Kohl v. Canada (Department of Agriculture), [1994] F.C.J. No. 1053

Application for judicial review. The applicant breeder of highland cattle owned a bull born April 1980 in Britain and exported January 31, 1982. A case of BSE disease was found in 1993 in a beef cow in Alberta which entered Canada in 1987. Contaminated feed used in Britain from January 1, 1982 was the suspected cause. By letter the applicant was informed of the respondent government department’s policy decision to destroy all cattle imported from Britain between 1982 and 1990. A Notice of Disposal was sent pursuant to section 48 of the Health of Animals Act requiring the destruction of the bull. It was established that the bull in question was never fed the suspected feed and was in excellent health. An interim injunction restraining the Minister from destroying the bull was granted on an application filed after the policy decision was made. An appeal was dismissed. A second application for judicial review was filed after the notice was received. The applicant argued that the discretion had been fettered, the notice fell outside the jurisdiction of the Act and improper matters had been considered.

The decision was quashed. Judicial review was available. Even though the decision was called a policy decision, it was a definite decision going beyond a mere guideline and thus subject to judicial review. Discretion left to the Minister under section 48(1) of Act was exercised by the policy directive issued. The Notice of Disposal relied on the earlier decision of the Minister. No improper fettering of the discretion arose, even though the notice was signed by a department veterinarian. The notice was not outside the jurisdiction given under the Act, even though it referred to suspected contact with the contaminated feed or suspected contact with the animal, whereas section 48(1) of the Act spoke only of “suspect” in connection with the suspect animal, not the feed. While the double reference to suspect was not found in the section, it would be too literal an interpretation to find that the wording meant that a notice which did not track the statutory language went beyond the jurisdiction given. No improper considerations were made. The decision to destroy was properly made after the department weighed Canada’s obligation to the international community as to the spread of disease. However, considering the history of the herd of origin, the lack of exposure to the suspect feed, the age of animal and date of importation as well as its health and the incubation period of the disease, the risk of being affected was virtually zero. The fact that the bull was in Britain for only two weeks at the beginning of the spread of the disease distinguished this case from similar cases. Therefore, the decision of the Minister as it related to this particular bull was patently unreasonable.

Source: Case Law

Jurisdiction: Canada (Federal)

Topics: bovinebulldestructiondiscretionary powersdiseased animalshealthnotice exercising discretionpolicy directives

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