm practice.  However, the Board accepted the complaint concerning the location of "livestock area B", which was not set back from the southerly property line.  The Board ordered that the area be shifted at least 15 metres from the boundary.

 

PH appealed and, on judicial review, the BC Supreme Court found that the Board's decision was unreasonable; the matter was remitted to the Board for a re-hearing.

 

The Court found that the Board, on the whole, failed to consider evidence pertaining to similar farm businesses in similar circumstances.  The Board's decision was not justified or transparent and reasonable because of that.  The Court wrote:

Although it is important to conduct an evaluative function that addresses the "good neighbour" principle, etc., the BC legislature chose clear and specific features of normal farm practices, including "accepted", "established", and "followed" practices.  This language is a clear and specific direction from the legislature that instructs the [Board] that it can supplement but not substitute certain evidence - e.g. provincial guidelines or the "good neighbour" principle - in place of evidence that demonstrates "proper and accepted customs and standards as established and followed by similar farm businesses under similar circumstances".  Indeed, the [normal farm practices legislation] circumscribes the evidence the [Board] must consider in making its final determination of normal farm practice.

and,

The legislature was clear when it defined the normal farm practice as a practice consistent with "proper and accepted customs and standards as established and followed by similar farm businesses under similar circumstances"; the [Board] was required to determine whether practices and by laws comport with those established practices.

Read the decision at: Holt v. Farm Industry Review Board.

Chicken farmer fined over improper disposal of dead animals

From the Ministry of the Environment:

Thorold Resident Fined $7,000 For Improper Farming Practices

St. Catharines – A Thorold resident was fined $7,000 for failing to comply with a ministry order and for failing to properly dispose of dead farm animals.

“Environmental protection legislation protects communities and the environment. Breaking these rules can result in serious penalties and is an offence the ministry takes very seriously,” said Environment Minister Jim Bradley.

Tom Sarantakos operates a chicken farm located in Thorold. The chickens are raised for about eight to nine weeks and are then taken for slaughter.

The ministry received a number of complaints of manure runoff, foul odours, excessive insects and escaping chickens. Following a number of inspections by ministry staff, Mr. Sarantakos was issued a ministry order requiring him to take various measures to manage the manure on the farm. The final order required Mr. Sarantakos to provide proof of manure removal. Mr. Sarantakos failed to comply with the order.

Mr. Sarantakos lives at a second farm location. An inspection of this farming operation revealed numerous dead farm animals, namely chickens that appeared to have died well in excess of the 48 hour duration permitted, following the death of an animal for proper disposal.

Mr. Sarantakos was fined a total of $7,000 plus victim fine surcharges of $1,750 and given 90 days to pay the fine.

OMAFRA proposing mandatory livestock disease reporting

The Ontario Ministry of Agriculture, Food and Rural Affairs (OMAFRA) is developing two regulations under the Animal Health Act, 2009 (the Act):

1. Reporting – A proposed Minister’s regulation would address the mandatory reporting of hazards (including animal diseases) by laboratories, as well as certain findings made by veterinarians; and
2. Compensation – A proposed Lieutenant Governor in Council regulation would provide a legal framework for providing financial compensation under the Act.

OMAFRA is asking for feedback on its proposals.  The proposed reporting regulation would designate a number of hazards, such as animal diseases, as immediately notifiable hazards and periodically notifiable hazards, which laboratories would have to report to OMAFRA. The list of specific diseases appears in detail in a discussion paper posted on the OMAFRA website. To promote greater coordination with the Canadian Food Inspection Agency (CFIA), laboratories would have to provide notice to OMAFRA of any animal diseases in terrestrial animals (including amphibians and birds) that are also reportable or immediately notifiable under federal regulations made under the Health of Animals Act (Canada).  However, the CFIA would lead in responding to the most significant of these reports, including where foreign animal diseases are indicated. A number of Ontario-specific hazards have also been proposed for reporting to OMAFRA by laboratories that are not normally priorities for the CFIA, but are still of local concern in the province.

At this time, the proposed reporting regulation would not require individual livestock and poultry producers to report any knowledge or suspicion of a hazard, such as an animal disease, to OMAFRA. The proposed regulation would not affect any existing reporting obligations they may have to the CFIA.

In addition to designating hazards under the Act, the proposed regulation would also set out specific findings that veterinarians would be required to report that are encountered while the veterinarian is engaged in the practice of veterinary medicine. Reporting these findings is designed to capture atypical animal health situations, such as high mortality in a herd or flock, which could indicate the presence of a significant hazard (such as a toxic substance in animal feed or an emerging strain of a disease) at the earliest possible opportunity.

The proposed regulation would also set out reporting requirements, including the information that must be provided by operators of laboratories and veterinarians, as well as the time in which such reports must be made.

In some cases, the Chief Veterinarian for Ontario (CVO) may need to order destruction of an animal or animal-related thing, such as feed, in order to reduce the possible spread of a hazard. In these unusual cases, the Act authorizes the Minister to provide financial compensation for certain losses stemming from the order at his discretion. The proposed compensation regulation would provide clarity, transparency and assurance to stakeholders that a legal framework exists to address, at the Minister’s discretion some or all the direct losses incurred by persons who have complied with orders issued under the Act.

OMAFRA is seeking input on these regulatory proposals.  The proposal has been posted for a 45 day public review and comment period starting March 09, 2012.  Comments can be directed to:

Christy Taglieri
Senior Policy Advisor
Ministry of Agriculture, Food and Rural Affairs
Policy Division
1 Stone Road West
Floor 2 SW
Guelph Ontario
N1G 4Y2
Phone: (519) 826-3832
Fax: (519) 826-3492

Comments can be submitted on-line at: On-line Submission.

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).

Appeal Court agrees auctioneer not liable for selling cattle subject to security agreement

The Saskatchewan Court of Appeal has upheld the dismissal of a claim against an auctioneer for the tort of conversion for selling livestock that was subject to a security interest.  A secured creditor, Lloydminster Credit Union Limited, brought an action against an auction company, 324007 Alberta Ltd., which operates Heartland Livestock Services. The Credit Union had a security agreement, securing demand and other loans on livestock, with Robert Burroughs, a farmer.   Mr. Burroughs sold the livestock, using Heartland’s auction services, and did not account for the proceeds to the Credit Union.  The Credit Union sued Heartland in conversion.

Following a trial to resolve the dispute, Justice Pritchard of the Court of Queen’s Bench found that Heartland acted as an agent or intermediary between Mr. Burroughs and the buyers at the auction sale and could not be found liable for conversion in an action brought by the Credit Union.  Justice Pritchard held, in the alternative, that the Credit Union was unable to sustain an action in conversion against the auctioneer because the Credit Union was not entitled to immediate possession of the livestock covered by the security agreement.  As part of this latter proposition, the learned trial judge found that the Credit Union had consented to the sale of the livestock, albeit on the condition that the proceeds be deposited with it.

The Appeal Court upheld the trial judge's decision, but only on the basis that the Credit Union had consented to the sale of the livestock.  Where consent to the disposition of property can be proven, no liability in conversion can be found.  Conversion is an intentional tort (converting someone else's property to your use), and consent is often referred to as a "defence" because the defendant typically bears the burden of proving that the plaintiff had consented to the interference with the property. 

Read the decision at: Lloydminster Credit Union Limited v 324007 Alberta Ltd.

Ontario Wildlife Damage Compensation Program

OMAFRA has released its Ontario Wildlife Damage Compensation Program Guidelines as part of the joint Federal-Provincial Growing Forward program.  The program provides for compensation for damage to livestock and poultry by "wildlife", which is defined as "undomesticated animals as designated by the Minister in Schedule "D" in this Program Guideline".  The list includes coyotes, wolves, bears, foxes, cougars, eagles, crows, turkey vultures, raccoons, etc.

The program has been introduced through changes to the Livestock, Poultry and Honey Bee Protection Act, which has now been renamed the Protection of Livestock and Poultry from Dogs Act.  Although the Act applies to damage caused to livestock and poultry by wildlife generally, its title refers to dogs specifically because the Act addresses damage caused by dogs in some detail, including certain rights to kill dogs who have caused or threaten to cause damage to livestock or poultry.  The Act also imposes an obligation on the owner of a dog who has killed or injured livestock or poultry to destroy the dog or cause it to be destroyed within 48 hours of acquiring knowledge of the killing or injury.

The changes to the Act were publicized by OMAFRA on the Environmental Bill of Rights Registry and received some 244 comments representing a wide range of points of view, many of which can be viewed at: EBR Comments. 

Appeal Tribunal rules Ontario vet resigned, not suspended

Dr. Ken Allan, of Perth, Ontario, was a licensed practising veterinarian from 1963 until September 19, 2009. In early January 2010, he applied for a Class 1 Licence under the Livestock Medicines Act (the Act) and was issued a licence on January 8, 2010. On May 14, 2010, the Director appointed under the Act issued a letter to Dr. Allan provisionally suspending his Class 1 Licence and advising that a hearing would be scheduled to determine whether his licence would be further suspended or revoked. On July 7, 2010, the Director appointed under the Act held a hearing to consider whether to further suspend or revoke Dr. Allan's licence.  Following a hearing in Dr. Allan's absence, the Director made various findings including a finding that Dr. Allan had sold livestock medicines other than from his place of business and had obstructed Ministry inspectors in the performance of their duties.

On the basis of those findings, the Director revoked Dr. Allan's licence under the Act.  He appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal, which held a hearing de novo (meaning that the Appeal Tribunal heard all of the evidence as if it were the Director hearing the case fresh).  The Tribunal found that Dr. Allan had actually given up his licence before he received notice of it having been revoked by the Director.  Further, the Tribunal found that the Ministry had failed to provide Dr. Allan with a warning letter in accordance with its policy in advance of seeking the revocation of his licence.  For that and other related reasons, the Tribunal ruled that the original hearing by the Director should not have taken place and the findings made there must be overruled.

After considering the evidence before it, the Tribunal ruled as follows:

1. That Tribunal accepts the evidence of Dr. Allan's voluntary resignation from the licensing system, therefore the Tribunal will not order the reinstatement of his licence.
2. That all prescription and livestock medicines seized shall be returned to Dr. Allan; and, if they are expired, have been destroyed, or disposed of, then he shall be compensated for all said livestock medicines and prescription medicines.
3. That Dr. Allan's personal items and written records removed during the execution of the search warrant be returned forthwith.
4. That the Tribunal accepts the evidence that Dr. Allan voluntarily resigned from the licensing system before his licence was suspended or revoked, and therefore the Ministry shall not consider Dr. Allan's voluntary resignation from the licensing
   system negatively, should he reapply for a licence under the Act.

Read the decision at: Ken Allan vs. Director.

Ontario Water Source Protection Plans

Conservation Authorities across Ontario are completing Assessment Reports related to water source protection planning.  Some reports are still at the draft stage, but most have passed through a 35-day public consultation period (noted as "proposed" below).  Several reports have been approved.  To view the status of the assessment report in your source protection area, click on the following link: Source Protection.  There are links there to the reports themselves as well.

Ausable Bayfield Conservation Authority ProposedAR
Cataraqui Region Conservation Authority ProposedAR
Catfish Creek Conservation Authority ApprovedAR
Central Lake Ontario Conservation Authority ProposedAR
Conservation Halton ProposedAR
Credit Valley Conservation ProposedAR
Crowe Valley Conservation Authority ProposedAR
Essex Region Conservation Authority ProposedAR
Ganaraska Region Conservation Authority ProposedAR
Grand River Conservation Authority ProposedAR
Grey Sauble Conservation Authority ProposedAR
Hamilton Region Conservation Authority ProposedAR
Kawartha Conservation ProposedAR
Kettle Creek Conservation Authority ApprovedAR
Lake Simcoe Region Conservation Authority DraftAR
Lakehead Region Conservation Authority ProposedAR
Long Point Region Conservation Authority ProposedAR
Lower Thames Valley Conservation Authority ProposedAR
Lower Trent Conservation ProposedAR
Maitland Valley Conservation Authority ProposedAR
Mattagami Region Conservation Authority ApprovedAR
Mississippi Valley Conservation ProposedAR
Niagara Peninsula Conservation Authority ProposedAR
Nickel District Conservation Authority ProposedAR
North Bay-Mattawa Conservation ProposedAR
Nottawasaga Valley Conservation DraftAR
Otonabee Conservation ProposedAR
Quinte Conservation ProposedAR
Raisin Region Conservation Authority DraftAR
Rideau Valley Conservation Authority ProposedAR
Saugeen Conservation ProposedAR
Sault Ste. Marie Region Conservation Authority ProposedAR
South Nation Conservation Authority DraftAR
St. Clair Region Conservation Authority ProposedAR
Toronto and Region Conservation ProposedAR
Upper Thames River Conservation Authority ProposedAR

Ontario livestock trucker fined for obstructing inspector attempting to euthanize cow

A Justice of the Peace in Cayuga, Ontario has convicted Frank DeBoer of one count of obstructing a veterinary inspector under the Livestock Community Sales Act.  The court found that DeBoer obstructed a veterinary inspector in the course of her duties under the LCSA at the Hagersville Livestock Auction. The inspector was prevented from euthanizing a lame cow that was not medically fit to be transported without undue suffering. The offence occurred on or about August 31, 2009.  Justice of the Peace Dan MacDonald sentenced DeBoer to a fine of $800 plus a victim fine surcharge of $125.

The Better Farming website has a follow-up story on this court case which raises some questions about whether or not the animal required euthanization at all.  Apparently the animal was returned to its owner, had its hoof trimmed, and was sold ten days later at auction without incident.  Read the Better Farming story at: trucker-obstructed-livestock-inspector-court-rules.

"Devastating admissions" by defendant in cattle case leads to summary judgment

Though the test may vary from province to province, a judge may grant summary judgment generally when there is no genuine issue for trial.  That is, if there is no legal issue that needs to be determined at trial in order to dispose of a case, one of the parties to a lawsuit may apply to the Court to have the case decided by way of a motion for summary judgment.

In a recent decision on a summary judgment motion brought by the plaintiff, Master Harrison of the Manitoba Court of Queen's Bench found that "devastating" admissions made by the defendant in the case during examinations for discovery were determinative of the case.  For that reason, there would be no purpose in going to trial and summary judgment was granted.

The case in question involved an "arrangement" where the plaintiff would receive on a regular basis requests or orders from the defendant to purchase cattle.  The plaintiff would go out and buy the cattle, usually at auction, and then deliver the cattle to the defendant and render bills to the defendant.  Eventually the defendant refused to pay and the arrangement ended.  The plaintiff sued for some $80,000.  The defendant counter-sued for $12,000.

Summary judgment was granted in the plaintiff's action because the defendant admitted during examinations for discovery that he had acknowledged the debt to the plaintiff and told the plaintiff that he would pay:

Yes. I offered him that because I lost so much money. And I said, ‘Okay. You know what? I will pay you so much a month until it’s paid, until you are paid.’ But that’s it for us. We are done.”

On the defendant's countersuit, the Court could not grant summary judgment.  The Master ruled that:

This court is not prepared to spend twenty pages of time and space in terms of a detailed analysis of the issues arising in the counterclaim. The evidence of the corporate representatives of the parties is so conflicted that only a trial, in my opinion, would resolve the substantial credibility issues outstanding within the counterclaim. It is true that the affidavit evidence before the court regarding the faxing of invoices concerning the counterclaim cattle does put the corporate defendant in an unfavourable light. However, the overall calibre of the said evidence is simply not strong enough show that the plaintiff has met the legal burden.

Read the decision at: ADJ Livestock v 4486413 Manitoba Ltd.

Alberta Court of Appeal upholds dismissal of defective feed claim

The Alberta Court of Appeal has upheld the dismissal of an action by Tom and Kirk Seaborn of Crooked Post Shorthorns.  The Seaborns had claimed that feed manufactured by Masterfeeds Inc. had caused health problems in their breeding cattle, eventually requiring them to sell the cattle for slaughter and to purchase new breeding stock at a loss.

In dismissing the appeal, the Court of Appeal paid special attention to the following factual findings made by the trial judge:

(1) the failure of the Seaborns to immediately seek veterinary attention despite the alleged extreme symptoms shown by the cattle: para. 29;

(2) the failure of the veterinarians who saw some of the CPS cattle in late March 2001 to testify: para. 21; and

(3) the lack of results from tests to indicate toxins in feed or disease in the cattle: para. 22.

On the basis of these findings, the trial judge ruled that the Seaborns exaggerated the symptoms experienced by their cattle.  Also, the trial judge found that they failed to establish that the feed from Masterfeeds Inc. actually caused the damage that was alleged.  Had the Seaborns been successful in their claim, the trial judge would have awarded more than $500,000 in damages.

The Court of Appeal upheld all of the findings of the trial judge and dismissed the appeal.  Read the Court of Appeal decision at: Crooked Post Shorthorns v. Masterfeeds Inc.

Read the trial decision at: Crooked Post Shorthorns trial.

Sales barn operator convictions termed a ‘coincidence’

Better Farming reports:

The manager of regulatory compliance in the Ontario Ministry of Agriculture, Food and Rural Affairs denies that there has been a spate of fines against sales yard operators and calls it a “coincidence” that sales barn operators in New Liskeard and in Aylmer were convicted of similar offenses within a couple of weeks of each other.

“We don’t get a lot of incidents where they end up in court, that’s for sure,” Rodger Dunlop says.

On Feb. 25, Bill Stewart, manager of the Temiskaming Livestock Exchange was fined in the Ontario Court of Justice in Haileybury after pleading guilty to one count under the Livestock Community Sales Act and two counts under the Food Safety and Quality Act. The charges related to October and November 2009 incidences involving moving a sick or injured cow in an inhumane manner, failing to euthanize a fallen animal promptly and failing to dispose of other livestock within 48 hours of death.

Read the rest of the article at: Better Farming.  You can also find links to Better Farming headlines on the side bar of this blog.

CBC News - Manitoba - Coyotes, wolves blamed in livestock deaths

CBC News - Manitoba - Coyotes, wolves blamed in livestock deaths

Coyotes and wolves are being blamed for recent livestock deaths on a farm in the Interlake area of Manitoba.