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.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.