Date: 20010117
Docket: T-1869-00
Ottawa, Ontario, this 17th day of January 2001
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN:
ANTHEA ARCHER and DARREL ARCHER,
doing business as FAIRBURN FARM
Applicants
- and -
DR. GEORGE LUTERBACH,
THE CANADIAN FOOD INSPECTION AGENCY and
THE ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR ORDER AND ORDER
PELLETIER J.
[1] Before Anthea and Darrel Archer could import a herd of water buffalo from Denmark, they had to pay for a risk assessment to be performed by the Canadian Food Inspection Agency ("the Agency"). The assessment found no unacceptable risk associated with importing the herd into Canada. On the strength of that assessment, the Archers mortgaged their farm to pay for the animals and the costs associated with bringing them to Canada. This was not a risk-free transaction, as the cattle were required to go into quarantine upon arrival in Canada and to remain there for a significant period of time. Many things could go wrong during the quarantine period. What the Archers did not anticipate is that the initial decision to allow the herd into Canada could be revisited for reasons unrelated to the health of their herd. But that is exactly what happened.
[2] Within weeks of the water buffalo being settled in their new home, the Archers were informed by an official of the Agency that a cow in Denmark had died of Bovine Spongiform Encephalopathy ("BSE"), more colourfully known as Mad Cow Disease. As a result, the Agency conducted a new risk assessment of the risk to Canada of allowing the water buffalo to remain in Canada.
[3] In fact, two risk assessments were done. Both concluded that the risk of the water buffalo being infected with BSE was low but that if they were, the consequences to Canada were high. The consequences were high because countries who are not BSE-free face stringent trade barriers from nervous trading partners, barriers which, if applied to Canada, could devastate the livestock industry. As a result, the Archers were ordered to remove the herd from Canada or to surrender them for destruction.
[4] So the Archers find themselves in a very difficult position. To this day, there is no suggestion that any of their animals are infected with Mad Cow Disease. If they must remove or destroy the animals, they will be ruined. All of this is for the benefit of the Canadian public and more specifically, the Canadian livestock industry. One would think that the cost of protecting the public would be borne by the public. But the material before me shows that the Archers have spent approximately $165,000 with respect to this transaction, and that even if they recovered the full cost of the cattle, approximately $61,000, they would still be out of pocket $100,000. This amount is secured by a mortgage which is to say that the farm is not likely to be theirs any longer than the buffalo are. They could be forgiven for thinking that Parliament has allowed the cost of protecting the public to fall upon the naive and the unlucky. Their only hope is to have the order for removal or destruction set aside.
[5] It is necessary at this point to set the facts out more fully.
[6] The Archers are farmers who were looking for a way to make their farm more profitable while at the same time advancing their interests in organic farming. They learned that water buffalo are an excellent source of milk for cheesemaking, a fact which is well known in Italy where water buffalo mozzarella cheese is a premium product. They made inquiries and found a herd of water buffalo in Denmark which had originally been destined for export to Australia but which, for transportation related reasons, were available for export to Canada.
[7] The herd consisted of nine animals which were born in Eastern Europe and ten which were born in Denmark. The Eastern European animals were thought to have originated in Romania but subsequent inquiries showed that in fact they were born in Bulgaria and were shipped to Denmark when they were one year old. (This confusion accounts for the fact that two assessments which were subsequently undertaken. The first was conducted on the basis that the East European water buffalo originated in Romania. The second was conducted after the truth was discovered.) A number of buffalo from the same herd were previously been exported to Australia where they remain today, free of the threat of any governmental action.
[8] The Archers prepared a business plan which enabled them to secure a commitment for financing from Farm Credit Corporation. They also approached the Agency to obtain an import permit. There is a $1,000 fee for the preparation of a risk assessment which the Archers paid. A risk assessment was prepared but it did not consider the risk of BSE contamination because, at the time, Denmark was considered BSE-free and it was assumed that the Danish authorities did their own BSE assessment when the Eastern European cattle were admitted to Denmark. The report concluded that there was little risk to Canada in allowing the importation of the water buffalo to Canada.
[9] The Archers drew down the mortgage proceeds and paid for the water buffalo and the cost of getting them here. They arrived in Canada in January 2000.
[10] On February 29, 2000, the Archers were advised by a veterinarian employed by the Agency that a case of BSE in a native cow had just been confirmed in Denmark and, as a result, a new risk assessment would have to be done with respect to the water buffalo. As the months passed, the Archers made inquiries as to the status of the risk assessments but nothing came of the inquiries.
[11] On Friday, September 1, 2000, the Archers were hand-delivered a Notice to Remove Water Buffalo from Canada, the operative portions of which read as follows:
| ... you are advised that the importation of these water buffalo are in contravention of the Health of Animals Act, Statutes of Canada 1990, c. 21 and Regulations made thereunder as the animals are or could be affected or contaminated by the disease Bovine Spongiform Encephalopathy (BSE). |
| Therefore, pursuant to subsection 18(1)(b) of the Health of Animals Act, I require you to remove from Canada the said water buffalo during the period commencing on the date of this notice and ending no later than midnight, September 15th, 2000. |
[12] The Notice was signed by Dr. George Luterbach, Inspector, Health of Animals Act.
[13] The Archers retained counsel who wrote to the Agency advising that section 18 of the Act required reasonable grounds to believe that the animals in question were infected with disease. Counsel asked for and ultimately received copies of the risk assessment relied upon by Dr. Luterbach.
[14] On September 21, 2000, the Archers commenced an application for judicial review of the order dated September 1, 2000. One of the arguments upon which they relied was the absence of any reasonable grounds for believing that the water buffalo were infected with disease.
[15] On October 5, 2000, the Archers received new documents from the Agency. The first was a revocation of the September 1, 2000 order. However, the Archers' joy was short-lived as the second document was an order pursuant to section 48 of the Act that the water buffalo either be removed from Canada or surrendered for destruction. The operative parts read:
| ... pursuant to subsection 48.(1) of the Health of Animals Act, Statutes of Canada 1990, c. 21, I hereby require you to dispose of the water buffalo during the period commencing on the date of delivery of this Notice and ending on November 6, 2000 by removing them from Canada or by delivering the animals to the Animal Diseases Research Institute, Township Road 9-1, Lethbridge, Alberta, T1J 3Z4 for destruction. |
[16] The second notice was signed by Dr. Luterbach as well. The evidence is that on October 5, 2000, the same day as the notice was issued, Dr. Luterbach received legal advice that he should be proceeding under section 48 instead of section 18 of the Act. The evidence is that the only documents reviewed by Dr. Luterbach before issuing the October 5th order was the draft version of a risk assessment report dated September 8, 2000 A prior draft risk assessment report, dated August 23, 2000, had been reviewed by Dr. Luterbach prior to issuing the September 1, 2000 order. The two assessment reports are virtually identical, the first was prepared in the belief that the East European water buffalo came from Romania. When it was discovered that the animals originated in Bulgaria, the second report was prepared.
[17] Both risk assessments came to the same conclusion. The uncertainty as to the status of the animals from Eastern Europe created a problem. The conclusion in both reports is the same:
| The overall risk estimation, given a low to medium release probability, low exposure probability and very high consequences, is moderate. This assessment does not consider the human health consequences. |
[18] The reference to "high consequences" is a reference to the following part of the risk assessment:
| Consequence Assessment |
| The consequences of the identification of a case of BSE in native animal in Canada are likely to be very high. In addition, the political consequences resulting from the fact that, on paper, Canada has imported ruminants from a BSE infected country can also be considered high. |
[19] Both risk assessments acknowledge that there has been no reported case of BSE in water buffalo anywhere in the world. The risk assessments conclude that the risk of exposure to BSE for the Danish-born cattle is low but that there is more uncertainty and therefore more risk with respect to the Bulgarian born animals. However, half of the original Bulgarian herd from which the Archers' water buffalo are drawn, are currently being milked for cheese in Denmark. Water buffalo exported to Australia from Bulgaria are not considered to be a BSE risk by that country, whose BSE-free rating is higher than Canada's.
[20] The Archers say that the Minister's order must be struck down for one or more of the following reasons:
| - the Minister has made an order under section 48 of the Act which that section does not contemplate. The current Ministerial order requires the Archers to remove the water buffalo or to surrender them for destruction. Section 48 of the Act which is invoked by the Minister permits the Minister to order someone to dispose of cattle. "Dispose" is said by the Act to include "slaughter or otherwise destroy, bury or render". The order to remove the animals is outside the scope of section 48 and as a result, the entire order must therefore be set aside. |
| - the Minister's delegate, Dr. Luterbach, acted for irrelevant considerations and failed to take into account relevant considerations. The irrelevant considerations are the concern for Canada's BSE status with the European Union and its other trading partners. The relevant considerations which were ignored were the facts which suggested that there is next to no chance that these water buffalo pose a health threat to anyone. |
| - the Minister's delegate, Dr. Luterbach, was biased when he issued the order under review here because he had previously issued an order under section 18 of the Act which he withdrew following receipt of legal advice. That order was replaced by the order under review. It is said that he could not possibly approach the issuance of the section 48 notice with an open mind, having previously decided the issue by making the order under section 18_ of the Act. |
[21] In the course of argument, another ground which was referred to in the Archers' submissions was brought to the forefront when the Court asked the parties to comment on the application of the Federal Court of Appeal's decision in Haghighi v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 854, (2000), 257 N.R. 139, to the facts of this case. As a result, the Archers say, in addition to the grounds advanced above, that the Minister denied them procedural fairness by failing to put the risk assessments before them prior to making his decision so that they could comment on them, correct errors, and supply information which was absent.
Issues
| [22] 1- Given that this is a judicial review of a discretionary decision of a federal board commission or tribunal, what is the appropriate standard of review? |
| 2- Is the notice, given under section 48 of the Act, grounds for intervention by the Court? |
| 3- Were the Archers denied natural justice when they were not allowed to participate in the decision making process? |
| 4- Was there a reasonable apprehension of bias with respect to the section 48 notice? |
Analysis
[23] The starting point for the review of a discretionary decision of a federal board commission or other tribunal is determining the standard of review. National Bank of Greece (Canada) v. Bank of Montreal, [2000] F.C.J. 2105. However, there are issues on which the standard of review does not enter into play. There is no policy of deference, for example, with respect to denial of natural justice. If a tribunal fails with respect to its duty of fairness, this Court will intervene without regard to the issue of standard of review.
[24] However, there is room for deference with respect to errors of law. In Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557, (1994), 168 N.R. 321, the Supreme Court of Canada found that an appellate court sitting on an appeal from an expert statutory tribunal should show some deference for errors of law within the tribunal's area of expertise, particularly where the tribunal is involved in formulating the policy which is reflected in the law:
| [para74] Where a tribunal plays a role in policy development, a higher degree of judicial deference is warranted with respect to its interpretation of the law. This was stated by the majority of this Court in Bradco at pp. 336-37: |
| . . . a distinction can be drawn between arbitrators, appointed on an ad hoc basis to decide a particular dispute arising under a collective agreement, and labour relations boards responsible for overseeing the ongoing interpretation of legislation and development of labour relations policy and precedent within a given labour jurisdiction. To the latter, and other similar specialized tribunals responsible for the regulation of a specific industrial or technological sphere, a greater degree of deference is due their interpretation of the law notwithstanding the absence of a privative clause. |
[25] The question of standard of review with respect to the Minister's decision will therefore turn on a pragmatic and functional analysis in which the Minster's expertise will be a significant factor. The Minister's role in policy development is also a factor to be considered. The range of factors to be considered was set out in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, (1988) 226 N.R. 201.
[26] The decision under review here is a decision of an individual who is an Inspector acting under the terms of the Health of Animals Act. The Inspector is a veterinarian. The section under which the action is taken requires the decision to be made by the Minister. Dr. Luterbach is therefore acting as the Minister's delegate. The decision is one having to do with an order for the removal or destruction of cattle who may be infected with a dangerous disease. In making his order, the Inspector relied upon written risk assessments prepared by others. The considerations adverted to in the risk assessment have to do with likelihood of contamination and the consequences of contamination. To that extent, the decision engages interests beyond those of the immediate parties since one of the objectives of the Act is to prevent the spread of disease in cattle. Such an objective is designed to protect the integrity of the food supply by protecting the integrity of the livestock industry. There are public as well as private interests to be considered. The Act does not contain a privative clause with respect to the Inspector's order even though it has such a clause in relation to awards of compensation for cattle which are destroyed. However, there is a clause (section 50) which protects those who perform duties under the Act from civil liability as a result of the execution of their duties.
[27] The object of a pragmatic and functional analysis is to determine whether the question before the tribunal is one which it must answer correctly, or whether the tribunal will be allowed some leeway in its interpretation of the law or the facts. This is primarily a function of the expertise and specialization of the tribunal and the nature of the question. This is why one reads references to "an expert tribunal acting within its area of expertise". The standard of review must be read as referring to the standard to be applied to a particular tribunal making a particular kind of decision.
[28] In this case, the Minister, acting through his departmental advisors, can be taken to have both technical expertise and the responsibility for assessing the non-technical aspects of the decision. The latter is not so much expertise as perhaps accountability. In any event, like technical expertise, it is grounds for deference. The decision itself is largely one of fact, though it requires a legal choice to be made: which section does one proceed under? This is not a boundary or threshold question in the sense that it requires a decision as to whether the Minister has the legislative authority to deal with a problem. Such questions are often framed as jurisdictional and do not receive much deference. The decision here is one involving remedies available under a particular section of the Act. It is a decision which could amount to an error of law if the standard of review were correctness. If the standard of review is other than correctness, it may not amount to an error of law because if the Court defers to the tribunal's decision, the tribunal's interpretation will settle the law for those purposes.
[29] And what kinds of questions must be answered correctly? In Pushpanathan, supra, Bastarache J. said that jurisdictional questions are questions which must be answered correctly:
| To this extent, it is still appropriate and helpful to speak of "jurisdictional questions" which must be answered correctly by the Tribunal in order to be acting intra vires. But it should be understood that a question which "goes to jurisdiction" is simply descriptive of a provision for which the proper standard of review is correctness, based on the outcome of the pragmatic and functional analysis. In other words, "jurisdictional error" is simply an error on an issue with respect to which, according to the outcome of the pragmatic and functional analysis, the tribunal must make a correct interpretation and to which no deference will be shown. |
[30] Armed with this knowledge of the nature of questions which are bound to be decided correctly, I turn to an examination of the statute itself:
| 18. (1) Where an inspector or officer believes on reasonable grounds that an animal or thing has been imported into Canada and that it (a) was imported in contravention of this Act or the regulations, (b) is or could be affected or contaminated by a disease or toxic substance, or (c) is a vector, the inspector or officer may, whether or not the animal or thing is seized, require the owner or the person having the possession, care or control of the animal or thing to remove it from Canada. (4) Where the animal or thing is not removed from Canada as required under this section, it shall, notwithstanding section 45, be forfeited to Her Majesty in right of Canada and may be disposed of as the Minister may direct. 48. (1) The Minister may dispose of an animal or thing, or require its owner or any person having the possession, care or control of it to dispose of it, where the animal or thing (a) is, or is suspected of being, affected or contaminated by a disease or toxic substance; (b) has been in contact with or in close proximity to another animal or thing that was, or is suspected of having been, affected or contaminated by a disease or toxic substance at the time of contact or close proximity; or (c) is, or is suspected of being, a vector, the causative agent of a disease or a toxic substance. |
| 18. (1) S'il a des motifs raisonnables de croire qu'un animal ou une chose importés au Canada soit l'ont été en contravention avec la présente loi ou les règlements, soit sont contaminés par une maladie ou une substance toxique, ou sont susceptibles de l'être, soit encore sont des vecteurs, l'inspecteur ou l'agent d'exécution peut ordonner à leur propriétaire ou à la personne qui en a la possession, la responsabilité ou la charge des soins de les renvoyer à l'étranger, même quand ils ont été saisis. (4) En cas d'inexécution de l'ordre, l'animal ou la chose visés sont, malgré l'article 45, confisqués au profit de Sa Majesté du chef du Canada et il peut en être disposé -- notamment par destruction -- conformément aux instructions du ministre. 48. (1) Le ministre peut prendre toute mesure de disposition, notamment de destruction, -- ou ordonner à leur propriétaire, ou à la personne qui en a la possession, la responsabilité ou la charge des soins, de le faire -- à l'égard des animaux ou choses qui_: a) soit sont contaminés par une maladie ou une substance toxique, ou soupçonnés de l'être; b) soit ont été en contact avec des animaux ou choses de la catégorie visée à l'alinéa a) ou se sont trouvés dans leur voisinage immédiat; c) soit sont des substances toxiques, des vecteurs ou des agents causant des maladies, ou sont soupçonnés d'en être. |
[31] The issue between the parties is whether the Minister can order removal of the animals in an order made pursuant to section 18 of the Act or whether removal can only be ordered under section 48 of the Act.
[32] One notes that section 18 of the Act begins with a requirement that an inspector believe that an animal has been imported into Canada on reasonable grounds. If that condition is met, and the inspector meets a further condition, which is that he believe on reasonable grounds that it is or could be affected or contaminated by disease or a toxic substance, then the inspector may require the person having the control or care of the animal to remove it from Canada. No alternate disposition is provided in the section.
[33] Section 48 of the Act, on the other hand, provides that the Minister may dispose of an animal or require it to be disposed of, where the animal is suspected of being affected or contaminated by a disease or a toxic substance. Section 2 of the Act defines "dispose" as including " slaughter or otherwise destroy, bury or render".
[34] The Archers argue that where animals are imported, the Minister is limited to dealing with them under section 18 of the Act unless emergency circumstances require recourse to section 48. More specifically, the Archers say that the order made under section 48 is invalid because it includes removal, which a remedy specifically provided for in section 18. Counsel for the Minister argues that the definition of dispose in the Act is not exhaustive, and the common use of the word dispose would include removing from the jurisdiction.
[35] What emerges from this is that this not a question which is required to be answered correctly. It does not affect the reach of the Minister's activities. As long as the Minister has the authority to order removal or disposal, a wrong answer does not give the Minister powers which he would not otherwise have. A wrong answer to the question does not change the objects of the act and by extension, the framework within which the Minister must exercise his discretion. A wrong answer simply means that the Minister is doing what he would otherwise be entitled to do, but has identified the wrong justification for his action.
[36] If it need not be answered correctly, must the decision simply be reasonable or must it be patently unreasonable before the Court will intervene. In my view, it is not necessary to answer the question because the Minister's position meets the higher standard, that of reasonableness. The fact of giving the applicants a choice as to whether to return their herd to Denmark or destroy it, is not, on the basis of the powers which the Minister enjoys, unreasonable. On that basis, I would not intervene with Dr. Luterbach's order of October 5, 2000 on the ground of error of law.
[37] I turn now to the second issue, procedural fairness. Once it became known that a native Danish cow had died and that Denmark had lost its BSE-free status, a process of assessment (or reassessment) was undertaken. The applicants inquired several times as to whether they could provide any information which the respondents might require. They located information which the respondents did not have. The respondents did not acknowledge any of the applicants' communications. They did not give the applicants an opportunity to respond to the assessments which they prepared in the process of making their decision.
[38] In Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, (1999), 243 N.R. 22, the Supreme Court of Canada elaborated upon the participatory rights which individuals have when certain decisions are being made about them. The Court's analysis of Mrs. Baker's participatory rights is reproduced below:
| ¶ 31 Several of the factors described above enter into the determination of the type of participatory rights the duty of procedural fairness requires in the circumstances. First, an H & C decision is very different from a judicial decision, since it involves the exercise of considerable discretion and requires the consideration of multiple factors. Second, its role is also, within the statutory scheme, as an exception to the general principles of Canadian immigration law. These factors militate in favour of more relaxed requirements under the duty of fairness. On the other hand, there is no appeal procedure, although judicial review may be applied for with leave of the Federal Court -- Trial Division. In addition, considering the third factor, this is a decision that in practice has exceptional importance to the lives of those with an interest in its result -- the claimant and his or her close family members -- and this leads to the content of the duty of fairness being more extensive. Finally, applying the fifth factor described above, the statute accords considerable flexibility to the Minister to decide on the proper procedure, and immigration officers, as a matter of practice, do not conduct interviews in all cases. The institutional practices and choices made by the Minister are significant, though of course not determinative [page843] factors to be considered in the analysis. Thus, it can be seen that although some of the factors suggest stricter requirements under the duty of fairness, others suggest more relaxed requirements further from the judicial model. |
[39] In order to determine the content of the duty of fairness, another analysis is required. The decision in issue here involves consideration of a number of factors, ranging from the private interests of the Archers to the public interest in a safe and profitable livestock industry. The diversity of the interests involved would, in my view, suggest a right of consultation to ensure that the Archers had an opportunity to speak to those factors which militated against their interest. The fact that the decision is made in the context of an ongoing obligation to prevent the spread of disease suggests a lesser right of participation in that the existence of disease is not generally a matter for debate. The fact that the consequences of the decision will be catastrophic for the Archers argues strongly in favour of greater participatory rights. The significance of the decision for the individual was identified as a strong indicator of participatory rights in Baker, supra. Finally, granting participatory rights would not require the Agency to alter existing procedures beyond providing the persons affected with a copy of the risk assessment before a decision is taken, and allowing them to respond to the risk assessment. This is minimally disruptive, if it is disruptive at all, of existing procedures, at least where there are no pressing time constraints. In those cases where time is an issue, the right to participate could be tailored to fit the circumstances. On the basis of all of the above, I conclude that the Archers were entitled, as a matter of procedural fairness, to have an opportunity to participate in the decision-making process and that they were denied this opportunity. They were entitled to be given a copy of the risk assessments upon which the Minister's delegate relied, and to have an opportunity to respond to the risk assessment before the decision was made.
[40] This situation is analogous to that in Haghighi, supra, [2000] F.C.J. No. 854. Haghighi applied for an exemption from the requirement that an application for landing be made from outside Canada upon humanitarian and compassionate grounds as provided in subsection 114(2) of the Immigration Act. The officer who decided the application had before him a risk assessment prepared by a Post Claims Determination Officer which minimized the risk to the applicant upon return to his native Iran. The basis of the applicant's request for humanitarian and compassionate treatment was that, as a convert to Christianity, he would be treated as an apostate by the Iranians. In his view, this would put him at considerable risk of harm. The risk assessment relied heavily upon material which minimized the risk to the applicant and ignored other material which suggested a high risk of mistreatment. The application for humanitarian and compassionate treatment was rejected largely on the basis of the risk assessment report, which was not disclosed to the applicant at any time.
[41] The judge hearing the matter at first instance, Gibson J., relied upon Baker, supra, in coming to the conclusion that the applicant was owed the right to participate in the decision by being given the risk assessment report and being given the chance to correct mistakes or omissions before a decision was made with respect to his application. The basis of the conclusion was the risk to Haghighi's personal safety . The Federal Court of Appeal affirmed the decision and the underlying analysis. It noted in particular that where the consequences to the individual are severe, and the risk assessment report is significant in terms of the final decision, the duty to disclose the report and allow commentary is more easily found.
[42] In this case, as in Haghighi, supra, we have a decision based upon a risk assessment prepared by someone other than the decision maker. In Haghighi, there were conflicting opinions in the material relied upon by the Post Claim Determination Officer. In this case, the officers preparing the assessment had information which was contrary to the position they adopted, specifically the attitude of the Australian authorities who advised that they say no risk in the animals which they had from the same herd. In both cases, the conflicting information was not communicated to the person affected by the decision. Finally, in both cases, the consequences to the person affected were very significant. The Archers are not exposed to the risk of mistreatment but they are exposed to financial ruin. I find Haghighi is applicable to the facts of this case and supports my view that the Archers did not receive procedural fairness.
[43] For these reasons, I find that the applicants were denied procedural fairness and as a result, the decision under review must be set aside. The applicants requested additional relief in the form of an order that the Minister be enjoined from taking further proceedings against these animals under the Health of Animals Act. I am not prepared to make any such order because, in the absence of misconduct on the part of the Minister or his officials, it would amount to substituting my risk assessment for the Minister's. I do not have the jurisdiction to do so. I have not been shown any reason why the Minister should not be allowed to do his duty as he sees fit. The Minister may consider it his duty to issue a fresh order seeking the removal or the destruction of this herd of water buffalo. It is for him to decide whether grounds exist for such a course of action. He is entitled to consider the public interest in a BSE-free Canada in his deliberations. But it is sincerely to be hoped that he will show the same level of concern for the fate of the applicants, whose only fault in all of this was to rely upon a risk assessment for which they were charged $1,000.
[44] The applicants argued that they should be entitled to solicitor client costs because of the misconduct of the Minister and his officials in the handling of this file. The applicants argued that there was misconduct on the part of the Minister's officials when they withdrew the section 18 notice and substituted the section 48 notice in its stead in an apparent attempt to bolster their legal position. This course of action was described as reprehensible. A further instance of misconduct was attributed to Dr. Luterbach whose issuance of the section 48 notice was said to be tainted by bias. It was said that Dr. Luterbach could not issue the second notice with an impartial mind because he had issued the first notice. It was acknowledged that this was bias in the technical sense and not an accusation of malice.
[45] I find that the withdrawal of one notice and the substitution of another was not reprehensible conduct. If, after consulting with his legal advisers, the Minister was of the view that the application for judicial review which was then pending would likely succeed, there was nothing untoward about withdrawing the notice. Equally, there was nothing untoward about issuing another notice. There had been no adjudication on the merits. Counsel's argument amounts to saying that the Minister should have put the applicants to the expense of completing the first judicial review before issuing the second notice. The Minister was within his rights to do what he did, and in doing so, he may well have saved the applicants considerable sums of money.
[46] Given that it was acknowledged that the bias alleged is bias in the technical sense of the word and not an allegation of malice towards the applicants, I do not consider it to be misconduct for purposes of assessing costs. I make no finding as to whether what occurred in this case was in fact a case of technical bias as it is unnecessary for me to so dispose of this matter.
[47] In the result, the applicants have succeeded in setting aside the order under review. But there is no misconduct which would justify my interference with the Minister's discretion as to the further handling of this matter. Nor is there misconduct which would justify an extraordinary order with respect to costs. Given that the applicants have been successful, and that they are in no way responsible for what has befallen them, I will order costs in their favour to be assessed in the midrange of column four.
ORDER
The order of October 5, 2000, pursuant to section 48 of the Health of Animals Act, providing for the removal from Canada or surrender for destruction of water buffalo currently in the possession of the applicants, is hereby set aside. The applicants shall have their costs to be assessed in the midrange of column four.
"J.D. Denis Pelletier"
Judge