Canada (Agriculture and Agri-Food) v. Alberta Wapiti Products Cooperative Ltd.

Canada (Agriculture and Agri-Food) v. Alberta Wapiti Products Cooperative Ltd. Court (s) Database Federal Court of Appeal Decisions Date 2007-03-14 Neutral citation 2007 FCA 110 File numbers A-42-06 Notes Digest Decision Content Date: 20070314 Docket: A-42-06 Citation: 2007 FCA 110 CORAM: DESJARDINS J.A. LÉTOURNEAU J.A. RYER J.A. BETWEEN: MINISTER OF AGRICULTURE AND AGRI-FOOD and CANADIAN FOOD INSPECTION AGENCY Appellants and ALBERTA WAPITI PRODUCTS COOPERATIVE LTD. Respondent Heard at Edmonton, Alberta, on March 14, 2007. Judgment delivered from the Bench at Edmonton, Alberta, on March 14, 2007. REASONS FOR JUDGMENT OF THE COURT BY: LÉTOURNEAU J.A. Date: 20070314 Docket: A-42-06 Citation: 2007 FCA 110 CORAM: DESJARDINS J.A. LÉTOURNEAU J.A. RYER J.A. BETWEEN: MINISTER OF AGRICULTURE AND AGRI-FOOD and CANADIAN FOOD INSPECTION AGENCY Appellants and ALBERTA WAPITI PRODUCTS COOPERATIVE LTD. Respondent REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Edmonton, Alberta, on March 14, 2007) LÉTOURNEAU J.A. [1] This is an appeal from a decision of O’Keefe J. of the Federal Court (judge) rendered on October 28, 2005. The judge allowed the respondent’s application for judicial review. He granted a mandamus and issued a declaration that the Minister of Agriculture and Agri-Food (Minister) and the Canadian Food Inspection Agency (CFIA) have authority to consider a claim for compensation under section 52 of the Health of Animals Act, S.C. 1990, c. 21 for the destroyed elk meat. [2] The appeal was heard in the morning and adjourned for judgment in the afternoon. The parties were informed that a summary of the facts in issue would be added to the written version of the reasons for judgment delivered orally. The facts in issue [3] The judge conveniently summarized them in his reasons for judgment. Paragraphs 3 to 21 of his reasons contain sufficient information for the purpose of this appeal: [3] The applicant, Alberta Wapiti Products Cooperative Ltd. (the "applicant") is a cooperative incorporated in 2001 pursuant to the Alberta Co-operative Associations Act, R.S.A. 2000, c. C-28 and is composed of a membership involved in the production of elk, which is also known as wapiti and cervids. [4] The applicant entered into agreements to purchase elk from its members. The members of the cooperative were required to sign a Delivery Rights Contract, outlining their obligations, including the delivery of one elk per year for slaughter. [5] The applicant entered into a contract with Bouvry Exports Calgary Ltd. ("Bouvry") to slaughter its elk at a facility in Fort Macleod, Alberta. Bouvry's role was also to assist the applicant in marketing the elk meat for a percentage of the profit. Bouvry holds a licence to operate a registered establishment under the Meat Inspection Act, R.S.C. 1985, c.25 (1st Supp.) (the "Meat Inspection Act"). [6] Chronic wasting disease ("CWD") is a transmittable spongiform encephalopathy ("TSE") which causes a progressive fatal neurological disease in deer and elk. It is believed to be caused by an abnormal protein called prions, which affects the brains of elk. CWD is similar to bovine spongiform encephalopathy in cattle. It has not been conclusively shown that TSE poses a health risk to humans. [7] Although CWD can be tentatively diagnosed based on clinical signs, the presence of CWD can only be confirmed by laboratory examination of brain tissue from the infected elk after it is dead. [8] CWD in elk has been a reportable disease under both the Health of Animals Act and the Reportable Diseases Regulations, SOR/91-2, since April 2001. [9] The respondent follows a policy whereby it will not permit products or by-products contaminated with CWD to enter the human or animal food chain, notwithstanding the lack of conclusive proof that it poses a health risk. [10] In 2001, the applicant either developed, or entered into, a CWD surveillance and testing program in conjunction with Alberta Agriculture, Food and Rural Development ("AAFRD"), pursuant to which the heads of slaughtered elk were taken to AAFRD's Lethbridge laboratory so the brains and spinal cords could be tested for CWD. The elk carcasses or meat were to be held pending release of test results. [11] In February 2002, the applicant purchased 155 elk from its members for slaughter. Two of the elk were purchased from Bonnie Walter ("Walter"). The elk had been inspected by a veterinarian and certified as not under any animal health restrictions. The elk were delivered to the Bouvry plant for slaughter. By letter dated February 26, 2002, AAFRD advised the applicant that all carcasses from the proposed slaughter were to be held pending the results of a CWD. [12] The 155 elk were slaughtered by Bouvry on March 7, 2002 and the elk heads and spinal cords were delivered to the Lethbridge laboratory for CWD testing on that same day. Both ante-mortem and post-mortem examinations of the elk carcasses had been done at the Bouvry plant by CFIA inspectors, as required by the Meat Inspection Regulations, SOR/90-288 (the "Meat Inspection Regulations"). [13] On March 8, 2002, Bouvry processed 60 of the elk carcasses into various cuts of meat, and some were ground into hamburger. The remaining 95 carcasses were processed on March 11, 2002. [14] Unbeknown to the applicant at the time, cuts of meat resulting from the two processing dates were shipped from the Bouvry premises after the processing, but before the results of the CWD testing were known. [15] On March 26, 2002, AAFRD verbally advised CFIA that one of the elk sent to the laboratory, which was one of the Walter elk, had testified [sic] positive for CWD. The Walter elk was among the 95 elk processed on March 11, 2002. [16] CFIA began an immediate program of recall to track down and recover the shipped elk meat from the March 11 batch. CFIA issued a number of detention orders to hold the meat products that had been shipped. Some orders stated that they were issued under authority of the Meat Inspection Act, while others indicated that they were issued under authority of the Health of Animals Act. CFIA later noted that in its opinion, all detention orders should in fact have been made under the authority of the Meat Inspection Act. [17] On the recommendation of Dr. Karen Dodds ("Dr. Dodds"), Director General of Health Canada, Dr. Sturm of CFIA ordered the meat from the 95 elk processed on March 11 to be destroyed (ultimately by incineration). The meat processed on March 8 was not ordered to be destroyed, and is not in issue here. [18] The only elk identified as CWD positive was one of the Walter elk. The applicant stated that the reason the additional 94 elk processed that day were ordered to be destroyed was because the meat was in contact with, or in close proximity to, the meat from the one infected elk. In some cases, meat from the other elk had been mixed together with the meat from the Walter elk and could not be distinguished. The respondents contended that as the cuts of meat from the infected elk could not be identified or isolated from the balance of the March 11 production, CFIA determined that the entirety of the meat processed on March 11 was to be destroyed. [19] In May 2002, CFIA inspectors attended the Walter farm and ordered the elk herd destroyed. They were removed from her farm and destroyed during June and July of 2002. CFIA notified Walter that she may be entitled to compensation for the destroyed elk pursuant to subsection 51(1) of the Health of Animals Act. She was later awarded compensation. [20] The applicant became aware during the summer of 2003 that Walter had been offered compensation for the destroyed elk. The applicant first received documentation related to the incineration of the meat product in or around September 2003. [21] On March 3, 2004, the applicant sent a letter to the Minister requesting compensation pursuant to section 52 of the Health of Animals Act for the destroyed meat from the 95 elk. On March 9, 2004, the applicant sent a similar letter to the president of CFIA. The respondents did not respond in writing to the applicant's request for compensation. During cross-examination on her affidavit, Shirley Toms ("Toms"), the area operations coordinator of Western operation for CFIA, informed the applicant that CFIA is of the opinion that it has no mandate to award compensation in the circumstances of this case. [4] The only factual element which the respondent contested from this summary is the statement in paragraph 17 that the recommendation of Dr. Dodds that the meat products be destroyed applied to the 95 elk. The respondent submitted in its memorandum of fact and law that Dr. Dodds’ recommendation was directed only to the meat products of the single infected animal. As we shall see, nothing in the end turns on that. Analysis of the decision [5] We are of the view that the judge made no error that requires or justifies our intervention. [6] In coming to the conclusion that he did, the judge made, at paragraphs 68 to 79 of his reasons for judgment, the following findings of fact: a) there was no evidence that the meat products processed from the 94 non-infected animals were not fit for human consumption; and b) the CFIA’s decision to direct that all meat processed on March 11, 2002 be destroyed was made because the meat from the infected animal had come into potential contact or was in close proximity to the meat from the other elk processed on that date. [7] The appellants take issue with the first finding. They contend that the judge failed to take into account the fact that it was impossible to separate the processed meat products of the 95 elk and, therefore, to identify the meat that came from the contaminated animal. Thus, they say, according to the evidence, all the meat products were unfit for human consumption. [8] This complaint of the appellants, even if it had merit, has no bearing on the conclusion that we have reached in this appeal. However, we believe that the appellants are putting a strained construction of what the judge wrote at paragraph 76 of his reasons for judgment: [76] In addition to the one infected animal that was processed on March 11, 94 other animals were processed that were not infected with a disease at the time they were killed. With respect to those 94 animals, there is no evidence to show that the meat products processed from these animals were not fit for human consumption (definition of “edible”). I will not deal with the outcome if such evidence had been available. The reason for the destruction order with respect to the meat products from these 94 animals was that the meat product had potentially come in contact or was in close proximity to the meat product from the one infected animal. [9] The appellants are taking the impugned sentence out of its context. When read in context as it should be, it is clear that the judge was referring to the state of the 94 uncontaminated animals before they were killed. The meat products of these animals were edible up to and until they were mixed up and put in contact with the meat of the contaminated animal. His second finding of fact confirms this view. [10] The judge went on to conclude that paragraph 48(1)(b) of the Health of Animals Act applied in the present instance. Paragraph 48(1)(b) reads: 48. (1) The Minister may dispose of an animal or thing, or require its owner or any person having the possession, care or control of it to dispose of it, where the animal or thing (a) is, or is suspected of being, affected or contaminated by a disease or toxic substance; (b) has been in contact with or in close proximity to another animal or thing that was, or is suspected of having been, affected or contaminated by a disease or toxic substance at the time of contact or close proximity; or 48. (1) Le ministre peut prendre toute mesure de disposition, notamment de destruction, — ou ordonner à leur propriétaire, ou à la personne qui en a la possession, la responsabilité ou la charge des soins, de le faire — à l’égard des animaux ou choses qui : a) soit sont contaminés par une maladie ou une substance toxique, ou soupçonnés de l’être; b) soit ont été en contact avec des animaux ou choses de la catégorie visée à l’alinéa a) ou se sont trouvés dans leur voisinage immédiat; [Emphasis added.] [11] As it can be seen from paragraphs 79 and 80 of his reasons for judgment, he came to that conclusion through an interpretation of the word “thing” in paragraph 48(1)(b). In his view, that word “is a broad enough term to include meat products so that the facts of the present case fit paragraph 48(1)(b)” of the Act. He then applied that provision and found in it CFIA’s authority to order the destruction of the meat products from the 94 animals. [12] The appellants argued that the Act has no application in the present instance. Rather, the matter is governed by the Meat Inspection Act, R.S., 1985, c. 25 (1st Supp.) and the Meat Inspection Regulations, 1990, SOR/90-28. Under these Regulations, sections 2, 9 and 54, meat product that is not edible shall be “identified as condemned”. Pursuant to the definitions of “edible” and “condemn”, a meat product that is inedible is a meat product that is unfit for use as human food. [13] Subsection 54(1) of the Regulations determines the fate of condemned meat products. The provision reads: 54. (1) Every meat product that is condemned in a registered establishment, other than a condemned meat product sent by an inspector for laboratory examination or a meat product referred to in subsection 85(2), shall be identified as condemned, conveyed immediately to the inedible products area of the establishment and (a) rendered or otherwise treated to destroy pathogenic and potentially pathogenic microorganisms; (b) denatured and conveyed to another registered establishment or to a rendering plant for the rendering or treatment referred to in paragraph (a); (c) in the case of meat products judged by an official veterinarian not to be harmful to the health of animals and permitted by the official veterinarian to be used as animal food, denatured and used for animal food; (d) identified for use for medicinal purposes, with the consent of an official veterinarian; (e) in the case of meat products that are judged by an official veterinarian to be unacceptable for rendering due to dangerous residues or for other reasons, disposed of in accordance with local environmental requirements; or (f) disposed of pursuant to subsection 48(1) of the Health of Animals Act. 54. (1) Le produit de viande qui est condamné dans l’établissement agréé, sauf celui envoyé par l’inspecteur au laboratoire pour examen ou celui visé au paragraphe 85(2), doit être désigné comme étant condamné, être transporté sans délai dans l’aire des produits incomestibles et être, selon le cas : a) fondu ou autrement traité de façon à détruire tous les microorganismes pathogènes ou potentiellement pathogènes; b) dénaturé et envoyé à un autre établissement agréé ou à un fondoir pour y être fondu ou traité conformément à l’alinéa a); c) dénaturé et utilisé comme aliment pour animaux, si le médecin vétérinaire officiel le juge sans risque pour la santé des animaux et qu’il en autorise l’utilisation comme aliment pour animaux; d) désigné, avec l’autorisation du médecin vétérinaire officiel, comme étant destiné à des fins médicinales; e) détruit en conformité avec les exigences environnementales locales, si le médecin vétérinaire officiel le juge impropre pour être fondu à cause de résidus dangereux ou de toute autre raison; f) soumis aux mesures de disposition prises en application du paragraphe 48(1) de la Loi sur la santé des animaux. [Emphasis added.] [14] Paragraph 54(1)(f) incorporates by reference subsection 48(1) of the Health of Animals Act. It states that the meat products can be disposed of by the Minister pursuant to that Act. Section 2 of the said Act defines the word “dispose” as including “destroy”. [15] The evidence in the present case reveals that the meat products were disposed of by the Minister or under his authority by way of destruction because they had been in contact with or in close proximity to other meat affected or contaminated by a disease. On the basis of that evidence and section 54 of the Regulations, it was open to the judge to conclude that the disposal of the meat products occurred pursuant to subsection 48(1) of the Health of Animals Act. [16] The appellants argue that, even if this is the case, the respondent is not entitled to submit a claim for compensation under section 52 of the Health of Animals Act and, consequently, that the judge erred in applying that section to the facts of this case. We disagree. [17] Section 52 allows for a possible compensation to the owner of “a thing that is destroyed under the Act”. The meat products were disposed of pursuant to this Act and destroyed under this Act. The judge, in our view, rightly and properly concluded that section 52 applied. [18] As for the remedies granted to the respondent, i.e. a mandamus and a declaration that the Minister and CFIA have the authority under section 52 of the Act to order that compensation be paid, we are satisfied that the judge properly exercised his discretion and that the remedies were justified at law. Conclusion [19] For these reasons, the appeal will be dismissed with costs. “Gilles Létourneau” J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-42-06 STYLE OF CAUSE: MINISTER OF AGRICULTURE AND AGRI-FOOD and CANADIAN FOOD INSPECTION AGENCY v. ALBERTA WAPITI PRODUCTS COOPERATIVE LTD. PLACE OF HEARING: Edmonton, Alberta DATE OF HEARING: March 14, 2007 REASONS FOR JUDGMENT DESJARDINS J.A. OF THE COURT BY: LÉTOURNEAU J.A. RYER J.A. DELIVERED FROM THE BENCH BY: LÉTOURNEAU J.A. APPEARANCES: Mr. Robert Drummond FOR THE APPELLANTS Mr. Brian Kaliel FOR THE RESPONDENT SOLICITORS OF RECORD: John H. Sims, Q.C. Deputy Attorney General of Canada FOR THE APPELLANTS CORBETT SMITH BRESEE Edmonton, Alberta FOR THE RESPONDENT