2005 FCA 59
A-493-03
Attorney General of Canada (Canadian Food Inspection Agency) (Applicant)
v.
Porcherie des Cèdres Inc. (Respondent)
A-494-03
Attorney General of Canada (Canadian Food Inspection Agency) (Applicant)
v.
Serbo Transports Inc. (Respondent)
Indexed as: Canada (Attorney General) v. Porcherie des Cèdres Inc. (F.C.A.)
Federal Court of Appeal, Desjardins, Nadon and Pelletier JJ.A.--Montréal, December 8, 2004; Ottawa, February 11, 2005.
Agriculture -- Judicial review of Review Tribunal (Agriculture and Agri-food) decisions respondents not violating Health of Animals Regulations, s. 138(2)(a) when loading, transporting seriously injured hog in motor vehicle -- S. 138(2)(a) prohibiting transportation of animal that by reason of illness, injury cannot be transported without undue suffering -- Tribunal erred in finding "undue" meaning "excessive", and requiring Canadian Food Inspection Agency to demonstrate loading/transportation causing suffering animal would not have otherwise endured -- Injured, suffering animal not loadable, transportable because such action would cause unjustified, unreasonable suffering -- Here, hog not transportable without undue suffering -- Applications allowed.
Construction of Statutes -- Words "without undue suffering" in Health of Animals Regulations, s. 138(2)(a), based on reasonable interpretation in context of relevant legislation, meaning: "undeserved", "unwarranted", "unjustified", "unmerited" -- Loading, transporting injured, suffering animal thus prohibited as such loading, transportation would cause "unjustified", "unreasonable" suffering to animal.
These were applications for judicial review of two decisions of the Review Tribunal constituted under the Canada Agricultural Products Act that the respondents had not violated paragraph 138(2)(a) of the Health of Animals Regulations when they loaded and transported a seriously injured hog in a motor vehicle. At issue in this case was the interpretation of the words "without undue suffering" found in paragraph 138(2)(a) of the Regulations. The Tribunal found that the word "undue" had the same meaning as the word "excessive", and that the loading and transportation of the hog could not have aggravated its injuries and thereby caused it excessive suffering. The Tribunal reached this conclusion even though it found that the hog was suffering before it was loaded and transported. Essentially, the Tribunal was of the view that the Agency had to demonstrate that the loading and/or transportation of the hog had caused some suffering that the animal would not have endured had it not been for this loading or this transportation.
Held, the applications should be allowed.
The Tribunal misinterpreted the words "without undue suffering" found in paragraph 138(2)(a). The Tribunal's interpretation led to the absurd result that would allow the loading and transportation of suffering animals. The clear purpose of the Regulations is to protect the health of animals. A review of a few definitions from English and French dictionaries of the word "undue" ("indu[e]" in French), led to the conclusion that these words, in the context of the relevant legislation and Regulations, could only mean "undeserved", "unwarranted", "unjustified", "unmerited". In light of this interpretation, an injured and suffering animal cannot be loaded and transported, since any such loading or transportation will cause "unjustified" and "unreasonable" suffering to the animal. This interpretation appears to have been adopted by the Tribunal in a fair number of its decisions involving paragraph 138(2)(a). In the instant case, but for its error in interpretation, the Tribunal would surely have found that the Agency had established that the hog could not be transported without undue suffering.
statutes and regulations judicially
considered
Agriculture and Agri-Food Administrative Monetary Penalties Act, S.C. 1995, c. 40, ss. 4(1)(a), 7(1).
| Canada Agricultural Products Act, R.S.C., 1985 (4th Supp.), c. 20. |
| Health of Animals Act, S.C. 1990, c. 21, s. 64(1)(i). |
| Health of Animals Regulations, C.R.C., c. 296, ss. 1 (as am. by SOR/91-525, s. 2), 138(2)(a) (as am. by SOR/97-85, s. 76). |
cases judicially considered
applied:
Canada (Canadian Food Inspection Agency) v. Westphal-Larsen (2003), 232 D.L.R. (4th) 486; 312 N.R. 378; 2003 FCA 383.
considered:
Ferme A. Riopel et Fils Inc. v. Canada (Canadian Food Inspection Agency), [2003] D.C.R.A.C. No. 17 (QL); Longhorn Farms Ltd. v. Canada (Canadian Food Inspection Agency), [2001] C.A.R.T.D. No. 4 (QL); Grenier v. Canada (Canadian Food Inspection Agency), [2003] D.C.R.A.C. No. 29 (QL); Transport Gaétan Pellerin Inc. v. Canada (Agricultural Review Tribunal), [2004] D.C.R.A.C. No. 9 (QL); Transport Guérard et Fils Inc. v. Canada (Agricultural Review Tribunal), [2003] D.C.R.A.C. No. 51 (QL).
authors cited
Dictionary of Synonyms and Antonyms. New York: Oxford University Press, 1999, "undue".
Dictionnaire des synonymes et des antonymes. Québec: Éditions Fides, 2003, "indu".
Nouveau Petit Robert: dictionnaire alphabétique et analogique de la langue française. Paris: Dictionnaires Le Robert, 1993 "indu".
Oxford Compact Thesaurus, 2nd ed. New York: Oxford University Press, 2001, "undue".
Oxford English Dictionary, 2nd ed. Oxford: Clarendon Press, 1989, "undue".
Roget's International Thesaurus, 5th ed. New York: HarperCollins, 1992, "undue".
Thésaurus Larousse. Paris: Larousse, 1999, "indu".
APPLICATIONS for judicial review of two decisions ([2003] D.C.R.A.C. No. 30 (QL); [2003] D.C.R.A.C. No. 31 (QL)) wherein the Review Tribunal (Agriculture and Agri-food) found that the respondents had not violated paragraph 138(2)(a) of the Health of Animals Regulations when they loaded and transported a seriously injured farm animal in a motor vehicle. Applications allowed.
appearances:
Sébastien Gagné for applicant.
Claude Lapierre for respondent.
solicitors of record:
Deputy Attorney General of Canada for applicant.
Tremblay, Brosseau, Fleury, Savoie, s.e.n.c., Montréal, for respondent.
The following is the English version of the reasons for judgment rendered by
[1]Nadon J.A.: These are applications for judicial review of two decisions made on September 22, 2003, by the Review Tribunal (the Tribunal) constituted under the Canada Agricultural Products Act, R.S.C., 1985 (4th Supp.), c. 20.
[2]These applications raise a question of interpretation of paragraph 138(2)(a) [as am. by SOR/97-85, s. 76] of the Health of Animals Regulations, C.R.C., c. 296, s. 1 (as am. by SOR/91-525, s. 2) (the Regulations). The meaning of the words "without undue suffering" (in the French version of the text, the meaning of the words "sans souffrances indues") must be determined. The Regulations were adopted pursuant to paragraph 64(1)(i) of the Health of Animals Act, S.C. 1990, c. 21.
[3]Paragraph 138(2)(a) of the Regulations, which is central to the issue between the parties, reads as follows:
138. (1) . . .
(2) Subject to subsection (3), no person shall load or cause to be loaded on any railway car, motor vehicle, aircraft or vessel and no one shall transport or cause to be transported an animal
(a) that by reason of infirmity, illness, injury, fatigue or any other cause cannot be transported without undue suffering during the expected journey; [Emphasis added.]
[4]For a clear understanding of the issue, a brief summary of the facts will be useful.
[5]On March 10, 2003, a hog was delivered to Viandes Ultra Meats Inc. (Viandes Ultra). Dr. Simon Villeneuve, a veterinarian with the Canadian Food Inspection Agency (the Agency), then received a telephone call from Marc Trudel, an employee of Viandes Ultra, informing him of the arrival of a hog in poor condition at the unloading dock and asking him to come and examine it.
[6]Dr. Villeneuve reported to Viandes Ultra and the following are his observations, as they were recorded in a handwritten document:
[translation] On March 10, 2003, around 11:30 a.m., Marc Trudel, at hog reception, telephoned me at my Office to go and see a sick pig. Upon my arrival, I observed that hog #17 with tattoo R51 was recumbent on its right side, and that it was panting and shivering a lot. The hog was unable to get up and flee despite the fact that it was afraid of me. N.B. producer tattoo 25154.
The hog had an open fracture with a lot of necrosis of the skin, muscle and bone tissue on the side of the tarsus/knuckle of the left hind member.
All these indications strongly suggest that this condition is chronic, that it must have lasted for at least 10 days. One may wonder how this animal was loaded into the truck. According to the carrier, it was walking on 3 legs. Here, at the hog reception, it was non-ambulatory, lying on its side. They had to use the skid to get it out of the truck.
The owner has been negligent and cruel toward this animal. I recommend that charges be laid against him.
N.B. Following my observation of the facts, the trucker told me he did not want any problems with this matter, he telephoned the owner for me to explain the situation to him. I had a telephone conversation with Mr. Poudrier. In his view, his pig had only a little SCRATCH, that the diseased foot just needed to be cut off!! According to him, it was while loading the hogs that he noticed this sick pig "that it was hardly limping at all". But here it is very weak and non-ambulatory. The owner challenged my diagnosis in question, he was even somewhat arrogant towar d me, and finished the discussion by telling me we would see each other in court! [Emphasis added.]
[7]Pursuant to Dr. Villeneuve's observations, the regional director of the Agency concluded that the respondents, Porcherie des Cèdres Inc., the shipper and owner of the animal, and Serbo Transports Inc., the carrier of the animal, had loaded and transported a farm animal that could not be transported in a motor vehicle "without undue suffering", contrary to paragraph 138(2)(a) of the Regulations and consequently that the respondents had committed a violation under subsection 7(1) of the Agriculture and Agri-Food Administrative Monetary Penalties Act, S.C. 1995, c. 40 (the Act), which reads as follows:
7. (1) Every person who
(a) contravenes any provision of an agri-food Act or of a regulation made under an agri-food Act,
(b) contravenes any order made by the Minister under the Plant Protection Act, or
(c) refuses or neglects to perform any duty imposed by or under the Plant Protection Act or the Health of Animals Act
the contravention of which, or the refusal or neglect of which, is designated to be a violation by a regulation made under paragraph 4(1)(a) commits a violation and is liable to a warning or to a penalty in accordance with this Act.
[8]Paragraph 4(1)(a) of the Act, to which subsection 7(1) refers, reads as follows:
4. (1) The Minister may make regulations
(a) designating as a violation that may be proceeded with in accordance with this Act
(i) the contravention of any specified provision of an agri-food Act or of a regulation made under an agri-food Act,
(ii) the contravention of any specified order, or class of orders, made by the Minister under the Plant Protection Act, or
(iii) the refusal or neglect to perform any specified duty, or class of duties, imposed by or under the Plant Protection Act or the Health of Animals Act,
if the contravention, or the failure or neglect to perform the duty, as the case may be, is an offence under an agri-food Act;
[9]On June 23, 2003, the regional director of the Agency served the respondents with the following notices of violation:
[translation] Having loaded and transported a farm animal (hog) in a motor vehicle (Serbo Transports Inc.) when it could not be transported without suffering. [At variance with paragraph 138(2)(a) of the Health of Animals Regulations.]
[10]On July 22, 2003, the respondents asked the Tribunal to review the decisions made by the regional director of the Agency.
[11]On September 22, 2003 [Porcherie des Cèdres Inc. v. Canada (Canadian Food Inspection Agency), [2003] D.C.R.A.C. No. 30 (QL); Serbo Transport Inc. v. Canada (Canadian Food Inspection Agency), [2003] D.C.R.A.C. No. 31 (QL)], the Tribunal allowed the respondents' requests and concluded as follows [at paragraph 1]:
[translation] After examining the observations of the parties, including the report of the respondent, the Commission rules, by order, that the applicant has not committed the violation and is not required to pay the monetary penalty demanded.
[12]The applicant, through its applications for judicial review, is asking us to set aside the Tribunal's decisions and to refer the cases back to the Tribunal with instructions. In my opinion, there is cause for intervention in this proceeding. I am persuaded that the decisions made by the Tribunal result from an error of law, namely, a misinterpretation of the words "without undue suffering" in paragraph 138(2)(a) of the Regulations.
[13]Before stating the reasons why I reach this conclusion, a few words about the standard of review are necessary. In my opinion, the applicable standard is that of correctness and I adopt the comments made by my colleague Mr. Justice Pelletier in Canada (Canadian Food Inspection Agency) v. Westphal-Larsen (2003), 232 D.L.R. (4th) 486 (F.C.A.), at paragraph 7:
The first issue is the standard of review of the decision of the Review Tribunal. Applying the analytical framework set out in Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, I note that the Review Tribunal is not protected by a privative clause. Section 12 of the Canada Agricultural Products Act, R.S.C., 1985 (4th Supp.), c. 20, the legislation under which the Review Tribunal is constituted, provides that decisions of the Tribunal may only be reviewed under the Federal Court Act, which I take to mean that its decisions are reviewable on the grounds set out in subsection 18.1(4) of that Act, including error of law. The nature of the question before the Tribunal is a pure question of statutory interpretation which does not draw upon its particular expertise in agriculture and the agri-food industry. To that extent, the Tribunal does not have any relative legal expertise vis-à -vis this Court. The particular proceedings giving rise to this application involve an administrative penalty for non-compliance with certain regulatory provisions. The Tribunal was therefore not required to engage in the kind of polycentric analysis to which a certain deference is owed by a reviewing Court. Taking these factors together, I conclude that the standard of review of the Review Tribunal in relation to the question raised by this application is that of correctness.
[14]Like Mr. Justice Pelletier in Westphal-Larsen, I am also of the opinion that it is inappropriate, in this instance, to defer to the Tribunal, as the question before it was one of statutory interpretation.
[15]Tribunal Chairperson Barton, who delivered both of the Tribunal's decisions, found that the word "undue" in paragraph 138(2)(a) of the Regulations had the same meaning as the word "excessive". In support of this interpretation, Tribunal Chairperson Barton relied on a dictionary definition, without giving the reader any specific reference. The following is the relevant passage from the decisions [at paragraph 8]:
[translation] According to the dictionary definition, the word "undue" mean s "excessive".
[16]Notwithstanding the fact that it was his opinion that the condition of the hog, as observed by Dr. Villeneuve, had existed even before it was loaded into the truck of the respondent Serbo Transports Inc., and that consequently its injuries were serious, Tribunal Chairperson Barton found that the loading and transportation of the animal could not have aggravated its injuries and thereby caused it excessive suffering. This finding led Tribunal Chairperson Barton to conclude that the respondents had not committed the violation they were charged with by the Agency, since the Agency had not successfully established that the hog could not be loaded and transported without undue suffering. The reasons of Tribunal Chairperson Barton are brief, and I reproduce the relevant passages [at paragraphs 8-11]:
[translation] The Tribunal finds that the hog in question was injured before it was loaded and that the extent of its injuries was more serious than what the applicant says. However, we are not trying to determine whether or not an unfit animal was loaded or transported, but whether the injured hog could be transported without undue suffering during the expected journey. According to the dictionary definition, the word "undue" means "excessive".
The Tribunal finds that even if the hog was injured before and after the loading, the loading as such and the transportation of the hog could not have aggravated the injury in a way that would cause it excessive suffering during the planned journey.
The Tribunal notes that the recommended code of practice for the care and handling of farm animals, referred to in Part IV of Tab 8 of the respondent's report, indicates that the hogs are transported lying down and recommends that individual pens be used for injured animals. Althoug h the hog in question was not placed in an individual pen, it was placed at a sufficient distance to avoid undue suffering to it during the journey.
The respondent has therefore failed to prove, on a balance of probabilities, that the hog could not be transported without undue suffering.
[17]In my opinion, the interpretation of the word "undue"and consequently of the words "undue suffering" adopted by the Tribunal is wrong. Although it appears from the dictionary definitions (to which I will refer later) that the words "undue" and "indu[e]" may, in certain circumstances, have the same meaning as the word "excessive", I am of the opinion that this is not the case in this instance. It does not seem reasonable to me to adopt the Tribunal's interpretation since this interpretation leads to a result that I would characterize as absurd. Let me explain.
[18]The reasons of Tribunal Chairperson Barton clearly indicate that he accepted, without reservation, Dr. Villeneuve's observations concerning the condition of the animal. That explains why he concluded that the animal was injured even before being loaded on the truck of the respondent Serbo Transports Inc. and, moreover, that the animal's injuries were "more serious than what the applicant says". It follows from these conclusions, in my opinion, that Tribunal Chairperson Barton agrees that the hog was suffering before it was loaded and transported.
[19]Notwithstanding this finding, Tribunal Chairperson Barton concluded that the evidence provided by the Agency was insufficient to show that the animal had suffered unduly during the trip. This conclusion results no doubt from his interpretation of the word "undue" to the effect that the word is equivalent to the word "excessive".
[20]As I understand what Tribunal Chairperson Barton is saying, the Agency had to demonstrate either that the animal had suffered excessively during transportation because of the manner or way in which it had been loaded or transported, or that its suffering during transportation exceeded the suffering it would have endured had it not been loaded and/or transported. In other words, the Agency had to demonstrate that the loading and/or transportation had caused some suffering that the animal would have not endured had it not been for this loading or this transportation.
[21]According to Tribunal Chairperson Barton, therefore, demonstrating that the animal was suffering before being loaded and that it would continue to suffer during its transportation does not constitute sufficient evidence to conclude that the respondents' conduct was in breach of paragraph 138(2)(a). The interpretation proposed by Tribunal Chairperson Barton would, in my opinion, allow the loading and transportation of suffering animals.
[22]Here are a few definitions from English and French dictionaries of the words "undue" and "indu[e]" used in the English and French versions of paragraph 138(2)(a) of the Regulations. Le Nouveau Petit Robert: dictionnaire alphabétique et analogique de la langue française, Paris: Dictionnaires Le Robert, 1993, defines "indu[e]" in these words:
Qui va à l'encontre des exigences de la raison, de la règle, de l'usage . . . où il ne convient pas de faire telle ou telle chose . . . Qui n'est pas fondé . . . Ce qui n'est pas dû . . . CONTR. Convenable, normal, régulier. Dû.
According to the Dictionnaire des synonymes et antonymes, Hector Dupuis and Romain Légaré, Québec: Éditions Fides, 2003, the word "indu" means:
Indu: Syn. 1. Inapproprié, inconvénient, inopportun. 2. Infondé, injustifié. Ant. Approprié, convenable, opportun, fondé, justifié.
As for Thésaurus Larousse, Paris: Larousse, 1999, it defines "indu" as follows:
Inopportun; déplacé, déraisonnable, fâcheux, importun, incongru, indu, intempestif, maladroit, malencontreux; malvenu, prématuré, saugrenu: --Hors de saison; hors de propos; mal choisi; à côté de la plaque.
According to Roget's International Thesaurus, 5th ed., HarperCollins Publishers, 1992, the word "undue" means:
UNDUE: overpriced, wrong, unowed, unjust, excessive.
Undue, unowed, unowing, not coming, not outstanding; undeserved, unmerited, unearned; unwarranted, unjustified, unprovoked; unentitled, undeserving, unmeriting, nonmeritorious, unworthy; preposterous, outrageous.
The Oxford English Dictionary, 2nd ed., 1989, defines the word "undue" as follows:
Undue: 1. Not properly owing or payable 2. Not appropriate or suitable, improper. Also of times, etc. Unseasonable 3. Not in accordance with what is just and right; unjustifiable; illegal.
The Oxford Compact Thesaurus, 2nd ed., Oxford University Press, 2001, page 913, defines the word "undue" as follows:
UNDUE adj. = excessive, immoderate, intemperate, inordinate, disproportionate, uncalled for, unneeded, unnecessary, non-essential, needless, unwarranted, unjustified, unreasonable, inappropriate, unmerited, unsuitable, improper.
According to the Dictionary of Synonyms and Antonyms, Oxford University Press, 1999, the word "undue" is defined as follows:
UNDUE adj. = excessive.
[23]From these definitions, it appears that only the Dictionary of Synonyms and Antonyms confines itself to defining the word "undue" as meaning "excessive".
[24]The applicant is asking that we reject the Tribunal's interpretation and adopt the meaning of the word "undue" which, in his opinion, is the most reasonable, namely: [translation] "which is contrary to reason, rules or usage". The applicant characterizes the words "undue suffering" as meaning [translation] "unnecessary suffering". This interpretation, he argues, is consistent with the objectives and scheme of the Health of Animals Act, S.C. 1990, c. 21. The applicant notes that the Regulations, and more particularly paragraph 138(2)(a), were adopted by the Governor in Council under paragraph 64(1)(i) of the Health of Animals Act, which provides:
64. (1) The Governor in Council may make regulations for the purpose of protecting human and animal health through the control or elimination of diseases and toxic substances and generally for carrying out the purposes and provisions of this Act, including regulations
. . .
(i) for the humane treatment of animals and generally
(i) governing the care, handling and disposition of animals,
(ii) governing the manner in which animals are transported within, into or out of Canada, and
(iii) providing for the treatment or disposal of animals that are not cared for, handled or transported in a humane manner; [Emphasis added.]
[25]Based on these provisions, the applicant submits that the clear purpose of the Regulations is, inter alia, to protect the health of animals. Accordingly, he says, paragraph 138(2)(a) cannot be interpreted in such a way as to allow the transportation of suffering animals.
[26]In my opinion, the applicant's arguments are well founded. It does not seem reasonable to me to interpret the words "undue" and "indu[e]" as meaning "excessive" and "excessif". In my opinion, a reasonable interpretation of undue" and "indu[e]", in the context of the relevant legislation, can only lead to the conclusion that these words mean instead "undeserved", "unwarranted", "unjustified", "unmerited" or "inappro-prié", "inopportun", "injustifié", "déraisonnable". This interpretation ensures that a suffering animal cannot be loaded and transported, since any such loading or transportation will cause "unjustified" and "unreasonable" suffering to the animal. It is appropriate to recall that Dr. Villeneuve, in his written observations, stated that the hog had [translation] "an open fracture with a lot of necrosis of the skin, muscle and bone tissue." In Dr. Villeneuve's opinion, the owner of the animal "displayed negligence and cruelty toward this animal".
[27]I conclude, therefore, that the transportation of an injured (and therefore suffering) animal could only cause unjustifiable or inappropriate suffering to that animal. Using the English text of paragraph 138(2)(a) of the Regulations, the suffering that will be caused to the animal while being transported will be "unjustified" or "unwarranted".
[28]It is worth noting that the Tribunal appears to have adopted the interpretation that I am proposing in a fair number of its decisions involving paragraph 138(2)(a). The applicant referred us in this regard to the Tribunal's decisions in Ferme A. Riopel et Fils Inc. v. Canada (Canadian Food Inspection Agency), [2003] D.C.R.A.C. No. 17 (QL); Longhorn Farms Ltd. v. Canada (Canadian Food Inspection Agency), [2001] C.A.R.T.D. No. 4 (QL); Grenier v. Canada (Canadian Food Inspection Agency), [2003] D.C.R.A.C. No. 29 (QL); Transport Gaétan Pellerin Inc. v. Canada (Agricultural Review Tribunal), [2004] D.C.R.A.C. No. 9 (QL); and Transport Guérard et Fils Inc. v. Canada (Agricutural Review Tribunal), [2003] D.C.R.A.C. No. 51 (QL).
[29]All of these decisions, with the exception of Transport Gaétan Pellerin Inc., were delivered by Tribunal Chairperson Barton. In all of these cases, the Tribunal, on the sole evidence of the condition of the animal prior to loading, found that the animal could not be loaded and transported without undue suffering. In none of these cases did the Tribunal require evidence as to the loading and/or transportation of the animal in order to determine whether the animal's suffering, during transportation, was "excessive".
[30]In the Longhorn case, Tribunal Chairperson Barton, at paragraph 13 of his reasons, stated the following about the condition of a bull that was loaded into and transported by trailer:
Based on all the evidence, the Tribunal finds that the illness and considerable injury sustained by the bull was sustained before the time of loading and that the bull could not have been loaded and transported without undue suffering during the expected journey.
[31]Transport Gaétan Pellerin Inc. involved the transportation of a hog. The following extract from paragraphs 9-11 of the decision, delivered by Tribunal member Peter Annis, fully supports the interpretation I propose:
[translation] The applicant acknowledged that, on or about April 10, 2003, he had loaded up some pigs for a journey to the A. Trahan Transformation Inc. abattoir. . . . The applicant stated that the animal in question (referring only to one hog) was walking normally and had no inconvenience or difficulty in entering the loading pen. The applicant added that when being unloaded the hog was no longer walking, probably owing to the fact that, in the course of the journey, it must have been trampled on by the other pigs since there were some that were smaller than the others, including this one that remained in one spot.
However, according to the diagnosis of Dr. Yvonne Dolbec, a veterinarian with the Canadian Food Inspection Agency, it takes several weeks for such a condition to develop. So the hog was in this state at its farm of origin.
In view of the state of these animals, it is hard to see how they could have been loaded and transported without undue suffering.
[32]In Transport Guérard et Fils Inc., here is what Tribunal Chairperson Barton said concerning the loading and transportation of pigs [at paragraphs 10-11]:
[translation] The applicant also referred to other reasons that might explain the discrepancies in the weights of the pigs; he also alleged that the injuries might have been suffered during transportation. Despite these possibilities, the applicant conceded in light of the photographs appearing in the respondent's report that the pigs were already in a deplorable state at the time they were loaded.
In view of their condition, it is hard to see how they could have been loaded and transported without undue suffering.
[33]In Ferme A. Riopel et Fils Inc., the owner of a sick sow had admitted sending it to the abattoir in this condition. Tribunal Chairperson Barton disposed of the case in these words [at paragraph 7]:
[translation] The Tribunal is persuaded, on a balance of probabilities, that the sick sow could not have been loaded and transported without suffering unduly during the expected journey.
[34]Finally, the Grenier case involved the transportation of two hogs to the abattoir. When the animals arrived at the abattoir, an inspector observed that the animals were in poor condition and that they were suffering "enormously". Once again, Tribunal Chairperson Barton had no difficulty in finding that the Agency had demonstrated that the owner of the animal had loaded and shipped an animal that could not be transported [at paragraph 3] "without undue suffering during the expected journey".
[35]As I indicated earlier, there can be no doubt that the purpose of the relevant legislation is to prevent animals from suffering unjustifiably and unreasonably. Specifically, the purpose of the Regulations is to prevent the transportation of suffering animals. In my opinion, but for its error in interpretation, the Tribunal would surely have found that the Agency had established that the hog could not be transported without undue suffering.
[36]Consequently, I am of the opinion that the Tribunal erred in finding that the Agency had failed to establish that the hog could not be transported without undue suffering. This finding by the Tribunal, in view of the evidence that the animal had some serious injuries even before being loaded, cannot be upheld. Given the conclusion I have reached concerning the interpretation of the word "undue", it will not be necessary for me to discuss some other points raised by the applicant.
[37]I would therefore allow the applications for judicial review with costs, I would set aside the decisions of the Tribunal dated September 22, 2003, and I would refer the cases back to the Tribunal with instructions to the effect that the respondents' applications for review must be dismissed.
Desjardins J.A.: I concur.
Pelletier J.A.: I concur.