Hilbert Honey Co. Ltd. v. Canada (Canadian Food Inspection Agency)

Hilbert Honey Co. Ltd. v. Canada (Canadian Food Inspection Agency)
Court (s) Database
Federal Court Decisions
Date
2009-08-11
Neutral citation
2009 FC 818
File numbers
T-1520-08
Notes
Digest
Decision Content
Federal Court
Cour fédérale
Date: 20090811
Docket: T-1520-08
Citation: 2009 FC 818
Ottawa, Ontario, August 11, 2009
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
HILBERT HONEY CO. LTD.
Applicant
and
CANADIAN FOOD
INSPECTION AGENCY
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an appeal brought by the Applicant under section 18(1) of the Federal Courts Act, R.S., 1985, c. F-7 (Act) of the decision of the Canadian Food Inspection Agency (Respondent or CFIA), dated September 24, 2008 (Decision), denying return to Canada of the Applicant’s agricultural product, which consisted of 62 drums of raw honey (Product) that were evidently destroyed in the United States (US) by order of the United States Food and Drug Administration (US FDA).
BACKGROUND
[2] The Applicant is a beekeeping operation and honey farm located in Humboldt, Saskatchewan.
[3] In August 2007, the Applicant exported 62 drums of raw honey with an approximate value of $56,000 to the United States for further processing and packaging.
[4] On September 21, 2007, upon entry to the United States at Sweetgrass, Montana, the US FDA sampled the honey and found it contained unacceptable quantities of filth and debris, including paint chips. The US FDA took additional random samples when the Product reached its destination at Anaheim, California and found high concentrations of lead in the paint chips that were in the honey.
[5] On November 1, 2007, the US FDA detained the Product and indicated that, in addition to the filth and debris, the paint chips were leaching lead. The CFIA was contacted on November 21, 2007 with respect to the circumstances of the testing and detention. The CFIA made inquiries about the possible sources of lead through correspondence to Mark Mammen, Vice President of the Sioux Honey Association, but received no response.
[6] The US FDA provided additional information to the Applicant concerning its refusal to accept the Product, noting the risk of solubilization in acidic food products such as honey following lead exposure. The US FDA advised the Applicant that while re-conditioning could remove solid extraneous matter from the honey, it will not remove lead that had migrated into the honey and is present as a dissolved salt.
[7] The Applicant arranged for independent testing of the Product, which revealed that it contained levels of lead well below what the Applicant alleges is the “commonly accepted industry cut-off of 0.02ppm.”
[8] On May 15, 2008 and May 20, 2008, the US FDA reproduced its decision in two Notices of FDA Action.
[9] On June 2, 2008 and July 16, 2008, the Applicant requested the return of the 62 drums of honey to Canada alleging that the Product was in compliance with Canada’s food laws. On July 3, 2008 and July 22, 2008 the CFIA denied the requests and cited contravention of subsections 4.1(1) and 16(f) of the Honey Regulations, C.R.C., c. 287 (Regulations) and section 17 of the Canada Agricultural Products Act, 1985, c. 20 (4th Supp.) (Products Act). The Product could only be returned as bee feed or be destroyed. The Applicant supplied the CFIA with copies of its independent test results.
[10] On September 9, 2008, the Applicant requested that the Product be returned to Canada to be used as bee feed without irradiation. The Applicant could not find any irradiation facilities in the US or Canada willing to irradiate drums of honey. On September 18, 2008, the CFIA denied the request to import the honey as bee feed unless the honey was irradiated. On September 23, 2008, the Applicant informed the CFIA that the irradiation process was unmanageable. On September 24, 2008, the CFIA re-affirmed its decision to refuse the return of the Applicant’s honey to be used for bee feed without irradiation.
[11] The Applicant alleges that at no time in the proceedings did it intend to market the Product. It says it wanted “simply to have the product returned to Canada to be inspected under the supervision and direction of the CFIA.”
[12] The Applicant brought an interim application to have the Product returned to Canada pending the outcome of this judicial review. The interim application was dismissed by Justice Beaudry of this Court by an Order dated October 15, 2008.
[13] As a result of the failed interim application, the Applicant was forced to have the Product destroyed in the United States at its own cost. The destruction was carried out in late 2008.
[14] The Applicant did not attempt to pursue any legal proceedings to challenge the US FDA decisions in that jurisdiction.
[15] The Applicant brought this judicial review application on October 2, 2008.
DECISION UNDER REVIEW
[16] The Respondent denied the Applicant’s request to have the Product re-admitted to Canada. The Respondent said that it could not be sure of the authenticity of the Applicant’s independent test results, as it had not been provided with any information as to the methods used in the testing process.
[17] The Applicant asked the Respondent to reconsider its decision, and provided further information regarding the independent test results, including information about the methods used in collecting, transporting and testing the samples.
[18] The Respondent once again denied the Applicant’s request to have the Product returned to Canada. The Respondent’s decision stated that the Product could be admitted to Canada either to be used as bee feed or to be destroyed.
[19] The Respondent was of the opinion that the Product was in contravention of section 17(a) of the Products Act and sections 4.1(1) and 16(f) of the Regulations.
ISSUES
[20] The Applicant originally submitted the following issues on this application:
a. Is this application barred by the 30-day limitation found in section 18 of the Act?
b. Is this application moot and, if so, should it be heard nonetheless by this Court pursuant to the doctrine of mootness?
c. What is the correct standard of review applicable to the Respondent’s Decision?
d. Was the Respondent’s Decision incorrect or unreasonable because:
i. The Respondent did not have the legal authority within the framework of its enabling legislation to make the Decision;
ii. The Decision was not reasonable;
iii. The Decision was procedurally unfair.
STATUTORY PROVISIONS
[21] The following provision of the Canadian Food Inspection Agency Act, 1997, c. 6 (Food Inspection Act) is applicable to this application:
Legal proceedings
15. Actions, suits or other legal proceedings in respect of any right or obligation acquired or incurred by the Agency, whether in its own name or in the name of Her Majesty in right of Canada, may be brought or taken by or against the Agency in the name of the Agency in any court that would have jurisdiction if the Agency were not an agent of Her Majesty.
Action en justice
15. À l’égard des droits et obligations qu’elle assume sous le nom de Sa Majesté du chef du Canada ou sous le sien, l’Agence peut ester en justice sous son propre nom devant tout tribunal qui serait compétent si elle n’avait pas la qualité de mandataire de Sa Majesté.
[22] The following provisions of the Regulations are applicable to this application:
4.1 (1) Subject to subsections (2) and (3), no person shall market honey in import, export or interprovincial trade as food unless the honey
(a) is not adulterated;
(b) is not contaminated;
(c) is edible;
(d) is prepared in a sanitary manner; and
(e) meets all other requirements of the Food and Drugs Act and the Food and Drug Regulations.
…
16. A registered establishment shall be operated in such a manner that
…
(f) honey does not come into contact with any substance that may have a deleterious effect on the quality of the honey.
…
INSPECTION AND CERTIFICATION
38. (1) A person who wishes to have honey inspected or graded shall
(a) make a request to an inspector at least 48 hours before the service is required or, if there is no inspector in the area, at the nearest inspection office at least 72 hours before the service is required;
(b) present the honey at a place and time designated by an inspector;
(c) make all honey from which samples will be drawn by the inspector readily accessible and ensure that it is in a condition suitable for inspection or grading;
(d) be available to assist the inspector, or designate an employee on the premises who will be available to assist the inspector, to open and close the containers and provide such other assistance as the inspector may request in order to provide the service;
(e) indicate the grade names and colour class, if any, proposed to be placed on the containers, where the honey is unlabelled at the time it is presented;
(f) provide a room where the inspection can be performed in which
(i) the temperature is at least 10°C, and
(ii) there is adequate lighting for a proper inspection; and
(g) pay the applicable fee prescribed by the Canadian Food Inspection Agency Fees Notice, in accordance with the conditions of payment set out in that Notice.
(2) A person who has a financial interest in honey that was inspected and certified under these Regulations may, on written request to an inspector, obtain a copy of the certificate of inspection.
4.1 (1) Sous réserve des paragraphes (2) et (3), est interdite la commercialisation — soit interprovinciale, soit liée à l’importation ou l’exportation — du miel en tant qu’aliment, sauf si le miel :
a) n’est pas falsifié;
b) n’est pas contaminé;
c) est comestible;
d) est conditionné hygiéniquement;
e) satisfait à toutes les autres exigences de la Loi sur les aliments et drogues et du Règlement sur les aliments et drogues.
…
16. Un établissement agréé doit être exploité de façon que
…
f) le miel ne vienne pas en contact avec une substance qui puisse avoir un effet délétère sur la qualité du miel.
…
INSPECTION ET CERTIFICATION
38. (1) Quiconque souhaite faire inspecter ou classer du miel doit :
a) en faire la demande à l’inspecteur au moins 48 heures à l’avance ou, à défaut d’inspecteur dans la région, au bureau d’inspection le plus proche au moins 72 heures à l’avance;
b) présenter le miel aux date, heure et lieu précisés par l’inspecteur;
c) rendre facilement accessible tout le miel duquel l’inspecteur prélèvera des échantillons et veiller à ce qu’il soit dans un état qui se prête à l’inspection ou au classement;
d) se mettre à la disposition de l’inspecteur, ou désigner un employé sur place qui soit à la disposition de celui-ci, pour l’aider à ouvrir et fermer les contenants et lui prêter toute autre aide qu’il peut demander pour la prestation du service;
e) si le miel n’est pas étiqueté au moment de sa présentation, indiquer les noms de catégorie et la classe de couleur qu’il est proposé d’inscrire sur les contenants, le cas échéant;
f) fournir une pièce pour l’inspection dans laquelle :
(i) la température est d’au moins 10 °C,
(ii) l’éclairage est suffisant pour permettre une inspection convenable;
g) payer le prix applicable prévu dans l'Avis sur les prix de l’Agence canadienne d’inspection des aliments, selon les modalités qui y sont prévues.
(2) Quiconque a des intérêts pécuniaires dans du miel ayant été inspecté et pour lequel un certificat a été délivré aux termes du présent règlement peut demander par écrit à l’inspecteur une copie du certificat d’inspection.
[23] The following provisions of the Products Act are applicable to this application:
Prohibition
17. No person shall, except in accordance with this Act or the regulations,
(a) market an agricultural product in import, export or interprovincial trade;
(b) possess an agricultural product for the purpose of marketing it in import, export or interprovincial trade; or
(c) possess an agricultural product that has been marketed in contravention of this Act or the regulations.
…
Seizure
23. Where an inspector believes on reasonable grounds that this Act or the regulations have been contravened, the inspector may seize and detain any agricultural product or other thing
(a) by means of or in relation to which the inspector believes on reasonable grounds the contravention occurred; or
(b) that the inspector believes on reasonable grounds will afford evidence in respect of a contravention of this Act or the regulations.
…
30. (1) Where an inspector believes on reasonable grounds that an agricultural product is being or has been imported into Canada in contravention of this Act or the regulations, the inspector may, whether or not the product is seized, require the importer to remove it from Canada by delivering personally to the importer a notice for its removal or by sending the notice by registered mail to the importer’s business address in Canada.
Interdiction
17. Sont interdites, relativement à un produit agricole, toute commercialisation — soit interprovinciale, soit liée à l’importation ou l’exportation — effectuée en contravention avec la présente loi ou ses règlements de même que la possession à ces fins ou la possession résultant d’une telle commercialisation.
…
Saisie
23. L’inspecteur peut saisir et retenir tout produit agricole ou tout autre objet, s’il a des motifs raisonnables de croire qu’ils ont servi ou donné lieu à une contravention à la présente loi ou à ses règlements, soit tout produit agricole, ou tous autres éléments, dont il a des motifs raisonnables de croire qu’ils peuvent servir à prouver la contravention.
…
30. (1) S’il a des motifs raisonnables de croire qu’un produit agricole est ou a été importé en contravention avec la présente loi ou ses règlements, l’inspecteur peut, qu’il y ait ou non saisie, en exiger le retrait par l’importateur en envoyant à celui-ci, à son adresse commerciale au Canada, un avis à remettre à personne ou sous pli recommandé.
STANDARD OF REVIEW
[24] The Applicant submits that if the Court finds that the facts of the case are sufficiently close to those in Miel Labonté Inc. v. Canada (Attorney General), [2006] F.C.J. No. 247 (F.C.) (Miel Labonté); BC Landscape & Nursery Assn. v. Canada (Attorney General), [2000] F.C.J. No. 1148 (F.C.T.D.) (BC Landscape) and Friends of Point Pleasant Park v. Canada (Attorney General), [2000] F.C.J. No. 2012 (F.C.T.D.) (Friends of Point Pleasant) and the question is not one of jurisdiction within the meaning of Dunsmuir v. New Brunswick 2008 SCC 9 (Dunsmuir), then this Court must find that the standard of review is one of reasonableness.
[25] The Respondent states that the CFIA is specially trained in the field of honey products within the scheme of the National Honey Program. This includes elements of international trade and the regulation of both foreign and domestic products. The CFIA has access to international standards, product quality and food contamination literature and consultations in toxicology. A high degree of deference should be recognized where the quality of honey products is in issue.
[26] The Respondent cites sections 23 and 30 of the Products Act and states that the permissive language throughout the legislation is indicative of the high degree of discretion intended by the legislator. The “broad spectrum of quality control legislation” in the Regulations also reflects the discretion afforded to CFIA inspectors specifically trained in the area.
[27] The Respondent cites Miel Labonté for the proposition that when faced with a CFIA decision on the quality standard of a honey product, “reasonable grounds” for the purposes of recall orders under section 19 of the Food Inspection Act means that “some evidence must exist to support the decision.” The Respondent also cites Friends of Point Pleasant which states at paragraph 49 that the legislator’s use of “reasonable grounds” means “more than a flimsy suspicion, but less than the civil test of balance of probabilities.”
[28] The Respondent states that reasonableness, with a high degree of deference, is the standard when reviewing decisions of the CFIA based on questions of fact.
[29] In Dunsmuir, the Supreme Court of Canada recognized that, although the reasonableness simpliciter and patent unreasonableness standards are theoretically different, “the analytical problems that arise in trying to apply the different standards undercut any conceptual usefulness created by the inherently greater flexibility of having multiple standards of review”: Dunsmuir at paragraph 44. Consequently, the Supreme Court of Canada held that the two reasonableness standards should be collapsed into a single form of “reasonableness” review.
[30] The Supreme Court of Canada in Dunsmuir also held that the standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to the particular question before the court is well-settled by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis.
[31] Thus, in light of the Supreme Court of Canada’s decision in Dunsmuir and the previous jurisprudence of this Court, I find the standard of review applicable to the merits of the Decision to be reasonableness. When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir at paragraph 47. Put another way, the Court should only intervene if the Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.”
[32] The issue raised concerning procedural fairness and natural justice is reviewable on a standard of correctness: Suresh v. Canada (Minister of Citizenship and Immigration) 2002 SCC 1.
[33] The Applicant dropped the jurisdiction issue at the hearing and the Respondent has not raised limitations or mootness. Consequently, I have not considered these issues.
ARGUMENTS
The Applicant
[34] The Applicant submits that when the CFIA considered the Applicant’s request to have the Product returned to Canada, it accepted the findings, opinions and assumptions of the US FDA over the contrary evidence provided by the Applicant. This means that a farmer’s product can be denied entry into Canada without ever having been inspected in accordance with Canadian standards, or dealt with under Canadian legal rules of procedural fairness. Therefore, a producer’s economic rights can be affected by decisions of foreign bodies, even if those decisions are not just or procedurally fair.
[35] The Applicant says that, since Canada’s economy has always been heavily dependent upon the marketing of domestic goods across the world, the rights of exporters are naturally deserving of a high degree of procedural and administrative protection. Therefore, the Applicant submits that the Court should find the Respondent’s Decision to be invalid and set it aside.
Decision Not Reasonable
[36] The Applicant points out that the CFIA decided that it would be a contravention of the Products Act and the Regulations to have the Product readmitted to Canada for testing, but that it would not be a violation to have it brought in for use as bee feed or for destruction. The Applicant views this decision as unreasonable and as based upon a fundamental misunderstanding of the legislation and administrative law.
[37] The Applicant submits that the Respondent has contended throughout this matter that this is an issue of public safety and that the Applicant’s Product was in violation of Canada’s requirements regarding food safety and, therefore, in contravention of trade requirements. The Applicant alleges, however, that this is misleading and that the Applicant at no time stated that it sought to market or sell its Product as food in the Canadian market. Rather, the Applicant’s aim was to have its Product returned to Canada and retested to allay any concerns about safety.
[38] While the Applicant did state in a June 2, 2008 letter its belief that it was in compliance with all Canadian laws and regulations, it also stated that it was willing to have the Product re-tested if required by the CFIA. The Applicant states that its assertion that the Product conformed to Canadian law can be read as a response to the Respondent’s position that the Product would have to be reconditioned in the US prior to admittance. As the Applicant considered reconditioning unnecessary, it follows that it requested readmission without it.
[39] The Applicant contends that the Respondent’s position was that it would not be a safety hazard to bring the product into Canada either for irradiation or for destruction, but it would be a safety hazard to bring it in for testing. But testing involves no more risk of distribution on the open market than does irradiation or destruction. The Applicant alleges that the Respondent has provided no defensible reason why one scenario is different from the other two.
[40] The Applicant says that the Respondent provided voluminous evidence of the risks of lead infiltration into food products, especially products of an acidic nature; however, there is no evidence of the extent of exposure the Applicant’s Product had to any lead that may have existed in the drums. Also, there is no evidence before the Court of the number of drums which were affected by the alleged lead exposure. Such exposure may have been limited to one or two drums out of the whole shipment of 62.
[41] The reason why this Court does not have this information is that the drums were first sealed by the US FDA and then destroyed in the United States. If the Respondent had permitted the drums to be examined upon their return to Canada, it may have been found that lead exposure was limited to only one or two drums. Then, rigorous and thorough sampling of the remaining drums could have helped determine whether the exposure came from the drums themselves or from somewhere in the production or bottling facility of the Applicant or elsewhere. Such testing could have revealed whether up to 90%-95% of the shipment could have been saved from destruction; a significant portion of the Applicant’s business for the year 2008 could have been saved from loss.
[42] The Applicant says that the Respondent has not provided the Court with any evidence that performing tests upon returned products would impose an unduly onerous burden. Even if the Respondent were to contend that it would be an impossible burden to retest every shipment of food product that has been found unsafe in a foreign jurisdiction, this position would be contradicted by the fact that the CFIA was willing to have the Product readmitted to Canada for use as bee feed. Such a step would have been far more labor-intensive for the CFIA and would have necessitated a CFIA inspector being present at the irradiation facility to supervise the treatment of the Product and to ensure that it was only used for animal feed.
Application of Legislation
[43] The Applicant points out that “marketing” is defined in the Food Inspection Act as follows:
…the preparation and advertisement of agricultural products and includes the conveyance, purchase and sale of agricultural products and any other acts necessary to make agricultural products available for consumption or use…
[44] The Applicant notes that the Respondent’s position is that, by requesting that its Product be admitted into Canada for further and proper testing, the Applicant was seeking to market the Product, which the Applicant alleges is not correct. The Applicant suggests that this Court should interpret “marketing” to mean something distinct from verifying that a product is suitable for sale as food. The Applicant’s position is simply that the US FDA’s findings regarding contamination were not determinative, and that if there was a problem with the Product it could have been dealt with by further testing and possible reconditioning in Canada. The Applicant submits that the re-conditioning of contaminated product is provided for in the Regulations.
[45] The Applicant alleges that if the Respondent’s current position is correct, then it would be an offence under the Act and the Regulations to undertake any improvement of any contaminated product, as this would be in contravention of the marketing provisions. It is apparently acceptable to the Respondent to irradiate the product for bee feed, but unacceptable to first test it to determine if this is the appropriate action.
Decision was not Procedurally Fair
[46] The Applicant also submits that the Decision was not procedurally fair and relies upon Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 for the five factors which should be assessed to determine the degree of procedural fairness owed in any given situation. The Applicant says that, in this case, there was no immediate public health issue that posed any risk. If the Applicant had requested that the Product be made available for marketing, then the Respondent’s reliance upon public health concerns would have been justified. However, the facts of this case do not give rise to health issues; rather, the question at issue is one of economic and administrative law rights.
Respondent
[47] The Respondent submits that the overall scheme of the Products Act and the Regulations is not only intended to regulate the quality of products that are marketed to consumers, but also to regulate the way in which those products are safely processed, supplied, stored and conveyed in import, export and interprovincial trade. Parliament has provided CFIA inspectors with the authority to administer and enforce import and export requirements of agricultural and food products as per section 11 of the Food Inspection Act which reads as follows:
11. (1) The Agency is responsible for the administration and enforcement of the Agriculture and Agri-Food Administrative Monetary Penalties Act, Canada Agricultural Products Act, Feeds Act, Fertilizers Act, Fish Inspection Act, Health of Animals Act, Meat Inspection Act, Plant Breeders’ Rights Act, Plant Protection Act and Seeds Act.
11. (1) L’Agence est chargée d’assurer et de contrôler l’application des lois suivantes : la Loi sur les sanctions administratives pécuniaires en matière d’agriculture et d’agroalimentaire, la Loi sur les produits agricoles au Canada, la Loi relative aux aliments du bétail, la Loi sur les engrais, la Loi sur l’inspection du poisson, la Loi sur la santé des animaux, la Loi sur l’inspection des viandes, la Loi sur la protection des obtentions végétales, la Loi sur la protection des végétaux et la Loi sur les semences.
Applicant’s Repatriation and Re-importation Argument
[48] The Respondent submits that the Applicant makes reference to “re-importation,” which is not a defined term in any legislation or regulation. A product is either imported or exported. The legislation and the regulations apply to domestic as well as foreign products. The Respondent notes that the CFIA had no control over the Product while it was in transit from Montana to California, and the Applicant did not provide compelling evidence to show the origin of the paint chips. If the definition of “import” in a regulatory context were to be restricted to only foreign foods, animals, plants and other products, the purpose and intent of regulating safety for Canadian citizens would be jeopardized in a free trade environment. Therefore, the re-importation argument of the Applicant would impose an unnecessary burden on CFIA inspectors and an element of uncertainty over regulatory compliance, particularly when the Applicant made no request for certification of the Product prior to export.
[49] According to the Applicant’s submission, a Canadian citizen could take his domestic cow to a United States auction and, in the event it contracts a fatal, highly contagious disease, avoid regulatory scrutiny upon “repatriation,” thereby jeopardizing domestic herds upon its return. The Respondent states that this interpretation is “ludicrous” and that goods must be reported upon entry to Canada even if they are domestically produced. Once reported, the goods are subject to appropriate regulatory scrutiny.
US FDA Jurisdiction
[50] The US FDA made decisions on quality and safety in relation to the Applicant’s Product. It rejected the Applicant’s reconditioning proposals and the Applicant never challenged the US FDA’s decision in that jurisdiction. The Applicant invoked the involvement of the CFIA by requesting a decision on the return of the Product to Canada and that it be re-inspected by Canadian authorities. The Applicant raises section 38 of the Regulations as a ground for that request.
[51] The Respondent points out that Ms. Connie Zagrosh deposed in response #8 to her cross-examination that section 38 of the Regulations is intended to provide a service to producers to verify grade and colour declarations for marketing purposes. It is not intended for target testing for compliance or enforcement relating to adulterated substances.
[52] The Respondent notes that the United States is a significant trading partner that has credible regulatory regimes which are subject to the same international quality and safety standards as those of Canada. The Applicant’s proposed scheme of re-testing product that has already been determined by a competent regulator to be unfit for consumption is not grounded in any legislative authority. There is an abundance of jurisprudence on the point that a party cannot collaterally attack orders of a body with competent jurisdiction through another proceeding: Toronto (City) v. Canadian Union of Public Employees (C.U.P.E.), Local 79, [2003] 3 S.C.R. 77 and Canada (Minister of Human Resources Development) v. Hogervorst, [2007] F.C.J. No. 37 (F.C.A.).
[53] The substandard quality of the Applicant’s Product was discovered in the United States and the Applicant’s request for the re-inspection of the Product by Canadian authorities through a judicial review process is a collateral attack on the inspection techniques and decisions reached by the US FDA, which is a body with competent regulatory jurisdiction over the Product.
Reasonable Grounds
[54] The credible and compelling evidence of the US FDA regarding the adulteration and contamination of the Product established a bona fide belief in a serious possibility that the Product was in contravention of Canada’s quality and safety standards. The evidence leaves little doubt of the contamination but, of course, the standard is that of mere “reasonable possibility.”
[55] There is no legislative definition or authority that requires a chemical reaction to take place for a product to be “contaminated,” “inedible” or “unsanitary” for the purposes of section 4.1 of the Regulations. Lead was in the paint chips, the paint chips were in the honey, and there was no evidence that the Applicant would have been able to remove micro-particles of lead.
[56] The Respondent submits that the Applicant’s evidence of its own private sampling and testing does not refute the evidence of Ms. Connie Zagrosh and there was no evidence before the CFIA as to which drums were tested, the manner in which they were sampled and tested, or the probability that the sampling was a homogenous representative sample of the Product. The honey had been exposed to lead and there was no reversal for that. In Canada, there is no regulated acceptable level of lead in a product such as honey. See: subsections 16(f) and 4.1(1) of the Regulations.
[57] It was reasonable for the CFIA to rely upon the US FDA’s evidence in the absence of evidence to the contrary to make the Decision it did. Countries that are signatories to the same international standards for food safety have reciprocal regulatory obligations. There is no prescribed limitation to the extent of evidence that CFIA inspectors can consider when determining quality and food safety.
[58] In Miel Labonté, Justice Noël at paragraph 31 states that the underlying point in the jurisprudence is that the CFIA makes its decisions in the public interest; those decisions by which the CFIA chooses what action is necessary are discretionary and call for a high degree of judicial restraint. Therefore, the CFIA was not obligated to absolutely determine whether or not the lead had dissolved as salt into the honey for the purposes of regulatory scrutiny. The regulatory environment tasks CFIA with a high discretion to determine whether a food product meets the quality and safety standards imposed by the various statutes and regulations.
[59] It is obvious from the record that the Applicant intended to market its Product for the purposes of human food consumption. There are references to this made at paragraph 22 of the Affidavit of Mr. John Hilbert and through a conversation with John Hilbert described in paragraph 9 of the Affidavit of Connie Zagrosh. The Applicant is a registered honey establishment and the intent for the end product is to market the honey for human food consumption. The allegation that the Applicant’s Product was only to be returned for inspection purposes is an inaccurate portrayal of the evidence that was before CFIA at the time it made its Decision.
[60] The Respondent alleges that the Applicant is attempting to limit the scope of the CFIA’s inquiry by restricting the definition of “marketing” to something distinct from verifying whether a food is suitable for sale as food. However, the definition is broader than this. The definition of “marketing” includes “any other act necessary to make agricultural products available for consumption or use.” The Applicant’s allegation that the CFIA would be in violation of its own definition of “marketing” by allowing the products into Canada for bee feed is, the Respondent alleges, “absurd.” The Product did not meet the standards/requirements for human consumption or for animal feed.
[61] The Respondent concludes that the decisions of the CFIA were reasonable.
Procedural Fairness
[62] The Respondent submits that the correspondence between all of the parties involved shows a clear intent by the CFIA to provide an opportunity for the Applicant to submit evidence of compliance with the Canadian standards of food safety. There is no evidence to suggest that the CFIA dismissed the Applicant’s requests or did not consider the Applicant’s correspondence or documentation. The CFIA reviewed the Applicant’s sampling results and reconditioning proposals with consideration for all relevant evidence and reached a reasonable decision.
[63] The Respondent notes that, as the court’s determination in Miel Labonté shows, the legislative scheme in the present case is intended ultimately to protect the public interest, and the Applicant always intended its honey to be used for human consumption. The Applicant’s economic interests, although a factor to be considered, cannot outweigh the public interest in having safe, edible food products. Therefore, even at an elevated standard as proposed by the Applicant, the CFIA has met its duty to be fair in this case.
Conclusion
[64] The Respondent concludes that the CFIA had the authority to make the Decision to refuse entry of the Applicant’s Product which was adulterated, contaminated and otherwise in contravention of the applicable legislation and regulations. There was ample credible evidence upon which the CFIA could make its Decision in the interests of the public regarding the end use of the Product. The Product did not meet the quality standards of the US FDA and it did not meet the quality and safety standards of the CFIA. Therefore, the CFIA’s Decision was reasonable.
ANALYSIS
The Decision
[65] The Decision is embodied in four letters from CFIA to legal counsel for the Applicant.
[66] The first letter of July 3, 2008 refuses to allow the Applicant to bring the Product back into Canada “as human food.” The determination that the Product contravenes section 17(a) of the Product Act and section 4.1(1) and 16(f) of the Honey Regulations is based upon two notices issued by the US FDA.
[67] The first US FDA notice is dated November 1, 2007 and says that the Product was detained because it “appears to contain a poisonous or deleterious substance which may render it injurious to health. Paint chips are leaching lead” and it “appears to consist in whole or in part of a filthy, putrid, or decomposed substance or is otherwise unfit for food in that it appears to contain foreign objects. Contains excessive wood and paint chips.”
[68] The US FDA denied the Applicant’s proposals for corrective action and, in a notice dated May 15, 2008, said that “Leaded paint chips have disintegrated into small pieces increasing surface area available for extraction. Honey [is] an acidic food, providing a media that will solubitize (sic) lead in the paint. Some lead has become honey this (sic) use of lead paint in wood associated with hives. Proposal would remove extraneous matter, won’t remove lead that has migrated into honey and is present in honey as a dissolved salt … .”
[69] So the US FDA decided that the Product contained “a poisonous and deleterious substance which may render it injurious to health” and that “some lead had become a component of the honey thru use of lead paint on wood associated with hives.”
[70] The CFIA could not accept the Midwest Laboratories Inc. sampling for reasons given and decided “there is no cause to disagree with the US FDA findings in the Notices of FDA Action.”
[71] In the CFIA’s second letter of July 22, 2008, the CFIA refused the Applicant’s request “to have the product reconditioned and returned to Canada as human food” for the reasons already given in the letter of July 3, 2008, but also pointed out that the Product could be “imported into Canada as bee feed” subject to compliance with the relevant requirements (i.e. the Product would have to be irradiated in Canada or the U.S. before it could be used as bee feed), or the “product may also be returned to Canada for destruction and moved under seal to an approved landfill site.”
[72] As regards the importation of the Product for human food, the letter of July 22, 2008 simply confirms the decision already made and communicated to the Applicant in the letter of July 3, 2008.
[73] The letter of September 18, 2008 merely refused the Applicant’s request to return the Product to Canada for use as bee feed without irradiation because this would be “a violation under section 57 of the Health of Animals Regulations.”
[74] The letter of September 18, 2008 then summarizes the options available to the Applicant:
The detained honey can only be returned to Canada if:
i. the honey is irradiated outside of Canada and returned for bee feed;
ii. the honey enters Canada under detention, goes to a Canadian irradiation facility and is then used as bee feed; or
iii. the honey enters Canada under detention and must go to an international Waste Approval Disposal Site for deep burial.
[75] Nothing is said in the letter of September 18, 2008 about importing the Product into Canada for use as human food because that decision had already been made in the letter of July 3, 2008 and confirmed in the letter of July 22, 2008.
[76] The final letter is dated September 24, 2008 and merely denies the Applicant’s request that CFIA reconsider its decision not to allow the Product back into Canada for use as bee feed unless it is first irradiated. The CFIA repeats the position and the options already set out in its letter of September 18, 2008.
[77] So it is clear that the CFIA made a decision not to allow the Product back into Canada for use as human f