ANIMALS |
Archer v. Luterbach
T-1869-00
Pelletier J.
17/1/01
22 pp.
Application for judicial review of order made under Health of Animals Act, s. 48 and providing for removal from Canada or surrender for destruction of water buffalo, imported from Denmark currently in possession of applicants--Applicants having to pay for risk assessment to be performed by Canadian Food Inspection Agency--Two risk assessments done, second after case of Bovine Spongiform Encephalopathy (BSE) reported in Denmark--Both concluding risk of water buffalo being infected with BSE low but if so, consequences to Canada high--Applicants ordered to remove herd from Canada, to surrender them for destruction--Will be ruined if must remove, destroy animals--On September 21, 2000, applicants commenced application for judicial review of order dated September 1, 2000--Both risk assessments acknowledging no reported case of BSE in water buffalo anywhere in world--Starting point for review of discretionary decision of federal board, commission, other tribunal determining standard of review--Question of standard of review with respect to Minister's decision turning on pragmatic, functional analysis in which Minister's expertise significant factor--Decision under review decision of inspector, Dr. Luterbach, acting under terms of Health of Animals Act, as Minister's delegate--Minister, acting through departmental advisors, having both technical expertise, responsibility for assessing non-technical aspects of decision--Minister's position meeting higher standard, that of reasonableness--Fact of giving applicants choice to return herd to Denmark or destroy it, not, on basis of Minister's powers, unreasonable--Court not intervening with Dr. Luterbach's order of October 5, 2000 on ground of error of law--Second issue procedural fairness--Respondents not acknowledging any of applicants' communications--Not giving applicants opportunity to respond to assessments prepared in process of making decision--Diversity of interests involved suggesting right of consultation to ensure applicants had opportunity to speak to factors militated against interest--Applicants entitled, as matter of procedural fairness, to have opportunity to participate in decision-making process, denied such opportunity--Entitled to be given copy of risk assessments upon which Minister's delegate relied, to have opportunity to respond to risk assessment before decision made--Applicants denied procedural fairness--Decision under review must be set aside--No misconduct justifying Court's interference with Minister's discretion as to further handling of matter--Application allowed--Health of Animals Act, S.C. 1990, c. 21, s. 48.