Guide for Self-Represented Persons

Purpose of this guide

This guide is for individuals who wish to file a request for review before the Canada Agricultural Review Tribunal (Tribunal). More and more people are representing themselves before tribunals, without a lawyer. This guide is intended to be a tool that explains the procedures before the Tribunal for these individuals.

We strongly recommend that you use the Request for Review Form found on our website.

We also recommend that you consult the Practice Notes found on our website and referred to in this guide.

1. Canada Agricultural Review Tribunal

1.1 The Tribunal’s jurisdiction

The Tribunal is an independent federal administrative tribunal established by Parliament under subsection 27(1) of the AAAMP Act.

The Tribunal’s mandate is to provide independent oversight, through the exercise of its review jurisdiction, of the use of administrative monetary penalty (AMPs) by federal agencies related to agriculture and agri-food under subsection 38(1) of the AAAMP Act.

The Tribunal aims to promote greater access to justice for Canadians through the exercise of its administrative autonomy. The Tribunal safeguards the fairness, reliability and integrity of the agriculture and agri-food administrative monetary penalty regime in order to protect public health, animal welfare and plant life.

1.2 Administrative monetary penalties and the absolute liability regime

Three federal agencies currently have the authority to issue AMPs related to agriculture and agri-food:

• the Canadian Food Inspection Agency;
• the Canada Border Services Agency; and
• the Pest Management Regulatory Agency.

The regulatory regime for AMPs established by Parliament is a unique regime of absolute liability. In Doyon,^{Footnote 1} the Federal Court of Appeal described this regime of penalties as draconian and highly punitive. Under subsection 18(1) of the AAAMP Act, due diligence (“I did my best” or “I didn’t intend to”) and mistakes of fact (“I didn’t know” or “I forgot”) are not permissible defences. That said, if you do not establish a permissible defence, the Tribunal will determine if the AMP was lawfully imposed.^{Footnote 2}

Being careful and taking steps to avoid the commission of the violation is not a defence under the AMP regime. The most common and effective defence is to challenge the essential elements of the violation, as explained in Doyon.^{Footnote 3}

However, subsection 18(2) of the AAAMP Act provides that any common law rule or principle that allows a circumstance to be used as a justification or excuse in relation to a charge for an offence under an agri-food Act may also apply in respect of a violation (except where it is inconsistent with the AAAMP Act).

To date, only two common law defences have been successfully raised before the Tribunal: necessity and automatism.

For more details on essential elements and the Doyon decision, please refer to Appendix 2 in this document.

2. Request for review by the Tribunal

The Tribunal can receive two types of request for review following the issuance of an administrative monetary penalty (AMP):

• a request for review of a notice of violation; or
• a request for review of a Minister’s decision.

AMPs are an administrative measure to promote compliance with laws and regulations. They are imposed on an escalating scale of enforcement and are used by many federal agencies. The Tribunal’s goal is to maintain the balance between the rights of individuals who receive an AMP and the federal agencies whose duty is to protect public health, animal welfare and plant life.

2.1 Request for review of a notice of violation

You are an individual or business who has received a notice of violation by a federal agency, and you wish to challenge it. You have two options available, but you must choose one:

• submit a request for review to the Minister responsible for the agency; or
• submit a request for review to the Tribunal.

You can also decide to pay the AMP. This will end the review process, and you will have no further recourse.

When the Tribunal receives your request for review of a notice of violation, it must determine whether you are in violation of the law and, if so, assess whether the amount of the AMP was properly determined. To do this, it examines all the relevant evidence and hears the arguments submitted by the parties.

2.2 Request for review of a Minister’s decision

After challenging the notice of violation before the Minister responsible for an agency, you may file a request for review of the Minister’s decision with the Tribunal.

When the Tribunal receives a request for review of the Minister’s decision, it must either confirm, vary or set aside the decision in question.

The Tribunal conducts a de novo administrative review. This means that the Tribunal must review and consider the evidence before the Minister in its entirety to assess its relevance and significance. The Tribunal then reviews the findings of fact made by the Minister and makes its own findings of fact.

3. Filing and admissibility of the request

When filing a request for review before the Tribunal, you must contact the Tribunal Registry Office directly. We recommend using the Request for Review Form found on our website.

The Tribunal also encourages parties to file all documents by email in order to maintain an accessible, timely and cost-effective service for requests for review. You may use the following address to transmit any document to the Tribunal: InfoTribunal@cart-crac.gc.ca.

For more details on this subject, please refer to Practice Note #1 on the electronic registry.

3.1 How to file a request for review

A request for review may be submitted by hand, by registered mail, by courier or electronically. Please note, however, that if a request is sent electronically, a copy must also be sent by registered mail (this is a required formality).

3.2 Admissibility of the request for review

When it receives a request for review, the Tribunal must determine its admissibility. To do so, the Tribunal analyzes the following four criteria:

1. Whether the penalty was paid
   Under subsections 9(1) and 13(2) of the AAAMP Act, payment of a monetary penalty is considered an admission of guilt and ends any proceedings. In other words, if you pay the AMP, the Tribunal cannot hear your request.
2. Whether the request for review was submitted in time
   You have 30 days from the date of service of the notice to file your request for review.
3. Whether the request for review was filed in accordance with the legislative requirements
   In order to be valid, the request for review must be submitted to the Tribunal by hand, registered mail or courier.^{Footnote 4}
4. Whether the content of the request for review meets the requirements of the Tribunal Rules

The Tribunal has 60 days from the date of the initial acknowledgement of receipt of a request for review to determine its admissibility.

For more information, please refer to Practice Note #2 on admissibility of requests for review.

3.3 Inadmissible request

Requests for review are generally declared inadmissible for one of the following reasons:

1. the AMP provided for in the notice of violation was paid;
2. the applicant (you) did not submit the request for review within the time limit under the AAAMP Regulations (30 days);
3. the request for review was not submitted by a method of filing authorized by the AAAMP Act and its Regulations (regular mail is not an authorized means of transmission); or
4. the request for review does not meet the requirements of section 31 or 47 of the Rules of the Review Tribunal (Canada Agricultural Review Tribunal) (Tribunal Rules).

A decision by the Tribunal declaring a request for review inadmissible ends the process before the Tribunal. If you are dissatisfied with the decision, you may file an application for judicial review with the Federal Court of Appeal, in accordance with subsection 28(1) of the Federal Courts Act.

4. The Tribunal’s request for review process

Once your request is declared admissible, you have two options:

• proceed with written submissions only; or
• proceed with a virtual oral hearing.

If there are exceptional reasons why you believe that the oral hearing should be held in person instead of virtually, please submit your request as soon as possible to the Registrar. Your request should indicate why a virtual hearing will not allow you to participate in a fair hearing. The other party will have the opportunity to provide their written submissions on the issue. The Tribunal will then decide how it will proceed.

4.1 Written submissions

If you decide to proceed by means of written submissions, you must provide in writing the reasons why you disagree with the notice of violation and why you feel it should be set aside. This is your opportunity to present your side of the story as opposed to the version submitted by the federal agency in its report. This account will be considered your testimony.

You should also include all evidence that you feel is relevant and you want the Tribunal to consider in support of your request for review.

4.2 Oral hearing

At an oral hearing, the parties must present their arguments before a Tribunal member. The hearing can be in person or virtual. It usually proceeds as follows:

1. The presiding member addresses the parties and provides an overview of the case to be reviewed.
2. The agency^{Footnote 5} presents its case.
3. The agency calls their witnesses (you may cross-examine the witnesses).
4. You present your case and call your witnesses (the agency may cross-examine the witnesses).
5. The agency makes its final submissions (pleadings).
6. You make your final submissions (pleadings).

A party who wants to make sure a witness attends the hearing may ask the Tribunal to issue a subpoena. This is an order from the Tribunal to appear at the hearing.

Several conditions must be met to obtain a subpoena. These are explained in Practice Note #11 on witnesses and the procedure for obtaining a subpoena.

4.3 Mandatory case management conference

Case management conferences are mandatory in all cases where there is an oral hearing. This pre-hearing step allows the parties to discuss how the upcoming hearing will be conducted. In some cases, it allows the parties to engage in discussions that could lead to the resolution of the case.

During the case management conference, the role of the presiding member is to:

• guide parties through the process;
• ask the parties to raise any arguments or issues that might affect the conduct of the proceeding;
• ask the parties to indicate the number of witnesses they wish to present; and
• ask the parties to submit evidence in advance of the hearing.

The Tribunal asks the parties if they can agree on a joint hearing plan and a witness list.

Following the mandatory case management conference, the Tribunal will issue an order confirming the terms and conditions for the case management and the conduct of the hearing. This order is binding on the parties throughout the conduct of the hearing.

For more information, please see Practice Note #6 on mandatory case management conferences.

4.4 Settlement

The parties may also reach an agreement to settle.

The parties may work together to settle the matter in dispute.

The parties do not inform the Tribunal of the content of their settlement offers. Instead, settlement offers are sent directly to and from the parties themselves.

If the parties reach a full settlement, the applicant must contact the Tribunal in writing (either by letter, email, or fax) to withdraw their request for review.

The Tribunal will then confirm in writing to both parties whether, as a result of the applicant’s request to withdraw their request for review, the file has been closed.

4.5 Withdrawal

You may choose at any time to withdraw the request for review or, in other words, to discontinue the proceeding. To do so, you must send a letter informing the Tribunal of your intention to withdraw the request.

For more information, please see Practice Note #16 on withdrawing a request for review.

5. Representation

Individuals may represented themselves in the course of a request for review before the Tribunal or decide to be represented by an authorized representative in accordance with subsection 18(1) of the Tribunal Rules.

In the case of a corporation, partnership or unincorporated association, subsection 18(2) of the Tribunal Rules requires that the representative be a lawyer or an officer, partner or member.

Your representative must provide contact information to the Tribunal. The Tribunal must be notified within seven (7) days of any change.

The Tribunal must also be notified within seven (7) days if you change your representative.

For more information on the obligations and duties of authorized representatives, please refer to Practice Note #7.

6. Venue selection for the hearing

In exceptional circumstances where an in-person oral hearing is necessary, the Tribunal must hold its hearing in one of the locations authorized by Order in Council.

For more information, please see Practice Note #4 on virtual and oral hearings.

7. Preliminary applications and specific procedures during the hearing before the Tribunal

Prior to the hearing, parties may make specific requests to the Tribunal. This may include, for example, a request to change the date of the hearing. In principle, such requests must be made in writing within the time limits set out in the Tribunal Rules.

7.1 Request for extension of time

The Tribunal Rules impose a number of time limits on the parties. The parties may apply to the Tribunal in writing for an extension of any of these time limits.

The request must include the following information:

• the case number;
• the parties involved;
• the deadline for which an extension of time is required;
• the reason(s) for the request for an extension of time;
• whether the Tribunal has previously granted an extension in the matter; and
• the length of extension requested.

When a request for an extension of time is submitted, the parties present their arguments regarding the request. The Tribunal will then issue an order ruling on the request.

For more information, please refer to Practice Note #3 on requests to extend time limits.

7.2 Request for adjournment or postponement of a hearing

Parties may request in writing that the Tribunal postpone a hearing for exceptional reasons.^{Footnote 7} The Tribunal has the authority to postpone a hearing to a later date or adjourn it.

Any request for postponement or adjournment by you or the agency must be made at least eight (8) days prior to the date of the hearing, as set forth in the Tribunal Rules.

The Tribunal may render a decision on the request for review despite the absence of one of the parties from the hearing.

For more information, please refer to Practice Note #15 on requesting an adjournment or postponement of a hearing.

7.3 Open court principle and respect for privacy

The general principle is that any hearing before the Tribunal is public. The same applies to the decisions rendered, in both official languages.

A party may, however, seek an exception to this principle by requesting that the proceeding be conducted in private under subsection 19(2) of the Tribunal Rules.

For more information, please see Practice Note #8 on the open court principle and privacy concerns.

7.4 Order for exclusion of witnesses

A party may ask the Tribunal to exclude witnesses from the hearing room during testimony under section 24 of the Tribunal Rules. The purpose of this procedure is to ensure that witnesses’ testimony is not influenced by that of others.

The Tribunal may also make such an order without a request from the parties in order to ensure an equitable, impartial and fair hearing process.

For more information, please refer to Practice Note #10 on orders to exclude witnesses.

7.5 Interpretation service

A hearing on a request for review is conducted in English or French, as determined by you under section 8 of the Tribunal Rules.

Interpretation services for English and French are provided at the expense of the Tribunal. The party requesting this service must notify the Tribunal in writing at least seven (7) days prior to the hearing.

For interpretation services in a language other than English or French, the party requesting the service must notify the Tribunal 30 days prior to the hearing and must cover the costs for the service.

For more information, please refer to Practice Note #5 on interpretation services.

7.6 Raising a constitutional question

The Tribunal has jurisdiction to hear constitutional questions. A party may therefore raise the unconstitutionality of an agriculture and agri-food provision that falls within the Tribunal’s jurisdiction.

A party wishing to challenge the constitutionality of a legislative provision must:

• inform the Tribunal as soon as possible in order to avoid delays in the hearing process;
• comply with section 57 of the Federal Courts Act;
• advise the federal and provincial governments at least ten (10) days before the hearing date (an attorney may participate in or attend the hearing); and
• make a request in writing that includes the following information:
  • the contested provision;
  • the legal reasoning;
  • the facts and evidence supporting the claim; and
  • the remedy sought.

Failure to comply with the above conditions may result in the rejection of your request for review.

For more information, please refer to Practice Note #9 on the procedure for a party that wishes to raise a constitutional question.

7.7 Presenting new evidence

This section applies only to a request for review of a Minister’s decision.

A written request must be filed with the Tribunal to present new evidence in a request for review of a Minister’s decision.

The request must indicate how:

• the new evidence is relevant;
• the new evidence is necessary; and
• the new evidence was not available to the Minister.

The other party may object to the introduction of this new evidence. The Tribunal will then hear the parties’ arguments at a case management conference and issue an order as to whether the new evidence will be admitted at the hearing.

For more information, please see Practice Note #13 on presenting new evidence.

7.8 Affidavit evidence

An affidavit is a written statement of facts, confirmed by a solemn affirmation in the presence of an individual with the authority to administer oaths.

The party presenting affidavit evidence must comply with certain requirements and deadlines set out in section 21 of the Tribunal Rules.

The party must:

• serve the affidavit on the other party;
• file the affidavit with the Tribunal Registry;
• respect the deadline of:
  • 30 days in the case of a proceeding by written submissions, or
  • at least 15 days before the hearing in the case of an oral hearing; and
• ensure that the affiant is available for cross-examination.

The parties must agree on a time for cross-examination. If no agreement is reached, the Tribunal can decide. When the cross-examination is completed, the transcript of the cross-examination must be filed with the Tribunal within seven (7) days.

For more information, please see Practice Note #14 on affidavit evidence.

7.9 Expert witnesses

A party may choose to call an expert witness to testify at the hearing. An expert witness can give their opinion and provide hypotheses, unlike ordinary witnesses who may only testify about facts that they themselves witnessed.

An expert witness is helpful when the evidence is technical or scientific.

For example, an ordinary witness may testify before the Tribunal that they saw an animal with a wounded foreleg, while an expert witness may testify as to the impact, origin and consequences of the wound for the animal.

Certain conditions must be met in order for expert testimony to be admissible:

• the expert must provide their curriculum vitae; and
• the expert must testify as to their qualifications, skills and experience in the field of expertise.

In addition, the testimony must be relevant and necessary, and the expert must be sufficiently qualified in their field of expertise.

For more information please see Practice Note #12 on expert witnesses.

8. Challenging a Tribunal decision

Any party dissatisfied with the Tribunal’s decision may, in certain circumstances, seek judicial review of the decision by the Federal Court of Appeal.

For more information, please consult the websites for the Federal Court of Appeal, the Federal Courts Act and the Federal Courts Rules.

Appendix 1 – Legal framework

In exercising its jurisdiction, the Tribunal administers several statutes and regulations.

The following is a list of legislation related to the jurisdiction of the Tribunal:

• Tribunal Rules
• Agriculture and Agri-Food Administrative Monetary Penalties Act
  • Agriculture and Agri-Food Administrative Monetary Penalties Regulations [respecting animals and plants]
  • Agriculture and Agri-Food Administrative Monetary Penalties Regulations (Pest Control Products Act and Regulations)
• Safe Food for Canadians Act
  • Safe Food for Canadians Regulations
• Health of Animals Act
  • Health of Animals Regulations
• Plant Protection Act
  • Plant Protection Regulations
• Pest Control Products Act
  • Pest Control Products Regulations
• Federal Courts Act
• Federal Courts Rules

In addition, the Tribunal’s decisions are public and available on our website:

• Search Tribunal decisions

Finally, the following are links to the various agencies related to the Tribunal’s agri-food compliance mandate:

• Agencies related to the jurisdiction of the Tribunal:
  • Canadian Food Inspection Agency (CFIA)
  • Canada Border Services Agency (CBSA)
  • Pest Management Regulatory Agency (PMRA)

Appendix 2 – Essential elements and the Doyon decision

As stated in Section 1.2 of this document, the most effective defence is generally to challenge the elements of the violation alleged in the notice of violation issued by the agency.

On this front, the Federal Court of Appeal has rendered an important decision on essential elements and the regime of absolute liability, the Doyon decision.^{Footnote 8} We strongly recommend that you consult that decision.

The strict liability regime is very punitive and is characterized by, among other things, the fact that the defences of mistake of facts and due diligence are not available under section 18 of the AAAMP Act. This regime is also characterized by a reduced burden of proof.

This means, first of all, that the offender cannot raise as a defence the fact that they took all reasonable precautions to prevent the commission of the alleged violation.

Second, the current regime does not recognize the right to make a mistake, even if the mistake could have been made by a reasonable person in the same circumstances.^{Footnote 9}

Third, the current regime lowers the burden of proof required of the agency that issued a notice of violation. Unlike in the criminal and penal systems, an offender does not have the benefit of reasonable doubt. Under section 19 of the AAAMP Act, the burden of proof is based on a balance of probabilities, which is the same principle that applies in civil matters.

Finally, the Federal Court of Appeal has found that each violation under this regime is composed of its essential elements.^{Footnote 10} In order for an offender to be found guilty, each of the elements of the alleged violation must be proven by the agency that issued the notice of violation. The agency must therefore prove each element of the violation on a balance of probabilities, or the notice of violation will be set aside.

As for the evidence, the Tribunal must be circumspect in its management and analysis. It must be particularly careful in analyzing the essential elements of the violation and the causal link. In other words, the reasons for the Tribunal’s decision must demonstrate that the Tribunal applied this duty of care and that it did so on the basis of the facts and not on “mere conjecture, let alone speculation, hunches, impressions or hearsay.”^{Footnote 11}

Finally, if one of the essential elements is not proven on a balance of probabilities, the alleged violation is not proven, and the notice of violation must be set aside.

Appendix 3 – Contact information for the Canada Agricultural Review Tribunal

Mailing address:
Canada Agricultural Review Tribunal Secretariat
Administrative Tribunals Support Service of Canada
Registry Office
344 Slater Street, 15^th Floor, Suite 300
Ottawa, Ontario K1A 0B7

Telephone: 613-943-6405
Fax: 613-943-6429
Email: InfoTribunal@cart-crac.gc.ca

Appendix 4 – Frequently Asked Questions

Is this a criminal proceeding?

No, this is not a criminal proceeding. If the review determines that you committed the AMP, you simply have to pay the AMP. There is no criminal record; the violation is simply registered in a file that is kept for five years. After five years, you may write to the Minister to request that the AMP be removed from your file.

What if I was diligent and the AMP still occurred?

When making your submissions, either in writing or at the hearing, you must include the reasons that suggest you did not commit the facts that are alleged in the notice of violation. However, being diligent is not a defence under subsection 18(1) of the AAAMP Act.

What if I didn’t know I was breaking the law?

Unfortunately, this is the case for many people. Not knowing you were in violation of the law is not in itself a defence to the AMP. However, you may have other defences to the violation, or the agency may not be able to prove all the essentials elements of the violation against you. In both instances, you can request a review of the matter. Otherwise, you will have to pay the AMP set out in the notice of violation.

What are the costs associated with having the Tribunal review my notice of violation?

Other than the costs that you incur on your own, there are no costs associated with having your notice of violation reviewed by the Tribunal or the Minister. The costs for which you are personally responsible include any expenditures related to representation, sending in documents, travel expenses, reproduction of documents, and translation or interpretation of documents or evidence in a language other than English or French.

What happens if I don’t pay the AMP?

You are required by law to pay the AMP unless you are having your notice of violation reviewed by the Tribunal or the Minister. If the Tribunal or the Minister has reviewed your case and decided to uphold the violation, you must pay the AMP. The Federal Court may issue an order for payment, and a collection agency retained by the CFIA, CBSA or PMRA may then take action to collect the amount due.

How long do agencies have to issue a notice of violation?

Agencies have a maximum period of time between the date the violation is committed and the date the notice of violation is issued. This is commonly referred to as the limitation period.

According to section 26 of the AAAMP Act, “[n]o proceedings in respect of a violation may be commenced later than (a) six months after the day on which the subject matter of the proceedings arises, in the case of a minor violation; or (b) two years after the day on which the subject matter of the proceedings arises, in the case of a serious violation or a very serious violation.”

Incidentally, section 26 of the AAAMP Act was amended in 2015 and now provides that the commission of the violation serves as the starting point for calculating the limitation period.^{Footnote 12}

Thus, in order for a person to be found to be in violation, the commission of said violation must have occurred within two (2) years of the issuance of a notice of violation in the case of a serious or very serious violation, and within six (6) months for a minor violation.

Return to footnote ¹ referrerDoyon v. Canada (Attorney General), 2009 FCA 152.

Return to footnote ² referrerIbid at para 27.

Return to footnote ³ referrerDoyon v. Canada (Attorney General), 2009 FCA 152 at para 28.

Return to footnote ⁴ referrerNote that subsection 14(3) of the AAAMP Regulations provides that “[i]f a request is sent by fax or other electronic means, a copy of the request shall be sent either by courier or registered mail within 48 hours after the time limit for making the request.”

Return to footnote ⁵ referrerThis is the federal agency that issued the notice of violation (Canada Border Services Agency, Canadian Food Inspection Agency or Pest Management Regulatory Agency).

Return to footnote ⁷ referrerFor instance, a car accident, an unscheduled surgery, a death in the family, etc.

Return to footnote ⁸ referrerDoyon v. Canada (Attorney General), 2009 FCA 152.

Return to footnote ⁹ referrerIbid at para 24.

Return to footnote ¹⁰ referrerIbid at paras 39 to 42 (example).

Return to footnote ¹¹ referrerIbid at para 28.

Return to footnote ¹² referrerThe previous version of section 26 of the AAAMP Act stipulated that the time limit began when the Minister became aware of the violation.