Date: 20120426
Docket:
A-485-11
Citation: 2012 FCA 130
CORAM: NOËL
J.A.
GAUTHIER J.A.
MAINVILLE
J.A.
BETWEEN:
IN THE MATTER OF SECTION 14 OF THE AGRICULTURE
AND
AGRI-FOOD ADMINISTRATIVE MONETARY
PENALTIES
REGULATIONS, SOR/2000-187;
AND IN THE MATTER OF AN APPLICATION BY WAY OF A
REFERENCE
TO THE FEDERAL COURT OF APPEAL PURSUANT
TO SECTIONS 18.3(1) AND
28(2) OF THE FEDERAL COURTS ACT,
R.S.C. 1985, c. F-7
REASONS FOR
JUDGMENT
NOËL J.A.
[1]
This
is an application by way of reference by the Canada Agricultural Review
Tribunal (the applicant or the Tribunal), pursuant to subsections 18.3(1) and
28(2) of the Federal Courts Act, R.S.C. 1985, c. F-7 (the Federal Courts
Act). The applicant seeks the opinion of this Court on the interpretation of
subsection 14(1) of the Agriculture and Agri-Food Administrative Monetary
Penalties Regulations, SOR/2000-187 (the Regulations). Specifically, the
applicant submitted the following two questions:
a. Given that sections 11 to 13
of the […] Regulations require written notice from an applicant to commence a
request for review before the […] Tribunal, would the […] Tribunal err, if it
ruled as a matter of law, that the methods to commence a request set out
explicitly in subsection 14(1) are permissive but not exhaustive?
b. If the methods to commence a
request set out in subsection 14(1) are permissive, then is the effective date
of a request sent by ordinary mail the earlier of the date stamp clearly
visible on the envelope or the date it is received by the […] Tribunal?
BACKGROUND FACTS
[2]
The
reference arises in the context of a Notice of Violation that was issued by the
Canadian Food Inspection Agency to Transport Giannone Garceau Inc. (TGG) on
February 14, 2011 (affidavit of Lise Sabourin, appeal book, tab 4).
[3]
TGG
submitted a request by regular mail to review the Notice of Violation pursuant
to subsection 11(2) of the Regulations. This request was received by the
Tribunal on March 17, outside of the 30-day period established in subsection
11(2) of the Regulations. The envelope in which the request was sent bears a
post stamp indicating March 14, 2011 (idem).
[4]
The
Tribunal initially notified TGG that its request was refused because it was
received three days outside of the 30-day period. TGG requested reconsideration
of that decision, on account of the post stamp indicating March 14, 2011 on the
envelope.
[5]
The
Tribunal agreed to reconsider its initial decision on the basis that there are
“ambiguities in section 14 of the Regulations”. The reference questions were
drafted to clarify the methods for submitting requests to the Tribunal (idem,
para. 10).
[6]
On
January 26, 2012, Mainville J.A. determined that the interested parties to the
reference were the Tribunal, the Attorney General of Canada, the Canadian Food
Inspection Agency and TGG. He further ordered that the Tribunal prepare a
memorandum identifying the legal issues arising from the reference. This
memorandum has been filed and the Attorney General has filed a memorandum in
response. While it was open to the other interested parties to submit memoranda
they have chosen not to do so.
RELEVANT LEGISLATIVE PROVISIONS
[7]
Section
18.3 of the Federal Courts Act details the reference procedure for federal
tribunals:
Reference by federal tribunal
18.3 (1) A federal board,
commission or other tribunal may at any stage of its proceedings refer any
question or issue of law, of jurisdiction or of practice and procedure to the
Federal Court for hearing and determination.
(2) The Attorney General of Canada may, at any stage of the
proceedings of a federal board, commission or other tribunal, other than a
service tribunal within the meaning of the National Defence Act,
refer any question or issue of the constitutional validity, applicability or
operability of an Act of Parliament or of regulations made under an Act of
Parliament to the Federal Court for hearing and determination.
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Renvoi d’un office fédéral
18.3 (1) Les offices fédéraux
peuvent, à tout stade de leurs procédures, renvoyer devant la Cour fédérale
pour audition et jugement toute question de droit, de compétence ou de
pratique et procédure.
(2) Le procureur général du Canada peut, à tout stade des
procédures d’un office fédéral, sauf s’il s’agit d’un tribunal militaire au
sens de la Loi sur la défense nationale, renvoyer devant la Cour
fédérale pour audition et jugement toute question portant sur la validité,
l’applicabilité ou l’effet, sur le plan constitutionnel, d’une loi fédérale
ou de ses textes d’application.
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Subsection 18.3(1) is to be read as referring to
the Federal Court of Appeal insofar as references made by specified instances
are concerned, including the Tribunal (see subsection 28(2) of the Federal
Courts Act).
[8]
The
Regulations were enacted pursuant to subsection 4(1) of the Agriculture and
Agri-Food Administrative Monetary Penalties Act, S.C. 1995, c. 40 (the
Act).
[9]
Paragraph
9(2)(c) of the Act provides that a person who wishes to contest a Notice
of Violation may do so by requesting “in the prescribed time and manner” a
review by the Tribunal of the facts of the violation.
[10]
While
subsection 11(2) of the Regulations prescribes the time to file such requests,
section 14 provides for the procedure or manner to do so as follows:
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14. (1) A
person may make a request referred to in section 11, 12 or 13 by
delivering it by hand or by sending it by registered mail, by courier or by
electronic means, including electronic registered mail and fax, to a
recipient and place authorized by the Minister.
(2) If a person makes a request,
the date of the request is
(a) the day on
which the request is delivered to the authorized recipient, if the request is
delivered by hand;
(b) the earlier of
the day on which the request is received by the authorized recipient and the
date indicated in the receipt issued by the postal or courier service, if the
request is sent by registered mail or courier; or
(c) the date on
which the fax or other electronic transmission is received.
(3) Where a request is sent by fax
or by other electronic means, a copy of the request shall be sent by
registered mail.
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14. (1) Toute
personne peut présenter la demande visée aux articles 11, 12 ou 13 en la
livrant en mains propres ou en l’envoyant par courrier recommandé, par
messagerie ou par tout moyen électronique, notamment par courrier recommandé
électronique et par télécopieur, au destinataire et au lieu autorisés par le
ministre.
(2) La date de la demande visée au
paragraphe (1) est :
a) la date à laquelle la demande
est livrée au destinataire autorisé, si elle est livrée en mains propres;
b) la date de réception par le
destinataire autorisé ou, si elle est antérieure, la date indiquée sur le
récépissé du bureau de poste ou du service de messagerie, si la demande est
envoyée par courrier recommandé ou par messagerie;
c) la date de réception de la
télécopie ou autre copie transmise électroniquement.
(3) Lorsque la demande est
transmise par télécopieur ou autre moyen électronique, une copie doit aussi
en être envoyée par courrier recommandé.
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[11]
Section
10 of the Regulations is also useful for the analysis:
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PAYMENT
10. (1) For
the purposes of subsection 9(1) of the Act and subject to
subsection (2), any payment shall be paid within 30 days after the
day on which the notice is served.
(2) A person named in a notice of
violation that contains a penalty may pay an amount equal to one half of the
penalty if the person pays the amount within 15 days after the day on which
the notice is served.
(3) For the purposes of the Act
and these Regulations, the payment of a penalty or an amount in default shall
be made by means of a certified cheque or money order made payable to the Receiver
General for Canada and may be made
(a) in person;
(b) by regular mail;
(c) by registered mail; or
(d) by courier.
(4) A payment made in accordance
with subsection (3) is deemed to be made
(a) on the day on
which it is made in person;
(b) on the date
indicated in the postmark stamped on the envelope, if the amount is sent by
regular mail; and
(c) on the date
indicated in the receipt issued by the postal or courier service, if the
payment is sent by registered mail or courier.
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PAIEMENT
10. (1) Pour
l’application du paragraphe 9(1) de la Loi et sous réserve du paragraphe (2),
tout paiement doit être fait dans les trente jours suivant la date de
notification du procès-verbal.
(2) La personne nommée dans un
procès-verbal qui comporte une sanction peut ne payer qu’une somme égale à la
moitié de la sanction si elle le fait dans les quinze jours suivant la date
de notification du procès-verbal.
(3) Pour l’application de la Loi
et du présent règlement, le paiement d’une sanction ou d’une somme en
souffrance se fait par chèque visé ou par mandat émis à l’ordre du receveur
général du Canada, transmis :
a) soit en personne;
b) soit par courrier ordinaire;
c) soit par courrier recommandé;
d) soit par messagerie.
(4) Le paiement visé au paragraphe
(3) est réputé avoir été effectué :
a) à la date où il a été transmis
en personne;
b) à la date indiquée sur le cachet
postal apposé sur l’enveloppe, s’il est transmis par courrier ordinaire;
c) à la date indiquée sur le
récépissé du bureau de poste ou du service de messagerie, s’il est transmis
par courrier recommandé ou par messagerie.
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SUBMISSIONS OF THE PARTIES
[12]
Pursuant
to Mainville J.A.’s order, the applicant submitted a memorandum developing what
it considers to be the two possible interpretations of section 14. Ordinary
mail is not one of the listed methods for making a request, but it is not
specifically excluded by the Regulations. It contends that section 14 can be
read as permissive inasmuch as it allows other methods of delivery to satisfy
the requirements for filing a request. By contrast, an exhaustive
interpretation would only allow the listed methods. The applicant develops both
possible interpretations in its submissions.
[13]
In
support of a permissive interpretation, the applicant points to the “fair,
large and liberal” interpretative approach provided at section 12 of the Interpretation
Act, R.S.C. 1985, c. I-21 (the Interpretation Act). As the object of
sections 11 to 14 of the Regulations is to provide persons an opportunity to
request a review of the violation, a permissive interpretation would further
this objective (applicant’s memorandum, para. 19).
[14]
The
applicant also notes the choice of the word “may” at section 14. It points that
pursuant to section 11 of the Interpretation Act, this expression is to be
construed as permissive. The result is that other methods of delivery could be
permitted.
[15]
The
applicant also looks to the purpose of the Act, provided for in section 3. It
contends that the objective of establishing an alternative to the penal system
by a fair and efficient administrative monetary penalty system supports the
permissive interpretation. It contends that applicants before the Tribunal are
unrepresented and would consider sending a letter by regular mail to be an
effective means to request a review. It further notes that using regular mail
to conduct business is a common practice in Canada.
[16]
It
also points to section 10 of the Act which permits applicants to make early
payments by regular mail. In these cases, the Regulations indicate that the
date of the sending, not of receipt, is considered.
[17]
In
support of the exhaustive interpretation, the applicant notes that the word
“may” can be found in some circumstances to mean “must”. As for the purpose of
the Act, the applicant points to the objective of efficiency. An exhaustive
interpretation would promote efficiency by requiring adherence to the
timeframes specified by the Regulations. This allows the process to be fast,
simple and less expensive.
[18]
The
Attorney General for his part takes the position that the modern principle of
statutory interpretation only admits to one interpretation and that a reading
of the words of section 14 in their ordinary sense, harmoniously with the
scheme and object of the Act and the Regulations and the intention of the
drafters makes it clear that a request cannot be submitted to the Tribunal by
ordinary mail.
ANALYSIS
[19]
The
two reference questions appear to have been framed on the assumption that if
subsection 14(1) is permissive and not exhaustive, it would follow that regular
mail is an authorized means of communicating a request.
[20]
This
does not necessary follow. For instance, there is no doubt that subsection
14(1) is permissive and not exhaustive with respect to requests communicated by
“electronic means” which are described as “including electronic
registered mail and fax”. This language obviously contemplates that a request
may be communicated by “electronic means” other than the two that are
specified. To that extent at least, subsection 14(1) is permissive but it does
not follow from this that regular mail is an authorized means of communicating
a request.
[21]
When
regard is had to the record placed before the Court and the context in which
the reference arose, the relevant question, it seems, is whether section 14 can
be construed as authorizing regular mail as a means of communicating a request
to the Tribunal. The second question needs only be answered in the event that
this last question is answered in the affirmative.
[22]
In
my view, section 14 cannot be construed as authorizing regular mail as a means
of communicating a request. Subsection 9(2) of the Act provides that a person
may request a review by the Tribunal “in the prescribed time and manner”.
Section 14 of the Regulations simply does not prescribe regular mail as a
manner of requesting a review by the Tribunal.
[23]
The
common thread that appears to run through section 14 is that the question
whether a request has been filed within the time allowed for doing so can
either be assessed independently by the Tribunal based on the time when a
request is actually “delivered” or “received” by hand or by electronic
transmission pursuant to paragraphs 14(2)(a) or (c), or by
reference to independent third party evidence as to when a request has been
“sent” when registered mail or courier service are resorted to as a mode of
transmission. In such a case, paragraph 14(2)(b) provides that the
request is considered to have been made on the earlier of the date on which the
request is received or the date indicated on the receipt issued by the postal
or courier service.
[24]
In
contrast, regular mail if read into section 14 would allow for no independent
means of establishing whether and when the mailed request was sent in the event
that it does not reach its proper destination. This problem could have been
resolved by deeming such a request to have been made on the date indicated on
the postmark stamped on the envelope as was done with respect to the payment of
reduced penalties pursuant to section 10 (see in particular paragraph 10(4)(b)).
However, this approach was not adopted and the drafters of the Regulations did
not prescribe anything in that respect at subsection 14(2). The Court would
have to engage in an improper exercise of legal drafting if it was to read into
section 14 the approach set out in section 10 (compare Canada (Attorney
General) v. Mowat, 2009 FCA 309 at paras. 97 to 99).
[25]
I
therefore conclude that section 14 cannot be construed as including regular
mail as an authorized mode of transmission. Given this conclusion, it is not
necessary to address the second question.
“Marc
Noël”
“I
agree
Johanne Gauthier J.A.”
“I
agree
Robert M.
Mainville J.A.”
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