Federal Court of Appeal Decisions

Date: 20140417

Docket:

A-557-12

 

Citation: 2014 FCA 102

CORAM:      

NOËL J.A.

PELLETIER J.A.

MAINVILLE J.A.

BETWEEN:
ATTORNEY GENERAL OF CANADA
(Canada Border Services Agency)
Applicant
and
SERGIY VOROBYOV
Respondent and CANADA AGRICULTURAL REVIEW TRIBUNAL Intervener

 

Heard at Montréal, Quebec, on February 26, 2014.

Judgment delivered at Ottawa, Ontario, on April 17, 2014.

REASONS FOR JUDGMENT BY:                                                                               NOËL J.A.

CONCURRED IN BY:                                                                                        

PELLETIER J.A.

                                                                                                                             

MAINVILLE J.A.

Date: 20140417

Docket:

A-557-12

 

Citation: 2014 FCA 102

CORAM:      

NOËL J.A.

PELLETIER J.A.

MAINVILLE J.A.

BETWEEN:
ATTORNEY GENERAL OF CANADA
(Canada Border Services Agency)
Applicant
and
SERGIY VOROBYOV
Respondent and CANADA AGRICULTURAL REVIEW TRIBUNAL Intervener

 

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 (4^th 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.”

 

 

RELEVANT LEGISLATIVE PROVISIONS

 

 

 

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

 

DOCKET:	A-557-12
STYLE OF CAUSE:	ATTORNEY GENERAL OF CANADA, (Canada Border Services Agency) v. SERGIY VOROBYOV and CANAD AGRICULTURAL REVIEW TRIBUNAL

 

PLACE OF HEARING:

                                                                                                Montréal, Quebec

DATE OF HEARING:

                                                                                                February 26, 2014

REASONS FOR JUDGMENT BY:

                                                                                                NOËL J.A.

CONCURRED IN BY:                                                       

PELLETIER J.A.

                                                                                                MAINVILLE J.A.

DATED:

                                                                                                APRIL 17, 2014

APPEARANCES:

Patricia Gravel	For The Applicant
Sergiy Vorobyov	For The Respondent (SELF-REPRESENTED)
Thomas Slade	FOR THE INTERVENER

 

SOLICITORS OF RECORD:

William F. Pentney Deputy Attorney General of Canada	For The Applicant
Supreme Advocacy LLP Ottawa, Ontario	FOR THE INTERVENER