Docket:
A-557-12
Citation:
2014 FCA 102
CORAM:
NOËL J.A.
PELLETIER J.A.
MAINVILLE J.A.
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BETWEEN:
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ATTORNEY GENERAL OF CANADA
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(Canada Border Services Agency)
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Applicant
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and
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SERGIY VOROBYOV
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Respondent
and
CANADA AGRICULTURAL REVIEW TRIBUNAL
Intervener
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REASONS
FOR JUDGMENT
NOËL J.A.
[1]
This is an application for judicial review of a decision from the
Canada Agricultural Review Tribunal (the Tribunal) (2012 CART 25), which
declared null and void a Ministerial review confirming a violation leading to a
penalty pursuant to subsection 13(1) of the Agriculture and Agri-Food
Administrative Monetary Penalties Act, S.C. 1995, c. 40 (the Monetary
Penalties Act). The Tribunal went on to declare null and void the Notice of
Violation issued to Mr. Vorobyov (the respondent) for importing meat products
in violation of section 40 of the Health of Animals Regulations, C.R.C.,
c. 296 (the Regulations).
[2]
The Tribunal held that the Ministerial decision was invalid
because it was made by a delegate of the Ministry of Public Safety and
Emergency Preparedness (Minister of Public Safety) and pursuant to the Monetary
Penalties Act, only the Minister of Agriculture and Agri-Food (Minister of
Agriculture) or his delegate had the authority to make this decision. The
Tribunal went on to hold that as the respondent had gone through a great deal
of trouble and expense for nothing, through no fault of his own, it was also
appropriate to declare the Notice of Violation null and void.
[3]
The Attorney General, acting on behalf of the Minister of Public
Safety (the applicant), maintains that the review decision was taken by the
authorized Minister. The applicant adds that even if the Tribunal correctly
held that the Minister of Public Safety had no authority to decide, it did not
have the jurisdiction to declare the Notice of Violation null and void.
[4]
The Tribunal intervener resists the application. It maintains
that based on the definition of “Minister” in the Monetary Penalties Act, the
Minister of Public Safety was not authorized to deal with the review of the violation.
It adds that it had, by necessary implication, the jurisdiction to declare the
Notice of Violation null and void.
[5]
For the reasons that follow, I have concluded that the Tribunal
correctly held that the Minister of Public Safety did not have the authority to
deal with the violation, but that the declaratory relief provided exceeds the
Tribunal’s jurisdiction. I therefore propose to allow the judicial review
application in part, and substitute the declaratory relief granted by a remedy
which the Tribunal could and should have granted.
[6]
The relevant legislative provisions are reproduced in annex to
these reasons.
FACTUAL
BACKGROUND
[7]
The facts which give rise to the present application for judicial
review are rather simple. On June 15, 2011, upon arriving at Edmonton International Airport, the respondent was issued a Notice of Violation by an agent of
the Canada Border Services Agency (CBSA) for allegedly importing meat without
meeting the prescribed requirements, contrary to section 40 of the Regulations
(reasons, para. 3).
[8]
On June 20, 2011, the respondent filed a request for review
pursuant to paragraph 9(2)(b) of the Monetary Penalties Act. The
respondent’s request for review was addressed to the Minister of Public Safety
(reasons, para. 5).
[9]
The request for review was forwarded to the Minister of Public
Safety, in accordance with the procedure indicated on the CBSA’s website
(reasons, para. 13). This procedure appeared to be in conformity with the memorandum
of understanding between the CBSA and the Canadian Food Inspection Agency
(CFIA) according to which the CBSA had the responsibility for conducting
Ministerial reviews of Notices of Violation issued by its officers (memorandum
of understanding between the CBSA and the CFIA, dated July 23, 2007, appeal
book, vol. 1, p. 58).
[10]
On August 15, 2012, the respondent was informed by letter that
the Notice of Violation was maintained. The letter was signed by a
representative of the CBSA, “for the Minister of Public Safety” (reasons, para.
6).
[11]
On August 28, 2012, the respondent requested a review of the
Ministerial decision by the Tribunal pursuant to paragraph 9(2)(b) of
the Monetary Penalties Act (reasons, para. 7). In the proceedings before the
Tribunal, the CBSA submitted a report comprising a style of cause which
identified the CBSA as the respondent (reasons, para. 8).
[12]
On December 11, 2012, the Tribunal rendered a decision by which
it declared both the Ministerial decision and the Notice of Violation to be
null and void. The applicant now seeks a judicial review of the Tribunal’s
decision before this Court. Pursuant to an order rendered on July 31, 2013, the
Tribunal was granted leave to intervene before this Court (applicant’s record,
vol. I, tab. 2).
[13]
We were informed during the proceedings that six cases before the
Tribunal have been stayed pending the disposition of the present application.
DECISION OF
THE TRIBUNAL
[14]
The Tribunal struck down both the decision of the Minister of
Public Safety and the Notice of Violation on the basis that neither the
Minister of Public Safety nor the CBSA had the legal authority to review the
Notice of Violation issued against the respondent. The Tribunal essentially
adopted the same reasoning as in Iliut Razvan Puia v. Canada (Minister of Agriculture and Agri-Food), 2012 CART 20, paras. 21 to 34 (Puia), as
subsequently followed in Nisreen Abdul-Aziz v. Canada (Minister of
Agriculture and Agri-Food), 2012 CART 24 and reasons, para. 15.
[15]
At the outset, Tribunal recalls that “[a]n important element […]
in conducting a review of a decision of first instance and the decision-making
process is to ensure that the person making the decision is the one who has
been so designated by statute” (reasons para. 15, citing Puia, para.
25). According to section 2 of the Monetary Penalties Act, the Minister is “the
Minister of Agriculture and Agri-Food, except that, in relation to a violation
involving a contravention of the Pest Control Products Act,
[S.C. 2002, c. 28 (the Pest Control Act)] it means the
Minister of Health” (reasons para. 15, citing Puia, paras. 26 to 28).
[16]
Since requests for review under the Monetary Penalties Act may
only be addressed to the two above-mentioned Ministers, the Minister of Public
Safety lacked authority to hear and decide the respondent’s request in the case
at hand. According to the Tribunal, there is no indication that the person who
processed the request for review in the name of the Minister of Public Safety was
exercising a legally delegated power on behalf of one of the designated
Ministers under the Monetary Penalties Act (reasons para. 15, citing Puia,
paras. 30 to 32). As such, subsection 24(2) of the Interpretation Act,
R.S.C., 1985, c. I-21 (the Interpretation Act) does not apply.
[17]
Under subsection 24(2) of the Interpretation Act, delegation of
authority is limited to: another Minister acting for that Minister (paragraph
24(2)(a)); or persons within the Minister’s department or
ministry (paragraph 24(2)(d)). Subsection 24(2) cannot be read as
allowing cases of sub-delegation such as this, where the Minister of
Agriculture and Agri-Food delegated his review powers to the Minister of Public
Safety, who in turn delegated his powers to CBSA officers who come under its
purview. The maxim non potest delegare applies to the case at hand.
[18]
The Tribunal went on to declare both the Ministerial decision and
the Notice of Violation null and void.
POSITION OF THE
PARTIES
The
applicant
[19]
The applicant submits that the Tribunal’s decision should be
reviewed on a standard of correctness, since it mainly involved an exercise of
statutory interpretation and a question of law which does not call upon the
Tribunal’s expertise in the field of agriculture and agri-foods (applicant’s
memorandum, paras. 22 to 25).
[20]
The applicant raises three main arguments in support of its
application for judicial review.
[21]
First, the applicant alleges that the Tribunal erred in finding
that the Minister of Public Safety had no legal authority to render a decision
pursuant to subsection 13(1) of the Monetary Penalties Act. According to the applicant, the omission of the Minister of Public
Safety in section 2 of the Monetary Penalties Act is a mere drafting error
which results from the delay between the time the Pest Control Act received
royal assent, in 2002, and the time it entered into force, in 2006. When the
Pest Control Act came into force in 2006, it amended the definition of Minister
in the Monetary Penalties Act and deleted the reference to the Minister of
Public Safety which had been added in the meantime, following the entry into
force of the Canada Border Services Agency Act, S.C. 2005, c. 38 (the
CBSA Act) in 2005 (applicant’s memorandum, paras. 44 to 58).
[22]
The applicant takes the view that this Court has
the power to correct drafting mistakes where there is: 1) a manifest absurdity;
2) cause by a traceable error; 3) for which an obvious correction is available
(applicant’s memorandum, para. 59, citing Ruth Sullivan, Sullivan on the Construction
of Statutes, 5th ed, (Markham, Ont.: LexisNexis,
2008) p. 175 (Sullivan). The applicant argues that
these three conditions are met in the case at hand since: 1) the present
definition of Minister in the Monetary Penalties Act is incompatible with the
legislature’s intent and the scheme of the Monetary Penalties Act and
the CBSA Act, leading to an absurd result; 2) this drafting error can be
explained by a lack of coordination between the successive legislative
amendments made through the CBSA Act and the Monetary Penalties Act;
specifically, those charged with implementing these amendments would have lost
sight of the fact that the Pest Control Act was still pending when these
statutes were amended in December 2005, and as a result of its coming into
force in June 2006, the definition of “Minister” was brought back to its
original state; 3) this drafting error can be easily remedied by ignoring the
current version and by reading section 2 of the Monetary Penalties Act as it
was following the 2005 amendment, which included the Minister of Public Safety
in the definition of Minister (applicant’s memorandum, paras. 62 to 74). The
applicant adds that the Minister of Public Safety or its delegates never
purported to act on behalf of the Minister of Agriculture (applicant’s
memorandum, para. 81).
[23]
The applicant claims that even if only the
Minister of Agriculture was authorized to conduct the review, the Tribunal
exceeded its jurisdiction by declaring that the Notice of Violation was null
and void on the ground that the respondent has sufficiently suffered from the
process. Under subsection 14(1) of the Monetary Penalties Act, the Tribunal’s
powers are limited to confirming, varying or setting aside a decision of the
Minister under sections 12 and 13 of the Monetary Penalties Act (paragraph
14(1)(a)); and determining whether the person requesting the review
committed a violation (paragraph 14(1)(b)) (applicant’s memorandum, paras. 87
to 89). The Tribunal does not have equitable jurisdiction, nor does it have an
implicit or general jurisdiction allowing it to look beyond the provisions of
the Monetary Penalties Act (applicant’s memorandum, paras. 92 to 109).
[24]
Third, the applicant criticizes the Tribunal for
raising the jurisdictional issue on its own account, without giving the parties
the opportunity to make representations on the matter. This constitutes a
violation of the audi alteram partem rule and is, in and of itself,
sufficient ground to grant the application for judicial review (applicant’s
memorandum, paras. 110 to 116).
The
intervener
[25]
The intervener focused its submissions on the
regulatory framework governing monetary penalties and the implicit jurisdiction
of the Tribunal. Concerning the first element, the Tribunal stresses that the
Minister of Agriculture bears the primary responsibility for the implementation
of the Monetary Penalties Act and agriculture-related legislation, while the
CSBA and the Minister of Public Safety’s jurisdiction is limited to import
inspections performed at airports and other border points (intervener’s
memorandum, paras. 6 to 12). In addition, the intervener cautions against
correcting the definition of “Minister” to include the Minister of Public
Safety, highlighting the deference that is owed to Parliament in expanding the
terms of a statute and the unforeseen consequences that such change could bring
on the legislative scheme as a whole (intervener’s memorandum, para. 19).
[26]
As to whether the Tribunal had the jurisdiction
to declare the Notice of Violation null and void, the intervener relies on the
doctrine of jurisdiction by necessary implication and submits that it had the
implicit power to declare the Notice of Violation null and void in the
circumstances of this case (intervener’s memorandum, paras. 28 onwards, citing ATCO
Gas & Pipelines Ltd. v. Alberta (Energy & Utilities Board), 2006
SCC 4, [2006] 1 S.C.R. 140 (ATCO Gas)). This is consistent with the
purpose of the Monetary Penalties Act, which is to provide for a fair and
effective monetary penalty system (intervener’s memorandum, paras. 30 to 32).
The intervener emphasizes that it is necessary for the Tribunal to be able to
declare a Notice of Violation null and void in order to prevent the respondent
from being deprived of his right of review though no fault of his own
(intervener’s memorandum, paras. 34 to 39).
The
respondent
[27]
The respondent did not participate in the
proceedings.
ANALYSIS AND DECISION
Standard of
review
[28]
This Court has recently reiterated that the
standard of review applicable to decisions of the Tribunal involving pure
questions of law is correctness (Canada (Border Services Agency) v.
Tao, 2014 FCA 52, para. 13; Canada Border Services Agency v. Castillo,
2013 FCA 271, para. 11). It follows that the standard of
correctness applies to the questions as to whether the Minister of Public
Safety had the authority to make the decision pursuant to the Monetary
Penalties Act and if not, whether the Tribunal had the jurisdiction to annul
the Notice of Violation.
The
drafting error
[29]
The first issue to be determined is whether the
omission of the Minister of Public Safety in the definition of “Minister” in
section 2 of the Monetary Penalties Act is the result of drafting error and if
so, whether this Court should seize the opportunity to correct it. Generally,
courts will correct a drafting error if it can be shown that the error leads to
a manifest absurdity, is traceable and is curable by an obvious correction
(Sullivan, p. 175).
[30]
A distinction must however be made between
drafting errors and gaps in the legislation. It is generally considered that
courts have no jurisdiction to cure gaps in the legislative scheme:
When
legislation is under-inclusive, it fails to apply to circumstances which need
to be covered if the legislature’s goals are to be realized. Under-inclusion
could be cured by adding words that expand the scope of the legislation so that
it applies to additional circumstances, those which must be included to achieve
the desired effects. However, the courts are unwilling to use this technique. [R]eading
down to cure over-inclusion is considered interpretation, provided it can be
justified, whereas reading in to cure under-inclusion (or gaps) is considered
amendment and must be left to the legislature (Sullivan, pp. 177 and 178).
[My emphasis]
[31]
Even though the applicant labels it differently,
the problem which this Court is being asked to resolve is the result of an
under-inclusive definition. Specifically, the applicant is asking this Court to
read in the Minister of Public Safety in the definition of “Minister” in
section 2 of the Monetary Penalties Act.
[32]
The applicant insists that the omission of the
Minister of Public Safety is the traceable result of inadvertent legislative
amendments. However, even if that is so, it remains that we are being asked to
cure an under-inclusion.
[33]
Beyond the fact that reading in is generally
viewed as legislating (R. v. Shubley, [1990] S.C.J. No. 1, [1990] 1 S.C.R. 3; Stone v. Woodstock
(Town), [2006] N.B.J. No. 277, 302 N.B.R. (2d) 165 (N.B.C.A.); Beattie
v. National Frontier Insurance Co., [2003] O.J. No. 4258, 68 O.R. (3d) 60
(Ont. C.A.)), the existence of a gap in the
legislation, if there be one, will rarely lead to a manifest absurdity. Indeed,
when a statute is found to be under-inclusive the result is that it has a
narrower application that it should. Although not optimal, this type of result is
unlikely to lead to a manifest absurdity.
[34]
The present case illustrates this point. If the
Court declines to add the Minister of Public Safety to the definition, the
Minister of Agriculture is the only Minister who had the authority to act in
the present matter. As demonstrated by the intervener, nothing incongruous
flows from this.
[35]
The Minister of Agriculture has primary
responsibility over the Monetary Penalties Act, the Canadian Food Inspection
Agency Act, S.C. 1997, c. 6, subsection 11(5); the Canada Agricultural
Products Act, R.S.C. 1985, c. 20 (4th Supp.), section 2; and the
Health of Animals Act, S.C. 1990, c. 21. This legislation is
administered and enforced by the CFIA, an organization under the responsibility
of the Minister of Agriculture.
[36]
Paragraph 6(a) of the Monetary Penalties
Act provides the Minister of Agriculture with the authority to designate
persons who are authorized to issue notices of violation. Pursuant to section 8
and paragraph 9(2)(b) of the same Act, the Minister of Agriculture is
given the authority to review notices of violation.
[37]
In contrast, the Minister of Public Safety is
responsible for the CBSA whose jurisdiction is limited to airports and other
Canadian border points. The responsibility of the CBSA for the administration
and enforcement of agriculture-related legislation is also constrained to the
activities taking place in those locations.
[38]
Against this background, the fact that the
Minister of Agriculture should conduct the review of notices of violation
issued by both the CFIA and the CBSA does not prevent the efficient operation
of the legislative scheme and certainly does not give rise to a manifest
absurdity.
[39]
I therefore conclude that if indeed the failure
to include the Minister of Public Safety in the definition of “Minister” was
caused by the failure to properly coordinate the effect of legislative
amendments, the resulting under-inclusion must be corrected by way of
legislation.
[40]
The result for present purposes is that the
Tribunal correctly held that the review decision was rendered by a Minister, or
the delegate of a Minister who had no authority to do so.
The remedy
[41]
The second issue is whether the Tribunal had the
jurisdiction to declare the Notice of Violation null and void. The jurisdiction
of the Tribunal pursuant to paragraph 14(1)(b) of the Monetary Penalties
Act is not invoked in the present case given that the respondent did not seek
the Tribunal’s intervention pursuant to paragraph 9(2)(c) of the
Monetary Penalties Act. It follows that the Tribunal did not have the
jurisdiction to grant any remedy pursuant to that provision. I note however
that under paragraph 9(2)(c), the Tribunal cannot set aside a Notice of
Violation for reasons other than those that go to the merits of the case.
[42]
The jurisdiction of the Tribunal over a
Ministerial decision made pursuant to paragraph 14(1)(a) of the Monetary
Penalties Act is confined to confirming, varying or setting aside the decision
of the Minister. Where no decision is placed before it because, as here, it was
rendered by a person without authority to decide, the task of the Tribunal is
to note on the record the absence of a decision, and take notice of the fact that
as a result it has no jurisdiction pursuant to paragraph 14(1)(a).
[43]
The intervener appears to recognize so much.
However, it invokes the jurisdiction cast upon it by necessary implication and
takes the position that the exercise of this implicit jurisdiction to declare
the Notice of Violation null and void is necessary in order to prevent an
injustice (memorandum of the intervener, para. 33). Specifically, it argues
that (memorandum of the intervener, para. 54):
…,
it is practically necessary for the Tribunal to be able to declare a Notice of
Violation null and void, to avoid having the [respondent] fall into a
procedural black hole.
[44]
The Supreme Court of Canada in ATCO Gas reiterated
that an administrative tribunal’s jurisdiction may also exist by necessary
implication. Specifically, the Court adopted the following passage from Re
Dow Chemical Canada Inc. and Union Gas Ltd., (1982), 141 D.L.R. (3d) 641
(Ont. A.C.) (Atco, para. 51):
When
legislation attempts to create a comprehensive regulatory framework, the
Tribunal must have the powers which by practical necessity and necessary
implication flow from the regulatory authority explicitly conferred upon it …
[45]
The purpose of the Monetary Penalties Act is to
establish a fair and efficient administrative monetary penalty system for the
enforcement of the agri-food acts (section 3 of the Monetary Penalties Act).
Obviously, this goal is not attained when the rights of those charged with
violations cannot be exercised through no fault of theirs. Equally however, the
purpose of the Monetary Penalties Act is not attained when properly issued
notices of violation are overruled for reasons unconnected to the merits.
[46]
In my view, the Tribunal has, by necessary
implication, the jurisdiction to ensure that the respondent is not deprived of
his right to contest the Notice of Violation. However, declaring the Notice of
Violation null and void without regard to whether the violation was committed
or not would be no more justifiable than leaving the respondent without a remedy.
[47]
Given the problem sought to be addressed, a
proper exercise of jurisdiction by necessary implication would have been for
the Tribunal to refer the respondent’s request for a Ministerial review dated
June 20, 2011 to the Minister of Agriculture with effect as of that date, so
that it may be dealt with by the proper Minister and so as to preserve the
respondent’s right to seek relief before the Tribunal should the review prove
to be unsuccessful. Given that the request for Ministerial review would have
been filed before the Minister of Agriculture on June 20, 2011 were it not for
the misdirection by the CBSA, it is entirely appropriate to preserve the
original date of filing.
[48]
I would therefore allow the application for
judicial review in part, set aside the decision of the Tribunal declaring the
Notice of Violation null and void, and return the matter before the Tribunal
with a direction that an order be issued referring the respondent’s request for
a Ministerial review dated June 20, 2011 to the Minister of Agriculture with
effect as of that date.
“Marc
Noël”
“I agree
J.D. Denis Pelletier J.A.”
“I agree
Robert M. Mainville J.A.”
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