Barnett v. Canada ( Minister of Agriculture and Agri-Food )
T-1039-96
Reed J.
10/7/96
18 pp.
Application to set aside removal order of 250 alpacas imported from Chile-Animals presently held in quarantine facility at Mirabel, Quebec-Respondent ordering them removed from Canada as conditions attached to import permit issued to applicant breached-Export health certificate given by Chilean veterinarian to official of Department of Agriculture and Agri-Food Canada (AAFC)-Veterinarian stating in certificate vaccine for foot and mouth disease (FMD) not administered in Chile officially in past 12 months-Certificate given by Chilean veterinarian false-Four animals tested positive for FMD anti-bodies-Alpacas arriving in Mirabel on March 3, 1996-Issuance to applicant of removal order signed by Dr. Anderson on April 19, 1996-Second removal order on April 30, 1996 also signed by Dr. Anderson-Applicant seeking order to set aside April 30, 1996 removal order on two grounds: 1) decision not made by Dr. Anderson but by Dr. Olson who had no authority to make it; 2) decision maker fettered discretion in wrongly understanding having no real choice other than to order animals removed from Canada-Health of Animals Act, s. 18 authorizing "inspector or officer" to order animal removed from Canada where that person has reasonable grounds to believe one of number of circumstances exist-Removal order of April 19 not proper and valid exercise of independent authority conferred on "inspector" or "officer" by s. 18-April 19 removal order null and void-On both occasions, Dr. Anderson acting in accordance with Dr. Olson's directives-Second decision raising reasonable apprehension of bias-Breach of permit condition not automatically breach of Act or regulation under which issued-Can be made such by express terms of Act, regulations-Under Health of Animals Regulations, ss. 10(1), 160.1, failure to comply with conditions attached to permit contravention of Regulations-Alpacas brought into Canada under conditions not in accordance with permit issued, in contravention of Regulations-Animals forfeit to Crown upon importation pursuant to permit conditions of which have not been complied with-Act, s. 17 giving Minister authority to dispose of them as he may direct-Primary intention of Act to prevent introduction or spread of communicable diseases in Canada-Fulfilment of permit conditions not matter within applicant's control-Breach resulting from actions of Chilean officials and to some extent from inattention of AAFC officials-Removal order issued on understanding removing and destroying vaccinate, extending quarantine period, conducting further testing in order to decide whether or not animals should be released to applicant not option open to AAFC officials-Decision based on fettered discretion, set aside-Removal order quashed, matter referred back for reconsideration and redetermination-Open to AAFC officials, in exercising Minister's authority, to decide to release some or all of animals to applicant-Application allowed-Health of Animals Act, S.C. 1990, c. 21, ss. 17, 18-Health of Animals Regulations, C.R.C., c. 296 (as am. by SOR/91-525, s. 2), ss. 10(1), 160.1 (as enacted by SOR/93-159, s. 18).