OG/OO-24783 - Operational guideline: Referring non-compliance for potential enforcement through issuance of a Notice of Violation under the Administrative Monetary Penalty (AMP) regime

1.0 Purpose

To provide guidance to inspectors on when to consider referring non-compliance for potential enforcement through issuance of a Notice of Violation (NOV) under the Administrative Monetary Penalty (AMP) regime. A NOV may be issued when a regulated party is not compliant with a contravention designated as a violation under Schedule 1 of the Agriculture and Agri-Food Administrative Monetary Penalties Regulations.

2.0 Potential use

AMPs may be an appropriate enforcement response to non-compliance with designated provisions of the following regulations:

The expansion of AMPs to designated provisions of the SFCA and SFCR provides the CFIA with an additional enforcement option to manage non-compliance detected during food-related inspection activities. This will allow designated persons within the CFIA to exercise their discretion on a case-by-case basis to issue a notice of violation (NOV) with warning or penalty for violations of the listed provisions of the SFCA and Regulations. The Standard regulatory response process (SRRP) provides guidance on when an AMP may be considered as an enforcement response option.

3.0 Authorities

4.0 Acronyms

AAAMPA: Agriculture and Agri-Food Administrative Monetary Penalties Act
AAAMPR: Agriculture and Agri-Food Administrative Monetary Penalties Regulations
AMP: Administrative monetary penalty
CVS: Compliance verification system
DSDP: Digital Service Delivery Platform
EIS: Enforcement and investigation services
FNNC: Final Notice of Non-Compliance
INCR: Inspector Non-Compliance Report
IR-CAR: Inspection report - corrective action request
LoNC: Letter of Non-Compliance
MwtRP: Meeting with the Regulated Party
NOV: Notice of violation
SFCA: Safe Food for Canadians Act
SFCR: Safe Food for Canadians Regulations
SIP: Standard inspection procedure
SRRP: Standard regulatory response process

5.0 Background

5.1 Authority to issue administrative monetary penalties

The Agriculture and Agri-Food Administrative Monetary Penalties Act (AAAMPA) provides the authority for a person designated under that Act to issue a Notice of Violation (NOV) for a violation under a variety of provisions that are listed under Schedule 1 of the Agriculture and Agri-Food Administrative Monetary Penalties Regulations (AAAMPR).

The authority to issue a NOV is found under subsection 7(2) of the AAAMPA:

7(2) If a person designated under section 6 has reasonable grounds to believe that a person has committed a violation, the designated person may issue, and shall cause to be served on the person, a notice of violation that names the person, identifies the violation and
- (a) contains a warning that the person has committed a violation; or
- (b) sets out
  - (i) the penalty, established in accordance with the regulations, for the violation that the person is liable to pay,
  - (ii) particulars concerning the time for paying and the manner of paying the penalty, and
  - (iii) subject to the regulations, a lesser amount that may be paid in complete satisfaction of the penalty if paid within the time and manner specified in the notice.

The AAAMPR designate violations that may be subject to a NOV and determine the gravity levels as minor, serious or very serious, setting base penalty amounts that may range from $500 to $10,000.

A designated official for the purpose of subsection 7(2) of the AAAMPA is a person or class of person designated pursuant to section 6 of the AAAMPA:

Section 6 of the AAAMPA: The Minister may designate persons, or classes of persons, who are authorized to issue notices of violation.

5.2 Relationship between the CFIA administrative monetary penalty regime and inspection processes

the issuance of an IR-CAR or inspection report does not constitute an enforcement response to non-compliance. Consequently, the issuance of a NOV is independent of the actions undertaken by the CFIA under the Compliance Verification System (CVS) or Standard Inspection Procedure (SIP).
the evaluation of the harm or potential harm associated with the regulated party's non-compliance as well as the regulated party's compliance history and intent are key factors in the choice of enforcement response, not the ability of the regulated party to implement corrective actions.
this may result in a NOV being issued regardless of whether or not the regulated party has implemented corrective actions as the NOV is issued in response to the non-compliance independently of whether a corrective action has been taken. More specifically, a NOV cannot be issued for failing to implement corrective actions in response to an inspection report that has been issued by CFIA.
The CFIA may however consider issuing a NOV (or other escalated enforcement response) if a non-compliance is found after the date referred to in the inspection report (IR-CAR or DSDP inspection report). Non-compliance at this stage of the inspection process is considered a separate or repeated instance of non-compliance.
based on the evaluation of the non-compliance by using the enforcement matrix found in section 5.2.1 – Enforcement process of the Standard regulatory response process (SRRP), CFIA inspection staff may decide to refer non-compliance of a designated provision listed in Schedule 1 of the AAAMPR. The person designated to issue a NOV may decide to issue a NOV with warning, which may be appropriate when responding to a first violation when a NOV with penalty may be considered too severe. Alternatively, in other cases, a NOV with penalty may be justified.

6.0 Procedures

When non-compliance with a provision listed in Schedule 1 of the AAAMPR is identified, the inspector should complete the inspection, gather all relevant information, and depending on the situation, consider taking immediate control action(s) to mitigate risk. Such actions may include seizing and detaining products, placing products under quarantine or immediately stopping an activity.

6.1 Determine if an AMP may be an appropriate enforcement response

Once the inspection has been completed and if applicable, necessary control actions are in place, the inspector can refer to the steps outlined in section 5.2.1 – Enforcement process of the Standard regulatory response process (SRRP) to determine the range of potential appropriate enforcement responses. The choice is based on the harm or potential harm of the non-compliance as well as the regulated party's compliance history and intent.

6.2 Assemble the information gathered supporting non-compliance

If the SRRP enforcement matrix suggests an AMP as a potential enforcement response, the inspector will assemble copies of all the pertinent information outlining non-compliance to create an inspector non-compliance report (INCR) referral package. The Inspector non-compliance report form (CFIA/ACIA 5393) should be used as a cover sheet for the INCR referral package.

The inspector should also include details of the regulated party's compliance history during the previous five year period where the CFIA has:

issued a letter of non-compliance (LoNC)
issued a final notice of non-compliance (FNNC), prior to the coming into force of the SFCR
conducted a meeting with a regulated party (MwtRP) regarding non-compliance, and/or
suspended and/or cancelled licences or suspended authorisations

6.3 Submit INCR referral package for initial review

The INCR referral package will be reviewed prior to being forwarded for enforcement consideration. Follow established referral processes for your area.

The person(s) responsible for reviewing the INCR referral package will either:

approve the file for enforcement consideration, or
provide feedback to the inspector as to why the request for enforcement was not approved and provide guidance as to what action is to be taken next

The person(s) responsible for reviewing the INCR referral package evaluate the facts of the non-compliance using section 5.2.1 – Enforcement process of the Standard regulatory response process (SRRP).

6.4 Designated person reviews the facts and determines if an AMP is an appropriate enforcement response

A designated person, after having evaluated all the facts and having determined that there are reasonable grounds to believe that a violation has been committed and the elements of the violation have been met on a balance of probabilities standard, may exercise their discretion under subsection 7(2) of the AAAMPA to issue an NOV with a warning, or an NOV with a penalty. If the facts of the file warrant it, an alternate enforcement approach may be selected. Again, section 5.2.1 – Enforcement process of the Standard regulatory response process (SRRP) is consulted to assist in the selection of an alternate enforcement response.

6.5 Designated person issues the NOV

Only CFIA designated persons who have been trained and designated to issue NOVs under the AMP regime may do so. An NOV is considered issued once the designated person has signed and dated the NOV form and is ready to be served (delivered) once it has been issued.

6.6 Serving an NOV

The CFIA designated person serving the NOV on the regulated party does so according to the requirements of section 8 of the AAAMPR using the Certificate of Service (CFIA/ACIA 5197) and the NOV cover sheet (see Annex A).

For general inquiries related to this operational guidance document, please follow established communication channels, including submitting an electronic Request for Action Form (e-RAF).

ANNEX A: Notice of Violation (NOV) Cover sheet

IMPORTANT INFORMATION - PLEASE READ CAREFULLY

You are being served with a Notice of Violation issued pursuant to subsection 7 (2) of the Agriculture & Agri-food Administrative Monetary Penalties Act.

A Notice of Violation is a legal process. You have both legal rights and legal obligations with respect to service of this Notice of Violation. Your legal rights and obligations are detailed on the reverse side of the notice.

It is important that you read the option information and option instructions on the back of the notice. You must choose an option and follow the instructions precisely to exercise your rights.

This Notice of Violation is deemed to be served on, pursuant to Sections 8 and 9 of the Agriculture and Agri-food Administrative Monetary Penalty Regulations

INFORMATION IMPORTANTE - VEUILLEZ LIRE ATTENTIVEMENT

Vous recevez le présent procès-verbal en vertu du paragraphe 7(2) de la Loi sur les sanctions administratives pécuniaires en matière d'agriculture et d'agroalimentaire.

L'imposition d'un procès-verbal est une procédure juridique. Vous avez des droits et des obligations juridiques relativement à la signification du présent procès-verbal. Ceux-ci sont expliqués en détail au verso de l'avis.

Il est important que vous lisiez les informations et instructions concernant ces options au verso de l'avis, car vous devez choisir une de ces options et suivre minutieusement les instructions s'y rattachant pour exercer vos droits.

Le présent procès-verbal est réputé avoir été notifié le , conformément aux articles 8 et 9 du Règlement sur les sanctions administratives pécuniaires en matière d'agriculture et d'agroalimentaire.

Date modified:: 2020-01-14

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