When is a consignee liable for the acts of a third party driver that it retained? What is the scope of a consignee’s “control” over goods? When transporting animals intended for slaughter, under what conditions is “undue suffering” deemed to occur? The Federal Court considered all of these issues in its decision on March 7, 2017 in the case of Maple Lodge Farms Ltd. v Canadian Food Inspection Agency (*1).
The Federal Court of Appeal dismissed Maple Lodge Farms’ application for an order quashing the decision of the Canadian Agricultural Review Tribunal (“CART”) that it had transported or caused to be transported spent hens in circumstances where undue suffering was likely to be caused to the hens due to undue exposure to weather, contrary to s. 143(1)(d) of the Health of Animals Regulations (the “Regulations”). (*2) In connection with the decision, the CART imposed an administrative monetary penalty of $6000. (*3)
Facts
“Spent hens” are hens which are at the end of their laying life and are usually sold by egg farmers to meat processors. Due to their age and tendency to peck each other in close quarters, spent hens have very few feathers. As a result of their careers laying eggs, many have calcium and muscle loss, and are fragile. Accordingly, they are vulnerable to environmental changes and the cold. (*4)
Maple Lodge Farms, located in Brampton, operated as a meat processor and was accepting a transfer of 7,680 spent hens from an egg farmer in New York. A trailer arrived at the egg farm at 7:30am to transport the hens to Maple Lodge Farms, where it arrived at midnight the same day. A finding of fact was made that Maple Lodge Farms did not have control over the transportation or the hens until they arrived in Brampton that night. (*5)
That morning (in January), the temperature ranged from -7 to -14 degrees Celsius and it was windy. It took four hours in the extreme cold to round up and catch the hens, place them in drawers and load them. The unheated trailer had mechanical problems with closing the tailgate and the hens remained stationary therein for four hours. The spent hens that were in the middle and close to each other may have been warmed but those near the outside would not. (*6)
It took 12 hours to get to Brampton. The weather in Quebec when the trailer entered the province was -18.1 (-27 with windchill). The trailer which was owned by Maple Leaf Farms used passive ventilation where very cold outside air infiltrates the trailer through gaps in the tarp as it moves, resulting in the hens’ exposure to cold temperatures over a long period of time. The driver also reported a strong headwind all the way and an expert witness testified that this would have pushed even more cold air into the trailer. (*7)
When the trailer arrived in Brampton, it was -5.9 (-8 with windchill). Upon arrival, the driver reported that there were 100 dead hens while Maple Lodge staff noticed only 12. The facility was undergoing a mandatory sanitation process and accordingly, the hens could not be slaughtered right away. Instead, they were kept in an unheated barn for 12 hours (a stage referred to as “lairage”) where the temperatures ranged between -2 and -4. The parties agreed that lairage is considered part of the transportation process and should be considered under s. 143(1)(d) of the Regulations. Staff took external temperatures of the crates in the trailer in the barn and they raged from 2 degrees to 12.4 degrees, although the inside temperatures were thought to be warmer. (*8)
When the trailer was finally unloaded 12 hours later, 863 hens (12% of the load) were found dead. (*9) Based on these facts, the CFIA issued a notice of violation against Maple Lodge Farms and an administrative monetary penalty of $7,800.
The Law
Section 143(1)(d) of the Regulations reads as follows:
“No person shall transport or cause to be transported any animal in a railway car, motor vehicle, aircraft, vessel, crate or container if injury or undue suffering is likely to be caused to the animal by reason of […] undue exposure to the weather.”
This is an absolute liability offence, meaning that the Minister must only show that the person named in the notice of violation committed the violation on a balance of probabilities. There is no requirement to prove the mental element / that there was intent and there is no due diligence defence. (*10)
These Regulations were made under s. 64(1) of the Health of Animals Act, which allows for regulations to be made for “the humane treatment of animals” including “the care, handling, and disposition of animals”, “the manner in which animals are transported” and “the treatment or disposal of animals that are not cared for, handled or transported in a humane manner.” (*11)
Expert Evidence
Maple Lodge Farms argued that the CART improperly accepted the CFIA’s expert witness’ evidence but the Federal Court of Appeal found that his testimony was supportable on the evidentiary record and therefore was within the range of acceptability and defensibility. (*12)
The CFIA’s expert, a veterinarian with training in animal welfare, husbandry and livestock transportation, testified that the hens would have been shocked from the extreme cold at the outset of the transport from the four hours that were taken to round them up and then the further time spent waiting at the egg farm before departing. [*13) He stated that they would never have fully recovered during the drive from New York to Brampton because of the temperature and additional cold air being forced into the trailer. He testified that the hens would not recover until they were in heated facilities. (*14)
This expert went on to say that their time spent in the unheated barn upon arrival at Maple Lodge Farms resulted in continued suffering and increased the risk of a negative outcome. (*15)
Reasoning of the CART
Based on the CFIA’s expert witness’ testimony, the CART concluded that the spent hens should never have been subjected to further unheated transport once they were shocked by the cold. (*16)
The CART found that “the fact of arrival of a compromised load, irrespective of the knowledge of Maple Lodge Farms as to the state of compromise, mean[s] that a violation has thereby been committed by Maple Lodge Farms” where “compromise” means actual or potential injury or undue suffering, due to undue exposure to the weather. It found that injury or undue suffering was likely from the time the hens were originally loaded and that Maple Lodge Farms “from the time of assumption of control, is responsible for any condition of the load existing at that time.” (*17)
Reasoning of the Federal Court of Appeal
The Court found that the CART erred in its application of absolute liability by applying automatic or vicarious liability. When it decided that Maple Lodge Farms was liable for causing undue suffering at the instant that the hens arrived at their facility, it neglected to consider that the suffering was actually caused by others and not Maple Lodge Farms. By doing so, the CART made Maple Lodge Farms automatically liable without considering whether it was actually culpable for the act in question under the Regulations, or alternatively, the CART made it vicariously liable for the acts of others rather than its own acts. (*18)
That being said, the Court noted that when a re-determination by an administrative decision-maker, such as the CART, could not reasonably result in a different outcome, then the decision should not be quashed. It held that when applying the law to the facts, the CART could only reasonably reach one conclusion, being that Maple Lodge Farms is still liable for a violation of s. 143(1)(d) of the Regulations, but for a different reason. (*19)
The Court noted that the Regulations should be interpreted to mean that the slaughter of animals is a legal activity and to consider that subsection (d) refers to “undue” suffering rather than any suffering. It follows previous case law that suggests that “undue” in connection with this section means “undeserved”, “unwarranted”, “unjustified” or “unmerited”. (*20)
The Court noted and Maple Lodge Farms conceded that the prolongation of undue suffering during lairage (which is considered part of transportation) can fall within s. 143(1)(d) and that wounded animals should not be subjected to greater pain by being transported. Accordingly, any further suffering from the transport is “undue”. (*21)
The Court held that “if a party has control over animals that, as a result of the conduct of others, have suffered unduly by reason of undue exposure to the weather and will continue to suffer unless something is done, and if that party has the ability to prevent further undue suffering but does nothing, it extends or prolongs undue suffering and can be liable under paragraph 143(1)(d).” (*22)
The CART found that the undue suffering of the hens continued while they were under the control of Maple Lodge Farms during the lairage as a result of Maple Lodge Farms’ inaction. The only way that it could escape liability is if it could prove that it was not culpable as there was nothing it could do to prevent the prolongation of the suffering. As this was not the first time that Maple Lodge Farms had received a shipment with spent hens who were suffering from undue exposure to weather, it should have anticipated the circumstance and made protocols or contingency plans to deal with it. (*23)
The CART found that Maple Lodge Farms’ operations and practices were deficient as there was no plan in place to deal with compromised shipments arriving during mandatory sanitization. It also had no procedure in place to allow for advice by the egg farm or driver that the load was compromised or the amount of time that the hens had spent at the egg farm in the extreme cold. If it had received that information, it could have declined the load and instructed the driver to transfer it to the nearest slaughterhouse rather than deliver it all the way from New York to Brampton. Additionally, it could have provided some heating in the barn at times where sanitization was occurring or delayed shipments so that spent hens only arrived when the facility was operating. (*24)
Accordingly the Court of Appeal upheld the CART’s decision that Maple Lodge Farms was liable under s. 143(1)(d) of the Regulations, but on the basis that it failed to take action to avoid prolonged undue suffering once the spent hens were in its care.
Conclusion
Based on the facts of this case, the Court held that the consignee’s control over the animals did not start until it actually had them in its possession. The consignee was also not found to be liable for the undue suffering of the animals that occurred while in they were in the possession of the shipper or the carrier, as the consignee did not “cause” that suffering. However, the Court found that pursuant to s. 143(1)(d) of the Regulations, the consignee was liable for prolongation of the animals’ suffering once they were in its possession because the consignee failed to act to avoid the prolongation and the circumstances of their suffering during “lairage”, a period that is still considered “transportation”, fell under the scope of the section at issue of the Regulations. While the consignee may not have been able to reverse the situation, it could have acted to avoid aggravating the undue suffering of the animals upon their delivery.
When arranging (i.e. causing) the transportation of livestock, in order to avoid liability associated with undue suffering of animals under s. 143(1) of the Regulations, shippers should ensure that the livestock is kept in suitable conditions to avoid undue suffering prior to the transportation. The shipper should also ensure that it provides the carrier with information regarding the state of the livestock and any precautions to be taken during transport.
Similarly, consignees should have proper procedures in place to avoid a situation to the present case where there is a period of lairage upon delivery of the livestock and the undue suffering of the animals either commences or is prolonged during that time.
Given that this section of the Regulations imposes liability on any “person who transports or causes to be transported” any animal, whether in a railway car, motor vehicle, aircraft, vessel, crate or container, carriers across all modes of transportation are more likely to be caught by this sub-section and the remainder of the section in general.
Accordingly, carriers should take the following precautions when transporting livestock:
(1) Consider the animal being transported and whether it is subject to any particular vulnerabilities. If so, extra precautions may need to be taken.
(2) When arriving to pick up the load of livestock, request a report from the shipper as to the conditions that the livestock have been in for the past few hours. Consider whether there are any risks of undue suffering if the livestock is then transported.
(3) Ensure that the method of transportation / means of containment is adequately constructed and does not have any insecure fittings, the presence of bolt-heads, angles or other projections.
(4) Ensure that the fittings and other parts method of transportation / means of containment are adequately padded, fenced off or otherwise obstructed.
(5) Ensure that the method of transportation / means of containment has adequate ventilation.
(6) If the method of transportation / means of containment is a railway car, motor vehicle, aircraft or vessel, ensure that it is (a) strewn with sand or fitted with safe and (b) secure footholds for the livestock and littered with straw, wood shavings or other bedding material. If the livestock is being transported for less than 12 hours, you need only comply with (a) or (b) but not both.
(7) Sea carriers must ensure that, if they are taking an equine on board a vessel for exportation out of Canada during November 1 to March 31, the facilities and equipment on board are provided and maintained so as to ensure that the equine does not become ill from sea-sickness due to rough seas.
(8) Ensure that you monitor the state of the livestock and keep records to show their condition upon receipt, during transportation, and upon delivery.
(9) Consider including in contracts of carriage a requirement that shippers notify the carrier of any concerns with the state of the livestock upon pickup and/or any extra precautions that may be needed, failing which the shipper is required to indemnify the carrier for any charges under the Regulations that arise out of the shipper’s failure to inform the carrier as described above.
(10) Similarly, consider including in contracts of carriage, a provision denying liability for any undue suffering that may result from the acts or omissions of the consignee during lairage and ensure that the proper consignee to whom the livestock is delivered is the named consignee on the bill of lading.
Endnotes
(*1) 2017 FCA 45.
(*2) CRC, c. 296.
(*3) Supra note 1, para 2.
(*4) Ibid., paras 4, 6.
(*5) Ibid., para 5.
(*6) Ibid., paras 7-8.
(*7) Ibid., paras 7-9.
(*8) Ibid., paras 7, 9-11.
(*9) Ibid., para 11.
(*10) Ibid., para 16-17.
(*11) SC 1990, c. 21, s. 64(1)(i).
(*12) Supra note 2, para 38.
(*13) Ibid., para 35.
(*14) Ibid.
(*15) Ibid., para 36.
(*16) Ibid.
(*17) Ibid., paras 40-41.
(*18) Ibid., para 45.
(*19) Ibid., paras. 46, 51, 56.
(*20) Ibid., paras 61-62.
(*21) Ibid., para 64.
(*22) Ibid., para 67.
(*23) Ibid., paras 68, 73.
(*24) Ibid., paras 74-75
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