Judgments

[1994] 3 .F.C. 17

T-132-94

Walter Jerram (Applicant)

v.

The Minister of Agriculture for Canada (Respondent)

Indexed as: Jerram v. Canada (Minister of Agriculture) (T.D.)

Trial Division, Noël J.—Edmonton, March 9; Ottawa, March 18, 1994.

Animals — Application to quash notice requiring disposal of bull imported from U.K. in 1989 — Health of Animals Act, s. 48 permitting Minister of Agriculture to require disposal of animal suspected of being affected or contaminated by disease — Policy guidelines established providing for destruction of all cattle imported from U.K. since outbreak of bovine disease epidemic in 1982 in U.K. — Applicant’s representations specifically addressed — Aim of s. 48 to prevent spread of disease — Concerns of all those potentially affected, including trading partners, relevant in deciding course of action under s. 48, particularly in assessing tolerance level of acceptable risk, once existence of communicable disease established — Applicant not demonstrating decision patently unreasonable — Decision-maker’s discretion not fettered by policy decision — As s. 48 requiring only suspicion as basis for exercise of statutory authority, and as grounds to consider statements from owners re: feed content unreliable, reasonable for decision-maker to disregard owner’s evidence bull not fed contaminated feed.

Judicial review — Prerogative writs — Certiorari — Application to quash notice of requirement to destroy bull imported from U.K. in 1989 — Health of Animals Act, s. 48 permitting Minister of Agriculture to require disposal of animal suspected of being affected or contaminated by disease — Policy guidelines established providing for destruction of all cattle imported from U.K. since outbreak of bovine disease epidemic in 1982 in U.K. — Discretion of inspector signing notice of requirement not fettered by policy decision — No evidence decision not based on personal belief — Policy-makers considering consistency in application of policy decision essential to avoid spread of disease — Consistency not evil provided interests in achieving it not prevailing over decision on merits — Quest for consistency not overriding inspector’s discretion in deciding whether bull suspected of having disease.

This was an application to quash the notice of requirement compelling the destruction of the applicant’s purebred Charolais bull, and for a declaration that it was neither contaminated nor suspected of being contaminated by the disease Bovine Spongiform Encephalopathy (BSE). The bull was born in the United Kingdom in 1987, and was exported to Canada in 1989. As a result of the BSE epidemic in the U.K., all importations of cattle from the U.K. to Canada were halted effective February 9, 1990. It was subsequently determined that animals imported from the U.K. between 1982 and 1990 posed a greater risk than initially thought, and policy guidelines were established which provided for the destruction of all cattle imported from the U.K. since 1982. Subsequent to that policy decision, the applicant’s representations were specifically addressed. The following facts were taken into consideration in concluding that the animal was contaminated by BSE: it was in an age group which had received the highest level of exposure to contaminated feed; it had been in the U.K. for more than a year and a half when the level of contamination was at its peak; its age did not preclude infection from BSE; the evidence did not enable an absolute finding with regard to BSE; the herd from which it had come had had a reported case of BSE, and it was not possible to determine if the cow had had the disease before her arrival on the farm or had developed it afterwards. The applicant alleged that the Minister of Agriculture had erred in determining that the bull was an animal within the definition of Health of Animals Act, section 48. That section permits the Minister to require the disposal of an animal where it is suspected of being affected or contaminated by a disease. The applicant argued that (1) subsection 48(1) did not empower the Minister to consider international trade considerations in reaching a decision thereunder; (2) there was no reasonable ground to suspect that this bull or any cattle imported from the U.K. between 1982 and 1990 were infected with BSE; (3) the discretion of the inspector who signed the notice of requirement to destroy the bull was fettered by the policy decision made earlier whereby all cattle imported from the U.K. between 1982 and 1990 were to be destroyed; and (4) because of the policy decision, the inspector, in making his decision, failed to take into account relevant facts, namely evidence indicating that the bull had not been exposed to contaminated feed prior to importation.

Held, the application should be dismissed.

Subsection 48(1) is aimed at the prevention of the spread of disease. Any action taken thereunder must be based on a belief or suspicion that an animal has been contaminated by a disease or has been exposed to contamination, and must be aimed at the prevention of the spread of the disease. Consideration of the concerns of Canada’s trading partners in the decision to eradicate the possible spread of BSE in Canada was no less consistent with the statutory goal than consideration of concerns regarding the preservation of human life. Once the existence of a communicable disease has been established or is suspected, the concerns of all those potentially affected by its possible spread become relevant in deciding upon a course of action under subsection 48(1), and in particular in assessing the tolerance level of the acceptable risk.

The applicant had not met the onus of demonstrating that the impugned decision had no rational foundation, or was patently unreasonable. While the applicant may take issue with the low level of risk tolerance exhibited by the course of action decided upon, the decision was not made in the absence of a sound factual basis. The bull’s origin and age, its possible exposure to contaminated feed, the emerging possibility of lateral transmission of the disease by animals to which it was potentially exposed, the limited scientific knowledge about BSE all supported the suspicion that it may have been contaminated with BSE.

No officer performing a discretionary duty can be bound to assert a belief or a suspicion which he does not hold or have. Nothing, however, suggests that the decision to require disposal of imported cattle was not based on the responsible inspector’s personal belief or that he subjugated his discretion by deference to the policy decision. That he agreed to apply the policy decision to the subject bull highlights a coherence of thinking between the policy-makers and the decision-taker. His discretion was not in any way fettered.

Although the evidence as to the bull’s exposure to contaminated feed prior to importation, was not sought before the decision was made and was discounted when it was subsequently produced, the decision-makers had evidence from the U.K. authorities indicating that owner declarations as to the absence of contaminated feedstuff in their animal diet during the pre-1989 period could not be relied upon. As the basis for the exercise of the statutory authority under subsection 48(1) is a suspicion, not a belief, and as there were grounds to consider statements emanating from owners with respect to feed content as unreliable even when asserted on the basis of a truthful belief, it was reasonably open to the decision-maker to disregard this type of evidence.

A notice of requirement was upheld by Cullen J. in a similar case because the decision was found to have been effectively made by those who designed the policy decision, and the execution of the notice of disposal merely reflected a step in the implementation process which did not call for the exercise of discretion. The discretion of the signatory of the notice could not have been fettered by the prior policy decision, as he had no discretion left to exercise when he executed the notice. Cullen J. would have intervened had he not found that the discretion underlying the decision had been exercised at the policy level. Each case must, however, be decided on its own facts. The inspector was the decision-maker for the purposes of judicial review and he was vested with the required statutory authority. A policy decision is no decision, in the legal sense, until it has formally been made to apply to a specified case by reference to the particular statutory provision which authorizes it. The inspector agreed with, rather than being fettered by, the policy decision.

Adherence to a policy decision of general application in a specific case cannot alone invalidate a decision. Two aspects of policy directives which may be subject to judicial scrutiny are (1) whether the policy guidelines are consistent with the administrative authority granted by legislation and regulations; and (2) whether they are in practice used for guidance by those who have responsibility for discretionary decisions, or are they relied upon, in the interests of consistency, as a basis for decisions without considering all factors that should be taken into account in reaching discretionary decisions. The policy decision was consistent with the authority granted by the legislation. The decision-maker was not compelled to do anything by virtue of the policy decision other than to apply it if it conformed with his own judgment as to how the particular matter before him was to be dealt with having regard to the relevant circumstances. In this instance, consistency in the application of the policy decision was considered essential to eradicate the spread of BSE in Canada. Consistency, as such, is not an evil so long as the interests in achieving it are not made to prevail over the decision-maker’s ultimate task which is to decide the matter before him on its own merits. The quest for consistency by the policy-makers did not override the decision-maker’s discretion in deciding whether the bull could be suspected of contamination with BSE.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Health of Animals Act, S.C. 1990, c. 21, ss. 33, 48(1).

Seeds Act, R.S.C., 1985, c. S-8, s. 4(1)(c).

Seeds Regulations, C.R.C., c. 1400, s. 52(2)(d),(e) (as am. by SOR/80-517, s. 2).

CASES JUDICIALLY CONSIDERED

APPLIED:

Griffin v. Canada (1989), 39 Admin. L.R. 215; 26 F.T.R. 185 (F.C.T.D.).

CONSIDERED:

David Hunt Farms Ltd. v. Canada (Minister of Agriculture), T-153-94, Cullen J., order dated 10/3/94, F.C.T.D., not yet reported.

APPLICATION to quash the notice requiring that the applicant’s bull, imported from the U.K., be destroyed. Application dismissed.

COUNSEL:

Bruce G. Macdonald for applicant.

Barbara Ritzen for respondent.

SOLICITORS:

Macdonald & Freund, Edmonton, for applicant.

Deputy Attorney General of Canada for respondent.

The following are the reasons for order rendered in English by

Noël J.: This is an application for a writ of certiorari or an order in the nature of certiorari quashing the notice of requirement dated 12 January 1994 compelling the disposal of the purebred Charolais bull known as “Thrunton Captain” (Captain). The applicant also seeks a declaration that Captain, bearing identification #1K64075 and tatoo DHG C13, is not an animal contaminated or suspected of being contaminated by the disease Bovine Spongiform Encephalopathy (BSE) and has not been in contact or is not suspected of having been in contact with other BSE infected animals.

The application is based on the ground that the Minister of Agriculture (the “Minister”) erred in determining that Captain was an animal within the definition of subsection 48(1) of the Health of Animals Act, S.C. 1990, c. 21 (hereinafter the “Act”). This section reads as follows:

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.

The applicant submits that the decision of the Minister is erroneous in law; in the alternative, he states that there was no evidence to make such a finding or that the finding was based on improper and irrelevant considerations. It is also submitted that the decision is void for want of jurisdiction as the Minister was in error as to the factual basis of the decision.

APPLICANT’S EVIDENCE

The position of Walter Jerram is supported by a number of affidavits. In his own affidavit, Mr. Jerram states that he purchased Captain at an auction in Perth, Scotland in October 1988. Captain was born on 13 June 1987 on Thrunton Farms, Northumberland, England. He left Thrunton Farms on 5 February 1989 for export. After quarantine Captain was brought to Jerram’s farm in Alberta. Mr. Jerram states that he has never had a case of BSE infection on his farm and that he has never fed any unrendered animal protein to his herd. The herd is fed only grass, silage and grain. Captain has remained on Jerram’s farm since his arrival in Canada; he is the only imported animal in the herd and he has never been in contact with other animals except the herd itself. Mr. Jerram states that Dr. John Hee certified that Captain is free from demonstrable contagious or infectious disease.

The breeder of Captain was Mr. Colin Campbell of Thrunton Farms, Northumberland. His affidavit evidence is that Captain was under his care from the date of his birth to his delivery to the shipping agents Stanford Livestock International Limited for export to Canada on 5 February 1989. Feed from the farm was provided to be used en route to Canada to feed Captain.

Captain was isolated from 3 January 1989 to 5 February 1989 in the quarantine station supervised by the Minister of Agriculture, Fisheries and Food of the United Kingdom on the premises of the farm. During his quarantine Captain could not have been in contact with any other animal.

Thrunton Farms did not ever have animal based protein feed supplements on the farm or in the quarantine station. The Charolais cattle are only fed natural foods; they graze on grass during the summer months and during the winter months, they are fed silage and hay supplemented by a home mix ration containing oats, barley, peas, molasses beet pulp, wheat bran, flaked maize and soya bean mixed on the farm from original unmixed ingredients.

Mr. Campbell was the owner of the bull in England. He advised that he has been breeding pedigree Charolais cattle for nineteen years, and the Charolais herd has never had a case of BSE infection. Mr. Campbell stated that the only case of BSE infection was found in a Fricsian/Holstein cow purchased for suckling purposes in the commercial beef herd on 7 September 1989, well after the departure of Captain.

Mr. W. A. Clark of Alnwick, Northumberland, doctor of veterinary medicine, confirmed by affidavit evidence that no case of BSE has ever been recorded in the Charolais herd on Thrunton Farms and that only one case of BSE infection was recorded in a cow purchased for suckling purposes after Captain’s departure. This cow was slaughtered on 25 September 1992.

Mr. Clark further certified that the Thrunton Farms herd has never been fed any animal protein and that all concentrated rations fed to their herd is mixed on the farm from “straights”. The quarantine facilities on the Thrunton Farms and the isolation of Captain while in that quarantine area were also confirmed.

Mr. Richard Beale is an officer of the company Stanford Livestock International Limited (SLIL). He stated by affidavit that SLIL was the export agent of Captain. The bull was picked up at Thrunton Farms on 5 February 1989 by the agents of SLIL and transported to a lairage approved by the Ministry of Agriculture, Fisheries and Food, located at Great Bramshott Farm, Cove Road, Fleet, Hants. The bull was transported to Heathrow Airport on the morning of 6 February 1989 and loaded on flight AC857/571 to Toronto and Edmonton.

The policy of SLIL is that cattle transported by air are to be fed only hay, which in the case of Captain was obtained from Thrunton Farms. Mr. Beale states that he also contacted Mr. Edward Harper, who in February 1989 was the manager of the transport company owning the lairage at Great Bramshott Farm, who confirmed that no concentrates were ever used in the lairage.

Philip Robert Scott is a veterinary surgeon under the laws of Scotland. He submitted in his affidavit evidence that the BSE in the United Kingdom originated from infected concentrate cattle feed containing ruminant-derived protein in the form of meat and bone meal. He states that there is very little epidemiological evidence to indicate transmissions of BSE from cattle to cattle (horizontal transmission) or from dames to their offspring (vertical transmission). In addition, he stated that the incidence of BSE manifestation is markedly decreased in cattle aged six or over.

Mr. Scott outlined a number of factors to consider in the risk assessment of BSE cattle:

(a)       the nature of the originating herd;

(b)       whether cattle were born on the farm of origin;

(c)        the BSE status of the dame (mother);

(d)       the cattle’s exposure to contaminated ruminant derived protein in feed; and

(e)       the health of the cattle themselves.

He further submits that the risk of cattle being infected with BSE agent is negligible if the breeder of the herd can confirm that:

(a)       no BSE was suspected or confirmed at any time in the breeder herd;

(b)       the mothers of the cattle in question were not exposed to ruminant-derived protein;

(c)        that the cattle in question were not fed or exposed to ruminant-derived protein;

(d)       the cattle in question were not offspring of female cattle suspected or confirmed to have BSE; and that

(e)       the shipper transferring the cattle did not feed the cattle with ruminant-derived protein.

Mr. Scott states that pursuant to having examined the affidavits of Mr. Campbell and Mr. Clark, he is of the opinion that there can be no reasonable suspicion that the Charolais bull Captain has been infected with BSE.

RESPONDENT’S EVIDENCE

The position of the Minister of Agriculture is supported by the affidavit evidence of Dr. John Kellar, the Associate Director, Disease Control Section, Animal Health Division, Food Production and Inspection Branch, of the Department of Agriculture and Agri-Food Canada. Dr. Kellar provided details as to the policy of the Department of Agriculture with regard to animal disease and in particular the history and policies regarding BSE both in the United Kingdom and in Canada.

His affidavit reveals that as a result of the BSE epidemic in the U.K., all importations of cattle from the U.K. to Canada were halted as of 9 February 1990. As of September 1993, Dr. Kellar and his colleagues from the Animal Health Division requested additional information from the U.K. This information led them to believe that the cattle imported from the U.K. between 1982 and 1990 posed a greater risk than initially thought. Dr. Kellar states that based on his epidemiological knowledge and experience, he was convinced that the distribution of infection with BSE was not fully reflected by the number of animals showing clinical symptoms of BSE. He further points out that the post-mortem analysis of animals did not disclose the presence of BSE in cattle before the onset of overt clinical symptoms. In the absence of a method to diagnose BSE prior to the onset of the disease symptoms, Dr. Kellar assumed that the rate of actual infection may be many times higher than which had been evidenced by those animals which actually exhibited the symptoms of BSE.

In November 1993, a beef cow imported from Great Britain in January 1987 and residing in Alberta was euthanized after showing symptoms of BSE. These symptoms were confirmed. Further to this occurrence, Dr. Kellar and his colleagues set out to develop appropriate measures to deal with BSE. They outlined the following control measures by 8 December 1993:

(a)       The carcass of the diseased cow had been disposed of by incineration.

(b)       The herd in which the diseased cow was residing had been quarantined.

(c)        The five cattle remaining in Canada which originated from the same herd in the United Kingdom as the diseased cow and which were imported with that cow in the same shipment were to be destroyed and incinerated.

(d)       All remaining cattle imported from the U.K. since 1982 were to be monitored further.

On 10 December 1993, Agriculture Canada contacted its trading partners to explain the measures taken. The Animal Health Division further held consultations between 8 December 1993 and 16 December 1993 to address the issue of the remaining cattle imported from the U.K. between 1982 and 1990. Scientists from Agriculture Canada, Canada’s key trading partners including the United States, New Zealand, Mexico, Australia and Japan, as well as the animal health authorities in the U.K. were contacted.

The inquiries in the U.K. revealed the following information: prior to June 1988, cases of suspected or confirmed BSE were not required to be reported to animal health authorities; the reporting of such cases since 1988 is purely on a voluntary basis; prior to July 1988 there were no controls on the movement of contaminated feedstuffs; the animal health authorities found that declarations by owners to the effect that contaminated feedstuffs were not consumed by their animals proved inaccurate for a variety of reasons: improper labelling, the lack of awareness of minor ingredients such as vitamins/mineral supplements, memory lapses. Furthermore, ongoing research seemed to indicate a possibility that BSE was a disease transmissible between cattle.

On or about 14 December 1993, Dr. Kellar and his colleagues established policy guidelines which provided for, inter alia, the destruction of all cattle imported from the U.K. since 1982. Dr. Z. Petran, an inspector under the Health of Animals Act, and the Animal Health Program Manager of the Alberta Regional Office was advised of these policy decisions on 17 December 1993. On 20 December 1993, the managers of the regional offices, including Dr. Petran, were provided with a form letter for distribution to the owners of U.K. imported cattle. This letter notified the owners of the pending implementation of the control measures to eliminate BSE. All of the cattle in question were to be exterminated by 31 January 1994.

Dr. Kellar states that he and his colleagues at the Animal Health Division concluded prior to 16 December 1993, based on the information obtained that the cattle population imported from the U.K. from 1982 onwards formed a homogeneous group in terms of their suspected exposure to BSE, regardless of their individual circumstances.

Dr. Kellar further states that subsequent to their policy decision regarding all cattle from the U.K., he and his colleagues specifically addressed the representations made by the owners of Captain. Based on the particular evidence pertaining to Captain, they confirmed their suspicion that this bull was affected or contaminated by BSE. The basis for their conclusion was:

(a)       The bull was resident in the U.K. from its birth in 1987 placing him in an age group which, as young animals, received the highest level of exposure to contaminated feed.

(b)       The bull was in the U.K. for a period of more than a year and a half when the level of contamination was at its peak.

(c)        The bull will be 7 years of age in 1994, an age that does not preclude infection from BSE. Dr. Kellar disagrees with Mr. Scott’s conclusion that animal of seven or eight years of age would have exhibited signs of BSE by that age.

(d)       The evidence of Mr. Campbell does not enable Dr. Kellar to make an absolute finding with regard to BSE.

(e)       The same limitations apply to the testimony of Mr. Beale.

(f)        The herd from where Captain came from has reported a case of BSE and it is not possible to determine if the cow had the disease before her arrival on the farm or developed it afterwards.

Dr. Petran also related, by affidavit evidence, the history of diseases including scrapie and BSE in the U.K. and Canada. Dr. Petran signed and delivered a notice of requirement to dispose of animals under subsection 48(1) of the Health of Animals Act to the applicant in this matter on 13 January 1994.

Both Dr. Kellar’s and Dr. Petran’s affidavit discuss the trade impact of BSE for Canada, the discussions which Canada had with its main trading partners in this regard, as well as the measures adopted to reassure the international community. The destruction of all cattle imported from the U.K. between 1982 and 1990 was one of those measures.

ANALYSIS

The applicant contends that:

(1)       on the face of it, subsection 48(1) does not provide the statutory authority for the decision made;

(2)       the decision was reached on the basis of irrelevant considerations;

(3)       the decision was made in the absence of any reasonable ground to suspect that the subject bull had been contaminated with BSE;

(4)       the discretion of the decision-maker was fettered by the policy decision made in December of 1993 to destroy all cattle imported from Great Britain during the period of 1982 to 1990.

Dealing with the first issue, the notice of requirement reads in part that Captain is:

 … suspected of

being affected or contaminated by the disease Bovine Spongiform Encephalopathy, or

having 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 the disease Bovine Spongiform Encephalopathy at the time of being in contact or close proximity.

The applicant takes issue with the second paragraph quoted above, and specifically takes the position that subsection 48(1) does not envision the grant of the statutory power contemplated therein on the basis of a double suspicion.

Admittedly, the notice of requirement could have been better worded. However, I do not believe that anything turns on this. Quite clearly, the notice of requirement is based on the suspicion that Captain had been contaminated with BSE, or alternatively that Captain had been in contact or close proximity to an animal or thing suspected of having been contaminated with BSE. This is what subsection 48(1) contemplates and I do not believe that it can be said that the Minister was misguided in the exercise of his statutory authority by reference to the wording of the notice of requirement.

Turning to the second argument, the applicant contends that subsection 48(1) does not empower the Minister to take into account international trade considerations in reaching a decision thereunder. In support of this contention, the applicant refers to subsection 27(2) of the Act which empowers the Minister to declare control areas based on considerations relating to danger to life, health, property or the environment. He adds that if Parliament had intended the power conferred under subsection 48(1) to be exercised by reference to such extraneous considerations, it would have so provided.

Subsection 48(1) is aimed at the prevention of the spread of disease. It follows that any action taken thereunder must be based on a belief or a suspicion that an animal has been contaminated by a disease or has been exposed to contamination, and must be aimed at the prevention of the spread of the disease. That being said, the fact that the concerns of Canada’s trading partners were taken into account in the decision to eradicate the possible spread of BSE in Canada is no less consistent with the statutory goal contemplated by subsection 48(1) than would be, for instance, the consideration of concerns regarding the preservation of human life. Once the existence of a communicable disease has been established or is suspected, the concerns of all those potentially affected by its possible spread become relevant in deciding upon a course of action under subsection 48(1), and in particular in assessing the tolerance level of the acceptable risk.

The applicant argues that, in any event, there was no reasonable ground allowing the Minister to suspect that the subject bull or for that matter any cattle imported from the United Kingdom between 1982 and 1990 were infected with BSE. Assuming as I must that the decision-makers are competent in their particular area of expertise, the onus on the applicant is to demonstrate that the impugned decision has no rational foundation, or is patently unreasonable. In my view, this onus has not been met. While the applicant and the experts which support his position may take issue with the very low level of risk tolerance exhibited by the drastic course of action decided upon, it cannot be said that the decision was made in the absence of a sound factual basis. The question which the Minister had to address under subsection 48(1) was whether, on the facts, he could form the suspicion that the subject bull had been infected with BSE. The bull’s origin and age, its possible exposure to contaminated feed, the emerging possibility of lateral transmission of the disease by animals to which it was potentially exposed, the limited scientific knowledge about BSE all support the suspicion that it may have been contaminated with BSE.

Finally, the applicant argues that the discretion of Dr. Petran, the investigator who signed the notice of requirement to destroy the subject bull, was fettered by the policy decision made earlier whereby all cattle imported from the U.K. between 1982 and 1990 were to be destroyed.

Dr. Petran signed the notice of requirement ordering the disposal of the bull in his capacity of inspector under the Health of Animals Act. By virtue of section 33 of that Act, he had, as such, the duty and authority to exercise the powers of the Minister, including that provided under subsection 48(1) which power he purported to exercise in the instant case. According to the applicant, the exercise of the discretion inherent in this power was pre-empted by the policy decision made earlier to destroy all cattle imported from the U.K. with the result that it was never exercised by Dr. Petran.

This argument is grounded on the premise that Dr. Petran was bound by the policy decision and hence, that he had to execute the notice of requirement whether or not he suspected that the subject bull was contaminated with BSE. In my view, no officer performing a discretionary duty can be bound to assert a belief or a suspicion which he does not hold or have, and if there was any evidence, in this instance, that Dr. Petran executed the notice of requirement without having the suspicion contemplated by subsection 48(1) as it relates to the subject bull or that he did not consider the opportunity of issuing it, I would not hesitate to intervene.[1]

However, the evidence is entirely opposite. Dr. Petran was subjected to an extensive cross-examination on his affidavit. He both shared and agreed with the view expressed by Dr. Kellar and his colleagues at the Animal Health Division that the cattle population imported from the U.K. from 1982 onwards formed a homogeneous group in terms of their suspected exposure to BSE. Before executing the notice of requirement, he personally ascertained the circumstances of the subject bull, namely that it was born in the U.K. in 1987, that it stayed in the U.K. one and one half year at a time when the concentration of the infectious agent was at its highest, and that it was possibly in contact with the infectious agent either via feed or contact with contaminated animals. Throughout his cross-examination, he referred to the decision to dispose of the subject bull as his own. He swore to his belief that the subject bull could, at any time of its life, develop full-blown BSE. He confirmed his conviction that the bull had to be destroyed, and pointed out that it was precisely the failure to take such precautions more than fifty years ago that led to scrapie becoming established in the Canadian sheep population.

Nothing suggests that Dr. Petran’s decision was not based on his personal belief or that he subjugated his discretion by deference to the policy decision. Rather, the fact that he agreed to apply the policy decision to the subject bull highlights, in my view, a coherence of thinking between the policy-makers and the decision-taker. It follows that Dr. Petran’s discretion was not in any way fettered.

However, the applicant further submits that because of the policy decision, Dr. Petran, in making his decision, failed to take into account relevant facts, namely evidence indicating that the subject bull had not been exposed to contaminated feed prior to his importation to Canada.

It is true that the evidence of the owner of the bull in the U.K. in this regard, as well as those charged with its care, was not sought before the decision was made and was discounted when it was subsequently produced.

However, both Dr. Petran and Dr. Kellar had, before the decision was made, evidence from the U.K. authorities indicating that owner declarations as to the absence of contaminated feedstuff in their animal diet during the pre-1989 period could not be relied upon for a variety of reasons. The question then becomes whether, having regard to this evidence, it was open to Dr. Petran to disregard such declarations in reaching his decision. Keeping in mind that the basis for the exercise of the statutory authority under subsection 48(1) of the Act is a suspicion, and not a belief, and that Dr. Petran had grounds to consider statements emanating from owners with respect to feed content as unreliable even when asserted on the basis of a truthful belief, it appears to me that it was reasonably open to Dr. Petran to disregard this type of evidence. I should add that the cross-examination of Dr. Kellar, at pages 76 et seq. of the transcript, is most compelling on this point.

I note that my brother Cullen J., in David Hunt Farms Ltd. v. Canada (Minister of Agriculture), T-153-94, March 10, 1994 [not yet reported], also upheld in that matter the decision reflected by the notice of requirement but for reasons which are somewhat opposed to mine. He held that the decision to dispose of the animals was effectively made by those who designed the policy decision made in December 1993, and that the execution of the notice of disposal merely reflected a step in the implementation process which did not call for the exercise of any discretion. Justice Cullen concluded that the policy decision had been validly taken and that the discretion of the signatory of the notice could not have been fettered by the prior policy decision, as he had no discretion left to exercise when he executed the notice.

It seems quite clear from my learned brother’s reasons that he would have been inclined to intervene on the authority of Griffin v. Canada, supra, were it not for the fact that, in his view, the discretion underlying the decision had already been exercised at the policy level and validly so.

Obviously, each case must be decided on its own facts. On the facts before me, I am compelled to conclude that Dr. Petran is the officer who made the decision to dispose of the subject bull and that he was vested at the time with the required statutory authority to do so as evidenced by the notice of requirement which he executed. In my view, those adversely affected by a decision must be able to look to the officer who formally purports to make it as the decision-maker. Dr. Petran was vested with the statutory authority to make the decision with respect to the subject bull and did purport to make the decision. I believe that in the context of a judicial review of the decision which he formally made, he must be looked upon as the decision-maker. I would add that a policy decision is no decision, in the legal sense, unless and until it has formally been made to apply to a specified case by reference to the particular statutory provision which authorizes it.

However, I have also found on the facts before me that the policy decision which had been made earlier did not have the effect of fettering his discretion. This policy decision was communicated by memorandum dated December 17, 1993, addressed to all regional directors, including Dr. Petran. It was followed by a further memorandum dated December 22, 1993 highlighting the statutory authority under which the disposal of the animals could be ordered and by another memorandum dated December 30, 1993 outlining in a detailed fashion the background and the rationale for the policy decision.

In the matter before me, and I believe my brother Cullen notes the same in the matter which was before him, the officer charged with the issuance of the formal notice of requirement agreed with the policy decision, its rationale and more importantly its applicability to the specific animal(s) which he was called upon to deal with.

I do not believe that adherence to a policy decision of general application in a specific case can, in and of itself, have the effect of invalidating a decision. As MacKay J. stated so aptly in Griffin v. Canada, supra, at page 236, there are two aspects of policy statements or directives which may be subject to judicial scrutiny, namely:

Are the policy guidelines in question consistent with the administrative authority granted by legislation and regulations, and in practice are the guidelines used for guidance by those who have responsibility for discretionary decisions, or are they relied upon, in the interests of consistency, as a basis for decisions without considering all factors that should be taken into account in reaching discretionary decisions?

In that matter, the policy directive failed both tests. The statutory authority in issue was found in regulations made under paragraph 4(1)(c) of the Seeds Act, R.S.C., 1985, c. S-8, which authorized the Governor General in Council to prescribe, inter alia, the minimum standard of disease for seeds. Paragraphs 52(2)(d) and (e) of the Seeds Regulations, C.R.C., c. 1400, as amended by SOR/80-517, allowed an inspector to refuse to issue a certificate in respect of a growing crop where:

52. …

(2) … 

(d) in the opinion of an inspector, the crop has been contaminated with bacterial ring rot; or

(e) evidence has been obtained that bacterial ring rot was found in another crop that was derived from the same parent crop, … .

The policy guideline in issue provided, inter alia, that:

All crops in which bacterial ring is found are to be rejected ( … ), as well as all potato crops on the same farm.

Bacterial ring rot was found in one of the seventeen growing crops of the Griffin family. The officer relying on the guideline refused to certify all seventeen growing crops on the basis that, while bacterial ring rot had only been found in a single growing crop, the remaining sixteen crops were on the same farm. These sixteen crops had not been derived from the same parent crop as the single contaminated crop.

MacKay J. noted that the mandatory rejection of all crops on the same farm on the basis that a single crop had been contaminated did not reflect any of the grounds for rejection set out in subsection 52(2) of the Regulations. As the guideline was mandatory[2] and as there was no evidence that the other sixteen crops had in fact been contaminated, he concluded that the inspector’s discretion had been fettered as it was not open to him to hold a reasonable belief that all seventeen crops had been contaminated on the sole ground that one was so affected.

Here, as Cullen J. has also found, the policy decision is consistent with the authority granted by the legislation. Subsection 48(1) of the Act requires the existence of a suspicion, not a belief, and on the assumed facts underlying the policy decision, one could form a reasonable suspicion that an animal which came within its ambit had been contaminated with BSE. As well, in the matter before me, nothing indicates that Dr. Petran was compelled to do anything by virtue of the policy decision other than to apply it if it conformed with his own judgment as to how the particular matter before him was to be dealt with having regard to the relevant circumstances.

Obviously, in this instance, consistency in the application of the policy decision was essential in the minds of the policy-makers in order to achieve the effective eradication of the spread of BSE in Canada. However, consistency, as such, is not an evil so long as the interests in achieving it are not made to prevail over the decision-maker’s ultimate task which is to decide the matter before him on its own merits. The specific question which I must answer is whether, on the facts before me, the quest for consistency by the policy-makers had the practical effect of overriding Dr. Petran’s discretion in deciding whether or not the subject bull could be suspected of being contaminated with BSE. As is apparent from the foregoing, I do not believe that it did.

For these reasons, the application is dismissed. I make no special award as to costs.

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