Date: 20101005
Dockets: T-473-10
T-474-10
Citation: 2010 FC 994
BETWEEN:
Docket: T-473-10
MC IMPORTS LTD.
Applicant
and
CANADIAN FOOD INSPECTION AGENCY
Respondent
AND
BETWEEN:
Docket: T-474-10
MC IMPORTS LTD.
Applicant
and
CANADIAN FOOD INSPECTION AGENCY
Respondent
REASONS FOR
JUDGMENT
HUGHES J.
[1]
These
two applications for judicial review which were heard together, deal with the
classification by the Respondent, Canadian Food Inspection Agency (CFIA), of
certain fish products imported into Canada by the Applicant MC
Imports Ltd. for resale here. The classification is important as the fee
imposed by the Respondent for the inspection of such products varies depending
on the classification.
[2]
In
particular, the Applicant has imported from the Philippines fish
products known as Salted Ground Anchovy Balayan, Salted Shrimp Fry, Salted
Shrimp Fry-Sautéed Regular, Salted Shrimp Fry-Sautéed Spicy, and Salted Anchovy
Monamon all which I will simply refer to as the Products. Originally the CFIA Burnaby,
B.C. Office as well as its Mississauga Office had classified such products as
“other” which carried with it an inspection fee of $0.010/kg. Subsequently, the
CFIA changed that classification to “ready-to-eat” which carries a fee of
fifteen times as much, $0.150/kg. The Applicant asks that this reclassification
be set aside and that the matter be reconsidered by the CFIA. For the reasons
that follow, that is what I will do.
FACTUAL BACKGROUND
[3]
The
Applicant imports fish products from the Far East for resale in Canada including
the Products at issue. These Products have been variously described in the
record. I repeat a definition for Bagoong appearing in a book by Minerva
Olympia entitled “Fermented Fish Products in the Phillippines” at page 132:
FISH PASTE (BAGOONG)
Product
Bagoong is the undigested residue of
partially hydrolyzed fish or shrimp. It has a salty and slightly cheese-like
odor (Figure 1). The characteristics of this product vary depending on the
region where it is made and consumed.
…
Preparation
The fish used for bagoong include
anchovies, sardines, herring, silverside, shrimp, slipmouth, freshwater progy,
oysters, clams, and other shellfish. The fish are washed thoroughly and drained
well. Salt is mixed with the drained samples at varying proportions from 1:3 to
2:7 depending on the bulk of the preparation. The mixture is allowed to ferment
for several months or longer until it develops the characteristic flavor and
aroma of bagoong.
Bagoong is eaten raw or cooked and is
generally used as flavouring or condiment in many traditional recipes. As an
appetizer it is sauteed with onions and garlic and served with tomatoes or
green mangoes. In rural areas, bagoong is eaten with vegetables, and,
especially in the coastal regions, it is often the main source of protein in
the diet.
[4]
The
preparation of a typical Product by the Applicant’s supplier is set out in
Exhibit G to the affidavit of Mr. Menenses:
STEP QUALITY
CONTROL
PROCEDURE
Salting of fish at source Fresh
Fish is mixed with salt
at harvest area.
Receive salted fish at plant Salted
fish is received at
processing plant.
Adjust salt content Salt
content of received lot is
adjusted to required salt
content.
Ferment Salted
fish is held in container
until fermented.
Sort Extraneous
matter is
removed.
Fill in bottles Fermented
fish is filled into
Bottles
Washing and Drinking Check
potability of water and
cleanliness of draining
materials.
Label / Pack in cartons Label
manually each glass jar
and pack in cartons.
[5]
The
Product is shipped, sold and stored (at least until opening) at room
temperature.
[6]
The
Respondent CFIA has the responsibility for inspection and approval for sale in
Canada of fish products, including those imported into Canada. Varying
fees are imposed for such inspections depending how the product is categorized.
The categories and fees are:
Ready-to-eat $0.15/kg
Canned $0.02/kg
Fresh $0.01/kg
Raw mulluscan shellfish $0.01/kg
Other $0.01/kg
[7]
Originally
the Applicant’s Products passed through the CFIA’s Burnaby, B.C.
Offices and were classified as “other” thus bearing an inspection rate of
$0.01/kg. Later these Products passed through the CFIA’s Mississauga,
Ontario Offices and
were originally also classified as “other” but later shipments were classified
as “ready-to-eat” bearing a rate of $0.15/kg. The Applicant corresponded with
CFIA objecting to the reclassification. In particular the Applicant dealt with
a Jason Agius who provided an affidavit in these proceedings. The Applicant,
being frustrated in his endeavours to resolve sent an e-mail to another person
at CFIA stating:
Krista,
Since, I am continually banging my head
against Jason Agius door on the RTE issue. Is there some sort of judicial
review mechanisim? For, specifically appeal charges and fees to? Does the CFIA
have an appeal mechanism like CCRA to dispute wrong fees or charges…how about
issues with specific staff and their ability to assign the fees?
CCRA has a tribunal or non biased 3rd
party mediator to settle these differences. You repeatedly say speak to Jason,
his door and ears are open. Honestly, he keeps coming back with the same
answers that are completely wrong! If he’s so confused. If all of you are
confused, all the more reason to classify it under others. Isn’t that what
Others is for?
[8]
Agius
himself responded to the Applicant by e-mail saying:
Hi Alfredo,
I can sympathize with your
belief that you believe that your products are not ready to eat. I have
extensively reviewed the issue with Program representatives and Fish Inspection
staff for different regions and with the information provided to us and
referencing CFIA policies and legislation, these products should be classified
as Ready to Eat. The CFIA does not have a 3rd party review panel to
discuss these types of issues, and these concerns are usually dealt with
appeals to the CFIA President, Regional Director or Inspection Manager. All of
which are aware of this issue, via the claim that to presented to the Agency.
It is also important to note that, he Programs branch of the CFIA establishes
the CFIA polices and procedures and the Operations branch (inspection staff)
execute them. I should also state that your products fall under the
jurisdiction of the Fish Inspection Act and Regulations and you should really
be comparing your products to other RTE and non RTE fish products.
If you would like to speak to
my Inspection Manager, his name is Kevin Bureau and his telephone number is ….
[Emphasis added]
[9]
The
Applicant brought two proceedings in the Small Claims Court in his area, the
first was dismissed because the Applicant did not appear at a settlement
conference. The second was dismissed for lack of jurisdiction. The Applicant
then brought an application for judicial review in this Court (08-T-14) which
was dismissed as being out of time but without prejudice to the bringing of a
timely application (Order April 1, 2008).
[10]
Subsequently,
the present applications have been brought. There is no objection raised as to
timeliness.
ISSUES
[11]
The
issues raised in this application are three:
1.
Are
there applications precluded by reason of the provisions of section 10 of the Fish
Inspection Regulations C.R.C., c. 802?
2.
If
the applications are not precluded, what is the standard of review to be
applied by the Court in reviewing the decisions in question?
3.
If
the standard of review is reasonableness, were the decisions reasonable, or if
the standard is correctness were the decision correct?
ISSUE #1
[12]
Are
these applications precluded by reasons of the provision of section 10 of the Fish
Inspection Regulations, C.R.C., c. 802 provides as follows:
|
10. (1) Where a person interested in a
decision of an inspector in respect of any inspection, grading, marking or
other matter under Part I of the Act or these Regulations is not satisfied
with that decision, the person may, within 30 days after such decision, by
notice in writing, appeal the decision to the President of the Agency who
shall, subject to section 11, order a reinspection.
(2) Where a reinspection is made
pursuant to subsection (1) and the President of the Agency makes a decision
as a result thereof, that decision shall be final.
|
10.
(1) Toute personne intéressée qui n’est pas satisfaite de la décision rendue
par un inspecteur en matière d’inspection, de classement ou de marquage ou
sur toute autre question prévue à la partie I de la Loi ou au présent
règlement peut, par un avis écrit, dans les 30 jours qui suivent la décision,
en appeler au président de l’Agence qui, sous réserve de l’article 11,
ordonne une réinspection.
(2) Lorsqu’une réinspection est faite
en application du paragraphe (1) et que le président de l’Agence rend une
décision à cet égard, cette décision est finale.
|
[13]
The
jurisprudence, including Canadian Pacific Ltd. v. Matsqui Indian Band,
[1995] 1 S.C.R. 3 at paragraphs 37 to 40 , Froom v. Canada (Minister of
Justice), 2004 FCA 352 per Sharlow J.A. at para. 12 and Jones v. Canada (Attorney
General),
2007 FC 386 per Layden-Stevenson J. at paras. 43, 44 and 45 indicates that
judicial review, being a discretionary remedy, may be exercised even though
other avenues of redress may be afforded by legislation. However, this
discretion is to be exercised sparingly and only in unique fact circumstances.
[14]
I
will exercise my discretion in the circumstances of this case. First, the
e-mail from Agius is very confusing. It suggests that the President is already
aware of the matter and has already made up his or her mind as to the
determination of the matter. Second, the Regulations, section 10, uses
of the word “may” which suggests that an appeal is not an obligatory route that
must be followed. Further, the Regulations do not specify which
procedure, if any, is to be followed. The Agius e-mail can be interpreted to
say that an appeal has, in reality, already been considered.
[15]
It
would be in the interests of justice to have the matter judicially reviewed to
avoid yet another round of possible frustration.
ISSUE #2
[16]
If
the applications are not precluded, what is the standard of review to be
applied by the Court in reviewing the decision in question?
[17]
The
Applicant has made no submissions as to the standard of review. The Respondent
says the standard is reasonableness as referred to in Dunsmuir v. New
Brunswick,
[2008] 1 S.C.R. 190.
[18]
There
is no jurisprudence expressly directed to the CFIA in instances such as the
present, however the Respondent asks the Court to consider Hilbert Honey Co.
Ltd. v. Canadian Food Inspection Agency, 2009 FC 818 as well as Miel
Labonté Inc. v. Canada (Attorney General), 2006 FC 195 where standards of
reasonableness were applied to CFIA decisions.
[19]
I
agree with the Respondent, the question here is the appropriate classification
of products for the purpose of applying the appropriate level of inspection
fees. The question requires a factual interpretation with reference to the
appropriate Regulations, a matter in which the CFIA has experience. In
this regard paragraph 47 of the Supreme Court’s decision in Dunsmuir is
instructive:
47 Reasonableness
is a deferential standard animated by the principle that underlies the
development of the two previous standards of reasonableness: certain questions
that come before administrative tribunals do not lend themselves to one
specific, particular result. Instead, they may give rise to a number of
possible, reasonable conclusions. Tribunals have a margin of appreciation
within the range of acceptable and rational solutions. A court conducting a
review for reasonableness inquires into the qualities that make a decision reasonable,
referring both to the process of articulating the reasons and to outcomes. In
judicial review, reasonableness is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law.
ISSUE #3
[20]
If
the standard of review is reasonableness, were the decisions reasonable or, if
the standard is correctness were the decisions correct?
[21]
In
the circumstances of the present case I find that the decision of the CFIA to
reclassify the Products at issue from “other” to “ready-to-eat” was not
reasonable. In particular it was not possessed of the “justification,
transparency and intelligibility” required of such a decision by Dunsmuir
as aforesaid.
[22]
The
evidence provided by the Respondent is all directed toward an attempt to
justify why “ready-to-eat” is the appropriate category for the product. That is
not the right question to ask in the circumstances. The right questions are:
1. Why was a
change from “other” to “ready-to-eat” made?
2. Of all the
categories afforded, which is the most appropriate?
[23]
As
to the first question, why was a change from “other” to “ready-to-eat” made,
the Respondent has provided no real answer. The affidavit of Agius, paragraph
50 says that “In reality, these products were mistakenly classified as
“Other” by the Vancouver office at the outset.” There is
no affidavit from
a responsible person in the Vancouver office as to whether a mistake was in
fact made or whether the office analyzed the situation and came to a reasonable
decision that the Products were truly “other”.
[24]
The second
question is whether the CFIA really made an inquiry as to all the options as to
categorization available to it. The category which it now seemingly prefers is
“ready-to-eat” is defined in section 2 of the Regulations, as amended,
17 December, 1997 as:
|
“ready-to-eat fish” means
any fish, other than canned fish and live shellfish, that does not require
preparation except thawing or reheating before consumption; (poisson prêt-à-manger)
|
« poisson
prêt-à-manger » Poisson, autre que le poisson en conserve et les
mollusques vivants, qui n’a pas besoin d’être préparé, sauf décongelé ou
réchauffé, avant d’être consommé. (ready-to-eat fish)
|
[25]
That
definition requires an inquiry as to what “canned fish” is. That is
defined in section 29 of the Regulations as:
|
“can” means any
hermetically sealed container; (boîte)
|
« boîte » Tout
récipient scellé hermétiquement. (can)
|
|
“canned fish” means
any fish that is sealed in a can and is sterilized; (conserve de poisson)
|
« conserve de
poisson » désigne du poisson mis en boîte et stérilisé; (canned fish)
|
[26]
The
Respondent’s affiant, Ms. Mar at paragraphs 28 to 30 of her affidavit testifies
that the Products are pasteurized in a container and are stored at room
temperature. This would appear to meet the definition of “canned fish”. The
definition of “ready-to-eat” exempts from that category any product categorized
as “canned fish” yet the evidence of the Respondent fails to set out whether
any consideration was given to categorizing the Product as “canned fish” and if
so what consideration was given and what was the result?
[27]
I find that
the CFIA decision to categorize the Product as “ready-to-eat” was not
transparent or intelligible. It did not say why a change from “other” was made
nor did it say what consideration if any, was given to “canned fish”. The
decision must be quashed, and sent back for redetermination by other persons to
approach the matter with a fresh mind.
Conclusions
and Costs
[28]
In
conclusion I have determined that:
1.
The
Applicant is not precluded in seeking these judicial reviews.
2.
The
standard of review is reasonableness.
3.
The
decisions were unreasonable.
[29]
The
decisions should be quashed and sent back for redetermination by persons other
than those involved in the quashed determinations so that the matter is
approached with a fresh mind.
[30]
As to
costs each party submitted that it should, if it prevails, be awarded costs.
Each submitted that the costs, on a full indemnity basis, would be $10,000.00.
I am satisfied that only a
partial indemnity as to costs is warranted in particular one
half, that is $5,000.00. As a result I will apportion costs and award the
Applicant costs in each application T-473-10 and T-474-10 fixed at $2,500.00.
“Roger
T. Hughes”
Toronto, Ontario
October
5, 2010
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