Vol. 149, No. 10 — May 20, 2015

Registration

SOR/2015-103 May 8, 2015

CANADA AGRICULTURAL PRODUCTS ACT

Rules of the Review Tribunal (Canada Agricultural Review Tribunal)

P.C. 2015-565 May 7, 2015

Pursuant to subsection 8(3) (see footnote a) of the Canada Agricultural Products Act (see footnote b), the Review Tribunal, continued by subsection 4.1(1) (see footnote c) of that Act, makes the annexed Rules of the Review Tribunal (Canada Agricultural Review Tribunal).

Ottawa, March 27, 2015

DONALD BUCKINGHAM
Chairperson of the Review Tribunal

His Excellency the Governor General in Council, on the recommendation of the Minister of Agriculture and Agri-Food, pursuant to subsection 8(3) (see footnote d) of the Canada Agricultural Products Act (see footnote e), approves the making of the annexed Rules of the Review Tribunal (Canada Agricultural Review Tribunal) by the Review Tribunal.

RULES OF THE REVIEW TRIBUNAL (CANADA AGRICULTURAL REVIEW TRIBUNAL)

PART 1

APPLICATION AND INTERPRETATION

APPLICATION

Inconsistency with Acts or regulations

1. In the event of any inconsistency between these Rules and an Act of Parliament or any regulation made under such an Act, that Act or regulation prevails to the extent of the inconsistency.

INTERPRETATION

Definition of “holiday”

2. In these Rules, “holiday” means a Saturday, Sunday or any other day defined as a holiday in subsection 35(1) of the Interpretation Act.

General principle

3. These Rules are to be interpreted and applied in order to permit the just, most expeditious and least expensive conduct of proceedings.

Procedural matters not provided for

4. The Tribunal is to determine any procedural matter not provided for in these Rules in a manner that is consistent with these Rules.

COMPUTATION AND EXTENSION OF TIME

Calculation of time limits

5. Any time limit provided by these Rules or fixed by an order of the Tribunal that ends on a holiday is extended to the next day that is not a holiday.

Extension of time limits

6. The Tribunal may extend any time limit fixed in these Rules before or after the end of the time limit.

PART 2

RULES APPLICABLE TO ALL PROCEEDINGS

OFFICIAL LANGUAGES

Official languages — Tribunal proceedings

7. All Tribunal proceedings are conducted in English or French, depending on the language chosen by the applicant.

Communications with Tribunal

8. (1) A party may use English or French in any oral or written communication with the Tribunal. However, once the applicant has selected a language, all oral and written communications, including in documents and exhibits, must be made in that language, unless the parties consent to do otherwise.

Default language selection

(2) If the applicant does not indicate their choice of official language in their request, all oral and written communications, including in documents and exhibits, must be made in the language in which the request to the Tribunal is made. That language is deemed to be the language for the proceeding.

Oral interpretation

(3) If a party requires interpretation services in order to participate in or have a witness testify at a hearing in the official language in which the proceeding is conducted, the party must, at least seven days before the hearing,

Costs

(4) A party who requires interpretation services from a language other than English or French must pay for the costs of those services.

DISPENSING WITH COMPLIANCE

Dispensing with compliance

9. If the application of any rule would cause unfairness to a party, the Tribunal may release the party from the obligation of complying with the rule.

Gap in evidence or non-compliance

10. (1) The Tribunal may draw the attention of a party to any gap in the evidence of its case or any non-compliance with these Rules.

Remedy

(2) On request, the Tribunal may permit the party to remedy any gap in its evidence or non-compliance on any conditions that the Tribunal considers just, before the end of the proceedings.

CONFIDENTIAL MATERIAL

Confidential material

11. (1) On request, the Tribunal may order that documents and exhibits that are to be filed be treated as confidential.

Contents of request

(2) The request must set out

Making of confidential documents and exhibits

(3) Before making an order under subrule (1), the Tribunal must be satisfied that the documents and exhibits are to be treated as confidential, given the public interest in open and accessible proceedings.

FILING AND SERVICE

Definition of “document”

12. For the purposes of rules 15 to 17, “document” does not include a request for review.

Request for review

13. Any request for review made under section 8, 9 or 11 or subsection 12(2) or 13(2) of the Agriculture and Agri-Food Administrative Monetary Penalties Act that was transmitted by fax or by electronic means must also be sent by registered mail to the Tribunal within 15 days after the day on which they are transmitted.

Requirement to provide current contact information

14. A party must notify the Tribunal of their full name, civic address, mailing address if different from their civic address and at least one of their telephone number, fax number and email address, and of any change in their contact information, without delay.

Manners of filing with Tribunal

15. (1) A document may be filed with the Tribunal in any of the following manners:

Receipt after 5:00 p.m.

(2) A document that is filed with the Tribunal after 5:00 p.m., local time of the place where the sender is located, is considered to have been received on the next day that is not a holiday.

Service on any party

16. (1) A document may be served on a party in any of the following manners:

Service to legal counsel or representative

(2) A document may be served on a party who is represented by legal counsel or another duly authorized representative by serving it on that party’s legal counsel or duly authorized representative.

Receipt of service after 5:00 p.m.

(3) A document that is served on a party after 5:00 p.m., local time of the place where the sender is located, is deemed to have been received on the next day that is not a holiday.

Registered mail or courier

17. (1) The filing or service of a document by registered mail or courier is effective on the day indicated on the receipt issued by the post office or courier service, as the case may be.

Fax or other electronic means

(2) The filing or service of a document by fax or other electronic means is effective on the day on which it is sent.

Ordinary mail

(3) The filing or service of a document by ordinary mail is effective on the day indicated on the postmark stamped on the envelope or, if no postmark is legible, on the day of the receipt.

REPRESENTATION OF PARTIES

Individuals

18. (1) An individual may act in person or be represented by legal counsel or by another duly authorized representative.

Corporations, partnerships or associations

(2) A corporation, partnership or unincorporated association must be represented by legal counsel or by an officer, partner or member.

Coordinates of counsel or representative

(3) A party who is represented by legal counsel or another duly authorized representative must notify the Tribunal of the legal counsel or representative’s contact information and of any changes to such information within seven days after the day on which the change is made.

Change of counsel or representative

(4) A party may change its legal counsel or representative by notifying the Tribunal of the change and the contact information of the new legal counsel or representative within seven days after the day on which that change is made.

PROCEEDINGS
General

Proceedings public

19. (1) Proceedings of the Tribunal are public.

In camera proceedings

(2) The Tribunal may order that a proceeding be held in camera at the request of any party if the party satisfies the Tribunal that the circumstances of the case warrant the request.

Remote conference

20. The Tribunal may order that a hearing, or any other step in a proceeding, be conducted in whole or in part by teleconference, videoconference or any other form of electronic communication.

Affidavit evidence

21. (1) A party may present evidence by affidavit by serving the affidavit on the other party and filing it with the Tribunal,

Availability of deponents

(2) A party who intends to present evidence by affidavit must ensure that the deponent of the affidavit is available for cross-examination. The timing of the cross-examination is to be decided on the parties’ mutual consent or, if the parties do not consent, by the Tribunal.

Transcript of cross-examination

(3) A party who cross-examines the deponent of an affidavit must file the transcript of the cross-examination with the Tribunal within seven days after the day on which the cross-examination takes place.

Taking notice

22. The Tribunal may take notice of any matter in order to expedite any proceeding.

Hearings

Order of proceeding

23. The Tribunal establishes the order of proceeding at the start of the oral hearing.

Exclusion of witnesses

24. (1) The Tribunal may order witnesses to be excluded from the hearing while the other witnesses are called to give evidence.

Recording of hearings

(2) Hearings before the Tribunal may be recorded.

Oath or solemn affirmation

25. (1) A person to be examined on an oral examination must take an oath or make a solemn affirmation before being examined.

Examination, cross-examination and re-examination

(2) A party at a hearing is entitled to examine their own witnesses, cross-examine any witnesses of the other party and re-examine their own witnesses on matters raised in cross-examination.

IMPARTIALITY AND CONFLICT OF INTEREST

Parties raising bias or conflict of interest

26. (1) A party that believes that a member of the Tribunal is not in a position to act impartially in a matter or is in a conflict of interest must immediately give written notice to the Tribunal, stating the reason for the opinion.

Decision within seven days of notice

(2) The Chairperson of the Tribunal must issue a decision within seven days after the day on which he or she receives a notice under subrule (1).

Contents of decision

(3) If the Chairperson determines that the member that was the subject of the notice is not in a position to act, the Chairperson must

Tribunal member raising bias or conflict of interest

27. If a member of the Tribunal feels that he or she is not in a position to act impartially or cannot review a matter due to a conflict of interest, the Chairperson must direct that the matter be reconvened with a differently constituted Tribunal or order a new hearing.

PART 3

REVIEW OF NOTICES OF VIOLATION

Application

28. This Part applies to all proceedings before the Tribunal initiated as a result of a request made in accordance with the Agriculture and Agri-Food Administrative Monetary Penalties Regulations or the Agriculture and Agri-Food Administrative Monetary Penalties Regulations Respecting the Pest Control Products Act and Regulations under subsection 8(1), paragraph 9(2)(c) or paragraph 11(1)(b) of the Agriculture and Agri-Food Administrative Penalties Act.

Acknowledgement of receipt

29. Within seven days after the day on which the Tribunal receives a request referred to in rule 28, the Tribunal must send

Tribunal file

30. Within 15 days after the day on which the acknowledgement of receipt is sent, the Minister or his or her delegated representative must file with the Tribunal

Addendum

31. Within 15 days after the day on which a request referred in rule 28 is made, unless the following information is already contained in the applicant’s request for review, the applicant must file with the Tribunal an addendum containing the following information:

Order on admissibility

32. (1) The Tribunal must make a decision on the admissibility of a request for review within 60 days after the day on which the acknowledgement of receipt of the request is sent to the parties, and send that decision to the parties in writing without delay.

Grounds to consider

(2) The Tribunal must, in coming to its decision on admissibility, consider any relevant factor, including whether

Minister’s report

33. The Minister or his or her delegated representative must, within 30 days after the day on which the Tribunal decides that the request for review is admissible,

Acknowledgement of receipt

34. Within seven days after the day on which the Tribunal receives the report, the Tribunal must send an acknowledgement of receipt to the parties.

Additional submissions

35. Within 30 days after the day on which the report is served, the applicant must

No further submissions

36. No further submissions are to be filed after

Decision or notice of hearing

37. The Tribunal must, after the day on which no further submissions are to be filed in accordance with rule 36,

List of witnesses

38. At least 20 days before the hearing of a matter, each party must serve on the other party and file with the Tribunal a list of the witnesses it intends to call, along with their civic address, mailing address if different from their civic address and telephone number.

Failure to appear

39. If one of the parties does not appear at the hearing, and if the Tribunal is satisfied that a notice of the hearing was sent to the most recent address on file of that party, the Tribunal may grant or dismiss the request for review, or proceed with the hearing in the party’s absence and dispose of the review in any applicable manner referred to in section 14 of the Agriculture and Agri-Food Administrative Monetary Penalties Act.

Postponement and adjournment

40. (1) The Tribunal may postpone or adjourn a hearing on any terms that it considers appropriate.

Delay

(2) Any request for a postponement or an adjournment must be made at least 8 days before the hearing date.

Decision after hearing or later

41. The Tribunal may render a decision orally at the end of a hearing or it may reserve its decision until a later date.

Decision to be sent

42. The Tribunal must provide a decision in writing and send a copy of it to all parties without delay.

PART 4

REVIEW OF MINISTER’S DECISIONS

Application

43. This Part applies to all proceedings before the Tribunal initiated as a result of a request made in accordance with the Agriculture and Agri-Food Administrative Monetary Penalties Regulations or the Agriculture and Agri-Food Administrative Monetary Penalties Regulations Respecting the Pest Control Products Act and Regulations under subsection 12(2) or paragraph 13(2)(b) of the Agriculture and Agri-Food Administrative Penalties Act.

No new evidence

44. The parties may present new evidence only with the permission of the Tribunal.

Acknowledgement of receipt

45. Within seven days after the day on which the Tribunal receives a request referred to in rule 43, the Tribunal must send

Tribunal file

46. Within 15 days after the day on which the acknowledgement of receipt is sent, the Minister or his or her delegated representative must file with the Tribunal proof that the Minister’s decision that is subject to the review has been served on the applicant.

Addendum

47. Within 15 days after the day on which a request referred to in rule 43 is made, unless the following information is already contained in the applicant’s request for review, the applicant must file with the Tribunal an addendum containing the following information:

Decision on admissibility

48. (1) The Tribunal must make a decision on the admissibility of the request for review within 60 days after the day on which the acknowledgement of receipt of a request is sent to the parties, and send that decision to the parties in writing without delay.

Grounds to consider

(2) The Tribunal must, in coming to its decision on admissibility, consider any relevant factor, including whether

Documents relating to the decision

49. The Minister or his or her delegated representative must, within 30 days after the day on which the Tribunal decides that the request for review is admissible,

Acknowledgement of receipt

50. Within seven days after the day on which documents or exhibits were filed in accordance with rule 49, the Tribunal must send an acknowledgement of receipt of the material to the parties.

Request for oral hearing and additional reasons

51. Within 30 days after the day on which the documents or exhibits that are in the possession of the Minister are filed in accordance with rule 49, the applicant must

No further reasons

52. No further reasons can be filed after

Decision or notice of hearing

53. The Tribunal must, after the day on which no further reasons are to be filed in accordance with rule 52,

Failure to appear

54. If one of the parties does not appear at the hearing, and if the Tribunal is satisfied that a notice of the hearing was sent to the most recent address on file of that party, the Tribunal may grant or dismiss the request for review, or proceed with the hearing in the party’s absence and dispose of the review in any manner referred to in section 14 of the Agriculture and Agri-Food Administrative Monetary Penalties Act.

Postponements and adjournments

55. (1) The Tribunal may postpone or adjourn a hearing on any terms that it considers appropriate.

Delay

(2) Any request for a postponement or an adjournment must be made at least 8 days before the hearing date.

Decisions after hearing or later

56. The Tribunal may render a decision orally at the end of a hearing or it may reserve its decision until a later date.

Decision to be sent without delay

57. The Tribunal must provide a decision in writing and send a copy of it to all parties without delay.

REPEAL

58. The Rules of the Review Tribunal (Agriculture and Agri-Food) (see footnote 1) are repealed.

COMING INTO FORCE

Registration

59. These Rules come into force on the day on which they are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Rules.)

Issues

The Canada Agricultural Review Tribunal’s (the Tribunal) previous rules of procedure [Rules of the Tribunal (Agriculture and Agri-Food) SOR/99-451 (the Old Rules)] had become inadequate and contained several gaps. The Old Rules, enacted in 1999, no longer served the needs of the Tribunal, which has taken the role of a quasi-judicial body of first instance (that is, a body hearing cases on the facts and evidence). The Old Rules had been designed when the Tribunal acted as the body that reviewed the decisions of the Board of Arbitration (simply checking the reasoning of the Board), these Rules never fully contemplated first instance matters, such as the weighing of evidence and the calling of witnesses. By enacting the Rules of the Review Tribunal (Canada Agricultural Review Tribunal) [the New Rules], the procedural gaps have been filled and new clarity regarding Tribunal procedures have been set out for the benefit of parties appearing before the Tribunal.

As the amounts of the agriculture and agri-food administrative monetary penalties (AMPs) have increased, the complexity of the procedures brought before the Tribunal have also kept pace. This has meant that more applicants are represented by legal counsel; more motions are being heard; more witnesses are being called; and the complexities of the legal questions being addressed have increased proportionately. Unfortunately, because the Old Rules did not take these kinds of interventions into account, the Tribunal had to develop these Rules on an ad hoc basis, causing delays in cases before the Tribunal, while allowing parties the possibility of strategically stalling procedures in order to avoid having to pay the fine.

In the past, the Old Rules also did a poor job of informing the parties (the applicant [an individual or business] and the respondent [a government agency]) before the Tribunal of what was expected of them to present their case, whether this included making motions to subpoena witnesses or filing additional information in order to adequately support a case. This led to significant delays in the administration of cases and forced the Tribunal to use its discretionary powers to fill in many of the gaps that were not covered in practice notes issued to stakeholders.

Moreover, the patchwork of procedural practices and their application created inconsistently across cases, leaving parties confused and the Tribunal open to potential actions in judicial review before the Federal Court of Appeal.

Background

The Canada Agricultural Review Tribunal, as it exists now, was established in 1983, as a reviewer of decisions made by the Board of Arbitration, a regulatory board for fruit and vegetable vendors, and as of 1997, as a reviewer of warnings and monetary fines issued on behalf of the Minister of Agriculture and Agri-Food, and later by the Minister of Health. These fines are currently issued by three agencies: the Canadian Food Inspection Agency (CFIA), the Canada Border Services Agency (CBSA) and the Pest Management Regulatory Agency (PMRA) of Health Canada. These monetary fines or warnings are issued as notices of violation (NOVs) and are defined in greater detail within the Canada Agricultural Products Act, as well as the Agriculture and Agri-Food Administrative Monetary Penalties Act and its associated regulations. This group of legislation and policy is called the Administrative Monetary Penalties Regime (AMPs Regime) and is used by inspectors and employees of the various agencies to correct behaviour that may put human, plant or animal health at risk, whether that involves stopping the import of certain foods from abroad, or ensuring that an animal is traceable from farm to table. Usually NOVs are given out by inspectors when people or businesses break these rules. It is important to note that the AMPs Regime operates within the civil sphere of the law, rather than the criminal sphere and, therefore, NOVs are more like traffic violations, than a criminal act, like driving while impaired.

The Old Rules, drafted more than 15 years ago, came into force in 1999 and had become outdated because the Tribunal’s mandate has shifted to exclusively reviewing AMPs violations. As its name implies, the Tribunal was designed primarily to review decisions of the Board of Arbitration, rather than performing first instance reviews from applicants (the people and businesses that receive NOVs) that are based upon facts and evidence. As the Tribunal’s mandate has changed, the AMPs Regime has also changed over the last 10 to 15 years. The maximum amounts of NOVs issued were increased from $5,000 to $15,000, which dramatically increased the number of people seeking reviews, while making legal representation a viable option where it would have been uneconomical before. More parties seeking legal representation has also meant that the kinds of questions relating to evidence and the kinds of legal questions raised have also become much more complex. As maximum fines are now set to increase from $15,000 to $25,000, under proposed legislation currently before Parliament, it is believed that this trend will continue.

Another major change affecting the Tribunal was the delegation of inspection powers to the CBSA from the CFIA at airports (with border crossings set to begin in the near future). This has meant that air travelers coming back to Canada are also subject to AMPs ranging from $500 to $1,300, for individuals, should they fail to declare any food products that they may have on their person from abroad. As these AMPs represent a significant penalty, but one not so significant to justify seeking legal advice, the Tribunal has also had to adapt its practices and provide added instruction to applicants that are most often self-represented and who may have low levels of literacy or communication skills in either official language. To this effect, the Tribunal has produced numerous practice directions and developed a guide for self-represented litigants, although significant intervention on the part of the registry of the Tribunal has often been required in these cases.

With respect to the composition of the Tribunal, it is a relatively small organization, with one full-time decision-maker (decides cases, acts somewhat like a judge and is the Tribunal’s chairperson), one part-time decision-maker, an articling student, a senior registry officer (a person that handles all of the communications, documents, scheduling, submissions, etc., related to a case) and an administrative coordinator, as well as occasional student interns.

Objectives

The primary objective of the New Rules is formalizing some specific areas of difficulty encountered by the Tribunal. By setting out these issues and their proposed solutions into a public document, access to the rules is universal and they may be applied consistently across all hearings before the Tribunal, rather than having decision-makers use their discretionary authority.

The Tribunal has sought to ensure that its expectations as they relate to the parties and their receivables are explicit and clear. One of the most prevalent causes of delay at the Tribunal arises because of uncertainty as to Tribunal procedure, and because of last minute requests for extension of time limits.

The objective of this package is to protect and clarify the procedural rights of parties appearing before the Tribunal and to permit the Tribunal to apply these clarified rules in a manner leading to fairer, more expeditious and more cost-effective hearings of the cases coming before it.

Description

The following is a description of the regulatory changes.

The Rules of the Review Tribunal (Canada Agricultural Review Tribunal) [the New Rules] are, as the name suggests, a set of ground rules for interactions between the parties, the Tribunal and each other. The Rules go into much greater detail as to how these interactions will take place, what deadlines will be imposed, as well as establishing policies on official languages and very basic rules of civil procedure that will apply during proceedings before the Tribunal.

In order to better address the fact that the work of the Tribunal has moved from reviewing decisions of the Board of Arbitration to primarily reviewing decisions by applicants who receive NOVs, the Tribunal has proceeded to fill in many of the gaps that had previously existed in the Old Rules. There was clarification given as to what types of interpretation services would be offered by the Tribunal and within what timelines parties should request these services. Additional rules have been elaborated for the use of affidavit evidence, for the provision of required personal and contact information, as well as for the clear delineation of firmer due dates for submissions. The rules surrounding the procedure for hearings have been greatly amended in order to ensure that all parties have adequate time to prepare for the hearing.

What is notably different with the New Rules, compared to the Old Rules, concerns the level of detail used for areas where there has been confusion among the parties about Tribunal practices, as well as in formalizing fixed deadlines for the submission of documents and requests prior to oral hearings. As a result, the New Rules allow flexibility for the Tribunal to set an agenda, particularly in cases where constitutional or other larger administrative questions can cause difficulty in administrating the case. There is also a notable addition allowing for the use of teleconferencing and videoconferencing technologies, when available, in order to make the Tribunal available to remote parts of the country, that may not be on the list of the Governor in Council appointed locations. These changes will help reduce the backlog of cases outstanding and allow the Tribunal to be more responsive to certain types of cases that may have a tendency to get stalled (particularly in situations where the party requesting the review has a significant number of cases before the Tribunal).

Equally important in these New Rules is the significant gap they fill by setting out what documents are expected from the parties and within what time frame. A significant amount of the registry’s time was being spent requesting additional information from parties. This has been streamlined by the addition of rules that not only explain what information must be included in an applicant’s request to have their NOV reviewed, or shortly thereafter, but also by setting out the timelines that the agency will have to provide additional information and the subsequent response that the applicant is allowed to make to the agency’s formal report. Getting closer to the hearing, the New Rules establish fixed timelines for the use and cross-examination of affidavit evidence, for the calling of witnesses, for requests for adjournments or for the submission of additional information. These additional rules will bring greater clarity to the process and will ensure that there will be fewer surprises on the day of the hearing.

In conclusion, the relative patchwork of procedural rules is now significantly ameliorated with the coming into force of the New Rules, which will allow for more consistent decision-making by the Tribunal’s members, while also helping the parties to communicate with each other and with the Tribunal more effectively. Through this better communication, applications for judicial review will be expected to occur less frequently.

Consultation

The Tribunal consulted informally with agency stakeholders and received feedback from them. The suggestions received by the Tribunal from these stakeholders were considered in the drafting of the New Rules.

Results of prepublication

The Tribunal methodically sought comments and feedback from all stakeholders with respect to the Rules of the Review Tribunal (Canada Agricultural Review Tribunal) [the New Rules]. Firstly, the Tribunal’s New Rules were published in the Canada Gazette, Part I, on October 18, 2014, and were open for comment until November 17, 2014. The Tribunal also sent copies of the New Rules to all parties appearing before it during the previous year. In addition, it sent copies of the New Rules to all legal counsel and representatives appearing before it during the previous year. Furthermore, the Tribunal used its own Web site’s (cart-crac.gc.ca) newsfeed to announce the prepublication of the New Rules in the Canada Gazette, Part I, and solicit comments. Finally, the Tribunal used social media, specifically, its own Twitter feed, to announce the prepublication of its New Rules, with a link to the Canada Gazette, Part I, in order to further encourage comments on the proposed changes.

From these efforts, the Tribunal received one set of comments from sources outside the federal government, that being the Food Processors of Canada. After a careful review of these comments, the Tribunal has decided to implement one of their proposed changes. In addition, the Tribunal has communicated with the Food Processors of Canada to explain why certain proposed changes were not implemented.

The Tribunal also received comments from Agency stakeholders. As a result of these comments and the Tribunal’s own review of the New Rules that were published in the Canada Gazette, Part I, the Tribunal has also made changes to 10 of the other rules initially proposed, for greater clarification and for the extension of certain time limits.

(1) The Food Processors of Canada comments

The first comments received from the Food Processors of Canada pertained to the consultation section of the previous Regulatory Impact Analysis Statement, which accompanied the proposed Rules of the Review Tribunal (Canada Agricultural Review Tribunal) in the Canada Gazette, Part I. The comment expressed the feeling that there was a lack of consultation with new stakeholders (such as the meat industry) affected by the administrative monetary penalties regime. The Food Processors of Canada also requested that the New Rules be republished in the Canada Gazette, Part I, after having taken into account concerns from new stakeholders. The Tribunal is of the opinion that it has been diligent and has made all efforts to reach out to its stakeholders. Furthermore, the Tribunal has examined and considered all the present comments submitted by the Food Processors of Canada. For those stated reasons, the Tribunal does not feel that republication is a necessary step.

The second comment submitted by the Food Processors of Canada was in relation to section 6 of the New Rules. The comment expressed the idea that time limits should only be extended if the request is made before their expiration. The Tribunal believes that section 6 of the New Rules, which simply restates the prior section 6 of the Old Rules, does not require any modification. The Tribunal’s mandate is better served by maintaining its present level of discretion with respect to the extension of time limits.

The third comment received from the Food Processors of Canada pertained to section 13 of the New Rules. The comment expressed agreement with the rule. Consequently, no change is required as a result of this comment.

The fourth comment submitted by the Food Processors of Canada was with respect to section 16 of the New Rules.The comment enquired as to whether the parties could instead determine the means by which the service of documents and acknowledgement of service would take place. After careful examination, the Tribunal is of the opinion that the manner by which documents are to be served on parties requires a greater level of certainty than the suggested method of leaving it to the discretion of the parties. Consequently, the Tribunal does not feel that any change is required as a result of this comment.

The fifth comment received by the Food Processors of Canada asked that a provision be added addressing the situation where a change of ownership takes place during a Tribunal review process. After careful consideration, the Tribunal does not feel that a specific rule, addressing such a rare occurrence, is warranted. Should these situations arise, they will be treated on a case-by-case basis.

The sixth comment sent by the Food Processors of Canada pertained to section 41 of the New Rules. This comment stated that if the Tribunal reserves its decision for a later date, it must notify both parties in writing of the expected date of decision. In practice, the Tribunal very rarely issues decisions from the bench. Therefore, this proposed rule would obligate the Tribunal to contact all parties in writing after virtually every hearing and provide an estimated time frame for decision, which can vary greatly depending on the complexity of the case. This would place an additional burden on the Tribunal’s resources and could potentially delay decision-makers by adding an additional administrative requirement. For those reasons the Tribunal does not feel any change is required to this rule.

The seventh and last comment by the Food Processors of Canada concerned paragraph 49(c) of the New Rules.The comment asked that when the Minister is unable to produce documents or exhibits relevant to the case, that reasons be provided for this failure to produce them. The Tribunal is of the opinion that this comment should be implemented as it will lead to greater procedural fairness for applicants appearing before it. As a result, changes were made to subparagraphs 49(c)(i) and (ii) adding the requirement that the Minister explain the reasons why relevant documents or exhibits cannot be reproduced. The Tribunal believes that these changes address concerns raised by this comment.

(2) Changes made for clarification and for the adjustment of time limits

The first change made to the New Rules, for clarification purposes, appears at section 9. The words “dispense the party from” has been replaced in the English version by the words “release the party from the obligation of.” The Tribunal believes that the new wording is more grammatically sound. No changes were made to the French version of the New Rules, as the appropriate terms were already being used.

The second change made to the New Rules is to section 30. The delay for the Minister to file a proof of service and statement has been extended from 7 days to 15 days. This change was made to ensure that the Minister be given enough time to file the needed documents with the Tribunal. The Tribunal believes that this change will allow the Minister sufficient time to file and, as a result, avoid the Minister needing to request extensions to file all needed documents. This change was implemented in both the English and French versions of the New Rules.

The third change to the New Rules, for greater clarity, is at section 31, where the words “or evidence” have been removed at paragraph (d) of the English version of the New Rules. The terms “or evidence” were already encompassed by the terms “any supporting documents.” This change therefore eliminated a redundancy in the wording of that particular section. The equivalent change was made to the corresponding section of the French version of the New Rules, where the words “ou élément de preuve” were removed to address the same concerns.

The fourth change to the New Rules, for greater clarity and consistency, is at section 33. In the English version, at paragraphs (a) and (b), the words “or evidence” were removed to eliminate a perceived redundancy in the language. In the French version, the words “ou éléments de preuve” were removed for the same reason. Another change to section 33 occurred at paragraph (a), where the words “any refusal by the Minister” were replaced by “if applicable, a written confirmation of the Minister’s refusal” in the English version. In the French version, a similar change resulted in the words “le cas échéant, une confirmation écrite du refus du ministre” being added. These changes to paragraph (a) of section 33, were made to clarify the wording, as well as to ensure consistency between the English and French versions of the New Rules. Lastly, the final change made to section 33 of the New Rules was at paragraph (b) to clarify the content and to ensure consistency with paragraph (a). In the English version, the words “and, if applicable, the written confirmation of the refusal set out in paragraph (a)” were added to ensure consistency with paragraph (a). Similarly, in the French version, the words “et, s’il y a lieu, la confirmation du refus visé à l’alinéa a)” were added to ensure consistency with paragraph (a) and to reflect the equivalent change made to the English version.

The fifth change made to the New Rules, for clarification purposes, was to paragraph 35(a) which added the words “or by way of written submissions” to the English rule and “en personne ou sur pièces” to the French version of the rule. These changes were made to reflect that the rule makes the parties clearly aware of the two forms of reviews conducted at the Tribunal, namely, reviews by written submissions only and reviews by way of oral hearing.

The sixth change was to the English version of the New Rules, at section 40. For clarification purposes, the word “Tribunal” was capitalized to be consistent with its usage throughout the other sections of the New Rules. No change was necessary in the French version of this section, as the equivalent word “Commission” was already capitalized.

A seventh change was made to section 46. The delay for the Minister to send proof of service of their decision on the parties was extended from 7 days to 15 days. This change was made in order to allow the Minister sufficient time to send the proof of service. The Tribunal believes that this change will allow the Minister sufficient time to file and, as a result, avoid the Minister needing to request extensions to file the required proof of service with the Tribunal.

An eighth change to the New Rules was made to paragraphs 49(a) and (b). This change was made for clarification purposes. The words “or exhibits” were added to both subsections of the English version to be consistent with the rest of the sections of the New Rules. The equivalent change was made to the French version of the New Rules where the words “et pièces” were added to both subsections.

A ninth change was made for clarification purposes, once again to paragraph 49(b). This change clarifies the obligation of the Minister to provide a written confirmation of refusal to enter into a compliance agreement. This change was implemented in both the English and French versions of the New Rules.

A tenth and final change was made to the New Rules, this time to paragraph 51(a), for clarification purposes. This paragraph was amended by adding the wording “or by way of written submissions” to the English version and “en personne ou sur pièces” to the French version of the New Rules. This change was made to reflect that the rule makes the parties aware of the two forms of reviews conducted at the Tribunal, namely, reviews by written submissions only and reviews by way of oral hearing.

“One-for-One” Rule

The “One-for-One” Rule refers to the Government initiative to reduce regulatory red tape and control administrative burden to Canadian businesses. This rule does not apply to this package, as there is no change in administrative costs to business.

Small business lens

The small business lens does not apply to this package, as it imposes costs of less than $100,000 on business.

Rationale

The Canada Agricultural Review Tribunal provides an independent third-party check on three agency regulators that administer the Agriculture and Agri-Food Administrative Monetary Penalties Regime, namely the Canadian Food Inspection Agency, the Canada Border Services Agency and the Pest Management Regulatory Agency of Health Canada. This Regime was established to protect the Canadian public, as well as Canadian agriculture and wildlife from potential disease and pests. While the Administrative Monetary Penalties Regime is one of many tools that these agencies may avail themselves of, it is an important one that bridges the gap between a simple warning and costly criminal proceedings of an alleged offender.

Overall, the operational footprint of the Tribunal is quite small and the fines collected under the AMPs regime are modest. This being said, regulations of the agriculture and agri-food sectors affect a broad and ever-expanding number of industries and business sectors. Canadians are increasingly interested in ensuring that their food is safe and has been treated with a level of care that had not been contemplated in the past. Food forms an important part of a nation’s cultural fabric and questions of food sovereignty and sustainability continue to reverberate in political and public circles. With legislation currently before Parliament that would raise maximum fines to $25,000 and the addition of business lines, including federally licensed abattoirs and meat processing plants, it is unlikely that work for the Tribunal will be decreasing.

In terms of tying these proposed changes to government savings and a decrease in administrative costs to business, any increased level of certainty in the Tribunal’s proceedings will mean less time spent by a business owner, or their lawyer, trying to determine the best course of action or remedy sought. Better informed parties would allow the Tribunal to manage cases more effectively, thus being able to hear more cases each year, rather than spending time on administrative and planning matters. While this will not necessarily equate to direct savings, fewer adjourned hearings would go a long way to reducing travel costs and time spent carrying out the work of the Tribunal.

The most important benefits, however, concern providing better clarity to the public, which should allow them to make a more informed decision when they decide to request a review before the Tribunal.

Since the enacted legislative changes simply provide greater clarity concerning the Rules of the Tribunal, there should be no additional external costs imposed upon Canadian society.

Implementation, enforcement and service standards

These changes, reflected in the enacted New Rules, represent a four-year process that sought to bring the Rules of the Tribunal in line with the actual operations of the Tribunal for the first time, rather than relying on a significant number of practice directions and judicious use of the discretionary powers given to its members.

There have been relatively few points of contention, as the Rules simply concern the clarification of some basic rules of civil procedure before the Tribunal. All three agencies have been helpful in providing insights into their practices and showed an important degree of interest in the outcome of the amended rules.

The Rules will be implemented and enforced by the Tribunal itself, the decisions of which, whether they be of a substantive or procedural nature, are subject to judicial review by the Federal Court of Appeal.

As the actual operation of Tribunal has already been working towards the implementation of a number of provisions now contained in the New Rules through its use of discretionary powers and notice to the public through its practice notes, there should be an almost seamless transition to the requirements of the New Rules for parties appearing before the Tribunal.

Contact

Lise Sabourin
Registry Office
Canada Agricultural Review Tribunal
Building 60, Birch Drive, Central Experimental Farm
960, Carling Avenue
Ottawa, Ontario
K1A 0C6
Fax: 613-792-2088
Email: lise.sabourin@cart-crac.gc.ca