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Agriculture - Agriculture and Agri-Food Administrative Monetary Penalties Act. Fedorenko v. Canada (Attorney General) [Canadian Agricultural Review Tribunal]
In Fedorenko v. Canada (Attorney General) (Fed CA, 2024) the Federal Court of Appeal dismissed a JR against a decision of the Canadian Agricultural Review Tribunal, here regarding "a notice of violation and associated penalty issued to the applicant for failing to declare the importation of meat products, contrary to subsection 16(1) of the Health of Animals Act". A fine was assessed under the Agriculture and Agri-Food Administrative Monetary Penalties Act:[1] The applicant seeks judicial review of a decision of the Canadian Agricultural Review Tribunal: 2023 CART 4 (CanLII), 2023 CART 04. The Tribunal upheld a notice of violation and associated penalty issued to the applicant for failing to declare the importation of meat products, contrary to subsection 16(1) of the Health of Animals Act, S.C. 1990, c. 21. Subsection 16(1) requires that any person importing into Canada any animal, animal product, or animal by-product, among other items, present the product to an inspector, officer or customs officer for inspection, either before or at the time of importation.
[2] The applicant, on arrival to Pearson International Airport in Toronto, completed a declaration at the self-serve primary inspection kiosk ("“PIK”"). She answered "“yes”" to the question whether she was in possession of "“[r]aw or cooked meat, fish, seafood, eggs, dairy products, fruits, vegetables, seeds, nuts…”" and "“no”" to the question whether she had "“any live animals, pets, food, plants, meat or animal items other than the following: nuts, mango, planting, dried fish, dates, breadfruit, group spices, chocolate, cookies, sugar cane..…citrus fruits and/or avocado”".
[3] After a detector dog identified the applicant’s bag as containing meat products, a border services officer asked the applicant about the food in her bag. She responded: "“Just fruits, pomegranates and sweets”". The officer referred the applicant to secondary inspection. A different border services officer asked about the contents of her bag. The applicant said that it contained only fruits and sweets, but after being told that a detector dog had identified meat products, acknowledged the meat products. The bag contained 2.2 kg of chicken sausage, 1.3 kg of beef sausage, and 5.4 kg of pork ears and sausage.
[4] A notice of violation was issued pursuant to section 7 of the Agriculture and Agri-Food Administrative Monetary Penalties Act, S.C. 1995, c. 40 [AAMP Penalties Act] and an administrative penalty of $1,300 was imposed: Division 1 of Part 1 of Schedule 1 of the Agriculture and Agri-Food Administrative Monetary Penalties Regulations, S.O.R./2000-187. The applicant asked the Tribunal to review the notice of violation and penalty.
[5] The sole question before us is whether the Tribunal’s decision—upholding the notice of violation and penalty - was reasonable: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para. 23 [Vavilov]; Canada (Attorney General) v. Chu, 2022 FCA 105 at para. 4. As the reviewing court, we must ask "“whether the decision bears the hallmarks of reasonableness—justification, transparency and intelligibility—and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision”": Vavilov at para. 99. The party challenging the decision must identify flaws that are "“sufficiently central or significant to render the decision unreasonable”": Vavilov at para. 100. Absent exceptional circumstances, this Court is not entitled to interfere with the factual findings of the Tribunal: Vavilov at para. 125.
[6] The Tribunal determined that the central issue was whether the applicant had sufficiently declared the meat products and, therefore, made them available for inspection. The Tribunal found that the applicant correctly answered the first question in the PIK declaration, but made no further express declarations of meat products until told in the secondary inspection that a dog had detected meat in her luggage. The Tribunal found this insufficient to meet the applicant’s disclosure obligations under subsection 16(1), a conclusion that was reasonable.
[7] The Tribunal considered the applicant’s argument that an E311 declaration card, completed on the airplane prior to arrival, satisfied her disclosure obligations. The card was not collected; the applicant was questioned on her PIK declaration. While we question the relevance of the E311 card, we agree with the Tribunal’s observation that a "“yes”" on any declaration, merely creates a rebuttable presumption that all products have been fully declared. It did not excuse the applicant’s failure to provide complete answers to border services officers.
[8] The Tribunal’s approach, that declaration of animal products must be truthful and timely, is consistent with this Court’s decision in Canada (Attorney General) v. Savoie-Forgeot, 2014 FCA 26 (at para. 25): "“[a] traveller is not allowed to gamble that he or she will not be directed to the secondary search area, and to declare the goods only if it appears they will be discovered as a result of a search”. "See also Canada (Border Services Agency) v. Tao, 2014 FCA 52 at para. 25.
[9] The Tribunal also reasonably determined that the applicant did not have a defence to incorrectly answering the second question on the PIK declaration based on a misunderstanding of the question. The Tribunal referred to subsection 18(1) of the AAMP Penalties Act which provides that a person named in a notice of violation does not have a defence by reason of due diligence or mistaken facts, even if "“reasonably and honestly”" believed to be true. As this Court noted in Gantcheff v. Canada (Attorney General), 2019 FCA 317 at para. 9, the scheme under the AAMP Penalties Act is one of absolute liability, leaving the person who commits a violation very few defences: Gantcheff at para. 9, citing Doyon v. Canada (Attorney General), 2009 FCA 152 at para. 27.
[10] In this Court the applicant reiterates arguments raised before the Tribunal about the sufficiency of her disclosure. The applicant further submits that the Tribunal did not consider whether she had been provided with an opportunity to establish that the meat products were eligible for importation pursuant to an exemption in section 40 of the Health of Animals Regulations, C.R.C., c. 296 [HA Regulations], thereby excusing any non-disclosure. We disagree.
[11] In our view, the obligation to declare products for inspection under subsection 16(1) exists regardless of any exemption under section 40 of the HA Regulations. Declaring animal products when required, which did not happen here, enables the border services officers to inspect the animal products and determine whether they meet the requirements for importation. A failure to declare can effectively remove that opportunity for inspection: Savoie-Forgeot at para. 22. . Prairie Pride Natural Foods Ltd. v. Canada (Attorney General)
In Prairie Pride Natural Foods Ltd. v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered a JR against a administrative monetary penalty (issued under the Agriculture and Agri-Food Administrative Monetary Penalties Act) that had been appealed unsuccessfully to the Canada Agricultural Review Tribunal. The JR issue was that the administrative review required an odd two-staged repeated notice, the first which was met and the second which was late:[13] The issue, then, is whether the Tribunal reasonably found that the request for review was inadmissible because the follow-up copy of the request was out of time. The Tribunal was correct that a copy of the request was sent late. However, a question remains: Is sending the copy necessary to have a valid request for review?
[14] The Tribunal determined that the request for review was invalid because the prescribed deadlines are strict (Decision at paras. 4, 15, 16). This conclusion was based on two decisions of this Court: Clare v. Canada (Attorney General), 2013 FCA 265, 451 N.R. 349 at para. 24 (Clare); and Hershkovitz v. Canada (Attorney General), 2021 FCA 38, 328 A.C.W.S. (3d) 431 (Hershkovitz).
[15] I have a concern with relying on these decisions because neither Hershkovitz nor Clare deals with the requirement to send a follow-up copy of a request for review.
[16] The Hershkovitz decision concerns an entirely different statutory requirement, which has no similarity to the requirement at issue.
[17] Clare deals with the deadline for sending the original request for review. This Court concluded in Clare that a request for review is invalid if it is not made within the time prescribed.
[18] The relevant statutory language for sending the original request is materially different from the language for sending a follow-up copy. These differences were not discussed by the Tribunal. Further, the Tribunal did not discuss the statutory language in subsection 14(3) at all. The question is whether the Decision of the Tribunal is reasonable in spite of this.
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[22] Paragraph 9(2)(c) of the Act provides that a person is entitled to request a review by the Tribunal “in the prescribed time and manner”. The time and manner are set out in the Regulations. Subsections 11(2) and 14(1) of the Regulations explicitly provide a prescribed time and manner to make a request for review.
[23] The time requirement is set out in subsection 11(2) of the Regulations. It provides that “the request shall be made … within 30 days after the day on which the notice is served” (Emphasis added).
[24] The manner of making the request is set out in subsections 11(2) and 14(1) of the Regulations. Subsection 11(2) provides that the request must be “made in writing”. Subsection 14(1) provides that a “person may make a request … by delivering it by hand or by sending it by registered mail, courier or fax or other electronic means …”. (Emphasis added.)
[25] Unlike these Regulations, subsection 14(3) does not explicitly link the requirement to send a copy with the manner to make a valid request for review. Subsection 14(3) provides that if a request is made by electronic means, a copy of the request is required to be sent by courier or registered mail. Although the text states that sending the copy is mandatory, it does not state that the copy is a requirement to make the request.
[26] One thing that might be said in favour of the Tribunal’s interpretation is that subsections 14(3) and 14(1) are both located in section 14. On the other hand, the language in subsection 14(3) itself distinguishes between the manner of making the request (electronic means) and the requirement to send a copy. Accordingly, the language in subsection 14(3) seems to imply that the copy is not a requirement of making the request.
[27] A further difficulty with the Tribunal’s interpretation of subsection 14(3) is that it results in an inconsistency as to the deadline for making the request. As noted above, subsection 11(2) provides a deadline for making the request of 30 days after the date of service of the notice of violation. The deadline for the copy is “48 hours after the time limit for making the request.” Clearly, the deadline for sending the copy in subsection 14(3) extends beyond the deadline for making the request in subsection 11(2). Accordingly, the Tribunal’s determination that sending a follow-up copy is a requirement to make the request produces an internal inconsistency in the deadline for making a request for review.
[28] With respect to the purpose of subsection 14(3), I have reviewed the Regulatory Impact Analysis Statements (RIAS) concerning the relevant provision, in its current and earlier versions. The original version of subsection 14(3) had no fixed deadline and the RIAS did not discuss the purpose of the provision. Subsection 14(3) was amended in 2016 to provide for a fixed deadline. The relevant RIAS related to a number of amendments, including subsection 14(3), that were made to improve clarity and consistency of the Regulations. Subsection 14(3) was amended again in 2020 with the effect of slightly extending the deadline. The RIAS for this amendment stated that it was for clarity and consistency.
[29] Since the RIAS for the original version does not state the purpose of subsection 14(3), the RIAS’ as a whole may not provide much assistance in determining the purpose of the provision.
[30] I conclude that these considerations concerning the text, context and purpose of subsection 14(3) may impact the Decision and that if they had been considered by the Tribunal, it may have reached a different result. Accordingly, in accordance with the teaching in Vavilov, the Decision is unreasonable insofar as the Tribunal failed to take these considerations into account.
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