Federal regulations require humane treatment in “the care, handling and disposition of animals”, including “the manner in which animals are transported within, into or out of Canada”. While humane slaughter of animals is permitted as legal activity, transportation of animals is prohibited in circumstances where “undue suffering is likely to be caused to the animal[s]” by reason of “undue exposure to the weather”. In what circumstances will a recipient of animals who have experienced “undue suffering” during transportation be liable for penalty for continuation of this undue suffering?
In a recent decision of the Federal Court of Appeal, the court considered an application by a meat processor for judicial review of a decision of the Canadian Agricultural Review Tribunal (CART) upholding an administrative monetary penalty imposed by the Canadian Food Inspection Agency on the processor following the processor’s acceptance of delivery of “spent hens” from an egg farmer in New York. In outlining the facts of the case, the court stated:
“Egg farmers collect and sell eggs laid by hens. At the end of the hen’s laying life, the hens – known as spent hens, have only one value to the farmers: the sale of their meat to meat processors.
“In this case, an egg farmer in Chazny, New York, transferred 7,680 spent hens to [a meat processor] … On a cold and windy January morning, a trailer showed up at the farm at 7:30 a.m. to transport the spent hens to [the processor’s] facility in Brampton, Ontario. [The processor] did not have control over the transportation or the spent hens until they arrived in Brampton roughly at midnight the same day.
“Due to the spent hens’ age and their tendency to peck each other in close quarters, they had missing feathers, perhaps even few feathers. Due to their egg laying careers, many have calcium and muscle loss and are fragile. Thus, they are vulnerable to environmental changes and the cold.”
With respect to the transportation of these spent hens, the CART hearing record established that the hens had spent hours in the extreme cold before leaving the farm; suffered extreme cold while in the unheated trailer with gaps in the tarp; and storage in an unheated barn at the processor’s facility for 12 hours. The court noted:
“Upon arrival at [the processor’s] facility, the driver reported that there were 100 dead spent hens in the load. [The processor’s] staff noticed only 12 dead. Twelve hours later, when the trailer was finally unloaded, 863 birds, roughly 12% of the load were found dead.”
In considering the liability of the processor, the court commented:
“Does [the regulation] attach liability only to positive acts or does it also cover omissions and failures to act? In my view, the purpose, context and text of [the regulation] supports the latter view. 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 unduly 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 [the regulation].”
In dismissing the processor’s application for review of the CART decision and administrative penalty, the court concluded:
“The evidence shows that from time-to-time [the processor] receives shipments containing some spent hens who are suffering unduly as a result of undue exposure to the weather. To avoid the liability that would result from doing nothing and creating a likelihood of extended or prolonged suffering and consistent with the proper interpretation of [the regulation], [the processor] must anticipate this circumstance and make protocols or contingency plans to deal with it. Evidence shows that protocols or contingency plans can be made …
“On this record, other plans or protocols were available to [the processor]. Some include: some heating of the barn during times that slaughtering facilities are unavailable due to maintenance or sanitizing procedures so that the spent hens are not exposed to ‘further unheated transport,’ a circumstance that prolongs undue suffering ….; the use of better trailers …; delaying shipments so that spent hens arrive only when the slaughtering facilities are able to operate and, if necessary can put unduly suffering spent hens quickly out of their misery; arranging its contractual affairs so that it has greater control over the loading and transportation of spent hens, thereby preventing the likelihood of undue suffering or the prolonging of undue suffering being caused; requiring better reporting to it during the transportation process so that it learns in advance problems like the hours at the farm the spent hens were kept stationary in the extreme cold and, if necessary, can instruct the driver to cancel the transportation and keep the spent hens in relative safety at the farm.”
Even where a recipient of animals which have experienced “undue suffering” is not responsible for their transportation, the recipient may nevertheless incur liability if the “undue suffering” is permitted to continue when it might have been prevented. In these circumstances, the recipient must be able to demonstrate protocols or contingency plans which terminate continued “undue suffering”.