Vol. 133, No. 38 — September 18, 1999

Rules Amending the Licensing and Arbitration Regulations

Statutory Authority

Canada Agricultural Products Act

Sponsoring Department

Department of Agriculture and Agri-Food

REGULATORY IMPACT ANALYSIS STATEMENT

Description

The Review Tribunal, a quasi-judicial body, was established under the Canada Agricultural Products Act (CAP Act), R.S., 1985, c. 20 (4th Supp.) to review decisions of the Board of Arbitration relating to breaches of regulations relating to the importation and exportation of agricultural products. Recently, pursuant to the Agriculture and Agri-Food Administrative Monetary Penalties Act (AMP Act), S.C., 1995, c. 40 its mandate was expanded to provide persons affected with the opportunity to request reviews of administrative decisions awarding compensation under the CAP Act or reviews of decisions imposing penalties and warnings under the AMP Act for breaches of various health and safety regulations relating to agriculture.

Pursuant to subsection 8(3) of the CAP Act, the Review Tribunal is given the authority to make rules governing its practice, procedures and work. The existing rules, pertaining only to hearings conducted under the CAP Act, have to be amended in order to include hearings conducted under the AMP Act, ensuring that persons affected are treated with administrative fairness and in a uniform manner. It also made sense to re-work the rules for hearings under the CAP Act in order to bring consistency in the rules followed by the Review Tribunal. Consequently, Part III of the Licensing and Arbitration Regulations, which used to govern the Tribunal's practice and procedure regarding hearings under the CAP Act, must be revoked.

The new rules clearly set out the review process which must be adhered to under both the CAP and AMP Acts from the time of filing a request for review to the time at which a decision is sent out. They are self-explanatory and easy to follow. They will assist the Review Tribunal in carrying out its mission in a structured manner.

When the new rules were developed, Part III of the Licensing and Arbitration Regulations (old rules) was taken into consideration. For this reason, the new and old rules are similar.

Alternatives

There are no alternatives.

Benefits and Costs

There are no extra costs associated with revoking the rules of procedure set out in Part III of the Licensing and Arbitration Regulations.

Consultation

As the new rules were prepared, the rules of procedure of a number of other quasi-judicial agencies and tribunals were taken into account, and current administrative law principles were researched, in order to make sure the rules were up to date.

Before final approval of the Rules of the Review Tribunal, interested agencies and industries were sent correspondence requesting their comments. Some were quite interested while others were not. All comments were compiled and a final draft of the rules was put together.

Compliance and Enforcement

Not applicable.

Contact person

Chantal Houle, Registrar Review Tribunal, Experimental Farm, Building 60, Ottawa, Ontario K1A 0C6, (613) 792-2087 (Telephone), (613) 792-2088 (Facsimile), houlec@em.agr.ca (Electronic mail).

PROPOSED REGULATORY TEXT

Notice is hereby given that the Review Tribunal, pursuant to subsection 8(3)(see footnote a) of the Canada Agricultural Products Act,(see footnote b) proposes, with the approval of the Governor in Council, to make the annexed Rules Amending the Licensing and Arbitration Regulations.

Any interested person may make representations concerning the proposed Rules within 30 days after the date of publication of this notice. All such representations must be addressed to Chantal Houle, Registrar, Review Tribunal, Experimental Farm, Building 60, Ottawa, Ontario K1A 0C6, and cite the Canada Gazette, Part I, and the date of publication of this notice.

Ottawa, September 15, 1999

MARC O'SULLIVAN
Assistant Clerk of the Privy Council

RULES AMENDING THE LICENSING AND ARBITRATION REGULATIONS

AMENDMENTS

1. The definitions "appellant" and "respondent" in section 2 of the Licensing and Arbitration Regulations (see footnote 1) are repealed.

2. The headings before section 38 and sections 38 and 39 of the Regulations are repealed.

3. (1) The portion of subsection 40(1) of the Regulations before paragraph (b) is repealed.

(2) Subsections 40(2) to (4) of the Regulations are repealed.

4. Sections 41 to 44 (see footnote 2) of the Regulations are repealed.

COMING INTO FORCE

5. These Rules come into force on the day on which they are registered.

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Rules of the Review Tribunal (Agriculture and Agri-Food)

Statutory Authority

Canada Agricultural Products Act

Sponsoring Department

Department of Agriculture and Agri-Food

REGULATORY IMPACT ANALYSIS STATEMENT

Description

The Review Tribunal is a quasi-judicial body established under the Canada Agricultural Products Act [CAP Act, R.S., 1985, c. 20 (4th Supp)]. Its mandate is to provide persons affected with the opportunity to request reviews of administrative decisions awarding compensation under the CAP Act or of decisions imposing penalties and warnings under the Agriculture and Agri-Food Administrative Monetary Penalties Act (AMP Act).

As we all know, procedure affects the perception of a process. Justice must be done, but must also be seen to be done. For this reason, a set of fair and equitable procedures increases the degree to which decisions taken are considered to have been arrived at impartially.

Pursuant to subsection 8(3) of the CAP Act, the Review Tribunal is given the authority to make rules governing its practice, procedures and work. The existing rules, pertaining only to hearings conducted under the CAP Act, have to be amended in order to include hearings conducted under the AMP Act, 1995, c. 40, ensuring that persons affected are treated with administrative fairness and in a uniform manner. It also made sense to re-work the rules for hearings under the CAP Act in order to bring consistency in the rules followed by the Review Tribunal. Consequently, Part III of the Licensing and Arbitration Regulations, which used to govern the Tribunal's practice and procedure regarding hearings under the CAP Act, must be revoked.

The new rules clearly set out the review process which must be adhered to under both the CAP and AMP Acts from the time of filing a request for review to the time at which a decision is sent out. They are self-explanatory and easy to follow. They will assist the Review Tribunal in carrying out its mission in a structured manner.

When the new rules were developed, Part III of the Licensing and Arbitration Regulations (old rules) was taken into consideration. For this reason, the new and old rules are similar.

Alternatives

There are no alternatives.

Benefits and Costs

The Tribunal will be seen to be carrying out its mandate in a fair and consistent manner, in accordance with the rules of natural justice and administrative fairness.

There are no extra costs associated with compliance with these rules of procedure.

Consultation

The rules were prepared taking into account the rules of procedure of a number of other quasi-judicial agencies and tribunals, as well as researching current administrative law principles, in order to make sure the rules were up to date.

Before final approval of the Rules of the Review Tribunal, interested agencies and industries were sent correspondence requesting their comments. Some were quite interested while others were not. All comments were compiled and a final draft of the rules was put together.

Compliance and Enforcement

The rules will be administered by the Registrar of the Review Tribunal.

Contact

Chantal Houle, Registrar, Review Tribunal, Experimental Farm, Building 60, Ottawa, Ontario K1A 0C6, (613) 792-2087 (Telephone), (613) 792-2088 (Facsimile), houlec@em.agr.ca (Electronic mail).

definitions	PROPOSED REGULATORY TEXT
	Notice is hereby given that the Review Tribunal, pursuant to subsection 8(3)(see footnote c) of the Canada Agricultural Products Act,(see footnote d) proposes, with the approval of the Governor in Council, to make the annexed Rules of the Review Tribunal (Agriculture and Agri-Food).
	Any interested person may make representations concerning the proposed Rules within 30 days after the date of publication of this notice. All such representations must be addressed to Chantal Houle, Registrar, Review Tribunal, Experimental Farm, Building 60, Ottawa, Ontario K1A 0C6, and cite the Canada Gazette, Part I, and the date of publication of this notice.
	Ottawa, September 15, 1999
	MARC O'SULLIVAN Assistant Clerk of the Privy Council
	RULES OF THE REVIEW TRIBUNAL (AGRICULTURE AND AGRI-FOOD)
	INTERPRETATION
Definitions	1. (1) The definitions in this subsection apply in these Rules.
"appellant" « appelant »	"appellant" means a person who applies under the Canada Agricultural Products Act for a review by the Tribunal of a decision of the Board made under that Act.
"applicant" « requérant »	"applicant" means a person who requests a review by the Tribunal under the Agriculture and Agri-Food Administrative Monetary Penalties Act.
"respondent" « intimé »	"respondent" means a person against whom an application is made under the Canada Agricultural Products Act for a review by the Tribunal of a decision of the Board made under that Act.
	Interpretation
	(2) These Rules are to be liberally construed in order to permit the fairest, least expensive and most expeditious procedures.
	PART 1
	RULES OF GENERAL APPLICATION
Procedural matters not provided for	2. If any question of procedure arises during a proceeding that is not covered, or not fully covered, in these Rules, the Tribunal must decide the question in a manner that is consistent with these Rules.
Unfairness	3. If the application of any rule would cause unfairness to a party, the Tribunal may avoid compliance with the rule.
Technical defects	4. A defect in form or a technical irregularity may be overlooked by the Tribunal.
Calculating time limits	5. (1) Subject to subsection (2), in calculating time limits under these Rules, all days must be counted except that if a time limit ends on a Saturday, Sunday or other statutory holiday, the time limit must be extended until the next business day.
Two-day time limits	(2) If a time limit is two days, a Saturday, Sunday or other statutory holiday must not be included in the calculation of the time limit.
Extension of time limits	6. The Tribunal may extend the time limits fixed in these Rules either before or after the end of the time limits fixed.
Public nature of filed documents	7. (1) A document filed with the Tribunal by a party to a review must be treated as a public document unless the party requests that the document be treated as confidential.
Request for confidential treatment	(2) Reasons must be given for the request that a document be given confidential treatment and, if it is alleged that disclosure would cause harm to the party, the reasons must include details of the nature and extent of the harm.
Documents to be in duplicate	8. (1) Any documents sent to the Tribunal must be sent in duplicate.
Submitting documents to the Tribunal	(2) Except as otherwise provided in subsection 14(1) of the Agriculture and Agri-Food Administrative Monetary Penalties Regulations, all documents required to be submitted to the Tribunal must be submitted by hand or by registered mail, courier or facsimile.
Faxes sent to the Tribunal	(3) Except as otherwise provided in subsection 14(3) of the Agriculture and Agri-Food Administrative Monetary Penalties Regulations, the original and a copy of any faxed document must be sent by mail without delay after the facsimile transmission.
Correspondence sent by the Tribunal	9. Subject to paragraph 28(b), section 32, paragraph 40(b) and section 44, all correspondence sent by the Tribunal may be sent by facsimile as long as the original is sent by mail.
Change of address or fax number	10. A party must notify the Tribunal without delay of a change of address or fax number.
Representation of parties	11. A party may be represented by counsel or by an agent authorized in writing.
In camera hearings	12. (1) A hearing before the Tribunal may, on the request of any party to the hearing, be held in camera if that party establishes that the circumstances of the case so require.
Exclusion of witnesses	(2) The Tribunal may order a witness at a hearing to be excluded from the hearing until called to give evidence.
Recording of hearings	13. All hearings before the Tribunal must be recorded.
Order of proceeding	14. Unless the order of proceeding has been agreed to by all parties in advance, the Tribunal must establish the order of proceeding at the start of the hearing.
Examination of witnesses	15. (1) Witnesses at a hearing may be examined orally on oath or affirmation.
Examination, cross-examination and re-examination	(2) Either party at a hearing is entitled to examine their own witnesses, to cross-examine any witnesses of the other party, and to re-examine their own witnesses for clarification.
Taking notice	16. The Tribunal may take notice of any matter in order to expedite any proceeding.
Affidavit evidence	17. Affidavit evidence is not admissible without the consent of the party against whom the affidavit evidence is tendered.
Impartiality of Tribunal member	18. (1) If a party is of the opinion that a member of the Tribunal is not in a position to act impartially, that party must without delay notify the Tribunal in writing, stating the reason for the opinion.
Exclusion of Tribunal member	(2) The Tribunal must exclude the member if it is of the opinion that the reason given by that party is valid.
Conflict of interest	19. If the Tribunal decides that, due to a conflict of interest, it cannot review a matter, the review must be adjourned until a differently constituted Tribunal can deal with it.
	PART 2
	REVIEW OF BOARD DECISIONS
Application of Part	20. This Part applies to all proceedings before the Tribunal under the Canada Agricultural Products Act.
Meetings by teleconference	21. The Tribunal may meet by teleconference for all purposes except for conducting hearings.
Request for review	22. An application to the Tribunal for a review of a decision of the Board must be filed with the Registrar of the Tribunal and must set out the reasons for the application.
Notification of Board and respondent	23. Within two days after receiving an application for a review by the Tribunal of a decision of the Board, the Registrar of the Tribunal must (a) forward a copy of the application to the Board; and (b) notify the respondent that the application has been filed by sending a copy of it, by registered mail, to the respondent.
Report by Secretary of the Board	24. Within 15 days after receiving the copy of the application for a review, the Secretary of the Board must prepare a report, containing all documentation presented to the Board and accepted by it, as well as the Board's decision, and send a copy of the report to each party and two copies of it to the Tribunal.
Tribunal to contact parties	25. Within two days after receiving the report, the Tribunal must send an acknowledgement letter to each party indicating that the report has been received and that the parties have 30 days after the date of the letter to (a) submit any additional information or representations, including any transcript of the Board hearing and any new evidence that was not available at the time of the Board's hearing; and (b) request a hearing.
Filed information available to parties	26. The Tribunal is responsible for ensuring that all information and representations submitted to it are available to all parties.
Pre-hearing conference	27. (1) The Tribunal may request its Registrar to arrange a pre-hearing conference if a hearing is to be held and the Tribunal is of the opinion that the pre-hearing conference might expedite the proceedings.
Summary of matters agreed to	(2) After any pre-hearing conference, the Registrar must summarize the matters that were agreed to by the parties and must send a copy of the summary to the parties and the Tribunal.
Restriction on communication	(3) No communication may be made to the Tribunal with respect to any statement made at the pre-hearing conference except as disclosed in the summary.
Decision or notice of hearing	28. After the end of the 30-day period referred to in section 25, the Tribunal must (a) if a hearing is not requested by either party, render a decision based on the material received from the Secretary of the Board and the parties; and (b) if a hearing is requested by either party, send a notice of hearing to all parties, by registered mail, 30 days before the scheduled date of the hearing.
Failure to appear	29. If a party does not appear at a hearing and the Tribunal is satisfied that notice of the hearing was sent to the party in accordance with paragraph 28(b), the Tribunal may proceed in the party's absence.
Postponements and adjournments	30. A hearing may be postponed or adjourned by the Tribunal from time to time on any terms that the Tribunal considers appropriate.
Decision after hearing or later	31. The Tribunal may render a decision orally at the end of a hearing or it may render its decision at a later date.
Decision to be mailed	32. The Tribunal must put its decision referred to in paragraph 28(a) or section 31 in writing and send a copy of it by mail to all parties without delay.
	PART 3
	REVIEW RELATING TO ADMINISTRATIVE MONETARY PENALTIES
Application of Part	33. This Part applies to all proceedings before the Tribunal under the Agriculture and Agri-Food Administrative Penalties Act.
Request for review	34. An applicant who requests a review by the Tribunal must indicate the reasons for the request, the language of preference and, if the notice of violation sets out a penalty, whether or not a hearing is requested.
Copy to be sent to Minister	35. The Tribunal must send a copy of the request for review to the Minister within two days after receiving it.
Minister to prepare report	36. (1) Within 15 days from the day on which the Minister receives the copy of the request for a review, the Minister must prepare a report that includes (a) any information relating to the violation; and (b) if the request is made under subsection 11(1) or 13(2) of the Agriculture and Agri-Food Administrative Monetary Penalties Act, any information relating to the violation and the decision of the Minister referred to in that subsection.
Distribution of report	(2) Within the period referred to in subsection (1), the Minister must send one copy of the report to the applicant and two copies to the Tribunal.
Tribunal to contact parties	37. Within two days after receiving the report, the Tribunal must send an acknowledgement letter to each party indicating that the report has been received and that the parties have 30 days after the date of the letter to submit any additional information or representations including any documents or other evidence.
Filed information available to parties	38. The Tribunal is responsible for ensuring that all information and representations submitted to it are available to all parties.
Pre-hearing conference	39. (1) The Tribunal may request its Registrar to arrange a pre-hearing conference if a hearing is requested and the Tribunal is of the opinion that the pre-hearing conference might expedite the proceedings regarding (a) the admission or proof of certain facts; (b) any procedural matter; (c) the exchange between the parties of documents and exhibits proposed to be submitted during the hearing; (d) the need to call particular witnesses; and (e) any other matter that may aid in the simplification of the evidence or that may facilitate the conduct of the hearing.
Summary of matters agreed to	(2) After any pre-hearing conference, the Registrar must summarize the matters that were agreed to by the parties and must send a copy of the summary to the parties and the Tribunal.
Restriction on communication	(3) No communication may be made to the Tribunal with respect to any statement made at the pre-hearing conference except as disclosed in the summary.
Decision or notice of hearing	40. After the end of the 30-day period referred to in section 37, the Tribunal must (a) if a hearing is not requested by the applicant, render a decision based on the material received from the parties; and (b) if a hearing is requested by the applicant, send a notice of hearing to all parties, by registered mail, 30 days before the scheduled date of the hearing.
Failure to appear	41. If a party does not appear at a hearing and the Tribunal is satisfied that notice of the hearing was sent to the party in accordance with paragraph 40(b), the Tribunal may proceed in the party's absence.
Postponements and adjournments	42. A hearing may be postponed or adjourned by the Tribunal from time to time on any terms that the Tribunal considers appropriate.
Decision after hearing or later	43. The Tribunal may render a decision orally at the end of a hearing or it may render its decision at a later date.
Decision to be mailed	44. The Tribunal must put its decision referred to in paragraph 40(a) or section 43 in writing and send a copy of it by mail to all parties without delay.
	COMING INTO FORCE
Coming into force	45. These Rules come into force on the day on which they are registered.

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Regulations Amending the Dairy Products Regulations

Statutory Authority

Canada Agricultural Products Act

Sponsoring Agency

Canadian Food Inspection Agency

REGULATORY IMPACT ANALYSIS STATEMENT

Description

The Dairy Products Regulations under the Canada Agricultural Products Act prescribe standard container sizes for specific dairy products.

The standardization of container sizes for prepackaged food products was originally introduced to benefit consumers by making it easier to compare products. Comparison of standardized products was further facilitated by the limited marketing methods and products being produced at the time that these Regulations were promulgated in 1979. Twenty years later, new innovations are possible that are restricted, however, by the standardized size requirements. An example would be in the case of frozen dairy products where novel container shapes could be utilized, however, they are difficult to design due to the limitations of standard package sizes.

These federal Regulations apply where products are marketed in import, export and interprovincial trade but not if the products are packaged at the retail level for direct sale to consumers, or if manufactured and sold within a province by a non-federally registered establishment. A wide range of food products are being offered to consumers at the retail level in random sizes, or are packaged by consumers themselves in the retail store and priced by weight. Consumers have become accustomed to seeing food products sold on a catch-weight basis which is often the case with many of the cheese and dry milk products. The benefits afforded consumers by the standard container size requirements are increasingly questionable since the sizes that can be packed from bulk and sold at retail are unregulated. This is also an unfair situation for registered dairy processors operating under federal regulations who have to supply their products in a limited number of container sizes which are different from those desired by retailers or packaged by retailers.

Although butter and butter products as well as concentrated milk products are in standard size containers, revocation of such sizes is not expected to involve an introduction of new sizes for these products. The demand for these products is relatively static and processors are not expected to introduce new sizes given the added manufacturing costs of new can sizes in the case of concentrated products and foil wrappings in the case of butter and butter products.

In addition, retailers are asking registered establishments to supply prepackaged products in random sizes to give consumers the same choice of quantity and price that is available with in-store packaging but with the cost savings of central packaging. This amendment will allow registered establishments to provide their product in the same container sizes as retailers or in random sizes. To simplify the marketing of dairy products at all levels of trade, it is recommended that containers for dairy products be deregulated.

Alternatives

The status quo would continue to limit the introduction of innovations in packaging and processing technology that have evolved since the adoption of these sizes.

Maintaining the existing standard container provision does not appear to benefit consumers who wish to purchase products in new types of packaging that may be limited by these sizes.

The standardization of container sizes at the retail level for retail packed products to harmonize with federally regulated container sizes for dairy products at the registered processor level is not within the scope of the federal statute or its Regulations. This is not a viable option.

Including the retail packed sizes as standard sizes for dairy products in the Dairy Products Regulations is possible but would be of little benefit given the consumers' willingness to purchase non-standard sizes already available at supermarket deli counters.

The Canadian Food Inspection Agency sees no need to continue federal regulation of container sizes for such products.

Benefits and Costs

Benefits

Consumers will be able to purchase brand name dairy products in the same sizes of containers as are available for store-packed products.

Registered dairy processors will be able to compete for sales of dairy products on the same basis as retail packers.

Deregulation of container sizes for dairy products will allow market forces to determine package sizing or technology which will permit federally registered establishments to respond to changing consumer demands.

Costs

The only direct costs are those of the regulatory process necessary to amend the Regulations.

Some retailers offering store-packed dairy products may encounter greater price competition from name brand products packed in registered establishments. Such competition could be reflected in lower retail prices for consumers or decreased sales of store-packed dairy products. In any case, market demand will reflect consumer choice.

This amendment has no impact on the year 2000 computer issue.

Consultation

This proposal has been extensively discussed with industry and consumer representatives through the National Dairy Council (NDC) and the Consumers' Association of Canada (CAC).

The Consumers' Association of Canada has expressed concern about revoking the requirement for standardized container sizes for federally regulated prepackaged dairy products in general. The basis for this concern has been that lack of consistency in container sizes could, first, make it difficult for consumers to effectively compare prices across brands and, secondly, permit deceptive pricing practices in the guise of different container sizes. However, CAC is prepared to accept voluntary industry guidelines for prepackaged container sizes, proposed by NDC, provided: confirmation is received that the majority of NDC's dairy processing industry members support and agree to abide by the suggested container sizes; a process for making changes to the guidelines is established which includes consultation with CAC and other stakeholders; and the voluntary industry guidelines are included by reference in the National Dairy Code, a federal/ provincial/industry document which standardizes dairy product standards and requirements.

The National Dairy Council of Canada strongly endorses the revocation of the standard container sizes. The member companies of the NDC have also agreed to implement voluntary industry guidelines for container sizes of regulated dairy products. NDC believes that voluntary container sizes will better respond to consumer needs and enable the Canadian dairy industry to be more competitive.

Consultation with the Canadian Council of Grocery Distributors has also established their support for revocation of the Schedule.

Compliance and Enforcement

There are no particular compliance or enforcement issues. Compliance will be monitored by ongoing domestic and import inspection programs.

Contact

J. Wakelin, National Manager, Foods of Animal Origin Division, Canadian Food Inspection Agency, 59 Camelot Drive, Nepean, Ontario K1A 0Y9, (613) 225-2342, extension 4722 (Telephone), (613) 228-6632 (Facsimile), jwakelin@em.agr.ca (Electronic mail).

PROPOSED REGULATORY TEXT

Notice is hereby given that the Governor in Council, pursuant to section 32 of the Canada Agricultural Products Act, (see footnote e) proposes to make the annexed Regulations Amending the Dairy Products Regulations.

Interested persons may make representations concerning the proposed Regulations within 30 days after the date of publication of this notice. All such representations must be addressed to Richard Robinson, Chief, Livestock Identification and Legislation, Foods of Animal Origin Division, Canadian Food Inspection Agency, 59 Camelot Drive, Nepean, Ontario K1A 0Y9, (613) 225-2342, extension 3771 (Telephone), (613) 228-6636 (Facsimile), and cite the Canada Gazette, Part I, and the date of publication of this notice.

Ottawa, September 15, 1999

MARC O'SULLIVAN
Assistant Clerk of the Privy Council

REGULATIONS AMENDING THE DAIRY PRODUCTS REGULATIONS

AMENDMENTS

1. Subsection 16(1)(see footnote 3) of the Dairy Products Regulations(see footnote 4) is repealed.

2. Section 66 of the Regulations is replaced by the following:

66. Every dairy product for which a standard is prescribed under this Part shall be packed in accordance with the requirements of subsections 16(2) to (4).

3. Schedule I(see footnote 5) to the Regulations is repealed.

COMING INTO FORCE

4. These Regulations come into force on the day on which they are registered.

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Footnote a

S.C., 1995, c. 40, ss. 32(1)

Footnote b

R.S., 1985, c. 20 (4th Supp.)

Footnote 1

SOR/84-432

Footnote 2

SOR/98-132

Footnote c

S.C., 1995, c. 40, ss. 32(1)

Footnote d

R.S., 1985, c. 20 (4th Supp.)

Footnote e

R.S., 1985, c. 20 (4th Supp.)

Footnote 3

SOR/93-328

Footnote 4

SOR/79-840

Footnote 5

SOR/98-581

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