Question Period Note: Interprovincial Trade of Poultry

Why is the Liberal Government refusing to pay Ken Falk’s legal fees after they falsely accused him of illegally shipping products across provincial boundaries?

1. In light of this Government’s commitment to protecting the Canadian food supply, the law sets out requirements that must be respected when foods are produced or prepared for inter-provincial trade.

2. The issue here relates to an Administrative Monetary Penalty assessed under the former federal Meat Inspection Act, which was successfully appealed before the Canadian Agricultural Review Tribunal in June 2019.

3. The Canadian Agricultural Review Tribunal concluded that in relation to events dating back to February 2015, Twin Maple did not commit violations and the monetary penalties issued by the Canadian Food Inspection Agency were set aside.

4. The Canadian Food Inspection Agency does not cover legal fees related to appeals before the Canadian Agricultural Review Tribunal – especially because individuals and companies appearing before this tribunal are not required to have legal representation.

The Twin Maple Group of Companies headquartered in Abbotsford, British Columbia (BC) is operated by the Falk family (includes companies such as Fraser Valley Specialty Poultry, the Twin Maple Construction company which includes a lumber yard operation, construction business and commercial building developer as well as the Clarion Tanks Ltd liquid management solution service).

In February 2015, the Canadian Food inspection Agency (CFIA) received a complaint that Twin Maple Produce Ltd., a non-federally (only provincially) registered meat establishment in BC, was allegedly engaged in the interprovincial trade of poultry (chicken, duck, squab, and goose) products to Alberta.

This matter involved eight separate Notices of Violation (NOV):
• one violation to the company’s President, Ken Falk, under section 14 of the former Meat Inspection Act, for failing to provide documents requested by a CFIA inspector ($10,000 penalty)
• seven violations under section 8 of the former Meat Inspection Act, for sending or conveying meat inter-provincially without meeting the mandatory requirements (total $48,000 penalty)

Administrative Monetary Penalties (AMPs) are part of a comprehensive set of enforcement tools that the CFIA may be used to encourage industry to comply with applicable federal legislation. The decision to issue a Notice of Violation under the authority of AMPA is taken very seriously and takes into account the gravity of the alleged violation, the compliance history of the regulated party and the intent associated
with the alleged violation.

CANADA AGRICULTURAL REVIEW TRIBUNAL (CART) - DECISION

The Canada Agricultural Review Tribunal (CART) is an independent body established by Parliament under the Canada Agricultural Products Act. It provides independent oversight of federal agencies' use of Administrative Monetary Penalties in relation to agriculture and agri-food.

Anyone who disagrees with a notice of violation can request a review under the Agriculture and Agri-Food Administrative Monetary Penalties Act. When the applicant requests a review by CART, he or she may proceed by written submissions alone or by requesting an oral hearing. A second type of review occurs when a party disagrees with a decision made by the Minister regarding the validity of a Notice of Violation. In this case, the applicant must show that there is either an error in law in the decision or that there was a lack of natural justice in the process.

Once CART receives the applicant's request for review, it will determine if it is admissible. The most common reasons for inadmissibility are that the applicant did not file his or her claim within the prescribed time or has already paid the prescribed penalty. If the claim is admissible, the agency that issued the Notice of Violation or the Minister who issued the decision regarding the validity of a Notice of Violation, is advised.

As permitted by law, Mr. Falk requested a review by the Canadian Agricultural Review Tribunal (CART). In September 2016, the CART found the request for review to be admissible.

On March 15, 2019, a Notice of Constitutional Question was served, alleging that paragraph 13(1)(c) (powers of inspector to require the production of documents), subsections 13(2) (obligation to provide reasonable assistance to an inspector) and 14(1) (prohibiting obstruction) of the Meat Inspection Act offend section 8 of the Canadian Charter of Rights and Freedoms, which protects against unreasonable searches and seizures.
(NOTE: More recently, Mr. Falk has asserted a violation of section 7 of the Charter (right to life, liberty and security of the person).

The matter was heard before the CART from September 30 - October 4, 2019.

On April 3, 2020, the CART rendered its decision and set aside the Notice of Violation and $10,000 penalty issued by the CFIA against Mr. Falk for obstructing an investigation. The CART held that the CFIA did not prove that the failure to provide the customer list obstructed or interfered with the investigation.

CURRENT STATUS

There have been several letters received at the Canadian Food Inspection by Ken Falk and his supporters before and after the CART decision. Most recently, in a letter addressed to CFIA’s President dated June 26, 2020, Mr. Falk alleged that the CFIA acted “based upon conjecture, speculation, hunches, hearsay, or assumptions” and suggested it acts as “judge, jury and executioner” using its own “flawed evidence”. Mr. Falk has asked for CFIA officers to be held to account for what he considers to be “unacceptable behaviour by any government official”, and has requested the reimbursement of his legal fees (totalling $214,384.24).

In consultation with legal counsel, the CFIA’s Vice-President of Operations responded to Mr. Falk’s letter on July 20, 2020, to advise that careful consideration was given to the issues raised and provide assurances that “CFIA compliance and enforcement activities are guided by the principles of fairness,
impartiality and transparency with consideration given to the authorities set out in a legislative framework and risk management principles. Trained, designated personnel carry out compliance and enforcement activities in an unbiased manner. All CFIA employees carry out their activities in a manner consistent with the Agency's corporate values and ethics, as set out in the CFIA's statement of values document, "Our Values: Safeguarding the Canadian Public, Environment and Economy", which can be found at
the following link: https://www.inspection.gc.ca/about-cfia/organizationalstructure/
mandate/eng/1299780188624/1319164463699.”

LEGAL FEES
The Canada Agricultural Review Tribunal does not have the authority to issue orders in regard to legal costs. Individuals and companies are not required to have legal representation for a hearing before the Tribunal.

THE SAFE FOOD FOR CANADIANS ACT

Ken Falk was issued a Notice of Violation with penalty pursuant to the Agriculture and Agri-Food Administrative Monetary Penalties Act for a violation of the now repealed Meat Inspection Act.

The Safe Food for Canadians Act (SFCA) came fully into force on January 15, 2019, with the consequential repealing of the more prescriptive Meat Inspection Act, which was considered by many stakeholders to be more costly and burdensome.

The SFCA and Safe Food for Canadians Regulations (SFCR) were designed to be consistent with international standards and to meet trading partner requirements. The outcome-based SFCR allow flexibility to achieve federal food safety outcomes. For smaller- and medium-sized provincially regulated food businesses wanting to expand their markets, meeting the outcomes required can be achieved in a variety of ways, which might make opting into federal regulation easier under the SFCR.

Under the SFCA, it is the responsibility of the person who is sending a food from one province to another to ensure the food was prepared by a licence holder and meets the requirements of the SFCR. Generally a person who is preparing food and selling it only within the province with no intent of inter-provincial trade, (which was the argument successfully advanced by Mr. Falk) would not be subject to enforcement actions if their product ends up in another province without their knowledge. It would be the person who sent the food to the other province who would be in non-compliance.

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