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Agriculture - Agriculture and Agri-Food Administrative Monetary Penalties Act. Prairie Pride Natural Foods Ltd. v. Canada (Attorney General)
In Prairie Pride Natural Foods Ltd. v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered a JR against a administrative monetary penalty (issued under the Agriculture and Agri-Food Administrative Monetary Penalties Act) that had been appealed unsuccessfully to the Canada Agricultural Review Tribunal. The JR issue was that the administrative review required an odd two-staged repeated notice, the first which was met and the second which was late:[13] The issue, then, is whether the Tribunal reasonably found that the request for review was inadmissible because the follow-up copy of the request was out of time. The Tribunal was correct that a copy of the request was sent late. However, a question remains: Is sending the copy necessary to have a valid request for review?
[14] The Tribunal determined that the request for review was invalid because the prescribed deadlines are strict (Decision at paras. 4, 15, 16). This conclusion was based on two decisions of this Court: Clare v. Canada (Attorney General), 2013 FCA 265, 451 N.R. 349 at para. 24 (Clare); and Hershkovitz v. Canada (Attorney General), 2021 FCA 38, 328 A.C.W.S. (3d) 431 (Hershkovitz).
[15] I have a concern with relying on these decisions because neither Hershkovitz nor Clare deals with the requirement to send a follow-up copy of a request for review.
[16] The Hershkovitz decision concerns an entirely different statutory requirement, which has no similarity to the requirement at issue.
[17] Clare deals with the deadline for sending the original request for review. This Court concluded in Clare that a request for review is invalid if it is not made within the time prescribed.
[18] The relevant statutory language for sending the original request is materially different from the language for sending a follow-up copy. These differences were not discussed by the Tribunal. Further, the Tribunal did not discuss the statutory language in subsection 14(3) at all. The question is whether the Decision of the Tribunal is reasonable in spite of this.
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[22] Paragraph 9(2)(c) of the Act provides that a person is entitled to request a review by the Tribunal “in the prescribed time and manner”. The time and manner are set out in the Regulations. Subsections 11(2) and 14(1) of the Regulations explicitly provide a prescribed time and manner to make a request for review.
[23] The time requirement is set out in subsection 11(2) of the Regulations. It provides that “the request shall be made … within 30 days after the day on which the notice is served” (Emphasis added).
[24] The manner of making the request is set out in subsections 11(2) and 14(1) of the Regulations. Subsection 11(2) provides that the request must be “made in writing”. Subsection 14(1) provides that a “person may make a request … by delivering it by hand or by sending it by registered mail, courier or fax or other electronic means …”. (Emphasis added.)
[25] Unlike these Regulations, subsection 14(3) does not explicitly link the requirement to send a copy with the manner to make a valid request for review. Subsection 14(3) provides that if a request is made by electronic means, a copy of the request is required to be sent by courier or registered mail. Although the text states that sending the copy is mandatory, it does not state that the copy is a requirement to make the request.
[26] One thing that might be said in favour of the Tribunal’s interpretation is that subsections 14(3) and 14(1) are both located in section 14. On the other hand, the language in subsection 14(3) itself distinguishes between the manner of making the request (electronic means) and the requirement to send a copy. Accordingly, the language in subsection 14(3) seems to imply that the copy is not a requirement of making the request.
[27] A further difficulty with the Tribunal’s interpretation of subsection 14(3) is that it results in an inconsistency as to the deadline for making the request. As noted above, subsection 11(2) provides a deadline for making the request of 30 days after the date of service of the notice of violation. The deadline for the copy is “48 hours after the time limit for making the request.” Clearly, the deadline for sending the copy in subsection 14(3) extends beyond the deadline for making the request in subsection 11(2). Accordingly, the Tribunal’s determination that sending a follow-up copy is a requirement to make the request produces an internal inconsistency in the deadline for making a request for review.
[28] With respect to the purpose of subsection 14(3), I have reviewed the Regulatory Impact Analysis Statements (RIAS) concerning the relevant provision, in its current and earlier versions. The original version of subsection 14(3) had no fixed deadline and the RIAS did not discuss the purpose of the provision. Subsection 14(3) was amended in 2016 to provide for a fixed deadline. The relevant RIAS related to a number of amendments, including subsection 14(3), that were made to improve clarity and consistency of the Regulations. Subsection 14(3) was amended again in 2020 with the effect of slightly extending the deadline. The RIAS for this amendment stated that it was for clarity and consistency.
[29] Since the RIAS for the original version does not state the purpose of subsection 14(3), the RIAS’ as a whole may not provide much assistance in determining the purpose of the provision.
[30] I conclude that these considerations concerning the text, context and purpose of subsection 14(3) may impact the Decision and that if they had been considered by the Tribunal, it may have reached a different result. Accordingly, in accordance with the teaching in Vavilov, the Decision is unreasonable insofar as the Tribunal failed to take these considerations into account.
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