Rules of the Review Tribunal (Canada Agricultural Review Tribunal)

SOR/2015-103

CANADA AGRICULTURAL PRODUCTS ACT

Registration 2015-05-08

Rules of the Review Tribunal (Canada Agricultural Review Tribunal)

P.C. 2015-565 2015-05-07

Pursuant to subsection 8(3)Footnote a of the Canada Agricultural Products ActFootnote b, the Review Tribunal, continued by subsection 4.1(1)Footnote c of that Act, makes the annexed Rules of the Review Tribunal (Canada Agricultural Review Tribunal).

Ottawa, March 27, 2015

DONALD BUCKINGHAM
Chairperson of the Review Tribunal

His Excellency the Governor General in Council, on the recommendation of the Minister of Agriculture and Agri-Food, pursuant to subsection 8(3)Footnote a of the Canada Agricultural Products ActFootnote b, approves the making of the annexed Rules of the Review Tribunal (Canada Agricultural Review Tribunal) by the Review Tribunal.

PART 1Application and Interpretation

Application

Marginal note:Inconsistency with Acts or regulations

 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

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

Marginal note:General principle

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

Marginal note:Procedural matters not provided for

 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

Marginal note:Calculation of time limits

 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.

Marginal note:Extension of time limits

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

PART 2Rules Applicable to All Proceedings

Official Languages

Marginal note:Official languages — Tribunal proceedings

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

Marginal note:Communications with Tribunal
  •  (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.

  • Marginal note: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.

  • Marginal note: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.

  • Marginal note: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

Marginal note:Dispensing with compliance

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

Marginal note:Gap in evidence or non-compliance
  •  (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.

  • Marginal note: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

Marginal note:Confidential material
  •  (1) On request, the Tribunal may order that documents and exhibits that are to be filed be treated as confidential.

  • Marginal note: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.

  • Marginal note: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

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

Marginal note:Request for review

 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.

Marginal note:Requirement to provide current contact information

 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.

Marginal note:Manners of filing with Tribunal
  •  (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.

  • Marginal note: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.

Marginal note:Service on any party
  •  (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.

  • Marginal note: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.

  • Marginal note: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.

Marginal note:Registered mail or courier
  •  (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.

  • Marginal note: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.

  • Marginal note: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

Marginal note:Individuals
  •  (1) An individual may act in person or be represented by legal counsel or by another duly authorized representative.

  • Marginal note:Corporations, partnerships or associations

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

  • Marginal note: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.

  • Marginal note: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

Marginal note:Proceedings public
  •  (1) Proceedings of the Tribunal are public.

  • Marginal note: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.

Marginal note:Remote conference

 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.

Marginal note:Affidavit evidence
  •  (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.

  • Marginal note: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.

  • Marginal note: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.

Marginal note:Taking notice

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

Hearings

Marginal note:Order of proceeding

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

Marginal note:Exclusion of witnesses
  •  (1) The Tribunal may order witnesses to be excluded from the hearing while the other witnesses are called to give evidence.

  • Marginal note:Recording of hearings

    (2) Hearings before the Tribunal may be recorded.

Marginal note:Oath or solemn affirmation
  •  (1) A person to be examined on an oral examination must take an oath or make a solemn affirmation before being examined.

  • Marginal note: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

Marginal note:Parties raising bias or conflict of interest
  •  (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.

  • Marginal note: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).

  • Marginal note: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.

Marginal note:Tribunal member raising bias or conflict of interest

 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 3Review of Notices of Violation

Marginal note:Application

 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.

Marginal note:Acknowledgement of receipt

 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.

Marginal note:Tribunal file

 Within 15 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.

Marginal note:Addendum

 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;

  • (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.

Marginal note:Order on admissibility
  •  (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.

  • Marginal note: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.

Marginal note:Minister’s report

 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 supporting documents, and, if applicable, a written confirmation of the Minister’s refusal 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, any supporting documents and, if applicable, the written confirmation of the refusal set out in paragraph (a), along with proof that the report, supporting documents and, if applicable, the written confirmation of the refusal set out in paragraph (a) have been served on the applicant, with the Tribunal.

Marginal note:Acknowledgement of receipt

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

Marginal note:Additional submissions

 Within 30 days after the day on which the report is served, the applicant must

  • (a) indicate to the Tribunal whether they wish to proceed by way of oral hearing or by way of written submissions; and

  • (b) file any additional submissions in relation to the report with the Tribunal.

Marginal note:No further submissions

 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.

Marginal note:Decision or notice of hearing

 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.

Marginal note:List of witnesses

 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 number.

Marginal note:Failure to appear

 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.

Marginal note:Postponement and adjournment
  •  (1) The Tribunal may postpone or adjourn a hearing on any terms that it considers appropriate.

  • Marginal note:Delay

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

Marginal note:Decision after hearing or later

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

Marginal note:Decision to be sent

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

PART 4Review of Minister’s Decisions

Marginal note:Application

 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.

Marginal note:No new evidence

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

Marginal note:Acknowledgement of receipt

 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.

Marginal note:Tribunal file

 Within 15 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.

Marginal note:Addendum

 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.

Marginal note:Decision on admissibility
  •  (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.

  • Marginal note: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.

Marginal note:Documents relating to the decision

 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 or exhibits relevant to the request for review that are in the possession of the Minister whose decision is subject to the review;

  • (b) file with the Tribunal the certified copy of all documents or exhibits 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 written confirmation of the Minister’s refusal to enter into a compliance agreement pursuant to a request 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, along with the reasons why they cannot be reproduced; and

    • (ii) file the original documents or exhibits with the Tribunal along with proof that the notice of filing and reasons were served on the applicant.

Marginal note:Acknowledgement of receipt

 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.

Marginal note:Request for oral hearing and additional reasons

 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 or by way of written submissions; and

  • (b) file any additional reasons in response to the documents and exhibits filed by the Minister or his or her delegated representative with the Tribunal.

Marginal note:No further reasons

 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.

Marginal note:Decision or notice of hearing

 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.

Marginal note:Failure to appear

 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.

Marginal note:Postponements and adjournments
  •  (1) The Tribunal may postpone or adjourn a hearing on any terms that it considers appropriate.

  • Marginal note:Delay

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

Marginal note:Decisions after hearing or later

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

Marginal note:Decision to be sent without delay

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

Repeal

 [Repeal]

Coming into Force

Marginal note:Registration

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

Date modified: