Transport M.J. Marcoux Inc. v. Canada (CFIA) 2005 CanLII 78726 (CA ART)

In the matter of an application for a review of the facts of a violation of provision 138(2)(a) of the Health of Animals Regulations, alleged by the Respondent, and requested by the Applicant pursuant to provision 9(2)(c) of the Agriculture and Agri-Food Administrative Monetary Penalties Act.

The Notice of Violation dated August 10, 2004, alleges that the Applicant committed a violation contrary to provision 138(2)(a) of the Health of Animals Regulations, which states: “138(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.

The Court held that the loading and transporting of a suffering animal would cause the animal unwarranted or unjustified suffering, and hence would be contrary to the purpose of the Regulations.

In this case, the evidence demonstrated that the hog was underweight with two seriously infected members. The Applicants contended that the violation should be dismissed on the basis that the test for “undue suffering” should be based upon usage or custom in the industry at the time in question.

The Tribunal did not agree with the Applicant’s submission and stated that the matter of undue suffering is to be determined based primarily upon common sense experiences of what would constitute suffering in an animal.

The Tribunal, found that the Applicant committed the violation and is liable for payment of the penalty in the amount of $2,000.00 to the Respondent.

Source: Case Law

Jurisdiction: Canada (Federal)


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