Annual Report 2016-2017

Alternative formats

Table of Contents

• Message from the Chairperson
• Section 01 - About the CART: Our Commitment to Canadians
• Section 02 - Processing Your Requests for Review in 2016-2017: On the Frontline and Behind the Scenes
• Section 03 - Future Opportunities and Challenges
• Section 04 - Tables and Graphs
• Coordinates of the Tribunal

Message from the Chairperson

On June 30, 2017, my time as Chairperson of the Canada Agricultural Review Tribunal (CART) will come to a close. As such, I wanted to take the opportunity in this, my final Annual Report, to thank those who have contributed to the advancement of the CART, and to highlight some of the accomplishments we have made together over my term.

It is hard to believe that eight years have passed since my appointment. I have been fortunate to work with many talented and creative individuals over this time, and as I look back, I am very proud of what we have achieved as a Tribunal. We reached numerous goals, but three stand out.

First, we have made the Tribunal more accessible to Canadians. Through the development of successive versions of our website, we have created a more user-friendly experience for those seeking information about the CART. Online forms, updated information and our handy Guide for Self-Representation have provided one-stop access for anyone wishing to bring their case before the Tribunal.

Second, we have also sought to modernize the CART through the implementation of new rules of procedure and the availability of permanent legal services dedicated to the Tribunal. Upon my arrival, the CART was the only federal tribunal without legal counsel. Through consultation with various ministries, departments and agencies, I was first able to secure excellent outside legal counsel and, in this fiscal year, I was happy to welcome our first ongoing indeterminate legal counsel within the CART Secretariat of the Administrative Tribunal Support Services of Canada Agency.

Third, together we have seen the CART go from the tiniest and most obscure tribunal in the federal family to “the little Tribunal that could”. Granted, it remains the smallest tribunal, but is now known throughout Canada for its efficiency in delivering timely and quality decisions.

Much of this is thanks to the wonderful staff I have had the pleasure of working with and the many interns that have joined the Tribunal for weeks or months at a time, as well as the relationships I have had the opportunity to develop over the years through my involvement with and chairpersonship of the Chairs of Federal Tribunals Council (formerly the Heads of Federal Administrative Tribunals Forum) and of the Council of Canadian Administrative Tribunals.

It has been an honour to serve as Chairperson of the Canada Agricultural Review Tribunal from July 1, 2009 to June 30, 2017. I wish my successor the very best in this role and the continuing success and advancement of the Tribunal in the years to come.

I now invite you to leaf through the following pages to discover the activities the CART has undertaken over the past year.

Don Buckingham
June 2017

About the CART, Our Commitment to Canadians

Vision

The Canada Agricultural Review Tribunal (CART) exists to ensure the fairness, reliability and integrity of the agriculture and agri-food administrative monetary penalties (AMPs) regime. This system is used by a range of federal Agencies to guarantee compliance with agriculture and agri-food statutes. The Tribunal seeks to promote harmony between the rights of Canadians receiving such penalties and the responsibilities of federal regulators issuing them to protect human, animal and plant health.

Mission

The CART seeks to provide supervision of the use of AMPs, by giving Canadians a forum to contest the legality of the violations levied against them. In exercising its review powers, the Tribunal may uphold, vary or set aside federal Agencies’ and Ministers’ enforcement of agriculture and agri-food AMPs.

The CART’s mandate

The CART is mandated to administer a neutral, cost-effective and timely review of the validity of AMPs issued to any person by a federal Agency in the field of agriculture and agri-food. As an independent quasi-judicial body, the Tribunal maintains an arm’s length relationship from Agriculture and Agri-Food Canada, Health Canada and Public Safety Canada.

About the Personnel of the CART

Members of the CART

Donald Buckingham

(LL.B., Dip. Int. Law (Cambridge), LL.D.) – Chairperson
Dr. Buckingham was appointed as full-time Chairperson of the CART in July of 2009. Prior, he acted as a lawyer, law professor, author and consultant in the areas of agriculture law, food law and international trade in agricultural products. Dr. Buckingham is the author or co-author of five books, including Halsbury’s Laws of Canada: Agriculture (LexisNexis 2014) and Halsbury’s Laws of Canada: Food (LexisNexis 2014).

Bruce La Rochelle

(LL.B., Ph.D., C.P.A.) – Part-time Member
Dr. La Rochelle was appointed as part-time Member of the CART in June of 2012. He is also a practicing lawyer in Ottawa, a part-time instructor at the Telfer School of Management and a Chartered Professional Accountant. His doctorate dissertation, from the Schulich School of Business, is in organizational behaviour, specifically the study of dimensions of regulations.

Staff of the CART

Stuart Campbell

(B.Sc, M.Sc., P. Eng.) – Executive Director
Stuart Campbell is the Executive Director of the Secretariat to the CART. He has extensive experience in both operations and policy roles.

Lise Sabourin

Senior Registry Officer
With over 12 years of experience at the CART, Lise Sabourin’s current position is to provide pertinent information, advice and guidance to the parties in her role as head of the CART registry services.

Robert McKenzie

(BA [hons], LL.B., J.D., LL.M.) - Legal Counsel
Robert McKenzie was appointed Legal Counsel to the CART Secretariat in October 2016 after working for the Canadian Human Rights Tribunal. He has significant experience in the enforcement of agricultural, customs and immigration law and previously articled at the CART.

Alexandre Lillo

(LL.B., LL.M., M.Sc.) - Administrative Assistant
Alexandre Lillo is a part-time employee at the CART. He is also a Ph.D. candidate in law at the University of Ottawa.

Stephen Dejong

(B.Comm., B.A.) - Administrative Assistant
Joining CART shortly after university, Stephen Dejong supports the Members and Senior Registry Officer with the effective completion of the CART’s mandate.

Processing Your Requests for Review in 2016-2017: On the Frontline and Behind the Scenes

Quasi-judicial Decision Making

An Overview of Caseload and Decisions in 2016-2017

In 2016-2017, the CART issued 36 decisions, each involving new applicant Requests for Review stemming from federal agency enforcement action. Here are a few highlights from the past fiscal year.

With respect to the 36 decisions that were issued by the CART this year:

• 69% of the requests were made to review the validity of Notices of Violation (NOV) issued by a federal agency while 31% were submitted to review a Minister’s decision.
• 100% of the Requests for Review of a Minister’s decision were with respect to decisions issued by the Minister of Public Safety and Emergency Preparedness.
• 67% of the decisions issued were from cases determined on the merits, while 33% were related to a matter of admissibility of the request itself.
• 58% of cases were based on written submissions only, while 42% of the cases proceeded by oral hearing.
• 60% of the Agency’s NOVs were upheld by the CART, while 40% were dismissed.
• 82% of the Minister’s decisions were upheld by the CART, while 18% were dismissed.
• 81% of the applicants chose English, with the remaining 19% choosing French, as the language of the proceeding before the CART.
• For the first time in 5 fiscal years, the CART issued a decision arising from a Request for Review of a NOV issued by the Pest Management Regulatory Agency of Health Canada.

Sample of Noteworthy Decisions

1 – First instance CART decisions

Andrea Usworth (dba Natural Wisdom) v. Canada (Pest Management Regulatory Agency of Health Canada), 2016 CART 32

Ms. Usworth is an independent professional operating a business called Natural Wisdom. In 2014 and 2015, she began selling a product called “Bug Off” at county fairs, folk festivals and on her own website. During the summer of 2014 she was contacted by an official at the Pest Management Regulatory Agency (PMRA) informing her that she was not permitted to sell unregistered pest control products. After a period of dialogue between Ms. Usworth and the PMRA, she decided to relist the product for sale on her website, and soon after the PMRA issued her a notice of violation (NOV) with a penalty of $4,000 for distributing an unregistered pest control product. Ms. Usworth asked the CART to review the NOV. The CART found that the PMRA had proven each of the essential elements of the violation and that the defenses raised by Ms. Usworth (including constitutional arguments) were inadmissible under an absolute liability regime or, with respect to the constitutional arguments, unfounded. The NOV was upheld but the amount of the penalty was varied to $2,000 because the CART found no clear intention on her part to contravene the law.

Dyck v. Canada (Canadian Food Inspection Agency), 2017 CART 3

While visiting Dyck Forages and Grasses Ltd., to sample alfalfa for seed certification purposes, the Canadian Food Inspection Agency (CFIA) became aware that Mr. Dyck had previously shipped alfalfa to Italy without a phytosanitary certificate and informed him that it was required by law. A subsequent shipment was exported by Mr. Dyck without the phytosanitary certificate and was detained at the Italian border. The importer requested a post-dated certificate and Mr. Dyck informed the CFIA of the issue. The Agency refused to issue the certificate but the shipment was subsequently cleared for import at a different Italian port. However, Mr. Dyck was issued a notice of violation (NOV) with a penalty of $10,000 for failing to meet the phytosanitary import requirements of the importing country. Mr. Dyck asked the CART for a review of the facts surrounding the issued NOV. The CART found that, despite providing the CFIA with an additional opportunity to do so, it had failed to establish an essential element of the violation, namely the proof that Italian law required a phytosanitary certificate for the importation of alfalfa. As a result, the NOV was set aside.

2 – Administrative appellate review of Minister’s first instance decisions

Klevtsov v. Canada (Minister of Public Safety and Emergency Preparedness), 2017 CART 10

Ms. Klevtsov was returning home to Canada from Russia when she experienced a series of unfortunate events which included: a bankruptcy of the airline with whom her return ticket was booked, a human stampede to board a new flight, a fall down a flight of stairs, injuries to her head and hip, no medical treatment until her arrival in Canada, and a notice of violation (NOV) issued to her with a penalty of $800 for not declaring 10 apples she was importing. Ms. Klevtsov sought relief to the NOV with the Minister on the basis that her injuries, particularly her head injury, prevented her from properly declaring her apples. The Minister ruled against her and confirmed the NOV. Ms. Klevtsov persisted and asked for a review of this ministerial decision by the CART.
The CART found that the Minister had not properly considered Ms. Klevtsov’s defence of having suffered head trauma, which undermined the voluntariness of her physical action of not declaring the apples. The CART found that a defence of automatism, based on having suffered head trauma, was available to her, that she had provided proper factual and evidentiary basis to support this defence, on a balance of probabilities. As a result, the CART set aside the Minister’s decision.

3 – Judicial reviews of CART decisions

Mario Côté inc. v. Canada (Attorney General), 2017 FCA 36

This decision from the Federal Court of Appeal (FCA) dealt with a judicial review of a CART decision which had rejected arguments, presented by Mario Coté inc., that subsection 18(1) of the Agriculture and Agri-Food Administrative Monetary Penalties Act (AMP Act), which excludes due diligence defences, violated sections 7 and 11(d) of the Canadian Charter of Rights and Freedoms (Charter), the right to security of the person and the right to a fair trial respectively. Once at the FCA, Mario Coté dropped the s.11(d) Charter argument choosing instead to focus on s.7 to contest the constitutionality of subsection 18(1) AMP Act. Given that the case pertained to a constitutional question, the FCA applied a correctness standard of review which offers no deference to the CART’s findings. Nevertheless, the FCA upheld the CART decision finding that subsection 18(1) of the AMP Act did not violate the right to security of the person found at section 7 of the Charter. Furthermore, the FCA confirmed, as had the CART, that purely economic rights, such as the right to practice the profession of one’s choosing, are not protected by section 7 of the Charter.

Maple Lodge Farms Ltd. v. Canadian Food Inspection Agency, 2017 FCA 45

This case concerns a transport of spent hens (fragile egg-laying chickens near the end of their life cycle) which arrived at Maple Lodge Farms (MLF) processing facilities. Certain problems arose during the loading of the chickens which exposed them to significant sub-zero temperatures. Despite regular examinations by MLF personnel, the load was never identified as stressed and sat in an unheated holding facility at MLF for 12 hours after its initial delivery. By the time of unloading and processing it was discovered that 12% of the load had died and MLF was issued a notice of violation (NOV), with a penalty of $7800 for having caused undue suffering because of undue exposure to weather. MLF asked for a review of the NOV by the CART, which confirmed the NOV, while varying the amount to $6000, based on a finding that MLF had not been negligent. Nevertheless, the CART found that, under an absolute liability regime, MLF’s taking control of a stressed load was enough to find it liable. The Federal Court of Appeal (FCA) upheld the $6000 penalty but overturned the CART’s legal finding that MLF’s liability was automatic when it took over a stressed load. Instead, the FCA found MLF liable due to its lack of urgency in processing the compromised load and for allowing it to stay in an unheated facility for hours after its arrival, which prolonged the suffering of the spent hens.

Managing Registry Services, Operations and Administration

Transition to E-filing

In 2016, the CART took a bold step forward in improving its Registry Services. With the assistance of the Administrative Tribunals Support Service of Canada (ATSSC), the Tribunal began its transition to electronic filing of all documents for all cases.

E-filing will increase the Tribunal’s work efficiency by reinforcing access to documentation and simplifying administrative procedures. By adopting new technologies on a daily basis, the CART is devoted to enhancing its capacity to provide a more reliable service to its stakeholders.

Developing and Improving Best Practices

The CART strives to be a leading Canadian administrative tribunal. In this regard, during the past fiscal year, the Tribunal continued its effort in developing and improving best practices by: (1) welcoming an indeterminate legal counsel in its staff; (2) submitting a request for legislative and regulatory changes to the Minister’s office; (3) updating practice notes; and (4) maintaining its educational, training and outreach program.

CART Organizational Chart (as of March 2017)

1. Canada Agricultural Review Tribunal;
2. Canadian Cultural Property Export Review Board;
3. Canadian Human Rights Tribunal;
4. Canada Industrial Relations Board;
5. Canadian International Trade Tribunal;
6. Competition Tribunal of Canada;
7. Transportation Appeal Tribunal of Canada;
8. Public Servants Disclosure Protection Tribunal;
9. Public Service Labour Relations and Employment Board;
10. Specific Claims Tribunal Canada;
11. Social Security Tribunal.

Indeterminate Legal Counsel

In 2016, after benefiting from exceptional external legal services for six years, namely from Supreme Advocacy LLP, the CART welcomed an indeterminate legal counsel into its staff. For reasons of costs and availability, this addition to the Tribunal’s workforce is truly valuable to the completion of its mandate. Due to the increasing amount of complex legal cases coming before the CART, the permanent presence of a legal counsel stands as a great resource that will support the quality of the Tribunal’s work.

Regulatory and Legislative Proposals Package Submitted to the Minister

In the course of performing its work over the past seven years, the CART has identified specific areas where improvements could be made in order to increase the expeditious and fair execution of its mandate. As a result, during the previous fiscal year, the Tribunal had the opportunity to submit a comprehensive package, outlining its proposals for enhancing the delivery of its core mandate, to the Minister of Agriculture and Agri-Food. These proposals seek to improve clarify and expedite the delivery of the CART services to Canadians.

Revision and Creation of Practice Notes

Since 2010, the CART has fully embraced the benefit of creating and publicizing Practice Notes to assist parties appearing before it. These Practice Notes have been designed to supplement and provide additional clarity regarding practices and procedures that parties should expect and adopt when appearing before the CART. This past fiscal year, the Tribunal had the opportunity to revise all of its previous Practice Notes, in order to reflect the changes brought about by the coming into force of its new rules of procedure in 2015. The CART has also worked to develop new Practice Notes centered on the role of a party’s authorized representative and the use of affidavit evidence in the CART proceedings.

Education and Training

The CART greatly values the role and the work of students. Again this year, the Tribunal welcomed two student interns as part of its Tribunal-Internship Program. These students, full of enthusiasm and innovative ideas, bring energy and additional value to the CART, while receiving practical work experience in a real-life administrative tribunal setting. Below are testimonials of the two of the student interns who came to the CART this fiscal year.

"[Translation] Through the different assignments that I completed, I was able to familiarize myself with the CART’s unique mandate and develop my legal research and writing skills. The Tribunal’s collegial and welcoming atmosphere, along with the training offered to students, makes it a perfect place for a first internship in law."

Jasmine van Schouwen, University of Ottawa,
Intern — Fall 2016

"Interning at the CART was an invaluable experience. Working in the Tribunal’s welcoming and small team environment, I had the opportunity to complete a diverse range of tasks. My experience was incredibly engaging and has greatly enhanced my legal and professional skill set."

Meghan Blom, University of Ottawa,
Intern — Summer 2016

Building Relationships and Maintaining Outreach

The network of relationships built between the CART and its stakeholders, in governmental and non-governmental positions, is fundamental. While the CART remains an independent tribunal, the Chairperson continues to nurture necessary structural connections with the different authorities surrounding the Tribunal’s activities. After having previously acted as the chair of the Council of Federal Tribunal Chairs (formerly called the Heads of Federal Administrative Tribunals Forum), the CART Chairperson has, since 2015, acted as president of the Council of Canadian Administrative Tribunals (CCAT). He is also part of the Chairs and Chief Administrator of the ATSSC Forum.

Between September 2009 and March 2017, the CART has welcomed 32 students into its sphere of activities.

Future Opportunities and Challenges

Even if the CART’s caseload only increased by 5% compared to the 2015–2016, the Tribunal managed to issue 16% more decisions. However, this level of activity does not reveal the fact that 26 cases were being held in abeyance, for more than a year, pending a review of the CART’s decision in Mario Côté inc. v. Canada (CFIA), 2016 CART 25. The Federal Court of Appeal rendered its judgment in February 2017 (2017 CAF 36), but in April 2017, the lawyer representing Mario Côté inc. filed an application for leave to appeal to the Supreme Court of Canada (SCC). In 2017-2018, these 26 cases will therefore continue to be held in abeyance pending the outcome of the SCC leave application.

Furthermore, in 2017-2018, the CART will face a set of constant and new challenges. Firstly, intricate cases and sophisticated legal representation has become more frequent in the Tribunal’s daily work. Yet, with the transition to e-filing and the presence of a permanent legal counsel, the CART will be able to deal more efficiently with a continuous, diversified and complex caseload.

Secondly, the Tribunal’s operation will be impacted by the nomination of a new Chairperson in July 2017. This changeover will be facilitated by the heritage left by the current Chairperson, as continious improvements and innovative processes have been implemented under his mandate to enhance the CART’s future activities. Thirdly, the Tribunal is committed to satisfying the orientations stated in a Mandate Letter received in August 2016 from the Minister of Agriculture and Agri-Food.

Overall, many crucial challenges await the CART in the next fiscal year. This will provide the Tribunal with the opportunity and the responsibility to continue its independent surveillance of government actions involving the issuance of AMP’s violation in the Canadian agriculture and agri-food sectors. By meeting and overcoming these challenges, the CART will maintain its engagement to make Canada’s agriculture and agri-food sectors stronger, safer and more innovative.

Tables and Graphs

The CART’s Caseload based on Decision-Making Process

The CART’s Decisions by Language, Source and Result

Figure 6 - Text version

Year of Hearing	Average Cost per Oral Hearing ($)	Number of Oral Hearings
2011-2012	$1175	14
2012-2013	$600	24
2013-2014	$900	22
2014-2015	$1000	19
2015-2016	$1150	20
2016-2017	$1475	20

The CART’s Expenditures

Coordinates of the Tribunal