Secretary's manual (page 6 of 9)
Enforcement provisions for breed associations
The Animal Pedigree Act is not a mandatory act which either requires an association to incorporate under it, or requires individuals to register their animals. However, associations incorporated under the Act and members of the associations remain legally bound by it, as do others who may be implicated in the provisions of the Act.
Breed associations incorporated under the Act and having approved by-laws are given authority to administer the affairs of their own association. This includes authority to enforce their own by-laws. Breed associations may not impose fines or other monetary penalties, but have the right to withdraw membership privileges (within the limits of section 61 of the Act) and suspend or expel members. They may also charge fees for extra services rendered in respect of administering non-compliance provisions.
Breed associations must have by-laws establishing rules of eligibility for registration and respecting the amendment and cancellation of certificates, necessary to ensure an accurate registry system. There must be by-laws in place regarding the inspection of pedigrees and breeding records kept by an association's members. There must also be by-laws respecting the supervision of practices in relation to individual identification of animals and the manner in which unsatisfactory practices are dealt with. Breed associations may also establish by-laws respecting performance standards that animals must meet as a prerequisite for registration.
The Animal Pedigree Act contains an offences section and the Royal Canadian Mounted Police (RCMP) provide enforcement for federal statutes throughout Canada. Agriculture and Agri-Food Canada and the RCMP have established a Memorandum of Understanding for enforcement of the offences provision of the Act. In brief, the RCMP will investigate possible mens rea (committed knowingly with criminal intent) offences. Other offences may be dependent on specific by-laws and procedures of associations. For these, the association has responsibility to first investigate and try to resolve the matter, including informing the person they may be in violation of sections of the Animal Pedigree Act. If the matter still can not be resolved, then the services of the RCMP may be requested.
The Minister of Agriculture and Agri-Food Canada retains authority for the Animal Pedigree Act, which he may delegate. Since no by-law, amendment or repeal has effect until approved by the Minister, the provisions of the Act are also enforced through the administrative responsibility which resides with the Department. This includes approval of amendments to articles of incorporation, approval of by-law amendments and provision of advice to breed associations. In addition to a regular administrative role, the Minister has authority to undertake inspections of the business and affairs of associations and in exceptional circumstances, to call an inquiry into the manner in which an association conducts its business.
Enforcement provisions should rarely be invoked if the by-laws and procedures are clearly written, communicated and implemented. In the vast majority of cases, breeders become members of associations because they believe in their breed and have interest in its progress.
Suggested procedure for handling by-law infractions
Although breed associations may have by-laws regarding procedures for dealing with certain unsatisfactory practices, it is not possible to anticipate every difficulty that may arise. Therefore, it is important that associations agree on standard procedures to be followed when a situation arises for which there are no specific by-laws. The vast majority of apparent violations of standard practices, rules, etc. come not from intentional abuse, but rather from lack of knowledge of the acceptable practices. It is the obligation of each association to take reasonable measures to inform its members of the standard procedures.
Every member should have a copy of the by-laws of the association so that he might be familiar with the rules and procedures. However, this does not guarantee that every member will have understood fully his obligations. In the event that a problem has been identified, the following is a sample outline of how to deal with non-compliance issues.
- If a member, staff or even non-members notice inconsistencies or activities which appear to violate the by-laws of the association or the Animal Pedigree Act it should be reported to the association office. Rumours are damaging and may be avoided by having proper procedures in place to deal with apparent violations.
- Prior to commencing any action, the association should first be aware of the limits of its authority.
- The Animal Pedigree Act prohibits the imposition of any fine or monetary penalty by an association. Also, subject to section 61 of the Act, there are limited circumstances in which registration or transfer of ownership can be denied.
- If there is a potential by-law violation, check the bylaws to find the relevant references. Has there truly been a violation of the by-laws or of additional procedures of which the person may be unaware? If this is a pedigree problem, what do the by-laws say regarding amendment and cancellation of certificates? For other problems with members, what by-laws exist respecting the resignation, suspension or expulsion of Animal Pedigree Act - Secretary's Manual Chapter 5 April, 1999 5-4 members?
- In the case of violations of the Act itself, enforcement is provided by the RCMP. However, local detachments may decide which cases warrant further investigation. Associations should respect that the RCMP must balance their caseload among many responsibilities. Therefore, it is helpful to do as much research first to determine if the case requires the attention of the RCMP, and to verify all information possible. Is it likely a mens rea offence?
Sub-sections 64(a), (b), (c), (d) and (g) will be investigated as mens rea (criminal intent) offences. Section 63, subsections 64(e), (f), (h), (i), (j) and section 65 are more likely to be handled as strict liability offences. These sections should be investigated thoroughly by the appropriate breed association before being brought to the attention of the RCMP. Where clarification of the rules or other action may lead to satisfactory resolution of the problem, associations are strongly encouraged to do so without seeking recourse to the RCMP.
- The association office (usually the secretary, manager or CEO) should;
- Check the normal procedures for handling activities similar to those reported, and make note of any exceptions that may have been applied in the past.
- Determine if the activities may be due to simple misunderstanding of the by-laws and their application. If it appears to be due to misunderstanding, communication is usually the best remedy. Speak with the person who made the report and with the person who was allegedly in violation. (In some circumstances it may be preferable for the office to preserve the anonymity of the parties involved.) Clarify the circumstances, seek more information if necessary, and recommend ways to avoid similar misunderstandings in the future.
- If an apparent violation is involved, assume that an innocent and honest mistake was made. Gather as much evidence as possible to clarify what has transpired including dates, copies of certificates, transactions and other records.
- In the case of apparent violations of the by-laws or of the Act, communicate with the person involved:
- Speak to the person on the phone, use fax or e-mail and do it sooner rather than later. Pedigree problems can accumulate and compound. Also, breeders rely on their reputations and rumours are harmful. On-going problems and apparent violations should not be allowed to continue, and should be dealt with immediately.
- If initial attempts to rectify the situation have not been successful, write a letter to the person who appears to be in contravention of the by-laws of the association or of the Animal Pedigree Act and inform him of the relevant sections which appear to have been violated, information that has lead to this conclusion and how the association normally deals with such infractions. A response should be requested and sufficient time given for its receipt before further action is taken. [sample letter dealing with section 64(j) of the Act is attached]
- Associations are given authority under the Act to administer their own affairs in accordance with their by-laws. However, where the by-laws do not clearly outline procedures for handling a particular case the Executive (may be the full Board of Directors) is often given a degree of discretionary authority to deal with such issues or to at least recommend a process. The Animal Registration Officer may also be contacted to assist in interpretation of the rights/responsibilities of the association.
- When a response is received from the person apparently in violation, the association office should update the understanding of the relevant facts. If it still appears that the situation is not being resolved in accordance with the by-laws, the Executive should be advised accordingly and normal remedial action suggested.
- If an offence appears to have been committed as per sections 63 through 67 of the Animal Pedigree Act, determine if they are possibly due to disagreement over the interpretation of procedures. If an offence is suspected which cannot be resolved, contact the local detachment of the RCMP and supply them with an account of what has transpired and request their involvement.
Sample letter regarding violation of 64(j) of the Animal Pedigree Act
[On Association's letterhead]
It has come to the attention of the xxxx Association office that on xxxx you were the seller of xxxx animals to xxxx. The Association is currently of the understanding that these animals were sold as registered animals. It is also our understanding that an application for transfer has not yet been made.
Please note that every member is bound by the by-laws of the Association. Furthermore, all registration activities are governed by the requirements of the Animal Pedigree Act under which the Association is incorporated. In particular, please note that according to the Act,
64. No person shall ...
(j) without an express statement that the animal's registration, identification or status as a purebred is from a jurisdiction other than Canada and that the animal will not be registered or identified in Canada by the person, sell, as registered or identified, or as eligible to be registered or identified, or as a purebred, any animal without providing to the buyer thereof within six months after the sale the animal's duly transferred certificate of registration or certificate of identification.
So as not to be in contravention of the by-laws of the Association or of the Animal Pedigree Act, you are requested to submit forthwith any necessary documentation and payment to complete the transfer of certificates to the new owner. If you feel for any reason that you should not be obligated to transfer the certificates as noted, please indicate in writing to this office the reason why.
Please note that should a response not be forthcoming within xx working days from the date of this letter that the Association may consider taking such further action as deemed appropriate.
c.c. David Trus, (Animal Registration Officer)
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