Kohl v. Canada ( Federal Department of Agriculture )
A-345-94
Marceau and Desjardins JJ.A.
21/7/95
15 pp.
Appeal from Trial Division decision ((1994), 81 F.T.R. 35) quashing decision of Minister of Agriculture and enjoining all concerned from destroying respondent's bull-Decision quashed by impugned order made by Minister on December 14, 1993 under Health of Animals Act, s. 48-First case of Bovine Spongiform Encepha-opathy (BSE) recognized in United Kingdom in 1986-First case of BSE in Canada diagnosed on December 7, 1993-Threat posed by BSE could adversely affect whole Canadian beef industry in international market-Agriculture Canada determining all cattle imported from United Kingdom from January 1, 1982 until date of ban in 1990 had to be destroyed subject to compensation to owners-Respondent's bull one of 64 bulls affected by December 14, 1993 determination-Respondent basing application for review of Minister's decision on four grounds-Motions Judge rejecting three of them-Fourth ground found convincing by Motions Judge: Minister failed to take account of relevant considerations-According to Motions Judge, period spent by respondent's bull in quarantine not long enough to have resulted in infection-Subject bull could not have contracted disease, was not affected-Decision of Minister to destroy subject bull patently unreasonable, had to be quashed-Per Marceau J.A.: Order under appeal cannot be allowed to stand-Motions Judge not entitled to grant application for judicial review-Impugned decision of Minister administrative decision of executive nature, policy decision not subject to requirements of rules of natural justice or procedural fairness-Good faith of Minister never questioned-Decision made within parameters of provision-Court called upon to verify if decision-maker's suspicion can find support in evidence-Motions Judge substituting own opinion for that of Minister-Act requiring Minister to exercise considerable expertise with regards to health of Canadian livestock and risks imposed by potential parasites, to act on basis of mere suspicion-No bull living in United Kingdom at time when contaminated feed in circulation may be definitely clear from suspicion-Minister's suspicion, decision not unreasonable-No ground on which application for judicial review could succeed-Minister, officers acting in good faith-Appeal dismissed without costs-R. 1618 requiring special reasons to award costs on application for judicial review-No special reason herein-Policy applicable to costs on judicial review requiring no costs on appeal-Per Desjardins J.A. (Chevalier D.J. concurring): General rule as to costs in appeal successful party entitled to costs even if appeal from decision made pursuant to s. 28 application-R. 1618 applicable at first level only-No policy reasons against award of costs on appeal-Appeal dismissed with costs-Health of Animals Act, S.C. 1990, c. 21, s. 48-Federal Court Rules, C.R.C., c. 663, R. 1618 (as enacted by SOR/92-43, s. 19)-Federal Court Act, R.S.C., 1985, c. F-7, s. 28 (as am. by S.C. 1990, c. 8, s. 8; 1992, c. 26, s. 17; c. 49, s. 128).