1. INTRODUCTION

[1] The Applicant has requested that the Canada Agricultural Review Tribunal (the Tribunal) review the Respondent’s “Ministerial Determinations” that were served by the Canadian Food Inspection Agency (Agency) on the Applicant on December 5, 2022.

[2] For the reasons that follow, I have concluded that the Tribunal does not have the jurisdiction to consider the request. As a result, the request is inadmissible.

2. BACKGROUND

[3] On March 23, 2022, the Agency issued Notice of Detention number 333401 to the Applicant and another one on the Applicant’s customer. On the basis of the Notices of Detention, and citing sections 15 and 40 of the Health of Animals Act (the HA Act), the Agency seized and detained the herring bait that the Applicant had imported.

[4] On December 5, 2022, and citing section 17 of the HA Act, the Agency served two “Ministerial Determinations of Contravention and Notices of Forfeiture” (the Determinations) on the Applicant relating to the herring bait.

[5] On the same day, the Agency served two “Ministerial Directions for Disposition of Forfeited Animal(s) and/or Thing(s)” (the Directions) on the Applicant. These Directions directed the Applicant to destroy the herring bait on or before December 31, 2022.

[6] In a request submitted on December 23, 2022, the Applicant requested that the Tribunal review the two Ministerial Directions.

[7] In a letter to the Tribunal on January 27, 2023, the Agency wrote that because no Notices of Violation or Minister’s Reports were issued to the Applicant, it held the view that the Tribunal lacked the jurisdiction to consider the review.

[8] On January 31, 2023, the Tribunal requested the parties’ submissions on the Tribunal’s jurisdiction to review the Ministerial Directions.

3. ISSUE

[9] Does the Tribunal have the jurisdiction to review the Ministerial Direction?

4. ARGUMENTS & ANALYSIS

[10] The following paragraphs refer only to the Applicant’s arguments because the Respondent’s only submissions on the issue were that no Notices of Violation were issued under the Agriculture and Agri-Food Administrative Monetary Penalties Act (AAAMP Act) and therefore the Tribunal lacked jurisdiction to consider the Applicant’s request.

I. The Determinations Were Not Notices of Violation with a Warning as Contemplated by the AAAMP Act

[11] The Applicant argues that the Determinations are equivalent to “Notices of violation with a warning”. The Applicant submits that as a result, and pursuant to subsection 8(1) of the AAAMP Act (which states how someone may request that the Tribunal review a Notice of Violation with a warning), its request for review is admissible.

[12] The question, then, is whether the Determinations that were served on the Applicant on December 5, 2022, were equivalent to Notices of violation with a warning. In my view, they were not.

[13] Paragraph 7(2)(a) of the AAAMP Act sets out what a Notice of violation with a warning will contain:

If a person designated under section 6 has reasonable grounds to believe that a person has committed a violation, the designated person may issue, and shall cause to be served on the person, a notice of violation that names the person, identifies the violation and

(a) contains a warning that the person has committed a violation; (…)

[14] The Determinations did not contain warnings. Instead, they stated that the Minister had determined that the Applicant had contravened sections 160.1 and 191 of the Health of Animals Regulations (HA Regulations) and imposed a significant consequence: Namely, that pursuant to section 17 of the HA Act, the herring bait was “forfeited to His Majesty in right of Canada.”

II. The Determinations Were Not Notices of Violation with a Penalty as Contemplated by the AAAMP Act

[15] Under paragraph 9(2)(c) of the AAAMP Act, a party may apply to the Tribunal for the review of a “Notice of Violation with Penalty”. However, “penalty” does not mean any kind of sanction. Instead, section 2 of the AAAMP Act specifies that “penalty” under that Act is “an administrative monetary penalty imposed under this Act for a violation” (my emphasis).

[16] Monetary penalties under the AAAMP Act are set amounts set out in section 5 of the Agriculture and Agri-Food Administrative Monetary Penalties Regulations (AAAMP Regulations).

[17] As a result, although it would have had financial implications, the forfeiture of the Applicant’s bait as declared in the Determinations was not the kind of penalty contemplated by subsection 9(1) of the AAAMP Act.

III. The Directions Cannot Be Reviewed Due to the Forfeiture of the Herring Bait

[18] The Applicant argues that section 22 of the AAAMP Act protects him from forfeiture because of his application to the Tribunal. However, section 22 of the AAAMP Act protects a party from forfeiture only when they have requested that the Tribunal review a Minister’s review of whether a violation occurred:

Where

(a) a person is deemed by this Act to have committed a violation, or

(b) the Minister, pursuant to a review under this Act, has decided that a person has committed a violation and no request to review the Minister’s decision has been made to the Tribunal in the prescribed time and manner,

anything seized and detained under an agri-food Act in relation to the violation is, at the election of Her Majesty in right of Canada, immediately forfeited to Her Majesty in right of Canada and may be disposed of, at the expense of the person from whom it was seized, in accordance with the regulations made under the applicable agri-food Act unless the Minister directs otherwise.

[19] In this case, the Applicant did not submit a request for review of a Minister’s review under the AAAMP Act. As a result, the protection against forfeiture created by paragraph 22(b) of the AAAMP Act does not apply.

IV. Inadmissible Application Under HA Act Once Herring Bait Forfeited

[20] As noted above, on March 23, 2022, well before the Agency issued the Determinations and Directions, it issued a Notice of Detention on the Applicant. The Notice advised the Applicant of the alleged breaches of the HA Act and seized and detained the imported herring bait.

[21] At that time, that is, when the Notice of Detention was issued, the Applicant could have applied to the Tribunal pursuant to subsection 45(2) of the HA Act, which states:

If proceedings are instituted in relation to an animal or thing seized under this Act and it has not been disposed of or forfeited under this Act, the owner of the animal or thing or the person having the possession, care or control of it at the time of its seizure may apply for an order that it be returned. The application may be made, in the case of a violation, to the Tribunal or, in the case of an offence, to the court before which the proceedings are being held. [Emphases added.]

[22] However, the Applicant did not apply to the Tribunal when it received the Notice of Detention. Instead, more than eight months passed. Then, on December 5, 2022, the Agency served the Determinations on the Applicant. These Determinations declared the bait “forfeited to His Majesty in right of Canada.”

[23] Pursuant to section 17 of the HA Act, once the Minister made these determinations, the forfeiture was automatic:

Subject to section 18, if the Minister determines that an animal or thing has been imported — or an attempt has been made to import an animal or thing — in contravention of this Act or the regulations or that a requirement imposed by or under the regulations in respect of an imported animal or thing has not been met, it is forfeited to Her Majesty in right of Canada and may be disposed of as the Minister may direct. [Emphases added.]

[24] Subsection 45(2) of the HA Act clearly states that an application may be made to the Tribunal for the return of an animal unless it has been forfeited under the Act. As the herring bait were forfeited on December 5, 2022, and the Application was not submitted to the Tribunal until December 23, 2022, the request is inadmissible under subsection 45(2) of the HA Act.

V. There Is No Implicit Authority for the Tribunal to Review the Determinations

The Purpose of the Legislation

[25] The Applicant argues that the Tribunal’s authority to consider the Determinations is implicit because of the wording of section 3 of the AAAMP Act:

The purpose of this Act is to establish, as an alternative to the existing penal system and as a supplement to existing enforcement measures, a fair and efficient administrative monetary penalty system for the enforcement of the agri-food Acts. [Emphasis added.]

[26] As previously discussed, the Determinations did not impose a monetary penalty on the Applicant as defined by the AAAMP Act. As a result, the AAAMP Act’s description in section 3 of a monetary penalty system is not useful to the Applicant in establishing that the Determinations are reviewable under the AAAMP Act.

Scope of Review

[27] The Applicant also argues that the Tribunal has the implicit authority to review the Determinations pursuant to paragraph 14(1)(b) of the AAAMP Act:

After concluding a review requested under this Act, the Tribunal shall, by order, as the case may be, (…)

(b) determine whether or not the person requesting the review committed a violation and, where the Tribunal decides that the person committed a violation but considers that the amount of the penalty for the violation, if any, was not established in accordance with the regulations, the Tribunal shall correct the amount of the penalty,

and the Tribunal shall cause a notice of any order made under this subsection to be served on the person who requested the review, and on the Minister. [Emphasis added.]

[28] While it is true that the above paragraph states that the Tribunal has the authority to determine whether a violation has been committed, it also requires that the Tribunal’s determinations be made where requested “under this Act”. This language clearly limits the scope of the Tribunal’s jurisdiction to what is authorized by the legislation.

Tribunal’s Authority to Determine Proof of Violations

[29] The Applicant also argues that in its decision in Canada (Attorney General) v Chu, 2022 FCA 105 at para 8 (Chu), the Federal Court of Appeal “clearly confirmed that [the Tribunal] has the power to determine if a violation has been proven”. This argument appears to refer to a sentence where the Court wrote “Parliament has clearly limited the Tribunal’s powers to determining whether a violation has been proven”.

[30] However, in my view, the Applicant’s interpretation is not a reasonable reflection of the Court’s analysis in Chu.

[31] The decision in Chu addresses the Tribunal’s review of a $1,300.00 monetary penalty issued under HA Act. There was no question in Chu about the Tribunal’s jurisdiction to consider the review, only whether its decision was reasonable (Chu at paras 2, 4, and 8). As a result, the Court’s paraphrase in paragraph 8 should not be taken as a complete statement on the full scope of the Tribunal’s jurisdiction.

Contextual Interpretation of the Tribunal’s Jurisdiction

[32] I agree with the Applicant that a contextual interpretation of the Tribunal’s jurisdiction under its enacting legislation is important. In my view, my analysis in the above paragraphs has met this objective.

[33] Moreover, the laws and regulations setting out the Tribunal’s authority clearly set out the types of reviews or applications the Tribunal has the authority to consider.

[34] To apply a broader interpretation, as the Applicant has requested, would be to read into the legislation an interpretation that was clearly not contemplated and would amount to legislative amendment (see Canada (Attorney General) v Vorobyov, 2014 FCA 102 at para 30).

5. ORDER

[35] For the above reasons, the request for review is inadmissible.

Dated on this third day of March 2023.

(Original Signed)

Emily Crocco

Chairperson

Canada Agricultural Review Tribunal