The Right to be Seen, Heard and Represented

A Comparative Analysis between Administrative Law Practices in the United States and Canada with Respect to the Enforcement of Agriculture and Agri-Food Laws

By: Rachel Gannon, University of Ottawa, 2011

Table of Contents

0.0 Executive Summary

1.0 Introduction

This summary will examine and analyze two aspects affecting the administrative systems found in Canada and in the United States (U.S.): the role of legal counsel in case hearings as well as the use of written only cases versus cases with an oral hearing.

2.0 The Role and Function of Canada Agricultural Review Tribunal

The Tribunal is independent of other government agencies and works to ensure the safety of plants, animals and people in Canada.

2.1 Composition of the Tribunal

The Chairperson of the Tribunal is named by the Governor-in-Council, for a 5 year term and he cannot be employed at another government agency during that time.

2.2 Process at the Tribunal

The review process begins with the issuance of a Notice of Violation (NOV). An applicant can submit a request for review by written submissions only or can ask for an oral hearing.

2.3 General Statistics of Tribunal Activity

About two thirds of applicants request an oral hearing; those remaining proceed by written submissions only. Oral hearings cost between $2000 and $5000 and the applicant can choose among the 96 hearing locations in Canada.

3.0 The Role and Function of the United States Administrative Court of Law

The Administrative Penalties Act, used in the United-States, and provides the basic framework for several U.S. government agencies.

3.1 Composition of the Administrative Court

There are three judges who will conduct rulemakings and adjudicatory hearings throughout the United States. These three judges are part of the Office of Administrative Law Judges hear cases brought before the courts under the “Code of Federal Regulations” These judges are independent of other departments and hear cases presented by the Secretary of Agriculture.

3.2 Process at the Administrative Court

By choosing a hearing, the applicant can develop the case and is not limited by written submissions.

3.3 General Statistics of U.S. Administrative Court

In the past 10 years, there have been no cases submitted by written submission only.

4.0 Specific Issues in Administrative Hearings

When a lawyer is assigned to a case, the hearings are much more efficient and the evidence is more closely related to the laws in question.

4.1 Legal Representation at Hearings

4.1.1 Legal Representation in Canada

Without a lawyer present the Chairperson of the Tribunal must work at connecting the evidence brought forward by the applicant with the appropriate laws; the role of the Chairperson is more neutral when lawyers are present.

4.1.2 Legal Representation in the United States Administrative Court

Chaque personne a le doit d'être représenté par un avocat.

4.2 Right to an Oral Hearing vs. Submission in Writing

A hearing allows for questions and to fully grasp all the nuances of the case.

4.2.1 Hearing vs. Written Submission Only in Canada

Written submissions offer people the comfort and flexibility of being heard by the Tribunal at a very low price, just a few stamps.

4.2.2 Oral Hearing vs. Written Submission Only in the United States

It is noteworthy, that in the past, many applicants chose not to proceed by oral hearing but rather by oral hearing and this has been true for thousands of cases.

5.0 Conclusions

Both countries try to offer different options that are fair and convenient for applicants.

5.1 Use of Legal Counsel

Lawyers are better able to link the evidence to the law.

5.2 Use of Written Submission vs. Oral Hearings

Even if oral hearings are efficient, written submissions are more convenient and timelier.

5.3 Limitations of this study and topics requiring further research

The Limitations of this study are in part due to time restraint and the lack of primary resources concerning the procedures and practices in the United States.

1.0 Introduction

Although the United States and Canada may be similar in their democratic and judicial spirit, how these two countries carry out their legal systems is no doubt subject to several important differences. This paper focuses on a very narrow aspect of how these legal systems play out in the area of administrative law and agri-food law compliance mechanisms. In this area the paper asks "Are there best practices for administrative monetary penalty adjudication carried out by the U.S. that the Canadian system could adopt?" Seeking to answer this question, the paper will provide a brief background of both Canadian and American administrative court procedures and functions while comparing and contrasting the two systems. After looking at the two systems this paper will more thoroughly analyse two aspects that affect the U.S. and Canadian procedures: the role of legal counsel in case hearings as well as the use of written only cases versus cases with an oral hearing.

2.0 Role and Function of Canada Agricultural Review Tribunal

According to the Canada Agricultural Review Tribunal's (Tribunal) annual report from 2009-2010, the Tribunal's "primary role is to provide independent oversight, through the exercise of its review jurisdiction, of federal agencies' use of Administrative Monetary Penalties (AMP) in relation to agriculture and agri-food."Footnote 1 The Tribunal's history can be traced back to the 1983 Canada Agricultural Products Standards Act which was set up, primarily to establish standards of grading agricultural products. The Tribunal's first jurisdictional task was the verification of arbitral awards from a government Board of Arbitration which settled disputes between fruit and vegetable dealers. Any complaints or violations to these standards had previously been heard through a magistrate or a justice of peaceFootnote 2. After 1998, the Tribunal's jurisdiction was enlarged to verify the validity of agriculture and agri-food administrative monetary penalties, a task that now accounts for 100% of the Tribunal quasi-judicial work. Verifying the compliance efforts of three Canadian agencies, CART assists in ensuring a fair use of AMPs to encourage compliance with laws which protect the health and safety of plants, animals, and humans within Canada. An administrative monetary penalty is an effective way to ensure that people are obeying agricultural laws without being criminalized when charges are pressedFootnote 3. While the Tribunal works under the Minister of Agriculture, the Tribunal remains an "arm's-length relationship from…its Minister"Footnote 4 to remain independent of the government and act as an unbiased place for a fair hearing within a court-like structure. This helps to fulfill the mission of the Tribunal by offering fair and independent reviews of the AMPs in a timely and informal mannerFootnote 5.

2.1 Role and Function of Canada Agricultural Review Tribunal

While the Tribunal remains independent, it is also responsible to a number of stakeholders. These stakeholders, whether it is different Ministers, the federal agencies, or the applicants seeking a review for their case, are affected by the workings of the Tribunal at some level. The Chairperson(s) of the Tribunal is appointed by the Governor in Council and serves for 5 years, unless re-appointed to serve for further time in the TribunalFootnote 6. While a part of the Tribunal, no member is to be employed by the federal public service or be in any position that would be inconsistent with the procedures and decisions of the Tribunal.

The Tribunal has made it a goal to make itself open and easily accessible to the public. This not only assures their accountability in procedural occurrences, but also ensures that their services are available to all who may be interested. Measures taken to achieve this goal include preparation for an annual report, a publically accessible database of it decisions, and a user-friendly websiteFootnote 7.

2.2 Process at the Tribunal

The process of a hearing initially starts when a Notice of Violation (NOV) is issued by Canadian Border Services Agency (CBSA), Canadian Food Inspection Agency (CFIA), or Pest Management Regulatory Agency (PMRA) to the alleged offender. Each year typically about 50% of the cases heard by the Tribunal are NOVs issued under the Health of Animals Act by the CFIA concerning the improper tagging and transportation of animals. About 40% of the cases are issued by the CBSA concerning agriculture and food items brought into Canada illegally, and the remaining 10% of the cases are issued by the PMRA under the Pest Control Products Act concerning the misuse and mislabelling of pesticidesFootnote 8. The alleged violator, also known as the applicant, is then able to submit a request for a review of their case to the Tribunal within 30 days of being issued their NOV. After that, the agency then has 15 days to submit any significant evidence for their case to the Tribunal who will then look over both sides of the evidence. At this point the applicant also has the option of requesting a hearing for their case in the presence of the Tribunal and the agency, allowing them to bring forward witnesses to testify to provide evidence in support of their case. If the applicant does not request a hearing, then the Tribunal Chairperson will make a decision on the case based on the written submission alone from each party.

2.3 General Statistics of Tribunal Activity

In an interview with the Chairperson of the Tribunal, Dr. Don Buckingham estimated that about two thirds of the applicants request a hearing, while the remaining third are done through written submission aloneFootnote 9. In 2010 there were 19 cases where a hearing was held and 11 cases through written submissionFootnote 10. In the case of a hearing, the financial costs to the Tribunal (there are no costs to file a request for a review for the applicant) can range anywhere from $2000- $5000 depending where the hearing is held from among the possible 96 location hearings throughout Canada. The applicant may choose to represent themselves in court, or they may hire legal counsel to represent them during the hearing. On the side of the Crown there is usually legal counsel present for 50% of the cases.

3.0 Role and Function of the United States Administrative Court of Law

The United States, like Canada, has three primary branches of public law: administrative, criminal, and constitutional. Agricultural law in the States falls under the administrative branch. Unlike Canada which uses a specific code entitled Agricultural and Agri-Food Administrative Monetary Penalty Act (AMP Act) the U.S. "does not target their legislation by industry or department like the Canadian Act."Footnote 11 This can be seen from the general title of the Administrative Procedures Act (APA) which covers a wide variety of departments and industries within the States. The APA sets a basic framework where the roles and duties of government agencies can be monitored, where as the Canadian AMP Act is targeted specifically at agricultural and agri-food laws.

3.1 Composition of the Administrative Court

For specific case hearings within the United States, it is the Office of Administrative Law Judges (OALJ) that will hear cases brought before the courts under the statutory acts listed in section 7 [1.131] of the Code of Federal Regulations. The statues listed in this section "specify the authority of the Office of Administrative Law Judges to conduct administrative hearings for cases brought by the Secretary of Agriculture under remedial statutes which include monetary penalties, suspension or termination of licenses and denial of licenses… plus remedial measures for many additional categories where agriculture-related business activities interact with producers or the general public."Footnote 12 The office of administrative law judges currently consists of three judges who will conduct rulemakings and adjudicatory hearings throughout the United StatesFootnote 13. The judges are free from departmental interference in their performance in different cases of law. The Chief Judge of the office reports to the Assistant Secretary for administration and provides general management to the office of administrative law judges.

3.2 Process at the Administrative Court

Everyone that is charged with a violation in the United States has the right to a hearing and to be represented by legal counsel. Although the government permits submissions through written evidence only, it is extremely rare that a case would be decided on without an oral hearing, as this has not happened "in the last 10 years involving thousands of cases."Footnote 14 James Hurt, an attorney and advisor in the office of Administrative Law Judges and the editor for Agriculture Decisions says that an applicant choosing to make a written only submission "does so at their own peril since they would be unable to respond to nuances in the governmental counsel's presentation and witnesses and further risk that their presentation is unclear to the administrative law judge."Footnote 15 A court hearing allows the representative and the judge to fully explore the issue without being restrained to what was simply in writing in the case.

3.3 General Statistics of U.S. Administrative Court

Based on the preliminary interview with Mr. James Hurt it was gathered that every case that has come through the agricultural administrative court system within the past 10 years has had a hearing. This upholds to the principle that every person has a right to a fair trial, as well as the right to an attorney. It is difficult to predict the timeliness and costs of hearings within the American agricultural administrative court system.

4.0 Specific Issues in Administrative Hearings

While holding a hearing may be more costly than cases submitted through writing alone, the Chairperson of the Tribunal stated that hearings are "way more efficient" than written submissionsFootnote 16. If legal counsel is present, they are able to address the legal matters more quickly without spending access time delving into unrelated details of the event. The legal counsel is often much more familiar with the law and how a hearing properly proceeds and can specifically address laws and bring forward evidence without over-elaborating or delving into unimportant matters. The Chairperson explained further that when there are legal representatives on both sides, both parties are protected against "fishing for evidence." Moreover, parties are less likely to give too much evidence that could later be damaging to their case, or be altogether irrelevantFootnote 17.

4.1 Legal Representation at Hearings

One often poses the question of whether languages help of hinder the process in administrative hearings. Below is the discussion of current practices of Canada and U.S. administrative bodies and their experience with legal counsel at hearings.

4.1.1 Legal Representation in Canada

Without legal counsel present at the hearings, which is the case roughly 10% of the time, the Chairperson must probe the applicants for information without being invasive, while trying to massage the flow of the hearing towards its conclusion without being authoritarian. Often times the alleged offender is not familiar with specific laws, so the Chairperson has to work at connecting the evidence brought forward by the applicant with the appropriate laws. The presence of legal counsel allows the Chairperson to play a more passive role in the functioning of the hearing, acting as simply an observer searching for the truth of the story, rather than actively participating in the extraction of relevant testimony from each witness.

4.1.2 Legal Representation in the United States Administrative Court

As Mr. James Hurt stated in his interview, every person has the right to an attorney in the United States. This paper sought to unveil how the administrative court may change, if at all, in the case of legal counsel present in a hearing, however due to the timeliness of this project the results remain inconclusive. For further information on the second set of interview questions for Mr. James Hurt, please see appendix 2.

4.2 Right to an Oral Hearing vs. Submission in Writing Only

Whether there is legal counsel present at a case or not, an oral hearing allows the Chairperson to pick up on different nuances of the case he may not have otherwise been able to detect if the case were simply in writing. A hearing can also allow the Chairperson a chance to clear up any information that may have been muddled or unclear from written submission allow the applicant to provide further evidence that may have otherwise been forgotten. Oral hearings put a face to both parties involved and provide a space to question and dialogue in order to more fully unveil the evidence of the alleged event.

4.2.1 Oral Hearing vs. Written Submission Only in Canada

While a hearing may cost the Tribunal a significant amount of money, the process as a whole is much more efficient, allowing the Chairperson to more fully asses the merits of the case. While proceeding with only oral submissions may seem like a robust option, in this case the costs do not necessarily outweigh the benefits. By allowing cases to be reviewed through writing alone, everyone has the ability to be heard by the Tribunal from the comfort of their own home for a very low price of only a few postage stamps.

4.2.2 Oral Hearing vs. Written Submission Only in the United States

While it is possible to proceed with a case through written only submission in the United States, "written-only litigation by the governmental counsel [is extremely rare and] has not occurred in the last 10 years involving thousands of cases."Footnote 18 It remains inconclusive how long a case may take from the time of the initial request to final decision.

5.0 Conclusions

In both Canada and the United States, the administrative court systems work hard to ensure a fair hearing for the applicant and the agency involved. Both systems provide a variety of options to ensure that the applicant has the convenience and ability to submit all of the needed evidence before the administrative court, whether it is through written submission or through the process of a hearing, before the court makes a decision.

5.1 Use of Legal Counsel

It is quite clear that in both countries when legal counsel is present the hearing runs more smoothly and effectively, diving immediately into the key issues without dabbling in irrelevant matters. Legal counsel more effectively compares the laws directly to the evidence presented, allowing the Chairperson to make a decision based on what the law says rather than sifting through unneeded evidence.

5.2 Use of Written Submission vs. Oral Hearings

While oral hearings may be more efficient, written submissions provide a level of convenience and timeliness for the administrative court that is difficult to find elsewhere. While there remain definite benefits concerning the effectiveness and speed of producing a decision after a hearing, the cost benefits and convenience for both the Tribunal and applicant remain very strong reasons to continue with submissions through written only appeal.

5.3 Limitations of this study and topics requiring further research

Through this research we have seen that although there are options shown to be most effective and efficient, whether that involves the presence of legal counsel or holding a hearing instead of written submissions, there are also many cost affordable options available to the public in both Canada and the United States for a fair decision to be made based on the alleged offense. Limitations of this study are in part due to time restraint and lack of availability of primary resources concerning the procedures and practices in the United States.

6.0 Annexes

  1. First questionnaire to United States Administrative Law Office
  2. Response of James Hurt, attorney for the U.S. Administrative court, to first questionnaire
  3. Second questionnaire to United States Administrative Law Office
  4. "A Tale of Two Nations" essay by Cherie France, CART intern Fall 2010
  5. "The Canada Agricultural Review Tribunal" essay by Avery Kelly, University of Victoria, Fall 2010
  6. "History of the Canada Agricultural Review Tribunal" essay by Jeana Shuurman, CART intern Fall 2009
  7. CART Decisions for Fiscal Year 2010-2011

7.0 Footnotes