9020-2516 Québec inc v Canada (CFIA), 2011 CART 007 [Canada Agricultural Review Tribunal)

The applicant, 9020-2516 Québec inc (Marvid Poultry) was charged by the Canadian Food Inspection Agency (“CFIA”) for violating section 143(1)(d) of the Health of Animal Regulations by transporting or causing to transport chickens with undue exposure to weather. Specifically, Marvid Poultry was alleged to have caused the transportation of poultry, by means of a motor vehicle, which suffered unduly after undue exposure to weather while waiting at a slaughterhouse. The violation was assessed as a serious violation, with an increased penalty of 10%, for which the total penalty was assessed as $2,200. This is a review of that violation.

The following facts are not in dispute: a load of 3500 Cornish hens was loaded on a transport truck from a Québec farm early morning November 26, and arrived at the Marvid Poultry abattoir, in Québec, around 8:45 a.m the same day. The hens were not slaughtered until around 3:30 p.m that day. The loading and transportation of the hens (including the six hour plus waiting period from the time of arrival at Marvid until their processing) took place while the outside temperature was around 0ºC. Before the arrival of the hens at Marvid, and without Marvid’s knowledge, the hens had been improperly loaded, meaning that the transporter did not undertake measures that would have maximized the conservation of warmth of the hens during the voyage and while waiting at Marvid. As the hens were being unloaded, the veterinarian-in-charge at Marvid (and an Agency official) found 293 hens dead due to exposure to the cold.

The veterinarian testified that the density of the birds was not high enough and there was not proper structuring of cages to permit the birds to maintain sufficient body heat. She also testified that Marvid should have detected the problem before 3:30 p.m. and given priority to the load in the slaughter sequence at the plant that day. She stated that, while it is impossible to know exactly when the hens died, the wait in the yards of Marvid prior to slaughter did incur, or was likely to incur, injury or undue suffiering to the living birds during the time between their arrival and more than six hours later when they were processed.

The Tribunal must decide whether the Agency has established that Marvid transported or caused to be transported the hens in question, and, if so, whether the Agency has also established that, by not proceeding to process the hens with due dispatch, Marvid caused injury or undue suffering to the chickens which was likely caused by their continuing exposure to cold temperatures.

With regard to the first factor: Marvid, by the decision of its employees not to examine the load of hens when it arrived at their plant, and therefore wait for the ordinary sequencing for the slaughter of the load, exercised sufficient power and control over the load of hens to cause the transport of, or more correctly, to continue the transport of the hens for several additional hours. Moreover, given the evidence of the witnesses for Marvid, it was clear that Marvid exercises a high degree of control over the selection of, and timing for, delivery of loads of poultry to its plant. As such, the Tribunal makes the factual finding that Marvid did exercise sufficient power and control over the hens waiting in its yard on November 26 and, therefore, for the purposes of the definitions found in the Health of Animals Regulations, did cause the load of hens to be transported.

With regard to the second factor: While there was no evidence presented that the ambient temperature inside the load of hens actually increased or decreased during the several hours that the load waited for processing, the Tribunal finds as fact that, given the ordinarily fragile nature of Cornish hens, they would have suffered less, or would likely have suffered less, if they had proceeded directly to processing on a priority basis. From the evidence, it is clear that, from the time that the hens arrived at the plant, Marvid exercised sufficient power and control to examine the birds and to take all necessary steps that could have prevented any undue suffering that the birds either suffered or would likely suffer by having to wait several hours before slaughter on that chilly day in November. Given the cold temperatures of that day, the fragile nature of Cornish hens, and the suboptimal transport conditions that the hens had already endured in getting to the plant, not inspecting these delicate birds on their arrival and holding them for several additional hours did cause, or did likely cause, any surviving chickens injury, undue suffering or perhaps even death. Moreover, industry practices, which were presented as evidence by the Agency, recommends the immediate processing of stressed loads, of which the load of Cornish hens would have been recognized as one if Marvid had inspected it at the time of its arrival. In this case, Marvid had an obligation to ensure that the load of hens was not injured or suffering, knowing that it would have a significant wait until slaughter. If Marvid had carried out such an inspection, it then would have been able to give the load priority processing. As it was, the load suffered unduly during its additional hours wait. By the time the Agency inspector and Marvid personnel found the dead birds, injury and suffering was clearly evident and no preventative steps could be taken. In this case, the hens were likely to incur injury or undue suffering because, on top of their fragile nature state, their improper loading and inadequate protection during their transport from farm to slaughter house, they also had to endure several additional hours of waiting time in the cold, because of a decision of Marvid employees not to inspect the load and to continue with the ordinary commercial practice for processing all other chickens before turning to the hens.

The Act allows no defence of due diligence or mistake of fact. Marvid has no defence for failing to inspect the load.

However, the Tribunal finds that while a penalty of $1,800 can be justified under the legislation, $2,200 cannot. A serious violation carries with it a penalty of $2,000 under the legislation, which can be increased or decreased based on prior violations, degree of intentionality and harm done. The Tribunal agrees that the violation was a serious one, but disagrees with the Agency’s assessment of increased penalty. Rather, they would reduce the original penalty by 10%.

The Tribunal held that Marvid Poultry committed the violation and is liable for payment of the penalty in the amount of $1,800 to the CFIA within 30 days after the day on which this decision is served.

Source: Case Law

Jurisdiction: Canada (Federal)

Topics: Canadian Food Inspection AgencychickensCornish hensdeathdue diligenceexpertfineHealth of Animals Regulationsinjuryinspectionlivestockloaded improperlypower and controlserious violationtransport of animalstransportationundue exposure to weatherUndue sufferingveterinarian

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