Foster Farms LLC v. Canada (International Trade Diversification)

Foster Farms LLC v. Canada (International Trade Diversification)
Court (s) Database
Federal Court Decisions
Date
2020-06-03
Neutral citation
2020 FC 656
File numbers
T-967-19
Decision Content
Date: 20200603
Docket: T-967-19
Citation: 2020 FC 656
Ottawa, Ontario, June 3, 2020
PRESENT: Mr. Justice Gascon
BETWEEN:
FOSTER FARMS LLC AND FOSTER POULTRY FARMS,
A CALIFORNIA CORPORATION
Applicants
and
MINISTER OF INTERNATIONAL TRADE DIVERSIFICATION
Respondent
JUDGMENT AND REASONS
I. Overview
[1] The Applicants, Foster Farms LLC and Foster Poultry Farms [together, Foster Farms], operate poultry farming corporations in the United States and Canada and import poultry products in Canada. Following a verification of Foster Farms’ import activities in Canada, the Canada Border Services Agency [CBSA] discovered that, between 2014 and 2016, multiple shipments of chicken products were misclassified by Foster Farms at the time of their importation into Canada. The reclassification of the imported goods resulted in a duty assessment exceeding $8 million.
[2] Foster Farms applied to the Minister of International Trade Diversification [Minister] to obtain retroactive supplemental import authorization permits [SIPs] for those shipments of chicken products [Permit Application]. In a decision issued in May 2019 [Decision], the Executive Director for Supply-Managed Trade Controls at Global Affairs Canada, in her capacity as delegate for the Minister, denied Foster Farms’ request, as the circumstances regarding the importation of the improperly classified chicken products did not qualify as either exceptional or extraordinary.
[3] Foster Farms have now brought an application for judicial review challenging the Decision. Foster Farms claims that, in rendering the Decision, the Minister breached his duty of procedural fairness and natural justice in four different ways. Foster Farms contend that: 1) the Minister failed to provide them notice of the assertion, set out in the Memorandum for Action prepared for this matter [MOA], that Foster Farms had not explained the reason for their customs classification error; 2) the MOA failed to refer to the facts, mentioned by Foster Farms in their Permit Application, showing the reasons for having made an inadvertent error when importing the chicken products; 3) the Minister failed to provide them notice of the assertion, also set out in the MOA, that requests for SIPs which are based upon the existence of “extraordinary and unusual circumstances” (as was Foster Farms’ Permit Application) are generally granted only where the chicken products are in short or limited supply; and 4) the Minister failed to properly consider the Permit Application in light of the applicable administrative policy, in that he conflated two grounds contained in such policy, namely, short and limited supply and extraordinary and unusual circumstances.
[4] Foster Farms ask this Court to declare the Minister’s Decision invalid or unlawful, to quash it, set it aside and refer it back to the Minister for redetermination.
[5] Foster Farms submit that the sole issue raised by this application for judicial review is whether the Minister breached his duty of procedural fairness and natural justice by making the Decision in a manner that warrants vitiating his conclusions. At the hearing before this Court, Foster Farms confirmed that they were solely challenging the Decision on grounds of procedural fairness, even though some of their arguments appeared to question, at least indirectly, the reasonableness of the Decision. The Minister responds that Foster Farms’ application should be dismissed as no breach of procedural fairness tainted the Decision. In addition, the Minister maintains that the Decision was reasonable.
[6] For the reasons that follow, I will dismiss Foster Farms’ application for judicial review. I detect no breach of procedural fairness in the decision-making process followed by the Minister in the circumstances. The Minister’s Decision is highly discretionary and the level of procedural fairness owed to Foster Farms falls at the lower end of the spectrum. In this context, Foster Farms were not entitled to receive the type of prior notices they claim was owed to them by the Minister. Nor were there grounds to justify their alleged legitimate expectation to receive a preliminary decision from the Minister. I am also satisfied that the Decision was justified and intelligible, and that the Minister considered all relevant information in his Decision. The reasons contained in the May 2019 letter and in the underlying MOA demonstrate that the Decision is based on an internally coherent and rational chain of analysis, and that it is justified in relation to the facts and law that constrain the Minister. There are therefore no grounds to justify the Court’s intervention.
II. Background
A. Factual context
[7] Between 2014 and 2016, Foster Farms imported around 2.3 million kilograms of certain chicken products into Canada. These chicken products were food preparations based on meat from broiler chicken, and are known as corn dogs.
[8] Following the verification of Foster Farms’ import activities, CBSA found that multiple shipments of these chicken products had been incorrectly identified as “spent fowl” (a non-import controlled product) rather than “broiler chicken” (an import controlled product) at the time of their importation into Canada. “Spent fowl” is a duty-free product, whereas “broiler chicken” is subject to duties at rates ranging from 238 to 253% when imported without a permit from the Minister. Further to the verification, the CBSA required Foster Farms to correct the classification and issued a duty assessment in the amount of $8,263,089.25 [Assessment Amount]. Foster Farms admit that the chicken products at issue were misclassified.
[9] On August 10, 2018, Foster Farms submitted its Permit Application, requesting that the Minister issues retroactive SIPs pursuant to subsection 8.3(3) of the Export and Import Permits Act, RSC 1985, c E-19 [EIPA]. The issuance of the said SIPs would allow for the duty assessment to be substantially reduced. The Permit Application outlined the Minister’s jurisdiction to grant a permit, detailed the classification of the chicken products, and described the business environment related to the import and sale of corn dogs in Canada. In the Permit Application, Foster Farms requested that the Minister make the decision relating to their request.
[10] In the Permit Application, Foster Farms laid out four grounds supporting their request for retroactive SIPs: 1) the goods were chicken corn dogs manufactured largely from Canadian chicken inputs which were further processed in the United States; 2) Foster Farms had not made an application for an import permit authorization allocation because of inadvertence and their mistaken belief that the goods were entitled to duty-free tariff treatment; 3) Foster Farms was eligible for partial duty relief under the Canadian Goods Abroad Program during the relevant period; and 4) there were “extraordinary and unusual circumstances” within the meaning of the Notice to Importers No. 865 - Chicken and Chicken Products - Supplemental Imports (Items 96 to 104 on the Import Control List) dated December 15, 2014 [Notice 865], warranting the granting of the Permit Application. Throughout their application letter, Foster Farms notably insisted on the fact that the meat portion of the imported corn goods was primarily comprised of chicken inputs originating from Canada and that granting the SIPs would not likely adversely affect Canadian businesses.
[11] Upon receipt of the Permit Application, Mr. Blair Hynes, deputy director and acting executive director within the Supply-Managed Trade Controls Division of Global Affairs Canada [GAC], delegated the primary review of the file to Mr. Guy Giroux, the officer responsible for the administration of the tariff rate quota [TRQ] and supplemental import policies for chicken and chicken products under the EIPA.
[12] On August 16, 2018, at the request of Foster Farms, Mr. Hynes held a conference call with them and their counsel. During this call, Mr. Hynes asked Foster Farms to provide some further information in support of their Permit Application. Foster Farms submitted the additional materials requested by GAC on August 21, 2018, and updated the said materials on September 26, 2018.
[13] After evaluating the further materials and Foster Farms’ Permit Application, Mr. Giroux drafted the MOA in which he recommended that the Minister rejects the request and denies issuing the retroactive SIPs. The MOA recommended to refuse the requested SIPs because the Permit Application did not meet the “extraordinary or unusual circumstances” component of the supplemental imports policy for chicken and chicken products.
[14] In the MOA, Mr. Giroux referred to the Minister’s broad discretion with respect to the issuance of retroactive SIPs, specifying that the exercise of such discretion must take into account all relevant factors. He notably referred to the purpose for which the chicken products at issue were placed in the Import Control List, CRC, c 604 [Import Control List] at ss 101, 110, namely to “support supply management”.
[15] In his considerations for the recommendation to the Minister, Mr. Giroux indicated that SIPs sought for “extraordinary or unusual circumstances” have normally been authorized to address two types of situations: 1) “to meet short to medium term Canadian market needs resulting from emergencies such as destruction of Canadian poultry flocks due to avian influenza”; and 2) “to address chronic lack of domestic supply of products that may not be domestically produced in Canada, such as ultra-kosher dairy products”. Mr. Giroux then referred to the rationale provided by Foster Farms for their failure to initially request import permits and noted that Foster Farms provided “no explanation as to why the finished product manufactured with Canadian broiler chicken imported by Foster Farms was declared as spent fowl at the time of re-export into Canada”. Mr. Giroux concluded that the circumstances presented by Foster Farms did not “qualify as either exceptional or extraordinary in so far as these considerations are normally applied”, and did not warrant the issuance of retroactive SIPs.
B. The Decision
[16] The Minister’s Decision to refuse the Permit Application and the requested SIPs was communicated by a short letter, extending over one page and a half.
[17] In the Decision, the Minister first outlined the law and regulations applicable to Foster Farms’ request, namely, the EIPA, its regulations, and the Minister’s policies set out in the Notice 865. The Minister then explained that the Notice 865 provides for six categories of supplemental import authorizations for chicken and chicken products. These categories notably include, under section 10.1 of the Notice 865, authorization to import chicken and chicken products under “extraordinary or unusual circumstances”. The Minister noted his understanding that Foster Farms had incorrectly identified multiple shipments of chicken products as spent fowl rather than broiler chicken at the time of import into Canada, and that Foster Farms were requesting the SIPs under this “extraordinary or unusual circumstances” component of the Notice 865.
[18] After laying out the applicable law, the Minister then listed the four grounds advanced by Foster Farms for the issuance of the retroactive SIPs, as follows:
1) The goods were manufactured at Foster Farms’ manufacturing facility using broiler chicken inputs, which originated from Canada;
2) Foster Farms did not submit an application for a chicken or a chicken product import allocation because of inadvertence and not as a result of an intention to deceive;
3) During the relevant period, Foster Farms could have applied for partial duty relief in respect of the goods under the Canadian Goods Abroad Program; and
4) There are “extraordinary or unusual circumstances” within the meaning of Notice 865 that warrant the issuance of the requested retroactive SIPs.
[19] The Minister explained that requests for SIPs invoking extraordinary and unusual circumstances are evaluated on their individual merits. The Minister specified that such requests “are normally authorized to address short to medium term Canadian market needs resulting from emergencies such as destruction of Canadian poultry flocks due to avian influenza, or to address chronic lack of domestic supply of products that may not be domestically produced in Canada”.
[20] The Minister concluded that Foster Farms’ circumstances regarding the importation of improperly classified chicken products into Canada, as presented in their Permit Application, did not qualify as either exceptional or extraordinary, and thus denied Foster Farms’ request.
C. Relevant statutory framework
[21] Imports of chicken and chicken products into Canada are subject to controls under the EIPA and the Import Control List. Accordingly, an import permit is required for shipments of chicken and chicken products to enter Canada. Import permits are generally issued to allocation holders under a TRQ. Within the TRQ, chicken and chicken products may be imported at a low rate of duty. By contrast, imports in excess of the TRQ are normally subject to high duty rates ranging from 238% to 253%. The Minister may, at his discretion, issue SIPs for imports of chicken and chicken products outside the TRQ and apart from the import access quantity.
[22] The relevant provision of the EIPA is section 8.3, and more specifically subsection 8.3(3) dealing with SIPs. The provision reads as follows.
Import permits — allocation
Licences en cas d’allocation
8.3 (1) Notwithstanding subsection 8(1), where goods have been included on the Import Control List for the purpose of implementing an intergovernmental arrangement or commitment and the Minister has determined an import access quantity for the goods pursuant to subsection 6.2(1), the Minister shall issue a permit to import those goods to any resident of Canada who has an import allocation for the goods and applies for the permit, subject only to compliance with and the application of such regulations made pursuant to section 12 as it is reasonably necessary to comply with or apply in order to achieve that purpose.
8.3 (1) Malgré le paragraphe 8(1), en cas d’inscription de marchandises sur la liste des marchandises d’importation contrôlée aux fins de la mise en œuvre d’un accord ou d’un engagement intergouvernemental, s’il a déterminé la quantité de marchandises bénéficiant du régime d’accès en application du paragraphe 6.2(1), le ministre délivre à tout résident du Canada qui a une autorisation d’importation et qui en fait la demande une licence pour l’importation des marchandises, sous la seule réserve de l’observation des règlements d’application de l’article 12 qui sont nécessaires à ces fins.
Import permits — no allocation
Licences en l’absence d’allocation
(2) Notwithstanding subsection 8(1), where goods have been included on the Import Control List for the purpose of implementing an intergovernmental arrangement or commitment and the Minister has determined an import access quantity for the goods pursuant to subsection 6.2(1), but has not issued import allocations for the goods, the Minister shall
(2) Malgré le paragraphe 8(1), en cas d’inscription de marchandises sur la liste des marchandises d’importation contrôlée aux fins de la mise en œuvre d’un accord ou d’un engagement intergouvernemental, s’il a déterminé la quantité de marchandises bénéficiant du régime d’accès en application du paragraphe 6.2(1), mais n’a pas délivré d’autorisation d’importation, le ministre délivre :
(a) if in the opinion of the Minister the import access quantity has not been exceeded, issue a permit to import those goods to any resident of Canada who applies for the permit, or
a) s’il est d’avis que la quantité de marchandises n’a pas été atteinte, à tout résident du Canada qui en fait la demande une licence pour leur importation, sous la seule réserve de l’observation des règlements d’application de l’article 12 qui sont nécessaires à ces fins;
(b) issue generally to all residents of Canada a general permit to import those goods, subject only to compliance with and the application of such regulations made pursuant to section 12 as it is reasonably necessary to comply with or apply in order to achieve that purpose.
b) aux résidents du Canada une licence de portée générale autorisant l’importation des marchandises, sous la seule réserve de l’observation des règlements d’application de l’article 12 qui sont nécessaires à ces fins.
Supplemental import permits
Licences — quantité additionnelle
(3) Notwithstanding subsection 8(1) and subsections (1) and (2) of this section, where goods have been included on the Import Control List and the Minister has determined an import access quantity for the goods pursuant to subsection 6.2(1), the Minister may issue
(3) Malgré le paragraphe 8(1) et les paragraphes (1) et (2), en cas d’inscription de marchandises sur la liste des marchandises d’importation contrôlée, s’il a déterminé la quantité de marchandises bénéficiant du régime d’accès en application du paragraphe 6.2(1), le ministre peut
(a) a permit to import those goods in a supplemental quantity to any resident of Canada who applies for the permit, or
a) délivrer à tout résident du Canada qui en fait la demande une licence pour l’importation des marchandises en quantité additionnelle ou
(b) generally to all residents of Canada a general permit to import those goods in a supplemental quantity, subject to such terms and conditions as are described in the permit or in the regulations.
b) aux résidents du Canada une licence de portée générale autorisant leur importation en quantité additionnelle, sous réserve des conditions prévues dans la licence ou les règlements.
[23] Section 8.5 of the EIPA further allows the Minister to issue retroactive permits, including SIPs.
[24] Turning to the Notice 865, it sets out the policies and practices pertaining to the issuance of supplemental import authorizations for chicken and chicken products. It identifies six categories of authorizations. The first five relate to specific situations relating to domestic market shortages, domestic sourcing constraints, manufacture of new products, re-exports and test marketing for new products. The last category covers authorizations under “extraordinary or unusual circumstances” (the category under which Foster Farms made their Permit Application). Section 10 of the Notice 865 relates to those extraordinary or unusual circumstances, and reads as follows.
10. Authorization to Import Chicken and Chicken Products under Extraordinary or Unusual Circumstances
10. Autorisation d’importer du poulet et des produits du poulet en cas de circonstances extraordinaires ou inhabituelles
10.1. Other applications for authorization for supplemental imports due to extraordinary or unusual circumstances will be evaluated on their individual merits.
10.1. Les demandes d’autorisation d'importations supplémentaires d'un produit présentées dans des circonstances extraordinaires ou inhabituelles seront évaluées chacune selon son mérite propre.
D. Standard of review
[25] In Canada (Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov], the Supreme Court of Canada [SCC] set out a revised framework for determining the standard of review with respect to the merits of administrative decisions (Vavilov at para 10). In that decision, the SCC articulated a new approach to determining the applicable standard of review, holding that administrative decisions should presumptively be reviewed on a standard of reasonableness, unless either the legislative intent or the rule of law requires that the standard of correctness be applied (Vavilov at paras 10, 17).
[26] The Vavilov decision did not deal directly with issues of procedural fairness, and the approach to be taken on this front has therefore not been modified (Vavilov at para 23). It has typically been held that correctness is the applicable standard of review for determining whether a decision maker complies with the duty of procedural fairness and the principles of fundamental justice (Mission Institution v Khela, 2014 SCC 24 at para 79; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 [Khosa] at para 43).
[27] However, the Federal Court of Appeal [FCA] has recently affirmed that questions of procedural fairness are not truly decided according to any particular standard of review. Rather, it is a legal question for the reviewing courts, and the courts must be satisfied that procedural fairness has been met. When the duty of an administrative decision maker to act fairly is questioned or a breach of fundamental justice is invoked, it requires the reviewing courts to verify whether the procedure was fair having regard to all of the circumstances (Lipskaia v Canada (Attorney General), 2019 FCA 267 at para 14; Canadian Airport Workers Union v International Association of Machinists and Aerospace Workers, 2019 FCA 263 at paras 24-25; Perez v Hull, 2019 FCA 238 at para 18; Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 [CPR] at para 54). This assessment includes the five, non-exhaustive contextual factors set out by the SCC in Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 [Baker] (Vavilov at para 77). It is up to the reviewing courts to make that determination and, in conducting this exercise, the courts are called upon to ask, “with a sharp focus on the nature of the substantive rights involved and the consequences for an individual, whether a fair and just process was followed” (CPR at para 54).
[28] Therefore, it is fair to say that the ultimate question raised when procedural fairness and alleged breaches of fundamental justice are the object of an application for judicial review is not so much whether the decision was “correct”. It is rather whether, taking into account the particular context and circumstances at issue, the process followed by the decision maker was fair and offered the affected parties a right to be heard and a full and fair opportunity to know the case they have to meet and to respond to it (CPR at para 56; Huang v Canada (Citizenship and Immigration), 2018 FC 940 at paras 51-54).
III. Analysis
[29] As mentioned above, Foster Farms allege that, in rendering his Decision, the Minister breached the applicable requirements of procedural fairness in four different ways: 1) by failing to provide them notice of the assertion, set out in the MOA to the Minister, that they had not explained the reasons for their customs classification error; 2) by failing to refer, in the MOA, to the facts contained in the Permit Application showing that they had made an inadvertent error when importing the chicken products; 3) by failing to provide them notice of the position, also set out in the MOA and in the Decision, that permit applications seeking relief based on “extraordinary or unusual circumstances” were generally granted where the goods are in short supply or limited supply; and 4) by failing to properly consider the Permit Application in light of the policy set out in the Notice 865 and by conflating two different grounds contained in such policy, namely, short or limited supply and extraordinary or unusual circumstances.
[30] Despite the fact that, at the hearing before the Court, Foster Farms reiterated that they were only raising procedural fairness concerns against the Decision, it became apparent, during their counsel’s oral submissions, that many of their arguments in fact questioned the substance of the Decision and its reasonableness. I will therefore discuss both the procedural fairness and reasonableness issues in these reasons.
A. Preliminary matter
[31] A preliminary matter must however be addressed before dealing with the issues disputed by Foster Farms. On October 24, 2019, the Minister brought a motion to strike portions of Mr. Satinder Bains’ affidavit [Bains Affidavit], which was sworn July 26, 2019 and submitted by Foster Farms in support of their application for judicial review. The Minister claims that certain portions of the Bains Affidavit contain material that is irrelevant, opinion and/or argumentative. During the hearing of this application before the Court, both parties confirmed relying entirely on their written submissions on this preliminary matter. As such, I have decided this issue in light of the arguments made by the parties in their motion materials.
[32] The Minister first maintains that the Bains Affidavit contains information which does not fall within any category of allowable affidavit evidence on an application for judicial review. It is well recognized that, in applications for judicial review, the general rule is that materials which were not in front of the decision maker cannot be considered by the reviewing court, except for limited exceptions (Gittens v Canada (Attorney General), 2019 FCA 256 at para 14; Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 [AUCC] at paras 19-20). Those limited exceptions extend to materials that: 1) provide general background assisting the reviewing court in understanding the issues; 2) demonstrate procedural defects or a breach of procedural fairness in the administrative process; or 3) highlight a complete absence of evidence before the decision maker (Bernard v Canada (Revenue Agency), 2015 FCA 263 at paras 23, 25; AUCC at paras 19-20; Nshogoza v Canada (Citizenship and Immigration), 2015 FC 1211 [Nshogoza] at paras 16-18).
[33] The Minister further submits that, even if they were to fit within these limited exceptions and be admissible despite not being materials which were before the Minister at the time of the Decision, numerous paragraphs of the Bains Affidavit are inadmissible because they contain opinion and argument, contrary to Rule 81 of the Federal Courts Rules, SOR/98-106 [Rules]. Rule 81 stipulates that affidavits shall be confined to facts within the personal knowledge of the deponent, and must be delivered “without gloss or explanation” (Canada (Attorney General) v Quadrini, 2010 FCA 47 [Quadrini] at para 16). In light of the foregoing, the Minister specifically takes issue with paragraphs 1, 7, 14 to 16, 19, and 20 to 22 of the Bains Affidavit.
[34] In response, Foster Farms assert that Mr. Bains duly provided his written testimony, as he had the requisite testimonial capacity. Furthermore, they note that, whereas Mr. Bains is employed under the title of “customs expert”, the fact that he is referred to as such in his affidavit does not mean that the Bains Affidavit was tendered as expert opinion evidence. According to Foster Farms, the impugned portions of the Bain Affidavit provide a factual narrative which is relevant to the issues raised in their application for judicial review, and the Court should receive it in its entirety as evidence. Specifically, they respond that paragraphs 1 and 7 fall in the general background exception identified in AUCC, whereas paragraphs 14 to 16, 19, and 20 to 22 are relevant as they fit within the second exception and assist to demonstrate that the Minister violated his duty of procedural fairness. Foster Farms also note that the affidavit of Mr. Blair Hynes [Hynes Affidavit], tendered as evidence in support of the Minister’s response to the application for judicial review, appears to be an attempted response to the impugned paragraphs of the Bains Affidavit. In particular, they refer to paragraph 10 of the Hynes Affidavit, in which Mr. Hynes denies that the release of “preliminary decisions” was ever a practice of GAC decision makers.
[35] It is well established that the Court may strike all or parts of affidavits where they are abusive or clearly irrelevant, or where they contain opinions, arguments or legal conclusions (Quadrini para 18; Cadostin v Canada (Attorney General), 2020 FC 183 [Cadostin] at para 36). The general rule is that a lay witness may not give opinion evidence but may only testify to facts within his or her knowledge, observation and experience (White Burgess Langille Inman v Abbott and Haliburton Co, 2015 SCC 23 [White Burgess] at para 14; Toronto Real Estate Board v Commissioner of Competition, 2017 FCA 236 [TREB] at para 78). Expert evidence is an exception to this general rule barring opinion evidence. The main rationale for excluding lay witness opinion evidence is that it is not helpful to the decision maker and may be misleading (White Burgess at para 14). As admitted by Foster Farms, Mr. Bains is not an expert in the technical sense, and they did not tender the Bains Affidavit as expert opinion evidence. Mr. Bains was therefore a lay witness and the Bains Affidavit was submitted to “provide the narrative of facts which is relevant to [their] application for judicial review”.
[36] The SCC has recognized that “[t]he line between ‘fact’ and ‘opinion’ is not clear” (Graat v The Queen, [1982] 2 SCR 819, 144 DLR (3d) 267 at p 835). The courts have thus developed some freedom to receive lay witnesses’ opinions when the witness has personal knowledge of the observed facts and testifies to facts within his or her observation, experience and understanding of events, conduct or actions. In that respect, the FCA recently stated that, in the context of a proceeding before the Competition Tribunal (a specialized administrative decision maker), opinion from a lay witness is acceptable “where the witness is in a better position than the trier of fact to form the conclusions; the conclusions are ones that a person of ordinary experience can make; the witnesses have the experiential capacity to make the conclusions; or where giving opinions is a convenient mode of stating facts too subtle or complicated to be narrated as facts” (TREB at para 79). As such, when a witness has personal knowledge of observed facts such as a company’s relevant, real world, operations, the evidence may be accepted by a court or an administrative decision maker even if it is opinion evidence (TREB at para 80; Pfizer Canada Inc. v Teva Canada Limited, 2016 FCA 161 at paras 105-108).
[37] Furthermore, it has been recognized that lay witnesses can provide opinions about their own conduct and their own business (TREB at paras 80-81). The FCA however specified that there are limits to such lay opinion evidence: “lay witnesses cannot testify on matters beyond their own conduct and that of their businesses in the ‘but for’ world” and they “are not in a better position than the trier of fact to form conclusions about the greater economic consequences of the ‘but for’ world, nor do they have the experiential competence” (TREB at para 81). In other words, when a witness had an opportunity for observation and was in a position to give real help to the decision maker, the evidence may be admissible and the real issue will be the assessment of weight.
[38] A careful reading of the Bains Affidavit leads me to conclude that some of the impugned paragraphs could fall within the limited exceptions set out in AUCC. As such, I am satisfied that paragraphs 1, 7 and 19 provide some background assisting the Court in understanding the issues before it. In the same vein, I accept that, to some extent, paragraphs 7, 14 to 16 and 20 to 22 could assist to determine whether the Minister violated his duty of procedural fairness. However, many of those paragraphs are riddled with opinions, rather than referring to only facts. For example, at paragraphs 14 to 16 of his affidavit, Mr. Bains refers to other cases involving dairy inputs and relating to a different industry to draw the conclusion that, in his view, the fact that GAC granted a meeting in those other import permit applications suggests that Foster Farms should also have been provided with a similar opportunity. Turning to paragraphs 20 to 22, Mr. Bains refers to what, in his view, is “the custom course and practice of decision-making” in SIP applications, and claims that such practice entails providing applicants with an interim report or a proposal letter setting out a proposed decision and providing them with an opportunity to deal with any concerns on the part of the decision maker before a final decision is made. Such statements rest on Mr. Bains’ own assessment of practices by government officials in different files and offer an opinion that the decision-making process followed for Foster Farms was inconsistent with previous customs of government officials. Instead of testifying on facts relevant to Foster Farms’ application for judicial review before the Court, Mr. Bains refers to his career experience and familiarity with the custom, course and practice of Government of Canada officials respecting the process of making decisions relevant to importers and taxpayers. His testimony in that respect has the typical attributes of expert opinion evidence. In sum, he is trying to extrapolate from his personal knowledge and experience in another, distinct industry, and draws conclusions allegedly applicable to Foster Farms’ situation.
[39] However, Mr. Bains was not qualified as an expert witness and I agree with the Minister that paragraphs 14 to 16 and 20 to 22 of his affidavit contain improper opinions, arguments and legal conclusions regarding the issues before the Court. In my view, they go far beyond what the case law mentioned above has recognized as acceptable lay opinion evidence. As such, I agree that they were not properly included in the Bains Affidavit and that they cannot be considered by the Court.
[40] In such a situation, the Court has the discretion of striking the impugned paragraphs or of giving them no weight or probative value (CBS Canada Holdings Co. v Canada, 2017 FCA 65 at para 17; Cadostin at para 36; Abi-Mansour v Canada (Attorney General), 2015 FC 882 at paras 30-31). For the sake of efficiency, I have opted to exercise my discretion to give no weight or probative value to those paragraphs of the Bains Affidavit in these reasons. This will be discussed further below when addressing the issue of legitimate expectations.
B. Procedural fairness
[41] The four different breaches of procedural fairness raised by Foster Farms can in fact be regrouped under two separate headings. On the one hand, Foster Farms allege that the administrative law principle of audi alteram partem entitled them to be given prior notice by the Minister before the Decision was made. In their various arguments, Foster Farms claim that they were not given notice on several matters ultimately retained or considered by the Minister in his Decision, such as the fact that no explanation was given for the customs classification error, the grounds for the inadvertent error, and the fact that SIPs for “exceptional or unusual circumstances” were normally granted in situations of short supply or limited supply. On the other hand, Foster Farms claim that they had a legitimate expectation to be given an opportunity to respond to the Minister’s concerns before the Decision was made (Baker at para 26).
[42] For the reasons that follow, I am not persuaded by Foster Farms’ submissions on their alleged breaches of procedural fairness. I instead find that, throughout the process followed by the Minister and GAC, Foster Farms were afforded the appropriate level of procedural fairness required by the circumstances of the matter, were provided with an adequate notice of the case they had to meet, and had a full and fair opportunity to respond.
(1) The scope of the duty
[43] It is well recognized that the requirements of the duty of procedural fairness are “eminently variable”, inherently flexible and context-specific (Vavilov at para 77; Dunsmuir at para 79), and that they “[do] not reside in a set of enacted rules” (Green v Law Society of Manitoba, 2017 SCC 20 at para 53). The actual level and content of the duty of procedural fairness, and whether a decision is procedurally fair, must therefore be determined on a case-by-case basis (Baker at para 21). It is also important to underline that, in any situation, procedural fairness strictly relates to the process followed by the decision maker (Baker at para 26). It does not create substantive rights nor does it entitle a person to a given outcome. In other words, the duty to act fairly is not related to the merits or content of a decision, or to a particular result in the treatment of a matter, and Foster Farms cannot claim to have a right to the Minister agreeing with them.
[44] The purpose of the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully, and to have them considered by the decision maker (Baker at para 22). In general terms, the administrative process followed by a decision maker will be fair when it offers the affected parties a right to be heard and a full opportunity to know and to respond to the case against them.
[45] The specific procedural requirements that the duty of procedural fairness imposes are determined with reference to all the circumstances, and the nature and scope of the duty will vary depending on various factors. In Baker, the SCC identified a non-exhaustive list of factors that inform the content of the applicable level of procedural fairness required in a given set of circumstances (Baker at paras 23-27; Suresh v Canada (Minister of Citizenship and Immigration), 2002 SCC 1 at para 115; Varadi v Canada (Attorney General), 2017 FC 155 at paras 51-52). Those factors include: 1) the nature of the decision being made and the process followed in making it; 2) the nature of the statutory scheme; 3) the importance of the decision to the individual or individuals affected; 4) the legitimate expectations of the person challenging the decision; and 5) the choices of procedure made by the administrative decision maker itself.
[46] Foster Farms advance that a higher level of procedural fairness is required in this case because the impact of the Decision may mitigate a significant tariff assessment of over $8 million (Kane v Bd. of Governors of U.B.C., [1980] 1 SCR 1105 [Kane] at p 1113), and because the EIPA does not provide an appeal provision (Baker at para 24; 7687567 Canada Inc. v Canada (Foreign Affairs and International Trade Canada), 2013 FC 1191 [7687567 Canada] at para 49). Applying the Baker factors to the Decision, I am not persuaded by Foster Farms’ arguments. I instead find that, on the contrary, a minimum level of procedural fairness was owed to Foster Farms in the circumstances.
[47] The first Baker factor refers to the nature of the decision being made and the process followed in making it. The closer an administrative process (and decision) resembles a court process, the higher the level of procedural fairness will be (Baker at para 23). In this case, the nature of the process arriving to the Decision does not resemble a court process, as the Minister was tasked with making a highly discretionary decision based on his opinion on whether certain Canadian market needs regarding imports of chicken products justified granting the Permit Application before him. This is a discretionary decision made from a Ministerial position, as opposed to an adjudicative decision. This suggests a situation calling for a lower level of procedural fairness. This Court has indeed concluded that the Minister’s broad discretion to issue permits pursuant to section 8 of the EIPA suggest that only a minimal duty of procedural fairness is owed (Ultima Foo