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Agriculture - Plant Protection Act (Fed). Prince Edward Island Potato Board v. Canada (Agriculture and Agri-Food)
In Prince Edward Island Potato Board v. Canada (Agriculture and Agri-Food) (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal from an earlier dismissed JR, here against "an Order issued by the Minister of Agriculture and Agri-Food [Minister] under section 15(3) of the Plant Protection Act, SC 1990, c 22, declaring the entire province of Prince Edward Island [PEI] as "“a place infested with potato wart”" and prohibiting the movement of PEI seed potatoes from PEI without written authorization from an inspector [Ministerial Order]".
Here the court canvasses relevant Plant Protection Act and regulations:III. Statutory Context
[39] The Minister’s authority to issue the Ministerial Order is constrained by provisions of the Act and of the Plant Protection Regulations, SOR/95-212 [Regulations] promulgated by the Governor in Council under subsection 47(1) of the Act to carry out the purposes and provisions of the Act. Both the Act and Regulations enable the Minister and the CFIA (the Respondents), to carry out Canada’s responsibilities under the IPPC.
[40] Section 2 of the Act sets out its purpose:"Purpose of the Act "
"Objet"
"2 The purpose of this Act is to protect plant life and the agricultural and forestry sectors of the Canadian economy by preventing the importation, exportation and spread of pests and by controlling or eradicating pests in Canada. "
"2"" La présente loi vise à assurer la protection de la vie végétale et des secteurs agricole et forestier de l’économie canadienne en empêchant l’importation, l’exportation et la propagation de parasites au Canada et en y assurant la défense contre ceux-ci ou leur élimination." [41] Sections 11 to 18 of the Act pertain to "“Infested Places”". Sections 11 and 12 set out the powers of inspectors (persons designated pursuant to section 21 of the Act) to declare that certain places are infested. An inspector may declare infested a place where the inspector suspects or determines the place is infested with the pest and is of the opinion the pest could spread to any other land, building or place. The inspector may declare that the land, building or place to which, in their opinion, the pest could spread, is also infested.
[42] A place declared to be infested under subsections 11(1) and 12(1) constitutes an infested place only once the declaration is delivered to the occupier or owner of the land, building or place mentioned in the declaration: subsections 11(2), 12(2) and section 14. There is no such requirement for a place declared to be infested by ministerial order under subsection 15(3).
[43] Subsection 13(1) provides that where the inspector is of the opinion that immediate action is required to control the pest, a declaration under sections 11 or 12 may prohibit or restrict the movement of persons or things within, into or out of the infested place for the purpose of controlling the pest.
[44] Subsection 15(2) sets out the authority of the Minister to revoke an inspector’s declaration, under sections 11 and 12, that a place is infested, while subsection 15(3) defines the authority of the Minister to declare that a place is infested:"Powers of Minister "
"Pouvoirs du ministre "
"15 (3) The Minister may, by order, "
"(a) declare any place to be infested that is not already the subject of a declaration under section 11 or 12; "
"(b) determine and subsequently vary the area of any place that is declared infested; "
"(c) extend the period of any prohibition or restriction declared by an inspector under subsection 13(1); "
"(d) prohibit or restrict the movement of persons and things within, into or out of any place that is declared infested; and "
"(e) permit any movement of persons and things within, into or out of a place that would otherwise be prohibited by this section or section 6. "
"15 (3)"" Le ministre peut, par arrêté, déclarer infesté un lieu qui ne l’a pas déjà été par l’inspecteur; il peut aussi, de la même manière, soit délimiter le périmètre de tout lieu déclaré infesté et ultérieurement le modifier, soit prolonger la période fixée par l’inspecteur en application du paragraphe 13(1), soit encore interdire ou restreindre l’entrée, la sortie ou la circulation de personnes ou de choses dans ce lieu ou, malgré le présent article ou l’article 6, l’autoriser." [45] Section 16 governs how an infested place may be described in declarations under sections 11 or 12 or subsection 15(3):"Description of area of infested place "
"Périmètre "
"16 In a declaration under section 11 or 12 or subsection 15(3), the area of an infested place may be described by reference to a map or plan deposited and publicly available at a place specified in the declaration, or by reference to any farm, county, district, municipality, province or any part thereof. "
"16"" Le périmètre du lieu déclaré infesté au titre des articles 11 ou 12 ou du paragraphe 15(3) peut être délimité par référence à soit une carte ou un plan accessible au public en quelque lieu déterminé, soit tout ou partie de fermes, comtés, zones, municipalités ou provinces." [46] While the Act does not define the term "“infested”", a definition is provided by section 2 of the Regulations:"Interpretation "
"Définitions "
"2 In these Regulations, "
"2"" Les définitions qui suivent s’appliquent au présent règlement. "
"… "
"[…] "
"infested means that a pest is present in or on a thing or place or that the thing or place is so exposed to a pest that one can reasonably suspect that the pest is in or on the thing or place; (""infesté"") (parasité) "
"infesté"" Se dit de la présence d’un parasite sur ou dans un lieu ou de l’exposition telle d’un lieu à un parasite qu’il est raisonnable d’y soupçonner la présence du parasite. (infested"") " [47] Paragraph 16(2)(a) of the Regulations speaks to the authority of an inspector or the Minister to describe areas in which a pest is or could be found in terms similar to those used by section 16 of the Act:"Investigation or Survey of a Thing or Place "
"Enquête ou étude d’un lieu ou d’une chose "
"… "
"[…] "
"16 (2) Where, as a result of an investigation or a survey conducted by any inspector or any other person, the Minister or an inspector has reasonable grounds to believe that a pest or biological obstacle to the control of a pest has been detected and an area in which the pest or biological obstacle is or could be found has been identified, "
"16 (2)"" Lorsque, par suite d’une enquête ou d’une étude menée par l’inspecteur ou toute autre personne, le ministre ou l’inspecteur a des motifs raisonnables de croire qu’un parasite ou un obstacle biologique à la lutte antiparasitaire est détecté et que le périmètre où le parasite ou l’obstacle biologique est ou peut être présent est identifié : "
"(a) the Minister or any inspector may describe the area by reference to a map or plan that is publicly available, or by reference to any farm, county, district, municipality, province or any part thereof; "
"a"")"" le ministre ou l’inspecteur peut délimiter le périmètre par renvoi soit à une carte ou à un plan accessible au public, soit à tout ou partie d’une ferme, d’un comté, d’une zone, d’une municipalité ou d’une province; "
"… "
"[…] " . Prince Edward Island Potato Board v. Canada (Agriculture and Agri-Food) (US market as a factor in finding 'infestation')
In Prince Edward Island Potato Board v. Canada (Agriculture and Agri-Food) (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal from an earlier dismissed JR, here against "an [SS: Ministerial] Order issued by the Minister of Agriculture and Agri-Food [Minister] under section 15(3) of the Plant Protection Act, SC 1990, c 22, declaring the entire province of Prince Edward Island [PEI] as "“a place infested with potato wart”" and prohibiting the movement of PEI seed potatoes from PEI without written authorization from an inspector [Ministerial Order]".
Here the court considers the appellant's argument that "the Ministerial Order was unreasonable because the Minister issued it to address "“threats”" by US authorities to restrict trade in Canadian potatoes with the US":B. Trade or economic considerations are irrelevant or indicate an improper purpose
[54] The Federal Court found, and the parties agreed, that the Respondents’ interest in avoiding a new US Federal Order and the accompanying negative trade and economic repercussions influenced the decision to issue the Ministerial Order. However, in the Court’s view, this did not make the decision unreasonable. The authority to issue an order that a place is infested under subsection 15(3) could be exercised only where the evidence supported a reasonable suspicion, grounded in objective facts, that the pest was in the place declared as infested. Where this condition was met, and given the permissive nature of the Minister’s authority under subsection 15(3), it was open to the Minister, in exercising her authority, to consider the economic repercussions raised following the 2021 detections. These were relevant because one of the purposes of the Act is to protect the agricultural sector of the Canadian economy by preventing the exportation or spread of pests.
....
B. The Minister’s consideration of trade impacts did not render the Ministerial Order unreasonable
[116] The Appellant also argues that the Minister’s decision to issue the Ministerial Order was driven by the Respondents’ interest in avoiding a new US Federal Order that could negatively impact the entire Canadian potato industry. In its view, such economic considerations were irrelevant to the exercise of the Minister’s authority under subsection 15(3) of the Act, which should hinge solely on whether PEI was "“infested”" according to the terms of the Act and Regulations. Consequently, the Appellant submits, the Ministerial Order should be set aside because it was made for "“an irrelevant or improper purpose”".
[117] Before this Court, the parties agreed that a ministerial order could not be justified on trade concerns alone and, in the absence of evidence that could satisfy the statutory requirements that PEI is infested with PW, the Ministerial Order would be unreasonable. However, once the statutory requirement that the place be infested is met, and given the permissive nature of the discretionary authority set out in subsection 15(3) of the Act, it was open to the Minister to take trade concerns into account in deciding whether to issue an order or pursue instead the other options laid out by CFIA in its Memorandum and Risk Management Document.
[118] I have found that the Minister’s decision that PEI is infested with PW and that subsection 15(3) of the Act gave her the authority to issue the Ministerial Order is reasonable. Since the issuance of a ministerial order was supported by the terms of the Act, it was open to the Minister to consider trade concerns in deciding whether to exercise her discretion to issue the Ministerial Order. The scope of discretionary powers conferred by statute is informed by the purposes and objects reflected in the purpose statements contained in the statute, which are the first, most direct and authoritative evidence of the legislative purpose: Sullivan at 270; CAIMAW v. Paccar of Canada Ltd., [1989] 2 S.C.R. 983, 1989 CanLII 49 at pp. 1028-29; CCR at para. 130. As noted by the Federal Court, one of the statutory purposes set out in section 2 of the Act is to protect the agricultural sector of Canada’s economy by preventing the exportation and spread of pests. The adoption of phytosanitary measures to prevent the spread of PW from PEI, consistent with Canada’s international obligations, is therefore linked to and, indeed, aimed at mitigating threats to the ability of Canada’s potato industry to engage in international trade.
[119] Accordingly, the Appellant’s argument that the Ministerial Order should be set aside because it was based on an irrelevant consideration or made for an improper purpose fails. . Prince Edward Island Potato Board v. Canada (Agriculture and Agri-Food) ['reasonable suspicion standard' (it's like the criminal RPG)]
In Prince Edward Island Potato Board v. Canada (Agriculture and Agri-Food) (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal from an earlier dismissed JR, here against "an [SS: Ministerial] Order issued by the Minister of Agriculture and Agri-Food [Minister] under section 15(3) of the Plant Protection Act, SC 1990, c 22, declaring the entire province of Prince Edward Island [PEI] as "“a place infested with potato wart”" and prohibiting the movement of PEI seed potatoes from PEI without written authorization from an inspector [Ministerial Order]".
The court considers the argument that the Minister lacked adequate evidence to determine that there was an 'infestation' [under the Plant Protection Act s.15(3), and the 'reasonable suspicion standard'] (more fully at paras 50-52 and 64-115):(a) In the context of the Act, the reasonable suspicion standard asks whether, based on objectively discernable facts, a pest is possibly present in a place
[90] Section 2 of the Regulations states that a place is "“infested”" if either a pest is present in the place, or the place is so exposed to a pest that one can reasonably suspect that the pest is in the place.
[91] The parties did not identify any judicial consideration of the definition of "“infested”". However, the Appellant argued that the definition incorporates the standard of reasonable suspicion defined and applied by the Supreme Court of Canada in R v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220 [Chehil]. Under this standard, a reasonable suspicion must be based on "“objectively discernible facts”": Chehil at para. 3. The Respondents took no issue with the Appellant’s formulation of the applicable standard. Like the Federal Court, in the absence of any express analysis of the definition of "“infested”" by the Minister, I adopt the parties’ agreement on this standard in assessing the reasonableness of her decision. As the Supreme Court noted in Vavilov at para. 111, citing the "“reasonable grounds to suspect”" standard as an example, "“where the governing statute specifies a standard that is well known in law and in the jurisprudence, a reasonable decision will generally be one that is consistent with the established understanding of that standard.”"
[92] The Supreme Court noted in Chehil that, in the criminal law context, while both the "“reasonable grounds to suspect”" and the "“reasonable and probable grounds to believe”" standards have to be grounded in objective facts, "“reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability, of crime”": Chehil at para 27. The fact that reasonable suspicion dealt with possibilities, rather than probabilities, necessarily meant that "“in some cases the police will reasonably suspect that innocent people are involved in crime”": Chehil at para. 28.
[93] In Canada (Minister of Transport, Infrastructure and Communities) v. Farwaha, 2014 FCA 56, 455 N.R. 157 at para. 97 [Farwaha], this Court addressed the "“reasonable grounds to suspect”" standard in the context of a Minister’s power to revoke a dock worker’s security clearance where there were reasonable grounds to suspect, among others, his membership in or association with terrorist or criminal organizations:While fanciful musings, speculations or hunches do not meet the standard of “reasonable grounds to suspect”, the “totality of the circumstances” and inferences drawn therefrom, including information supplied by others, apparent circumstances and associations among individuals can. To satisfy the “reasonable grounds to suspect” standard, verifiable and reliable proof connecting an individual to an incident—proof of the sort required to secure a conviction or even a search warrant —is not necessary. [94] By analogy to the criminal law context in Chehil, where police may reasonably suspect of criminal activities people who turn out to be innocent, the application of the "“reasonable suspicion”" standard in the plant protection context means that in some cases, the Minister may reasonably suspect that a pest is in a place where it turns out not to be. Therefore, in order to declare that all fields in PEI are infested with PW, the Minister did not need to have before her objective facts establishing that the pest is present or even probably present in each and every field. Objective facts that establish that the pest is possibly present in each and every field were sufficient.
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