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 Decisions
Date
2023-04-13
Neutral citation
2023 FC 535
File numbers
T-1315-22
Decision Content
Date: 20230413
Docket: T-1315-22
Citation: 2023 FC 535
Ottawa, Ontario, April 13, 2023
PRESENT: The Honourable Mr. Justice Southcott
BETWEEN:
THE PRINCE EDWARD ISLAND POTATO BOARD
Applicant
and
THE MINISTER OF AGRICULTURE AND AGRI-FOOD AND THE CANADIAN FOOD INSPECTION AGENCY
Respondents
JUDGMENT AND REASONS
I. Overview
[1] This Judgment and Reasons address an application for judicial review of a series of related decisions of the Respondents, commencing in November 2021, restricting the movement of seed potatoes from Prince Edward Island [PEI] to the rest of Canada and the United States [US].
[2] As explained in more detail below, this application is dismissed, because the decisions under review are either moot or reasonable, within the meaning of the governing jurisprudence, and were made with the required procedural fairness.
II. Background
A. The Parties [3] The Applicant, the Prince Edward Island Potato Board, is a body corporate established under the Potato Marketing Plan Regulations, PEI Reg EC173/90 [PMP Regulations], and a “commodity board” within the meaning of Part II of the Natural Products Marketing Act, RSPEI 1988, c N-3. It acts as the custodian of the potato industry in the Province of PEI, representing approximately 175 potato producers across the Province, all of whom are regulated under the PMP Regulations.
[4] The Applicant is composed of 12 executive members who are active potato producers in the Province, equally representing each of the industry’s three major sectors: seed potatoes (planted to grow more potato plants), table stock potatoes (intended for immediate sale and human consumption), and processing potatoes (intended for further processing into other products before being sold for human consumption). The Applicant is itself also a seed potato producer, as it owns and operates the Fox Island Elite Potato Seed Farm.
[5] The Respondent, the Canadian Food Inspection Agency of Canada [CFIA], is Canada’s national plant regulator, created under the Canadian Food Inspection Agency Act, SC 1997, c 6 [CFIA Act]. Under subsection 11(1) of the CFIA Act, CFIA is responsible for the administration and enforcement of, among other statutes, the Plant Protection Act, SC 1990, c 22 [Act]. The purpose of the 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 and eradicating quarantine pests in Canada (at s 2).
[6] The other Respondent, the Minister of Agriculture and Agri-Food [Minister], is the federal minister responsible for CFIA, pursuant to powers granted by the Act, the CFIA Act, and regulations enacted thereunder.
B. Potato Wart Pest [7] Potato wart [PW], one of the most serious potato pests in the world, has been regulated as a quarantine pest in Canada for over a century (currently under the Act and the Plant Protection Regulations, SOR/95-212 [Regulations] made thereunder). Although it poses no threat to human health, animal health, or food safety, PW reduces potato yield and makes potatoes unmarketable.
[8] PW is caused by a soil-borne parasitic fungus, Synchytrium endobioticum, which infects potato plants. Its life cycle includes both a dormant stage, during which it exists as resting microscopic spores waiting for a host plant to be planted close enough to stimulate germination, and an active stage during which it completes reproductive cycles in the host plant, causing characteristic masses or galls. PW can remain dormant in soil for more than 40 years.
[9] PW is not an airborne fungus that can easily travel significant distances from its place of origin. Rather, spores can be transferred from one field to another of any distance away only by human-mediated pathways, such as transfer of soil on seed potatoes or on unwashed vehicles or equipment. In Canada, PW has been found only in Newfoundland and Labrador and on PEI.
C. Potato Wart Domestic Long-Term Management Plan [10] PW can be detected in one of two ways: either by visual inspection of potato tubers or by laboratory testing of soil samples. PW was first detected on PEI in October 2000. Since that detection, CFIA has adopted measures to monitor and control the spread of PW. The principal measures in place in the time period leading to the decisions challenged in this application are set out in a document called the Potato Wart Domestic Long-Term Management Plan, last updated on March 9, 2009 [Management Plan or Plan].
[11] In support of this application, the Applicant filed an affidavit sworn by its General Manager, Mr. Greg Donald, which provides an explanation of the operation of the Management Plan. The Plan categorizes potato-producing fields on PEI based on their relationship to PW detection and sets out different restrictions and surveillance activities depending on the category of field. It applies only to fields in which PW has actually been detected and those associated fields that, by proximity or history with a PW-positive field, have a risk of PW presence based on the biology of the pest and documented means of spread. The Plan currently applies to approximately 11% of the 350,000 acres of PEI’s potato fields.
[12] Where it applies, the Management Plan assigns potato fields one of the following classifications, indicating the confirmed presence of PW or risk of same:
Category A, also known as Index Fields, in which PW has been detected;
Category B, also known as Adjacent Fields, which are fields next to Index Fields that are not separated by a physical barrier of more than 15m in width;
Category C, also known as Primary Contact Fields, which are fields that may have had soil, potatoes or potato waste transferred to them from an Index Field or may have had common equipment moved to them directly after use in an Index Field;
Category D, also known as Other Contact Fields, which are fields where common equipment has been shared with an Index Field, but after use in a Primary Contact Field; and
Category E, sometimes called New Fields, which are not related to a detection, but rather are fields entering their first year of potato production that were not previously surveyed for PW.
[13] For each of these categories, the Management Plan provides corresponding surveillance protocols and/or restrictions on the movement and treatment of potatoes, plants, soil, machinery, and other articles. Under the Plan, seed potatoes (and the soil in which they are transported) originating from Category A, B, or C fields cannot be moved or sold as seed potatoes.
[14] Seed potatoes from Category D fields are not immediately subject to movement restrictions under the Management Plan. Provided the applicable surveillance and testing requirements are met after a Category D field’s first crop, those seed potatoes can be moved domestically within Canada. The Plan further provides that, if a Category D field’s second crop similarly meets those requirements, as well as US requirements as set out in the 2015 US Federal Order (which will be explained below), those seed potatoes can be exported to the US.
[15] Category E fields are visually inspected by CFIA for PW after the first harvest and, if no PW is found, they are not subject to any movement restrictions and are not further regulated by the Management Plan.
[16] In this application, the parties use the term “Regulated Fields” to refer to Category A, B, C, and D fields as well as Category E fields until their first harvest, and the term “Unregulated Fields” to refer to all other potato fields on PEI. I will adopt this nomenclature for purposes of these Reasons.
D. Potato Wart Detections on PEI [17] PW was first detected on PEI in a single field in October 2000. Since then (as of July 29, 2022), it has been detected in additional fields, totalling 35 fields overall representing approximately 0.4% of the total approximately 350,000 acres of potato fields on PEI. Together with these 35 Index Fields, there are a total of 1322 other fields also being regulated under the Management Plan because of their documented connection to the Index Fields. These 1357 fields together total an area of 40,616 acres or approximately 11% of PEI’s total potato field acreage. The remaining approximately 88% of PEI’s potato production land, which is not regulated by the Plan, represents approximately 8600 fields.
[18] Details of the PW detections on PEI are as follows:
PW was first detected on PEI in a 77-acre field in October 2000;
In the fall of 2002, PW was detected in two separate cases linked to the initial detection in 2000;
In 2004, PW was detected in four fields associated with one of the 2002 detections;
In 2007, a further PW detection was confirmed in a single 45-acre field related to one of the 2002 detections;
In September 2012, CFIA confirmed the detection of PW in three separate fields, two of which were not linked to a previous detection;
In 2013 and 2014, there were three further detections of PW on 86 acres of land linked to one of the 2012 detections;
In August 2014, a producer detected PW in a single 14.1 hectare field that was unrelated to any previous detections, following which CFIA’s investigations confirmed four additional detections in fields that were newly designated Category C and Category D fields as a result of the August 2014 detection;
In 2016 and 2018, there were two additional detections of PW, both of which were linked to previous detections;
In October 2020, CFIA confirmed detections of PW (in soil samples from two fields on one farm totaling approximately 50 acres) that were unrelated to any previous detections;
On October 1 and 14, 2021, CFIA confirmed the detection of PW in two separate processing potato fields on two separate farms, following the producers submitting a suspect potato to CFIA for testing. These fields, totaling approximately 331 acres, were both associated with fields in which there had been previous detections; and
As a result of the October 2021 detections, in accordance with the Management Plan, CFIA began testing the affected and associated fields [2021 Investigation]. To date, the 2021 Investigation resulted in two further PW detections:
On February 10, 2022, PW was detected in a field on a processing farm that had recently begun growing seed potatoes. This field was a Category D field as a result of the October 2021 detections; and
On July 21, 2022, PW was detected on a field adjacent to one of the October 2021 detections.
CFIA expects to complete its testing under the 2021 Investigation in 2023.
E. 2015 US Federal Order [19] Following the cluster of new PW detections on PEI commencing in 2014 as described above, the US Department of Agriculture Animal and Plan Health Inspection Service [APHIS], which is the CFIA’s American counterpart, issued a Federal Order to reduce the risk of PW spreading from PEI to the US [2015 US Federal Order].
[20] APHIS issues an order of this sort when it considers it necessary to take action to protect US agriculture or prevent the entry and establishment of a pest or disease into the United States. The 2015 US Federal Order required that Unregulated Fields undergo soil testing for PW and be declared free of PW before seed potatoes from those fields could be imported into the US.
[21] To comply with the 2015 US Federal Order, CFIA implemented its Phytosanitary Export Certification Program. Under this program, CFIA conducts verification of seed potato status, verification that the land on which potatoes were grown is not regulated for Synchytrium endobioticum, field soil sampling, monitoring of regulated areas, issuance of quarantine notices and movement certificates, tuber inspection, and shipment certification.
F. 2020 and 2021 Potato Wart Detections [22] Following the detection of PW in two Unregulated Fields in October 2020 as described above, APHIS asked CFIA to suspend export certification of seed potatoes from PEI while investigations could be conducted. CFIA agreed to this request, suspending export certification of seed potatoes from November 2020 until March 2021, when APHIS agreed that seed potato exports from PEI could resume.
[23] Following the October 2021 detections described above, CFIA notified APHIS of the detections. Subsequent communications between these regulators will be canvassed in more detail later in these Reasons. However, in summary, 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 any PEI seed potatoes to the rest of Canada, until after the 2021 Investigation was complete. APHIS indicated that failure to take these measures would result in amendments to the 2015 US Federal Order that would ban the importation of all Canadian potatoes to the US.
[24] As a result, on November 2, 2021, CFIA issued a document entitled “Notice to Industry – Temporary suspension of seed potato certification of seed potatoes originating from Prince Edward Island to the United States”, which advised that the movement of all seed potatoes originating from PEI to the US had been suspended as of November 1, 2021 [First Suspension].
[25] On November 21, 2021, CFIA issued a second document, entitled “Notice to Industry – Interim suspension of certification of all potatoes originating from Prince Edward Island to the Untied States and new import requirements for used farm equipment”, which expanded the First Suspension to include not only seed potatoes but also table stock and processing potatoes, effective as of 11:00 pm EST that day [Second Suspension].
[26] On November 21, 2021, the Minister also issued a Ministerial Order, pursuant to subsection 15(3) of the Act, declaring the entire Province of PEI as “a place infested with potato wart” and, among other things, prohibiting the movement of PEI seed potatoes from PEI without written authorization from an inspector [Ministerial Order]. The Ministerial Order remains in effect.
[27] On February 22, 2022, CFIA issued a Notice to Industry setting out the conditions under which inspectors would issue written authorizations to allow the movement of PEI seed potatoes from PEI in accordance with the Ministerial Order, referred to as the PEI Seed Potato Domestic Movement Requirements and Recommended Risk Mitigation Measures [Domestic Movement Requirements or Requirements]. The Domestic Movement Requirements are still in place.
[28] On April 1, 2022, APHIS issued a new Federal Order [2022 US Federal Order] amending the import requirements for PEI potatoes for human consumption. Effective as of that date, the 2022 US Federal Order prohibits the importation of field-grown seed potatoes from PEI into the United States and allows the importation of potatoes for consumption that meet specified conditions.
[29] In this application for judicial review, the Applicant challenges, as a series of related and ongoing decisions, the First Suspension, Second Suspension, Ministerial Order, and Domestic Movement Requirements.
III. Issues and Standard of Review
[30] Based on the parties’ respective submissions, I conclude that this application raises the following issues for the Court’s determination:
Should the Court grant an Order under Rule 302 of the Federal Courts Rules, SOR/98-106, allowing the Applicant to seek judicial review of more than one decision?
Are the First Suspension and Second Suspension reviewable decisions?
If reviewable, should the Court decline to consider the First Suspension and Second Suspension due to mootness?
If reviewable and not moot, were the First Suspension and Second Suspension reasonable (and is their ongoing operation reasonable)?
Was the Ministerial Order reasonable (and is its ongoing operation reasonable)?
Were the Domestic Movement Requirements reasonable (and is their ongoing operation reasonable)?
Was the Applicant denied procedural fairness with respect to the First Suspension, Second Suspension, and Ministerial Order?
[31] As reflected in the above articulation of the issues, the parties agree (and I concur) that each of the substantive issues listed above, except for the last which concerns procedural fairness, is reviewable on the standard of reasonableness (see Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov]). I note that, in their respective proposed lists of issues, both parties draw a distinction between the lawfulness and the reasonableness of the Decisions under review. My list of issues above eliminates that distinction as conceptually artificial. In my view, the arguments surrounding lawfulness simply represent one basis for challenging the reasonableness of the decisions, as administrative decisions made without legal authority are necessarily unreasonable (see McCarthy v Whitefish Lake First Nation #128, 2023 FC 220 at para 83; Jette v New Brunswick Legal Aid Services Commission, 2019 NBQB 320 at para 90.
[32] The parties also agree (and I concur) on the approach to the procedural fairness issue. Such issues are subject to judicial scrutiny to ensure that a fair and just process was followed, an exercise best reflected in the correctness standard even though, strictly speaking, no standard of review is being applied (see Canadian Pacific Railway Company v Canada (Transportation Agency), 2021 FCA 69 [Canadian Pacific Railway] at paras 46-47).
IV. Analysis
A. Should the Court grant an Order under Rule 302 of the Federal Courts Rules, SOR/98-106, allowing the Applicant to seek judicial review of more than one decision? [33] I will address this issue summarily, as the parties agree that a Rule 302 Order is appropriate. This Rule provides that, unless the Court otherwise orders, an application for judicial review shall be limited to a single order in respect of which relief is sought. However, as contemplated in David Suzuki Foundation v Canada (Health), 2018 FC 380 at paragraphs 166 and 173, continuing acts or decisions may be reviewed together without offending Rule 302, where the similarities are such that doing so would be consistent with the policy of ensuring an expeditious and focused process for challenging administrative action.
[34] Although the Applicant is challenging distinct decisions made by different decision-makers (CFIA and the Minister), the Respondents acknowledge (and I agree) that these challenges relate to the same basic issue, namely the regulatory response to the PW situation in PEI, and that requiring separate applications for judicial review would represent a waste of time and judicial resources. As such, my Order will grant the required relief under Rule 302.
B. Are the First Suspension and Second Suspension reviewable decisions? [35] This issue arises because the Respondents argue that the First Suspension and Second Suspension [together, Suspensions] are not decisions or other matters of the sort that are subject to judicial review. There are two components to the Respondents’ position:
First, the Respondents submit that the Applicant has mischaracterized the Suspensions as decisions by CFIA prohibiting the export of seed potatoes. The Respondents take the position that they did not prohibit the export of seed potatoes but rather notified industry and CFIA’s inspectors that, in light of messaging received from the US, CFIA could no longer certify seed potato exports to the US under the Regulations;
Second, the Respondents submit that, even if the Suspensions can be characterized as decisions, they are not justiciable because they cross the boundary from the legal to the political. The Respondents explain that the Suspensions followed a series of discussions between Canada and the US and that Canadian officials ultimately determined that it was prudent to suspend export certification of PEI potatoes, as requested by the US, to avoid a new US Federal Order that might impact the entire Canadian potato industry.
[36] In support of the first component of their position, the Respondents refers the Court to section 55 of the Regulations, which creates the requirement for a Canadian Phytosanitary Certificate, issued by a CFIA inspector, in connection with the export from Canada of any thing for which such a certificate is required by the phytosanitary certification authorities in the destination country. Under subsection 55(3), an inspector may issue such a certificate only if the inspector believes on reasonable grounds that the thing to be exported conforms with the laws of the importing country respecting phytosanitary import requirements.
[37] The Respondents argue that if the import requirements of a destination country change or the importing country is no longer prepared to accept certain potatoes, CFIA must respect that position and can no longer certify such potatoes for export. They take the position that the Suspensions are not decisions on CFIA’s part, but rather represent an acknowledgement of the state of affairs resulting from US decision-making. In the Respondents’ submission, the documents best capturing the Suspensions are not CFIA’s Notices to Industry, but rather its notices to its inspectors that seed potatoes could no longer be certified for export to the US.
[38] The Respondents’ Record in this application includes an affidavit affirmed by Mr. David Bailey, the Acting Executive Director of the Plant Health Biosecurity Directorate and the Chief Plant Health Officer with CFIA. In connection with the First Suspension, Mr. Bailey’s affidavit attaches what he describes as a guidance bulletin, dated November 2, 2021, sent to CFIA’s inspectorate [November 2 Bulletin]. He explains that the substance of this document represents advice to CFIA’s inspectors that the Notice to Industry had been sent to the seed potato industry regarding the suspension of seed potato certification for export to the US. The November 2 Bulletin incorporates the text of the Notice to Industry related to the First Suspension.
[39] The Certified Tribunal Record includes a document dated November 22, 2021, which appears to be a similar internal CFIA communication that, among other things, states that to address additional phytosanitary concerns raised by the US, the First Suspension has been expanded to include table stock potatoes and potatoes for processing that originate from PEI to the US as of November 21, 2021 [November 21 Bulletin]. This document further states that the suspension of certification of all potatoes originating from PEI to the US will remain in effect until further notice.
[40] As previously noted, subsection 55(3) of the Act tasks CFIA inspectors with issuing phytosanitary certificates if the inspector believes on reasonable grounds that the thing to be exported conforms with the laws of the importing country respecting phytosanitary import requirements. Against that backdrop, the Respondents submit that, pursuant to CFIA’s responsibility for the administration and enforcement of the Act (see CFIA Act, s 11), it routinely provides inspectors with guidance on the phytosanitary import requirements of relevant countries. While I accept that providing guidance to its inspectorate on foreign import requirements would be consistent with CFIA’s mandate, I have difficulty concluding that CFIA’s communications with its inspectorate in the case at hand fall within this characterization.
[41] The November 2 Bulletin issued in connection with the First Suspension states that the movement of seed potatoes originating from PEI to the US has been suspended. Similarly, the November 21 Bulletin issued in connection with the Second Suspension notes that the certification of shipments of seed potatoes originating from PEI to the US was suspended on November 1 and states that the suspension has been expanded to include table stock potatoes and potatoes for processing. CFIA’s communications with its inspectors, in connection with both Suspensions, do not read as informational guidance, i.e., providing them with information on foreign import requirements to assist them in making decisions under subsection 55(3) of the Act. Rather, as the Applicant submits, they read as the communication of decisions, already made by CFIA, to suspend export certification.
[42] Turning to the Respondents’ second position, surrounding the justiciability of the Suspensions, I accept their argument that there was a political element to these decisions. Both parties characterize the Suspensions in this manner. Indeed, one of the Applicant’s principal arguments in challenging the reasonableness of the Suspensions is the assertion that they were issued solely to accede to repeated trade-related threats by the US, which (particularly in the absence of a concurrent change in US law) the Applicant submits was an irrelevant consideration. The Respondents dispute that the US trade context was an irrelevant consideration, but they acknowledge that Canadian officials determined it was prudent to suspend export certification, as requested by the US, to avoid a new US Federal Order that might impact the entire Canadian potato industry. Indeed, they argue that it was precisely this political element to the Suspensions that makes them non-justiciable.
[43] The Respondents refer the Court to the explanation of the principal of justiciability in Hupacasath First Nation v Canada (Foreign Affairs and International Trade Canada), 2015 FCA 4 at paragraph 62:
62. Justiciability, sometimes called the “political questions objection,” concerns the appropriateness and ability of a court to deal with an issue before it. Some questions are so political that courts are incapable or unsuited to deal with them, or should not deal with them in light of the time-honoured demarcation of powers between the courts and the other branches of government.
[44] In Democracy Watch v Canada (Attorney General), 2023 FC 31 [Democracy Watch] at paragraph 73, this Court identified a number of considerations that can inform a justiciability analysis:
73. In considering the appropriateness of judicial involvement in particular matters, Canadian courts have considered questions such as the following: (a) whether the case has a sufficient legal component that it can be resolved by the application of a legal standard (see Reference Re Canada Assistance Plan (BC), 1991 CanLII 74 (SCC), [1991] 2 SCR 525 at p 545); (b) whether the case is argued solely in the hypothetical and abstract sense (see Page v Mulcair, 2013 FC 402 at paras 60-62); (c) whether the Court is being asked to express its opinion on the wisdom of governmental action (see Operation Dismantle v The Queen, [1985] 1 SCR 441 [Operation Dismantle] at p 472); (d) whether there are moral or political dimensions to the case that are inappropriate for the Court to decide (see Operation Dismantle at p 465); (e) whether the relief sought impinges upon policy-making responsibilities of other branches of government (see Tanudjaja v Canada (Attorney General), 2014 ONCA 852 [Tanudjaja] at paras 33-34); and (f) whether the relief sought would have any practical effect (see Tanudjaja at para 34).
[45] The Applicant’s arguments challenging the Suspensions are not focused on their wisdom or whether CFIA made appropriate political or policy decisions. Rather, the Applicant submits that the Suspensions were made without legal authority and based on irrelevant considerations. As in Democracy Watch (at para 76), such determinations involve the application of a legal standard. As for whether the Court is being to ask to address arguments advanced solely in the hypothetical or abstract sense, or whether addressing the Applicant’s arguments would have any practical effect, I will further consider comparable principles when considering the Respondents’ mootness argument. However, for purposes of the justiciability analysis, I observe that the Applicants’ arguments are raised in the context of a concrete and ongoing dispute surrounding the regulatory response to the PW situation in PEI. I find the Suspensions to be reviewable decisions.
[46] In so concluding, I have considered the Respondents’ reliance on Cropvise Inc v Canadian Food Inspection Agency, 2016 NBQB 186 [Cropvise], aff’d 2018 NBCA 28, in which the Court of Queen’s Bench of New Brunswick (as it was then called) declined to recognize a duty of care surrounding CFIA’s decision as to how to engage with Venezuelan officials over a dispute involving the export of potatoes. The Court held that such a decision represented the outcome of a balancing of economic, social and political considerations by CFIA and other Canadian government authorities, in the conduct of diplomat relations with the Venezuelan state, and was therefore based on public policy considerations that could not support a cause of action (at para 110).
[47] Leaving aside the fact that Cropvise involved an action for damages, not an application for judicial review, the analysis in that case is distinguishable from that required in the case at hand which, as explained above, does not involve consideration of the wisdom of steps taken in the conduct of diplomatic relations but rather whether certain decisions were authorized by law and based on relevant considerations.
C. If reviewable, should the Court decline to consider the First Suspension and Second Suspension due to mootness? [48] Unlike the suspension of export certification following the October 2020 PW detection, there has been no formal notification to the industry that the Suspensions have been withdrawn. However, at the hearing of this application, the Respondents’ counsel confirmed that the Respondents regard the Suspensions as no longer being in effect, explaining that it was not thought to be necessary to provide formal notification of this, because the Suspensions were superseded in effect by the 2022 US Federal Order.
[49] Based on this confirmation by the Respondents’ counsel, the Applicant’s counsel acknowledged that its challenges of the Suspensions are therefore moot. However, the Applicant takes the position that the Court should nevertheless exercise its discretion to adjudicate the Applicant’s arguments, at least in relation to the legal authority for the Suspensions.
[50] The Applicant’s position is based on the principles explained in Borowski v Canada (Attorney General), [1989] 1 SCR 342, as summarized in Democracy Watch v Canada (Attorney General), 2018 FCA 195 [Democracy Watch FCA] at paragraphs 10 and 13. If the Court concludes that a proceeding is indeed moot, in that no live controversy remains that affects or may affect the rights of the parties, a second question arises: whether the Court should nonetheless exercise its discretion to hear and decide the matter. Three factors bear on the Court’s decision whether to exercise this discretion: (a) the presence or absence of an adversarial context; (b) the appropriateness of applying scarce judicial resources; and (c) the Court’s sensitivity to its role relative to that of the legislative branch of government.
[51] Clearly the adversarial context is present in the case at hand, as the parties have fully briefed and argued their respective positions surrounding the reasonableness of the Suspensions.
[52] Judicial resources have already been expended in preparing for and hearing this application, including in relation to these arguments. The additional expenditure of resources associated with adjudication is not significant. This factor also includes, where applicable, consideration of whether the case presents a recurring issue, but one that is of short duration or otherwise evasive of judicial review (see Democracy Watch FCA at para 14). The Applicant argues compellingly that the Suspensions are not the first time that CFIA has made decisions of this nature, as a similar suspension of export certification was issued following the October 2020 PW detection. Also, as in the case at hand, such suspensions may be of short duration and therefore evasive of judicial review due to mootness, when they are overtaken by other regulatory events.
[53] The third factor requires that the Court exercise its discretion to adjudicate moot proceedings both prudently and cautiously, as the primary task of the judiciary within the Canadian constitutional separation of powers is to resolve real disputes (see Democracy Watch FCA at para 14).
[54] My decision is to exercise my discretion to adjudicate the parties’ arguments surrounding CFIA’s legal authority for the Suspensions, as these arguments are largely independent of the particular factual context in which CFIA suspends export certification. The arguments surrounding whether the Suspensions were based on irrelevant considerations, and the parties’ procedural fairness arguments, are far more dependent on factual context and, taking into account both the second and third factors, I decline to exercise my discretion to adjudicate those arguments.
D. If reviewable and not moot, were the First Suspension and Second Suspension reasonable (and is their ongoing operation reasonable)? [55] As explained immediately above, under this issue I will adjudicate only the question of whether the Suspensions were authorized by law.
[56] The Applicant argues that, unlike the Ministerial Order that will be addressed later in these Reasons, neither of the Suspensions was memorialized in an official decision document. Rather, each Suspension was announced by CFIA via a Notice to Industry, and neither such Notice identifies any grant of authority for the relevant Suspension. The Applicant submits that the rest of the record before the Court, including the affidavits filed by the Respondents, are similarly devoid of any reference to such authority. The Applicant asserts that nothing in the Act, the CFIA Act, regulations made thereunder, or any other statute that CFIA has jurisdiction to administer authorizes it to issue a blanket prohibition of potato export from an entire province to a particular country.
[57] CFIA’s response to this argument is largely as canvassed earlier in these Reasons, in connection with the question whether the Suspensions represent decisions or other justiciable matters. It submits that it routinely provides inspectors with guidance on the phytosanitary import requirements of relevant countries, pursuant to CFIA’s responsibility for the administration and enforcement of the Act (see CFIA Act, s 11). In adjudicating the justiciability issue, I analysed CFIA’s arguments as to how to characterize its administrative actions. The same analysis is dispositive of the legal authority question.
[58] As previously explained, I accept that providing guidance to its inspectorate on foreign import requirements would be consistent with CFIA’s mandate, but I find that CFIA’s communications with its inspectorate in the case at hand do not fall within this characterization. Under subsection 55(3) of the Act, it is CFIA’s inspectors who have the authority to issue phytosanitary certificates, and an individual inspector can only issue such a certificate if they believe on reasonable grounds that the thing to be exported conforms with the laws of the importing country respecting phytosanitary import requirements. The Respondents have identified no legal authority for CFIA itself to make the determination as to whether export certificates will be issued, or to prohibit export, on a blanket basis or otherwise.
[59] Based on the governing legislation as currently enacted, and the manner in which the Notices to Industry and related communications to the CFIA inspectorate are framed in the case at hand, I agree with the Applicant’s position that the Respondents have identified no legal authority for the Suspensions.
[60] Because this determination represents a discretionary adjudication of an issue that is now moot, it will not give rise to any relief in my Order.
E. Was the Ministerial Order reasonable (and is its ongoing operation reasonable)? (1) Authority for Ministerial Order [61] The Applicant advances a number of arguments in support of its position that the Ministerial Order was unreasonable. While I will explain these arguments in greater detail below, the Applicant argues principally that there was no evidentiary basis on which the Minister could form a reasonable suspicion that the entire Province of PEI was “a place infested with potato wart”, as required by the Regulations in order for the Minister to make the declaration to that effect contained in the Ministerial Order. Related thereto, the Applicant also argues that the Ministerial Order was issued based on an irrelevant consideration or for an improper purpose, i.e., to effect a commitment that CFIA had made to the US in response to a trade threat, rather than based on the presence of PW on PEI as required by the Regulations.
[62] Foundational to the Ministerial Order is the declaration therein 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 …”. It is common ground between the parties that the Minister made this declaration under the power conferred by subsection 15(3) of the Act, which provides that the Minister may, by order, declare any place to be infested that is not already the subject of a declaration under section 11 or 12 (which sections empower inspectors to make declarations of infestation).
[63] The Applicant notes that section 2 of the Regulations defines the term “infested” as follows:
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)
parasité Se dit de la présence d’un parasite sur ou dans une chose ou de l’exposition telle d’une chose à un parasite qu’il est raisonnable d’y soupçonner la présence du parasite. (infested)
[64] Neither of the parties has identified any judicial consideration of this definition. However, relying on the phrase “reasonably suspect” employed in the definition, the Applicant argues that the definition incorporates the standard of reasonable suspicion that has been applied and interpreted in other contexts. For instance, in R v Chehil, 2013 SCC 49 at paragraphs 26 to 27, the Supreme Court of Canada described this standard as follows:
26. Reasonable suspicion derives its rigour from the requirement that it be based on objectively discernible facts, which can then be subjected to independent judicial scrutiny. This scrutiny is exacting, and must account for the totality of the circumstances. In Kang-Brown, Binnie J. provided the following definition of reasonable suspicion, at para. 75:
The “reasonable suspicion” standard is not a new juridical standard called into existence for the purposes of this case. “Suspicion” is an expectation that the targeted individual is possibly engaged in some criminal activity. A “reasonable” suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds.
27. Thus, while reasonable grounds to suspect and reasonable and probable grounds to believe are similar in that they both must be grounded in objective facts, reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability, of crime. As a result, when applying the reasonable suspicion standard, reviewing judges must be cautious not to confl