D-13-02: Requirements for the Evaluation and Recognition of Third Party Auditors
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Effective Date: 20 June 2015
This policy directive describes the procedures related to application and official approval of a Third Party Auditor for the purposes of auditing participants registered in a CFIA Forest Product certification program.
Table of Contents
- Amendment Record
- Definitions, abbreviations and acronyms
- 1.0 General Requirements
- 2.0 Specific Requirements
- 3.0 Appendices
This directive will be updated as required. For further information or clarification, please contact the Canadian Food Inspection Agency (CFIA).
Chief Plant Health Officer
Amendments to this directive shall be posted to the CFIA website.
The movement of some plant commodities is controlled by phytosanitary import requirements specified by the importing country or by the Canadian Food Inspection Agency (CFIA), which may require the commodity to be certified before movement. The CFIA has established a number of official Forest Product certification programs based upon systems approaches as an alternative to certification based upon official inspection or testing. These Forest Product certification programs establish standards for specific control activities during the production process to achieve consistent and compliant products. Approved Facilities participating in the program are registered by the CFIA and meet the specific phytosanitary requirements.
In some systems approaches, the CFIA may enter into arrangements with independent third parties to monitor and verify the compliance of approved facilities with the prescribed standards. To provide auditing services for the CFIA Forest Product certification programs, these independent third parties, referred to as Third Party Auditors, must meet specific criteria to enter into an arrangement with the CFIA referred to as a "Third Party Oversight Agreement".
For the purposes of this document, a Third Party Auditor means an organization or an individual approved by the CFIA to perform services on behalf of the CFIA in evaluating and reporting on the acceptability of facilities in meeting the requirements of a CFIA systems approach program.
This document is intended for use by those wishing to become CFIA Approved Third Party Auditors involved in the auditing of approved facilities in CFIA Forest Product certification programs, CFIA inspection staff and any other authorized parties.
ISPM 7: Export Certification Systems
Definitions, abbreviations and acronyms
Definitions for terms used in the present document can be found in the Plant Health Glossary of Terms.
1.0 General Requirements
1.1 Legislative Authority
The Plant Protection Act, S.C. 1990, ch. 22
The Plant Protection Regulations, SOR/95-212
Canadian Food Inspection Agency Fees Notice, Canada Gazette, Part I (as amended from time to time)
Canadian Food Inspection Agency Act, S.C. 1997, ch. 6
1.2 Legal Capacity and Eligibility of the Applicant
An application for approval as a Third Party Auditor can only be submitted by an organization with the legal capacity to contract and that is in good standing.
The application must provide, if requested by the CFIA, any relevant supporting documentation confirming the legal status of the applicant (that may include documentation confirming the laws under which it is registered or incorporated, its registered or corporate name and place of business).
For the purpose of this document, an applicant may NOT be considered to be in good standing if:
- at any time within a period of two (2) years prior to the date of the submission of the application, they have been considered by the CFIA to be in contravention of the Plant Protection Act and/or any of its Regulations, as applicable;
- at the date of the submission of the applicant, they have any "Unacceptable Performance" (as the term is defined in the Third Party Oversight Agreement).
1.3 Responsibility of the Applicant
It is the applicant's responsibility to obtain clarification of the applicable requirements, if necessary, before submitting an application to the CFIA. Enquiries and other communications must be directed only to the CFIA at:
Plant Biosecurity and Forestry Division
59 Camelot Drive
Or by email to: email@example.com
In order for the CFIA to perform a complete review and evaluation of the application, it is the applicant's responsibility to prepare its application and all supporting documents (referred to as "application package") in accordance with all applicable requirements, as further detailed in this document, and to comply with any request or instructions of the CFIA that may be made or issued with respect to this document.
It is the applicant's responsibility to ensure that its application package has been received properly. Acknowledgement of receipt of an application package will not be sent.
Applicants wishing to be approved as a Third Party Auditor must:
- Complete and submit to the CFIA an application package, including a clear statement as to the specific Forest Product Certification program(s) for which authorization is being requested;
- Include in their application package, its documented procedures used in the evaluation of facilities requesting approval and in systematically overseeing approved facilities registered under a Forest Product certification program in accordance with the standards outlined in the relevant CFIA policy directives. These procedures are otherwise referred to as the Applicant's Quality Management System (QMS) which should be documented in the Applicant's Quality Manual (QM) (as these terms are defined in the Third Party Oversight Agreement)
- Applicants must review and be willing to agree to comply with the terms and conditions set under the Third Party Oversight Agreement
The application package for authorization as a Third Party Auditor shall be submitted to the CFIA as indicated in Section 1.3.
The CFIA will review the application package to determine if the applicant meets all the applicable requirements. The application must be completed in full and the applicant's QMS must demonstrate that the applicant meets the minimum requirements set out in Appendix 1. The CFIA shall review the application package against the requirements prescribed in this policy directive and shall prepare a record of evaluation indicating the extent of fulfilment of the requirements that will be provided to the applicant upon completion of the review.
Where this evaluation indicates fulfilment of the requirements, an initial systems audit will be conducted. A system audit is an audit conducted by the CFIA, and/or an Independent Conformity Assessment Body or ICAB (as the term is defined in the Third Party Oversight Agreement), to verify that the applicant complies with the requirements in its practices and activities. If the audit verifies that the applicant is capable of consistently meeting the requirements, the CFIA, and/or an ICAB, will approve the application.
In conducting its evaluation of the application and all supporting documents, the CFIA or the ICAB may in writing request the following:
- seek clarification or verification from the applicant regarding any or all information provided by it;
- take any other appropriate action to validate any information submitted by the applicant.
In the event that the CFIA issues a request to an applicant related to any of the items listed above, the applicant will have a number of days specified in the request to comply with the request. Failure to comply with the request of the CFIA may result in the applicant being rejected.
In the event that an applicant is rejected, the CFIA will inform the applicant and provide an explanation. There could be cases where the CFIA intends to reject an application but is prepared to provide to the applicant an opportunity to make corrections to its original application package or to make representations before making a final decision.
An applicant may contact the CFIA to review or verify the status of its application.
The CFIA will formally approve the applicant as a Third Party Auditor under specified Forest Product Certification Programs once it has determined that the technical requirements set out in this policy directive have been fulfilled and the applicant has signed a Third Party Oversight Agreement.
The CFIA is entitled to make public the authorization, including the scope of the authorization, for example posting the applicant's name as a Third Party Auditor for the purpose of specified Forestry Product Certification Programs on the CFIA website.
1.7 Rights of the CFIA
By submitting an application package, the applicant acknowledges that it is within the CFIA's sole discretion to make final determination on the acceptance or rejection of the applicant as a Third Party Auditor.
2.0 Specific Requirements
2.1 Technical Requirement
The applicant's QM must be presented in a clear and concise manner and in sufficient detail to permit the CFIA, and/or an ICAB, to assess and evaluate the ability of the applicant's QMS to fulfill the minimum technical requirements set out in this section and Appendix 1. All processes must ensure facility conformance with the standards and requirements set out in the relevant CFIA Policy Directives applicable to the Forest Product Certification Program for which the applicant seeks authorization.
- Appendix 1: Third Party Auditor Technical Requirements
- Appendix 2: Third Party Oversight Agreement template
Appendix 1: Third Party Auditor Technical Requirements
|Technical Criteria||Minimum Requirements|
|Organizational Competence||In review of the application package, the CFIA and/or ICAB will be verifying that the applicant's QM:
|Procedures for Evaluation||The QM shall provide a description of the administrative procedures in place to evaluate and approve a facility under an applicable Forest Product Certification program, including processes to:
|Conduct of Audits||The QM must document the applicant's procedures for auditing (as the term in defined in the Third Party Oversight Agreement) that verifies that approved facilities produce products that meet the requirements for certification and maintain conformance with the standards and requirements of the applicable programs.|
|Non-conformance Actions||A detailed description of the procedures that will be followed by the applicant to consistently and effectively address program non-conformances identified at approved facilities must be provided in its QM. The procedure must include steps directed at:
|Record-Keeping||The applicant shall maintain, for a minimum of 6 years, records of:
|Reporting||The applicant shall have a format for an annual report to the CFIA which includes, but not limited to:
The applicant shall have procedures in place to report to the CFIA within 30 days when a facility has withdrawn from a Forest Product Certification Program.
The applicant shall have procedures in place to report to the CFIA on the amount of fees collected from facilities for registration in a Forest Product Certification Program.
The applicant shall have procedures in place to report to approved facilities any and all changes in the applicable Forest Product Certification programs.
Appendix 2: Third Party Oversight Agreement Template
Third Party Oversight Agreement
The Canadian Food Inspection Agency, a body corporate established pursuant to the Canadian Food Inspection Agency Act (Canada), with its headquarters located at 1400 Merivale Road, Tower 1, Ottawa, Ontario, Canada, K1A 0Y9; hereinafter referred to as the "CFIA".
(Name), a body incorporated , head office located at (insert address); hereinafter referred to as "Third Party Auditor.
WHEREAS: The CFIA has the authority as agent for Her Majesty the Queen in right of Canada pursuant to section 14 of the Canadian Food Inspection Agency Act (CFIA Act), to enter into agreements in its own name for the purposes of delivering its mandate.
Whereas: The CFIA is the National Plant Protection Organisation for Canada as identified in Article IV of the International Plant Protection Convention.
Whereas: The CFIA is responsible forthe overall direction and control of the forestry standards and programs developed under the Plant Protection Act and regulations.
Whereas: The Third Party Auditor has submitted an application for recognition under the forestry program(s) outlined in its Quality Management System (QMS) and such QMS has been reviewed and approved by the CFIA.
Now Therefore pursuant to section 14 of the Canadian Food Inspection Agency Act, and in consideration of the covenants, terms and conditions hereinafter contained, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by each of the Parties hereto, the Parties hereby enter into the following agreement.
In this agreement:
"Agreement" means the between this the Third Party Oversight Agreement and includes the Articles of Agreement, all of the annexes and other documents referred to or specified as forming part of the Agreement, all as amended in writing by the agreement of the Parties from time to time.
"Articles of Agreement" means the clauses and conditions incorporated in full text to form the body of the Agreement; it does not include the annexes or any other document.
"Audit" means a systematic examination to determine whether activities and related results comply with the planned arrangements and whether these arrangements are implemented effectively and are suitable to achieve objectives, including but not limited to the inspection of products, equipment, facilities and records; and the testing and monitoring for pests.
"The Canadian Forest Phytosanitary Working Group (CFPWG)" means the committee composed of representatives of the forest products sector which includes at least one member of the following organizations: the Canadian Lumber Standards Accreditation Board, the Canadian Wood Pallet and Container Association, Canada Wood, Natural Resources Canada, the Canadian Food Inspection Agency, and at least two members chosen by the committee who export forest products.
"Confidential Information" includes any financial, commercial, scientific or technical information collected by a Party from a registered facility under this agreement or disclosed by a Party to the other Party under the agreement or any material identified as confidential in this agreement or otherwise identified as such. For greater certainty, Confidential Information does not include:
- information that, at the time of disclosure, is publicly available;
- information that was lawfully known or otherwise lawfully available to the other party;
- information that was previously authorized for disclosure in writing by the other party; and
- information that is required under applicable law or by legal process to be disclosed. The Parties agree to immediately notify the other in writing prior to any such disclosure, if legally possible.
"Independent Conformity Assessment Body" or "ICAB" means an entity which has entered into agreement with the Third Party Auditor and is officially recognized by the CFIA to act on its behalf in assessing the compliance of a Third Party Auditor to the articles and conditions prescribed in this Third Party Oversight Agreement.
"Parties" means the CFIA and the Third Party Auditor and their personnel, respective successors and permitted assigns, and "Party" means either one of them.
"Personnel" includes volunteers, students, agents, officials, employees and contractors.
"Quality Management System" or "QMS" means a method of operation that incorporates an organizational structure, procedures, processes (e.g. quality management system procedure, quality management system manual(s), quality control protocols, audit procedures, etc.) and resources, needed to implement quality management.
"Quality Manuals" or "QM" means a document or a collection of documents which describes the Third Party Auditor's QMS.
"Relevant Policy Directives" means the CFIA documents describing the programs for which the Third Party Auditor has been approved and which are listed in Annex B and may be amended from time to time.
"Unacceptable Performance" is any deficiency in the performance of the Third Party Auditor which is considered by the CFIA as likely to adversely impact the integrity of the programs for which the Third Party Auditor have been approved and which are listed in Annex B.
2. Third Party Auditor's Roles and Responsibilities
2.1. The CFIA authorises the Third Party Auditor for the purposes outlined in this agreement and its QM, which has been approved by the CFIA, or an Independent Conformity Assessment Body, in respect of the programs listed in Annex B.
2.2. The Third Party Auditor is responsible for the evaluation and auditing of the registered facilities that have contracted with it and for ensuring that the requirements of the programs listed in Annex B are consistently adhered to by these facilities.
2.3. The Third Party Auditor shall comply with all the requirements of the following documents:
- the Articles of Agreement;
- the Relevant Policy Directives listed in Annex B;
- its QM; and
- Annex A, Insurance Requirements
2.4. The Third Party Auditor shall operate in accordance with its QMS, which has been approved by the CFIA, or an Independent Conformity Assessment Body, prior to the execution of this agreement.
2.5. The Third Party Auditor will notify the CFIA 30 days in advance of any proposed changes to the operating procedures in its QMS referred to in clause 2.4. The Third Party Auditor will not implement any such proposed amendment to its QMS until it has obtained the prior written approval of the CFIA, or an Independent Conformity Assessment Body.
2.6. Where pursuant to clause 2.5 above, the CFIA or an Independent Conformity Assessment Body, has approved an amendment to the QMS of the Third Party Auditor respecting the conduct of audits or the frequency of audits/inspections, the Third Party Auditor will in writing communicate the amendment to its clients, no less than 30 days in advance of the implementation of any related changes in procedure.
2.7. Where the CFIA intends to amend Relevant Policy Directives in a manner which is likely to require amendments to the approved QMS of the Third Party Auditor, the CFIA will notify the Third Party Auditor no less than 30 days in advance of the implementation of any such policy change. The Third Party Auditor is responsible for amending, or not amending, their QMS in a manner acceptable to the CFIA before the expiration of such 30 days.
2.8. The Third Party Auditor will notify CFIA immediately if a registered facility ceases to operate and/or use the services of the Third Party Auditor.
2.9. The Third Party Auditor shall ensure that all its personnel assigned to undertake work covered by this Agreement possess the qualifications, training, and experience appropriate to carry out the work in accordance with the Agreement. The Third Party Auditor shall ensure that all personnel performing audit functions under this Agreement are knowledgeable of the applicable Canadian laws, regulations, standards, Relevant Policies Directives, interpretations, and instructions related thereto.
3.1. The CFIA, and/or Independent Conformity Assessment Body, have and reserve the right, at any time upon reasonable prior notice, to audit or inspect the premises and records of the Third Party Auditor or the registered facilities it audits/inspects. The CFIA, or an Independent Conformity Assessment Body, may audit the Third Party Auditor or the facilities and products covered by this agreement and its programs to verify, amongst other things, the results obtained by the Third Party Auditor, the accuracy of Third Party Auditor's reporting activities, and that the Third Party Auditor has and can continue to comply with the terms and conditions of this agreement and the obligations in Article 2.
3.2. The Third Party Auditor agrees to provide the CFIA, and/or an Independent Conformity Assessment Body, access to the premises of the Third Party Auditor or to any location, property or premises where any part of this agreement is being carried out to verify compliance with the terms and conditions of this agreement and the Third Party Auditor shall provide all reasonable assistance in this regard.
3.3. The Third Party Auditor shall keep accurate and complete records and supporting documentation relating to the audits performed under this agreement, including but not limited to audit reports, reports of non-conformances or observations, corrective actions ordered, and follow-up audits; the training provided to and qualifications of its personnel. The Third Party Auditor shall not, without the prior written consent of the CFIA, dispose of any such records and supporting documentation for six (6) years.
3.4. All such records and supporting documentation shall at all times during the retention period referred to in article 3.3 be made available to audit and examination by an authorized representative of the CFIA, or an Independent Conformity Assessment Body, who may make copies and take extracts thereof. The Third Party Auditor shall provide all facilities and equipment for such audits and inspections and shall furnish all such information as the representatives of the CFIA, and the Third Party Auditor, may from time to time require with respect to such accounts, records, invoices, and receipts.
3.5. The Third Party Auditor shall, upon request by the CFIA, provide such documents, reports and information or any copies thereof, to verify compliance with the terms and conditions of this agreement.
4.1. The Third Party Auditor will collect from the registered facilities the yearly registration fees owned to the CFIA.
4.2. Payment of the fees collected by the Third Party Auditor under clause 4.1 shall be made directly to the CFIA or to the Independent Conformity Assessment Body who in turn shall make a single payment to the CFIA. Where fees are paid directly to CFIA, these fees shall be paid by cheque payable to Receiver General of Canada on October 1 of each calendar year. Payments shall be based upon the total number of participants registered in the program for which the Third Party Auditor is responsible during the calendar year following the date from which the Third Party Auditor is making payment. The payment will be delivered to the attention of the CFIA Representative specified in article 14.1 of this agreement.
4.3. No fees are to be paid to the Third Party Auditor by the CFIA for the costs incurred or performance of its obligations under this agreement. The CFIA is in no way liable for fees unpaid by the registered facilities.
4.4. Where this agreement is terminated by CFIA pursuant to article 7, the Third Party Auditor will refund all fees or other charges paid to it by the registered facilities proportionately attributable to any period subsequent to such termination, except for the fees they collect on CFIA's behalf.
5.1. The Third Party Auditor will ensure that all records including, but not limited to, records of audits and enforcement actions taken and any other information pertaining to the registered facilities is kept confidential and secure at all times.
5.2. Each Party shall use confidential information only for the purposes outlined in this agreement. Subject to the Access to Information Act, R.S.C. 1985, c. A-1 and the Privacy Act, R.S.C. 1985, c. P-21 and any other pertinent legislation or where otherwise required by law, neither the CFIA nor the Third Party Auditor shall disclose any confidential information without first obtaining the prior written approval for the disclosure from the relevant party.
5.3. If any confidential information is required under applicable law or by legal process to be disclosed, the disclosing Party agrees to immediately notify the other Party in writing prior to any such disclosure, if legally possible.
5.4. The Third Party Auditor acknowledges that CFIA is required to handle the Personal Information and Records in accordance with the provisions of Canada's Privacy Act, Access to Information Act, R.S. 1985, c. A-1, and Library and Archives of Canada Act, S.C. 2004, c. 11. The Third Party Auditor agrees to comply with any requirement established by CFIA that is reasonably required to ensure that CFIA meets its obligations under these acts and any other legislation in effect from time to time.
5.5. The Third Party Auditor acknowledges that its obligations under the agreement are in addition to any obligations it has under the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5, or similar legislation in effect from time to time in any province or territory of Canada. If the Third Party Auditor believes that any obligations in this agreement prevent it from meeting its obligations under any of these laws, the Third Party Auditor must immediately notify CFIA of the specific provision of the agreement and the specific obligation under the law with which Third Party Auditor believes it conflicts.
6.1. This agreement comes into force on the date of signature of the last Party and shall remain in force, for a period of three (3) years unless otherwise terminated.
6.2. At the end of each three-year period, the parties agree to review this agreement. This agreement is automatically extended for an additional three-year term unless one party notifies the other party in writing at least thirty (30) days before the end of the term of its intention to terminate the agreement.
7.1. Any unacceptable performance by the Third Party Auditor is grounds for termination of the agreement by the CFIA.
7.2. Before terminating this agreement pursuant to article 7.1, the CFIA, or the Independent Conformity Assessment Body, will provide the Third Party Auditor a written report of any unacceptable performance which is/are grounds for termination according to article 7.1. Upon receipt of such report, the Third Party Auditor has no later than thirty (30) days to remedy the situation to the satisfaction of the CFIA. Failing which, the CFIA will be entitled to terminate its agreement with the Third Party Auditor and to communicate the same to registered facilities.
7.3. The CFIA, or the Independent Conformity Assessment Body, may, in its sole and unfettered discretion increase the frequency of audits of an Third Party Auditor where there is any unacceptable performance as described in articles 7.1 and 7.2.
7.4. This agreement may be terminated by either Party, for any reason, on three (3) months written notice to the other party.
7.5. Notwithstanding any other provision in this agreement to the contrary, should the CFIA determine in its sole and unfettered discretion that it can no longer support any program for which the Third Party Auditor has been authorized, the CFIA may, by notice in writing, terminate this agreement without cause, penalty, delay or other repercussion whatsoever. Such termination will be immediate unless otherwise specified in the notice.
7.6. The Third Party Auditor shall immediately notify CFIA if proceedings for bankruptcy or insolvency are brought by or against the Third Party Auditor under applicable bankruptcy or insolvency laws.
7.7. Where the Third Party Auditor becomes bankrupt or insolvent, makes an assignment for the benefit of creditors, or takes the benefit of any statute relating to bankrupt or insolvent debtors, or where a receiver is appointed under a debt instrument or a receiving order is made against the Third Party Auditor, or an order is made or a resolution passed for the winding up of the Third Party Auditor, the CFIA may upon giving notice to the Third Party Auditor immediately terminate for default the whole or any part of the agreement.
7.8. Except in the case of an unacceptable performance which is to be dealt with in accordance with the procedures set out in articles 7.1 and 7.2, where either party fails to comply with any provision of this agreement, the other party may upon giving written notice to the first party, cancel and/or terminate for default the whole or any part of this agreement at the expiration of a cure period of 5 business days from the date of notice if the first party has not cured the default to the satisfaction of the other party within that cure period.
8.1. The Third Party Auditor agrees to indemnify and save harmless Canada, the CFIA and their servants and agents from and against any claim, action, suit or other proceeding or any loss or damage for which they or any of them may be liable to another person arising out of the Third Party Auditor's fault in carrying out its obligations under this agreement or any breach of this agreement, except that Canada and the CFIA shall not claim such indemnity to the extent that the loss or damage has been caused by Canada.
9.1. The Third Party Auditor must comply with the insurance requirements specified in Annex A. The Third Party Auditor must maintain the required insurance coverage for the duration of the agreement. Compliance with the insurance requirements does not release Third Party Auditor from or reduce its liability under the agreement.
9.2. The Third Party Auditor is responsible for deciding if additional insurance coverage is necessary to fulfill its obligations under the agreement and to ensure compliance with any applicable law. Any additional insurance coverage is at the Third Party Auditor's expense, and for its own benefit and protection.
9.3. The Third Party Auditor must forward to the CFIA within ten (10) days after the date of coming into force of the agreement, a Certificate of Insurance evidencing the insurance coverage and confirming that the insurance policy complying with the requirements is in force. Coverage must be placed with an Insurer licensed to carry out business in Canada. The Third Party Auditor must, if requested by the CFIA, forward to Canada a certified true copy of all applicable insurance policies.
10. Relationship Between Parties
10.1. Nothing contained in this agreement and the parties relationships or actions is intended to create, shall be considered or construed as creating a partnership or the relationship of principal and agent, lessor and lessee, or of employer and employee between the parties. Neither the Third Party Auditor nor any of its personnel are engaged as employees or agents of CFIA.
10.2. The Third Party Auditor hereby acknowledges and agrees that it or its personnel shall at no time portray or otherwise represent themselves as employees or agents of CFIA.
10.3. Nothing contained in this agreement and the parties relationships or actions can or is intended to create, shall be considered or construed as creating a partnership or the relationship of principal and agent, lessor and lessee, or of employer and employee between the CFIA and the Independent Conformity Assessment Body. Neither the Independent Conformity Assessment Body or any of its personnel are engaged as employees or agents of CFIA.
10.4. The Third Party Auditor hereby acknowledges and understands that the Independent Conformity Assessment Body and its personnel are not employees or agents of CFIA.
11.1. The Third Party Auditor must obtain the CFIA's written consent before subcontracting or permitting the subcontracting of any part of its obligations under the agreement.
11.2. In any subcontract, the Third Party Auditor must ensure that the subcontractor is bound by conditions compatible with and not less favourable to CFIA than the conditions of the agreement.
11.3. Even if CFIA consents to a subcontract, the Third Party Auditor is responsible for performing its obligations under this agreement and CFIA is not responsible to any subcontractor. The Third Party Auditor is responsible for any matters or things done or provided by any subcontractor under the agreement.
12.1. All obligations of confidentiality and all of the provisions concerning indemnity against third party claims, insurance requirements, and accounts and audits shall survive the expiration or early termination of the agreement, as shall any other provision of the agreement, by the nature of the rights or obligations set out therein, which might reasonably be expected to be intended to so survive.
13.1. Where any notice, reporting, request, or waiver is made under or required by this agreement, it shall be in writing and shall be effectively given if personally served on, sent by confirmed facsimile transmission, sent by registered mail or courier or sent by any electronic means, including facsimile and email to the other Parties' representatives as identified in articles 14.1 and 14.2. Any such notice, request or waiver is deemed effective at the time it is sent provided the sender receives confirmation of delivery of the email or facsimile.
14.1. For the purposes of this agreement, the CFIA's representative for management of the agreement and for the notification purposes set in article 13.1 shall be:
Title of Designate:
or such other person or persons that the CFIA may designate to the Third Party Auditor in writing from time to time.
14.2. For the purposes of this agreement, the Third Party Auditor's representatives for management of the agreement and for the notification purposes set in article 14.1 shall be:
Title of Designate:
or such other person or persons that the Third Party Auditor may designate to the CFIA in writing from time to time.
14.3. For the purposes of this agreement, the CFIA's representative for technical matters shall be:
Title of Designate:
or such other person or persons that the CFIA may designate to the Third Party Auditor in writing from time to time.
14.4. For the purposes of this agreement, the Third Party Auditor's representatives for technical matters shall be:
Title of Designate:
or such other person or persons that the Third Party Auditor may designate to the CFIA in writing from time to time.
15. Conflict Of Interest
15.1. The Third Party Auditor agrees that it has disclosed such information to the CFIA as is necessary to allow the CFIA to evaluate whether any real, potential or apparent conflict(s) of interest could arise on account of this agreement.
15.2. The Third Party Auditor agrees that it has an on-going obligation to disclose any new information or circumstance that is possible to give rise to any real, potential or apparent conflict of interest in order for CFIA to evaluate the same.
15.3. The Third Party Auditor agrees to any modification, amendment or termination of this agreement if it is determined subsequent hereto by the CFIA, in its sole and unfettered discretion, that this agreement could give rise to a real or potential conflict of interest for the CFIA or the Third Party Auditor.
15.4. The Third Party Auditor represents and covenants that no bribe, gift, benefit, nor other inducement has been nor shall be paid, given, promised or offered directly or indirectly to any official or employee of Canada or to a member of the family of such a person, with a view to influencing the entry into this agreement or in the administration of this agreement.
15.5. The Third Party Auditor acknowledges that individuals who are subject to the provisions of the Conflict of Interest Act, 2006, c. 9, s. 2, the Conflict of Interest Code for Members of the House of Commons, the Values and Ethics Code for the Public Service or all other codes of values and ethics applicable within specific organizations cannot derive any direct benefit resulting from the agreement.
16. Official languages
16.1. The Third Party Auditor shall ensure that in carrying out its obligations under this agreement, that:
- it provides it services to registered facilities in English or French in accordance with the Official Languages Act (R.S.C., 1985, c. 31 (4th Supp.)) and Official Languages (Communications with and Services to the Public) Regulations.; and
- that quality of the Third Party Auditor's communications and services in each of the English and French languages is comparable to the quality of the Third Party Auditor's communications and services in the official languages.
17. Intellectual Property
17.1. The CFIA is the owner of any and all patents, copyright, industrial design, trade-mark or other intellectual property, intellectual property rights or other similar property rights and of any and all assets subject to such property rights that have been derived from any and all prior work and research conducted by the CFIA ("CFIA IP"). The Third Party Auditor agrees that it will have no right to any CFIA IP, except as mutually agreed upon by the Parties, in writing.
17.2. The Third Party Auditor is the owner of any and all patents, copyright, industrial design, trade-mark or other intellectual property, intellectual property rights or other similar property rights and of any and all assets subject to such property rights that have been derived from any and all prior work and research conducted by the Third Party Auditor ("The Third Party Auditor IP"). The CFIA agrees that it will have no right to any the Third Party Auditor IP, except as mutually agreed upon by the Parties, in writing.
17.3. All technical information, training materials and documents, designs, methods, processes and any other asset whatsoever including any copyright, trademark, or industrial design or other intellectual property, intellectual property rights or other similar property rights which are conceived, developed, first reduced to practice or writing or acquired by the CFIA and/or the Third Party Auditor in the carrying out of this Agreement ("Arising IP") will be and remain the property of the party that conceives, develops, first reduces to practice or writing or acquires it, or, if developed jointly shall be jointly owned.
17.4. In the event that either party, its employees, agents, contractors, subcontractors becoming aware of any threatened, potential or actual infringement of the intellectual property, intellectual property rights or other similar property rights of the other party, such party will promptly inform the other party. The parties hereto will consult each other and give to one another, free of any charge, information or advice which may be helpful for the purpose of protecting and enforcing their respective title to and claims in said intellectual property, intellectual property rights or other similar property rights provided that in the case of the CFIA, such information and/or advice does not contradict any of the confidentiality provisions of this Agreement or the Access to Information Act, as amended or Privacy Act, as amended.
18. CFIA Property
18.1. All CFIA Property must be used by the Third Party Auditor solely for the purpose of the agreement and remains the property of CFIA. The Third Party Auditor must maintain adequate accounting records of all CFIA Property and, whenever feasible, mark it as being the property of CFIA.
18.2. The Third Party Auditor must take reasonable and proper care of all CFIA Property while it is in its possession or subject to its control. The Third Party Auditor is responsible for any loss or damage resulting from its failure to do so other than loss or damage caused by ordinary wear and tear.
18.3. All CFIA Property must be returned to CFIA on demand. All scrap and all waste materials, articles or things that are CFIA must, unless provided otherwise in the agreement, remain the property of CFIA and must be disposed of only as directed by CFIA.
19.1. This agreement shall not be assigned, in whole or in part, by either Party without the prior written consent of the other Party. Any purported assignment made without prior written consent is void and of no effect. No assignment of this agreement shall relieve a Party from any obligation under this agreement or impose any liability upon the other party, without the prior written consent of the other Party.
20. Legal Action
20.1. In the event of any threatened or actual legal proceedings against either Party in connection with this agreement, said Party shall promptly inform the other in writing and shall include therein as detailed an account as legally possible of the threatened or actual legal proceedings.
20.2. The Parties shall consult each other and give to one another, free of any charge, information which may be helpful for such purpose outlined in article 20.1 provided that such information does not contradict the Access to Information Act, the Privacy Act, and any other pertinent legislation or confidentiality agreement.
20.3. The Parties shall jointly decide on the steps to be taken in these circumstances. However, neither Party shall bind or commit the other Party to any course of action which involves liability for legal costs, expenses or damages.
20.4. Should the Parties fail to agree, within a reasonable time, on any steps to be taken either Party shall be at liberty to take or defend any proceedings alone at its own expense and shall be entitled to retain anything awarded to it by court.
21.1. No condoning, excusing or overlooking by either of the Parties of any default by the other Party at any time or times in performing or observing either of the Parties' respective obligations and/or responsibilities under this agreement will operate as a waiver, renunciation, surrender or otherwise affect the rights of the Parties in respect of any continuing or subsequent default. No waiver of these rights shall be inferred from anything done or omitted by the Parties except by an express waiver in writing.
22. Regulatory Action
22.1. The Third Party Auditor acknowledges and agrees that the CFIA may be required to take regulatory action under any or all of the Acts it administers and/or enforces or under any other applicable law on the basis of any information which the CFIA or its employees may receive or obtain by any means and that such action may be taken by or on behalf of the CFIA.
23.1. The Third Party Auditor hereby authorizes the CFIA to publish, or otherwise communicate its name, address and telephone number for the purposes of informing the public of this recognition.
24. Dispute Resolution
24.1. In the event of any dispute or material disagreement regarding the interpretation or application of any provision of this Agreement, either party may give the other party written notice setting out the nature of the dispute.
24.2. The parties agree to refer the dispute to the CFPWG within 30 days after the notice provided in article 24.1. Where discussions between officials of the CFPWG have within 30 days failed to resolve the matter, the parties agree that the matter will be referred to the President of CFIA and (name of applicant).
24.3. Nothing in this section shall prevent either Party from proceeding with termination of this Agreement under article 7.9.
25. Entire Agreement
25.1. This agreement constitutes the entire agreement between the Parties on the subject matter hereof and supersedes all prior negotiations, communications and understandings and other arrangements relating to it of any nature whatsoever, verbal or written.
26. Independent Legal Advice
26.1. Each Party acknowledges and agrees that it has been given full opportunity to seek independent legal advice and if it chose to avail itself of said opportunity, had independent legal advice to the full extent deemed necessary by it, and that it has not acted under any duress or undue influence in the negotiating, preparation and execution of the agreement.
27.1. The agreement may be amended on mutual consent, in writing, of the President of the CFIA and (name of applicant). Such changes will come into effect on the date of last signature.
28.1. The Third Party Auditor shall ensure that all applicable federal and provincial laws are complied with.
28.2. If any term of this agreement or the application thereof shall be held invalid or unenforceable by an arbitrator or by a court of competent jurisdiction, the remainder of this Agreement shall be unaffected and each remaining term, condition and provision of this Agreement shall be valid and be enforceable to the fullest extent permissible by law.
28.3. This agreement shall be interpreted, and the relations between the parties determined, in accordance with the laws in force in the province of Ontario.
29. Force Majeure
29.1. Each Party shall not be liable in any way whatsoever for any delay or default in performing any of its obligations under this agreement or for failure to perform any of its obligations under this agreement if such delay, default or failure to perform is caused by conditions beyond the Party's control including, but not limited in any way whatsoever to, Acts of God, Government restrictions, wars, insurrections, labour action both legal and/or illegal, food safety, plant or animal health emergencies or changes in Canadian legislation in force.
29.2. Each Party shall promptly notify in writing the other Party of the occurrence of any situation outlined in article 30.1.
In Witness Whereof this agreement has been executed by the authorized representatives of the Parties in duplicate on the dates indicated below, the later of which is deemed the effective date of this agreement.
Signed in duplicate on this the day of (month) of (year)
For the Canadian Food Inspection Agency:
Signed in duplicate on this the XX day of (month, year)
For the (name of third party auditor):
Annex A: Insurance Requirements
- The Third Party Auditor must obtain Commercial General Liability Insurance, and maintain it in force throughout the duration of the agreement, in an amount usual for an agreement of this nature, but for not less than $2,000,000 per accident or occurrence and in the annual aggregate.
- The Commercial General Liability policy must include the following:
- Additional Insured: Canada is added as an additional insured, but only with respect to liability arising out of the Third Party Auditor's performance of the agreement. The interest of Canada should read as follows: Canada, as represented by the Canadian Food Inspection Agency.
- Bodily Injury and Property Damage to third parties arising out of the operations of the the Third Party Auditor.
- Products and Completed Operations: Coverage for bodily injury or property damage arising out of goods or products manufactured, sold, handled, or distributed by the Third Party Auditor and/or arising out of operations that have been completed by the Third Party Auditor.
- Personal Injury: While not limited to, the coverage must include Violation of Privacy, Libel and Slander, False Arrest, Detention or Imprisonment and Defamation of Character.
- Cross Liability/Separation of Insureds: Without increasing the limit of liability, the policy must protect all insured parties to the full extent of coverage provided. Further, the policy must apply to each Insured in the same manner and to the same extent as if a separate policy had been issued to each.
- Blanket Contractual Liability: The policy must, on a blanket basis or by specific reference to the agreement, extend to assumed liabilities with respect to contractual provisions.
- Employees and, if applicable, Volunteers must be included as additional Insured.
- Employers' Liability (or confirmation that all employees are covered by Worker's compensation (WSIB) or similar program).
- Broad Form Property Damage including Completed Operations: Expands the Property Damage coverage to include certain losses that would otherwise be excluded by the standard care, custody or control exclusion found in a standard policy.
- Notice of Cancellation: The Insurer will endeavour to provide the CFIA thirty (30) days written notice of policy cancellation.
- If the policy is written on a claims-made basis, coverage must be in place for a period of at least 24 months after the completion or termination of the agreement.
- Owners' Protective Liability: Covers the damages that the Third Party Auditor becomes legally obligated to pay arising out of the operations of a subcontractor.
- Non-Owned Automobile Liability - Coverage for suits against the Third Party Auditor resulting from the use of hired or non-owned vehicles.
- Litigation Rights: Pursuant to subsection 5(d) of the Department of Justice Act, S.C. 1993, c. J-2, s.1, if a suit is instituted for or against Canada which the Insurer would, but for this article, have the right to pursue or defend on behalf of Canada as an Additional Named Insured under the insurance policy, the Insurer must promptly contact the Attorney General of Canada to agree on the legal strategies by sending a letter, by registered mail or by courier, with an acknowledgement of receipt to:
For the province of Quebec, send to:
Director Business Law Directorate,
Quebec Regional Office (Ottawa)
Department of Justice
284 Wellington Street, Room SAT-6042
Ottawa, Ontario K1A 0H8
For other provinces and territories, send to:
Senior General Counsel,
Civil Litigation Section,
Department of Justice
234 Wellington Street, East Tower
Ottawa, Ontario K1A 0H8
A copy of the letter must be sent to the CFIA. Canada reserves the right to co-defend any action brought against Canada. All expenses incurred by Canada to co-defend such actions will be at Canada's expense. If Canada decides to co-defend any action brought against it, and Canada does not agree to a proposed settlement agreed to by the Third Party Auditor's insurer and the plaintiff(s) that would result in the settlement or dismissal of the action against Canada, then Canada will be responsible to the Third Party Auditor's insurer for any difference between the proposed settlement amount and the amount finally awarded or paid to the plaintiffs (inclusive of costs and interest) on behalf of Canada.
- The Third Party Auditor must obtain Errors and Omissions Liability (a.k.a. Professional Liability) insurance, and maintain it in force throughout the duration of the agreement, in an amount usual for an agreement of this nature but for not less than $1,000,000 per loss and in the annual aggregate, inclusive of defence costs.
- If the policy is written on a claims-made basis, coverage must be in place for a period of at least 24 months after the completion or termination of the agreement
- The following endorsement must be included: Notice of Cancellation: The Insurer will endeavour to provide the CFIA with thirty (30) days written notice of cancellation.
Annex B: Relevant Policy Directives
D-13-01 – The Canadian Heat Treated Wood Products Certification Program (HT Program)
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