ANIMALS |
Abel v. Canada (Minister of Agriculture)
T-3158-92
2001 FCT 1378, Campbell J.
13/12/01
10 pp.
Action for declaration Maximum Amounts for Destroyed Animals Regulations, s. 4 ultra vires--Plaintiffs farmed elk-- Animals destroyed under Health of Animals Act, s. 48 which came into force January 1, 1991--Plaintiffs received compensation under s. 4--Under previous legislation, Minister had discretion to pay compensation to owners of destroyed animals, provided compensation market value--Only provided authority to cap compensation to lesser than market value for horses, cattle, sheep--S. 4 setting maximum compensation payable at $3,500 for each male elk, $7,000 for each female, or less than full market value of plaintiffs' destroyed elk, which in 1990 was $13,500 for females and $15,000 for males--One of purposes of s. 4 to reduce cost of eradicating tuberculosis from farmed elk herds in Canada to within funds available to Minister--Health of Animals Act, s. 51(2) providing amount of compensation (a) market value minus (b) value of carcass--S. 51(3) providing "value mentioned in paragraph (2)(a)" shall not exceed any maxi- mum amount established by regulations--Plaintiffs arguing reference to "value mentioned in paragraph (2)(a)" to "market value, as determined by Minister", and therefore determination under s. 4 must have some relationship to market value; since amount of compensation decided under s. 4 having nothing to do with market value, quantum decided not authorized, s. 4 ultra vires--Action dismissed--"Value mentioned" in s. 51(3) meaning only outcome of process of valuation exercised under s. 51(2)(a), thus s. 51(3) cannot be read to import statutory requirement to have regard to market value of elk when determining cap to be placed on compensation to be made available by operation of s. 4--Nevertheless, on evidence Minister did have significant regard for market value of elk in making compensation determination contested herein--Based on extensive description of process, including consultation with elk owners, used to reach compensation decision, as described in "Regulatory Impact Analysis Statement" appended to Regulations, also clear that political, economic considerations properly in play in exercise of Minister's discretion--Minister chose to transfer health risk of elk ranching to ranchers, instead of absorbing it entirely through use of public funds--Minister entitled to do so-- Maximum Amounts for Destroyed Animals Regulations, SOR/91-222, s. 4--Health of Animals Act, S.C. 1990, c. 21, s. 51.