Evaluation of the Canada Agricultural Review Tribunal, Final report
By: Karen Croteau, Kevin Driscoll, Jim Melanson, Christine Vaillancourt, February 25, 2013
Table of contents
- 2. Evaluation Approach, Objectives and Methodologies
- 3. Key Findings
- 3.1 Structural elements
- 3.1.1 Independence
- 3.1.2 Institutional Independence
- 3.1.3 Individual Independence
- 3.1.4 Adjudicative Competence
- 3.1.5 Two avenue model of appeal
- 3.1.6 Conclusions
- 3.2 Procedural elements
- Procedural fairness model elements
- 3.2.1 Trust in Authorities
- 3.2.2 Quality of Treatment
- 3.2.3 Neutrality
- 3.2.4 Lack of Bias
- 3.2.5 Overall Perceptions of the Procedural Elements
- 3.2.6 Conclusions
- 3.3 Contributions to the regulatory system
First established as the "Review Tribunal" in 1983, the Canada Agricultural Review Tribunal (the Tribunal), is today a functioning quasi-judicial body that offers an avenue of appeal to those subject to Administrative Monetary Penalties (AMPs) levied by federal agencies responsible for agriculture and agri-food regulation. The Tribunal reports to Parliament through the Minister of Agriculture and Agri-Food.
Considered a "micro agency" due to its small staff complement and budget, the Tribunal had not to date been evaluated. In August 2011 it collaborated with the Carleton University School of Public Administration to undertake a first evaluation, to be executed by a team of graduate students from the Public Policy and Program Evaluation Diploma program.
After initial engagement with Tribunal staff, the team adopted a theory based approach to the evaluation. It used an extensive review of legal, public policy, and social science literature to develop a conceptual model of the Tribunal's role within the agriculture and agri-food regulatory system, and its intended objectives, outputs, and methods of operation. The model posits that a well-functioning regulatory system must be considered legitimate in the eyes of those regulated; otherwise they may seek avoidance rather than adherence to desired codes of behaviour. Legitimacy in turns rests on a perception that the system is "fair." The model tested by the evaluation therefore was the extent to which the Tribunal contributes to a perception of fairness, and specifically the extent to which it adheres to the requirements of structural and procedural fairness described in the emerging literature on quasi-judicial bodies.
The methodology employed comprised:
- Literature review to establish principles and the model
- Synthesis of existing studies of the Tribunal (University of Ottawa law students and graduate thesis)
- Review of Canada Agricultural Review Tribunal (CART) administrative records, documentation, and web presence
- Key informant interviews from a sample of those who appeared before the Tribunal between 2009 and 2012
The scope of the evaluation was limited to testing the conceptual fairness model between 2009 and 2012, as that time period corresponds to the tenure of the current Chairperson of the Tribunal and could be expected to yield consistent results.
An important limitation is the small sample size eventually achieved for the interviews. A total of ten individuals agreed to participate – four "Respondents" and six "Applicants". Respondents are personnel from Agencies that levy AMPs, or their lawyers from the Department of Justice. Applicants are individuals or firms who appeal AMPs that have been levied on them.
Findings indicate that the conceptual model of structural and procedural fairness and the Tribunal's role in contributing to the overall legitimacy of the agriculture and agri-food regulatory system is broadly validated. There are important nuances however. Respondents rate the Tribunal very highly for its structural and procedural fairness, based on their clear understanding of the quasi-judicial role. Some however question the "two avenue" approach, whereby appeals can be pursued either to the Minister or through the Tribunal. They suggest that first recourse should be through the established machinery in departments (for instance the Recourse Directorate in Canada Border Services Agency (CBSA)).
Applicants on the other hand do not rate the Tribunal as highly for independence or procedural fairness, although they do have positive regard for the competence of its staff. This in part grows out of their difficulty in clearly distinguishing the role of the Tribunal as an appeal tribunal from that of the Agencies as regulation enforcers. Those applicants whose AMP was upheld by the Tribunal after review, appear to conflate their unhappiness with the outcome with their views on the process. The context in which they received their AMPs, and explanation that was given at that time (clearly or otherwise), colours their choice of option and subsequent appraisal of the appeal process. A further nuance would be that individuals in receipt of CBSA AMPs at customs entry points seem less knowledgeable of the system and its options than agricultural producers receiving Pest Management Regulatory Agency (PMRA) or Canadian Food Inspection Agency (CFIA) AMPs. As well, there is higher satisfaction among applicants with oral than with written review. The findings give rise to several recommendations, not all of which are within the exclusive authority of the Tribunal to implement:
- The Tribunal should cooperate with Agencies to ensure that appeal options and their implications (that is, whether or not early payment discounts will be affected) are absolutely clear at the time of AMP issuance. This may entail more written information on the Notice of Violation, enhanced verbal briefing from Agency staff, and/or additional material developed and posted by the Tribunal to its website.
- The Tribunal should ensure that its plain language reference materials for applicants, including its website, provide complete information on options, implications, procedures and documentation requirements to better manage expectations of Applicants. While the information provided to the Applicants appears to be clear and understandable, the Applicants tended to find it only moderately useful in the preparation of their submissions, particularly when choosing to submit a written application.
- While the details of the Tribunal's structural independence are available on its website and through review of other sources, this may not be readily apparent to individuals without prior knowledge of the system at the time of their receipt of an AMP. Special effort should be made to collaborate with the Agencies to distinguish the structure and role of the Tribunal at the point of AMP issuance. The Tribunal may also consider developing additional material that would increase the opportunity for Applicants to gain increased clarity of its role and responsibilities.
- Also with respect to Tribunal independence, an analysis of its administrative arrangements (budget control, staff appointment, procurement and contracting, legal personality) with the Ministry of Agriculture and Agri-Food Canada could be undertaken to determine if these influence the public perception.
1. Introduction and Context
1.1 Background and history
The Canada Agricultural Review Tribunal (the Tribunal) is a quasi-judicial body that gives the public the opportunity to request reviews of certain administrative decisions or penalties (generally monetary fines) imposed under agriculture and agri-food acts (see section 1.2 Context).
The Tribunal was established in 1983 through an amendment to the Canada Agricultural Products Standards Act (which became the Canada Agricultural Products Act in 1985). At that time, the Tribunal was to be responsible for reviewing decisions made by the Board of Arbitration (a commercial dispute resolution body for the fresh produce industry where an industry member wishes to dispute a notice of violation from the CFIA) in regard to licensing for fruit and vegetable dealers. Over time, these duties expanded and became more structured.
Canada's current administrative monetary penalty system for agricultural and agri-food infractions (Agriculture and Agri-Food Administrative Monetary Penalties Act (AAMP Act) (S.C. 1995, c. 40)) was given royal assent in 1995. It was established to enforce provisions of: the Canada Agricultural Products Act, the Farm Debt Mediation Act, the Feeds Act, the Fertilizers Act, the Health of Animals Act, the Meat Inspection Act, the Pest Control Products Act and the Plant Protection Act and the Seeds Act. It was brought in both as an alternative to the existing criminal penal system and as a complement to existing measures for the enforcement of agri-food Acts: see section 3 of the Act. Its purpose "is to establish, as an alternative to the existing penal system and as a supplement to existing enforcement measures, a fair and efficient administrative monetary penalty system for the enforcement of the agri-food Acts." (AAMP Act 2012)
Effective 19 November 1999, the rules of the Tribunal were set out in SOR/99-451 of the Canada Agricultural Products Act. Approval came from the Governor General in Council, on the recommendation of the Minister of Agriculture and Agri-Food, pursuant to subsection 8(3) of the Canada Agricultural Products ActFootnote 1.
In 2000, Agriculture and Agri-Food Administrative Monetary Penalties Regulations for the Health of Animals Act and Health of Animals Regulations and for the Plant Protection Act and Plant Protection Regulations were passed. Jurisdiction to review notices of violation issued under these pieces of legislation was given to the Tribunal.
The Tribunal is an independent agency in the Government of Canada, housed in a heritage building on Agriculture and Agri-Food Canada's (AAFC) Central Experimental Farm in Ottawa. As such, the Tribunal reports to Parliament through the Minister of Agriculture and Agri-Food. The Tribunal is directly reliant on AAFC for much of its operational resources, including the two staff members who are provided to the Tribunal by the Minister of Agriculture and Agri-Food.
The Tribunal identifies its primary role as providing independent oversight of federal agencies' use of Administrative Monetary Penalties (AMP) in relation to agriculture and agri-food whereby alleged violators have the right to seek a review of any AMP violation before the Tribunal.
The bulk of the Tribunal's activity in recent years has been reviewing Notices of Violation under the AAMP Act issued by the CFIA or the CBSA for violations of the Health of Animals Act and its Regulation and the Plant Protection Act and its Regulations. Currently, the Agriculture and Agri-Food Administrative Monetary Penalties Act (S.C. 1995, c. 40) is in place in order to provide enforcement measures for violations of nine (9) Acts.
On average, the number of active cases the Tribunal manages per year is 81, with an average of 32 decisions rendered each year. Over the past two years the majority of AMP reviews conducted and decided by the Tribunal originates with the CFIA at 63% of total cases followed by CBSA at 30%. In both instances, the number of cases appealed to the Tribunal are quite low proportionate to the number of AMP violations issued by each agency as shown in Exhibit 1.
|Agency||Year||Tribunal cases||Percent of total||Total Agency Administrative Monetary Penalties||Percent of total Administrative Monetary Penalties|
|Canada Border Services Agency||2010||11||6,977||0.16%|
|Canada Border Services Agency||2011||6||3,687||0.16%|
|Canada Border Services Agency (total)||17||30%|
|Canadian Food Inspection Agency||2010||20||311||6.43%|
|Canadian Food Inspection Agency||2011||16||187||8.56%|
|Canadian Food Inspection Agency (total)||36||63%|
|Minister Agriculture and Agri-Food Canada||2010||1|
|Minister Agriculture and Agri-Food Canada||2011||2|
|Minister Agriculture and Agri-Food Canada (total)||3||5%|
|Pest Management Regulatory Agency||2011||1|
|Pest Management Regulatory Agency (total)||1||2%|
|1 - 12 months January-December; 2 - 6 months January-June; 3 - 10 months April-January; 4 - 6 months April-September
As reported on Agency websites, accessed April 2012.
The Tribunal also reviews Notices of Violation issued by the PMRA as well as certain decisions of the Minister of Agriculture and Agri-Food and the Minister of Health.
Additionally, the Tribunal can be requested to conduct a review when a person/company disagrees with a decision made by the Board of Arbitration under the CAP Act. However, in this case, the Applicant is limited to demonstrating that there was either an error in law in the Board's decision or that there was a lack of natural justice in the process.
Reviews may be conducted orally in the presence of the Tribunal (in cases where the Notice of Violation is with penalty), or by written submission. The process for requesting a review by the Tribunal is set out onlineFootnote 2. Timelines (established in the legislation), and required information, are set out on the Tribunal's Web site. An oral hearing may be held in any of 96 locations across Canada, generally closest to the Applicant's home or location of the infraction, though only 10 centres were used in 2010-2011. The Tribunal's services are available to the public in both English and French.
In instances where an appellant is not satisfied with a Tribunal decision, an application for judicial review may be made to the Federal Court of Appeals (FCA). Should the Court overturn the Tribunal's decision, it may grant any form of relief available under subsection 18.1(3) of the Federal Courts Act. However, the FCA is restricted to showing that: the Tribunal has "acted without, beyond or has refused to exercise, its jurisdiction; has failed to observe a principle of natural justice or procedural fairness that it was required by law to observe; has erred in law in making a decision or an order, whether or not the error appears on the face of the record; has based its decision or order on an erroneous finding of fact which it has made in a perverse or capricious manner or without regard for the material before it; has acted or failed to act, by reason of fraud or perjured evidence; or has acted in any other way that was contrary to law"Footnote 3.
The Tribunal follows the common law "open court principle". All documents filed and decisions taken by the Tribunal in a case must be treated as public documents unless the Tribunal grants a request by one of the parties for a specific document to be treated as confidential. As part of the open court principle, the full texts of all decisions are made accessible to the public on the Tribunal Web site. (For more information, reference Rule 7 of the Rules of the Review Tribunal (Agriculture and Agri-Food) SOR/99-451). "Canadian Case law makes it clear that tribunals, such as the Canada Agricultural Review Tribunal, are bound by the open court principle."Footnote 4
Figure 1 illustrates the linkages between the Tribunal's activity areas and its expected outputs and outcomes.
Figure 1 - Canada Agricultural Review Tribunal Logic Model
2. Evaluation Approach, Objectives and Methodologies
2.1 Evaluation approach and objectives
The evaluation focused on assessing the Tribunal's middle range intended outcomes of "the public has ready access to fair and transparent review of AMP appeals" and "the public has confidence in the Tribunal as an independent, unbiased adjudicator" and how these contribute to its overall intended impact of reinforcing the integrity of the AMP system.
A theory-based approach was selected for this evaluation where a summary of the key dimensions of fairness from published and grey literature was used to develop a conceptual fairness model reflecting a fairness theory of change for the Tribunal. This model has two main elements, one focused on "structural fairness" and one on "procedural fairness." Both were determined necessary in order to support outcome fairness. The model is presented in Exhibit 2.
Exhibit 2: Conceptual Model of Theory of Fairness
The Tribunal was assessed against this conceptual fairness model using evidence gleaned from document review, key informant interviews, and secondary data sources. The Tribunal's documented logic model (Figure 1) was a key reference used for the evaluation. The results of the literature review and an articulation of the conceptual fairness model was submitted to the Tribunal in a separate working paper in April 2012.
The scope of the evaluation included reviewing the structural and procedural elements in place between July 1, 2009 (the start date of the current Tribunal Chairman's tenure) and October 31, 2012, the data collection cut-off.
The evaluation methodology incorporated the collection and review of data and information from multiple primary and secondary sources in order to facilitate triangulation and cross-examination of findings from multiple lines of evidence. The following sections present an overview of the evaluation methods and their limitations.
a) Documentation Review
An initial document review was undertaken and was useful for gathering an understanding of the process and procedures the Tribunal has in place. Literature review helped define the required structural and procedural elements of the conceptual fairness model. This provided the study with a baseline upon which to investigate the extent of implementation and perceptions of same. This included review of the applicable Acts and legislation, Tribunal annual reports and the Tribunal's website for posted documentation related to procedural information. The listing of references is included in Appendix A.
b) Key Informant Interviews
Key informant interviews were held with both "Applicants," (those who had received a notice of violation and decided to appeal to the Tribunal), as well as "Respondents," (agency representatives responsible for defending the issuance of the notice of violation). Both groups of interviewees received the same interview guide to facilitate comparability and transparency. Potential interviewees were provided the option of having their interview conducted in English or French. The interview guide is included as Appendix B.
The final decision documents posted on the Tribunal's website were data mined for the period July 1, 2009 through October 31, 2012, to develop the potential sample of Applicants and Respondents for interview. A database was created that contained all possible interviewees from both groups, duplicate names were eliminated, and then sorting was done based on which agency was responsible for issuing the notice of violation. A random sample was then selected by choosing every second record, which resulted in an initial sample of 32 Applicants and 13 Respondents.
Due to privacy issues and the protection of confidential information, it was necessary that Tribunal staff initially reach out to the population of potential interviewees to solicit permission to share telephone numbers and e-mail addresses with the study team in order to arrange interviews. This was accomplished through the issuance of an e-mail invitation requesting participation in the study from the Tribunal Chairman. Where there was no e-mail address available, Tribunal staff made direct phone calls to potential interviewees. Once approval/agreement to participate was obtained by the Tribunal, the study team proceeded to schedule and conduct interviews.
Attempted recruitment of interviewees from the initial sample did not generate a high enough level of participation. Recruitment activities were then expanded to include the census of names data mined from the decision documents (70 Applicants, 22 Respondents). In the end, a total of 10 interviews were completed as follows:
- 6 Applicants (2 CBSA, 2 CFIA, 1 PMRA, 1 Minister review)
- 4 Respondents (3 CBSA, 1 CFIA)
c) Secondary data sources
Other sources of information including studies conducted on behalf of the Tribunal and other evaluation studies of the regulatory system were reviewed and findings included where appropriate.
2.3 Challenges and Limitations
The evaluation employed qualitative and semi-quantitative methods to assess the Tribunal against structural and procedural elements defined in the conceptual model of fairness. A number of considerations and limitations of the study should be considered when reviewing the report and its findings:
- The scope of the study was, by design, limited, (that is, structural and procedural elements in place during the current Chairman's tenure). We relied on information and representations of interviewees for the completeness and accuracy of information provided. All data and information provided in the course of this study is considered factual for the purposes of our findings, analysis and recommendations.
- The limited number of interviews is such that assumptions about representativeness cannot be made for particular interview groups. There was however consistency among views expressed so the study team is confident that the findings are somewhat representative of the groups interviewed.
When applicant responses were tested using statistical analysis of probability and confidence intervals, for the most part, the results indicate that there is no more than a 50% chance the ratings provided would be one rating level higher or lower than the averages calculated. However, in the instance of responses to Question 6 h) opportunity to present case, i) clear explanation of decision, and j) treated respectfully, a 90% confidence interval calculation shows that these areas are most closely related to the averages presented wherein all three provide confidence intervals that exceed the central rating location of "moderate extent."
Respondent data were much more closely aligned to the average ratings where deviation from the average was a maximum of one half a point in most instances and no deviation from the average in two instances demonstrating much less variability in the sample data.
- There is a possibility of non-response bias in the study data collected through Applicants. Except for one, all Applicants interviewed had had their violations upheld. Due to the low consent rate for participation among the census of potential Applicants, the study did not have a way to test or confirm non-response bias among these two groups. The data may be biased towards the perceptions of Applicants who were unsuccessful in their appeal however the majority of case decisions within the study timeframe are from this group.
- There is also a possibility of non-response bias in the study data collected from Respondents. The majority of Respondents interviewed were from CBSA. With one exception, because they declined to participate, the CFIA was not well represented in the interview sample. However, the responses provided by the one CFIA respondent are analogous in nature to the responses provided by the CBSA respondents.
3. Key Findings
3.1 Structural elements
"There are two categories of justice system structural imperatives that pertain innately to any quasi-judicial administrative tribunal. These are:
- Structural guarantees of judicial independence – individual independence of each of the tribunal's members, and institutional independence of the tribunal itself – all as defined by the Valente Principles; and
- Structural arrangements for ensuring "optimum adjudicative competence". (Ellis, "The Justicing of Quasi-Judicial Tribunals", Canadian Journal of Administrative Law and Practice, 2007)
It is against this model of structural independence that the evaluation sought to assess the Canada Agricultural Review Tribunal.
For the Canada Agricultural Tribunal to be perceived as a "fair" quasi-judicial reviewer, it must in the first instance present appropriate institutional characteristics of independence. These must be demonstrated in its establishing legislation, and in its operational arrangements.
In its founding legislation, The Canada Agricultural Products Act (1985) states in part that:
"The Board and the Tribunal each have, with respect to the appearance, swearing and examination of witnesses, the production and inspection of documents, the enforcement of their orders and other matters necessary or proper for the due exercise of their jurisdiction, all such powers, rights and privileges as are vested in a superior court of record ..."
As well, the Agriculture and Agri-Food Administrative Monetary Penalties Act (1995) states that:
"(1) After concluding a review requested under this Act, the Tribunal shall, by order, as the case may be,
- confirm, vary or set aside any decision of the Minister under section 12 or 13, or
- determine whether or not the person requesting the review committed a violation and, where the Tribunal decides that the person committed a violation but considers that the amount of the penalty for the violation, if any, was not established in accordance with the regulations, the Tribunal shall correct the amount of the penalty,"
The Tribunal operates from its own physical premises, separate from the Ministry and Agencies whose AMPs decisions it reviews. Its website conveys its own identity, and communicates its operating arrangements as follows:
"The Tribunal maintains an independent, quasi-judicial, arm's length relationship from Agriculture and Agri-Food Canada and its Minister, as required by the provisions of the CAP Act and the Agriculture and Agri-Food Administrative Monetary Penalties Act (AMP Act). Subsection 4.2 (1) of the CAP Act provides that no member of the Tribunal may concurrently hold employment in the federal public administration. Pursuant to subsection 8(1) of the same Act, the Tribunal is a court of record and has an official seal that is subject to judicial notice."
3.1.2 Institutional Independence
The Tribunal reports to Parliament through the Minister of Agriculture and Agri-Food. With specific consideration of the Tribunal and the structural element of institutional independence, from document review, the lack of a set budget in advance of each fiscal year can be seen as a means of exerting some control over the independence of the decision making process. While the neutrality of the Tribunal technically is maintained, its ability to conduct work impartially can appear impinged by its apparent reliance on the government in setting out resources for it to conduct its work. As such, its independence does seem to be somewhat indirectly controlled by the political decision-makers.
As part of the interviews conducted for this evaluation, Applicants and Respondents were asked "to what extent do you view the tribunal as:
- Independent in its review of contested AMPS levied by federal agencies", and
- Independent in its review of decisions taken by the Minister of AAFC on contested AMPs".
For these two questions, the responses by the Applicants differed significantly from the responses by the Respondents as can be seen in the table below:
|Applicant||Number (Applicant)||Respondent||Number (Respondent)|
|a) Independent in its review of contested AMPs levied by federal agencies'||3.2||5||4.5||4|
|b) Independent in its review of decisions taken by the Minister of AAFC on contested AMPs||2.5||2||4.5||4|
Using a scale where 1= "Not very much/Not at all" to 5= "Very great extent", for both questions, the Respondents consistently provided high rating responses of "great extent". To elaborate on these ratings one Respondent noted, "…tribunal is structured to be independent and its staff selected and trained for this." While another Respondent "…from past experience I feel that independence is there". Overall, the Respondents demonstrated recognition of the Tribunal's institutional independence.
The Applicants, on the other hand, as compared to the Respondents, rated both questions lower with an average rating of "moderate extent" and "Minor extent" respectively. It is important to note that the number of Applicants who responded to question b) in the table above was very low. Applicants did not provide further elaboration on reasons for their ratings specifically relating to institutional independence. The lower Applicant response rate for institutional independence related questions supports the suggestion that Applicants are unclear with this structural element.
As another line of evidence, the following two papers which focus on independence in relation to The Canada Agricultural Review Tribunal, were reviewed:
- "The Canada Agricultural Review Tribunal: An Independent Body?" (Jospe 2011)
- "The Canada Agricultural Review Tribunal and Independence" (Scott-Lisaingo 2011)
As Jospe explains,
"A fundamental characteristic of a fair hearing before an administrative body is that the decision-maker and the decision-making process are independent; they should not give either party any preferential treatment or be influenced by any preconceived notions. This characteristic is vital to the litigants appearing before the tribunals, as well as to the public's confidence in the administration of justice. The general public would lose faith in public decision-makers if it were perceived that their decisions were based on irrelevant considerations such as…undue pressure from the government."
The objective of both papers was to assess the Tribunal's independence from the Minister. Both use similar approaches, in examining the Supreme Court of Canada's decision of R v. Valente. They present the background and structure of the Tribunal, assess where it falls on the judicial spectrum and then make conclusions about the Tribunal's independence.
Both papers observe that the Tribunal's "functioning as a quasi-judicial tribunal places it on the judicial end of the spectrum of tribunal functions." (Scott-Lisaingo 2011), therefore, a high degree of independence is required. Both papers also agree that the Tribunal guarantees sufficient security of tenor and financial security to maintain independence from the Minister.
Where the two papers differ slightly is in the degree to which the Tribunal satisfies the institutional independence requirement, or more specifically, administrative or financial autonomy.
Scott-Lisaingo concludes that the Tribunal:
"guarantees security of tenure, financial security and institutional independence to a sufficient level to…satisfy the test for independence. However the CART's independence is at risk due to the inability of the CART to enter into service contracts that may affect its judicial functioning. This inability is due to the CART's lack of financial autonomy."
Whereas the Jospe concludes that the Tribunal's:
"current structure threatens the independent, arms-length relationship with the Minister of Agriculture and Agri-Food and his Department. CART lacks structural independence and administrative autonomy, which create the opportunity for the Minister of Agriculture and Agri-Food to interfere, or be perceived as interfering with the Tribunal's decision-making".
Although slightly different positions, both papers raise a risk to the Tribunal's independence resulting from the lack of financial/administrative autonomy. This could be real or perceived as influencing or interfering with the Tribunal's decision-making. This suggestion accords with some of the findings from the evaluation interviews, specifically with respect to the Applicant responses.
3.1.3 Individual Independence
The Chairperson of the Tribunal is appointed by the Governor in Council for a term of up to five years and functions as its Chief Executive Officer (CEO). The CEO is eligible for reappointment as long as he/she holds office in good behaviour, failing which he/she may be removed from the position by the Governor in Council for cause. The Chairperson is accountable for the effectiveness and efficiency of the Tribunal's operations. Reporting to Parliament through the Minister of Agriculture and Agri-Food Canada, he/she is considered to have an arm's length relationship and full independence from the Minister in matters of quasi-judicial decision making. According to the CAP Act, members appointed to the Tribunal by Order in Council concurrently hold employment in the federal public administration
The CAP Act additionally provides for the possibility of other Governor in Council appointments to the Tribunal, either full or part time with no maximum number of members defined. The AAFC Minister is responsible for recommending Tribunal appointments to the Governor in Council, and for tabling an annual report on its activities before Parliament.
The CEO exercises expenditure authority through a delegation from the Minister. The Deputy Minister of AAFC, as chief accounting officer for the Ministry, currently plays an oversight role in administrative matters including finance and human resources. He/she ultimately decides on staff appointments for members of the Public Service, budget allocation to the Tribunal, and procurement. The Tribunal is classified as micro agency, having less than 50 full-time employees. The CEO has "overall responsibility" for the work of the Tribunal as defined in PCO's "Guidebook for Heads of Agencies". This includes the core activities of quasi-judicial decision making, outreach to stakeholders, and efficient management of human and financial resources respecting the standards of modern comptrollership and the values and ethics of the Public Service. Staff are provided to the Tribunal by the Minister of Agriculture and Agri-Food. The Tribunal additionally hosts student interns from Canadian or international universities. There have been six such internships since 2008/09.
Document review findings suggest that the Tribunal satisfies the structural element of individual independence with regards to the overall responsibility for work of the Tribunal, such as developing and implementing office policies, assigning work amongst the Tribunal members, outreach activities to various stakeholders and the scheduling and venue selection of the Tribunal oral hearings, just to mention a few examples. Also, the Tribunal completes performance evaluations and learning plans at fiscal year-end for all Tribunal employees.
The interview questions posed in the evaluation only narrowly address the structural element of individual independence with a question that asked "To what extent do you view the tribunal as having an appointment process that assures the independence of its members when performing their quasi-judicial functions?" This question focuses on the appointment process for the Tribunal members and uses the same rating scale where 1= "Not very much/Not at all" to 5= "Very great extent". Results are presented in the table below.
|Applicant||Number (Applicant)||Respondent||Number (Respondent)|
|c) Having an appointment process that assures the independence of its members when performing their quasi-judicial functions.||3.0||3||4.7||3|
To this question, the Respondents indicated with "great extent", while the few Applicants that did respond, indicated to a "moderate extent". When asked to provide a reason for their responses, there were few elaborations on both the Applicant and the Respondent sides, with one exception from an Applicant who felt that the "Adjudicator was not completely impartial and not totally independent as he works for the Department of Agriculture".
As introduced above, as another line of evidence, the two research papers (Jospe 2011, Scott-Lisaingo 2011) support the document review findings that individual independence of the Tribunal is safeguarded.
3.1.4 Adjudicative Competence
In addition to institutional independence, appointment of officers to the Tribunal should be through a process that seeks and selects individuals on the basis of their adjudicative and technical competence. This requirement is in fact appropriately established in the Canada Agriculture Products Act, which states:
(2) A person is not eligible to be appointed a member of the Tribunal unless the person is knowledgeable about or has experience related to agriculture or agri-food and the Chairperson of the Tribunal and at least one other member of the Tribunal must, in addition, be a barrister or advocate of at least ten years standing at the bar of any province or a notary of at least ten years standing at the Chambre des notaires du Québec.
Once appointed, Tribunal members should demonstrate this competence in their conduct of the Tribunal's review processes, such that they are positively judged by both the Respondents and Applicants that are subject to their decisions.
With regards to adjudicative and technical competence, the current Chairperson of the Canada Agricultural Review Tribunal, as appointed by the Governor in Council, Dr. Donald Buckingham has acted as a private lawyer, government lawyer, law professor, author and consultant in the areas of agricultural law, food law and international trade in agricultural products. The Chairperson has been a member of the Law Society of Upper Canada since 1988. In 2011, the Chairperson engaged in various continuing education events exploring public sector and administrative tribunal topics of application to the Tribunal's work. These activities demonstrate Dr. Buckingham's qualifications for the position of Chairperson as outlined in the Canada Agriculture Products Act as well as the Chairperson's desired to stay current and find ways for improving or enhancing the Tribunal work and supporting processes/procedures.
Over the past two years only six Tribunal decisions have been appealed to the FCA of which four were grouped in a single review. All of these were initiated by the issuing agency (CFIA) and not the Applicant. In the majority of appeals made to the Tribunal, the AMP is in fact upheld and the Applicant remains responsible for the penalty imposed. Only 30% of cases result in an AMP being overturned. Exhibit 3 provides a breakdown of the decision results.
|Tribunal Case Results||Number||Percent|
|Federal Court of Appeals consideration||6||11%|
Applicants and Respondents were asked "to what extent do you view the tribunal as having members who demonstrate adjudicative competence?" again using the same scale where 1= "Not very much/Not at all" to 5= "Very great extent". Results are presented in the table below.
|Applicant||Number (Applicant)||Respondent||Number (Respondent)|
|d) Having members who demonstrate adjudicative competence.||3.4||5||4.5||4|
To this question, on average, Respondents rated the Chairperson as having adjudicative competence between a great extent and very great extent while the Applicants rated the Chairperson between moderate and great extent. When asked an open-ended question for their reasons for their responses, Applicants and Respondents described the adjudicator as having both judicial and agriculture knowledge as well as fostering a warm and comfortable court setting, taking the time to speak in clear, plain language and providing guidance as required. Overall, adjudicative competence was highly rated.
As introduced above, as another line of evidence, the two research papers (Jospe, 2011, Scott-Lisaingo 2011) support the document review and interview findings that the adjudicative competence is satisfied.
3.1.5 Two avenue model of appeal
Those in receipt of an Agriculture Administrative Monetary Penalty have two options should they wish to appeal. One is to appeal directly to the Minister responsible for the Agency that levied the AMP. In his/her review, the Minister may uphold, overturn, or vary the AMP in question. Should an Applicant not be satisfied with the Minister's decision, he/she may appeal it to the Tribunal, which may vary or set aside the decision but only based on a discrepancy of fact.
Alternatively, individuals in receipt of an AMP may lodge their appeal in the first instance with the Tribunal, where again the decision may be to uphold, vary, or set aside, depending on the facts of the case.
There appears to be limited understanding by Applicants of the two channel model for appeals – Minister or Tribunal. Once chosen, they tend to proceed through one channel of the review process without reference to the other. Respondents are much clearer with this aspect. In fact, particularly in the case of CBSA, there are some views among Respondents that immediate recourse to the Tribunal is less appropriate than first following and exhausting the recourse mechanism that exists with some degree of structural independence (separate from enforcement) within the Agency. This line of thinking also cites the high cost for Agencies of participating in Tribunal reviews (across Canada) of relatively small AMPs.
Taken together, these experiences would indicate that there needs to be a clearer instrument or procedure for informing individuals of the options and consequences at the point of AMP issuance.
Taken together, the legislative and operating arrangements appear to give the Tribunal an appropriate framework for institutional independence.
Of the three structural independence elements, from the findings, it can be concluded that individual independence and adjudicative competence are satisfied. For institutional independence, however, some results suggest that this structural element may be perceived to be at risk. From the interview findings specifically, it appears that seeing the process through different lens produces largely differentiated results – the Applicant lens versus Agency lens. The challenge is a clearer definition of the administrative arrangements needed to preserve the arm's length relationship, and thus the independence of the Tribunal, thereby shielding the Minister and his Department from any risk of allegations of interference or reasonable apprehension of bias
This would imply examination of a set of questions regarding the detailed arrangements for budget setting, staffing, procurement and contracting among others. While not within the scope of this evaluation, depending on how they are configured by the Minister of Agriculture and Agri-Food Canada, these could have the potential of circumscribing the public perception of independence of the Tribunal.
In any case, while request for review by either Minister or Tribunal exists in statute, many Applicants are not clear on the two options, or on the reasons for choosing one or the other.
More clarity on options should be provided at the time of AMP issuance, allowing Applicants a more informed decision on how to pursue their review.
3.2 Procedural elements
The procedural elements represent actions which must be undertaken by the Tribunal staff in carrying out their business. These elements begin with the request by an Applicant for information which may be used in order to complete a Request for Review form to the rendering and publishing of the final decision in a particular case.
A total of 85 cases were decided by the Tribunal between July 2009 and December 2012, of which 52 were from oral hearings, 27 from written submissions and six cases were returned from the Federal Court of Appeal. The majority of Applicants whose cases were decided during this period chose an oral hearing with 66% of cases conducted in this manner as shown in Exhibit 4. Comparing the decisions based on the type of review requested, a significantly higher number of AMPs were overturned following the oral reviews as compared to the written submissions (37% versus 23%, respectively).
|Tribunal Decision Result||Number of cases||Percent of cases|
|Total Oral and Written||79|
|Cases from Federal Court of Appeals||6|
According to the Applicant interviewees, there is uneven knowledge of options with respect to the choice between written or oral review by the Tribunal. Some Applicants in receipt of CBSA AMPs stated that they would have preferred an oral hearing, but had assumed that only written was available. There did seem to be a higher level of confidence in being able to make one's case orally than by written means. Some also were unaware that the Tribunal could hold its hearing in their own geographic area.
Individuals who received AMPs from CBSA at border entry points appear to make their decisions on whether and how to request a review without being completely clear on all options and implications. In some cases they instinctively choose the Tribunal to appeal to based on their perception that seeking recourse from the Agency that fined them would not likely produce a result in their favour. They approach the Tribunal without fully understanding its role, but form an impression through their dealings with it. In other cases, personal judgement leads them to appeal directly to the issuing Agency on the grounds that it is the one that would have power to overturn a fine. In some cases there was reported misunderstanding of the fact that once a review was requested, the 50% incentive for prompt payment would be forgone, meaning that the full amount of the AMP would have to be paid if the review were unsuccessful.
On the other hand, those in receipt of AMPs from CFIA and PMRA, often producers, appear to be more knowledgeable of the options for AMP review.
Procedural fairness model elements
Within the context of the defined procedures which the Tribunal must follow, two main questions came to the fore: To what extent has the Tribunal implemented an effective delivery model and management practices to achieve program outcomes? To what extent has the Tribunal facilitated improvements to the capability of beneficiaries to access Tribunal services? The evaluation focussed on the materials and information provided by the Tribunal, as well as the manner in which those actions were undertaken by Tribunal staff.
The extent to which procedural fairness can be measured or attained is based on four main elements: trust in authorities, quality of treatment, neutrality and a demonstrated lack of bias. In order to ascertain the extent to which those interviewed found the Tribunal's procedures to be fair, a series of eleven questions was asked which could be rated from 1="Not very much/Not at all" to 5="Very great extent." The option to state "Don't know/Not applicable" also was available. The questions sought opinions to the question: "In your most recent experience with the Tribunal, to what extent did you feel:" followed by each of the eleven specific questions. Results from the interviews are presented in Exhibit 5 as follows:
|Applicant||Number (Applicant)||Respondent||Number (Respondent)|
|a) Necessary information from the Tribunal was available to participate in the challenge process||3.2||6||4.5||4|
|b) Material and information on the Tribunal and its processes were easy to access and assisted you to participate fully||2.8||6||4.8||4|
|c) Material from the Tribunal was clear and understandable||3.7||6||5.0||4|
|d) Material from the Tribunal was useful to you in preparation for your case||2.8||6||4.5||2|
|e) Appropriate methods of communication from the Tribunal were available to you (i.e., phone, e-mail fax, paper mail)||3||6||4.8||4|
|f) Your case was conducted in a reasonable amount of time||3.2||6||3.3||4|
|g) The Tribunal member assigned to your case was neutral in his/her actions||3.3||6||4.8||4|
|h) Appropriate opportunity was provided to present the content of your case||4.3||6||4.8||4|
|i) A clear explanation of the decision rendered in your case was given||4.3||6||4.5||4|
|j) You were treated in an honest, courteous, respectful manner||4.2||6||5.0||4|
|k) You had trust in the Tribunal member hearing/deciding your case||3.2||6||4.8||4|
In all cases, the Respondents rated all procedural elements as being in place to a greater extent than did the Applicants.
A further examination of the results of the interviews shows much more favourable opinions of the Tribunal's procedures from those who chose oral hearings versus those who choose to conduct their appeal through the written procedure (Exhibit 6). One possible explanation is that those who chose the oral hearing felt more involved in the process and this increased their level of satisfaction. As noted previously, studies have shown that when people interact within a justice system, their impressions of fairness are higher when they feel that their voices have been heardFootnote 5.
As an example, when examining the differences between Applicants who undertook a written submission versus those who chose oral hearings (Q.6.e.), a striking difference is noted with respect to the methods of communication being received from the Tribunal. Those who chose the oral hearing believed that appropriate methods of communications were provided to a great or very great extent (4.3/5), however, those who chose written submissions rated the methods of communications at only 1.7/5, or between not very much/not at all to a minor extent. In relating the low ratings to the comments provided, the Applicants choosing the written method felt that the information provided overall was inadequate, requiring more explanation or details so that they could better understand the process and make more informed choices.
|Oral||Number (Oral)||Written||Number (written)|
|a) Necessary information from the Tribunal was available to participate in the challenge process||4.3||3||2.0||3|
|b) Material and information on the Tribunal and its processes were easy to access and assisted you to participate fully||3.7||3||2.0||3|
|c) Material from the Tribunal was clear and understandable||4.3||3||3.0||3|
|d) Material from the Tribunal was useful to you in preparation for your case||3.3||3||2.3||3|
|e) Appropriate methods of communication from the Tribunal were available to you (i.e., phone, e-mail fax, paper mail)||4.3||3||1.7||3|
|f) Your case was conducted in a reasonable amount of time||3.3||3||3.0||3|
|g) The Tribunal member assigned to your case was neutral in his/her actions||3.7||3||3.0||3|
|h) Appropriate opportunity was provided to present the content of your case||4.3||3||4.3||3|
|i) A clear explanation of the decision rendered in your case was given||4.0||3||4.7||3|
|j) You were treated in an honest, courteous, respectful manner||4.0||3||4.3||3|
|k) You had trust in the Tribunal member hearing/deciding your case||3.7||3||2.7||3|
All interviewees were offered the opportunity to provide their thoughts on specific strengths or weaknesses of the Tribunal's procedures. As is often the case in program evaluation, descriptive data offer rich contextual information, though the comments may provide limited definitive evidence of program effects. A further interpretation of the interview results are presented in the sections below.
3.2.1 Trust in Authorities
Through this evaluation, evidence was sought which would demonstrate whether or not those having business with the Tribunal, both as an Applicant as well as in the role of a federal agency Respondent, felt that the authority vested in the Tribunal could be trusted. In the reviewing of AMPs, the authority to whom the trust is vested is the Chairperson. In the case of an oral hearing, the trust would be based on his actions at the hearing, as well as through the clarity and explanations of his decisions. In the case of a written submission, the clarity and explanations of his decisions will engender this trust.
As noted previously, "when presenting their decisions, authorities need to make clear that they have listened to and considered the arguments presented. They can do so by explaining why they are making their decisions". With respect to the decisions made by the Tribunal, it appears that these requirements are being met. Each rendered written decision, which is publicly available on the Tribunal's website, includes sections providing information on the procedural history, the evidence and an analysis of the information used to render the decision.
When asked directly, the Applicants interviewed indicated that their trust in the Tribunal member deciding the case was in the range of moderate to great extent (Q.6.k. = 3.2/5). This was somewhat lower than the responses from the Respondents who felt trust in the Tribunal member to a very great to great extent (Q.6.k. = 4.8/5).
3.2.2 Quality of Treatment
Quality of treatment can be divided into three main areas: treatment prior to an oral hearing or complete written submission; treatment during an oral hearing, and; treatment in the rendered decisions.
Treatment prior to an oral hearing or written submission includes all contacts between the Applicants and Respondents with the Tribunal. These contacts may include direct responses to telephone, fax, written letters sent by mail or courier and email messages. Indirect contacts at this time may include contact information as well as publicly available instructions available on the Tribunal's website.
On the Tribunal's website, two different pages provide information to the Applicants regarding the oral hearing locations. A hyperlink within the Review Process sectionFootnote 6 directs Applicants to a Practice NoteFootnote 7 outlining information regarding the Choice of Venue for Hearings. This Practice Note is not designed with plain language explanations of how the venue is chosen. While a list of Hearing LocationsFootnote 8 is provided on the Tribunal's website, it is not made clear whether there is a guarantee that the closest site to the Applicant will be the one in which the hearing takes place.
Consideration of how these procedural elements impacted the perception of fairness demonstrated the largest divergence in opinion between the Applicants and the government agency Respondents. While the agency representatives rated the usefulness of available information (Q.6.d.) at 4.5/5 (very great extent), Applicants only allotted a score of 2.8/5 (minor to moderate extent) which was one of the lowest scores provided to any question associated with the procedural elements. Similarly, when asked if they believed that all the necessary material had been provided so that they could participate in the process (Q.6.a.) and whether it was in an accessible form (Q.6.b.), lower ratings were provided by the Applicants compared to the Respondents (3.2/5 and 2.8/5 compared to 4.5/5 and 4.8/5, respectively). A focus on initial contacts and the form and accessibility of information should be considered by the Tribunal. However, the Applicants did provide a higher score of 3.7/5 (great to moderate extent) when asked how clear the provided information was (Q.6.c.).
The issue of the length of time from submission of a Request for Review to the final decision (Q.6.f.) appears to be a consistent issue among both Applicants and Respondents with ratings of 3.2/5 and 3.3/5 (moderate to great extent), respectively. Examination of the case files indicate a large number of reasons for delays, including those initiated by the Tribunal (that is, requests for further information, time to transfer documents between Applicants and Respondents, time to make travel arrangements and set up oral hearings in geographic groups where possible, time to consider the law and render the decision), those initiated by the Applicants (that is, requests for delays to obtain more information from employees, etc., requests to ensure oral hearings fit schedules of all involved, delays in the provision of requested information) and those initiated by the Respondents (that is, requests for delays to obtain more information from agency staff who may not be located at the same place as the Respondent representatives, etc., requests to ensure oral hearings fit schedules of all involved, delays in the provision of requested information, delay). It is clear that the delays are not always caused by the Tribunal staff, but that the Tribunal is given responsibility for the delays. While increased communications from the Tribunal to the Applicants and Respondents explaining the reasons for delays may improve the perception of those waiting, it is not clear that this would alleviate the dissatisfaction with the process. As well, it is accepted that the reasons behind the delays are such that they are there in order to provide the best chance at delivering a fair process with all information being submitted for consideration. As such, it may be that the Tribunal must accept and live with this low rating.
Both Applicants and Respondents felt that they were treated in an honest, courteous and respectful manner (Q.6.j). All ratings but one fell within the great extent to very great extent rating. While the processes may not be fully understood or accepted by those interviewed, it can be accepted that the impression of the Tribunal staff is that of well-meaning employees.
The final step in the process, the rendering of the decisions and the receipt thereof by the Applicants and Respondents tended to be well viewed. Both groups rated the clarity of the explanations of the decisions (Q.6.i.) as being provided to a great or very great extent (4.3/5 and 4.5/5 for the Applicants and Respondents, respectively).
Using a 90% confidence interval, questions h), i) and j), have the greatest probability of representing a positive rating (using the calculated average) from the applicant population perspective. These three questions resulted in a confidence interval that represents the most positive ratings, where the lower end of the confidence interval is still above the central rating location of "moderate extent." The least amount of variability occurred with the applicant responses to these questions.
|Question||Lower bound||Upper bound|
|h) Appropriate opportunity was provided to present the content of your case||3.9||4.8|
|i) A clear explanation of the decision rendered in your case was given||3.7||5.0|
|j) You were treated in an honest, courteous, respectful manner||3.6||4.8|
Generally, the main issues raised by the Applicants appear to be related to not having access or full disclosure of all the procedures in the initial stages of the preparation an application. They don't seem to become aware of the full process until they are actively involved in a particular step. This has led to Applicants not being able to make informed decisions based on the review process as a whole. While there is an onus on the Applicant to become informed, to a first time Applicant with limited or no experience with administrative tribunals, this process can be overwhelming.
When examining the evidence for and against the neutrality of the process, two different results have arisen. All of the elements required to ensure neutrality appear to be in place. Strict examination of the process demonstrated that both Applicants and Respondents are given equal opportunity to state their cases, whether orally in person, or through written submissions. Based on a review of case decisions, the positions of each of the parties appear to be clearly presented. Repetition of the facts as understood from the submissions also strengthens the case for neutrality. However, it is not only the effort to provide a neutral setting a set of procedures which must be examined; it is the perception of neutrality which ultimately decides the issue.
While all parties accepted that they were given the opportunity to have their say, it was not clear to all of the Applicants to whom the Tribunal reports or is accountable. This generally resulted in a rating from the Applicants of moderate to great extent (that is, Q.6.g. = 3.3/5 and Q.6.k. = 3.2/5) on the questions pertaining to the independence, and thus neutrality, of the Tribunal. Respondents rated these elements very high with average ratings of 4.8 (to a great extent).
3.2.4 Lack of Bias
The primary means by which a lack of bias can be examined in relation to the process is by determining whether all parties were provided equal opportunity to make their cases before the Tribunal. When asked about having the appropriate opportunity to present the content of their case most Applicants and all Respondents indicated that the opportunity was provided to a great or very great extent (4.3/5 and 5/5, by the Applicants and Respondents respectively). In fact, this question was one of the highest rated by the Applicants. It appears clear that the Tribunal's means of obtaining information and allowing the opportunity for the Applicants and Respondents to provide information is effective.
3.2.5 Overall Perceptions of the Procedural Elements
Two general questions sought to establish the overall impressions of the interviewees' dealings with the Tribunal. These included both a quantitative rating and an opportunity to expand upon the reasons for the rating. The two questions were:
- Overall, how would you rate your level of satisfaction with the Tribunal?
- Overall, how do you feel you were treated by the Canada Agricultural Review Tribunal?
While the sample size was small, there was a distinct separation between the majority of the Applicants who had their AMPs upheld and those who had the AMP overturned and the Respondents when their overall levels of satisfaction and perceptions of their treatment were considered. . The highest ratings (5/5) came from the Respondents. In all cases, reasoning was based on the adherence to law and procedures as well as the demonstrated willingness to listen to all points of view.
Applicants and Respondents were asked to form an overall opinion of their satisfaction with the Tribunal as well as provide an overall opinion on how fairly they had been treated. Opinions from the Applicants who had their AMPs upheld ranged from 1/5 to 3/5 (very dissatisfied to neither satisfied nor dissatisfied). In more than one case, the Applicants indicated that the Tribunal came to the wrong conclusion and this led to the lack of satisfaction in the process. As well, a questioning of the independence of the Tribunal formed part of the reasoning behind the scores. A lack of clarity was expressed over the information provided to Applicants about the process as a whole.
Applicants and Respondents were asked to provide an overall rating of how fairly they felt treated by the Tribunal. The scale ranged from 1 = Unfairly to 5= Very Fairly. The average results from Applicant opinions fall between "Moderately Fairly" to "Fairly". The average results from Respondents were ratings of "Very Fairly." Results are elaborated in Exhibit 7 below.
"It should never be forgotten that tribunals exist for users, and not the other way round. No matter how good tribunals may be, they do not fulfil their function unless they are accessible by the people who want to use them, and unless the users receive the help they need to prepare and present their cases."Footnote 9
Findings from the evaluation indicate that most of the procedural elements are in place which should enable those interacting with the Tribunal to place trust in the chairperson making the decisions, though it should be noted that the agencies rated this higher than Applicants. Quality of treatment, trust in authorities and voice and participation elements were rated highest by Applicants. Elements rated less favourably by Applicants were related to information provision, communication and usefulness of materials. As well, a distinct difference was noted between those who chose oral hearings versus those who chose written submissions with the former describing and rating the process much more favourably. It should be noted that many of the negative explanations point to contextual factors which may be outside the control/responsibility of the Tribunal (that is, particularly interactions and information provided at the point of AMP issuance), as having a strong influence on their overall faith and trust in the system.
3.3 Contributions to the regulatory system
Canada's AMP system, and particularly some of the fines imposed in an agricultural context have been described as draconian in relation to the severity of the infraction being committed (Osborne 2011, Prabhu 2011). This is particularly the case where there was no intent to commit the infraction, or lack of understanding of the regulations. Within the AMP system, the case of Doyon v. Canada (Attorney General) has been used as an example of a system that has been stacked in favour of the prosecutor. An administrative tribunal's decision-making authority is by necessity within the framework of existing laws and regulations. "The rule of law provides that the law is the highest authority – no one is above the law and everyone is equal before the law." (Jones and de Villars 2004 69) In some recent cases the Chairperson of the Tribunal has alluded to AMP penalties being unduly harsh, yet he has been bound by the law to uphold them. As an example, note the choice wording by the Chairperson in the decision rendered in the case of Kalongi Mado Mulanga v. Canada (CBSA), 2012 CART 2:
 The very strict AMP system established by Parliament and set out in the Act protects Canada's agricultural and food systems against contamination and disease. The penalties set out in the Act, as in this case, may nonetheless have severe financial repercussions for someone newly arrived in Canada who has imported two sausages for her personal consumption. It seems that Mulanga is asking the Tribunal to waive, for financial reasons, the penalty imposed in this case and to show clemency by setting aside the $800 fine. Unfortunately, once the Agency has established the facts of the alleged violation on a balance of probabilities, the Tribunal's power is limited to confirming the Notice of Violation and ordering the offender to pay the fine specified in said Notice.
 The Agency's inspectors are tasked with protecting Canadians, the food chain and agricultural production in Canada from the risks posed by biological threats to plants, animals and humans. These duties, no doubt, must be exercised responsibly. The Tribunal is aware that the Agency has its own procedure for handling traveller complaints against inspectors, where the actions of inspectors become excessive towards the travelling public. It is not incumbent on the Tribunal to determine whether that was the case here. Furthermore, the Tribunal's jurisdiction to review Notices of Violation comes from its enabling statutes. According to these laws, the Tribunal has neither the function nor the jurisdiction to set aside or dismiss a Notice of Violation for reasons relating solely to the conduct of Agency inspectors towards an applicant or for humanitarian or financial reasons.
In considering the regulatory environment in which the AMP systems, and those who are tasked with upholding them, exist, it becomes clear that transparency must be maximised in order to promote learning and information sharing and to build public trust in the system's integrity. Although the Tribunal is but one part in the bigger regulatory picture for the AMP, it is important to understand this context, as explored by means of document review, when looking at the key findings.
Interviewees were asked the question "How important do you feel the role of the Canada Agriculture Review Tribunal is to maintaining the integrity and legitimacy of the agri-food regulatory system?" To this question, both Applicants and Respondents responded with "minor importance" as identified in the table below.
Interviewees were asked to explain why they did or did not feel the existence and functioning of the Canada Agricultural Review Tribunal is a necessary and important component that contributes to maintaining integrity and legitimacy of the agri-food regulatory system. To this question, the responses were varied. One concept expressed by both Applicants and Respondents was that there is so much outside the purview of the Tribunal (such as setting or creating regulations, determining levels of inspection and enforcement, establishing the mandate and powers of the Tribunal, etc.) that its contribution to the agri-food regulatory system with regards to maintaining the integrity and legitimacy was limited. For example, one Applicant indicated that the Tribunal doesn't have the "latitude to make decisions which are outside of the very strict definitions of the law." Another Applicant felt that "if there was completely independent adjudication, then the Tribunal would be perfect at maintaining the integrity and legitimacy of the agri-food regulatory system." This speaks to independence of the Tribunal as explored in a previous section of this report.
One Respondent also noted that AMPs are very minor compared to prosecuting, licensing and suspensions, which they felt were much more important with respect to contributions to the integrity and legitimacy of the agri-food regulatory system. Conversely, another Respondent commented that the "Tribunal keeps legislators in line, to a certain extent and agencies accountable for their actions. It serves as a deterrent effect to maintain integrity for Applicants. Often if they violate once, they won't violate again
Interviewees were also asked: "In your opinion, are there other mechanisms that would contribute a similar or improved level of integrity and legitimacy in the agri-food regulatory system, and in particular the use of AMPs?" Again, to this question, there were varied responses. Two Respondents suggested that the Tribunal be the secondary option for appeal, rather than a first line for appeal – that the Minister or Recourse Directorate (in the case of CBSA) be the preferred first line. As a reason why CBSA Recourse should be exhausted first before the appeal goes through the Tribunal, it was suggested that it would be a better use of resources than the perceived expensive process of appeal through CART. Also, CBSA believes that it already possesses the expertise in-house to deal with appeals.
Through the evaluation interview findings, it has been repeatedly demonstrated that it is very difficult for Applicants to separate the process of the Tribunal from the process of the AMP which results in a lack of understanding of both the structural independence elements as well as the Tribunal's contributions within this system. Contextual factors play a large role in determining outcome fairness, regardless of all elements of fairness theory in place.
One view that both Applicants and Respondents share is that the Tribunal is a smaller part of a much larger system: a cog in a wheel so to speak. The Tribunal is being over-shadowed by other elements of the regulatory system, specifically with regards to the contribution to maintaining integrity and legitimacy of the agri-food regulatory system.
This evaluation identified several positive findings; however there were a few areas where opportunities for improvement should be considered. Most of the evaluation recommendations come from the need for clearer/more effective communications with the general public and are meant to inform future options for the Tribunal.
- The Tribunal should cooperate with Agencies to ensure that appeal options and their implications are absolutely clear at the time of AMP issuance. This may entail more written information on the Notice of Violation pertaining to the appeals process, enhanced verbal briefing from Agency staff, and/or additional material developed and posted by the Tribunal to its website. For example, it was not clear that submission of the application within 15 days of the infraction did not equate to stopping the clock with respect to being able to pay only 50% of the fine for an early response. As well, it was not clear that choosing an oral hearing could likely result in making a submission opposite a government lawyer presenting the Crown's case nor that a hearing location would be set to accommodate all parties (that is, hearings do not always take place in Ottawa). It was also not clear whether the Tribunal could change the amount of a fine barring the fact that the Tribunal's website homepage indicates, "Whether a person requests an oral hearing or presents a case by written submission, the Tribunal can uphold, modify or set aside a decision rendered by the Minister or one of his officials."Footnote 10 More clear statements need to be published by the Tribunal as to what potential outcomes from the review processes could be. If feasible, the Tribunal should develop a joint strategy with the Agencies which will better empower the Applicants to make informed choices. A website FAQ may also be helpful in this regard.
- The Tribunal should ensure that its plain language reference materials for applicants, including its website, provide complete information on options, implications, procedures and documentation requirements to better manage expectations of Applicants. While the information provided to the Applicants appears to be clear and understandable, the Applicants tended to find it only moderately useful in the preparation of their submissions, particularly when choosing to submit a written application. It may be useful to consider the range of levels of education or training as well as amounts of experience with government bodies or legal entities that the Applicants may possess.
- While the details of the Tribunal's structural independence are available on its website and through review of other sources, this may not be readily apparent to individuals without prior knowledge of the system at the time of their receipt of an AMP. Special effort should be made to collaborate with the Agencies to distinguish the structure and role of the Tribunal from the issuing agency at the point of AMP issuance. The Tribunal may also consider developing additional materials that would increase the opportunity for Applicants to be clearer about its roles and responsibilities.
- Also with respect to Tribunal independence, an analysis of its administrative arrangements (budget control, staff appointment, procurement and contracting, legal personality) with the Ministry of Agriculture and Agri-Food Canada should be undertaken to determine if these influence the public perception.
Appendix A – References
Ellis, S.R. 2007. The Justicizing of Quasi-Judicial Tribunals Part II. Canadian Journal of Administrative Law and Practice, 20: 69-95.
Jones, D.P. and de Villars, A.S.. 2004. Principles of Administrative Law (4th edition) Scarborough, Ontario: Thomson Canada Limited.
Jospe, Dara, 2011. The Canada Agricultural Review Tribunal: An Independent Body?. 5523285 - Dean's Research and Writing Fellows Program, University of Ottawa.
Ombudsman Saskatchewan. 2009. Practice Essentials for Administrative Tribunals. Saskatchewan Ministry of Justice and Attorney General. Accessed online from: http://www.ombudsman.sk.ca/uploads/document/files/omb-tribunal-guide_web-en-1.pdf. Retrieved 15 December 2011.
Osborne, M. 2011. Raising the AMPerage: The Spread of Administrative Monetary Penalties in Canada. The Litigator Live. Accessed online from: http://www.thelitigator.ca/2011/01/raising-the-amperage/. Retrieved 29 March 2012.
Prabhu, M. 2011. Efficacy of Administrative Monetary Penalties in Compelling Compliance with Federal Agri-Food Statutes. LLD Thesis, University of Ottawa: Ottawa, Ontario. 333 pages.
Scott-Lisaingo, Karmen. 2011. The Canada Agricultural Review Tribunal and Independence. 5925528 - Dean's Research and Writing Fellows Program, University of Ottawa.
Tyler, T.R. 1997. Procedural Fairness and Compliance with the Law. Swiss Journal of Economics and Statistics, 133: 219-240.
Tyler, T.R. 1988. What is procedural justice?: Criteria used by citizens to assess the fairness of legal procedures. Law and Society Review, 22: 103-135.
Appendix B – Interview guide
Canada Agricultural Review Tribunal Evaluation – Interview Guide
Recently, the Tribunal agreed to participate in a performance evaluation in the context of a Carleton University Research Project. The objective of the evaluation is to determine the extent to which the Tribunal offers a fair review process and strengthens the legitimacy of the Agricultural Administrative Monetary Penalties (AMPs) system.
This evaluation is under the supervision of Steve Montague, School of Public Policy and Administration and Dr. Donald Buckingham, Chairperson and Chief Executive Officer of the Canada Agriculture Review Tribunal and the study has been reviewed and received ethics clearance through the Carleton University Research Ethics Board.
All information you provide in the course of this interview will be treated in confidence. No information or conclusion will be linked or attributed to specific individuals. Interview notes will not be disclosed beyond the study team, and will be destroyed once the study is completed. Only aggregate data will be made available to the Tribunal.
Your participation is entirely voluntary. You may choose not to participate without any adverse consequences to you. You do not have to answer any questions that you do not feel comfortable answering or where you do not feel you have the requisite knowledge to provide an informed answer. You may also stop the interview at any time if you decide not to continue.
In addition, should you change your mind about participation after this interview is completed you will have up to two weeks to contact the study team and request withdrawal. The study team will then destroy any interview notes taken during this session.
If you have any questions following the interview you can contact:
- Karen Croteau, KarenCroteau@cmail.carleton.ca
- Kevin Driscoll, firstname.lastname@example.org
- Jim Melanson, JamesMelanson@cmail.carleton.ca
- Christine Vaillancourt, JamesMelanson@cmail.carleton.ca
Are you comfortable with how the information you provide will be used and treated, and do you consent to this interview?
Also, as you respond to the questions contained in this survey, please keep in mind that they are intended to relate only to your experience with the Canada Agricultural Review Tribunal, and not with the AMP system overall (that is, fairness in receiving an AMP from an issuing agency in the first instance).
Do you have any questions before we begin?
A. Background on interviewee
Respondent (if Applicant skip to Question 2).
1. Please describe your role and relationship with the Canada Agricultural Review Tribunal.
Applicant (if Applicant skip to Question 4).
2. You chose to challenge your AMP first to the
3. You chose to challenge your AMP
4. Are there areas in the responsibilities of the Minister and the Tribunal that in your view need to be clarified?
5. In your view, has this two avenue model worked well? If yes, why? If not, what sorts of problems have been encountered?
6. In your most recent experience with the Tribunal, to what extent did you feel:
|Not very much/Not at all||Minor extent||Moderate extent||Great extent||Very great extent||Don't Know/ Not applicable|
|a) Necessary information from the Tribunal was available to participate in the challenge process|
|b) Material and information on the Tribunal and its processes were easy to access and assisted you to participate fully|
|c) Material from the Tribunal was clear and understandable|
|d) Material from the Tribunal was useful to you in preparation for your case|
|e) Appropriate methods of communication from the Tribunal were available to you (that is, phone, e-mail, fax, paper mail)|
|f) Your case was conducted in a reasonable amount of time|
|g) The Tribunal member assigned to your case was neutral in his/her actions|
|h) Appropriate opportunity was provided to present the content of your case|
|i) A clear explanation of the decision rendered in your case was given|
|j) You were treated in an honest, courteous, respectful manner|
|k) You had trust in the Tribunal member hearing/deciding your case|
7. Is there anything you would like to add with respect to the strengths or areas for improvement of the Tribunal process:
Areas of improvement:
8. Overall, how would you rate your level of satisfaction with the Tribunal?
|Very dissatisfied||Somewhat dissatisfied||Neither satisfied or dissatisfied||Somewhat satisfied||Very satisfied||Don't Know/ Not applicable|
Reasons for Response:
9. Overall, how do you feel you were treated by the Canada Agricultural Review Tribunal?
|Unfairly||Somewhat Unfairly||Moderately Fairly||Fairly||Very Fairly||Don't Know/ Not applicable|
Reasons for Response:
10. How could the Canada Agricultural Review Tribunal improve its services to you?
11. To what extent do you view the tribunal as:
|Not very much/Not at all||Minor extent||Moderate extent||Great extent||Very great extent||Don't Know/ Not applicable|
|a) Independent in its review of contested AMPs levied by federal agencies'|
|b) Independent in its review of decisions taken by the Minister of AAFC on contested AMPs|
|c) Having an appointment process that assures the independence of its members when performing their quasi-judicial functions.|
|d) Having members who demonstrate adjudicative competence.|
12. Reasons for your responses:
D. Underlying Act and Regulations
13. How important do you feel the role of the Canada Agricultural Review Tribunal is to maintaining the integrity and legitimacy of the agri-food regulatory system?
|Not very much/Not at all||Minor importance||Moderate importance||Great importance||Very great importance||Don't Know/ Not applicable|
14. Please explain why you may feel or why you may not feel the existence and functioning of the Canada Agricultural Review Tribunal is a necessary and important component that contributes to maintaining integrity and legitimacy of the agri-food regulatory system?
15. In your opinion, are there other mechanisms that would contribute a similar or improved level of integrity and legitimacy in the agri-food regulatory system, and in particular the use of AMPs?