Citation: Tollgate Farm v Canadian Food Inspection Agency, 2023 CART 19

2023 CART 19 (CanLII)

Docket: CART-2023-FNOV-002

BETWEEN:

TOLLGATE FARM

APPLICANT

- AND -

CANADIAN FOOD INSPECTION AGENCY

RESPONDENT

BEFORE: Emily Crocco, Chairperson

WITH: Mr. William Toll, representing the Applicant

Mr. Ryan Deshpande, representing the Respondent

DECISION DATE: June 26, 2023

WRITTEN SUBMISSIONS ONLY

 1. INTRODUCTION

[1] The Applicant is requesting that the Canada Agricultural Review Tribunal
(“Tribunal”) review the Notice of Violation (Notice) #2122ON0188-2 that the Respondent
issued against it and which imposed a $10,000.00 penalty.

2023 CART 19 (CanLII)

[2] The Notice alleges that on July 13, 2022, the Applicant loaded and transported an
unfit heifer, contrary to subsection 139(1) of the Health of Animals Regulations (HA
Regulations).

[3] For the reasons that follow, the Notice and its penalty are upheld.

2. APPLICABLE LAWS

[4] Subsection 139(1) of the HA Regulations states that “no person shall load, confine
or transport an animal that is unfit, or cause one to be loaded, confined, or transported,
in a conveyance or container”.

[5] Subsection 136(1) of the HA Regulations defines “unfit” and a related term,
“compromised”.

[6] The definition of “unfit animal” includes an animal that:

(c) is lame in one or more limbs to the extent that it exhibits signs of pain
and suffering and halted movements or a reluctance to walk; (…)

(k) has sustained an injury and is hobbled to aid in treatment; (…)

(w) exhibits any other signs of infirmity, illness, injury or of a condition that
indicates that it cannot be transported without suffering.

[7] A “compromised animal”, by contrast, includes an animal that:

(e) is lame other than in a way that is described in the definition unfit;
(…)
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 (l) exhibits any other signs of infirmity, illness, injury or of a condition that
indicates that it has a reduced capacity to withstand transport.

[8] Subsection 136(3) of the HA Regulations states that an animal that is both
compromised and unfit is “deemed not to be compromised”.

2023 CART 19 (CanLII)

[9] Pursuant to subsections 7(1)(a) and (2) of the Agriculture and Agri-Food
Administrative Monetary Penalties Act (AAAMP Act) and paragraph 2(c) and section 5 of
the Agriculture and Agri-Food Administrative Monetary Penalties Regulations (AAAMP
Regulations), a breach of the HA Regulations can result in a notice with a financial
penalty.

3. ISSUES

[10] The first issue I must determine is whether the Respondent has established a
violation of subsection 139(1) of the HA Regulations.

[11] To determine this, I must consider the following essential elements of a violation
of subsection 139(1) of the HA Regulations:

1. Was the Applicant the person identified in the Notice?

2. Did the Applicant load, confine, or transport an animal? and
3. Was the animal unfit?

[12] There is no question that the Applicant is the person identified in the Notice or that
the Applicant transported the animal in question. In the Applicant’s representative’s email
to the Tribunal dated February 6, 2023, he wrote that he transported the animal in
question.

[13] The dispute here is really about whether the heifer was unfit, or just compromised,
when it was loaded and transported.

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[14] If the Respondent establishes the violation, I must then determine whether the
penalty the Respondent imposed was appropriate.

4. ANALYSIS

2023 CART 19 (CanLII)

(a) The Violation is Established

[15] In its submissions, the Respondent argues that subsection 139(1) of the HA
Regulations was breached because the heifer was unfit to be loaded and transported.
For the following reasons, I agree.

[16] According to the Respondent’s “Case File” report, the Applicant’s representative
told the Respondent’s investigator that when assessing the heifer, he noted that it was
walking “on stiff legs”, but that he determined it “fit enough to transport”.

[17] According to the Respondent’s investigator written account of his interview with
the feedlot manager at the farm from which the heifer was loaded, the feedlot manager
told him that the heifer had been in a hospital pen “to reduce swelling”; that it was being
culled “due to a lack of response to treatment”, but that the heifer was “mobile enough”
for transportation.

[18] According to the same report, when the Respondent’s investigator observed the
heifer after it had been transported, he noticed that it had a “deformed, swollen hind left
foot”, which it was “sliding and dragging”. He also noticed that the animal showed
“reluctance to bear weight on the hind right foot”.

[19] In the report, the Respondent’s investigator wrote that after the heifer was
slaughtered, he observed arthritis in the joints of the heifer’s hind right leg and petechiae
in its lungs and kidneys.

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[20] Upon her review of the Respondent’s investigator’s pictures, videos, and report,
the Respondent’s veterinarian determined that the heifer was lame when loaded and
transported.

[21] The veterinarian wrote that given the “severe” amount of fibrous tissue in the

2023 CART 19 (CanLII)

heifer’s hind right joints, she suspected the heifer had arthritis. She wrote that given “the
amount of arthritis”, the heifer had “not be[en] able to bear weight properly… for a long
period of time”.

[22] The veterinarian wrote that the deformation in the left hind leg appeared to have
been caused by a chronic injury which would have developed over “a very long time
(months)”.

[23] The veterinarian concluded that the heifer had been “unfit for transport, as she is
lame and exhibits pain in two limbs and has halted movements and a reluctance to walk.”

[24] In the Applicant’s representative’s written submissions to the Tribunal, he wrote

that although he had observed that the heifer had “a sore foot”, he had determined it was
compromised (instead of unfit). He acknowledged, however, that “upon arrival” at the
abattoir, the heifer was lame. He added that “she slipped” coming off the trailer and the
heifer “re-injured” herself.

[25] In his submissions, the Applicant included a brief letter from the feedlot manager,
who wrote that “cattle deemed unfit are never shipped” from the farm where he works.

[26] Given the evidence before me, I conclude that the heifer was unfit, and not
compromised, when she was loaded and transported.

[27] The HA Regulations’ definition of “unfit” includes, at paragraph (c), an animal that
“exhibits signs of pain and suffering and halted movements or a reluctance to walk”.

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[28] In my view, the most compelling evidence of the timing of the heifer’s lameness
was the veterinarian’s determination the heifer had “not be[en] able to bear weight
properly… for a long period of time”.

[29] The veterinarian’s conclusion was consistent with the information from the feedlot

2023 CART 19 (CanLII)

manager that the heifer was culled “due to a lack of response to treatment”.

[30] I further note that the Applicant’s representative acknowledged that the heifer was
walking “on stiff legs” when he assessed her before the animal was loaded.

[31] For the above reasons, I find that the heifer was unfit when the Applicant loaded
and transported it.

(b) The Penalty Amount Was Correct

[32] Division 2 of Part 1 of Schedule 1 of the Agriculture and Agri-Food Administrative

Monetary Penalties Regulations (AAAMP Regulations) classifies a violation of subsection
139(1) of the HA Regulations as “very serious”.

[33] Subsection 5(3) of the AAAMP Regulations states that the penalty for a “very
serious” violation made in the “course of business”, subject to any adjustments
determined for its “total gravity value” (“TGV”), is $10,000.00.

[34] Section 6 and Schedule 3 of the AAAMP Regulations state that the TGV of an
offence is determined by considering the:

1. Compliance history of the person, by looking at prior violations or convictions

within five years of the assessment;
2. The intent or negligence of the person; and
3. The harm caused by the offence.

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[35] According to Schedule 2, a lower TGV score will reduce the amount of the penalty,
whereas a higher score will increase the amount of the penalty.

Compliance History

2023 CART 19 (CanLII)

[36] The Respondent determined that the Applicant had no previous violations within
five years before the day the violation was assessed. As a result, the Applicant properly
received the lowest possible TGV score, of zero, with respect to “compliance history”.

Intent or Negligence

[37] The Respondent next determined that the violation was committed as a result of a
negligent act. Although I agree that the Applicant was negligent, I find that the Respondent
assigned the wrong TGV score to the heading of “intent or negligence”.

[38] As my colleague determined in A. S. L’Heureux Inc. v. Canada (Canadian Food

Inspection Agency), 2018 CART 9 at para 75, negligence in the context of the AAAMP
Regulations occurs where:

“…the offender failed to take all of the measures that a responsible company would
have taken in the same circumstances to avoid the violation and did not take all
reasonable steps to ensure “the proper operation of the system.””

[39] For the following reasons, I find that the Applicant failed to take responsible steps
regarding the heifer and was therefore negligent.

[40] First, given its significant nature, the deformity on the animal’s hind left leg would
have been apparent to anyone looking at the limb. Second, the Applicant’s representative
wrote on the Animal Transport Record that the animal had a “sore foot”. Finally, the
Applicant’s representative acknowledged knowing that the animal was being culled due
to lack of a response to treatment for swelling. These factors persuade me that the
Applicant’s representative should have noticed the extent of the animal’s injuries and

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refused to load and transport it. His failure to do so, particularly given the obvious nature
of the animal’s injuries, was not responsible. It was negligent.

[41] The Respondent’s determination that the Applicant was negligent should have
resulted in a TGV score of three, rather than five, under the heading of “intent or

2023 CART 19 (CanLII)

negligence”.

[42] A penalty adjustment of five points under “intent or negligence” is reserved for
intentional acts, which this violation was not. I therefore determine that the appropriate
TGV score was three under “intent or negligence”.

Harm

[43] The Respondent’s well supported determination was that the violation caused or
would cause “serious or widespread harm” to the animal.

[44] First, as previously discussed, the evidence indicated the heifer was in obvious
pain prior to loading and transportation and upon arrival at the abattoir. Second, according
to the Respondent’s inspector’s uncontested report, after the heifer was stunned, but
before it was slaughtered, its arthritic, hind right leg broke “due to reluctance to bear
weight” on its deformed, hind left leg.

[45] Given the serious harm caused to the animal by the Applicant’s violation, the
Respondent properly imposed a penalty score of five under the “harm” heading.

Calculating the TGV Score

[46] Adding the appropriate scores together, the Applicant’s TGV score was eight,
rather than the ten that the Respondent had calculated.

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[47] Pursuant to Schedule 2 of the AAAMP Regulations, any TGV score from six
through ten results in no adjustment (either upwards or downwards) to the initial penalty
amount.

[48] As a result, the Respondent’s miscalculation does not impact the correctness of

2023 CART 19 (CanLII)

the penalty amount it imposed, which was properly left unadjusted from the base amount
of $10,000.00.

5. CONCLUSION

[49] The violation and the amount of the penalty are confirmed.

[50] The Applicant must pay the $10,000.00 penalty to the Respondent within sixty
days of notification of this decision.

[51] This violation is not a criminal offence. Pursuant to section 23 of the AAAMP Act,
five years after the date on which the Applicant pays the penalty, it has the right to apply
to the Minister of Agriculture and Agri-Food to have the violation removed from the
records.

Dated on this 26th day of June 2023.

Emily Crocco
Member and Chairperson
Canada Agricultural Review Tribunal