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T-79-82
Barcrest Farms Inc., Karl-Wilheim Hermanns (Applicants)
v.
Minister of Agriculture and Dr. J. B. Tattersall (Respondents)
Trial Division, Jerome A.C.J.—Toronto, January 25; Ottawa, February 26, 1982.
Judicial review — Prerogative writs — Certiorari — Appli cants served with declaration of infected place, under s. 22, Animal Disease and Protection Act, in respect of all horses on premises — In respect of domestic animals, statute contem plates programme of verification — Under Reg. 7(1), inspector may order imported animal removed from Canada on suspi cion of its being diseased — Applicants denying presence of infection — Inspector issuing order that three imports be removed from Canada — Minister declining to test domestic animals until removal order complied with — Applicants seeking certiorari and prohibition in respect of removal order and mandamus to require testing for disease verification — Minister exercising statutory power unevenly and arbitrarily — Responsibility to act fairly requiring Minister to determine whether quarantined domestic animals diseased — Order to go compelling Minister to proceed with testing domestic animals — Removal order stayed pending completion of tests — Animal Disease and Protection Act, R.S.C. 1970, c. A-13, ss. 22, 23, 24, 25, 26, 27 — Animal Disease and Protection Regulations, C.R.C. 1978, Vol. III, c. 296, s. 7(1).
APPLICATION. COUNSEL:
J. D. Weir for applicants.
B. Evernden for respondents.
SOLICITORS:
Stikeman, Elliott, Robarts & Bowman,
Toronto, for applicants.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for order ren dered in English by
JEROME A.C.J.: This application came on before me at the City of Toronto, on January 25, 1982, and concerns an order of December 21, 1981, under the authority of the Animal Disease and Protection Act, R.S.C. 1970, c. A-13, for the removal of certain animals from Canada. The application seeks a writ of certiorari to set aside the order, a writ of prohibition to prevent action being taken upon the order, or a writ of man- damus compelling the respondents to carry out proper tests for verification of the presence of suspected disease.
The application specifically concerns three horses, by name, Empire, Grandduell and Win- chester, which are presently in quarantine at Barcrest Farms, near Milton, Ontario. The three horses, all stallions, were brought into Canada from the United States on or about the 23rd of February, 1981. On the 4th or 5th of November, 1981, Barcrest Farms was served with a declara tion of infected place, issued by the respondent Dr. J. B. Tattersall, pursuant to section 22 of the Animal Disease and Protection Act:
22. When an inspector finds or suspects infectious or conta gious disease of animals to exist, he shall forthwith make a declaration thereof under his hand, and shall deliver a copy of such declaration to the occupier of the common, field, stable, cowshed or other premises where the disease is found; and thereupon the same, with all lands and buildings contiguous thereto in the same occupation, shall be deemed to be an infected place until otherwise determined by the Minister.
The declaration related to all equines on the prem ises and on November 5, 1981, solicitors for the applicants delivered to Dr. Tattersall correspond ence disputing the presence of any infection and asking that the quarantine be lifted, or that testing commence immediately. In due course, it was determined by both parties that the disease, if present, would be in only twenty-two horses and accordingly, on December 17, 1981, a licence for the removal of animals from an infected place was issued by Dr. Tattersall, releasing all but those twenty-two horses. On the following day, Decem- ber 18, 1981, Dr. Tattersall issued an order to remove animals from Canada in respect to two of
the twenty-two, namely Empire and Grandduell. Correspondence of that same date was delivered by courier to the Minister of Agriculture from solicitors for the applicant Barcrest Farms Inc. disputing the contention that any horses were improperly imported into Canada. In respect to the third stallion, Winchester, the declaration of infected place was issued at the premises of one Ian D. Miller of R. R. 5, Perth, Ontario, on November 30, 1981, but subsequently, on Decem- ber 17, 1981, a licence was issued to remove the stallion Winchester to the quarantine area already established at Barcrest Farms, and an order to remove Winchester from Canada was issued by Dr. Tattersall on December 21, 1981. On Decem- ber 24, 1981, correspondence was sent from O. W. Kelton, on behalf of Agriculture Canada, to the solicitors for the applicants, as follows:
In reply to your letter of December 22, 1981 addressed to Dr. J. B. Tattersall and in confirmation of your telephone conversa tion with me December 23, 1981 please be advised that
1. Barcrest Farms Inc. and/or Mr. & Mrs. Hermanns may hire a licensed Veterinarian to perform examinations, treatment and testing of the currently quarantined 5 stallions, 17 mares and their 1981 foals subject to approval from this office on an individual basis and subject to this office being notified of the name of the practicing Veterinarian before hand, and also being advised regarding any diagnostic material being submit ted to a laboratory giving the description of the material and test or tests required and the name and address of the laboratory.
2. In respect to any testing you mentioned yesterday in the telephone conversation, this will confirm that the current Branch policy for testing of stallions with regard to Contagious Equine Metritis is testing applicable to stallions prior to, and following, importation into Canada from countries not free from C.E.M. A copy of the outline of the required testing is attached for your information. This outline is normally attached to an Import Permit for such animals.
The above is being provided without prejudice to any further action that this Department might wish to take in the future regarding the above matter.
I have examined the orders and other documents which I have just described, all of which were filed as exhibits to affidavits in support of the motion, and I am not able to discover any deficiency in procedure or excess of jurisdiction by the officials
of Agriculture Canada. If the applicants are to succeed, therefore, it must be on the basis that the duty of the respondents to act fairly in the administration of this statutory programme must be taken to include an obligation, presumably through some kind of testing, to make an independent determination of the presence or absence of the suspected disease so as to afford those affected by these orders a proper opportunity to refute the suspicions upon which they are based. Indeed, sections 23 through 27 require an inspec tor who makes a declaration pursuant to section 22, to inform the Minister in order to permit the Minister to determine whether the disease is present and to take appropriate action:
23. (1) When an inspector makes such a declaration of the existence or suspected existence of infectious or contagious disease of animals, he shall, with all practicable speed, send a copy thereof to the Minister.
(2) If it appears that an infectious or contagious disease exists, the Minister may so determine and declare, and may prescribe the limits of the infected place.
(3) If it appears that such disease did not exist, the Minister may so determine and declare, and thereupon the place, com prised in the inspector's declaration, or affected thereby, shall cease to be deemed an infected place.
24. When, under this Act, an inspector makes a declaration that constitutes a place an infected place, he may also, if the circumstances of the case appear to him so to require, deliver a notice under his hand of such declaration to the occupiers of all lands and buildings adjoining thereto, any part whereof respec tively lies within one mile of the boundaries of the infected place in any direction; and thereupon the provisions of this Act with respect to infected places apply to and have effect in respect of such lands and buildings as if they were actually within the limits of the infected place.
25. (1) The area of an infected place may, in all cases of a declaration by the Minister, include any common, field, stable, cowshed or other premises in which infectious or contagious disease has been found to exist, and such area as to the Minister seems requisite.
(2) The Minister may by order, extend or curtail the limits of an infected place beyond the boundaries of the common, field, stable, cowshed, farm or premises where infectious or conta gious disease is declared or found to exist.
26. The area of an infected place may, in any case, be described by reference to a map or plan deposited at some specified place, or by reference to townships, parishes, farms, or otherwise.
27. The Minister may, at any time, upon the report of an inspector, by order, declare any place to be free from infectious or contagious disease; and thereupon, and from the time speci fied in that behalf in the order, the place shall cease to be deemed an infected place.
In respect to the steps taken by the Minister, the language of the statute is, of course, permissive, but since any quarantine ordered by the inspector obviously must not be taken to continue indefinite ly, the initial finding or suspicion of the inspector in section 22 must be followed by some Ministerial action based on the confirmation or rejection of the inspector's initial findings or suspicions. In respect of domestic animals, therefore, the statute contemplates a programme of verification which may meet the obligation to act fairly in providing the owner with the opportunity to refute the basis of the inspector's finding or suspicion.
This application, of course, does not concern domestic animals, but deals with the three named stallions who are subject to an order for their removal from Canada, the authority for which is found in Part II of the Regulations [Animal Dis ease and Protection Regulations, C.R.C. 1978, Vol. III, c. 296] which deal with importation of animals in general, and particularly in Regulation 7(1), which is as follows:
7. (1) Where an inspector finds, or suspects that an animal, animal product, animal by-product, feedstuff or other thing that is imported into Canada is affected with a communicable disease, he may order the person having the possession, care or custody of the animal, animal product, animal by-product, feedstuff or other thing to remove it from Canada or to quarantine it within the period of time specified by the inspector.
The contrast in language cannot be overlooked. Pursuant to section 22, an inspector is entitled to act upon a finding or suspicion and after taking certain steps in consequence thereof, some further verification must take place, as envisaged by the sections of the statute to which I referred above. These steps are authorized without reference to the origin of the animals. In section 7 of the Regulations dealing with animals imported into Canada, an inspector is entitled to act upon a finding or suspicion and may order removal from Canada or quarantine. Parliament, in using differ ent language with respect to animals imported into Canada, obviously, must be taken to have intended to clothe the inspector with different powers in
respect thereto. Furthermore, the absence from the Regulations dealing with imported animals of the regime created by section 23 and following, must be taken as an indication of Parliament's intention to empower inspectors to order, again only upon suspicion of the presence of disease, the removal of imported animals from Canada without the requirement of any verification of such suspicions by the Minister. I will not, therefore, set aside the orders in question or impose a requirement to test such animals as a limitation upon the authority granted to the inspectors by the clear language of the statute.
Concern over the duty to act fairly, however, does not end with a finding that the actions of the inspector or the Minister are authorized by stat ute. Indeed, it addresses itself to the very question of fairness and justice in the exercise of authorized power. Under the authority of this legislation, Parliament has seen fit to empower inspectors, solely on the basis of suspicion of the presence of disease, to make orders having dramatic effects upon personal and property rights. Sections 23 to 27 of the statute outline the minimum expected of the Minister in the duty to discharge these respon sibilities fairly, i.e., to proceed with an independent determination of the accuracy of these suspicions and to act accordingly. Pursuant to this statutory responsibility, the Minister's officials in the corre spondence referred to above, confirmed their com mitment to the necessary arrangements to dis charge this obligation. Subsequently, that undertaking was changed, as authorized by Part II, and specifically section 7 of the Regulations, with respect to those animals found to have been imported into Canada and in respect of which removal from Canada had been ordered.
The evidence before me discloses, however, that the tests in respect of the domestic animals have not taken place and will not take place until such time as the orders for removal from Canada of the imported horses have been complied with. This position constitutes an uneven and arbitrary exer-
cise of the Minister's authority and very much supports the suspicion that these extensive powers considered in the wisdom of Parliament necessary for the very important purpose of control of dis ease, are being used to achieve objectives entirely unrelated to that end. These animals under quar antine remain totally under the control of the Minister who has a responsibility, as outlined in the statute, at least in respect of domestic animals, to make a determination of the presence or absence of the suspected disease, and to act accordingly. The Minister's responsibility to act fairly equally obliges him to do so and the Minis ter's officials have undertaken, in writing, to pro ceed with the necessary measures. Such tests should have been proceeded with forthwith, entire ly without reference to any other circumstance. An order will go, therefore, compelling the respond ents to proceed with the testing, as outlined in the correspondence of December 22, 1981, from the respondent Tattersall, in respect of those domestic animals in quarantine at Barcrest Farms and stay ing the force of the orders for the removal from Canada which are the subject-matter of this motion, pending the completion of the said tests, or until further order of this Court. The applicants are entitled to costs. Counsel may prepare the formal order which shall issue when settled by the Court.
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