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Yagua Rospigliosi v Canada (Minister of Public Safety and Emergency Preparedness), 2020 CART 18


Docket: CART – 2138




‑ AND ‑




Luc Bélanger, Chairperson


Mr. Daniel V. Yagua Rospigliosi, representing himself; and


Ms. Tara-Lee Fraser, representing the Respondent


July 29, 2020



[1]  This matter concerns a request by Mr. Yagua Rospigliosi to the Canada Agricultural Review Tribunal (Tribunal) for review of the Minister’s decision # 19-01098, confirming the Notice of Violation # 3961-19-0826 (NOV), pursuant to paragraph 13(2)(b) of the Agriculture and Agri-Food Administrative Monetary Penalties Act (AAAMP Act).

[2]  It is alleged that on April 14, 2019, following his arrival at Pierre Elliott Trudeau International Airport in Montréal, Quebec, Mr. Yagua Rospigliosi imported two packages of pork sausage without declaring them. Consequently, the Canada Border Services Agency (Agency) issued him a NOV with a penalty of $1,300 for violating subsection 16(1) of the Health of Animals Act.

[3]  There are two issues before the Tribunal. As a preliminary matter the Tribunal must determine whether it should endorse the Agency’s consent to the appeal. Secondly, if answered in the negative, the Tribunal must make a finding as to whether or not the Minister erred when it held the Agency proved all the essential elements to establish Mr. Yagua Rospigliosi violated subsection 16(1) of the Health of Animals Act.

[4]  In this instance, I find that the Tribunal should not endorse the Agency’s consent to the appeal because the request to do so offers no argument or evidence to conclude the Minister erred or that Mr. Yagua Rospigliosi did not violate subsection 16(1) of the Health of Animals Act. Pursuant to sections 14 and 38 of the AAAMP Act, the authority to set aside a Minister’s decision or to cancel a NOV rests solely with the Tribunal. The Tribunal has the exclusive jurisdiction to hear and determine all questions of facts or law in relation to a request for review and accordingly it must fulfill its legislative mandate by undertaking a review of the facts surrounding the issuance of the NOV.

[5]  For the reasons that follow, I find that the Respondent has not established on a balance of probabilities the essential elements for a violation of subsection 16(1) of the Health of Animals Act. Accordingly, I set aside the Minister’s decision, and hold that no monetary penalty is payable by Mr. Yagua Rospigliosi to the Agency.


[6]  On October 8, 2019, the Tribunal determined that the request for review of the Ministerial decision was admissible. In a letter informing the parties of its admissibility decision the Respondent was prompted to comply with section 49 of the Rules of the Review Tribunal (Canada Agricultural Review Tribunal) (Tribunal Rules) which required them to file a certified copy of all documents or exhibits relevant to the request for review by November 12, 2019.

[7]  On November 5, 2020, the Tribunal received correspondence from the Minister’s delegate advising that it was proceeding with the cancellation of the NOV. This correspondence provided no legal basis or authority for the position that it could unilaterally cancel a NOV confirmed by the Minister and for which the Tribunal was seized with reviewing.

[8]  The Tribunal requested that the Minister’s delegate clarify its position. In a letter dated February 20, 2020, the Minister’s delegate modified its previous correspondence by stating it was now asking for “a consent order setting aside the Ministerial decision dated July 17, 2019. This request is being sought without prejudice to our position in future cases.”


[9]  Similar to my analysis in Appiah-Kubi [1] , once the Minister renders a decision, he is functus officio as established in Chandler [2] , meaning it has fulfilled its mandate since it accomplished the purpose for which it was created. In other words, once the decision is rendered the Agency cannot re-examine the case because the matter is out of its hands.

[10]  The Tribunal’s authority when reviewing a decision of the Minister is clear. Pursuant to paragraph 14(1)(a) of the AAAMP Act it must confirm, vary or set aside the Minister’s decision. In order to set aside a decision, the Tribunal needs to be convinced that the Minister erred in law or in fact when it found that all the essential elements of the alleged violation were established.

[11]  After undertaking a thorough analysis of the applicable legal framework, this is my view. I find that the Tribunal cannot endorse the Agency’s consent to the appeal. I will now proceed to the analysis of the facts and applicable law of the case, to determine whether the decision of the Minister should be confirmed, varied or set aside.


[12]  The issue is whether the Minister erred in finding that the Agency proved all the essential elements of a violation of subsection 16(1) of the Health of Animals Act?


[13]  In Hachey [3] , the Tribunal concluded that a review of ministerial decisions are conducted “de novo”. The Tribunal must examine the underlying facts of the violation and draw its own factual and legal conclusions.

[14]  In order to prove a violation of subsection 16(1) of the Health of Animals Act the onus is on the Respondent to establish the following three essential elements:

  1. The Applicant is the person who committed the violation; and
  2. The Applicant imported an animal product or animal by-product into Canada; and
  3. The Applicant failed to present the animal product or animal by-product to Agency officers before being referred to the customs secondary examination area for luggage inspection.

[15]  In this case the certified copies of all documents or exhibits relevant to this review have not been filed and the regulatory timeline for doing so has passed. Therefore, there is no evidence before the Tribunal capable of establishing a violation of subsection 16(1) of the Health of Animals Act.


[16]  On the basis that the Respondent has failed to provide evidence to substantiate a violation of subsection 16(1) of the Health of Animals Act, I ORDER, that the Minister’s decision must be set aside, the NOV issued to Mr. Yagua Rospigliosi is dismissed, and no monetary penalty is payable to the Agency.

Dated at Ottawa, Ontario, on this 29th day of July 2020.

(Original signed)

Luc Bélanger


Canada Agricultural Review Tribunal

[1] Appiah-Kubi v Canada Border Services Agency, 2020 CART 17, at para 17.

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