Prince Edward Island Potato Board v. Canada (Agriculture and Agri-Food)

Prince Edward Island Potato Board v. Canada (Agriculture and Agri-Food)
Court (s) Database
Federal Court of Appeal Decisions
Date
2024-11-04
Neutral citation
2024 FCA 180
File numbers
A-135-23
Decision Content
Date: 20241104
Docket: A-135-23
Citation: 2024 FCA 180
CORAM:
STRATAS J.A.
GLEASON J.A.
HECKMAN J.A.
BETWEEN:
THE PRINCE EDWARD ISLAND POTATO BOARD
Appellant
and
THE MINISTER OF AGRICULTURE AND AGRI-FOOD and THE CANADIAN FOOD INSPECTION AGENCY
Respondents
Heard by online video conference hosted by the Registry on February 7, 2024.
Judgment delivered at Ottawa, Ontario, on November 4, 2024.
REASONS FOR JUDGMENT BY:
HECKMAN J.A.
CONCURRED IN BY:
STRATAS J.A. GLEASON J.A.
Date: 20241104
Docket: A-135-23
Citation: 2024 FCA 180
CORAM:
STRATAS J.A.
GLEASON J.A.
HECKMAN J.A.
BETWEEN:
THE PRINCE EDWARD ISLAND POTATO BOARD
Appellant
and
THE MINISTER OF AGRICULTURE AND AGRI-FOOD and THE CANADIAN FOOD INSPECTION AGENCY
Respondents
REASONS FOR JUDGMENT
HECKMAN J.A.
I. Overview [1] The Prince Edward Island Potato Board [Appellant] appeals a judgment of the Federal Court (per Southcott J.) dismissing its judicial review of an Order issued by the Minister of Agriculture and Agri-Food [Minister] under section 15(3) of the Plant Protection Act, SC 1990, c 22, declaring the entire province of Prince Edward Island [PEI] as “a place infested with potato wart” and prohibiting the movement of PEI seed potatoes from PEI without written authorization from an inspector [Ministerial Order].
[2] The Appellant argues that the Minister’s decision to issue the Ministerial Order was unreasonable for two reasons. First, there was insufficient evidence to establish that PEI was “infested” with potato wart, as that term is defined in the statutory framework governing the issuance of such orders. Second, the decision was motivated by “an irrelevant or improper purpose”: to avoid the impacts on Canada’s international potato exports that could result from a failure to issue the Ministerial Order.
[3] For the reasons that follow, I am of the view that the Minister’s decision was reasonable and that this appeal should be dismissed.
II. Facts [4] The Federal Court outlined in detail the parties, the events, and the circumstances relating to this case: Prince Edward Island Potato Board v. Canada (Agriculture and Agri-Food), 2023 FC 535, 2023 CarswellNat 1049 at paras. 3-29 [FC Decision]. In this section, I summarize the context relevant to this appeal, drawing principally from the FC Decision and the documents prepared by the Canadian Food Inspection Agency [CFIA] for consideration by the Minister in deciding whether to issue the Ministerial Order. I describe these documents more fully later in these reasons.
A. The PEI potato market [5] Potato farming is an integral part of PEI’s economy, culture and way of life. An economic impact analysis published by that province—part of the record on this appeal—highlights key facts and figures that demonstrate the importance of this industry to PEI, Canada and its international trading partners: Prince Edward Island, Strategic Policy and Evaluation Division, Department of Agriculture and Land, The Prince Edward Island Potato Sector: An Economic Impact Analysis (Charlottetown, PEI: 2020) [the Analysis].
[6] In 2019, PEI was Canada’s largest producer of potatoes (by weight) at 24%, followed closely by Manitoba and Alberta. According to 2016 data, Prince County, PEI’s westernmost county, was PEI’s top potato-producing county (62% of PEI potatoes), compared to Queens and Kings Counties (22% and 16%, respectively).
[7] The vast majority of PEI’s potatoes and potato products are exported to other provinces or abroad. Between 2009 and 2018, PEI’s potatoes represented, on average, approximately 23% of Canada’s total international potato exports (a share worth approximately $311 million), second only to Manitoba (26%, $351 million). In this period, 84% of PEI’s total international potato exports went to the United States.
[8] There are three types of potatoes, based on the potato’s use once it is grown: 1) processing potatoes (transformed into products like French fries, wedges, and hash browns), 2) table stock potatoes (sold on the market), and 3) seed potatoes (used as seeds for the following year’s potato crop). PEI potatoes are used mostly for processing (60%), followed by table stock (25%), and finally seed (15%). Most (80%) of PEI-grown seed potatoes are used locally. Between 2009 and 2018, processed potatoes represented on average the largest share of PEI’s potato exports (78%) compared to table stock potatoes (20%) and seed potatoes (2%). In a memorandum to senior CFIA officials regarding the proposed suspension of PEI seed potato exports to the US, CFIA staff noted that such shipments were valued in 2019 at just over $3 million, approximately 7% of the total value of Canadian seed potatoes exported to the US (valued at over $34 million).
B. Potato wart [9] Potato wart disease [potato wart or PW] is caused by Synchytrium endobioticum [SE], a fungal pathogen which infects potato tubers, developing inside the cells of the host plant and causing wart-like symptoms on the tubers. Transmitted through spores contained in contaminated soil, manure, potatoes and equipment, SE spores can remain viable in soil without a host (as a resting spore) for over 40 years, making its detection and containment more difficult. It is viewed as one of the most serious potato pests because it can be spread very easily. Although not dangerous to humans or animals, PW is regulated as a quarantine pest in Canada because it reduces potato yield and makes the affected potatoes unmarketable.
[10] PW has been reported in many countries throughout the world, including most European countries, but has not been detected in the US. In Canada, it is present in PEI and Newfoundland and Labrador (NL). NL, where PW is widespread geographically but at low levels of incidence, is entirely regulated for the pest to prevent its spread outside the province.
[11] PW was first detected in PEI in a single field in October 2000. Since then, it has been detected in over 30 fields in the province. Tracing conducted on contaminated fields have linked these detections back to four different clusters of contaminated fields. The existence of four clusters means that PW has been detected in a field which the CFIA could not link to a previously contaminated field on four occasions: in 2000 (the first detection) and in 2012, 2014, and 2020. Most detections were made in Queens and Prince Counties; when this appeal was heard, there had only been one detection in Kings County (in February 2015). The fields in which PW was detected represent approximately 0.4% of the approximately 350,000 acres of potato fields in PEI. This information is reflected in a map of the infested fields produced by CFIA and appended to these reasons.
C. Potato wart mitigation measures [12] Since PW was first detected in PEI, CFIA has adopted mitigation measures to monitor, control and prevent its spread from the province, including general phytosanitary measures and official PW control measures. I describe each of these in turn.
(1) General phytosanitary measures
[13] Five general phytosanitary measures mitigate the risk of spread of PW.
[14] First, seed potatoes grown in Canada must adhere to the Canadian Seed Potato Certification Program. Seed potato crops entered into this program are inspected for potato pests to determine whether they meet regulatory standards. CFIA conducts crop inspections in the field and post-harvest tuber inspections for each domestic and export shipment.
[15] Second, potatoes exported to the US from fields in PEI that are not regulated through official PW control measures (unregulated fields), including table stock, bulk and seed potatoes, are subject to the Phytosanitary Export Certification Program. This program requires field soil sampling and tuber inspection as well as other measures, including verification of seed potato status and that the land on which the potatoes were grown is not regulated for SE. It was implemented by CFIA to comply with a 2015 Federal Order issued by the US Department of Agriculture Animal and Plant Health Inspection Service (APHIS), following a cluster of PW detections on PEI, to reduce the risk of PW spreading from PEI to the US [2015 US Federal Order].
[16] Third, potato processing facilities that handle regulated (potentially infested) material for processing must adhere to compliance agreements, written documents that outline operational procedures approved by CFIA. The treatments required at processing facilities eliminate the viability of resting spores and prevent the release of SE into the environment.
[17] Fourth, the Safe Food for Canadians Regulations, SOR/2018-108 require that fresh potatoes grown in Canada and destined for consumption as food undergo several inspections when they are shipped inter-provincially or exported. These visual inspections may detect more severe SE infections but are less likely to detect potatoes with minor wart symptoms.
[18] Fifth, table stock potatoes shipped domestically from unregulated fields must meet regulatory standards outlining the tolerance for soil and caked dirt for each grade of potatoes grown in an unregulated field. Most potatoes shipped domestically are washed and sprout inhibitors are commonly used on potatoes that are stored.
(2) The potato wart domestic long-term management plan
[19] Following the first detection of PW in PEI in 2000, a management plan was devised to set out minimum requirements for soil testing, surveillance and trace-back activities for regulated land associated with new detections [the Management Plan].
[20] The Management Plan creates a “restricted area” in response to detections of PW in order to prevent spread from known infested fields and from fields that present a risk for PW. It sets out five categories of fields based on their relationship to fields on which PW was detected and imposes category-specific restrictions on activities that may be conducted on fields within each category. The categories are the following:
a)Index (Category A) fields include fields that have a positive detection of PW.
b)Adjacent (Category B) fields include agricultural land and residential properties bordering Index fields that are not separated by a major highway, watercourse, forested area or non-agricultural area of more than 15 metres width.
c)Primary Contact (Category C) fields include any land where equipment was moved directly after use in an Index field, or where propagative host material produced in Index fields was used for planting.
d)Other Contact (Category D) fields include fields that share common equipment with the Index field that was not moved there directly following its use in the Index field.
e)New Fields Entering Potato Production (Category E) include fields that have not had potato production or surveillance for PW since 2000 but meet other criteria such as use as a homestead with potential for potatoes grown in a home garden prior to 2000.
[21] The Management Plan applies the strictest restrictions to Index, Adjacent and Primary Contact fields (categories A, B and C). Seed potatoes may not be produced there. Movement of soil from these fields is prohibited or restricted. Equipment and vehicles must be cleaned and disinfected before they are allowed to leave these fields. Restrictions may be changed on these fields depending on soil analysis results and surveillance of susceptible crops over many years. However, as of the date of the issuance of the Ministerial Order, no regulated field had ever been fully released from regulation.
[22] There are no similar restrictions for Other Contact fields (Category D), New Fields Entering Potato Production (Category E) or unregulated fields. Accordingly, the mitigation measures that reduce risk in Category D fields are mainly a result of general phytosanitary measures. For example, Category D fields are ineligible for domestic seed potato movement through the Seed Potato Certification Program or for export through the Phytosanitary Export Program. However, where the first surveillance of susceptible crop grown under conducive conditions does not result in the detection of PW, there are no restrictions on the potato end use domestically or for table stock and processing potatoes to the US. Where a second surveillance fails to detect PW, the land is considered PW free and seed production is eligible for export to the US.
[23] New Fields Entering Potato Production (Category E) are not subject to immediate restrictions. Following a successful post-harvest field inspection and tuber inspection, these fields become part of the PW-free area.
[24] Unregulated fields, which are found to have no history of connection to an Index field, are subject to no restrictions. Potatoes, including seed potatoes, can be produced in unregulated fields. However, they are subject to general phytosanitary measures. Seed potatoes must adhere to the Canadian Seed Potato Certification Program. Potatoes from unregulated fields exported to the US are also subject to the Phytosanitary Export Certification Program.
D. Limitations of potato wart mitigation measures [25] CFIA uses two methods to confirm the presence of SE, the fungal pathogen that causes PW: soil analysis and tuber analysis. However, it is very difficult to detect low-level infestations of SE by means of soil sampling and the visual inspection of tubers. CFIA has therefore recognized that these methods of detection present important limitations.
[26] In soil analysis, CFIA inspectors collect soil samples from potato fields on grids of a size that depends on the field category. Samples are sieved, weighed, centrifuged and examined under microscopes to detect resting spores. However, resting spores are unevenly distributed in the soil in infested fields, reflecting gall production and the deterioration of wart tissue into smaller clumps of resting spores. Their sporadic distribution presents a challenge for established soil sampling and analysis methods, particularly when the level of inoculum is low.
[27] In tuber analysis, CFIA inspectors conduct visual inspections of tubers in the field or at harvest. It may take multiple years of planting a susceptible potato crop before visual symptoms are observed in the field, depending on the initial level of inoculum in the soil. One challenge in detecting PW is that it presents a variable expression of symptoms ranging from tubers fully covered by warts and those where warts are barely noticeable. The timing of visual surveillance can also affect the ability to detect PW; warts that are present at harvest may be barely noticeable or in some cases not noticeable at all. Accordingly, while visual inspections may detect more severe infections, they are less likely to detect a potato with only minor wart symptoms. Moreover, visual inspections occur on fully graded potatoes rather than cull piles, reducing the chance of finding a symptomatic tuber.
[28] The briefing package submitted to the Minister by the CFIA to support her decision-making included a Pest Risk Assessment, an evergreen document prepared according to international guidelines under the International Plant Protection Convention, a multilateral treaty that provides a framework and develops standards for the harmonized use of measures to prevent and control the introduction and spread of pests, and to protect plant resources: 6 December 1951, Can TS 1953 No 16 (entered into force 3 April 1952, accession by Canada 10 July 1953, as amended in 1979 and 1997, amendments acceded to by Canada in 1991 and 2005 respectively) [IPPC].
[29] The Pest Risk Assessment summarized the available information on SE, including the probability of its entry, establishment and spread and the resulting potential economic and environmental consequences. It found that the potential risk of human-mediated spread of PW was “greatly reduced for all pathways” within the context of the mitigation measures in place under the Management Plan and export certification. It also concluded that, based on the detection data it had collected since 2000, the relative risk of spread via Category D fields was low, even though the absolute risk was higher than Category B fields because of the higher overall number of Category D fields compared to other categories.
[30] However, the CFIA recognized in the Pest Risk Assessment that the detection limits inherent in soil analysis and visual inspections posed a challenge to these mitigation measures. It expressed a clear reservation with regards to the potential risk of spread from Category D fields, noting that there was no notice of restrictions to prohibit the movement of soil or to require cleaning and disinfection of equipment and vehicles moving from these fields to unregulated fields. In its view, there remained “some uncertainty around the efficacy of visual inspection and soil sampling for detecting [SE].” It concluded that “given the limits of detection of soil and visual tuber inspections, a Category D field could be harbouring a sub-detectable population of PW spores that could be spread out of that field by those human-mediated activities which are only restricted in Category A, B or C fields.”
[31] The CFIA submitted to the Minister a Risk Management Document, also prepared according to IPPC guidelines, which summarized the findings of the Pest Risk Assessment and recorded the pest management risk process for the potential spread of PW within and from PEI. The Risk Management Document observed that there was evidence supporting a finding that visual detection and soil sampling were insufficient to quickly detect low-level populations of SE. It concluded that in the absence of restrictions on the movement of soil from Category D fields to unregulated fields or requirements for disinfecting machinery or vehicles moving from Category D fields to unregulated fields, where SE is at sub-detectable levels, possibly for several years, the Management Plan allows SE to be displaced through human-mediated activities to unregulated fields. This risk of spread is exacerbated by the fact that potato farming operations in PEI are complex and involve considerable numbers of leased and rented fields.
E. The 2020 and 2021 detections leading to the Ministerial Order [32] In 2020, soil sampling conducted by CFIA revealed the presence of resting SE spores in an unregulated field. The sampling was conducted as part of the Phytosanitary Export Certification Program required for PEI potatoes destined for export to the US from unregulated fields. Significantly, the resting spores were detected in soil from seed farms. Seed potatoes present the highest risk of spread of PW because they are placed in soil and the resting spores have immediate access to host tissue. This unregulated field would not have been subject to soil surveillance under the Management Plan.
[33] In 2021, potato growers brought to CFIA tubers, heavily infested by PW, harvested in two Category D fields. These fields had been subject to soil sampling and visual surveillance for several years which had not resulted in the detection of SE or PW. The 2021 detections impacted 350 fields, increasing the number of fields requiring soil detection by 23% and raising the restricted area in PEI by 10%.
[34] CFIA notified APHIS of the new detections. APHIS asked CFIA to voluntarily suspend export certification of PEI seed potatoes and potatoes for consumption destined for the US and to prohibit the movement of PEI seed potatoes to the rest of Canada until investigations into the 2021 detections were complete. APHIS warned that, if CFIA failed to act, the 2015 Federal Order would be amended to ban the importation of all Canadian potatoes to the US.
[35] CFIA took the following regulatory actions:
a)A temporary suspension of seed potato certification of seed potatoes originating from PEI to the US (November 2, 2021) [First Suspension];
b)An interim suspension of certification of all potatoes (including seed, table stock and processing potatoes) originating from PEI to the US (November 21, 2021) [Second Suspension];
c)The Ministerial Order declaring the province of PEI to be a place infested with PW and prohibiting the movement of PEI seed potatoes from PEI without written authorization from an inspector (November 21, 2021); and
d)The PEI Seed Potato Domestic Movement Requirements and Recommended Risk Mitigation Measures [Domestic Movement Requirements] setting out the conditions under which inspectors would issue written authorizations under the Ministerial Order (February 22, 2022).
[36] In 2022, APHIS issued a new Federal Order prohibiting the importation of field-grown seed potatoes from PEI into the US and allowing the importation of potatoes for consumption under specific conditions.
[37] As of 2022, a CFIA investigation of fields associated with the new Index fields resulting from the 2021 PW detections revealed the presence of PW on a Category D field and a field adjacent to one of the 2021 detections: FC Decision at para. 18.
[38] The Appellant sought judicial review of the First and Second Suspensions, the Ministerial Order and the Domestic Movement Requirements.
III. Statutory Context [39] The Minister’s authority to issue the Ministerial Order is constrained by provisions of the Act and of the Plant Protection Regulations, SOR/95-212 [Regulations] promulgated by the Governor in Council under subsection 47(1) of the Act to carry out the purposes and provisions of the Act. Both the Act and Regulations enable the Minister and the CFIA (the Respondents), to carry out Canada’s responsibilities under the IPPC.
[40] Section 2 of the Act sets out its purpose:
Purpose of the Act
Objet
2 The purpose of this Act is to protect plant life and the agricultural and forestry sectors of the Canadian economy by preventing the importation, exportation and spread of pests and by controlling or eradicating pests in Canada.
2 La présente loi vise à assurer la protection de la vie végétale et des secteurs agricole et forestier de l’économie canadienne en empêchant l’importation, l’exportation et la propagation de parasites au Canada et en y assurant la défense contre ceux-ci ou leur élimination.
[41] Sections 11 to 18 of the Act pertain to “Infested Places”. Sections 11 and 12 set out the powers of inspectors (persons designated pursuant to section 21 of the Act) to declare that certain places are infested. An inspector may declare infested a place where the inspector suspects or determines the place is infested with the pest and is of the opinion the pest could spread to any other land, building or place. The inspector may declare that the land, building or place to which, in their opinion, the pest could spread, is also infested.
[42] A place declared to be infested under subsections 11(1) and 12(1) constitutes an infested place only once the declaration is delivered to the occupier or owner of the land, building or place mentioned in the declaration: subsections 11(2), 12(2) and section 14. There is no such requirement for a place declared to be infested by ministerial order under subsection 15(3).
[43] Subsection 13(1) provides that where the inspector is of the opinion that immediate action is required to control the pest, a declaration under sections 11 or 12 may prohibit or restrict the movement of persons or things within, into or out of the infested place for the purpose of controlling the pest.
[44] Subsection 15(2) sets out the authority of the Minister to revoke an inspector’s declaration, under sections 11 and 12, that a place is infested, while subsection 15(3) defines the authority of the Minister to declare that a place is infested:
Powers of Minister
Pouvoirs du ministre
15 (3) The Minister may, by order,
(a) declare any place to be infested that is not already the subject of a declaration under section 11 or 12;
(b) determine and subsequently vary the area of any place that is declared infested;
(c) extend the period of any prohibition or restriction declared by an inspector under subsection 13(1);
(d) prohibit or restrict the movement of persons and things within, into or out of any place that is declared infested; and
(e) permit any movement of persons and things within, into or out of a place that would otherwise be prohibited by this section or section 6.
15 (3) Le ministre peut, par arrêté, déclarer infesté un lieu qui ne l’a pas déjà été par l’inspecteur; il peut aussi, de la même manière, soit délimiter le périmètre de tout lieu déclaré infesté et ultérieurement le modifier, soit prolonger la période fixée par l’inspecteur en application du paragraphe 13(1), soit encore interdire ou restreindre l’entrée, la sortie ou la circulation de personnes ou de choses dans ce lieu ou, malgré le présent article ou l’article 6, l’autoriser.
[45] Section 16 governs how an infested place may be described in declarations under sections 11 or 12 or subsection 15(3):
Description of area of infested place
Périmètre
16 In a declaration under section 11 or 12 or subsection 15(3), the area of an infested place may be described by reference to a map or plan deposited and publicly available at a place specified in the declaration, or by reference to any farm, county, district, municipality, province or any part thereof.
16 Le périmètre du lieu déclaré infesté au titre des articles 11 ou 12 ou du paragraphe 15(3) peut être délimité par référence à soit une carte ou un plan accessible au public en quelque lieu déterminé, soit tout ou partie de fermes, comtés, zones, municipalités ou provinces.
[46] While the Act does not define the term “infested”, a definition is provided by section 2 of the Regulations:
Interpretation
Définitions
2 In these Regulations,
2 Les définitions qui suivent s’appliquent au présent règlement.
…
[…]
infested means that a pest is present in or on a thing or place or that the thing or place is so exposed to a pest that one can reasonably suspect that the pest is in or on the thing or place; (infesté) (parasité)
infesté Se dit de la présence d’un parasite sur ou dans un lieu ou de l’exposition telle d’un lieu à un parasite qu’il est raisonnable d’y soupçonner la présence du parasite. (infested)
[47] Paragraph 16(2)(a) of the Regulations speaks to the authority of an inspector or the Minister to describe areas in which a pest is or could be found in terms similar to those used by section 16 of the Act:
Investigation or Survey of a Thing or Place
Enquête ou étude d’un lieu ou d’une chose
…
[…]
16 (2) Where, as a result of an investigation or a survey conducted by any inspector or any other person, the Minister or an inspector has reasonable grounds to believe that a pest or biological obstacle to the control of a pest has been detected and an area in which the pest or biological obstacle is or could be found has been identified,
16 (2) Lorsque, par suite d’une enquête ou d’une étude menée par l’inspecteur ou toute autre personne, le ministre ou l’inspecteur a des motifs raisonnables de croire qu’un parasite ou un obstacle biologique à la lutte antiparasitaire est détecté et que le périmètre où le parasite ou l’obstacle biologique est ou peut être présent est identifié :
(a) the Minister or any inspector may describe the area by reference to a map or plan that is publicly available, or by reference to any farm, county, district, municipality, province or any part thereof;
a) le ministre ou l’inspecteur peut délimiter le périmètre par renvoi soit à une carte ou à un plan accessible au public, soit à tout ou partie d’une ferme, d’un comté, d’une zone, d’une municipalité ou d’une province;
…
[…]
IV. Decision of the Federal Court [48] On April 13, 2023, the Federal Court dismissed the Appellant’s application for judicial review. On this appeal, the Appellant takes issue only with the Federal Court’s finding that the Ministerial Order was reasonable. Accordingly, I focus exclusively on the Federal Court’s treatment of the reasonableness of the Ministerial Order.
[49] The Appellant launched a two-pronged attack of the reasonableness of the Minister’s decision to issue the Ministerial Order. First, it claimed that in the absence of evidence before the Minister sufficient to establish that the entire province of PEI was infested with PW, the Minister did not have the authority to issue an order under section 15(3) of the Act. Second, the Appellant argued that the Ministerial Order was unreasonable because the Minister issued it to address “threats” by US authorities to restrict trade in Canadian potatoes with the US. In the Appellant’s view, the Respondents’ concern about international trade was an irrelevant consideration; in exercising her power under subsection 15(3), the Minister should have focused solely on whether PEI was “infested”.
A. Insufficient evidence supporting an infestation [50] Before the Federal Court and on this appeal, the parties agreed that the term “infested” in section 15(3) of the Act takes its meaning from the definition set out at section 2 of the Regulations, which imports the application of the reasonable suspicion standard. Before this Court, the Appellant submitted that this follows from paragraph 15(2)(b) of the Interpretation Act, R.S.C. 1985, c. I-21, which states that an interpretation section contained in an enactment, defined in subsection 2(1) of that Act as including an act or regulation or any portion thereof, is to be read and construed “as being applicable to all other enactments relating to the same subject-matter unless a contrary intention appears.” The Federal Court adopted the parties’ agreement as the basis for its analysis of the reasonableness of the Ministerial Order.
[51] The Appellant argued before the Federal Court that while the regulated fields could be described as “infested” under the Regulations, there were no objectively discernible facts before the Minister from which she could form a reasonable suspicion that PW was present on any of the unregulated fields.
[52] Noting that the Ministerial Order itself did not contain reasoning articulating whether the evidence before the Minister established a reasonable suspicion that PW was present in unregulated fields, the Federal Court examined the record before the Minister. It found that the record showed that CFIA had identified a pathway for the transmission of PW to unregulated fields that was not prevented by existing regulatory measures. In its view, this and other concerns laid out by CFIA in its submissions to the Minister furnished a transparent and intelligible justification for a conclusion that there were objectively discernible facts supporting a reasonable suspicion of the presence of PW in unregulated fields: FC Decision at paras. 112-113.
[53] The Federal Court found that the arguments raised by the Appellant did not undermine the reasonableness of the Minister’s decision to issue the Ministerial Order. In particular, it held that:
a)The evidence of Mr. David Bailey, Acting Executive Director of the Plant Health and Biosecurity Directorate and the Chief Plant Health Officer with CFIA, in cross-examination on an affidavit filed by the Respondents on the judicial review application, did not support the Appellant’s position that there was no scientific basis on which to declare PEI infested with PW. Moreover, this evidence was not before the Minister when she decided to issue the Ministerial Order and therefore of doubtful relevance to the Court’s assessment of the reasonableness of that decision.
b)The Appellant’s attempt to emphasize certain portions of CFIA documents that were before the Minister and that supported its view that there was insufficient evidence establishing that PEI was infested, amounted to an invitation for the Court to re-weigh the evidence rather than assess whether the Minister’s decision was justified in light of the legal and factual constraints that bore upon it.
c)CFIA’s statement that it could not “rule out that PW is present in other fields in PEI,” while not capturing the reasonable suspicion standard applicable under subsection 15(3) of the Act, was not intended to articulate the applicable test but served to reinforce CFIA’s concern that its surveillance and management methods had proven to be insufficient. Accordingly, this statement did not, in itself, render the decision unreasonable.
B. Trade or economic considerations are irrelevant or indicate an improper purpose [54] The Federal Court found, and the parties agreed, that the Respondents’ interest in avoiding a new US Federal Order and the accompanying negative trade and economic repercussions influenced the decision to issue the Ministerial Order. However, in the Court’s view, this did not make the decision unreasonable. The authority to issue an order that a place is infested under subsection 15(3) could be exercised only where the evidence supported a reasonable suspicion, grounded in objective facts, that the pest was in the place declared as infested. Where this condition was met, and given the permissive nature of the Minister’s authority under subsection 15(3), it was open to the Minister, in exercising her authority, to consider the economic repercussions raised following the 2021 detections. These were relevant because one of the purposes of the Act is to protect the agricultural sector of the Canadian economy by preventing the exportation or spread of pests.
V. The Role of this Court on this Appeal [55] On an appeal from a judgment of the Federal Court on an application for judicial review of an administrative decision, this Court decides whether the Federal Court identified the appropriate standard of review and applied it properly. Our role in this case is to step into the shoes of the Federal Court and to focus on the Ministerial Order: Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559 at paras. 45-47; Northern Regional Health Authority v. Horrocks, 2021 SCC 42, 426 D.L.R. (4th) 585 at para. 10.
[56] The Federal Court correctly selected the reasonableness standard to review the Ministerial Order. Where, as in this case, there is no legislated standard of review or statutory right of appeal, an administrative decision is presumptively reviewed on the reasonableness standard. Moreover, the parties did not raise any issues that could be characterized as falling within a category of question for which the rule of law requires the application of a correctness standard of review: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 at paras. 16-17.
[57] The focus of reasonableness review is on the decision actually made by the decision maker, including the reasoning process and the outcome: Vavilov at para. 83. A reasonable decision is one “that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker”: Vavilov at para. 85.
[58] In circumstances where no formal reasons are provided, such as when the Minister issues an order under subsection 15(3) of the Act, a reviewing court “must look to the record as a whole to understand the decision” and, in doing so, “will often uncover a clear rationale for the decision”: Vavilov at para. 137. Where no reasons are provided and neither the record nor the larger context sheds light on the basis for the decision, “the reviewing court must still examine the decision in light of the relevant constraints on the decision maker in order to determine whether the decision is reasonable,” an analysis that inevitably focuses on the outcome rather than on the reasoning process: Vavilov at para. 138.
[59] As noted by the Federal Court, the Ministerial Order does not itself contain an analysis of the question whether the requirements of subsection 15(3) of the Act are satisfied: FC Decision at para. 85. Where the administrative decision maker has not explicitly considered the meaning of a relevant provision in its reasons, the reviewing court may still be able to discern the interpretation adopted by the decision maker from the record and determine whether that interpretation is reasonable: Vavilov at para. 123; Safe Food Matters Inc. v. Canada (Attorney General), 2022 FCA 19, [2022] F.C.J. No. 96 at para. 41.
[60] To assess the reasonableness of the Ministerial Order, the Federal Court examined the record that was before the Minister when she issued it. It focused on a briefing package prepared by CFIA which included:
a)a memorandum from the president of CFIA [Memorandum] that provided a summary of relevant facts and considerations relating to the regulation of SE and PW, a review of possible regulatory options in the face of new detections of SE and a recommendation that the Minister issue the Ministerial Order attached to the Memorandum;
b)the Pest Risk Assessment, prepared by CFIA, that provided the scientific basis for CFIA’s overall management of the risk associated with PW; and
c)the Risk Management Document that summarized the Pest Risk Assessment and recorded the pest management risk process for the potential spread of PW within and from PEI.
[61] The terms of the Ministerial Order indicate that the Minister was of the view that she had the statutory authority to issue an order under subsection 15(3) of the Act declaring that “the province of Prince Edward Island which is comprised of the counties of Kings, Queens, and Prince is a place infested with potato wart (Synchytrium endobioticum).”
[62] This Court must decide whether the Ministerial Order was reasonable by examining it in light of the relevant constellation of law and facts which act as constraints on the Minister: 1120732 B.C. Ltd. v. Whistler (Resort Municipality), 2020 BCCA 101, 445 D.L.R. (4th) 448 at paras. 51, 84 [Whistler], citing Vavilov at paras 105, 138. However, in doing so, this Court must refrain from embarking on its own interpretation of the relevant statutory or regulatory provisions, a task reserved for the Minister.
VI. Analysis [63] The Appellant challenges the Ministerial Order on two grounds. First, it argues that the Minister’s decision that she had the authority to issue the Ministerial Order was unreasonable in light of the statutory framework that governs the issuance of an order under subsection 15(3) of the Act and the evidence placed before her. Second, it argues that in deciding to issue the Ministerial Order, the Minister was driven by a desire to avoid US actions that could jeopardize the ability of the Canadian potato industry to engage in international trade. Accordingly, the appellant submits, the Minister’s decision, which should have focused on whether PEI was infested by PW, as required by the Act, must be set aside because it was made for “an irrelevant or improper purpose”. I address each of these arguments in turn.
A. The Ministerial Order was reasonable [64] The Federal Court found a transparent and intelligible justification for the conclusion that there were objectively discernible facts supporting a reasonable suspicion that PW was present in unregulated fields in PEI in the following passage of the Pest Risk Assessment [the key passage] which I reproduce in full:
The management plan does not provide clear guidance on requirements for Category D fields for processing and tablestock potato tubers and associated soil, bulk soil and soil associated with movement of equipment/vehicles. While surveillance is required for the first susceptible variety grown, there is no notice of restriction placed on Category D fields to prohibit the movement of soil or to require cleaning and disinfection of equipment and vehicles from these fields. As a result, the mitigation measures that reduce risk in category D fields are mainly a