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New timelines and requirements for appeals coming before the Canada Agricultural Review Tribunal (CART)

Although the Safe Food for Canadians Regulations (SFCR) came into force on January 15, 2019, certain requirements may apply in 2020 and 2021 based on food commodity, type of activity and business size. For more information, refer to the SFCR timelines.

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1.0 Purpose

The purpose of this directive is to advise staff of changes made to the rules that govern the conduct of the Canada Agriculture Review Tribunal (CART). The new Rules of the Review Tribunal (Canada Agricultural Review Tribunal) (Rules) bring a number of changes to the requirements and timelines for providing documents to the CART and regulated parties (applicants).

2.0 Background

An applicant who wishes to appeal a Notice of Violation (NOV), commonly referred to as an Administrative Monetary Penalty or AMP, or a Minister's decision (a request made to the Minister to overturn a NOV or to enter into a compliance agreement), must make a request for review to the CART.

On May 8, 2015, new Rules were registered and took immediate effect. The new Rules change the way the CART manages these requests for review and place new obligations on the Canadian Food Inspection Agency (CFIA) and applicants.

3.0 Directive

Effective immediately, all staff involved in providing documents to the CART related to reviews of NOVs and reviews of Minister's decisions must ensure that they are aware of and are adhering to the new timelines and requirements.

The Rules having the most impact on the way in which the CFIA treats requests for review are presented below. For ease of reference, they have been grouped by those that directly impose timelines or processes on the CFIA, the CART and finally, applicants.

3.1 Reviews of NOVs

3.1.1 Changes to CFIA timelines and processes

Rule 30: Within 15 days after the CART has sent the CFIA a copy of the acknowledgment of receipt of a request for review, the CFIA must file with the CART the certificate of service of the NOV as well as a statement indicating either that no penalty was levied or that the penalty remains unpaid if one was assessed.

Rules 8 and 31: If the applicant does not specify a language within 15 days of the receipt of the request for review, the language of the proceedings will be deemed to be the language in which the appeal was submitted to the CART.The choice of official language will determine if the CFIA's case file, including documents and exhibits, needs to be translated, as well as the language for all further oral and written communication between the applicant, the CFIA and the CART.

Rule 33: The CFIA has 30 days from the day after the request for review is deemed admissible by the CART to serve its report and any additional documents on the applicant. The report must contain all relevant information about the violation, all supporting documents and, if applicable, written confirmation of the CFIA's refusal to enter into a compliance agreement. The CFIA must also file a copy of all documents served on the applicant to the CART within this timeframe and must include proof of service of the report and documents on the applicant.

Rule 36: Once the CFIA submits its report to the applicant and the CART, the CFIA will not be permitted to make any further submissions.

Rule 37: If the applicant has chosen a hearing, the CART must provide at least 30 days' notice of the hearing date.

Rule 21: Affidavit evidence (i.e., written sworn statements) may be submitted to the CART. The affidavit must be served on the applicant and filed with the CART within 30 days after the time limit expires for the regulated party to file its written submission if the case is proceeding by written submission, or at least 15 days before the hearing date. If intending to present affidavit evidence, the CFIA must ensure the person who provided the sworn statement is available for cross-examination. If a cross-examination takes place, the transcript must be filed with the CART within seven days after the day it occurs.

Rule 38: The CFIA must prepare and provide a list of witnesses to the applicant and file a copy with the CART at least 20 days before the hearing date.

Rule 40: Should the CFIA wish to make a request to postpone or adjourn a hearing, it must be made at least eight days before the hearing date.

3.1.2 Changes to CART timelines and processes:

Rule 29: The CART will advise the CFIA that it has received a request to review an NOV and forward it a copy of the request within seven days of receipt.

Rule 32: The CART has 60 days from the day after it sends the acknowledgement of receipt of request for review to rule on its admissibility. Once it makes its ruling, the CART must send its decision to the applicant and the CFIA without delay.

3.1.3 Changes to timelines and processes for applicants:

Rule 31: The applicant is required to submit additional information to the CART within 15 days after making the request for review. If it has not already done so, the applicant must provide the CART, among other information, its full contact information and that of its representative or legal counsel, if applicable. It must also provide its reasons for requesting the review of the facts and must select the official language to be used during proceedings.

Rule 36: The applicant has 30 days from the day after the report from the CFIA is served to make its submissions, in accordance with Rule 35. Once the applicant makes their submission or chooses not to make a submission during the 30-day period, no further submissions will be allowed and the CART will proceed. During this time period, the applicant must also choose whether they wish to proceed by written submission or by hearing, if they have not already done so.

Rule 37: If the applicant chooses to proceed by written submissions, the CART will render a decision after the time limits for filing submissions expire. If the applicant has chosen a hearing, the CART must provide at least 30 days' notice of the hearing date.

Rule 21: The applicant must ensure that persons who provide sworn statements on its behalf are available for cross-examination by the CFIA. The timing of cross-examination will be by mutual consent or decided by the CART if consent cannot be reached. If a cross-examination takes place, the transcript must be filed with the CART within seven days after the day it occurs.

Rule 38: The applicant must prepare and provide a list of witnesses to the CFIA and file a copy with the CART at least 20 days before the hearing date.

Rule 40: The applicant must make a request to adjourn or postpone a hearing at least eight days before the hearing date.

3.2 Reviews of Minster's decisions (appeals of NOVs or refusals to enter into Compliance Agreements)

The time lines and requirements associated to reviews of Minister's decisions are generally the same as for reviews of NOVs conducted by the CART. However, some are notably different:

Rule 44: Neither the CFIA nor the regulated party may present new evidence unless the CART grants permission.

Rule 46: When initially advised by the CART of a request to review a Minister's decision, the CFIA only needs to supply the CART with proof that the Minister's decision subject to review was served on the regulated party. This has to be done within 15 days after the day the CART has sent the acknowledgement of receipt, stating it has received a request to review the Minister's decision.

Rule 49: If the CART rules the appeal admissible, the CFIA is required to serve the regulated party with a certified copy of all documents and exhibits relevant to the appeal in its possession. In addition, the CFIA must file with the CART a certified copy of all documents and exhibits served on the regulated party, including proof the documents were served and, if applicable, written confirmation of the CFIA's refusal to enter into a compliance agreement. Both requirements are to be met within 30 days after the day on which the CART decides that the appeal is admissible.

3.3 Additional Guidance for Inspection Staff

Clarification of certain ambiguities in the new Rules will be sought and further guidance will be issued as soon as possible.

A copy of the Rules can be found at the following link: Rules of the Review Tribunal.

Staff are directed to contact the Operational Policy and Systems Directorate by email at cfia.gems-sgoe.acia@canada.ca with any questions related to this Directive or the new CART Rules.

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