Canada Gazette, Part I, Volume 148, Number 42: Rules of the Review Tribunal (Canada Agricultural Review Tribunal)

October 18, 2014

Statutory authority

Canada Agricultural Products Act

Sponsoring agency

Canada Agricultural Review Tribunal

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Rules.)

Issues

The Canada Agricultural Review Tribunal's current rules of procedure (the current Rules) have become inadequate and contain several gaps. The current Rules, adopted in 1999, no longer serve the needs of the Tribunal, which has evolved into the role of a quasi-judicial body of first instance (that is, a body hearing cases on the facts and evidence). Having been designed when the Tribunal acted as the body that reviewed the decisions of the Board of Arbitration (simply checking the reasoning of the Board), these Rules never fully addressed first instance matters, such as the weighing of evidence and the calling of witnesses. The proposed Rules of the Review Tribunal (Canada Agricultural Review Tribunal) [the proposed new Rules], once adopted, would fill procedural gaps and clarify Tribunal procedures for the benefit of parties appearing before the Tribunal.

As the amounts of the agriculture and agri-food administrative monetary penalties (AMPs) have increased, so has the complexity of the procedures brought before the Tribunal. This has meant that more applicants are represented by legal counsel, which has resulted in more motions being heard, more witnesses being called and the complexity of the legal questions asked increasing proportionately. As the current Rules do not take these kinds of interventions into account, the Tribunal has had to develop these rules on an ad hoc basis, causing delays in cases before the Tribunal and giving parties the opportunity to “strategically stall” procedures in order to avoid having to pay a fine.

At present, the current Rules do not sufficiently inform the parties (the applicant [an individual or business] and the respondent [a government agency]) before the Tribunal of what is expected of them to present their case, whether this includes making motions to subpoena witnesses or filing additional information in order to adequately support a case. This has resulted in significant delays in the administration of cases and has led the Tribunal to use its powers of discretion to fill in many of the gaps that were not covered in practice notes issued to stakeholders.

In addition, this patchwork of procedural practices may at times be applied inconsistently across cases, leaving parties confused and the Tribunal open to potential actions in judicial review before the Federal Court of Appeal.

Background

The Canada Agricultural Review Tribunal, as it exists now, was established in 1983 as a reviewer of decisions made by the Board of Arbitration, a regulatory board for fruit and vegetable vendors. Since 1999, it has been the body responsible for reviewing warnings and monetary fines issued on behalf of the Minister of Agriculture and Agri-Food, and later on behalf of the Minister of Health. These fines are currently issued by three agencies: the Canadian Food Inspection Agency (CFIA), the Canada Border Services Agency (CBSA) and Health Canada's Pest Management Regulatory Agency (PMRA). These monetary fines or warnings are issued as Notices of Violation (NOVs) and are defined in greater detail within the Canada Agricultural Products Act, as well as the Agriculture and Agri-Food Administrative Monetary Penalties Act and its associated regulations. This legislation and these policies are called the Administrative Monetary Penalties Regime (AMPs Regime), which is used by inspectors and employees of the various agencies to correct behaviour that may put human, plant or animal health at risk, for example by stopping the import of certain foods from abroad or ensuring that an animal is traceable from farm to table. Usually, NOVs are given out by inspectors when people or businesses break rules. It is important to note that the AMPs Regime operates within the civil sphere of the law, rather than the criminal sphere. NOVs are linked more to acts like traffic violations than criminal acts, such as driving while impaired.

The current Rules, drafted more than 15 years ago, came into force in 1999 and have become outdated as the Tribunal's mandate has shifted. The sole mandate of the Tribunal prior to 1999 was to conduct reviews of decisions of the Board of Arbitration as set out in the Canada Agricultural Products Act. After the conclusion of the North American Free Trade Agreement (NAFTA) and the establishment of the Fruit and Vegetable Dispute Resolution Corporation (FVDRC), the Board of Arbitration saw its former work migrating to the FVDRC. Consequently, fewer and fewer decisions were made by the Board of Arbitration, and, in turn, fewer reviews of decisions were required of the Tribunal, until it conducted its last Board of Arbitration review in 2005. As a result, since 1999, the work of the Tribunal has increasingly shifted to reviewing alleged AMPs violations, and, since 2006, this work has constituted 100% of the Tribunal's workload. The evolution of the AMPs Regime has paralleled that of the Tribunal's mandate over the last 10 to 15 years. The maximum amounts of NOV fines issued were increased from $5,000 to $15,000, which dramatically increased the number of people seeking reviews and made legal representation a viable option where it would have been uneconomical previously. More parties seeking legal representation has also meant that the kinds of questions relating to evidence and the kinds of legal questions raised have become much more complex. As maximum fines are set to increase from $15,000 to $25,000 under proposed legislation currently before Parliament, it is believed that this trend will continue.

Another major change to happen to the Tribunal was the delegation of inspection powers to the CBSA from the CFIA at airports (and at border crossings in the near future). This has meant that air travellers coming back to Canada are also subject to AMPs ranging from $500 to $1,300 should they fail to declare any food products that they may have on their person from abroad. As these AMPs represent a significant penalty, but not one so significant as to justify seeking legal advice, the Tribunal has also had to adapt its practices and provide added instruction to applicants who are most often self-represented and who may have low levels of literacy or communication skills in either official language. To this effect, the Tribunal has produced numerous practice directions and developed a guide for self-represented litigants, although significant intervention on the part of the Registry of the Tribunal has often been required in these cases.

Objectives

The primary objective of the proposed new Rules is to deal formally with some specific areas of difficulty encountered by the Tribunal. Setting out these issues and their proposed solutions in a public document makes access to the rules universal. They may be applied consistently across all hearings before the Tribunal, rather than Members having to use their discretionary authority.

The Tribunal is seeking to ensure that its expectations as they relate to the parties and their receivables are explicit and clear. The most prevalent causes of delay at the Tribunal concern uncertainty as to the procedure and last-minute requests for extensions of time limits.

The objectives of this regulatory package are to protect and clarify the procedural rights of parties appearing before the Tribunal and to permit the Tribunal to apply the clarified rules in a manner that will provide for fairer, more expeditious and more cost-effective hearings.

Description

The proposed new Rules are a set of ground rules on interactions between the parties and between the parties and the Tribunal. The proposed new Rules formalize how these interactions would take place and what deadlines would be imposed, as well as establish policies on official languages and the very basic rules of civil procedure that will apply during proceedings before the Tribunal.

The proposed new Rules would better address the fact that the work of the Tribunal has moved from reviewing decisions of the Board of Arbitration to reviewing decisions involving applicants who receive NOVs, and would fill many of the gaps that exist in the current Rules. The proposed new Rules would provide clarification as to what types of interpretation services would be offered by the Tribunal and within what timelines parties should request these services, when and how parties may provide affidavit evidence, how party contact information would be required by the Tribunal, and how parties could determine due dates for their submissions, and provide precise rules for the holding of a hearing in order to ensure that all parties would have adequate time to prepare for the hearing.

What is notably different about the proposed new Rules is the level of detail used in areas where the Tribunal has experienced confused expectations among the parties. The proposed new Rules would also provide fixed deadlines for the submission of documents and requests prior to oral hearings, thus allowing the Tribunal to set an agenda, particularly in cases where constitutional or other larger administrative questions could cause difficulty in administrating the case. The proposed new Rules would also permit the use of teleconferencing and videoconferencing technologies, when available, in order to facilitate access to the Tribunal. These changes would help reduce the backlog of outstanding cases and allow the Tribunal to be more responsive to certain types of cases that tend to stall (particularly in situations where the party requesting the review has a significant number of cases before the Tribunal).

It is equally important to note that the proposed new Rules would clearly set out what documents would be expected from the parties and when. A significant amount of the Registry's time is spent requesting additional information from parties. The proposed new Rules contain provisions that would succinctly explain what information must be included in an applicant's request to have an NOV reviewed, what the agency issuing the NOV (that is the CFIA, the CBSA or the PMRA) has to provide to support its case, and what subsequent measures the applicant would be allowed to take in response to the agency's formal case report. The proposed new Rules would also contain provisions for the conduct of hearings, for fixing timelines for the use and cross-examination of affidavit evidence, for the calling of witnesses, for requests for adjournments and for the submission of additional information, so that there would be fewer surprises upon the day of the hearing.

In conclusion, the proposed new Rules would greatly improve the patchwork of procedural rules that currently exists, allow for more consistent decision making by the Tribunal's Members, and help the parties to communicate with each other and with the Tribunal more effectively. It is expected that better communication and procedural consistency will result in fewer applications for judicial review.

Consultation

To date, there has been only limited informal consultation with CFIA and CBSA stakeholders. However, the suggestions received by the Tribunal from these stakeholders have been considered in the drafting of the proposed new Rules.

“One-for-One” Rule

The “One-for-One” Rule does not apply to this regulatory proposal as it does not contain requirements that would place additional administrative burden on industry.

Small business lens

The small business lens does not apply to this proposal as it does not impose any significant costs on businesses.

Rationale

The Tribunal provides an independent third-party check on the three agency regulators that administer the AMPs regime, namely the CFIA, the CBSA, and the PMRA. This regime was established to protect the Canadian public as well as Canadian agriculture and wildlife from potential disease and pests. While the AMPs regime is but one tool at the disposal of government institutions, it is an important one that fills the gap between a simple warning and costly criminal proceedings against an alleged offender.

Overall, the operational footprint of the Tribunal is quite small, and the fines collected under the AMPs regime are modest. Nonetheless, regulation of the agriculture and agri-food sectors affects a broad and ever-expanding number of industries and business sectors. Canadians are increasingly interested in ensuring that their food is safe and has been treated with a level of care that had not been contemplated before. Food forms an important part of a nation's cultural fabric, and questions of food sovereignty and sustainability continue to reverberate in political and public circles. With legislation currently before Parliament that would raise maximum fines to $25,000 and the addition of MOTC business lines regulated under federal legislation, including federally licensed abattoirs and meat-processing plants, it is unlikely that the work of the Tribunal will decrease.

In terms of tying the proposed changes to Government savings and a decrease in administrative costs to business, any increased level of certainty in Tribunal proceedings will mean less time spent by a business owner, or their lawyer, trying to determine the best course of action or remedy sought. Better informed parties would allow the Tribunal to manage cases more effectively, and hear more cases over a year, rather than spending time on administrative and planning matters. While this would not necessarily equate to direct savings, reducing the number of adjourned hearings would reduce travel costs and Members' travel time.

The most important benefits, however, concern providing better clarity to members of the public, which should allow them to make a more informed decision when they decide to request a review before the Tribunal.

As this proposal for the adoption of the proposed new Rules will simply provide greater clarity concerning the procedural rules of the Tribunal, there should be no additional external costs imposed upon Canadian society.

Contact

Lise Sabourin
Coordinator
Registry Office
Canada Agricultural Review Tribunal
Building 60, Birch Drive, Central Experimental Farm
Ottawa, Ontario
K1A 0C6
Fax: 613-792-2088
Email: lise.sabourin@cart-crac.gc.ca

Small Business Lens Checklist

1. Name of the sponsoring regulatory organization:

2. Title of the regulatory proposal:

3. Is the checklist submitted with a RIAS for the Canada Gazette, Part I or Part II?

Canada Gazette, Part I Canada Gazette, Part II

A. Small business regulatory design

I	Communication and transparency	Yes	No	N/A
1.	Are the proposed Regulations or requirements easily understandable in everyday language?
2.	Is there a clear connection between the requirements and the purpose (or intent) of the proposed Regulations?
3.	Will there be an implementation plan that includes communications and compliance promotion activities, that informs small businesses of a regulatory change and guides them on how to comply with it (e.g. information sessions, sample assessments, toolkits, Web sites)?
4.	If new forms, reports or processes are introduced, are they consistent in appearance and format with other relevant government forms, reports or processes?
II	Simplification and streamlining	Yes	No	N/A
1.	Will streamlined processes be put in place (e.g. through BizPaL, Canada Border Services Agency single window) to collect information from small businesses where possible?
2.	Have opportunities to align with other obligations imposed on business by federal, provincial, municipal or international or multinational regulatory bodies been assessed?
3.	Has the impact of the proposed Regulations on international or interprovincial trade been assessed?
4.	If the data or information, other than personal information, required to comply with the proposed Regulations is already collected by another department or jurisdiction, will this information be obtained from that department or jurisdiction instead of requesting the same information from small businesses or other stakeholders? (The collection, retention, use, disclosure and disposal of personal information are all subject to the requirements of the Privacy Act. Any questions with respect to compliance with the Privacy Act should be referred to the department's or agency's ATIP office or legal services unit.)
5.	Will forms be pre-populated with information or data already available to the department to reduce the time and cost necessary to complete them? (Example: When a business completes an online application for a licence, upon entering an identifier or a name, the system pre-populates the application with the applicant's personal particulars such as contact information, date, etc. when that information is already available to the department.)
6.	Will electronic reporting and data collection be used, including electronic validation and confirmation of receipt of reports where appropriate?
7.	Will reporting, if required by the proposed Regulations, be aligned with generally used business processes or international standards if possible?
8.	If additional forms are required, can they be streamlined with existing forms that must be completed for other government information requirements?
III	Implementation, compliance and service standards	Yes	No	N/A
1.	Has consideration been given to small businesses in remote areas, with special consideration to those that do not have access to high-speed (broadband) Internet?
2.	If regulatory authorizations (e.g. licences, permits or certifications) are introduced, will service standards addressing timeliness of decision making be developed that are inclusive of complaints about poor service?
3.	Is there a clearly identified contact point or help desk for small businesses and other stakeholders?

B. Regulatory flexibility analysis and reverse onus

IV	Regulatory flexibility analysis	Yes	No	N/A
1.	Does the RIAS identify at least one flexible option that has lower compliance or administrative costs for small businesses in the small business lens section? Examples of flexible options to minimize costs are as follows: Longer time periods to comply with the requirements, longer transition periods or temporary exemptions; Performance-based standards; Partial or complete exemptions from compliance, especially for firms that have good track records (legal advice should be sought when considering such an option); Reduced compliance costs; Reduced fees or other charges or penalties; Use of market incentives; A range of options to comply with requirements, including lower-cost options; Simplified and less frequent reporting obligations and inspections; and Licences granted on a permanent basis or renewed less frequently.
2.	Does the RIAS include, as part of the Regulatory Flexibility Analysis Statement, quantified and monetized compliance and administrative costs for small businesses associated with the initial option assessed, as well as the flexible, lower-cost option? Use the Regulatory Cost Calculator to quantify and monetize administrative and compliance costs and include the completed calculator in your submission to TBS-RAS.
3.	Does the RIAS include, as part of the Regulatory Flexibility Analysis Statement, a consideration of the risks associated with the flexible option? (Minimizing administrative or compliance costs for small business cannot be at the expense of greater health, security, or safety or create environmental risks for Canadians.)
4.	Does the RIAS include a summary of feedback provided by small business during consultations?
V	Reverse onus	Yes	No	N/A
1.	If the recommended option is not the lower-cost option for small business in terms of administrative or compliance costs, is a reasonable justification provided in the RIAS?

PROPOSED REGULATORY TEXT

Notice is given that the Review Tribunal, with the approval of the Governor in Council, pursuant to subsection 8(3) (see footnote a) of the Canada Agricultural Products Act (see footnote b), proposes to make the annexed Rules of the Review Tribunal (Canada Agricultural Review Tribunal).

Interested persons may make representations concerning the proposed Rules within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Lise Sabourin, Coordinator, Registry Office, Canada Agricultural Review Tribunal, Building 60, Birch Drive, Ottawa, Ontario K1A 0C6 (fax: 613-792-2088; email: lise.sabourin@cart-crac.gc.ca).

Ottawa, October 9, 2014

JURICA ČAPKUN
Assistant Clerk of the Privy Council

RULES OF THE REVIEW TRIBUNAL (CANADA AGRICULTURAL REVIEW TRIBUNAL)

PART 1

APPLICATION AND INTERPRETATION

APPLICATION

Inconsistency with Acts or regulations

1. In the event of any inconsistency between these Rules and an Act of Parliament or any regulation made under such an Act, that Act or regulation prevails to the extent of the inconsistency.

INTERPRETATION

Definition of “holiday”

2. In these Rules, “holiday” means a Saturday, Sunday or any other day defined as a holiday in subsection 35(1) of the Interpretation Act.

General principle

3. These Rules are to be interpreted and applied in order to permit the just, most expeditious and least expensive conduct of proceedings.

Procedural matters not provided for

4. The Tribunal is to determine any procedural matter not provided for in these Rules in a manner that is consistent with these Rules.

COMPUTATION AND EXTENSION OF TIME

Calculation of time limits

5. Any time limit provided by these Rules or fixed by an order of the Tribunal that ends on a holiday is extended to the next day that is not a holiday.

Extension of time limits

6. The Tribunal may extend any time limit fixed in these Rules before or after the end of the time limit.

PART 2

RULES APPLICABLE TO ALL PROCEEDINGS

OFFICIAL LANGUAGES

Official languages — Tribunal proceedings

7. All Tribunal proceedings are conducted in English or French, depending on the language chosen by the applicant.

Communications with Tribunal

8. (1) A party may use English or French in any oral or written communication with the Tribunal. However, once the applicant has selected a language, all oral and written communications, including in documents and exhibits, must be made in that language, unless the parties consent to do otherwise.

Default language selection

(2) If the applicant does not indicate their choice of official language in their request, all oral and written communications, including in documents and exhibits, must be made in the language in which the request to the Tribunal is made. That language is deemed to be the language for the proceeding.

Oral interpretation

(3) If a party requires interpretation services in order to participate in or have a witness testify at a hearing in the official language in which the proceeding is conducted, the party must, at least seven days before the hearing,

• (a) notify the Tribunal of the requirement in writing; and
• (b) indicate whether the party requires interpretation services from a language other than English or French.

Costs

(4) A party who requires interpretation services from a language other than English or French must pay for the costs of those services.

DISPENSING WITH COMPLIANCE

Dispensing with compliance

9. If the application of any rule would cause unfairness to a party, the Tribunal may dispense the party from complying with the rule.

Gap in evidence or non-compliance

10. (1) The Tribunal may draw the attention of a party to any gap in the evidence of its case or any non-compliance with these Rules.

Remedy

(2) On request, the Tribunal may permit the party to remedy any gap in its evidence or non-compliance on any conditions that the Tribunal considers just, before the end of the proceedings.

CONFIDENTIAL MATERIAL

Confidential material

11. (1) On request, the Tribunal may order that documents and exhibits that are to be filed be treated as confidential.

Contents of request

(2) The request must set out

• (a) the reasons for the confidential treatment of the documents and exhibits; and
• (b) the nature and extent of potential harm that could result from the disclosure of the documents and exhibits.

Making of confidential documents and exhibits

(3) Before making an order under subrule (1), the Tribunal must be satisfied that the documents and exhibits are to be treated as confidential, given the public interest in open and accessible proceedings.

FILING AND SERVICE

Definition of “document”

12. For the purposes of rules 15 to 17, “document” does not include a request for review.

Request for review

13. Any request for review made under section 8, 9 or 11 or subsection 12(2) or 13(2) of the Agriculture and Agri-Food Administrative Monetary Penalties Act that was transmitted by fax or by electronic means must also be sent by registered mail to the Tribunal within 15 days after the day on which they are transmitted.

Requirement to provide current contact information

14. A party must notify the Tribunal of their full name, civic address, mailing address if different from their civic address and at least one of their telephone number, fax number and email address, and of any change in their contact information, without delay.

Manners of filing with Tribunal

15. (1) A document may be filed with the Tribunal in any of the following manners:

• (a) by hand delivery to the Tribunal's head office;
• (b) by registered mail to the Tribunal's mailing address;
• (c) by courier to the Tribunal's mailing address;
• (d) by fax or other electronic means to the Tribunal; or
• (e) by ordinary mail to the Tribunal's mailing address.

Receipt after 5:00 p.m.

(2) A document that is filed with the Tribunal after 5:00 p.m., local time of the place where the sender is located, is considered to have been received on the next day that is not a holiday.

Service on any party

16. (1) A document may be served on a party in any of the following manners:

• (a) by hand delivery to the person that is the party;
• (b) by registered mail to the party's mailing address;
• (c) by courier to the party's mailing address;
• (d) by fax or other electronic means to the party; or
• (e) by ordinary mail to the party's mailing address.

Service to legal counsel or representative

(2) A document may be served on a party who is represented by legal counsel or another duly authorized representative by serving it on that party's legal counsel or duly authorized representative.

Receipt of service after 5:00 p.m.

(3) A document that is served on a party after 5:00 p.m., local time of the place where the sender is located, is deemed to have been received on the next day that is not a holiday.

Registered mail or courier

17. (1) The filing or service of a document by registered mail or courier is effective on the day indicated on the receipt issued by the post office or courier service, as the case may be.

Fax or other electronic means

(2) The filing or service of a document by fax or other electronic means is effective on the day on which it is sent.

Ordinary mail

(3) The filing or service of a document by ordinary mail is effective on the day indicated on the postmark stamped on the envelope or, if no postmark is legible, on the day of the receipt.

REPRESENTATION OF PARTIES

Individuals

18. (1) An individual may act in person or be represented by legal counsel or by another duly authorized representative.

Corporations, partnerships or associations

(2) A corporation, partnership or unincorporated association must be represented by legal counsel or by an officer, partner or member.

Coordinates of counsel or representative

(3) A party who is represented by legal counsel or another duly authorized representative must notify the Tribunal of the legal counsel or representative's contact information and of any changes to such information within seven days after the day on which the change is made.

Change of counsel or representative

(4) A party may change its legal counsel or representative by notifying the Tribunal of the change and the contact information of the new legal counsel or representative within seven days after the day on which that change is made.

PROCEEDINGS

General

Proceedings public

19. (1) Proceedings of the Tribunal are public.

In camera proceedings

(2) The Tribunal may order that a proceeding be held in camera at the request of any party if the party satisfies the Tribunal that the circumstances of the case warrant the request.

Remote conference

20. The Tribunal may order that a hearing, or any other step in a proceeding, be conducted in whole or in part by teleconference, videoconference or any other form of electronic communication.

Affidavit evidence

21. (1) A party may present evidence by affidavit by serving the affidavit on the other party and filing it with the Tribunal,

• (a) in the case of a proceeding by written submissions, within 30 days after the expiry of the time limits set out in rules 36 or 52; or
• (b) in the case of a proceeding by oral hearing, at least 15 days before the hearing date.

Availability of deponents

(2) A party who intends to present evidence by affidavit must ensure that the deponent of the affidavit is available for cross-examination. The timing of the cross-examination is to be decided on the parties' mutual consent or, if the parties do not consent, by the Tribunal.

Transcript of cross-examination

(3) A party who cross-examines the deponent of an affidavit must file the transcript of the cross-examination with the Tribunal within seven days after the day on which the cross-examination takes place.

Taking notice

22. The Tribunal may take notice of any matter in order to expedite any proceeding.

Hearings

Order of proceeding

23. The Tribunal establishes the order of proceeding at the start of the oral hearing.

Exclusion of witnesses

24. (1) The Tribunal may order witnesses to be excluded from the hearing while the other witnesses are called to give evidence.

Recording of hearings

(2) Hearings before the Tribunal may be recorded.

Oath or solemn affirmation

25. (1) A person to be examined on an oral examination must take an oath or make a solemn affirmation before being examined.

Examination, cross-examination and re-examination

(2) A party at a hearing is entitled to examine their own witnesses, cross-examine any witnesses of the other party and re-examine their own witnesses on matters raised in cross-examination.

IMPARTIALITY AND CONFLICT OF INTEREST

Parties raising bias or conflict of interest

26. (1) A party that believes that a member of the Tribunal is not in a position to act impartially in a matter or is in a conflict of interest must immediately give written notice to the Tribunal, stating the reason for the opinion.

Decision within seven days of notice

(2) The Chairperson of the Tribunal must issue a decision within seven days after the day on which he or she receives a notice under subrule (1).

Contents of decision

(3) If the Chairperson determines that the member that was the subject of the notice is not in a position to act, the Chairperson must

• (a) exclude the member from the matter; and
• (b) give any directions that he or she considers necessary for the matter to be reconvened with a differently constituted Tribunal or order a new hearing.

Tribunal member raising bias or conflict of interest

27. If a member of the Tribunal feels that he or she is not in a position to act impartially or cannot review a matter due to a conflict of interest, the Chairperson must direct that the matter be reconvened with a differently constituted Tribunal or order a new hearing.

PART 3

REVIEW OF NOTICES OF VIOLATION

Application

28. This Part applies to all proceedings before the Tribunal initiated as a result of a request made in accordance with the Agriculture and Agri-Food Administrative Monetary Penalties Regulations or the Agriculture and Agri-Food Administrative Monetary Penalties Regulations Respecting the Pest Control Products Act and Regulations under subsection 8(1), paragraph 9(2)(c) or paragraph 11(1)(b) of the Agriculture and Agri-Food Administrative Penalties Act.

Acknowledgement of receipt

29. Within seven days after the day on which the Tribunal receives a request referred to in rule 28, the Tribunal must send

• (a) an acknowledgement of receipt of the request for review to the applicant; and
• (b) an acknowledgement of receipt of the request for review, along with a copy of the request for review, to the competent minister in relation to the violation or his or her delegated representative.

Tribunal file

30. Within seven days after the day on which the acknowledgement of receipt is sent, the Minister or his or her delegated representative must file with the Tribunal

• (a) proof of service of the notice of violation that is the subject of the review; and
• (b) a statement that there is no monetary penalty set out by the notice of violation or, if there is one, that it has not already been paid by the applicant.

Addendum

31. Within 15 days after the day on which a request referred in rule 28 is made, unless the following information is already contained in the applicant's request for review, the applicant must file with the Tribunal an addendum containing the following information:

• (a) the applicant's full name, civic address, mailing address if different from their civic address and at least one of their telephone number, fax number and email address;
• (b) if the applicant is represented by a representative, written authority from the applicant for the representative to so act, as well as the representative's full name, civic address, mailing address if different from their civic address and at least one of their telephone number, fax number and email address;
• (c) if the applicant is represented by legal counsel, their full name, civic address, mailing address if different from their civic address and at least one of their telephone number, fax number and email address;
• (d) the applicant's reasons for the request, other than defences that are not allowed under subsection 18(1) of the Agriculture and Agri-Food Administrative Penalties Act, along with any supporting documents or evidence;
• (e) the applicant's choice of official language for the proceeding; and
• (f) a complete copy of the notice of violation issued by the Canadian Food Inspection Agency, Health Canada or the Canada Border Services Agency that is being challenged.

Order on admissibility

32. (1) The Tribunal must make a decision on the admissibility of a request for review within 60 days after the day on which the acknowledgement of receipt of the request is sent to the parties, and send that decision to the parties in writing without delay.

Grounds to consider

(2) The Tribunal must, in coming to its decision on admissibility, consider any relevant factor, including whether

• (a) the Minister or his or her delegated representative has complied with all of the requirements of rule 30; and
• (b) the applicant has complied with all of the requirements of rule 31.

Minister's report

33. The Minister or his or her delegated representative must, within 30 days after the day on which the Tribunal decides that the request for review is admissible,

• (a) serve on the applicant a report containing any information relating to the violation, along with any related documents or evidence, and any refusal by the Minister of the request to enter into a compliance agreement made under paragraph 9(2)(a) of the Agriculture and Agri-Food Administrative Monetary Penalties Act; and
• (b) file the report and any supporting documents or evidence, along with proof that the report has been served on the applicant, with the Tribunal.

Acknowledgement of receipt

34. Within seven days after the day on which the Tribunal receives the report, the Tribunal must send an acknowledgement of receipt to the parties.

Additional submissions

35. Within 30 days after the date on which the report is served, the applicant must

• (a) indicate to the Tribunal whether they wish to proceed by way of oral hearing; and
• (b) file any additional submissions in relation to the report with the Tribunal.

No further submissions

36. No further submissions are to be filed after

• (a) the expiry of the time limit for the filing of a Minister's report, if it has not been filed by the Minister or his or her delegated representative in accordance with rule 33;
• (b) the filing of the applicant's additional submissions in accordance with rule 35; or
• (c) the expiry of the time limit set out in rule 35 for the filing of the applicant's additional submissions, if none has been filed.

Decision or notice of hearing

37. The Tribunal must, after the day on which no further submissions are to be filed in accordance with rule 36,

• (a) if a review is proceeding by way of written submissions, render a decision based on the documents and exhibits received from the parties; or
• (b) if a review is proceeding by way of a hearing, send a notice of hearing to all parties at least 30 days before the hearing date.

List of witnesses

38. At least 20 days before the hearing of a matter, each party must serve on the other party and file with the Tribunal a list of the witnesses it intends to call, along with their civic address, mailing address if different from their civic address and telephone numbers.

Failure to appear

39. If one of the parties does not appear at the hearing, and if the Tribunal is satisfied that a notice of the hearing was sent to the most recent address on file of that party, the Tribunal may grant or dismiss the request for review, or proceed with the hearing in the party's absence and dispose of the review in any applicable manner referred to in section 14 of the Agriculture and Agri-Food Administrative Monetary Penalties Act.

Postponement and adjournment

40. (1) The tribunal may postpone or adjourn a hearing on any terms that it considers appropriate.

Delay

(2) Any request for a postponement or an adjournment must be made at least 8 days before the hearing date.

Decision after hearing or later

41. The Tribunal may render a decision orally at the end of a hearing or it may reserve its decision until a later date.

Decision to be sent

42. The Tribunal must provide a decision in writing and send a copy of it to all parties without delay.

PART 4

REVIEW OF MINISTER'S DECISIONS

Application

43. This Part applies to all proceedings before the Tribunal initiated as a result of a request made in accordance with the Agriculture and Agri-Food Administrative Monetary Penalties Regulations or the Agriculture and Agri-Food Administrative Monetary Penalties Regulations Respecting the Pest Control Products Act and Regulations under subsection 12(2) or paragraph 13(2)(b) of the Agriculture and Agri-Food Administrative Penalties Act.

No new evidence

44. The parties may present new evidence only with the permission of the Tribunal.

Acknowledgement of receipt

45. Within seven days after the day on which the Tribunal receives a request referred to in rule 43, the Tribunal must send

• (a) an acknowledgement of receipt of the request for review to the applicant; and
• (b) an acknowledgement of receipt of the request, along with a copy of the applicant's request for review, to the competent minister in relation to the violation or his or her delegated representative.

Tribunal file

46. Within seven days after the day on which the acknowledgement of receipt is sent, the Minister or his or her delegated representative must file with the Tribunal proof that the Minister's decision that is subject to the review has been served on the applicant.

Addendum

47. Within 15 days after the day on which a request referred to in rule 43 is made, unless the following information is already contained in the applicant's request for review, the applicant must file with the Tribunal an addendum containing the following information:

• (a) the applicant's full name, civic address, mailing address if different from their civic address and at least one of their telephone number, fax number and email address;
• (b) if the applicant is represented by a representative, written authority from the applicant for the representative to so act, as well as the representative's full name, civic address, mailing address if different from their civic address and at least one of their telephone number, fax number and email address;
• (c) if the applicant is represented by legal counsel, their full name, civic address, mailing address if different from their civic address and at least one or more of their telephone number, fax number and email address;
• (d) the applicant's reasons to vary or set aside the Minister's decision;
• (e) the applicant's choice of official language for the proceeding;
• (f) a copy of the Minister's decision, including any reasons; and
• (g) a complete copy of the notice of violation issued by the Canadian Food Inspection Agency, Health Canada or by the Canada Border Services Agency that is being challenged.

Decision on admissibility

48. (1) The Tribunal must make a decision on the admissibility of the request for review within 60 days after the day on which the acknowledgement of receipt of a request is sent to the parties, and send that decision to the parties in writing without delay.

Grounds to consider

(2) The Tribunal must, in coming to its decision on admissibility, consider any relevant factor, including whether

• (a) the Minister or his or her delegated representative has complied with rule 46; and
• (b) the applicant has complied with all of the requirements of rule 47.

Documents relating to the decision

49. The Minister or his or her delegated representative must, within 30 days after the day on which the Tribunal decides that the request for review is admissible,

• (a) serve on the applicant a certified copy of all documents relevant to the request for review that are in the possession of the Minister whose decision is the subject to the review;
• (b) file the certified copy of all documents relevant to the request for review that are in the possession of the Minister whose decision is subject to the review along with proof that the documents were served on the applicant and any refusal by the Minister to enter into a compliance agreement made under paragraph 9(2)(a) of the Agriculture and Agri-Food Administrative Monetary Penalties Act; and
• (c) if there are any documents or exhibits that cannot be reproduced,
  • (i) serve on the applicant a notice of filing containing a list of the documents or exhibits that cannot be reproduced; and
  • (ii) file the original documents or exhibits with the Tribunal along with proof that the notice of filing was served on the applicant.

Acknowledgement of receipt

50. Within seven days after the day on which documents or exhibits were filed in accordance with rule 49, the Tribunal must send an acknowledgement of receipt of the material to the parties.

Request for oral hearing and additional reasons

51. Within 30 days after the day on which the documents or exhibits that are in the possession of the Minister are filed in accordance with rule 49, the applicant must

• (a) indicate to the Tribunal whether they wish to proceed by way of oral hearing; and
• (b) file any additional reasons in response to the documents and exhibits filed by the Minister with the Tribunal.

No further reasons

52. No further reasons can be filed after

• (a) the expiry of the time limit for the filing of the Minister's documents or exhibits by the Minister or his or her delegated representative in accordance with rule 49, if they have not been filed;
• (b) the filing of the applicant's additional reasons in accordance with rule 51; or
• (c) the expiry of the time limit for the filing of the applicant's additional reasons in accordance with rule 51, if none has been filed.

Decision or notice of hearing

53. The Tribunal must, after the day on which no further reasons are to be filed in accordance with rule 52,

• (a) if a review is proceeding by way of written submissions, render a decision based on the documents or exhibits received from the parties; or
• (b) if a review is proceeding by way of oral hearing, send a notice of hearing to all parties at least 30 days before the hearing date.

Failure to appear

54. If one of the parties does not appear at the hearing, and if the Tribunal is satisfied that a notice of the hearing was sent to the most recent address on file of that party, the Tribunal may grant or dismiss the request for review, or proceed with the hearing in the party's absence and dispose of the review in any manner referred to in section 14 of the Agriculture and Agri-Food Administrative Monetary Penalties Act.

Postponements and adjournments

55. (1) The Tribunal may postpone or adjourn a hearing on any terms that it considers appropriate.

Delay

(2) Any request for a postponement or an adjournment must be made at least 8 days before the hearing date.

Decisions after hearing or later

56. The Tribunal may render a decision orally at the end of a hearing or it may reserve its decision until a later date.

Decision to be sent without delay

57. The Tribunal must provide a decision in writing and send a copy of it to all parties without delay.

REPEAL

58. The Rules of the Review Tribunal (Agriculture and Agri-Food) (see footnote 1) are repealed.

COMING INTO FORCE

Registration

59. These Rules come into force on the day on which they are registered.

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