The Courts have observed that Canada’s Health of Animals Regulations, which are enforced by the CFIA, may sometimes operate in “draconian ways”. Everyone involved in the transportation of livestock is at risk of being penalized if animals are injured or die due to weather conditions, regardless of the steps they may take to minimize the loss.

If livestock are injured or die during transport, shippers, truckers and processors face the prospect of absolute liability and stiff fines if they have done, or have failed to do, anything that might have caused “undue suffering” caused by “undue exposure to weather”. Due diligence is no defense. Honest belief in exonerating facts is no defense.

In a recent court decision – Maple Lodge Farms Ltd v. Canada (CFIA) 2017 FCA 45, the Federal Court of Appeal considered the application for judicial review brought by a poultry processor. The appeal contested an administrative penalty which was assessed by the CFIA. The administrative penalty was reduced to $6,000 by the Canadian Agricultural Law Tribunal.

7,680 “spent hens” had been trucked from a New York egg producer in an unheated trailer, protected only by a tarp, in temperatures between -4 and -18 Celsius. The truck was delayed for four hours en route due to a mechanical problem. Approximately 100 of the hens were dead on arrival. 863 hens died in the trailer while they waited to be slaughtered at Maple Lodge’s Brampton Ontario plant. The hens could not be slaughtered immediately on arrival because the plant was undergoing required sanitation procedures.

Maple Lodge argued that the suffering was caused by the trucker and not Maple Lodge, and that the Tribunal had mistakenly imposed a standard of automatic liability without considering who was responsible for the loss.

The Court agreed that the Tribunal had erred in its interpretation in its decision, but upheld the penalty on the grounds that the suffering of the hens had been prolonged by Maple Lodge because, on the facts found by the Tribunal, the hens had to wait in the trailer in an unheated barn “lairage” at the processing plant, while they waited to be slaughtered.

To borrow a worn out Yodaism — Do. Or do not. There is no try.