1. JANUARY 11, 2018, CASE MANAGEMENT CONFERENCE

[1]  At the Case Management Conference Call (CMCC) on January 11, 2018, Elizabeth Ouaknine (Ms. Ouaknine) represented Georges Gantcheff (Mr. Gantcheff), and Michèle Hobbs (Ms. Hobbs) of the Canada Border Services Agency (CBSA), represented the Minister. During this call, it was established with the parties, the order of proceedings for the hearing before the Canada Agricultural Review Tribunal (Tribunal), scheduled for February 20, 2018, at 9:30 a.m., in Montréal, Quebec.

[2]  It was agreed that the CBSA would begin since it bears the burden of proof. Ms. Ouaknine would then proceed on behalf of Mr. Gantcheff.

[3]  Since this is a Minister’s delegate review of a decision, I explained to Ms. Ouaknine and Ms. Hobbs that no new documentary evidence and testimony would be admitted at the hearing. I would solely rely at the hearing on the evidence presented before the Minister’s delegate when he made his determination.

[4]  I further explained that I would perform a new or de novo analysis of this evidence. Consequently, I would show little or no deference to the Minister’s delegate’s analysis of the evidence or to the weight he gave to the various elements.

[5]  I explained that, since there would normally be no new evidence or testimony at the hearing, I would only hear the parties’ oral submissions related to the evidence on the record.

[6]  At the CMCC, Ms. Ouaknine stated that she wished to present new evidence in the form of testimony at the hearing. The Tribunal therefore promised to provide Ms. Ouaknine with the required information to file such a motion.

[7]  In a letter sent by email on January 25, 2018, the Tribunal explained to Ms. Ouaknine the steps required to file such a motion. In addition, a timetable was established for the sending of this motion and the CBSA’s response.

2. MR. GANTCHEFF MOTION AND THE CBSA’S RESPONSE

[8]  On February 5, 2018, Ms. Ouaknine filed a motion by email, seeking the Tribunal’s permission to have Mr. Gantcheff and a certain Stéphan Thérrien testify on [TRANSLATION] “facts that were revealed in our appeal from the Minister’s decision”. Ms. Ouaknine did not give any details on the nature of these facts.

[9]  In an email sent by Pierre Dastous on February 6, 2018, the CBSA objected to the addition of these witnesses.

3. ISSUE

[10]  Did Mr. Gantcheff meet his burden regarding the need, relevance and unavailability of the new testimonial evidence he wishes to present at the hearing?

[11]  It is my opinion that Mr. Gantcheff did not satisfy the burden that was on him.

4. APPLICABLE PRINCIPLE OF LAW

[12]  The powers given to the Tribunal by Parliament so that it can review the Minister’s decisions are set out in subsection 14(1) of the Agriculture and Agri-Food Administrative Monetary Penalties Act (AAAMP ACT): “After concluding a review requested under this Act, the Tribunal shall, by order, as the case may be, confirm, vary or set aside any decision of the Minister”. The Tribunal therefore performs a function not as a decision-maker of first instance or as a court conducting a judicial review, but rather as a specialized or appellate administrative tribunal reviewing an administrative decision of first instance.

[13]  Although the AAAMP Act provides for a review, as well as possible remedies, it does not specify the type of review to be conducted by the Tribunal. It is nonetheless clear that the Tribunal’s determination must be based on the decision of the Minister’s delegate and is not a fresh opportunity to re-hear all the evidence on the record at the hearing.

[14]  Rather, the Tribunal has held that the relevant legislation and case law favour that it conduct a de novo type of administrative appellate review of the Minister’s decisions under the AAAMP ACT (see Hachey Livestock Transport Ltd. v. Canada (Minister of Agriculture and Agri-Food), 2015 CART 19, at paragraphs 28 to 50). The Tribunal must therefore perform a new or de novo examination of the facts and draw its own legal and factual conclusions with little deference to the findings and reasoning of the Minister’s decision.

[15]  A de novo review of the facts means that the Tribunal is not required to ask the parties to present the evidence again. In fact, the parties will rarely present new evidence and this only with the Tribunal’s permission under section 44 of the Rules of the Review Tribunal (Canada Agricultural Review Tribunal) (Tribunal Rules) and Practice Note #9.

[16]  Indeed, section 44 of the Tribunal Rules provides that for the review of the Minister’s decisions, parties may present new evidence only with the permission of the Tribunal. Practice Note #9 explains that “[i]f new evidence is pivotal to a factual determination and could change that determination, the Tribunal will consider admitting it, subject to an assessment of its relevance to the case and its prior availability.”

[17]  The exercise performed by the Tribunal when it reviews a Minister’s decision requires it to thoroughly examine and consider the evidence produced, its relevance and weight; the factual findings made by the Minister; and any additional factual findings, if any, that may be required for the resolution of the case. The Tribunal must also apply the appropriate rules of law to the factual findings to determine whether the Minister’s decision should be confirmed, varied or set aside.

[18]  In conclusion, in light of section 14 of the AAAMP Act, section 44 of the Tribunal Rules, Practice Note #9 and the Tribunal’s case law, new evidence will only be admitted in exceptional circumstances.

5. ANALYSIS

[19]  Since Ms. Ouaknine filed a motion on Mr. Gantcheff’s behalf to present new evidence, in the form of testimony at the hearing, the onus was on her to establish the need, relevance and availability of this evidence for the review performed by the Minister. Ms. Ouaknine’s very brief explanation to support this motion does not satisfy this burden.

6. ORDER

[20]  Ms. Ouaknine’s motion on Mr. Gantcheff’s behalf to present new evidence, in the form of testimony at the hearing, is denied.

[21]  The hearing will begin with the CBSA’s oral submissions. Ms. Ouaknine will then proceed on Mr. Gantcheff’s behalf, as agreed at the CMCC on January 11, 2018. The parties’ oral submissions will rely on the record and the evidence that was before the Minister’s delegate at the time of his determination.

Dated at Ottawa, Ontario, on this 14^th day of February 2018.

Luc Bélanger

Chairperson

Canada Agricultural Review Tribunals