Date: 20060214
Docket: T-1847-04
Ottawa, Ontario, the 14th day of February 2006
PRESENT:
THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
MIEL LABONTÉ INC.
Applicant
and
THE ATTORNEY GENERAL OF CANADA
and
THE
CANADIAN FOOD INSPECTION AGENCY
Respondents
REASONS FOR ORDER AND ORDER
[1]
This is an
application for judicial review of a decision by the Minister of Agriculture
and Agri-Food Canada (the Minister) on April 3, 2004, ordering the recall of a
lot of honey (production code 033196) marketed by Miel Labonté Inc. (the
applicant). According to the applicant, the Minister did not have the right,
based on the information at his disposal, to make the disputed order pursuant
to subsection 19(1) of the Canadian Food Inspection Agency Act (CFIAA).
The applicant further alleged that the Minister and the Canadian Food
Inspection Agency (CFIA) failed to observe their duty of fairness.
[2]
The
applicant is asking this Court to:
- quash the Minister’s order;
- rule that the CFIA and the
Minister had no reasonable grounds for believing that the natural liquid honey
from blueberry blossoms bearing production code 033196 (the applicant’s honey)
posed a risk to public health;
- rule that the CFIA and the
Minister violated their duty of fairness by not allowing the applicant to be
informed in advance of the reasons relied on by the CFIA, the scientific data
at its disposal and the method of analysis which it was applying, and to lead
expert evidence in rebuttal.
CONCLUSION
[3]
The
application for judicial review is dismissed.
FACTS
[4]
Before
ruling on the points at issue, it is important to describe the facts which gave
rise to this application.
[5]
The
applicant has been operating a honey business for over 30 years. In the course
of its business, it has been importing honey from Argentina since 2002. On May
12, 2003, it ordered 38,464 kg of honey from that country through the Odem
company, worth $137,048.77. The honey was to be used to produce blueberry
blossom honey, by being mixed with Canadian honey. An analysis was conducted by
a laboratory with which the applicant dealt, J.R. Laboratories Inc. (the
J.R. Laboratories analysis) before the transaction was concluded.
[6]
In fall
2003 doubts began to surface in business circles about the possible presence of
nitrofuran in honey from some countries, including Argentina. The CFIA
published several notices during the course of March 2004 about the possible
presence of nitrofuran in the honey. First, there was a notice to the industry
dated March 2004 (there is no exact date – [translation] “March 2004
Notice to Industry” – at page 45 of respondents’ record). That notice read as
follows:
[translation]
Please be advised that the Canadian Food
Inspection Agency (CFIA) has initiated a residue monitoring program for
nitrofurans in honey. Nitrofurans are banned in Canada and many other
countries. Foods contaminated with nitrofuran drugs are not considered safe for
human consumption.
The CFIA will sample both domestic and
imported honey shipments, during March of 2004, for contamination by nitrofuran
residues. Testing methods will be sensitive to a contamination level at least
as low as 0.5 ppb. In the event that test results reveal higher than detectable
limits, the CFIA will undertake appropriate follow-up inspection an
d compliance measures, including a possible
recall of contaminated product.
[7]
Another
notice was sent out on March 13, 2004 regarding honey bearing another brand ([translation] “March 13, 2004 Notice” –
at page 21 of respondents’ record).
[8]
Finally, a
notice was released on the Internet on March 23, 2004, part of which follows ([translation] “March 23, 2004 Notice” –
at page 26 of respondents’ record):
[translation]
UPDATE - HEALTH
HAZARD ALERT
VARIOUS IMPORTED HONEY PRODUCTS MAY CONTAIN
NITROFURANS
OTTAWA, March 23, 2004 - The Canadian Food
Inspection Agency (CFIA)
is warning the public not to consume various imported honey because these
products may contain nitrofurans.
. . .
Nitrofurans are antimicrobial drugs which
are banned for use in Canada in food producing animals. Consumption of foods
contaminated with nitrofurans may pose a human health risk related to the
inherent toxicity of the drug and the potential to cause allergies. There have
been no reported illnesses associated with the consumption of this product.
. . .
[9]
On March
26, 2004, the CFIA’s Veterinary Drugs Directorate concluded in a report
prepared at the CFIA’s request (“Health Risk Assessment of March 26, 2004”)
that the honey contaminated by nitrofuran residues posed a risk to human health
on account of its carcinogenic effects and that the sale of this honey should
be prohibited. The same report recommended the recall and destruction of the
contaminated products.
[10]
An
analysis of a sample of the Applicant’s Product was conducted by a CFIA laboratory
on April 2, 2004 ([translation]
“Analysis of Applicant’s Product on April 2, 2004”). That analysis confirmed
the presence of nitrofuran in the applicant’s honey. At 8:20 pm on
April 2, the CFIA informed Jean-Marc Labonté (Mr. Labonté), the
applicant’s president. The parties’ versions of the facts thereafter differ
slightly.
[11]
According
to Mr. Labonté’s affidavit, on the evening of April 2, 2004 (a Friday), the
CFIA required the applicant to call back its employees immediately and warn all
businesses to take the product off the shelves, failing which the Minister
would make a recall order. The applicant protested and asked for time to
discuss the matter and produce control tests. On April 4, 2004, a CFIA
inspector went to Mr. Labonté’s residence to serve a signed recall notice on
him and the applicant was given 24 hours to proceed to a recall.
[12]
The
respondents’ version is as follows. It appeared from the CFIA’s Incident Report
([translation] “Incident Report”)
that Mr. Labonté was called at 8:20 pm on April 2 and told about a
possible recall and the reasons for the contemplated decision. A copy of the
analysis of the applicant’s product on April 2, 2004 was sent to Andrew Bond,
the applicant’s employee, at 9:27 pm on April 2, 2004. At 8:45 pm,
Mr. Labonté was asked to prepare a recall notice and forward it to the CFIA for
review and issuance to distributors. In the respondents’ submission, the
applicant’s president refused to cooperate. As the Office of Food Safety and
Recall (OFSR) had concluded that a Class I recall should be ordered, Mr.
Labonté was so notified at 8:50 pm. At that time, he refused to comply with the
CFIA’s request and stated that future communications should be made through his
lawyer. A telephone call between counsel followed, during which the CFIA again
inquired about measures the applicant wanted to take to recall the products.
Counsel for the applicant confirmed his client’s position, challenging the
CFIA’s conclusions and repeating its intention not to voluntarily recall the
honey.
[13]
On April
3, 2004, the president of the CFIA sent the Minister a request in writing ([translation] “Request to Minister of
April 3, 2004”) asking him to recall the liquid natural blueblerry blossom
honey marketed by the applicant under production code 033196 and contained in
500 g pots. This request, entitled “Request for Mandatory Recall of Labonté
Brand Honey”, explained the nature of the risk, the nature of the product and
the circumstances having led the CFIA to request a recall. On the same day, as
mentioned earlier, the Minister ordered a recall pursuant to this request in a
signed recall notice (“Recall Notice of April 3, 2004”). On the morning of
April 4, Mr. Labonté was given a copy of his notice.
[14]
After the
Recall Notice of April 3, 2004 was published, several follow-up measures were
taken to ensure that the recall was done correctly (at pages 94 et seq.
of the respondents’ record). The Incident Report indicates that the CFIA
contacted several distributors during April and inquired as to the steps taken
to contact distributors and retailers. A request to check the effectiveness of
the recall was made to the Ministère de l’Agriculture, des Pêcheries et de
l’Alimentation du Québec (MAPAQ).
ISSUES
[15]
Essentially,
the applicant made three arguments. For a clear understanding of these issues, each of these
arguments must be dealt with separately.
[16]
The first
argument related to subsection 19(1) of the CFIAA: the Minister had to believe
on reasonable grounds that the applicant’s honey posed a risk to public health.
The applicant argued this was a question of jurisdiction, relying on
paragraph 21 of the affidavit of Jean-Louis Michaud, a CFIA food safety
and recall coordinator, which read as follows:
[translation]
Such a
compulsory recall order is one of the exceptional measures to be considered
when a business refuses to cooperate with the CFIA, as by refusing and/or
neglecting to voluntarily recall from the market a product which, in the
opinion of the Minister of Agriculture and Agri-Food and the experts at the
CFIA and Health Canada, poses a risk to public health.
In my opinion, this question should not be viewed as one of
jurisdiction. The CFIAA stated that a recall may be ordered if there are
reasonable grounds to believe that a product poses a risk to public health. The
above-cited paragraph from Mr. Michaud’s affidavit simply adds that it is the
CFIA’s practice to initially seek the cooperation of a person selling,
marketing or distributing a product before ordering a recall. That does not
amount to an admission that the Minister ignored the test laid down in
subsection 19(1) of the CFIAA and replaced it by another test, namely a refusal
to cooperate. In other words, the fact that the CFIA tried to cooperate with
the applicant does not mean that the Minister did not also have reasonable
grounds to believe that the honey posed a risk to public health. For these
reasons, the question is not one of jurisdiction and thus is not subject to the
standard of correctness. Instead, a pragmatic and functional analysis and the
decisions filed by the respondents at the hearing suggest that great restraint
is called for, as explained below.
[17]
The
applicant advanced a second argument. It maintained that the Minister did not
choose the appropriate action to be taken in the circumstances. It emphasized
the very low concentration of nitrofuran which it said existed in its honey and
added that, according to some evidence in the record, the product only posed a
health risk if it was consumed in very large quantities or over a very long
period. In other words, the applicant said the situation was not urgent and, in
the circumstances, the Minister acted with undue haste.
[18]
Finally,
the last argument advanced related to procedural fairness: the issue here is
whether the Minister had a duty to act fairly toward the applicant and whether
that duty was complied with.
[19]
In view of
the foregoing, this application raises the three following issues:
- Did the Minister have
reasonable grounds to believe, as required by subsection 19(1) of the CFIAA,
that the applicant’s honey posed a risk to public health?
- Did the Minister err in
ordering a recall of the applicant’s honey?
- Did the Minister violate his
duty of fairness toward the applicant?
APPLICABLE LEGISLATION
[20]
Subsection
19(1) of the CFIAA reads as follows:
|
19.
(1) Where the Minister believes on reasonable grounds that a product
regulated under an Act or provision that the Agency enforces or administers
by virtue of section 11 poses a risk to public, animal or plant health,
the Minister may, by notice served on any person selling, marketing or
distributing the product, order that the product be recalled or sent to a
place designated by the Minister.
|
19.
(1) S’il a des motifs raisonnables de croire qu’un produit régi par une loi
ou disposition dont l’Agence est chargée d’assurer ou de contrôler
l’application aux termes de l’article 11 présente un risque pour la
santé publique ou celle des animaux ou des végétaux, le ministre peut, par
avis signifié à la personne qui vend, met en marché ou distribue ce produit,
en ordonner le rappel ou son envoi à l’endroit qu’il désigne.
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OBJECTIONS TO EVIDENCE
ANALYSIS
1. Standard of review
[22]
Two
distinct standards of review apply in the case at bar. The first standard
applies to the Minister’s decisions under subsection 19(1) of the CFIAA.
The second standard of review applies to the choice of the applicable
procedural guarantees.
[23]
As the
issue of the scope of the procedural guarantees is simply one of law, no
restraint is required. Accordingly, the standard of correctness applies. There
is no need to discuss this point in further detail.
[24]
As far as
I know, the issue of the standard of review applicable to decisions by the
Minister under section 19(1) of the CFIAA has not been examined by the courts.
To begin with, therefore, for purposes of comparison, we must see whether some
ministerial or administrative decisions which have been the subject of judicial
review may be similar to the decision at issue herein. Secondly, we must
conduct a pragmatic and functional analysis, according to the leading cases of Pushpanathan
v. Canada, [1998] 1 S.C.R. 982, and Dr. Q v. College of Physicians and
Surgeons of British Columbia, [2003] 1 S.C.R. 226.
(a) Case law
[25]
Two cases
submitted by counsel for the respondents at the hearing are relevant as
examples. These are BC Landscape & Nursery Assn. v. Canada (Attorney
General), [2000] F.C.J. No. 1148, and Friends of Point Pleasant Park v.
Canada (Attorney General), [2000] F.C.J. No. 2012.
[26]
First, BC
Landscape & Nursery Assn. involved the judicial review of decisions of
the Minister of Agriculture and Agri-Food to refuse to exercise the discretion
conferred on him by section 3 of the Plant Protection Regulations,
SOR/95-212 (PPR). This power is similar to the power exercised in the case at
bar and there is some similarity between subsection 19(1) of the CFIAA and
section 3 of the PPR. That section reads as follows:
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3. Where, after a pest risk assessment,
the Minister or an inspector believes on reasonable grounds that a thing is a
pest, or a thing or place is or could be infested or constitutes or could
constitute a biological obstacle to the control of a pest, and the Minister
determines that, in the circumstances, it is necessary and cost-justifiable
to take pest control measures, an inspector shall, as appropriate in the
circumstances for the purpose of eradicating the pest or preventing its
spread, take one or more of the actions that the inspector is authorized to
take under the Act or any regulation or order made thereunder.
|
3. Lorsque le ministre ou l’inspecteur,
à la suite d’une analyse du risque phytosanitaire, a des motifs raisonnables
de croire qu’une chose soit est un parasite, soit est parasitée ou
susceptible de l’être, qu’un lieu est infesté ou susceptible de l’être ou que
la chose ou le lieu constitue ou peut constituer un obstacle biologique à la
lutte antiparasitaire et lorsque le ministre établit que, compte tenu des
circonstances, des mesures de la lutte antiparasitaire sont nécessaires et
justifiables quant aux coûts, l’inspecteur prend une ou plusieurs des mesures
que la Loi ou ses textes d’application l’autorisent à prendre et qui sont
indiquées dans les circonstances pour l’élimination des parasites ou pour la
prévention de leur propagation.
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[27]
In BC
Landscape & Nursery Assn., Gibson J. made a distinction between the
preliminary question of whether the decision-maker should act and the question
of what action should be taken. At paragraph 21, he wrote:
I am
satisfied that section 3 of the Plant Protection Regulations provides
for two separate but interrelated decisions. The first is a threshold test. It
involves first, a “pest risk assessment”. Where a pest risk assessment is
carried out, the Minister or an inspector is then required to determine whether
he or she believes, on reasonable grounds, that a thing, presumably the subject
of the pest risk assessment, is a pest, or a thing or place is or could be
infested or a thing or place constitutes or could constitute a biological
obstacle to the control of a pest. Once the first two stages of the threshold
test are completed, and presumably assuming positive determinations in respect
of each of those stages, as a third stage, the Minister must make a
determination as to whether or not, in the circumstances, “. . . it is
necessary and cost-justifiable to take pest control measures”.
[28]
It is
worth noting that the arguments advanced by the applicant corresponded to the
distinction made by Gibson J.. The applicant argued, firstly, that the Minister
had no reasonable grounds to take any action whatever, and secondly, that even
if he had such grounds, the action taken, namely a swift recall of the honey,
was excessive. However, that has no bearing on the standard of review, which is
the same in both cases. Gibson J. undertook a general pragmatic and functional
analysis and ruled that the applicable standard of review was that of the
patently unreasonable decision. At paragraph 31, he wrote:
I am
satisfied that the words of section 3 of the Plant Protection Regulations
invest considerable discretion in the Minister at the level of the threshold test.
It is his or her responsibility to make a determination whether or not, in the
circumstances, it is necessary and cost-justifiable to take pest control
measures. It is his or her determination of what are the relevant circumstances
that impact on, when it is necessary and when it is cost-justifiable. Those
words leave considerable discretion to the Minister. Only after that
discretionary determination does it fall to an inspector to make a choice “as
appropriate in the circumstances”, presumably in his or her opinion and, as
here, after consultation with the Minister, of the appropriate actions. There
is no privative clause in law relating either to the threshold decision or the
choice among actions available to an inspector. Both the Minister and the inspector
must be considered to have special expertise in the area of their
responsibilities. The purpose of section 3 of the Regulations is clearly
to facilitate the Minister and his or her officials in carrying out their
responsibilities under the International Plant Protection Convention, as well
as under the Constitution of Canada. As such, considerable flexibility for the
Minister and inspectors is warranted and significant deference is appropriate
subject to limited judicial control and more significant political
accountability. The nature of the problem in question is not limited in
geographical terms either to a single province or to Canada as a whole. It has
significant international implications. Once again, I conclude that this augurs
in favour of significant deference. It is against these factors outlined in
paragraphs 57 to 61 of the Baker decision, and the facts of this matter,
that I conclude that the appropriate standard of review is patent
unreasonableness.
[29]
The second
case relevant to the case at bar is Friends of Point Pleasant Park. That
case involved the exercise of a power of the same type, namely the power of the
Minister of Agriculture and Agri-Food or a CFIA inspector to issue a Notice to
Dispose for trees suspected of being infested by a parasite. The power is set
out in subsection 27(1) of the PPR, which reads as follows:
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27. (1) Where the
Minister or an inspector believes on reasonable grounds that a thing is a
pest, is or could be infested or constitutes or could constitute a biological
obstacle to the control of a pest, any inspector may require the owner or
person having the possession, care or control of the thing to dispose of it.
|
27.
(1) Lorsque le ministre ou l’inspecteur a des motifs raisonnables de croire
qu’une chose soit est un parasite, soit est parasitée ou susceptible de
l’être, soit encore constitue ou peut constituer un obstacle biologique à la
lutte antiparasitaire, l’inspecteur peut exiger de son propriétaire ou de la
personne qui en a la possession, la responsabilité ou la charge des soins
qu’il en dispose, notamment par destruction.
|
[30]
At
paragraph 50, Mackay J. also ruled that the applicable standard was that of
patent unreasonableness:
The inspector's decision concerning the
action to be taken, in this case to issue and enforce a Notice to Dispose, is a
matter of discretion involving judgment in light of the evidence available that
a pest exists, or a thing is or is suspected to be infested and the risk it may
present. That decision is one to which the Court will give deference unless it
be patently unreasonable, in the sense that there is no evidence to support the
decision taken. That is the standard for assessment which Mr. Justice Gibson
reached in B.C. Landscaping and Nursery Association for the decision in
question in that case concerning the action to be taken.
[31]
In short,
the salient point in BC Landscape & Nursery Assn. and Friends of
Point Pleasant Park is the following. The decision by which the Minister or
the CFIA concludes that action should be taken in the public interest, and the
decision by which they choose which action is necessary, are discretionary
decisions calling for a high degree of judicial restraint (the patent
unreasonableness standard). This is confirmed by the pragmatic and functional
analysis, and several of the comments made by Gibson J. in BC Landscape
& Nursery Assn. may be followed in relation to subsection 19(1) of
the CFIAA.
(b) Pragmatic
and functional analysis
[32]
We should recall the factors that must be taken
into account in determining the applicable standard of review. In Dr. Q v.
College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R.
226, at paragraph 26, McLachlin C.J. wrote:
In the pragmatic
and functional approach, the standard of review is determined by considering
four contextual factors — the presence or absence of a privative clause or
statutory right of appeal; the expertise of the tribunal relative to that of
the reviewing court on the issue in question; the purposes of the legislation
and the provision in particular; and the nature of the question — law, fact, or
mixed law and fact. The factors may overlap. The overall aim is to discern
legislative intent, keeping in mind the constitutional role of the courts in
maintaining the rule of law . . . The virtue of the pragmatic and functional
approach lies in its capacity to draw out the information that may be relevant
to the issue of curial deference.
[33]
The first factor
concerns the review mechanism set out in the Act. There is no privative clause
here. In Pushpanathan v. Canada [1998] 1 S.C.R. 982, at paragraph 30,
however, Bastarache J. wrote that: “the absence of a privative clause does
not imply a high standard of scrutiny, where other factors bespeak a low
standard”.
[34]
The second
factor is the decision-maker’s expertise. The CFIA is responsible for the
administration of several statutes dealing with agriculture, safety, breeding,
public health and food quality. However, it is not the Agency that assesses
whether there are reasonable grounds to believe that a product poses risks to
public health, but the Minister himself or herself.
[35]
The third
factor, Parliament’s intention (the purpose of the legislation), seems to the
Court to be conclusive. The wording of subsection 19(1) of the CFIAA is wide
and grants the Minister a broad discretion. It is clear from reading this
section and the Act as a whole that the purpose of Parliament was to give
priority to public health by allowing products to be recalled as soon as there
are “reasonable grounds” to believe that they pose a risk to public health. The
degree of certainty required is not high: Parliament did not require the
existence of overwhelming evidence. The power in question is discretionary and
calls for restraint. Further, I note the use of the words “reasonable grounds
to believe”, “risk” and “may”, which all suggest a high degree of discretion. I
further note the wording of the preamble to the CFIAA, which emphasizes the
public health and consumer protection purposes:
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Attendu :
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. . .
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[…]
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WHEREAS
the consolidation of those services under a single food inspection agency
will contribute to consumer protection and facilitate a more uniform and
consistent approach to safety and quality standards and risk-based inspection
systems . . .
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que le regroupement de
ces services sous les auspices d’une agence unique contribuera à la
protection des consommateurs et facilitera l’application uniforme et
coordonnée des normes de salubrité, de sécurité et de qualité et des méthodes
d’inspection fondées sur les risques . . .
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[36]
Finally,
the nature of the question must be taken into account. In my opinion, the
question is largely factual as no point of law has to be decided pursuant to
subsection 19(1) of the CFIAA, save the application of the “reasonable grounds”
standard.
[37]
Accordingly,
my pragmatic and functional analysis leads me to rule that the standard of
review applicable to a decision by the Minister under subsection 19(1) of
the CFIAA is that of patent unreasonableness.
2. Did
the Minister have reasonable grounds to believe, as required by
subsection 19(1) of the CFIAA, that the applicant’s honey posed a risk to
public health?
[38]
According
to the applicant, [translation]
“there was no serious indication of a health risk” and the Minister could not [translation] “objectively and
reasonably believe” that the applicant’s honey posed a health risk. In
particular, it stressed the following passage from the Health Risk Assessment
of March 26, 2004, at page 7:
The residues present in the imported honey
are very low and hence the increased risk associated with consumption of this
honey is also expected to be low. However, the risk to human health increases
if the contaminated product is consumed for a prolonged period of time.
[39]
The
applicant further submitted that the Health Risk Assessment of
March 26, 2004 indicated that, in order to be at risk, a person would
have to consume 170 g of this honey daily. It stressed that the Health Risk
Assessment of March 26, 2004 did not indicate that any study had been done on
the applicant’s honey.
[40]
Further,
the applicant sought to challenge the reliability of the method used by the
CFIA. In its opinion, no reliable and exact method existed in 2003, and still
to this day none exists for detecting nitrofuran residues in food products.
According to Mr. Labonté’s affidavit, 17 international laboratories are working
on the development of such a method and the CFIA has refused to participate in this
effort. The applicant further noted that a method which could detect
concentrations on the order of 0.5 ppb to 1.0 ppb would have to be considered
suspect and the CFIA’s method of analysis has not been published. The applicant
concluded by arguing that the information given to the Minister was incomplete,
not scientifically reliable and not checked by the CFIA and that the best
scientific sources consider that the presence of nitrofuran in honey at a 1 ppb
level does not constitute a health risk justifying a recall order. In the
applicant’s submission, a very large quantity of nitrofuran would have to be
consumed to pose any risk, or it would have to be consumed regularly over a
very long period of time.
[41]
The
respondents submitted that the Minister had reasonable grounds to believe that
the applicant’s honey posed a public health risk. In this respect, they relied
essentially on the Health Risk Assessment of March 26, 2004, which they said
concluded that the presence of nitrofuran in honey products posed a public
health risk. The respondents stressed the passage of the report at page 7
cited earlier (see paragraph 38 hereof) and the following passage, at page 1:
All nitrofurans are banned for use in food
producing animals in Canada . . . since they have been found to be mutagenic
and carcinogenic in laboratory test animals. Thus, any residues of these drugs
that can be detected and confirmed by the best available analytical methodology
is considered a violation of the Food and Drugs Act and Regulations.
[42]
The
respondents also relied on several public health risk notices broadcast on the
Internet, on the March 2004 Notice to Industry and on the Analysis of the
Applicant’s Product on April 2, 2004, which confirmed the presence of
nitrofuran in the sample of the honey marketed by the applicant.
[translation]
37. This
method is based on a method developed in the Netherlands where a CFIA chemist
went to and received training. The method is used in the European Union. Like
Health Canada, as mentioned in paragraph 33 hereof, CFIA scientists consider
that if the method permits detection of 5-nitrofuran the result should be
reported.
38. Method
ACC-070 is contained in the compilation “Additives and Chemical Contaminants
Analytical Methods Manual”. It is public, available on request and has been
widely distributed in the industry. It has also been the subject of scientific
presentations, in particular by the distribution of documents and audio-visual
presentations to affected clientele, including Miel Labonté Inc.
Evidence of the publication of this method of analysis and
the holding of information seminars is found in the record (see at pages 63 et
seq. of the applicant’s record). The Powerpoint presentation on the subject
at Dorval on March 19, 2004 appears at pages 72 et seq. and the exchange
of e-mails on this matter at pages 80 et seq..
[44]
After
reviewing all the evidence available to the Minister at the time he made his
decision, I am of the view that, based on that evidence, he had reasonable
grounds to believe that the liquid natural blueberry blossom honey bearing
production code 033196 posed a public health risk. In my opinion, as Mackay J.
stated in Friends of Point Pleasant Park, supra, at paragraph 49,
“reasonable grounds” means that “some evidence . . . must exist to support the
decision”. In the case at bar, the Minister had ample evidence that could
convince him there was a public health risk.
[45]
To begin
with, as indicated above, several notices were sent out during March. Those
notices, which were before the Minister at the time he made his decision,
demonstrate the genuine concern of the CFIA about the possible presence of
nitrofuran in the honey and show that it took steps to inform the industry and
the public about this. There was the March 2004 Notice to Industry (at page 45
of respondents’ record), the Notice of March 13, 2004 and, finally, the Notice
of March 23, 2004. Taken as a whole, such notices could be taken into
account by the Minister in deciding whether reasonable grounds existed to
believe that the applicant’s honey posed a public health risk.
[46]
In
addition, the central element on which the Minister’s decision was based was
the Request to the Minister of April 3, 2004, as well as the evidence in the
record which, taken as a whole, could give the Minister reasonable grounds to
believe that the applicant’s honey posed a public health risk. In particular,
that very letter states the following at paragraph 3:
Nitrofurans
are a class of antimicrobial drugs banned for use in Canada in food producing
animals. Health Canada considers that the honey product poses serious risk to
consumers and assigned the product a Class I Health Risk. In particular, Health
Canada has advised the CFIA of its concerns with nitrofurans in food products
due to their potential carcinogenicity and genotoxicity.
[47]
The
Minister also had available the Health Risk Assessment of
March 26, 2004, the salient points of which I set out below (at pages
1, 5, 7 and 8):
(p. 1) All
nitrofurans are banned for use in food producing animals in Canada . . . since they
have been found to be mutagenic and carcinogenic in laboratory test animals.
Thus, any residues of these drugs that can be detected and confirmed by the
best available analytical methodology is considered a violation of the Food
and Drugs Act and Regulations.
. . .
(p. 5) Risk Assessment
Potential health hazard in this case
involves the exposure of humans to residues of nitrofuran drugs that are not
considered safe for human consumption. While there are health benefits to the
treated animals associated with the use of antimicrobials under certain conditions,
drug residues may pose health risks related to the inherent toxicity of the
drug and the potential to cause allergies.
Nitrofurantoin (macrodantin, furadantin,
others) is currently being used in human medicine (both adults and children) in
Canada, the USA, and other countries for the treatment of urinary tract
infections caused by bacteria. The most common adverse effects with this
drug in humans are digestive system-related, such as nausea, vomiting, and
diarrhea. Various hypersensitive reactions occasionally occur. Potential health
risk concerns in humans are related to the carcinogenic and mutagenic potential
of the drug.
. . .
(p. 7) Hazard Characterization
Nitrofuran residues in food derived from
contaminated honey may pose health risks related to the inherent toxicity of
the drug and the potential to cause allergies.
Nitrofurans are a group of chemicals
classified as cancer-causing and consequently have been banned for use in
food-producing animals in most countries of the world including Canada. This
complete ban is in line with the opinion of the Codex Alimentarius, the United
Nations body which sets international food safety standards. Nitrofurazone and
furazolidone were discussed at the 40th Joint FAO/WHO Expert
Committee on Food Additives (JECFA) and extensive data were available for
assessment for both compounds. In essence, JECFA concluded that
nitrofurazone was carcinogenic whereas furazolidone was genotoxic as well as
carcinogenic. In addition, nitrofurazone was observed to cause severe
arthropathy in experimental animals.
Nitrofurans are banned for use in
food-producing animals in Canada. This is because of health concerns including
a possible increased risk of cancer in humans through long-term dietary
exposure.
The residues present in the imported honey
are very low and hence the increased risk associated with consumption of this
honey is also expected to be low. However, the risk to human health increases
if the contaminated product is consumed for a prolonged period of time.
In view of the fact that Canada has banned
the use of nitrofurans in food producing animals, any residue of nitrofurans
present in food are a violation under Section 4 of the Food and Drugs
Act based on Section B.01.048 and C.01.610.1 of the Food
and Drug Regulations.
(p. 8) In recognition of the risk to human health
(although small) from exposure to carcinogenic compounds through consumption of
nitrofuran residue contaminated honey from Australia, or any other country, sale
of contaminated honey in Canada should be precluded.
[Emphasis
added.]
[48]
The
Minister’s record also contains the Analysis of the Applicant’s Product on
April 2, 2004. That Analysis contains, inter alia, the
following:
[translation]
CANADIAN FOOD
INSPECTION AGENCY
ANALYSIS
REPORT
FOOD PRODUCT
SAMPLING SUMBISSION FORM
. . .
Product:
Honey
Lot: 033196
Unit of
measure: 500g.
Common name:
Honey from blueberry blossoms
Brand:
Labonté
Method:
ACC-070
Nitrofuran
Screen – Positive
Test
assessed: Unsatisfactory
Method:
ACC-070
3 Amino-2-oxazolidinone
(AOZ) 0.5 ppb
Analysis
result: Unsatisfactory
Job
authorized: 2004/04/02 Authorized by: Fred Butterworth
Job assessed:
Unsatisfactory
Comment: AOZ
present
[49]
The Food
and Drugs Act, R.S.C. 1985, c. F-27, the Food and Drugs Regulations,
C.R.C., c. 870, and the Honey Regulations, C.R.C., c. 287, also
have to be considered. The relevant provisions of those documents read as
follows:
|
Food and Drugs Act
|
Loi sur les aliments et drogues
|
|
. . .
|
[…]
|
|
2.
In this Act,
|
2.
Les définitions qui suivent s’appliquent à la présente loi :
|
|
"food"
includes any article manufactured, sold or represented for use as food or
drink for human beings, chewing gum, and any ingredient that may be mixed
with food for any purpose whatever;
|
« aliment »
Notamment tout article fabriqué, vendu ou présenté comme pouvant servir de
nourriture ou de boisson à l’être humain, la gomme à mâcher ainsi que tout
ingrédient pouvant être mélangé avec un aliment à quelque fin que ce soit.
|
|
. . .
|
[…]
|
|
4.
No person shall sell an article of food that
|
4.
Il est interdit de vendre un aliment qui, selon le cas :
|
|
(a)
has in or on it any poisonous or harmful substance;
|
a) contient une substance toxique ou délétère,
ou en est recouvert;
|
|
(b)
is unfit for human consumption;
|
b) est impropre à la consommation humaine;
|
|
(c)
consists in whole or in part of any filthy, putrid, disgusting, rotten,
decomposed or diseased animal or vegetable substance;
|
c) est composé, en tout ou en partie, d’une
substance malpropre, putride, dégoûtante, pourrie, décomposée ou provenant
d’animaux malades ou de végétaux malsains;
|
|
(d)
is adulterated; or
|
d) est falsifié;
|
|
(e) was
manufactured, prepared, preserved, packaged or stored under unsanitary
conditions.
|
e) a été
fabriqué, préparé, conservé, emballé ou emmagasiné dans des conditions non
hygiéniques.
|
|
. . .
|
[…]
|
|
Food and Drugs Regulations
|
Règlement sur les aliments et drogues
|
|
. . .
|
[…]
|
|
B. 01. 048. (1) No
person shall sell
|
B.
01. 048. (1) Il est interdit de vendre :
|
|
(a)
any animal intended for consumption as food if any product containing any
drug listed in subsection (2) has been administered to the animal;
|
a) des animaux qui sont destinés à être consommés
comme aliments et auxquels a été administré un produit contenant une drogue
mentionnée au paragraphe (2);
|
|
(b) any meat,
meat by-products, eggs or milk intended for consumption as food and derived
from an animal if any product containing any drug listed in subsection (2)
has been administered to that animal; or
|
b) de la
viande, des sous-produits de viande, des oeufs ou du lait qui sont destinés à
être consommés comme aliments et qui proviennent d’un animal auquel a été
administré un produit contenant une drogue mentionnée au paragraphe (2);
|
|
(c)
any meat, meat by-products, eggs or milk that contains any residue of any
drug listed in subsection (2).
|
c) de la viande, des sous-produits de viande,
des oeufs ou du lait contenant des résidus d’une drogue mentionnée au
paragraphe (2).
|
|
(2)
The drugs referred to in subsection (1) are
|
(2)
Les drogues visées au paragraphe (1) sont :
|
|
. . .
|
[…]
|
|
(b)
a 5-nitrofuran compound;
|
b) un composé de 5-nitrofurane;
|
|
. . .
|
[…]
|
|
C. 01. 610. 1 No person shall sell a drug for
administration to animals that produce food or that are intended for
consumption as food if that drug contains
|
C. 01. 610. 1 Il est interdit de vendre
une drogue pour administration aux animaux qui produisent des aliments ou qui
sont destinés à être consommés comme aliments si elle contient :
|
|
. . .
|
[…]
|
|
(b)
a 5-nitrofuran compound;
|
b) soit un composé de 5-nitrofurane;
|
|
. . .
|
[…]
|
|
Honey Regulations
|
Règlement sur le miel
|
|
2. (1) In these
Regulations,
|
2. (1) Dans le
présent règlement,
|
|
"contaminated",
in respect of honey, means containing a chemical, drug, food additive, heavy
metal, industrial pollutant, ingredient, medicament, microbe, pesticide,
poison, toxin or any other substance not permitted by, or in an amount in
excess of limits prescribed under, the Canadian Environmental Protection
Act, the Food and Drugs Act and the Pest Control Products Act;
(contaminé)
|
« contaminé »
Qualifie le miel qui contient un produit chimique, une drogue, un additif
alimentaire, un métal lourd, un polluant industriel, un ingrédient, un
médicament, un microbe, un pesticide, un poison, une toxine ou toute autre
substance qui est interdite sous le régime de la Loi canadienne sur la
protection de l’environnement, de la Loi sur les aliments et drogues
et de la Loi sur les produits antiparasitaires, ou dont la
quantité excède les limites de tolérance prescrites sous le régime de ces
lois. (contaminated)
|
|
. . .
|
[…]
|
|
4. 1 (1) Subject to
subsections (2) and (3), no person shall market honey in import, export or
interprovincial trade as food unless the honey
|
4.
1 (1) Sous réserve des paragraphes (2) et (3), est interdite la
commercialisation--soit interprovinciale, soit liée à l’importation ou
l’exportation--du miel en tant qu’aliment, sauf si le miel :
|
|
(a)
is not adulterated;
|
a) n’est pas falsifié;
|
|
(b)
is not contaminated;
|
b) n’est pas contaminé;
|
|
(c)
is edible;
|
c) est comestible;
|
|
(d)
is prepared in a sanitary manner; and
|
d) est conditionné hygiéniquement;
|
|
(e)
meets all other requirements of the Food and Drugs Act and the Food
and Drug Regulations.
|
e) satisfait à toutes les autres exigences de
la Loi sur les aliments et drogues et du Règlement sur les aliments
et drogues.
|
|
(2)
Honey that has been adulterated or contaminated may be marketed in export or
interprovincial trade as food where the honey, before being marketed, is
prepared in such a manner that it meets the requirements of paragraphs (1)(a)
to (e).
|
(2)
Le miel falsifié ou contaminé peut faire l’objet d’une
commercialisation--soit interprovinciale, soit liée à l’exportation--en tant
qu’aliment si, avant sa commercialisation, il est conditionné de manière à
satisfaire aux exigences des alinéas (1)a) à e).
|
|
(3)
No person shall, for the purpose of preparing honey referred to in subsection
(2) in such a manner that it meets the requirements of paragraphs (1)(a)
to (e), mix the honey with other honey that is not adulterated and not
contaminated.
|
(3)
Il est interdit, aux fins du conditionnement du miel visé au paragraphe (2)
de manière qu’il satisfasse aux exigences des alinéas (1)a) à e),
de le mélanger avec du miel qui n’est ni contaminé ni falsifié.
|
|
(4)
For the purpose of paragraph (1)(d), "prepared in a sanitary
manner" includes preparation in such a manner that the honey is handled
with equipment that is cleaned and sanitized regularly. SOR/91-524, s. 2.
|
(4)
Pour l’application de l’alinéa (1)d), « conditionné
hygiéniquement » qualifie le miel conditionné de manière que sa
manutention soit faite au moyen de matériel nettoyé et assaini régulièrement.
DORS/91-524, art. 2.
|
Having reviewed all these provisions, it is possible to make
the general comment that nitrofuran compounds are considered dangerous by the
authorities. Taken as a whole, these provisions prohibit the marketing of honey
containing nitrofuran compounds. According to the definition in section 2 of
the Honey Regulations, such honey is contaminated since this type of
compound may not be administered to food-producing animals. The prohibition of
the use of the product with food‑producing animals is absolute, not
partial. Indeed, Mr. Labonté admitted this in his affidavit, at
paragraph 13:
[translation]
Although
the Act prohibits the presence of any nitrofuran residue in a food product,
there was in 2003, and there still is, no method of detection known in the
world that is accurate and reliable enough to achieve this objective.
Accordingly, pursuant to subsection 4.1(1) of the Honey
Regulations, the applicant’s honey could not be marketed: a fortiori
the Minister had reasonable grounds to believe that the honey posed a public
health risk.
[50]
For all
these reasons, and bearing in mind that judicial restraint is required given
the applicable standard of review, I am of the view that the Minister had
reasonable grounds to decide that the applicant’s honey posed a public health
risk.
[51]
The
applicant placed great emphasis on the alleged unreliability of the method used
by the CFIA. I do not intend to address that point, since the issue before the
Court is whether the Minister had reasonable grounds to believe that the
applicant’s product posed a public health risk. In any case, there is no solid
evidence in the record to impugn the method used. That being said, it is
natural for the Minister to rely on the scientific opinions of his officials.
[52]
For these
reasons, I answer the first question in the affirmative.
3. Did
the Minister err in ordering a recall of the applicant’s honey?
[53]
At the
hearing, the applicant stressed the allegedly excessive nature of the actions
taken by the CFIA in this case. In essence, it argued that the CFIA and its
employees had shown excessive zeal and there was no reason for acting so
swiftly in the circumstances: it would have been possible to take time to
discuss methods of analysis. In a sense, this argument corresponds to the
argument based on procedural fairness raised by the applicant. The applicant
further submitted that there was no reason to alert customers and consumers. In
this respect, the applicant stressed that portion of the evidence in the record
indicating that, in view of the relatively low concentration of nitrofuran
disclosed by the Analysis of the Applicant’s Product on April 2, 2004, a very
large quantity of honey would have to be consumed over a very long period to
cause harmful effects to health. In particular, the applicant noted the passage
already quoted in paragraph 38 of these reasons.
[54]
For their
part, the respondents maintained that the Minister’s power is entirely
discretionary, including the choice of action to be taken.
[55]
I agree
with the respondents. It should be borne in mind that the applicable standard
of review is that of patent unreasonableness and that, when he has to make a
decision pursuant to subsection 19(1), the Minister must do so very
quickly. In my view, the Court should avoid judging the Minister’s decision in
hindsight. As the Incident Report shows, the events occurred rapidly and the
Minister had before him evidence giving him reasonable grounds to believe that
a product that was already on the shelves posed a public health risk. Less than
24 hours elapsed between the receipt by the CFIA of the Analysis of the
Applicant’s Product on April 2, 2004 and the signature by the Minister of the
Recall Notice on April 3, 2004. Also, several recalls of honey,
voluntary or otherwise, were made by the CFIA during March 2004 (see at
page 50 of respondents’ record). I further note that two of these recalls
were made by the wholesaler voluntarily, for nitrofuran concentrations on the
order of 0.5 ppb and 0.6 ppb. In the circumstances, therefore, it seems to me
that the action taken by the CFIA pursuant to subsection 19(1) was not patently
unreasonable.
4. Did
the Minister violate his duty of fairness toward the applicant?
[56]
The
applicant submitted that it suffered a violation of the duty of procedural
fairness on the part of the respondents as a result of their excessive zeal.
Essentially, it relied on Baker v. Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817, and on Archer (c.o.b. Fairburn Farm)
v. Canada (Canadian Food Inspection Agency), [2001] F.C.J. No. 46.
[57]
In Baker,
the Supreme Court of Canada analyzed the scope of the duty of fairness in connection
with an application for permanent residence on humanitarian grounds, in
immigration law. Paragraphs 23 to 27 are relevant:
Several
factors have been recognized in the jurisprudence as relevant to determining
what is required by the common law duty of procedural fairness in a given set
of circumstances. One important consideration is the nature of the decision
being made and the process followed in making it . . . The more the process
provided for, the function of the tribunal, the nature of the decision-making
body, and the determinations that must be made to reach a decision resemble
judicial decision making, the more likely it is that procedural protections
closer to the trial model will be required by the duty of fairness.
. . .
A second
factor is the nature of the statutory scheme and the “terms of the statute
pursuant to which the body operates” . . . Greater procedural protections, for
example, will be required when no appeal procedure is provided within the
statute, or when the decision is determinative of the issue and further
requests cannot be submitted . . .
. . .
A third
factor in determining the nature and extent of the duty of fairness owed is the
importance of the decision to the individual or individuals affected. The more
important the decision is to the lives of those affected and the greater its
impact on that person or those persons, the more stringent the procedural
protections that will be mandated.
. . .
Fourth, the
legitimate expectations of the person challenging the decision may also
determine what procedures the duty of fairness requires in given circumstances
. . . If the claimant has a legitimate expectation that a certain procedure
will be followed, this procedure will be required by the duty of fairness . . .
Similarly, if a claimant has a legitimate expectation that a certain result
will be reached in his or her case, fairness may require more extensive
procedural rights than would otherwise be accorded . . .
. . .
Fifth, the
analysis of what procedures the duty of fairness requires should also take into
account and respect the choices of procedure made by the agency itself,
particularly when the statute leaves to the decision-maker the ability to
choose its own procedures, or when the agency has an expertise in determining
what procedures are appropriate in the circumstances . . . While this, of
course, is not determinative, important weight must be given to the choice of
procedures made by the agency itself and its institutional constraints . . .
I should note
that this list of factors is not exhaustive. These principles all help a court
determine whether the procedures that were followed respected the duty of
fairness. Other factors may also be important, particularly when considering
aspects of the duty of fairness unrelated to participatory rights. The values
underlying the duty of procedural fairness relate to the principle that the
individual or individuals affected should have the opportunity to present their
case fully and fairly, and have decisions affecting their rights, interests or
privileges made using a fair, impartial and open process, appropriate to the
statutory, institutional and social context of the decision.
. . .
[58]
In Archer,
the Federal Court of Appeal had to determine the scope of the duty of fairness
in the case of a buffalo removal order made pursuant to the Animal Health
Act, S.C. 1990, c. 21. The applicant cited paragraph 38 of that case in its
memorandum of fact and law:
In order to determine the content of the
duty of fairness, another analysis is required. The decision in issue here
involves consideration of a number of factors, ranging from the private
interests of the Archers to the public interest in a safe and profitable
livestock industry. The diversity of the interests involved would, in my view,
suggest a right of consultation to ensure that the Archers had an opportunity
to speak to those factors which militated against their interest. The fact that
the decision is made in the context of an ongoing obligation to prevent the spread
of disease suggests a lesser right of participation in that the existence of
disease is not generally a matter for debate. The fact that the consequences of
the decision will be catastrophic for the Archers argues strongly in favour of
greater participatory rights. The significance of the decision for the
individual was identified as a strong indicator of participatory rights in Baker,
supra. Finally, granting participatory rights would not require the
Agency to alter existing procedures beyond providing the persons affected with
a copy of the risk assessment before a decision is taken, and allowing them to
respond to the risk assessment. This is minimally disruptive, if it is
disruptive at all, of existing procedures, at least where there are no pressing
time constraints. In those cases where time is an issue, the right to
participate could be tailored to fit the circumstances. On the basis of all of
the above, I conclude that the Archers were entitled, as a matter of procedural
fairness, to have an opportunity to participate in the decision-making process
and that they were denied this opportunity. They were entitled to be given a
copy of the risk assessments upon which the Minister’s delegate relied, and to
have an opportunity to respond to the risk assessment before the decision was
made.
[59]
For their
part, the respondents submitted that procedural fairness did not create
participatory rights for the party affected when, as in this case, public
safety required urgent and immediate action by the government. In their
submission, in the light of the Baker factors, procedural fairness does
not imply participatory rights. They emphasized the discretionary nature of the
power conferred by subsection 19(1) of the CFIAA and the urgent nature of the
decision made in this case. They argued that imposing a duty of procedural
fairness on the Minister would amount to paralysing his ability to take action
considered necessary to protect the health of the public. They added that the
CFIAA provides for penalties for non‑compliance with a recall order and
suggest an intent that an order made pursuant to subsection 19(1) should be
carried out forthwith. The respondents submitted that it is an act of public
authority and the government has a decisive part to play in protecting public
health. The respondents also sought to distinguish the facts of Archer
from those in the case at bar. They argued that the additional delays resulting
from the granting of participatory rights would temporarily suspend the
protection of public health. In short, the respondents argued that no
participatory right exists for individuals affected by a recall order made
pursuant to subsection 19(1) of the CFIAA, and they added that, even if such
rights existed, the applicant had waived them by the actions it took.
[60]
In order
to determine the scope of the duty of procedural fairness, the factors in Baker
must be followed. The parties were agreed on this.
[61]
First, on
the nature of the decision being made and the process followed in making it, it
should be said that the decision to order a recall of a product under section
19(1) is very remote from a judicial decision. This suggests that the duty of
fairness should be less strictly applied.
[62]
On the
nature of the statutory scheme and the terms of the statute, it seems clear to
the Court that the CFIAA is meant to limit participatory rights as much as
possible. Indeed, once the Minister has reasonable grounds to believe that a
product poses a public health risk, he may choose the action to be taken,
namely a recall or the sending of the product to a place designated by him.
These are radical measures, but they must be understood in the light of the
circumstances, where it may be urgent to take action.
[63]
Third, the
decision is important to the persons affected, as the applicant pointed out. A
recall decision certainly affects the person in question, both in terms of his
reputation and his financial situation.
[64]
As to the
factor of legitimate expectations, in view of the statutory scheme and the
communications between the parties, I do not really see how the applicant could
have had such expectations.
[65]
Fifth, the
Court must respect the choice of procedure made by the agency.
[66]
In Baker,
the Supreme Court noted that the list of factors to be considered was not
exhaustive. Following Archer, a sixth factor may be added, which in the
case at bar seems to be conclusive. That decision concerned an order to remove
from Canada buffalo imported from Denmark pursuant to the Animal Health Act,
S.C. 1990, c. 21, on the ground that they might have been carriers of the mad
cow virus. Pelletier J.A. undertook an analysis based on all the Baker
factors and came to the conclusion that, on the facts before him, the duty of
procedural fairness had not been observed. Archer is useful here in that
it assists in applying the Baker factors to circumstances involving the
exercise by the CFIA of the power to protect public health. However, the
following passage from the quotation in paragraph 38 demonstrates a fundamental
difference between Archer and the case at bar:
Finally, granting participatory rights
would not require the Agency to alter existing procedures beyond providing the
persons affected with a copy of the risk assessment before a decision is taken,
and allowing them to respond to the risk assessment. This is minimally
disruptive, if it is disruptive at all, of existing procedures, at least
where there are no pressing time constraints. In those cases where time is an
issue, the right to participate could be tailored to fit the circumstances.
[Emphasis
added.]
In Archer, the buffalo meat was not yet on the
shelves, available to consumers. In the case at bar, the opposite was true: the
containers of honey were in supermarkets, where consumers could obtain them. In
Archer, the Federal Court of Appeal clearly considered that, in an
emergency situation, participatory rights might be less extensive.
[67]
In the
applicant’s opinion, there was no real emergency in the case at bar. In this
respect, I am of the view that the Minister must enjoy considerable latitude in
assessing the degree of urgency and deciding whether to suspend the applicable
procedural guarantees. That does not mean that when there is no emergency the
Minister may disregard the duty of fairness as he sees fit. In Archer,
the CFIA’s very actions indicated that it considered that there was no
emergency, since over six months had elapsed between the time the persons
affected were informed that a case of mad cow disease had been discovered in
Denmark and the time at which the first removal notice was sent out. In such
circumstances, it is apparent that the Minister or the CFIA could not invoke an
emergency when their actions indicated that they themselves considered there
was no such emergency. I accept that the fact that the product is out of
circulation is highly relevant in assessing procedural guarantees: in such a
case, broader procedural guarantees should certainly be called for. In this
case, however, the Minister and the CFIA acted swiftly because the product was
available in grocery stores and because they had reasonable grounds to believe
that the applicant’s product posed a public health risk.
[68]
Based on
all the foregoing, I rule that, in the case at bar, the duty of procedural
fairness is very limited and that the action taken by the CFIA was correct. In
circumstances where public health is at stake, the person affected should be
given an opportunity to cooperate, told of the nature of the decision
contemplated and sent the result of the analyses and reasons supporting that
decision. As appears from the Incident Report (at pages 9 et seq.), that
is what was done in this case. Early in the evening of April 2, 2004, the
applicant was given several opportunities to cooperate, but it at all times
refused to do so and insisted that it should be able to present evidence to
contradict that of the CFIA or to challenge the methods used by the CFIA.
[69]
At 8:20 pm
on April 2, 2004, Mr. Labonté was informed that a recall might be ordered. At
paragraph 22 of his affidavit, Mr. Labonté asserted that [translation] “the agency asked Miel
Labonté Inc. to call back its employees forthwith and alert all businesses to
take the product off the shelves . . . otherwise the Minister would order it”.
The respondents’ version seems to me more reliable, since the Court can hardly
see how a CFIA officer would have the power to determine what the Minister
would decide when he had the file before him. It appears from the Incident
Report (at page 10) that a copy of the Analysis of the Applicant’s Product
on April 2, 2004 was sent to Andrew Bond, the applicant’s representative, at
9:27 pm on the same day. The applicant was thus able to know the nature of the
decision contemplated before it was made, the reasons in support of it and the
results of the analysis. Based on the Baker factors and the
clarifications by Pelletier J.A. in Archer, that appears to the Court to
be sufficient.
[70]
In Baker,
at paragraph 28, the Supreme Court of Canada made sure to state that
“decisions affecting [the] rights, interests or privileges [of individuals
affected must be] made using a fair, impartial, and open process, appropriate
to the statutory, institutional and social context of the decision”
[emphasis added]. In view of the importance of the public health objective and
the real urgency to act that may exist, the power of making an order cannot be
subjected to strict procedural guarantees. In theory, it is undoubtedly
conceivable for procedural guarantees to be adjusted in accordance with the
degree of risk and urgency, with the result that in certain cases it would be
possible to make submissions or to challenge the Minister’s findings. In
practice, however, imposing such a duty on the Minister before he exercises his
power to order a recall of a product would have the effect of leaving products
which pose a public health risk on the shelves for an uncertain period of time.
Indeed, in each case, the Minister would have to weigh the evidence before him
to determine the scope of the applicable procedural guarantees, as an administrative
tribunal would. Once this had been done, he would then have to give the party
affected the corresponding guarantees. If the risk and the urgency are such as
to justify prompt action, the Minister would have lost precious time, and it is
easy to see that even if, after analysis, he found that an emergency existed,
it might be too late to order a recall, since certain food products can
disappear from the shelves very quickly. As indicated by the preamble to the
CFIAA (see paragraph 35 of this decision), the public health objective is
too important to allow time to elapse and take the risk of having the public
act as guinea pigs.
[71]
For these
reasons, the application for judicial review is dismissed. Costs were sought by
the respondents. In view of my findings and the particular circumstances of the
case at bar, costs will be assessed using the Column III minimum.
ORDER
THE COURT ORDERS THAT:
- the application for judicial
review is dismissed with costs to the respondents (on the Column III minimum).
“Simon
Noël”
Certified
true translation
François
Brunet, LLB, BCL
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