The Little Tribunal that Could: A History of the Canada Agricultural Review Tribunal

By: Jeana Schuurman, Intern at CART and Student at the Laurentian Leadership Centre of Trinity Western University, November 2009

Table of Contents

  1. 1951 – 1960
    1. Canada Agricultural Products Standards Act, 1955, c.27
  2. 1961 – 1970
    1. The Board of Arbitration and Board of Review are established through the Produce Licensing Regulations SOR/67-605 pursuant to the Canada Agricultural Products Standards Act, 1955, c.27
  3. 1971 – 1980
    1. The case of Steve Dart Co. vs. Canada (Board of Arbitration) in 1974 questions the authority of the Board of Arbitration and Board of Review as established in the Produce Licensing Regulations SOR/67-605
  4. 1981 – 1990
    1. An Act to amend the Canada Agricultural Products Standards Act 1970, c.A-8 establishes the Board of Arbitration and Review Tribunal
    2. Challenges in the Department of Agriculture summon the restructuring of the Department and, as a result, the Canada Agricultural Products Standards Act, 1955, c.27 becomes the Canada Agricultural Products Act, 1985, c.20
  5. 1991 – 2000
    1. The Review Tribunal becomes the review body for complaints regarding administrative monetary penalties received under the Agriculture and Agri-food Administrative Monetary Penalties Act 1995, c.40
    2. The Review Tribunal and the Board of Arbitration acquire separate identities as a result of the AMPS and the creation of the CFIA
    3. The Fruit and Vegetable Dispute Resolution Corporation is formed in 2000 to reflect changes in the international market
  6. 2001 – Present
    1. Changes in the Licensing and Arbitration Regulations redefine the role of the Board of Arbitration
    2. The creation of regulations for the Health of Animals Act and Pest Control Products Act increase scope of Review Tribunal’s work
  7. Footnotes

I. 1951-1960

a. Canada Agricultural Products Standards Act, 1955, c.27

The Canada Agricultural Products Standards Act, which set up grading standards for agricultural products such as livestock, eggs, poultry, fruit, honey and maple syrup, was first assented to on June 28th, 1955Footnote 1. With this Act the requirement of licensing dealers to engage in agricultural trade outside of their province is begun. Inspectors and graders for the purpose of enforcement and administration of the Act were appointed by the Minister of Agriculture. Violations of the licensing stipulations were considered criminal offences, punishable with fines or imprisonmentFootnote 2. Complaints relating to licenses were "heard, tried or determined by a police or stipendiary magistrate or a justice or justices of the peace."Footnote 3

II. 1961 – 1970

a. The Board of Arbitration and Board of Review are established through the Produce Licensing Regulations SOR/67-605 pursuant to the Canada Agricultural Products Standards Act, 1955, c.27

On July 12th, 1967 the Board of Arbitration and Board of Review for the Fresh Fruit and Vegetable Industry were established pursuant to the Produce Licensing Regulations SOR/67-605Footnote 4. The Regulations were created through Orders-in-Council, a subordinate form of legislation formulated by the Privy Council and approved by the Governor General. The Regulations required dealers engaged in the trade of agricultural products across provincial borders to be licensed by the Director of the Fruit and Vegetable Division (Production and Marketing Branch, Department of Agriculture).

Complaints relating to the following could be brought before the Director:

  • disputes between licensed dealers;
  • complaints relating to the cancellation or suspension of licenses because of fraudulent activity;
  • and failure to comply with [the sections on license requirements and obligations]Footnote 5.

At the discretion of the Director, complaints between licensed dealers on product condition and damage could be referred to the Board of Arbitration for reviewFootnote 6. The Board of Arbitration was to be comprised of three members, one appointed by the Director, one appointed by the Canadian Fruit Wholesalers Association and one appointed by the Canadian Horticultural Council. The individual appointed by the Director would also serve as the Chairman of the Board of Arbitration.

If a respondent was dissatisfied with the decision of the Board of Arbitration, a notice of appeal to the Board of Review could be sent to the Director. The Board of Review was comprised of five members, with the Director as Chairman and four other members appointed by the Minister. It had the power to affirm, alter or set aside the decision of the Board of Arbitration. Appeals to the Board of Review were to be sent with a payment of $75 and a certified cheque in the amount payable for damages to the claimant. If the Board of Review set aside an award of damages, the appeal payment of $75 and the certified cheque were returned to the respondentFootnote 7.

III. 1971 – 1980

a. The case of Steve Dart Co. vs. Canada (Board of Arbitration) in 1974 questions the authority of the Board of Arbitration and Board of Review as established in the Produce Licensing Regulations SOR/67-605

In 1974, the case of Steve Dart Co. v. Canada (Board of Arbitration) challenged the Orders-in-Council which had set up the Board of Arbitration and Board of Review in 1967. The dispute began in 1973 when the Steve Dart Co. received a shipment of corn from the M. J. Duer Company. The Steve Dart Co. deemed that the corn was not the quality that had been agreed upon and refused to pay for it.

In January 1974, M.J. Duer & Company filed a complaint with the Department of Agriculture hoping to prompt a payment for the corn from the Steve Dart Co. The complaint was forward to the Board of Arbitration as established in the 1967 Produce and Licensing Regulations. Ten days after the complaint was submitted, the Board of Arbitration advised Steve Dart Co. to pay for the corn. In response, Steve Dart Co. filed a writ of prohibition to restrain the Board of Arbitration from hearing the claim, asserting that the Canada Agricultural Products Standards Act 1970, c. A-8 did not provide authority for the creation of the Board of Arbitration through Orders-in-Council.

The Canada Agricultural Products Standards Act 1970, c. A-8 did provide a provision enabling the establishment of regulations through the Governor General in Council, but did not provide the authority for the formation of the Board of Arbitration or Board of ReviewFootnote 8. Referencing the provision in section 101 of the British North America Act, which states that the power to create courts sits with Parliament only, the case concluded that there was "no statutory authority whatsoever for the setting up of any such system of trial and appeal tribunals.Footnote 9"

IV. 1981 – 1990

a. An Act to amend the Canada Agricultural Products Standards Act 1970, c.A-8 establishes the Board of Arbitration and Review Tribunal

In 1983, an Act to amend the Canada Agricultural Products Standards Act 1970, c.A-8 established a Board of Arbitration and Review Tribunal, correcting the problems brought to light by the Steve Dart Co. vs. Canada (Board of Arbitration) in 1974. Section 6 of the previous Act, which had granted power to the Governor in Council to make regulations respecting the licensing of agricultural dealers, is replaced with sections outlining the formation of the Board of Arbitration and Review Tribunal responsible for resolving disputes on product grade between licensed agricultural dealersFootnote 10. In 1984, Licensing and Arbitration Regulations (SOR/84-432) pursuant to the Canada Agricultural Products Standards Act 1970, c.A-8 were created, revoking the Produce Licensing Regulations created by Orders-in-Council in 1967.

The Board of Arbitration as established through the 1983 Act to amend consisted of no fewer than three and no more than five members, all appointed by the Minister of Agriculture. The Minister of Agriculture would appoint one of these members as Chairman and another as Vice-Chairman. While the 1967 Produce Licensing Regulations delegated several significant powers to the Director of the Fruit and Vegetable Division (Production and Marketing Branch, Department of Agriculture), the Act to amend includes no reference to the Director’s involvement in the Board of Arbitration and Review Tribunal. In accordance with the Licensing and Arbitration Regulations (SOR/84-432) the Board of Arbitration was to receive complaints from "any dealer affected by the failure of a licensed dealer to meet the standards referred to in [the section on fruit and vegetable grading] may file a written complaint with the secretary."Footnote 11 While there was no fee for the submission of a complaint or written review, there was an $800 fee for any party wishing to appear in person before the BoardFootnote 12.

The new Tribunal, established in the provision in section 6.3 (1) of the Act to amend, was responsible for reviewing Board of Arbitration decisions for "any person who consider[ed] himself aggrieved by a decision or order of the Board" and also consisted of no fewer than three and no more than five members, all appointed by the Minister of AgricultureFootnote 13. Any individual who wished to have the Board’s decision reviewed by the Tribunal was required notify the Board. If the individual wished to appear in person before the Tribunal, a non-refundable $800 cheque was required to be sent with their request for appealFootnote 14.

b. Challenges in the Department of Agriculture summon the restructuring of the Department and, as a result, the Canada Agricultural Products Standards Act, 1955, c.27 becomes the Canada Agricultural Products Act, 1985, c.20

Faced with the shifting dynamics of the domestic and international market, the Department of Agriculture underwent several audits throughout the 1980’s that were successful in restructuring and streamlining operations. Six significant new acts on agriculture are passed in 1985, which is likely what prompted the streamlining of the Canada Agricultural Products Standards Act 1970, c.A-8. The Act earned a new name, the Canada Agricultural Products Act 1985, c.20 (CAP Act), and came into force in 1988, continuing the Board of Arbitration and Review Tribunal in a shared provision. Both entities - consisting of no fewer than three and no more than five members appointed by the Minister of Agriculture - were conferred the same powers in respect to the making of rules governing their practice and procedure, summoning and examination of witnesses, administration of oaths and the reception of evidenceFootnote 15. It is unclear whether or not an actual Board of Arbitration and Review Tribunal came into existence between 1988-1995.

V. 1991 – 2000

a. The Review Tribunal becomes the review body for complaints regarding administrative monetary penalties received under the Agriculture and Agri-food Administrative Monetary Penalties Act 1995, c.40

In 1995, the Review Tribunal established in 1985 in the CAP Act was remodelled after the Civil Aviation Tribunal through the Agriculture and Agri-Food Administrative Monetary Penalties Act 1995, c.40Footnote 16. As non-criminal penalties for regulatory infractions aimed at compliance, administrative monetary penalties (AMPs) were considered an attractive and less expensive alternative to the criminal courts. Bill C-61 on the use of an administrative monetary penalties system for agriculture received its first reading in December 1994. The final committee session on the Bill in October 1995 discussed the establishment of an agricultural tribunal for the administration of the Agriculture and Agri-Food AMPS, but made no mention of the Review Tribunal established in the CAP Act of 1985. The new AMPS legislation amended the section on the Tribunal in the CAP Act, changing it to reflect the legislation of the Civil Aviation Tribunal established in the Aeronautics Act in 1985Footnote 17. Here the Board of Arbitration and Review Tribunal, which had been established in a single provision in 1985, were separated into different sections. This amendment marks the beginning of separate paths for the two entities: the Review Tribunal responsible for reviews of AMPs as enforced by the Canadian Food Inspection Agency (CFIA), and the Board of Arbitration responsible for the settling of disputes between licensed dealers.

The Agriculture and Agri-Food Administrative Monetary Penalties Act (AAAMP Act) came into force on July 30, 1997 and provided an AMPS system for the following Acts:

  • Canada Agricultural Products Act
  • Farm Debt Mediation Act
  • Feeds Act
  • Fertilizers Act
  • Health of Animals Act
  • Meat Inspection Act
  • Pest Control Products Act
  • Plant Protection Act
  • Seeds Act

The AMPS was to be administered and enforced by the CFIA, which was created in 1997 as an amalgamation of the inspection services branches of Agriculture and Agri-Food Canada, Fisheries and Oceans Canada, Health Canada and Industry CanadaFootnote 18.

b. The Review Tribunal and the Board of Arbitration acquire separate identities as a result of the AMPS and the creation of the CFIA

As the Tribunal received an increased number of cases from the AMPS as enforced by the CFIA, it began to adopt an identity beyond its original 1985 mandate of reviewing decisions of the Board of Arbitration. Since 1998, the Tribunal reviewed twelve decisions of the Board of Arbitration. Examination of the first and last of these twelve cases nicely illustrates the gradual separation of the Board of Arbitration and the Review Tribunal as spurred by the creation of the CFIA and the AAAMP Act.

The first case, which involved a dispute over the grade of a shipment of mangoes, began the process of review with the Tribunal in February 1998. The original incident occurred in 1996 and the Board of Arbitration had rendered its decision over the dispute in December 1997. In March 1999, Kenneth Bruce, the Chairman of the Tribunal upheld the Board of Arbitration’s decision.

Correspondence within this case file reveals that when the Tribunal review began in 1998, the Board of Arbitration and Review Tribunal for the Fresh Fruit and Vegetable Industry were situated in the same office at 59 Camelot Drive in Ottawa and were served by the same secretary, Helen Zohar-PiccianoFootnote 19. The correspondence traces the Review Tribunal’s move to Building 60, Birch Drive on the Central Experimental Farm in Ottawa in the spring of 1999. After the move, the Review Tribunal changes its name from the "Review Tribunal for the Fresh Fruit and Vegetable Industry" to "Review Tribunal".

The last decision of the Board of Arbitration that the Tribunal has reviewed regarded a disputed shipment of bananas, the quality of which violated the Produce and Licensing Regulations SOR/84-432. The Board of Arbitration, still located at 59 Camelot Drive in Ottawa, received the complaint in 2000 and rendered its decision on November 9, 2004. By the time the decision was rendered in 2004, the Board of Arbitration had once again moved to a new office, this one located at 159 Cleopatra Drive in OttawaFootnote 20. In the correspondence between the Tribunal and the Board of Arbitration, the Board of Arbitration is no longer called the Board of Arbitration for the Fresh Fruit and Vegetable Industry but the Board of Arbitration, CFIAFootnote 21.

The request for review was received at the Review Tribunal on December 10, 2004. The Review Tribunal upheld the decision of the Board of Arbitration in February 2005.

c. The Fruit and Vegetable Dispute Resolution Corporation is formed in 2000 to reflect changes in the international market

Most of the cases the Review Tribunal has received from 1998-2009 from the Board of Arbitration involved incidents that had occurred prior to the year 2000. The sudden drop in requests for review of Board of Arbitration decisions is due to the creation of the Fruit and Vegetable Dispute Resolution Corporation (FVDRC) in 2000, which partially took over the role of the Board of Arbitration.

The FVDRC reflected section 707 of the North American Free Trade Agreement, which called for mechanisms for dealing with international trade disputesFootnote 22. It is a non-profit organization which arbitrates disputes between fruit and vegetable dealers. For companies based in Canada, membership is just over $1000 per year and ensures companies that disputes will be dealt with quickly and inexpensivelyFootnote 23. As of November 2009, the FVDRC has just over 1000 members.

After 2000, Canadian importers of fruit and vegetables were currently required to either be members of the FVDRC or licensed with the CFIA.Footnote 24Footnote 25 In July 2000, the section on the Board of Arbitration and Review Tribunal in the Licensing and Arbitration Regulations (SOR/84-432) was revoked and replaced with provisions that mention the Board of Arbitration, but not the Review Tribunal. Section 20 of the Licensing and Arbitration Regulations was amended to include a $400 fee for the filing of a complaint to the Board of Arbitration about a licence, and an $800 fee for hearings in which the parties wish to appear in person before the Board of Arbitration.Footnote 26Footnote 27

VI. 2001 – Present

a. Changes in the Licensing and Arbitration Regulations redefine the role of the Board of Arbitration.

Useful insight into the evolution of the Board of Arbitration after 2000 is found in a Regulatory Impact Analysis Statement (RIAS) accompanying an amendment to the Licensing and Arbitration Regulations SOR/84-432 made in 2005Footnote 28. According to the RIAS, in 2005 CFIA’s annual licences for fruit and vegetable dealers cost just over $1000 in 2005. They had licensed approximately 130 dealers in 2004. The contact person listed for this amendment is Helen Zohar-Picciano, the former secretary for the shared Board of Arbitration/Review Tribunal office at 59 Camelot Drive in 1998. In 2004, she was the Chief of the Licensing and Arbitration Program (CFIA), which was located at 159 Cleopatra DriveFootnote 29.

b. The creation of regulations for the Health of Animals Act and Pest Control Products Act increase scope of Review Tribunal’s work.

As the Board of Arbitration underwent several moves and adjusted to its decreased presence in the fruit and vegetable sector, the Review Tribunal remained at Building 60, Birch Drive on the Central Experimental Farm in Ottawa reviewing violations received under Agriculture and Agri-Food Administrative Monetary Penalties Act 1995. c.40.

Regulations for the Health of Animals Act enforced by the CFIA were created in 2000 and regulations for the Pest Control Products Act enforced by the Pest Regulatory Management Agency (PMRA) were created in 2001. Under the Agriculture and Agri-Food Administrative Monetary Penalties Act of 1997, review for penalties received for violations of the Pest Control Products Act and Health of Animals Act fell under the jurisdiction of the Tribunal.

In 2005, the enforcement for Health of Animals Act and the Plant Protection Act was partially taken over by a new government entity called the Canadian Border Services Agency (CBSA)Footnote 30. Today, the bulk of the Canada Agricultural Review Tribunal’s caseload comes from the CBSA and the CFIA under the Health of Animals Act and the Plant Protection Act.

Footnotes