Practice Note #8 - Pilot Project for the Electronic Filing of Documents by Parties to a Case before the Canada Agricultural Review Tribunal (April 1, 2011 to December 31, 2011)

Issued March 31, 2011

An important principle of due process and natural justice is the right to be heard. Parties to a hearing before the Canada Agricultural Review Tribunal (Tribunal) exercise this right through the submission of documents to the Tribunal and, if they so choose when a penalty has been assessed, through the means of a hearing before the Tribunal at one of the 96 locations established by the Governor in Council.

With respect to the submission of documents, the applicant, the person who has received a Notice of Violation that he or she would like to challenge, starts a case by filing a Request for Review. Then the respondent, the agency issuing the Notice of Violation (or the Minister, if a Ministerial Review Decision has already been taken) will file a Ministerial Report (Report). Further submissions from either party are receivable by the Tribunal within 30 days of the Report by right, or longer, with permission of the Tribunal.

Current Permitted Means for Filing Documents at the Tribunal

Current permitted means for the filing of all such documents are set out in the Agriculture and Agri-Food Administrative Monetary Penalties Regulations (Regulations) and the Rules of the Review Tribunal (Agriculture and Agri-Food) (Rules).

Section 14 of the Regulations states:

14. (1) A person may make a request referred to in section 11, 12 or 13 by delivering it by hand or by sending it by registered mail, courier, fax or other electronic means to a person and place authorized by the Minister.

(2) Where a person makes a request referred to in subsection (1), the date of the request is

(a) the date on which the request is delivered to the authorized recipient, if the request is delivered by hand;

(b) the earlier of the date on which the request is received by the authorized recipient and the date on the receipt given to the person by a post office or courier, if the request is sent by registered mail or courier; or

(c) the date that appears on the fax or other electronic transmission.

(3) Where a request is sent by fax or by other electronic means, another copy of the request shall be sent by registered mail.

Subsection 1(2) of the Rules states:

(2) These Rules are to be liberally construed in order to permit the fairest, least expensive and most expeditious procedures.

Rules 8, 9 and 10 currently read as follows:

8. (1) Any documents sent to the Tribunal must be sent in duplicate.

(2) Except as otherwise provided in subsection 14(1) of the Agriculture and Agri-Food Administrative Monetary Penalties Regulations, all documents required to be submitted to the Tribunal must be submitted by hand or by registered mail, courier or facsimile.

(3) Except as otherwise provided in subsection 14(3) of the Agriculture and Agri-Food Administrative Monetary Penalties Regulations, the original and a copy of any faxed document must be sent by mail without delay after the facsimile transmission.

9. Subject to paragraph 28(b), section 32, paragraph 40(b) and section 44, all correspondence sent by the Tribunal may be sent by facsimile as long as the original is sent by mail.

10. A party must notify the Tribunal without delay of a change of address or fax number.

However, section 3 of the Rules of the Review Tribunal (Agriculture and Agri-Food) states:

3. If the application of any rule would cause unfairness to a party, the Tribunal may avoid compliance with the rule.

The Regulations allow the applicant the possibility of filing his or her Request for Review electronically (such as by electronic mail) provided that, where such a request is sent by other electronic means, another copy of the request is sent by registered mail (s. 14(3)). The Tribunal Rules, on the other hand, do not permit any subsequent documents to be so filed by either party; these documents must be "submitted by hand or by registered mail, courier or facsimile". (Rule 8(2)).

Pilot Project Permitting Electronic Filing of Documents at the Tribunal

The Regulations already recognize and permit the use of electronic means to start the process of filing a Request for Review with the Tribunal by any applicant. With a significant increase in the reliance on electronic mail since the Regulations and Rules came into force, technology has run ahead of practice and, while one party can act electronically to start the process of a review, it and the other party may not currently do so in the continuation of that review. This not only seems unfair as giving one party a privilege that does not extend to the other, it also is inefficient in that, where an applicant chooses to file electronically in the first instance, he or she is never permitted to continue its filings by the same means. Requests have been made to the Tribunal to have this inequity and inefficiency corrected.

The Tribunal believes that, due to current technology demands, not permitting the electronic filing of any documents at the Tribunal, other than the applicant's Request for Review, does not "permit the fairest, least expensive and most expeditious procedures" (Rule 1(2)) for the Tribunal and for the parties to a case before the Tribunal. In keeping with the intention of fairness, cost-efficiency and expeditiousness which underlies the Regulations and the Rules, the Tribunal will, therefore, permit on a trial basis, the electronic filing of documents for cases that have been filed with it, on the basis that hard copies of these same documents will be forwarded to the Tribunal and to the other party as soon as possible.

Starting April 1, 2011 and continuing for a period of nine months, applicants submitting new Requests for Review by any means will be asked by Tribunal staff upon receipt of their Request for Review whether they consent to the electronic filing (e-filing) of all further documents with the Tribunal received from the parties. The applicant will be informed that even if he or she consents to e-filing of documents, he or she will still receive hard copies of all documents from the agency. If the applicant consents, the agency will then be consulted to determine if it consents to the electronic filing (e-filing) of all further documents with the Tribunal received from the parties. The agency will be informed that, even if it consents to e-filing of documents, it will still receive hard copies of all documents from the applicant.

The Tribunal would like to inform the parties, therefore, that they remain individual responsibility to ensure that the Tribunal and the other party to a case receive any e-filed document and a subsequent hard copy of it by mail. As a general rule, no case will be considered by the Tribunal for decision unless it can be assured that the parties to the case have received a hard copy of all documents submitted to the Tribunal and exchanged between the parties by whatever means.

In calculating the date of receipt of documents filed electronically, the Tribunal will observe the standard set out in s. 14(2) of the Regulations, such that where a person sends a document to the Tribunal, it will be deemed to have been received by the Tribunal on the date that appears on the electronic transmission. The party will still have an obligation to provide the Tribunal and the other party with a hard copy of its documents as soon as possible.

In light of the above, the Tribunal will embark on a pilot project from April 1, 2011 until December 31, 2011, to permit the electronic filing of documents by the parties. The parties are advised, however, that this is a pilot project only which may or may not be extended. Parties are, therefore, reminded that they:

  1. may, where consent has been obtained by both parties, file documents with the Tribunal in electronic form;
  2. are to use commonly available types of electronic transmission which includes emails with attachments of documents in Adobe PDF, Word, WordPerfect or Excel formats, and images in JPEG, TIFF or GIF format;
  3. are still required to forward a paper copy of all submissions to the Tribunal and to the other party;
  4. are strongly encouraged to copy to the other party in the matter, any document electronically submitted to the Tribunal;
  5. during the period of April 1, 2011 until December 31, 2011, parties must inform the Tribunal as soon as possible of any change in their electronic mail address, to facilitate e-filing of documents, a requirement which is in keeping with similar obligations currently set out in Rule 10; and
  6. should not have an expectation that any documents due to be filed on January 1, 2012 or later will be permitted to be filed electronically at the Tribunal. Notice will be provided by or before December 1, 2011 from the Tribunal as to whether the electronic filing of documents will be permitted beyond December 31, 2011.

During the term of this pilot project, the Tribunal invites comments and observations from parties and other interested person as to the suitability and utility of the electronic filing of documents with the Tribunal. Along with its own reflections, the Tribunal will use such comments and observations to decide on whether to extend this procedural innovation into the future.

For ease of reference, the implications of the pilot project for the filing of documents at the Tribunal is summarized in the attached Table entitled "Pilot Project - Electronic Filing of Documents at the Canada Agricultural Review Tribunal".

Background to Pilot Project

The Tribunal Rules were enacted over ten years ago. Recent years have shown a tremendous increase in the use of electronic mail for business correspondence. In addition, administrative tribunals are moving more towards conducting their affairs electronically. The Tribunal, in recent months, has had requests from several parties for changes at the Tribunal that would permit the electronic filing of documents. Moreover, from a practical perspective, it is not uncommon for applicants coming to the Tribunal to have an e-mail address but no access to a fax machine. Even those who do have access to a fax machine sometimes find e-mail to be much more convenient.

Allowing the electronic filing of documents could also facilitate the Tribunal's work. It has happened in the past that an agency has been late by a single day filing its hard copy Report, necessitating a request to the Tribunal for an extension of time to file the Report and the work that follows for the Tribunal in processing such a request. Also, if parties were to be advised of the option to file their documents electronically, they could at the same time be encouraged to copy the other party in the file, thus allowing the parties to be in possession of the other parties’ submissions more quickly. The Tribunal would still have the obligation to ensure that both parties have received the other party's submission, although, where there is clear evidence that they have received both an electronic and a hard copy for the other party, the Tribunal would not be required to send out additional copies, thereby reducing the Tribunal's work in transmitting documents from one to another.

It may be the case that, in the not-too-distant future, the Tribunal will be able to consider conducting the bulk of its operations electronically. It is, therefore, prudent to take some "baby" steps in that direction in order to see what challenges the Tribunal will face with this new procedure. The Tribunal wishes to proceed cautiously with a change of this nature, ensuring that its records and practices are well protected and that the effects of such a change are closely monitored. The Tribunal thanks all parties in advance for their cooperation in facilitating this pilot project.

________________________________
Dr. Donald Buckingham, Chairperson


Table - Pilot Project - Electronic Filing of Documents at the Canada Agricultural Review Tribunal
Document(s) Present filing method(s) Filing method(s) under Pilot Project
Applicant - Request for Review By hand, registered mail, courier, fax (copy by registered mail) or other electronic means (copy by registered mail). Regs subsections 14(1) and (3) By hand, registered mail, courier, fax (copy by registered mail) or other electronic means (copy by registered mail). Regs subsections 14(1) and (3)
Tribunal - letter re Report Not indicated. If sent by fax, original by mail. Rules s. 9 If sent by fax, original by mail; if by e-mail, copy by mail. Rules s. 9 and Pilot
Respondent - Report By hand, registered mail, courier or fax (copy by registered mail). Rules subsections 8(2) and (3) By hand, registered mail, courier, e-mail (copy by mail), or fax (copy by mail). Rules subsections 8(2) and (3) and Pilot
Tribunal - letter re additional submissions Not indicated. If sent by fax, original by mail. Rules s. 9 If sent by fax, original by mail; if by e-mail (copy by mail). Rules s. 9 and Pilot
Parties - all other submissions By hand, registered mail, courier or fax (copy by registered mail). Rules subsections 8(2) and (3) By hand, registered mail, courier, e-mail (copy by mail), or fax (copy by mail). Rules subsections 8(2) and (3) and Pilot
Tribunal - Notice of Hearing By registered mail. Rules s. 40 By registered mail. Rules s. 40
Tribunal - Decision By mail. Rules s. 44 By mail. Rules s. 44
Tribunal - all other correspondence Not indicated. If sent by fax, original by mail. Rules s. 9 If sent by fax, original by mail; if by e-mail (copy by mail). Rules s. 9 and Pilot