Rocky Top Farm v. Nova Scotia (Minister of Agriculture)

• Jurisdiction: Nova Scotia
• Court: Supreme Court of Nova Scotia (Canada)
• Judge: Moir, J.
• Citation: (2015), 354 N.S.R.(2d) 305 (SC),2015 NSSC 21
• Date: 11 September 2014

Rocky Top Farm v. N.S. (2015), 354 N.S.R.(2d) 305 (SC);

    1120 A.P.R. 305

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. JA.042

Nelson E. Millett, carrying on business as Rocky Top Farm (applicant) v. Nova Scotia (Minister of Agriculture) (respondent)

(Hfx. No. 427930; 2015 NSSC 21)

Indexed As: Rocky Top Farm v. Nova Scotia (Minister of Agriculture)

Nova Scotia Supreme Court

Moir, J.

January 21, 2015.

Summary:

Millett was a proprietor of Rocky Top Farm. An inspector from the Department of Agriculture issued a notice under the Animal Protection Act, advising Millett that he would not be returning a herd of cattle that had been seized from the farm. The Deputy Minister of Agriculture upheld the inspector's decision. Millett applied for judicial review.

The Nova Scotia Supreme Court allowed the application and declared that the proceeds of the sale of the cattle belonged to the proprietors of the farm.

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - [See Animals - Topic 3055 ].

Animals - Topic 3046

Cruelty to animals - Protected animals - Search for and seizure of animals in distress - An inspector from the Department of Agriculture seized a herd of cattle from Rocky Top Farm and determined that the herd would not be returned - A proprietor of the farm (Millett) applied under the Animal Protection Act to have the Minister of Agriculture review the inspector's decision - The Minister delegated the review to the Deputy Minister, who upheld the inspector's decision - Millett applied for judicial review - The Nova Scotia Supreme Court, while allowing the application on other grounds, held that the Deputy Minister's decision could also be set aside on the basis that he made unreasonable findings of fact - Before seizing an animal, an inspector was required by s. 23(2) of the Act to attempt to obtain the owner's cooperation to relieve the animal's distress - The Deputy Minister found that the inspectors attempted to obtain Millett's cooperation to relieve the distress of the cattle - That finding was contrary to the evidence and was unreasonable - See paragraphs 117 to 127.

Animals - Topic 3047

Cruelty to animals - Protected animals - Return, sale or disposal of seized animals - [See Animals - Topic 3055 ].

Animals - Topic 3055

Cruelty to animals - Protected animals - Appeals or judicial review - An inspector from the Department of Agriculture seized a herd of cattle from Rocky Top Farm and determined that the herd would not be returned - A proprietor of the farm (Millett) applied under the Animal Protection Act to have the Minister of Agriculture review the inspector's decision - The Minister delegated the review to the Deputy Minister, who upheld the inspector's decision - The Deputy Minister had framed the issue as whether the inspector's decision was reasonable - The Nova Scotia Supreme Court allowed Millett's application for judicial review - The issue was the Minister's role on statutory review of an inspector's decision - That issue was to reviewed on the standard of correctness - The Deputy Minister misconstrued his statutory role - He was required by the Act to consider the inspector's decision, the information before the inspector, and new information given to the Deputy Minister, and to decide whether the farm was fit to care for the cattle - The farm was entitled to the Minister's independent judgment, not just the Deputy Minister's appraisal of the lead inspector's judgment - See paragraphs 87 to 116.

Cases Noticed:

Alliance Pipeline Ltd. v. Smith (2011), 412 N.R. 66; 2011 SCC 7, refd to. [para. 40].

British Columbia Society for the Prevention of Cruelty to Animals v. Farm Industry Review Board (B.C.), [2013] B.C.T.C. Uned. 2331; 2013 BCSC 2331, refd to. [para. 42].

Canada (Canadian Human Rights Commission) v. Canada (Attorney General) - see Canada (Attorney General) v. Mowat.

Canada (Attorney General) v. Mowat (2011), 422 N.R. 248; 2011 SCC 53, refd to. [para. 45].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al. (2011), 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 45].

Rogers Communications Inc. et al. v. Society of Composers, Authors and Music Publishers of Canada et al. (2012), 432 N.R. 1; 2012 SCC 35, refd to. [para. 45].

McLean v. British Columbia Securities Commission (2013), 452 N.R. 340; 347 B.C.A.C. 1; 593 W.A.C. 1; 2013 SCC 67, refd to. [para. 45].

Canadian National Railway Co. v. Canada (Attorney General) et al. (2014), 458 N.R. 150; 2014 SCC 40, refd to. [para. 45].

Coates v. Sharp et al. (2013), 329 N.S.R.(2d) 264; 1042 A.P.R. 264; 2013 NSCA 52, refd to. [para. 53].

Delport Realty Ltd. et al. v. Halifax (Regional Municipalities) (2014), 343 N.S.R.(2d) 341; 1084 A.P.R. 341; 2014 NSCA 35, refd to. [para. 53].

Manitoba Association of Health Care Professionals v. Nor-Man Regional Health Authority Inc. (2011), 423 N.R. 95; 275 Man.R.(2d) 16; 538 W.A.C. 16; 2011 SCC 59, refd to. [para. 76].

Newton v. Criminal Trial Lawyers' Association (Alta.) et al. (2010), 493 A.R. 89; 502 W.A.C. 89; 2010 ABCA 399, refd to. [para. 79].

Midtown Tavern & Grill Ltd. v. Nova Scotia Utility and Review Board et al. (2006), 248 N.S.R.(2d) 319; 789 A.P.R. 319; 2006 NSCA 115, refd to. [para. 83].

Pushpanathan v. Canada (Minister of Citizenship and Immigration) (1998), 226 N.R. 201 (S.C.C.), refd to. [para. 83].

Halifax (Regional Municipality) v. United Gulf Developments Ltd. et al. (2009), 280 N.S.R.(2d) 350; 891 A.P.R. 350; 2009 NSCA 78, refd to. [para. 83].

Halifax (Regional Municipality) v. Anglican Diocesan Centre Corp. et al. (2010), 290 N.S.R.(2d) 361; 920 A.P.R. 361; 2010 NSCA 38, refd to. [para. 83].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re (1998), 221 N.R. 241; 106 O.A.C. 1 (S.C.C.), refd to. [para. 107].

Jivalian v. Nova Scotia (Department of Community Services) (2013), 323 N.S.R.(2d) 395; 1025 A.P.R. 395; 2013 NSCA 2, refd to. [para. 118].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al. (2011), 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 118].

Counsel:

John T. Shanks and Ian J. Breneman, for the applicant;

Sean Foreman, for the respondent.

This application for judicial review was heard in Halifax, N.S., on September 11, 2014, before Moir, J., of the Nova Scotia Supreme Court, who delivered the following decision on January 21, 2015.