1. OVERVIEW

[1]  This matter concerns a request for review of the Notice of Violation #4974-19-1721 (NOV) by the Applicant to the Canada Agricultural Review Tribunal (Tribunal), pursuant to paragraph 9(2)(c) of the Agriculture and Agri-Food Administrative Monetary Penalties Act (AAAMP Act).

[2]  On October 24, 2019, following his arrival at Lester B. Pearson International Airport in Toronto, Mr. Khalid Qazi (Applicant) allegedly failed to declare a thing that is a pest, is or could be infested or constitutes or could constitute a biological obstacle to the control of a pest, to wit: 2 live rose plants with soil. Consequently, the Canada Border Services Agency (Agency) issued him a NOV with a penalty of $800 for a “serious” violation of section 39 of the Plant Protection Regulations.

2. PROCEDURAL HISTORY

[3]  On November 6, 2019, the Applicant applied to the Tribunal for a review of the NOV # 4974-19-1721 pursuant to subsection 9(2)(c) of the AAAMP Act.

[4]  On January 7, 2020, the Tribunal found the request for review admissible.

3. OFFER TO SETTLE

[5]  On January 17, 2020, the Agency presented a written offer to settle the case to the Applicant, which offered to amend the NOV originally issued with a penalty of $800, to a NOV with warning, without the monetary penalty.

[6]  The Applicant communicated his acceptance to this offer via email, received by the Tribunal on February 13, 2020.

[7]  As explained in the Agency’s offer to settle, a violation will remain in the Agency’s records for the next six years from the date of violation.

[8]  The Applicant must understand that all travelers entering into Canada may be subject to secondary customs examinations by the Agency, regardless of previous enforcement action.

4. THE SETTLEMENT

[9]  The Tribunal has the sole and exclusive jurisdiction to hear and determine all questions of fact or law regarding any matter over which it is given jurisdiction under the AAAMP Act or any Act of Parliament, pursuant to section 38(1) of the AAAMP Act.

[10]  Moreover, as a court of record, the Tribunal is vested with additional powers to the ones explicitly conferred by its enabling legislation. These powers are available to the Tribunal as they are necessary to fulfill the purpose and objective of the statutory regime created by the legislature. [1] This ensures the enforcement of its orders and other matters necessary to duly exercise its jurisdiction pursuant to section 41(2) of the AAAMP Act.

[11]  The Tribunal does not have the explicit authority to vary a NOV with penalty to a NOV without penalty. However, the Tribunal has the jurisdiction by necessary implication and practical necessity to give effect to the settlement agreement as established in Atkinson [2] .

[12]  Given these powers provided to me by statute, I agree that the most just and efficient outcome in this case is to amend the NOV with penalty of $800 to a Notice of Violation without penalty in accordance with the agreed settlement by the parties.

[13]  This is not an order of the Tribunal which can be the subject of a judicial review application pursuant to section 38(2) of the AAAMP Act.

[14]  This settlement agreement constitutes a final settlement of the rights of both parties in relation to file CART - 2152 and the events which occurred on October 24, 2019.

[15]  This settlement should not be cited as a precedent or otherwise relied on except in relation to the current NOV.

5. ORDER

[16]  As requested by the parties and pursuant to the powers coffered to me, I confirm, by ORDER, the settlement agreement.

[17]  I wish to inform the Applicant that this violation is not a criminal offence. After five years, he may apply to the Minister of Public Safety and Emergency Preparedness to have the violation removed from the records, in accordance with section 23 of the AAAMP Act.

Dated at Ottawa, Ontario, on this 17^th day of April 2020.

Luc Bélanger

Chairperson

Canada Agricultural Review Tribunal