RTA #60316
AGRICULTURE AND AGRI-FOOD ADMINISTRATIVE
MONETARY PENALTIES ACT
DECISION
In the matter of an application for a review of the Minister’s decision that the Applicant committed a violation pursuant to provision 40 of the Health of Animals Regulations, and requested by the Applicant pursuant to paragraph 13(2)(b) of the Agriculture and Agri-Food Administrative Monetary Penalties Act.
Eliyahu Rahmilov, Applicant
- and -
Canada Border Services Agency, Respondent
CHAIRMAN BARTON
Decision
Following a review of the Minister’s decision dated June 9th, 2008, and all submissions and information relating to the violation, the Tribunal, by order, confirms the Minister’s decision and orders the Applicant to pay the penalty in the amount of $200.00 to the Respondent within 30 days after the day on which this decision is served.
.../2
RTA #60316
Page 2
REASONS
The Applicant did not request an oral hearing.
This is not a review of the facts of the violation but rather a review of the Minister’s decision.
The Notice of Violation #YYZ 001905 dated May 29th, 2007 alleges that the Applicant, on or about 17:00 on the 29th day of May, 2007, at Toronto, in the province of Ontario, committed a violation, namely: "Import an animal by-product, to wit: meat, without meeting the prescribed requirements", contrary to provision 40 of the Health of Animal Regulations, which states as follows:
40. No person shall import into Canada an animal by-product, manure or a thing containing an animal by-product or manure except in accordance with this Part.
In order to vary or set aside the Minister’s decision, the Review Tribunal must find that the Minister committed a jurisdictional error or an error in law. For example, an application for a review may be allowed for the following reasons:
1. Powers are exercised in bad faith.
2. Powers are improperly delegated.
3. Powers are exercised without regard to natural justice or fairness.
4. Powers are exercised for improper purposes.
5. There is no evidence before the Minister to support the decision.
6. A decision is based upon irrelevant considerations.
7. An error is made in the interpretation of related or governing legislation, common law principles generally, or as the principles apply to the facts.
8. A decision is so unreasonable that any reasonable person in the Minister’s position could not have made it.
.../3
RTA #60316
Page 3
The Minister based his decision on the evidence in the record, including an acknowledgement by the Applicant that the meat was imported into Canada without meeting the prescribed requirements.
In his written submission, the Applicant indicated this was not intentional, that he was unaware of the rules and regulations and did not know that this was a violation.
I have no reason to doubt the Applicant, but unfortunately for him, his lack of intention and lack of knowledge of the regulations are not defences to a violation by reason of subsection 18(1) of the Agriculture and Agri-Food Administrative Monetary Penalties Act, which reads as follows:
18.(1) A person named in a notice of violation does not have a defence by
reason that the person
(a) exercised due diligence to prevent the violation; or
(b) reasonably and honestly believed in the existence of facts that, if true, would exonerate the person.
Further, although the Applicant requested he be given a warning instead of a penalty, the Tribunal has no authority to change a Notice of Violation with a penalty into a Notice of Violation with a warning.
The Tribunal also wishes to point out to the Applicant that this is not a criminal or a federal offence but a monetary violation, and that he has the right to apply, after 5 years, to have the notation of this violation removed from the Minister’s records in accordance with subsection 23(1) of the Agriculture and Agri-Food Administrative Monetary Penalties Act, which states as follows:
23.(1) Any notation of a violation shall, on application by the person who committed the violation, be removed from any records that may be kept by the Minister respecting that person after the expiration of five years from
.../4
RTA #60316
Page 4
a) where the notice of violation contained a warning, the date the notice was served, or
b) in any other case, the payment of any debt referred to in subsection 15(1),
unless the removal from the record would not in the opinion of the Minister be in the public interest or another notation of a violation has been recorded by the Minister in respect of that person after that date and has not been removed in accordance with this subsection.
Dated at Ottawa this 21st day of August, 2008.
________________________________
Thomas S. Barton, Q.C., Chairman