Practice Notes


2010 - Practice Note #1 - Use of Pre-hearing Conferences

Issued January 15, 2010 (Revised: July 1, 2016)

Process and Procedure

At the direction of the Chairperson, the Tribunal's Registry staff may schedule a pre-hearing conference with parties to resolve any issues that might expedite the proceedings. Parties who believe their case may benefit from a pre-hearing conference should write to the Chairperson to request a pre-hearing conference.

Pre-hearing conferences are to be set down as soon as possible, but no later than 7 days before the hearing.

Conduct of Hearing

Pre-hearing conferences may be conducted in whole or in part by teleconference, videoconference, or any other form of electronic communication (Rule 20 of the Rules of the Review Tribunal).

The primary focus of the pre-hearing conference is to discuss outstanding procedural issues. Submissions are to be made by the parties, after which the Chairperson or the Member of the Tribunal will ask if the parties can agree on a resolution of outstanding matters.

Following the pre-hearing conference, the Chairperson or the Member of the Tribunal will summarize matters discussed by the parties which may include matters agreed upon and matters still outstanding and provide a copy of the summary to the parties.

Dr. Donald Buckingham
Chairperson

2010 - Practice Note #2 - Choice of Venue for Hearings

Issued January 15, 2010 (Revised: July 1, 2016)

Venue Selection

The Tribunal has discretion over where it will hold a hearing, but it strives to select the venue that will permit the just, most expeditious and least expensive conduct of proceedings (Rule 3 of the Rules of the Review Tribunal). The default choice of venue is the location closest to an applicant's address of record.

Neither an applicant nor respondent has the right to choose a particular venue for an oral hearing. However, the applicant must elect between a review by written submission or by an oral hearing.

Change of Venue Procedure

Where an applicant would prefer a venue other than the one closest to his or her address of record, the applicant must provide sound reasons justifying the change. Reasons may include the location of witnesses he or she intends to call or the fact he or she operates a business in a location different from his or her address of record.

Dr. Donald Buckingham
Chairperson

2010 - Practice Note #3 - Open Court Principle and Privacy Concerns

Issued January 15, 2010 (REVISED July 1, 2016 and January 3, 2017)

Access to Documents and Decisions

The Tribunal adopts the open court principle such that its court records, decisions, and hearings are open and accessible to all.

All documents filed with the Tribunal – including submissions, reports, Notices of Violations, and photos – are public documents. This means anyone may access these documents unless the Tribunal orders that certain documents or parts of documents are confidential notwithstanding the public interest in open and accessible court proceedings. A person who requests copies of documents from the Tribunal is responsible for any related costs. The fees payable for copies are based on Tariff A of the Federal Court Rules.

All Tribunal decisions are made accessible in full to the public by listing them on the Tribunal website. Hearings are by default open to the public unless the Tribunal has ordered that a proceeding by held in camera (Rule 19 of the Rules of the Review Tribunal).

Online Privacy Initiative

The Canada Agricultural Review Tribunal, in conjunction with the Heads of Federal Administrative Tribunals Forum and the Tribunal website hosting service, uses a “web robot exclusion protocol” as part of the Tribunal website to restrict the global indexing of specifically designated documents posted on websites. This “web robot exclusion protocol” excludes internet searches designed to generate results solely from the online scan of a Tribunal decision by a search engine.

Dr. Donald Buckingham
Chairperson

2010 - Practice Note #4 - Requests for Adjournments and Postponements of an Oral Hearing

Issued March 31, 2010 (Revised: July 1, 2016)

Scheduling Oral Hearings

Where a review proceeds by way of an oral hearing, the Tribunal will send a notice of hearing to all parties at least 30 days before the scheduled date of the hearing (Rule 37 or Rule 53 of the Rules of the Review Tribunal). Where possible, the Tribunal's Registry staff will canvass dates for the hearing that are mutually convenient for the parties and the Tribunal.

Adjournments and Postponements

The Tribunal expects parties will do their utmost to be present at the hearing on the scheduled date set out in the hearing notice. If they do not attend, the Tribunal may proceed in the party's absence and grant or dismiss the request for review (Rule 39 or Rule 54 of the Rules of the Review Tribunal). Parties should not expect that the Tribunal will routinely grant adjournments or postponements.

A party, however, may be unable to attend the hearing due to unforeseen or extenuating circumstances which would warrant an adjournment or postponement. For example, the unavailability of a witness or a party becoming ill may result in unfairness if the hearing proceeds on the scheduled date.

Procedure for Seeking an Adjournment or Postponement

Parties should contact the Tribunal as soon as possible (at least 8 days before the scheduled hearing date) if they wish to request an adjournment or a postponement of the oral hearing (Rule 40 or Rule 55 of the Rules of the Review Tribunal). The request for an adjournment or postponement should be made by way of a letter to the Tribunal setting out:

  1. the case number and parties involved;
  2. the currently scheduled hearing date for the matter;
  3. the reason(s) necessitating the request of a postponement or adjournment;
  4. whether the Tribunal has previously granted a postponement or adjournment in the matter; and
  5. at least three new proposed hearing dates.

Once the request has been received, the Tribunal will contact the other party to determine that party's position with respect to the request. In most cases, where both parties agree to the adjournment or postponement, the Tribunal will grant the adjournment or postponement and set another date for the oral hearing. If the other party does object, the Tribunal will request written reasons from the objecting party as to why the adjournment or postponement should not be granted. The Tribunal will share those reasons with the first party and then render its decision on whether the adjournment or postponement will be granted.

The parties will be advised in writing of the Tribunal's decision regarding the request for adjournment or postponement. Once a new hearing date is set, the Tribunal will provide all parties at least 30 days' notice (unless a shorter time is agreed to by both parties and by the Tribunal).

Where an adjournment or postponement is not granted, the parties will be required to attend to present their respective cases on the originally scheduled hearing date.

Dr. Donald Buckingham
Chairperson

2010 - Practice Note #5 - Requests for Extension of Time for Filing Documents

Issued March 31, 2010 (Revised: July 1, 2016)

Deadlines and Extensions

Parties to a request for review are required to meet strict deadlines for the filing of materials. Rules 29 to 38 of the Rules of the Review Tribunal are applicable for an action proceeding from a request to review a notice of violation. Rules 44 to 53 are applicable for an action proceeding from a request for review of a Minister's decision.

Where a party is unable to meet a deadline governed by the Rules of the Review Tribunal, it may request that the Tribunal grant an extension (Rule 6 of the Rules of the Review Tribunal. However, the Tribunal expects that parties will meet the statutory deadlines. Parties should not assume that the Tribunal will routinely grant extensions of time for filing documents

It is also important to note that deadlines which are not set out in the Rules of the Review Tribunal, but instead in other agriculture and agri-food statutes and regulations cannot be extended by the Tribunal.

Process for Requesting Extensions of Time

A party can seek an extension of filing deadlines by sending a letter to the Tribunal which sets out:

  1. the case number and parties involved;
  2. the current time limit for the required filing as required by Tribunal Rules or by a direction of the Tribunal;
  3. the reason why the request of an extension is necessary;
  4. whether the Tribunal has previously granted an extension in the matter; and
  5. the length of extension requested.

The Tribunal requires convincing and cogent reasons for an extension of more than 15 days in total.

The Tribunal will contact the other party to determine its position with respect to the request for extension of time. In most cases, where both parties agree to the extension, the Tribunal will grant an extension of time. If the other party does object, the Tribunal will request written reasons from the objecting party as to why the extension of time should not be granted. The Tribunal will share those reasons with the first party and then render its decision on whether the extension of time will be granted.

The parties will be advised in writing of the Tribunal's decision regarding the request for extension of time.

Where an extension is not granted, the parties will be required to file all documents within the time limits already established.

Dr. Donald Buckingham
Chairperson

2010 - Practice Note #6 - Witnesses, Evidence, and Procedures for Obtaining a Summons to Secure the Attendance of a Witness at Oral Hearings of the Canada Agricultural Review Tribunal

Issued May 31, 2010 (REVISED July 1, 2016 and June 1, 2017)

Witnesses

Where a review proceeds by way of an oral hearing, the Canada Agricultural Review Tribunal (the Tribunal) may hear witnesses for the purpose of receiving evidence (Section 8 of the Section 8 of the Canada Agricultural Products Act).

It is the responsibility of each party to make arrangements with the person(s) they would like to appear and provide evidence on their behalf. A witness is expected to:

  1. provide evidence that is relevant to the case;
  2. swear or affirm that the evidence they are about to give is the truth; and
  3. at all times, be courteous to the other party and to the Tribunal member and staff.

In any case where a witness is unable to meet these requirements, he or she may be asked to step down from the witness box and cease providing any further evidence.

Where parties do intend to call witnesses to provide evidence at an oral hearing, the Tribunal may rule that evidence already given by way of affidavit will be sufficient and evidence on the same or similar issues will not be admitted from the same witnesses at the oral hearing.

Compelling Witness Attendance: Obtaining a Summons

No person is required to give evidence on behalf of a party unless that person agrees to do so, or the person is summoned to give evidence under the power of a summons issued by the Tribunal.

A summons should take the form of Annex 1 - Template of Summons. A summons will only be issued where the Tribunal is made aware of the need and relevance of the evidence of the proposed witness. To substantiate such need and relevance, the party requesting a summons should provide the Tribunal with the following information:

  1. the full name of the person summoned to appear before the Tribunal, that person’s profession, occupation or company position, and that person’s contact information;
  2. the particular information that is being sought from the witness (an insufficient response to this element, due to lack of specificity and potential unfairness to the prospective witness, would be “everything in the possession of said person relevant to the proceedings”);
  3. a short statement of how the proposed witness’s information (written, oral or demonstrative) is relevant to the proceedings; and
  4. a short rationale as to why a summons is thought to be necessary to secure the attendance of the proposed witness.

Where the above conditions for the issuance of a summons are met, the Chairperson, presiding member, or designate with express approval, will sign and issue the summons (Subsection 8(2) of the Canada Agricultural Products Act).

For the issuance of summons, the Tribunal is guided by Federal Court Rules and specifically Rule 41 which provides that subpoenas may be issued blank to the requesting party. The Tribunal will issue a summons document, duly signed by the Chairperson or presiding Member, or in exceptional circumstances by staff of the Tribunal (when such has been approved by the Chairperson or Member), with the fields pertaining to witness allowances left blank. The requesting party is responsible for determining the appropriate witness fees in accordance with Tariff A of the Federal Court Rules and for completing the summons document accordingly. It is also the responsibility of the requesting party to arrange for service upon the individuals named in the summons.

Please note that in the event that the requesting party cannot agree with one of the proposed witnesses as to the applicable witness fees, the requesting party may seek direction from the Chairperson or Member assigned to the case, by contacting the Tribunal Registry.

Unless exceptional circumstances exist and a party can demonstrate it would have been impossible to request a summons earlier, no summons will be issued by the Tribunal less than 10 days before the hearing at which the proposed witness will have to testify.

Service and Payment Required

For an issued summons to have legal effect, two further conditions must be met by the party requesting the summons: (1) the summons must be properly served on the subject person; and (2) the witness must be paid approved witness costs, fees or attendance money in accordance with Tariff A of the Federal Courts Rules.

Unless there are exceptional circumstances, the witness should be served at least 7 clear days prior to the hearing, and the party serving the person being summoned must retain proof of service and payment of approved witness costs, fees or attendance money.

If witness costs are not paid, or payment cannot be agreed upon prior to the hearing to which a witness is summoned, the summoned person is under no legal obligation to attend the hearing to give evidence.

Dr. Donald Buckingham
Chairperson

2010 - Practice Note #7 - Withdrawing Cases

Issued August 31, 2010 (Revised: July 1, 2016)

Withdrawal of a case prior to issuance of the Tribunal's decision

Prior to the issuance of the Tribunal's decision, either party may, in writing, indicate that it is withdrawing from the Tribunal proceedings.

An applicant who chooses to withdraw a request for review will:

  1. indicate the name of the case;
  2. set out the date of the alleged Notice of Violation that is the subject of the case;
  3. indicate the hearing date, if one has been requested or has occurred;
  4. set out clearly a statement to the effect that he or she is withdrawing his or her request for review to the Tribunal; and
  5. provide the date on which he or she has paid or will pay the monetary penalty that is the subject of the Notice of Violation in question.

A respondent who chooses to withdraw a Notice of Violation will:

  1. indicate the name of the case;
  2. set out the date of the alleged Notice of Violation that is the subject of the case;
  3. indicate the hearing date if one has been requested or has occurred; and
  4. set out clearly a statement to the effect that it is withdrawing its Notice of Violation that is the subject of the case, thereby terminating the case and the Tribunal's consideration of the applicant's request for review.

When the Tribunal receives notice from an applicant or a respondent to withdraw a case prior to the issuance of the Tribunal's decision, the Tribunal will acknowledge receipt of the notice and send a copy of the notice to the other party. This formally concludes the matter between the parties and the Tribunal. No further documents will normally be exchanged between the parties.

No documents submitted to the Tribunal during its consideration of a request for review will be returned to the parties.

Withdrawal of a case after issuance of the Tribunal's decision

The Tribunal cannot consider any request for a withdrawal of a case after the issuance of the Tribunal's decision, since the Tribunal's jurisdiction ends with the rendering of its decision and its upholding or dismissing of the Notice of Violation in the case. At the point where the Tribunal renders its decision, it becomes functus officio (unable to act further in the matter). There is no valid authority remaining in the Tribunal under the constituting statute, to accept, receive, or even take cognizance of any further documents filed by the parties.

The sole avenue to challenge a decision of the Tribunal is by way of application for judicial review to the Federal Court of Appeal. Following such review, if, and only if, the Federal Court of Appeal orders the Tribunal to reconsider some aspect of the matter reviewed, then the Tribunal once again has the ability, or jurisdiction to examine the matter.

Dr. Donald Buckingham
Chairperson

2011 - Practice Note #8 - Pilot Project for the Electronic Filing of Documents (April 1, 2011 to December 31, 2011)

Issued March 31, 2011 (superseded by Practice Note #14 issued July 31, 2014 which was Revised: July 1, 2016)

This Practice Note is now retired.

Dr. Donald Buckingham
Chairperson

2011 - Practice Note #9 - Standards of Review and Submission of Evidence: Differences between Requests for Review Directly from an Agency Notice of Violation and Requests for Review from a Minister's Decision

Issued November 10, 2011 (Revised: July 1, 2016)

First instance reviews versus reviews of Ministers' decisions

There are two ways in which a case can come before the Tribunal under the Agriculture and Agri-Food Administrative Monetary Penalties Act (AMP Act):

  1. "Direct" or "first instance" review requests: a person who receives a Notice of Violation can make a request directly to the Tribunal for a review of the facts of the violation.
  2. Ministerial decision review requests: a person who receives a Notice of Violation and has then made a request for review of the facts of the violation by the Minister and has received the Minister's decision, can request a review of that decision by the Tribunal.

Choosing the Tribunal or the Minister as the initial decision-maker to review the facts of a Notice of Violation is a choice entirely at the preference of the applicant. If an applicant begins with a review to the Tribunal, they cannot afterwards seek a review by the Minister. The Tribunal and its staff cannot advise an applicant which option to pursue in filing an initial request for review.

Time limits and modes of filing Requests for Review

The applicant has only 30 days after the day on which the Notice of Violation was served on him or her to make the request for first instance review to either the Minister or the Tribunal.

When filing a request for review of a Minister's decision to the Tribunal, the applicant has only 15 days after the day on which the Minister's decision was served on him or her to make such a request.

All requests for review must be, however, filed with the Tribunal by a permitted method. Permitted methods include: by hand to the Tribunal office in Ottawa; by registered mail; by courier; by fax; or by electronic means. Regular mail is not a permitted method. Where the applicant makes a request for review by permitted method simultaneously to both the Tribunal and the Minister, the Tribunal will liaise with the Minister and the parties to establish which venue is proceeding with the case, so that only one decision maker is considering the case in the first instance.

Rules of specific application: standards of review

Administrative law holds the first type of case - first instance or direct review requests - requires that the Tribunal act as the initial decision-maker as to whether the claims made in the Notice of Violation can be sustained in law.

The Tribunal must hear all relevant evidence and arguments presented to it by the parties and then must make a determination as to whether the Notice of Violation should be upheld or set aside based on that evidence, argument, and the applicable law.

The standard of review to be applied by the Tribunal in this instance is that the Tribunal must make reasonable findings of fact on the basis of the evidence presented and must correctly assess the law that is applicable to the case. If it does not do so, it may be overturned by its supervising body, the Federal Court of Appeal.

When the Tribunal receives the second type of case - a ministerial decision review request - it must undertake a slightly different exercise. In a review of a Minister's decision, where the applicant is challenging the decision of the Minister who has reviewed the agency's Notice of Violation, the Tribunal acts as a reviewing body. The Tribunal can "confirm, vary or set aside any decision of the Minister" (section 14(1)(a) of the AMP Act).

As such, the Tribunal performs a function not as a decision maker of first instance or as a court conducting a judicial review, but rather as a specialized or appellate administrative tribunal reviewing an administrative decision of first instance. Although the AMP Act provides for a review, as well as possible remedies, it does not specify the type of review to be conducted by the Tribunal.

The Tribunal has held that a de novo type of administrative review may apply to a Minister's decision under the AMP Act. This type of examination would not require the Tribunal to ask the parties to present anew the evidence in this case. It does, however, require the Tribunal to fully examine and consider the evidence presented, to evaluate its relevance and weight, and to review factual findings made by the Minister, including additional factual findings, if any, that may be required for the resolution of the case. The Tribunal must also apply the appropriate law to the factual findings of the case to determine if the decision of the Minister should be confirmed, varied or set aside.

Rules of specific application: submission of evidence

The Tribunal may during a hearing receive such evidence as it considers relevant and trustworthy (paragraph 8(2)(c) of the Canada Agricultural Products Act). This gives a wide scope to the Tribunal in the admission of evidence in general.

This is particularly true for requests for review from applicants directly challenging an Agency's Notice of Violation before the Tribunal. The Tribunal must hear all relevant evidence and arguments presented to it by the parties and then must make a determination on the validity of the Notice of Violation based on that evidence, argument and the applicable law. General requirements in this regard have been set out in the Tribunal's Practice Note #6 - Witnesses, Evidence, and Procedures for Obtaining a Summons to Secure the Attendance of a Witness at a Oral Hearings of the Tribunal.

The Tribunal will generally limit the admission of new evidence when asked to review Ministers' decisions. There may be circumstances where it will be appropriate for parties to introduce new evidence at a hearing of a ministerial decision review request (Rule 44 of the Rules of the Review Tribunal).

If new evidence is pivotal to a factual determination and could change that determination, the Tribunal will consider admitting it, subject to an assessment of its relevance to the case and its prior availability. Therefore, when an applicant or an agency in a specific case wishes to present new evidence in a ministerial decision review request, the party wishing to introduce such evidence must present it to the Tribunal as soon as possible. The Tribunal will provisionally receive the evidence, hear arguments from both parties as to whether it meets the standard for admission, and then make a ruling whether such evidence will be admitted. This determination will be on a case-by-case basis and can be done at any stage of the hearing process.

Dr. Donald Buckingham
Chairperson

2012 - Practice Note #10 - Extension of the Pilot Project for the Electronic Filing of Documents

Issued January 3, 2012 (superseded by Practice Note #14 issued July 31, 2014 which was Revised: July 1, 2016.)

This Practice Note is now retired.

Dr. Donald Buckingham
Chairperson

2013 - Practice Note #11 - Determining Admissibility of Requests for Review and Practices Regarding the Exchange of Documents Amongst Applicants, Respondents and the Tribunal

Issued May 1, 2013 (Revised: July 1, 2016)

Admissibility of a Request for Review to the Tribunal

In order for a request for review to be considered by the Tribunal, it must be first found to be admissible. To be admissible, the applicant must have complied with the requirements of the agriculture and agri-food statutes and regulations related to the jurisdiction of the Tribunal. If these requirements are not met, the request for review will be inadmissible and the applicant's request will be dismissed.

Mode of Filing

A request for review must be submitted to the Tribunal by hand, registered mail, courier, email or fax. Ordinary mail is not a valid method of filing a request for review and is not permitted.

Where a request is sent by email or fax, a copy of the request must also be sent by registered mail (Section 14 of the Agriculture and Agri-Food Administrative Monetary Penalties Regulations). The Tribunal requires the copy to be sent by registered mail with 30 days of the original request by email or fax.

Form and contents of a Request for Review to the Tribunal

Applicants are encouraged to use the Tribunal's Request for Review form when filing a request for review. However, applicants are free to use any form they choose provided that the request is made in writing within the prescribed time limits and includes all necessary information.

A request for review must include:

  • the applicant's full name and contact information, including telephone number, physical and postal address, and email coordinates;
  • where the applicant has an agent, the full name and contact information of the agent, including telephone and fax numbers, physical and postal address, and email coordinates;
  • where the applicant has an agent, and the agent is not a lawyer, a written document authorizing the agent to act for the applicant;
  • reasons for the request to review the Notice of Violation or reasons to vary or set aside the Minister's decision upholding a Notice of Violation;
  • choice of English or French as the official language of the review (if neither is declared by the applicant, the language in which the request for review is written will be deemed to be the official language of the review);
  • whether a hearing is requested; and
  • a copy of the Notice of Violation and any other documents upon the applicant relies to support his or her case.

The applicant's reasons should not include defences that are not allowed under section 18(1) of the Agriculture and Agri-Food Administrative Monetary Penalties Act (see Rule 31(d) of the Rules of the Review Tribunal). Applicants, therefore, cannot argue that they exercised due diligence or were mistaken to prevent a finding that the alleged violation is upheld.

Requests for review are most commonly found to be inadmissible when:

  1. an applicant is filing a request for review after they have already paid the monetary penalty set out in the Notice of Violation; and
  2. an applicant is filing a request for review after the prescribed deadlines have passed.

Both are absolute bars to the Tribunal carrying out a review of an Agency's Notice of Violation or Minister's decision.

Payment of monetary penalty

Where a Notice of Violation sets out a penalty and the person named in the notice pays the penalty, the person is deemed to have committed the violation and the right to request a review by the Tribunal is extinguished (Section 9 of the Agriculture and Agri-Food Administrative Monetary Penalties Act).

The right to request a review of the Notice of Violation is an alternative to payment. As such, the person who wishes to maintain their right to request a review must submit their request in the prescribed time and manner, instead of paying the penalty set out in the Notice of Violation.

Exceeding time limits

An applicant must make his or her request for review of a Notice of Violation to the Tribunal in writing within 30 days after the day on which the Notice of Violation is served (Section 11 of the Agriculture and Agri-Food Administrative Monetary Penalties Regulations and section 11 of the Agriculture and Agri-Food Administrative Monetary Penalties Regulations Respecting the Pest Control Products Act and Regulations).

Where an applicant has first sought a review by the Minister, the applicant must make his or her request for review of a Minister's decision to the Tribunal in writing within 15 days after the day the Minister's decision is served (Section 13 of the Agriculture and Agri-Food Administrative Monetary Penalties Regulations and section 12 of the Agriculture and Agri-Food Administrative Monetary Penalties Regulations Respecting the Pest Control Products Act and Regulations).

A document is served or deemed to have been served by the Minister:

  1. on the day that it is personally served;
  2. on the day it is sent, if sent by fax or other electronic means; or
  3. on the 10th day after the date indicated in the receipt, if sent by registered mail or by courier (Sections 8 of the Agriculture and Agri-Food Administrative Monetary Penalties Regulations and section 9 of the Agriculture and Agri-Food Administrative Monetary Penalties Regulations and Sections 8 of the Agriculture and Agri-Food Administrative Monetary Penalties Regulations and section 9 of the Agriculture and Agri-Food Administrative Monetary Penalties Regulations Respecting the Pest Control Products Act and Regulations).

Example of calculation of time limits

Agency's Notice of Violation: If you are served with a Notice of Violation on February 25, 2013, you must count 30 days starting with February 26, 2013, which brings you to March 27, 2013. Therefore, March 27, 2013 is the last day on which you can file your request for review with the Tribunal.

Minister's decision: If you are requesting a review of a Minister's Decision served on you on February 25, 2013, you must count 15 days starting with February 26, 2013, which brings you to March 12, 2013. Therefore, March 12, 2013 is the last day on which you can file your request for review with the Tribunal.

Other bars to admissibility

If the Tribunal determines that an applicant's request for review may not be admissible, the Tribunal may contact the applicant to request supplementary information.

Other bars to admissibility arise where the applicant has failed to provide any permissible reason for the Tribunal to review the Agency's decision. Permissible reasons would include any information provided by the applicant that the alleged violation did not occur or that the person named in the notice of violation is not the person who committed the violation.

Providing no reasons to support one's request will be a bar to admissibility. To permit a request for review to proceed to a full hearing without any reasons, or only on the basis of non permissible reasons, would run counter to the objectives of fairness and efficiency of the administrative monetary penalties (AMP) system. When the reasons provided by the applicant for a request for review do not reveal any possible basis on which the applicant could succeed, then the Tribunal will declare the request for review inadmissible.

Where the Tribunal determines that a request for review is inadmissible, it will send the applicant and either the Agency or the Minister, depending on the case, a notice to that effect.

An inadmissible decision indicates that the Tribunal will not proceed with the case, unless ordered to do so by a decision of the Federal Court of Appeal upon judicial review of the Tribunal's admissibility determination.

If a request for review is determined to be admissible, Tribunal staff will advise the parties and the matter proceeds through the normal steps set out in the relevant agriculture and agri-food statutes and regulations.

Dr. Donald Buckingham
Chairperson

2013 - Practice Note #12 - Purpose of an Oral Hearing and Rights of Parties

Issued May 1, 2013 (Revised: July 1, 2016)

Any person seeking a review by the Tribunal of an Agency's Notice of Violation or a Minister's Decision may request an oral hearing (Section 15 of the Agriculture and Agri-Food Administrative Monetary Penalties Regulations or Agriculture and Agri-Food Administrative Monetary Regulations Respecting the Pest Control Products Act and Regulations and Rules 35(a) or Rules 51(a) of the Rules of the Review Tribunal).

Purpose of an Oral Hearing

The hearing is intended to assist the Tribunal in deciding the review by providing parties an opportunity to make oral submissions to supplement any written submissions. It also provides parties the opportunity to introduce evidence through the testimony of witnesses. With respect to the general rules regarding witnesses and their evidence, see Practice Note #6 - Witnesses, Evidence, and Procedures for Obtaining a Summons to Secure the Attendance of a Witness at Oral Hearings of the Tribunal.

To make its decision, the Tribunal will carefully and impartially consider all submissions provided by the person named in the violation, representatives from the relevant government agency, and any other parties to the review.

Rights of Parties at an Oral Hearing

The Tribunal conducts its hearings according to its enabling statute, regulations, rules, and policies set out in Practice Notes. In addition to these provisions, the Tribunal is also guided by common law principles of procedural fairness. Generally speaking, parties (both the person seeking the review and the government agency representative) before the Tribunal have the following rights:

  • the right to know the case to meet (the issues and the possible consequences of the proceeding);
  • the right to have an opportunity to respond (to have a hearing and present the case to the Tribunal);
  • the right to have the decision made by an impartial Tribunal member; and
  • the right to have the decision made only by the Tribunal member who heard the request.

Responsibilities of Parties at an Oral Hearing

The parties are encouraged to consult the Rules of the Review Tribunal as well as the various Practice Notes issued by the Tribunal and the Guide for Self-Represented Litigants when preparing for and participating at Tribunal hearings. The Tribunal also has a general expectation that parties will accept the responsibility of observing appropriate rules of decorum and conducting themselves with civility towards the presiding member of the Tribunal, the other party, and all witnesses.

It is the responsibility of the Tribunal to hear the parties and their witnesses at an oral hearing. It is the responsibility of the parties to be present (or have an authorized representative present) at the hearing. Where one party or their representative is absent, the absent party's written evidence cannot be clarified by oral evidence. Moreover, the other party's oral testimony may be presented as uncontested. The Tribunal is permitted to proceed in the absence of a party and decide the case on both the written record and oral evidence as presented by the witnesses and the parties present who have made submissions at the hearing (Rules 39 & 54 of the Rules of the Review Tribunal.

Unless the Tribunal allows a party to present all or some part of its case by teleconference, the Tribunal expects in-person attendance of both parties at each oral hearing.

Dr. Donald Buckingham, Chairperson

2014 - Practice Note #13 - Raising a Constitutional Question

Issued January 1, 2014 (Revised: July 1, 2016)

Notice of Constitutional Question

A party appearing pursuant to an admissible request for review before the Tribunal may, in appropriate circumstances, wish to challenge the validity or constitutional applicability of a law or regulation falling under its jurisdiction. Such challenges are considered by the Tribunal to be "constitutional questions".

When a constitutional question is raised, the Canadian and provincial governments have a right to be notified, to prepare for, and to participate in the proceedings.

Parties must provide a completed "Notice of Constitutional Question" by way of Form 69 of the Federal Court Rules outlining the legislation or government action being challenged and the reasons.

A law or regulation will not be judged to be invalid, inapplicable or inoperable unless notice has been served on the Attorney General of Canada and the Attorney General of each province.

Timing and Form

A party may raise a constitutional question at the same time, or after, the filing of a request for review before the Tribunal. Failure to raise a constitutional question in the manner and within the timelines prescribed can result in a finding that the violation took place, regardless of the constitutional issues identified.

Section 57 of the Federal Courts Act requires that notice of a constitutional question be served on the Attorney General of Canada and each province a minimum of 10 days before the date on which the constitutional question will be argued, unless ordered otherwise by the Tribunal.

Notice must include:

  • the name of the party or parties raising the constitutional question;
  • the precise provision at issue;
  • the constitutional question;
  • the desired outcome and the legal reasoning behind this desired outcome.

While the minimum notice requirement remains 10 days before the hearing date, it is prudent to provide earlier notice, as the work involved in defending a constitutional question often requires a significant amount of research and preparation on the part of the government. As failure to provide reasonable notice can significantly delay the hearing process, the Tribunal has the discretion of determining what it believes to be a reasonable amount of notice for constitutional questions.

In conjunction with the notice requirement, there is also an obligation to explain the constitutional question being put forward. It is not enough to say that a constitutional right has been denied by a particular Act, regulation or policy. For a constitutional challenge to be successful, a party must explain how and why his or her rights have been infringed or why and how government action was not justifiable.

A constitutional question may be separated or separate from the original request for review but the Tribunal will inform the parties of its determination as to whether the constitutional question will be argued separate from, or together with, the merits of the case.

Dr. Donald Buckingham
Chairperson

2014 - Practice Note #14 - Creation of an E-Registry

Issued July 31, 2014 (Revised: July 1, 2016)

Electronic filing

The Tribunal is expanding electronic filing to include all documents exchanged between parties and the Tribunal in order to provide more accessible, timely and cost-effective service.

For all requests for review filed with the Tribunal after July 1, 2014, the Tribunal Registry Services will create and maintain a complete electronic record of all materials associated with the request. To facilitate this exercise, the Tribunal Registry Services encourages parties to provide their documentation and presentations in electronic formats. Note that paper formats are still required for certain documents.

The following table is a summary of the documents that must be filed in paper format and the ones which may be filed in electronic format:
Document Paper Electronic
Initial request for review documents Mandatory to file one paper copy with Tribunal by registered mail or courier. Parties are encouraged to file an electronic copy in addition to mandatory paper copy.
Minister's information from the Agencies Mandatory to submit one paper copy to applicant and one paper copy to Tribunal. The second copy to Tribunal may be paper or electronic. Agencies are encouraged to file the second copy with the Tribunal as an electronic copy.
Any other documents in proceedings Not required, but still permitted in paper format. Parties are encouraged to file all other documents in electronic format.

Initial request for review documents

The legislative provisions outlining the process for filing requests for review with the Tribunal remain unchanged. Therefore, if a party wishes to file their request for review by electronic means, they are still required to file the request for review later in paper copy by registered mail.

Minister's information from the Agencies

The Tribunal will also continue to request that Agency parties submit one paper copy and one electronic copy of the Minister's information, as required by the Rules of the Review Tribunal, to the applicant and the Tribunal.

All other documents in proceedings

The parties may continue to file all other documents in paper copy, but the Tribunal's preference would be that, whenever possible, the parties would file proceeding documents with the Tribunal, other than the initial request for review and Minister's reports, electronically with a copy to the opposing party. While the Tribunal does not currently intend to require parties to file their submissions electronically, this practice does provide significantly faster and more certain response times, while minimizing the amount of paper waste generated. As such, the Tribunal encourages parties to take full advantage of electronic submissions to the Tribunal e-Registry.

Preferred format for filing documents electronically

The parties are encouraged to file their documents with the Tribunal in PDF format.

Dr. Donald Buckingham
Chairperson

2015 - Practice Note #15 - Presenting Evidence & Making Submissions to the Tribunal, Including the Use of Audioconferencing and Videoconferencing

Issued December 23, 2015 (Revised: July 1, 2016)

Submissions and Evidence

Parties present evidence and submissions to the Tribunal in order to support their case. To make its decision, the Tribunal carefully and impartially considers all evidence and submissions provided by the person named in the violation, representatives from the relevant government agency, and, when so recognized by the Tribunal, any other parties to the review.

Types of Submissions

Cases before the Tribunal may proceed by way of oral hearing or by written submissions alone. In both cases, the Tribunal encourages parties to file written submissions which summarize all relevant facts and present arguments as to how these facts support the finding that the party desires. If the matter proceeds by way of an oral hearing, the Tribunal will hear arguments from the parties at the oral hearing. In exceptional circumstances, an oral hearing may proceed with one or both of the parties presenting their submissions by audioconference or videoconference.

Types of Evidence

Evidence can be submitted to the Tribunal in the form of documents (documentary evidence), by filing tangible objects (physical evidence), or by way of testimony (oral evidence).

Evidence given under oath or solemn affirmation is generally considered more trustworthy. Written evidence may be given by way of affidavit. All oral evidence must be given under oath or solemn affirmation.

Deadlines

1) Documentary Evidence & Written Submissions

a) During the exchange period

Parties normally have 30 days from the date the Minister files his reports, documents or exhibits to exchange documents and submissions. The Rules of the Review Tribunal (Canada Agricultural Review Tribunal) provide further details on the exchange of documents. The application of these Rules is dependent upon whether the applicant seeks to review a Notice of Violation (Part 3, Rule 36) or a Minister's decision (Part 4, Rule 52).

b) Written submissions after the exchange period

After the deadline specified in Rule 36 or 52 has expired, parties must seek permission from the Tribunal to make additional written submissions.

c) Evidence in writing by way of affidavit

Rule 21 indicates that a party may present affidavit evidence by serving their affidavit on the other party and filing it with the Tribunal. For cases proceeding by way of oral hearing, the affidavit must be filed at least 15 days before the hearing. For cases proceeding by way of written submissions only, affidavits must be filed within 30 days of the expiry of the time limits in either Rule 36 (for review of a Notice of Violation) or Rule 52 (for review of a Minister's decision). Rule 21 provides further details on the availability of deponents for cross-examination and filing transcripts of the cross-examination.

2) Physical Evidence

In some cases, a party may wish to provide exhibits in the form of objects relevant to the case. These tangible objects may be actual evidence (the actual animal ear tag that is part of the case record) or aids to understanding (an example of an animal ear tag that was similar to the one that was part of the case). Photos are sometimes included as part of the evidence in a case as representations of tangible objects.

3) Oral Evidence

a) In-person Testimony during an Oral Hearing

Evidence at hearings is normally provided through the testimony of witnesses who can speak directly to the facts of the case. A party may ask an expert witness to provide opinion evidence in their demonstrated areas of expertise in certain circumstances. A party at a hearing can examine their own witnesses, cross-examine any witnesses of the other party and re-examine their own witnesses on matters raised in cross-examination.

At least 20 days before the hearing of a matter, each party must serve on the other party and file with the Tribunal a list of the witnesses it intends to call, along with their civic address, or mailing address if different from their civic address and telephone number.

Parties are typically responsible for ensuring that their witnesses attend the hearing and cover any associated costs. A party may request the Tribunal issue a summons compelling a person to attend and give evidence. In such cases, the party must explain why the attendance of the witness is necessary, what information the witness will speak to, and what documents, if any, the witness should bring to the hearing. The Tribunal will either issue the summons or refuse the request. Any witness for whom a summons has been issued but who fails to appear at the hearing may face sanctions or prosecution under Canadian law.

b) By Audioconference or Videoconference During an Oral Hearing

In addition to in-person attendance at an oral hearing, a party may request that one or more of its witnesses be permitted to give evidence via audioconference or videoconference in accordance with Rule 20. Such a request made to the Tribunal must:

  • be made in writing;
  • be filed with the Tribunal and served on the other party at least 20 days before the hearing;
  • explain why the witness or witnesses cannot or should not be required to testify in person;
  • set out whether the witness or witnesses wish to present their evidence via audioconference or videoconference;
  • acknowledge that any witness presenting their evidence via audioconference or videoconference will only be allowed to do so if they agree to give that evidence under oath or solemn affirmation on the day of the hearing as required by Rule 25;
  • acknowledge that, if the request is granted, the party requesting the audioconference or videoconference option will make all necessary preparations and pay all expenses associated with the execution of the audioconference or videoconference; and
  • acknowledge that the failure of the video or audio technology on the day(s) of the hearing will not be sufficient cause for the hearing to be adjourned or delayed.

The Tribunal will immediately request the other party's response to a request for evidence to be submitted by audioconference or videoconference and that party will have 48 hours to submit its acceptance of the request or provide written reasons as to why it opposes the request. The Tribunal will then issue its decision on the request for witness audioconference or videoconference evidence.

If the Tribunal decides that audioconference or videoconference evidence for the specified witnesses will be permitted, the party leading the audioconference or videoconference evidence will confirm, at least seven days before the hearing, that the required technology will be available on the day of the hearing and, to the best of its ability, that its functionality has been verified. At the same time, the party will also send the Tribunal physical and electronic co-ordinates for contact the day of the hearing.

The Tribunal is not responsible for any costs or helpline services associated with audioconference or videoconference services that parties were permitted to use in lieu of having their witnesses attend a hearing to give evidence in person.

Presentation of a Case and Oral Arguments by Audioconference or Videoconference in Lieu of an Appearance at an Oral Hearing

Exceptionally, one party may request that the Tribunal grant the ability to present its case and oral arguments via audioconference or videoconference in accordance with Rule 20. Such a request made to the Tribunal must:

  • be made in writing;
  • be filed with the Tribunal and served on the other party at least 20 days before the hearing;
  • explain why the party cannot or should not be required to appear at the hearing in person;
  • acknowledge that, if the request is granted, the party requesting the audioconference or videoconference option will make all necessary preparations and pay all expenses associated with the execution of the audioconference or videoconference; and
  • acknowledge that the failure of the video or audio technology on the day(s) of the hearing will not be sufficient cause for the hearing to be adjourned or delayed.

The Tribunal will immediately request the other party's response to a request for presentation by audioconference or videoconference and that party will have 48 hours to submit its acceptance of the request or provide written reasons as to why it opposes the request. The Tribunal will then issue its decision on the request for presentation by audioconference or videoconference.

If the Tribunal decides that presentation by audioconference or videoconference will be permitted, the party presenting by audioconference or videoconference will confirm, at least seven days before the hearing, that the required technology will be available on the day of the hearing and, to the best of its ability, that its functionality has been verified. At the same time, the party will also send the Tribunal physical and electronic co-ordinates for contact the day of the hearing.

The Tribunal is not responsible for any costs or helpline services associated with audioconference or videoconference services that parties were permitted to use in lieu of attending a hearing to present its case and oral arguments in person.

If guidelines for the preparation of facilities for presentation by audioconference or videoconference are not completed by the deadlines established by the Tribunal and communicated to the parties, then the Tribunal expects the personal appearance of the party, or its representative or lawyer, to attend the oral hearing at the physical location set out in the Notice of Hearing for the matter.

Related Practice Notes

This Practice Note complements previous Practice Notes, including the following:

Applicable Legislation

The legislative provisions that guide the Tribunal in receiving submissions and evidence are set out in section 8 of the Canada Agricultural Products Act, Rules 21, 25, 33-36 and 49-51 of the Rules of the Review Tribunal (Canada Agricultural Review Tribunal), and section 25 of the Agriculture and Agri-Food Administrative Monetary Penalties Act.

Dr. Donald Buckingham
Chairperson

2017 - Practice Note # 16 - Obligations, Duties and Roles of Authorized Representatives

Issued April 27, 2017

Applicants with cases before the Canada Agricultural Review Tribunal (CART) can choose to present their own case or to be represented. Where applicants do not have a lawyer representing them, they may designate, in writing, an authorized representative. The authorized representative can be a family member, friend, someone from an advocacy organization or a capable third party. For corporations, partnerships or associations, the authorized representative should be an officer, partner or member, respectively. Agencies appearing before the CART can also designate non-lawyer representatives.

The CART fully supports the participation of authorized representatives during its proceedings. However, professional, civil and ethical conduct is expected of all persons appearing before the CART. The CART has an obligation to ensure the integrity of its processes and fairness to all parties by promoting high standards of conduct among all those participating in its proceedings, including authorized representatives.

This Practice Note outlines the obligations, duties and roles of persons who have been appointed as duly authorized representatives pursuant to section 18 of the Rules of the Review Tribunal (Canada Agricultural Review Tribunal) (Rules of Procedure).

OBLIGATIONS TOWARDS REPRESENTED PARTIES

All duly authorized representatives are expected to:

  • act in the interest of the represented party throughout the various stages of the CART process;
  • make decisions regarding the represented party’s case or assist the represented party in making those decisions;
  • inform the represented party about the various stages and procedures involved in their case;
  • assist the represented party in gathering evidence to support their case and in providing that evidence;
  • protect the represented party’s interests and put forward the best possible case to the CART; and
  • inform and consult the represented party to the extent possible when making decisions about their case.

DUTIES TOWARDS THE CART

Duly authorized representatives are also expected to:

  • treat the presiding Member and staff of the CART, as well as the other participants in the hearing process, with courtesy and respect;
  • obtain clear instructions from the represented party, and when appropriate, transmit those instructions to the CART;
  • be well informed of the case and the position of the represented party;
  • play an active role in the proceedings;
  • be available for hearings, conference calls and any other events scheduled by the presiding Member;
  • comply with any time limits set by the CART, as well as any other directions or orders given by the CART;
  • comply with the CART's Rules of Procedure;
  • fulfill any promises given to the CART or to another party, including promises to keep information confidential; and,
  • refrain from any activity that would undermine the proper administration of justice, such as knowingly presenting false or misleading evidence, dissuading a witness from giving truthful evidence, or failing to disclose the existence of relevant documents.

THE ROLE OF AUTHORIZED REPRESENTATIVES MAY VARY

Where an authorized representative plans on acting in several different capacities during the hearing, for example as an authorized representative, witness and translator, he or she must plan and manage his or her time and roles accordingly. It is also important to keep in mind that acting in multiple capacities during a hearing can be very strenuous and demanding on the authorized representative. Therefore, where an authorized representative plans to take on multiple roles, he or she should carefully evaluate whether doing so is feasible and in the best interests of the represented party. The authorized representative will also inform the CART that he or she plans on taking on several roles during the hearing.

FAILURE TO ABIDE BY OBLIGATIONS AND DUTIES

The CART is bound by the rules of natural justice and fairness during all of its proceedings. Nevertheless, as recognized by supervising Courts, an administrative tribunal, such as the CART, is the master of its own procedures and may take appropriate measures against any rude and disruptive behavior or an authorized representative’s failure to abide by some or all of the obligations and duties listed above.

Note: The obligations, duties and roles set out in this Practice Note apply equally, with the necessary adjustments, to unrepresented parties.

Related Practice Notes

This Practice Note complements previous Practice Notes, including the following:

Dr. Donald Buckingham
Chairperson

2017 - Practice Note # 17 - Use of Affidavit Evidence

Issued June 28, 2017

Affidavits

An affidavit is a written, sworn statement that can be submitted into evidence during a CART proceeding in place of a witness’ oral testimony. This Practice Note seeks to clarify the purpose of presenting affidavit evidence to the CART in accordance with section 21 of the Rules of the Review Tribunal (Canada Agricultural Review Tribunal) (CART Rules) and more generally.

Preparing an Affidavit

An affidavit is a written declaration or statement of facts, confirmed by the oath or affirmation of the person who is making the affidavit in the presence of an individual who has the authority to administer oaths and affirmations. A lawyer, justice of the peace, notary public or other person authorized to receive oaths must witness the signing and also sign the affidavit to affirm the authenticity and veracity of the document. An affidavit presented as evidence during a CART proceeding should take the form of affidavit form.

The person making the declaration or statement of facts, called the deponent, attests that the information contained in the affidavit is true. Intentionally false statements presented to the CART in an affidavit, as with false statements given during sworn testimony at an oral hearing, can result in a charge of perjury.

Presenting Affidavit Evidence at a CART Proceeding

Subsection 21(1) of the CART Rules provides that parties may present evidence by way of affidavit during a CART proceeding by serving the affidavit on the opposing party and filing it with the CART registry. Parties wishing to submit affidavit evidence must respect the deadlines outlined at subsection 21(1) of the CART Rules or seek the CART’s permission to file affidavit evidence outside of those deadlines (see Practice Note #15 - Presenting Evidence & Making Submissions to the Tribunal, Including the Use of Audioconferencing and Videoconferencing).

Cross-Examination on Affidavit

The opposing party may cross-examine the deponent who swore an affidavit, or present its own affidavit that describes an opposing version of events. Pursuant to subsection 21(2) of the CART Rules, the deponent of an affidavit must be made available for cross-examination by the opposing party. Pursuant to subsection 21(3) of the CART Rules the transcript of the cross-examination must be filed with the CART registry and becomes part of the official record of the case.

The timing of the cross-examination should be decided by mutual consent of the parties but in the absence of such mutual consent the CART will decide the appropriate deadlines. If the deponent of an affidavit is not made available for cross-examination, the CART may make an adverse finding on the weight of this evidence or may refuse to accept the affidavit into evidence for the matter under consideration.

Affidavit Evidence versus Oral Evidence

Affidavit evidence and evidence delivered via oral testimony both assist the CART in determining the case before it. Adducing evidence in an affidavit by writing out the facts can have the advantage of being more organized and clear in its presentation. It may also be preferable and more efficient for witnesses, who will be giving similar evidence or testifying about the same issue, to provide their evidence by way of an affidavit. However, it is usually preferable for key witnesses to testify in person, allowing them to provide a complete story in front of the parties and the CART member hearing the case.

Where parties call witnesses at a hearing who have already provided evidence by sworn affidavit, the CART may rule that evidence already given by way of affidavit will be sufficient. Evidence on the same or similar issues from the same witnesses, will not normally be admitted at the oral hearing.

Related Practice Notes

This Practice Note complements previous Practice Notes, including the following:

Dr. Donald Buckingham
Chairperson