Annual Report 2008-2009

Table of Contents

• Section 01 - Message from the Chairperson
• Section 02 - Overview
• Section 03 - Charts and Tables for 2008-2009 Activities
• Section 04 - Tribunal Expenditures 2008-2009
• Section 05 - Challenges and Opportunities
• Section 06 - How to Reach the Tribunal

Section 1 - Message from the Chairperson

It is with great pleasure that I present to you, Minister, the 2008-2009 Annual Report of the Canada Agricultural Review Tribunal. This report is ground-breaking in that it represents the very first Annual Report produced by the Tribunal. The report covers the activities of the Tribunal between April 1, 2008 and March 31, 2009. This period represents the last full year of operation of the Tribunal under the leadership of its first Chairperson, Mr. Thomas Barton. The activities of the Tribunal set out in this report highlight the specific and important role the Tribunal plays in assisting the Government of Canada achieve its dual goals of enhancing food safety and sustaining the economic viability of Canadian agriculture.

The fiscal year 2008-2009 started an important time of change for the Tribunal. In early 2009, the Tribunal’s name was changed from “Review Tribunal” to “Canada Agricultural Review Tribunal”, a change which was welcomed by the Tribunal as a positive step in representing to government and to all Canadians, a more fulsome and accurate picture of the Tribunal’s mandate and work. Also, in early 2009, in a series of letters between you, Minister, and the Chairperson, you requested that the Tribunal work towards greater transparency and accountability. You suggested that four new elements be incorporated into the work of the Tribunal: (1) web-accessible proactive disclosure; (2) a web-accessible database of the Tribunal’s decisions; (3) preparation of annual reports; and (4) conclusion of service agreements with the Department of Agriculture and Agri-Food, or others who provide essential services to the Tribunal.

In May 2009, after the conclusion of the fiscal year 2008-2009, Thomas Barton completed his third term as Chairperson of the Tribunal. I was honoured to take up the role as the Tribunal’s second Chairperson, starting on July 1, 2009. Prior to my arrival, Mr. Barton had already started to address your requests for greater transparency and accountability at the Tribunal, and had, during the fiscal year 2008-2009, taken steps to update the Tribunal’s website so that it included proactive disclosure and a publically accessible database of all Tribunal decisions. Certain service agreements with your Department had also been completed. This 2008-2009 report responds to the third item outlined in your letter to the Chairperson, the preparation and presentation of annual reports. While I did not preside over the Tribunal during this period, it is indeed my pleasure to prepare and present this Annual Report.

I trust that this first Annual Report will meet with your satisfaction and will provide greater transparency and accountability of the Tribunal. In subsequent years, the Tribunal will endeavour to present its annual Report to you on or before June 30 of the following fiscal year.

Dr. Donald Buckingham, Chairperson

Section 2 - Overview

Mandate

The Canada Agricultural Review Tribunal (CART) was established under the Canada Agricultural Products (CAP) Act and continued under the Agriculture and Agri-Food Administrative Monetary Penalties (AMP) Act. The AMP Act, assented to on December 5, 1995, establishes, as an alternative to the existing penal system and as a supplement to existing enforcement measures, a fair and efficient administrative monetary penalty system for the enforcement of nine agri-food Acts.

CART’s primary role is to provide independent oversight, through the exercise of its review mandate, of federal agencies’ use of Administrative Monetary Penalties (AMP). AMP systems, in relation to agriculture and agri-food, form part of several federal agencies’ “escalating scale of enforcement”, providing such agencies with an expeditious non-punitive means to promote regulatory compliance. Oversight of AMP provides alleged violators with the right to seek a review of any AMP violation before CART. Three agencies—Canadian Food Inspection Agency (CFIA), Canada Border Services Agency (CBSA) and the Pest Management Regulatory Agency (PMRA)—currently depend on CART for such oversight.

The AMP Act, through its Regulations, establishes AMP violations for over 500 regulatory infractions currently outlined in the Health of Animals Act and the Health of Animals Regulations, the Plant Protection Act and the Plant Protection Regulations and the Pest Control Products Act and the Pest Control Products Regulations.

CART is also mandated to conduct a second type of review under the CAP Act when a party disagrees with a decision made by a Board of Arbitration. Unlike a review under the AMP Act, this type is very restrictive in that the applicant must show that there is either an error in law in the Board's decision or that there was a lack of natural justice in the process.

Mission

CART exists to provide a timely, independent, informal and fair review of the validity of any AMP issued to a person by a federal agency under the AMP Act.

Vision

The vision of CART is to continue to safeguard the integrity of the use of the AMP system by federal agencies, so they can ensure compliance with agriculture and agri-food statutes that Parliament has passed both to protect the health and well-being of Canadian consumers and to enhance the economic vibrancy of Canadian agriculture.

2008-2009 Activities in Review

In 2008-2009, the Tribunal continued its core activity of quasi-judicial reviews. Pursuant to the AMP Act, the Tribunal has the power to review various Agencies' Notices of Violations. In this type of review, interested parties may call witnesses and they may enter new evidence. In 2008-2009, the Tribunal had 90 active AMP Act cases (see table at page 7) resulting in 43 decisions being rendered during the fiscal year (see charts at pages 8) with 33 of those decisions upholding, and 10 dismissing, Agency Notices of Violation. The Tribunal had no active CAP Act cases in 2008-2009.

Once a decision has been rendered, it is treated as a public document. The Tribunal, with respect to access and privacy, follows the common law “open court principle” and the statutory requirements under which it must operate. A decision by the Tribunal is final and not subject to appeal, except for judicial review by the Federal Court of Appeal, pursuant to section 28 of the Federal Courts Act. In 2008-2009, five decisions were rendered by the Federal Court of Appeal from reviews of Tribunal decisions. The Federal Court of Appeal received requests for judicial review of three Tribunal decisions during the fiscal year 2008- 2009 (see footnote at page 7).

Canada Agricultural Review Tribunal Organizational Chart 2008-09 (as of March 31, 2009)

Figure 1 - Text version

Canada Agricultural Review Tribunal Organizational Chart, 2008-2009, displayed as a hierarchical list:

• Thomas Barton Chairperson and Full-time Member (GCQ-05)
  • Chantal Houle-Mrak Registrar (PM-06)
    • Rosemary Shannon Assistant Registrar (PM-03)
    • Lise Sabourin Appeals Management Coordinator (AS-02)
    • Vacant Office Manager (AS-01)
  • Helena Lamed Part-time Member (GCQ-03)

Section 03 - Charts and Tables for 2008-2009 Activities

AMPS Decisions in Fiscal Year 2008-2009

Figure 2 - Text version

Table of Tribunal Decisions Expressed in Percentages for each Federal Agency for fiscal Year April 1, 2008– March 31, 2009

Federal Agencies	Percentage of Decisions Issued
Canada Border Services Agency	37%
Canadian Food Inspection Agency	63%
Pest Management Regulory Agency	0%

Section 04 - Tribunal Expenditures 2008-2009

Section 05 - Challenges and Opportunities

The Canada Agricultural Review Tribunal is an independent, arm’s length review body within the portfolio of departments and agencies that report through the Minister of Agriculture and Agri-Food. Three issues provide challenges and opportunities for the Tribunal as it is currently structured. They are:

1. maintenance of its arm’s length identity from the Department of Agriculture and Agri- Food and from the Minister;
2. securing the ability to adequately staff the Tribunal, particularly with respect to procuring legal advice; and
3. securing assurances of an adequate financial base for the Tribunal.

During the formation of the Tribunal in the 1990’s, there was discussion of it becoming a listed Schedule I.1 Financial Administration Act (FAA) agency. This has not yet occurred. While not necessary to ensure its independence through the FAA listing, such a listing would clearly establish the independence of the Tribunal and this is the usual scenario for federal tribunals. Without such recognition, the Minister, the Department, and the Tribunal must engage in on-going discussions to set appropriate parameters to ensure that proper administrative AAFC policies are followed while recognizing the need to preserve and respect the Tribunal’s independence.

In 2008-2009, the Tribunal included a database of all of its decisions on its website. Certain service arrangements were concluded to recognize the agreements for use of services from the Department offered to the Tribunal for a fee. Challenges did remain, however, with occasional inability to complete financial, information technology, human resources or security matters without reference to (and approval from) the Deputy Minister of the Department. In 2008-2009, the new name approved by Treasury Board for the Tribunal—the Canada Agricultural Review Tribunal— was a very positive step to position the Tribunal to be better identified and identifiable inside of the government and to the public for the real work it performs. Its expertise is recognized for matters of agriculture and agri-food in Canada. However, small identity problems remain, such as the Tribunal still being listed in the government-wide Government Electronic Directory Services (GEDS) under the Department’s organizational hierarchy. The Tribunal is the only one of the Minister’s “six-sisters” portfolio organizations--CDC, CGC, FCC, CFPC, CFIA, and CART--not to have its own GEDS listing.

In the next fiscal year, the Tribunal will be working diligently to improve transparency and accountability. Steps will be initiated to investigate the renovation of existing Tribunal structures and relationships with the Ministerial Office, the Department and with AAFC Portfolio Coordination Secretariat. Activities will include initiatives to make the Tribunal better known amongst the AAFC Portfolio and stakeholder groups, including the revamping of its website. The Tribunal’s identity and new name will continue to be rolled out across the government and new initiatives will be conceived and communicated to the Government of Canada to permit the fuller use of the expertise of an independent arm’s length body with considerable expertise in Canadian agriculture and agri-food matters.

Section 6 - How to Reach the Tribunal