THE PRINCE EDWARD ISLAND POTATO BOARD Applicant v. THE MINISTER OF AGRICULTURE, 2023 FC 535

Date: 20230413 Docket: T-1315-22 Citation: 2023 FC 535 Ottawa, Ontario, April 13, 2023 PRESENT: The Honourable Mr. Justice Southcott BETWEEN: THE PRINCE EDWARD ISLAND POTATO BOARD Applicant and THE MINISTER OF AGRICULTURE AND AGRI-FOOD AND THE CANADIAN FOOD INSPECTION AGENCY Respondents JUDGMENT AND REASONS I.

Overview [ 1 ] This Judgment and Reasons address an application for judicial review of a series of related decisions of the Respondents, commencing in November 2021, restricting the movement of seed potatoes from Prince Edward Island [PEI] to the rest of Canada and the United States [US]. [ 2 ] As explained in more detail below, this application is dismissed, because the decisions under review are either moot or reasonable, within the meaning of the governing jurisprudence, and were made with the required procedural fairness. II. Background A.

The Parties [ 3 ] The Applicant, the Prince Edward Island Potato Board, is a body corporate established under the Potato Marketing Plan Regulations , PEI Reg EC173/90 [ PMP Regulations ], and a " “commodity board” " within the meaning of

Part II of the Natural Products Marketing Act , RSPEI 1988, c N-3 .

It acts as the custodian of the potato industry in the Province of PEI, representing approximately 175 potato producers across the Province, all of whom are regulated under the PMP Regulations . [ 4 ] The Applicant is composed of 12 executive members who are active potato producers in the Province, equally representing each of the industry’s three major sectors: seed potatoes (planted to grow more potato plants), table stock potatoes (intended for immediate sale and human consumption), and processing potatoes (intended for further processing into other products before being sold for human consumption).

The Applicant is itself also a seed potato producer, as it owns and operates the Fox Island Elite Potato Seed Farm. [ 5 ] The Respondent, the Canadian Food Inspection Agency of Canada [CFIA], is Canada’s national plant regulator, created under the Canadian Food Inspection Agency Act , SC 1997, c 6 [ CFIA Act ]. Under subsection 11(1) of the CFIA Act , CFIA is responsible for the administration and enforcement of, among other statutes, the Plant Protection Act , SC 1990, c 22 [ Act ].

The purpose of the Act is to protect plant life and the agricultural and forestry sectors of the Canadian economy by preventing the importation, exportation and spread of pests and by controlling and eradicating quarantine pests in Canada (at s 2). [ 6 ] The other Respondent, the Minister of Agriculture and Agri-Food [Minister], is the federal minister responsible for CFIA, pursuant to powers granted by the Act , the CFIA Act , and regulations enacted thereunder. B.

Potato Wart Pest [ 7 ] Potato wart [PW], one of the most serious potato pests in the world, has been regulated as a quarantine pest in Canada for over a century (currently under the Act and the Plant Protection Regulations , SOR/95-212 [ Regulations ] made thereunder). Although it poses no threat to human health, animal health, or food safety, PW reduces potato yield and makes potatoes unmarketable. [ 8 ] PW is caused by a soil-borne parasitic fungus, Synchytrium endobioticum , which infects potato plants.

Its life cycle includes both a dormant stage, during which it exists as resting microscopic spores waiting for a host plant to be planted close enough to stimulate germination, and an active stage during which it completes reproductive cycles in the host plant, causing characteristic masses or galls. PW can remain dormant in soil for more than 40 years. [ 9 ] PW is not an airborne fungus that can easily travel significant distances from its place of origin.

Rather, spores can be transferred from one field to another of any distance away only by human-mediated pathways, such as transfer of soil on seed potatoes or on unwashed vehicles or equipment. In Canada, PW has been found only in Newfoundland and Labrador and on PEI.

C. Potato Wart Domestic Long-Term Management Plan [ 10 ] PW can be detected in one of two ways: either by visual inspection of potato tubers or by laboratory testing of soil samples. PW was first detected on PEI in October 2000. Since that detection, CFIA has adopted measures to monitor and control the spread of PW.

The principal measures in place in the time period leading to the decisions challenged in this application are set out in a document called the Potato Wart Domestic Long-Term Management Plan, last updated on March 9, 2009 [Management Plan or Plan]. [ 11 ] In support of this application, the Applicant filed an affidavit sworn by its General Manager, Mr. Greg Donald, which provides an explanation of the operation of the Management Plan.

The Plan categorizes potato-producing fields on PEI based on their relationship to PW detection and sets out different restrictions and surveillance activities depending on the category of field. It applies only to fields in which PW has actually been detected and those associated fields that, by proximity or history with a PW-positive field, have a risk of PW presence based on the biology of the pest and documented means of spread.

The Plan currently applies to approximately 11% of the 350,000 acres of PEI’s potato fields. [ 12 ] Where it applies, the Management Plan assigns potato fields one of the following classifications, indicating the confirmed presence of PW or risk of same: A . Category A, also known as Index Fields, in which PW has been detected; B . Category B, also known as Adjacent Fields, which are fields next to Index Fields that are not separated by a physical barrier of more than 15m in width; C .

Category C, also known as Primary Contact Fields, which are fields that may have had soil, potatoes or potato waste transferred to them from an Index Field or may have had common equipment moved to them directly after use in an Index Field; D . Category D, also known as Other Contact Fields, which are fields where common equipment has been shared with an Index Field, but after use in a Primary Contact Field; and E .

Category E, sometimes called New Fields, which are not related to a detection, but rather are fields entering their first year of potato production that were not previously surveyed for PW. [ 13 ] For each of these categories, the Management Plan provides corresponding surveillance protocols and/or restrictions on the movement and treatment of potatoes, plants, soil, machinery, and other articles.

Under the Plan, seed potatoes (and the soil in which they are transported) originating from Category A, B, or C fields cannot be moved or sold as seed potatoes. [ 14 ] Seed potatoes from Category D fields are not immediately subject to movement restrictions under the Management Plan. Provided the applicable surveillance and testing requirements are met after a Category D field’s first crop, those seed potatoes can be moved domestically within Canada.

The Plan further provides that, if a Category D field’s second crop similarly meets those requirements, as well as US requirements as set out in the 2015 US Federal Order (which will be explained below), those seed potatoes can be exported to the US. [ 15 ] Category E fields are visually inspected by CFIA for PW after the first harvest and, if no PW is found, they are not subject to any movement restrictions and are not further regulated by the Management Plan. [ 16 ] In this application, the parties use the term " “Regulated Fields” " to refer to Category A, B, C, and D fields as well as Category E fields until their first harvest, and the term " “Unregulated Fields” " to refer to all other potato fields on PEI.

I will adopt this nomenclature for purposes of these Reasons. D. Potato Wart Detections on PEI [ 17 ] PW was first detected on PEI in a single field in October 2000. Since then (as of July 29, 2022), it has been detected in additional fields, totalling 35 fields overall representing approximately 0.4% of the total approximately 350,000 acres of potato fields on PEI. Together with these 35 Index Fields, there are a total of 1322 other fields also being regulated under the Management Plan because of their documented connection to the Index Fields.

These 1357 fields together total an area of 40,616 acres or approximately 11% of PEI’s total potato field acreage. The remaining approximately 88% of PEI’s potato production land, which is not regulated by the Plan, represents approximately 8600 fields. [ 18 ] Details of the PW detections on PEI are as follows: A . PW was first detected on PEI in a 77-acre field in October 2000; B . In the fall of 2002, PW was detected in two separate cases linked to the initial detection in 2000; C . In 2004, PW was detected in four fields associated with one of the 2002 detections; D .

In 2007, a further PW detection was confirmed in a single 45-acre field related to one of the 2002 detections; E . In September 2012, CFIA confirmed the detection of PW in three separate fields, two of which were not linked to a previous detection; F . In 2013 and 2014, there were three further detections of PW on 86 acres of land linked to one of the 2012 detections; G . In August 2014, a producer detected PW in a single 14.1 hectare field that was unrelated to any previous detections, following

which CFIA’s investigations confirmed four additional detections in fields that were newly designated Category C and Category D fields as a result of the August 2014 detection; H . In 2016 and 2018, there were two additional detections of PW, both of which were linked to previous detections; I . In October 2020, CFIA confirmed detections of PW (in soil samples from two fields on one farm totaling approximately 50 acres) that were unrelated to any previous detections; J .

On October 1 and 14, 2021, CFIA confirmed the detection of PW in two separate processing potato fields on two separate farms, following the producers submitting a suspect potato to CFIA for testing. These fields, totaling approximately 331 acres, were both associated with fields in which there had been previous detections; and K . As a result of the October 2021 detections, in accordance with the Management Plan, CFIA began testing the affected and associated fields [2021 Investigation]. To date, the 2021 Investigation resulted in two further PW detections: a .

On February 10, 2022, PW was detected in a field on a processing farm that had recently begun growing seed potatoes. This field was a Category D field as a result of the October 2021 detections; and b . On July 21, 2022, PW was detected on a field adjacent to one of the October 2021 detections. CFIA expects to complete its testing under the 2021 Investigation in 2023.

E. 2015 US Federal Order [ 19 ] Following the cluster of new PW detections on PEI commencing in 2014 as described above, the US Department of Agriculture Animal and Plan Health Inspection Service [APHIS], which is the CFIA’s American counterpart, issued a Federal Order to reduce the risk of PW spreading from PEI to the US [2015 US Federal Order]. [ 20 ] APHIS issues an order of this sort when it considers it necessary to take action to protect US agriculture or prevent the entry and establishment of a pest or disease into the United States.

The 2015 US Federal Order required that Unregulated Fields undergo soil testing for PW and be declared free of PW before seed potatoes from those fields could be imported into the US. [ 21 ] To comply with the 2015 US Federal Order, CFIA implemented its Phytosanitary Export Certification Program.

Under this program, CFIA conducts verification of seed potato status, verification that the land on which potatoes were grown is not regulated for Synchytrium endobioticum , field soil sampling, monitoring of regulated areas, issuance of quarantine notices and movement certificates, tuber inspection, and shipment certification. F. 2020 and 2021 Potato Wart Detections [ 22 ] Following the detection of PW in two Unregulated Fields in October 2020 as described above, APHIS asked CFIA to suspend export certification of seed potatoes from PEI while investigations could be conducted.

CFIA agreed to this request, suspending export certification of seed potatoes from November 2020 until March 2021, when APHIS agreed that seed potato exports from PEI could resume. [ 23 ] Following the October 2021 detections described above, CFIA notified APHIS of the detections. Subsequent communications between these regulators will be canvassed in more detail later in these Reasons. However, in

summary, APHIS asked CFIA to voluntarily suspend export certification of PEI seed potatoes and potatoes for consumption destined for the US, and to prohibit the movement of any PEI seed potatoes to the rest of Canada, until after the 2021 Investigation was complete.

APHIS indicated that failure to take these measures would result in amendments to the 2015 US Federal Order that would ban the importation of all Canadian potatoes to the US. [ 24 ] As a result, on November 2, 2021, CFIA issued a document entitled " “Notice to Industry – Temporary suspension of seed potato certification of seed potatoes originating from Prince Edward Island to the United States” " , which advised that the movement of all seed potatoes originating from PEI to the US had been suspended as of November 1, 2021 [First Suspension]. [ 25 ] On November 21, 2021, CFIA issued a second document, entitled " “Notice to Industry – Interim suspension of certification of all potatoes originating from Prince Edward Island to the Untied States and new import requirements for used farm equipment” " , which expanded the First Suspension to include not only seed potatoes but also table stock and processing potatoes, effective as of 11:00 pm EST that day [Second Suspension]. [ 26 ] On November 21, 2021, the Minister also issued a Ministerial Order, pursuant to subsection 15(3) of the Act , declaring the entire Province of PEI as " “a place infested with potato wart” " and, among other things, prohibiting the movement of PEI seed potatoes from PEI without written authorization from an inspector [Ministerial Order].

The Ministerial Order remains in effect. [ 27 ] On February 22, 2022, CFIA issued a Notice to Industry setting out the conditions under which inspectors would issue written authorizations to allow the movement of PEI seed potatoes from PEI in accordance with the Ministerial Order, referred to as the PEI Seed Potato Domestic Movement Requirements and Recommended Risk Mitigation Measures [Domestic Movement Requirements or Requirements].

The Domestic Movement Requirements are still in place. [ 28 ] On April 1, 2022, APHIS issued a new Federal Order [2022 US Federal Order] amending the import requirements for PEI potatoes for human consumption. Effective as of that date, the 2022 US Federal Order prohibits the importation of field-grown seed potatoes from PEI into the United States and allows the importation of potatoes for consumption that meet specified conditions.

[ 29 ] In this application for judicial review, the Applicant challenges, as a series of related and ongoing decisions, the First Suspension, Second Suspension, Ministerial Order, and Domestic Movement Requirements. III. Issues and Standard of Review [ 30 ] Based on the parties’ respective submissions, I conclude that this application raises the following issues for the Court’s determination: A . Should the Court grant an Order under Rule 302 of the Federal Courts Rules , SOR/98-106 , allowing the Applicant to seek judicial review of more than one decision? B .

Are the First Suspension and Second Suspension reviewable decisions? C . If reviewable, should the Court decline to consider the First Suspension and Second Suspension due to mootness? D . If reviewable and not moot, were the First Suspension and Second Suspension reasonable (and is their ongoing operation reasonable)? E . Was the Ministerial Order reasonable (and is its ongoing operation reasonable)? F . Were the Domestic Movement Requirements reasonable (and is their ongoing operation reasonable)? G .

Was the Applicant denied procedural fairness with respect to the First Suspension, Second Suspension, and Ministerial Order? [ 31 ] As reflected in the above articulation of the issues, the parties agree (and I concur) that each of the substantive issues listed above, except for the last which concerns procedural fairness, is reviewable on the standard of reasonableness (see Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 [ Vavilov ]).

I note that, in their respective proposed lists of issues, both parties draw a distinction between the lawfulness and the reasonableness of the Decisions under review. My list of issues above eliminates that distinction as conceptually artificial.

In my view, the arguments surrounding lawfulness simply represent one basis for challenging the reasonableness of the decisions, as administrative decisions made without legal authority are necessarily unreasonable (see McCarthy v Whitefish Lake First Nation #128, 2023 FC 220 at para 83 ; Jette v New Brunswick Legal Aid Services Commission, 2019 NBQB 320 at para 90 . [ 32 ] The parties also agree (and I concur) on the approach to the procedural fairness issue.

Such issues are subject to judicial scrutiny to ensure that a fair and just process was followed, an exercise best reflected in the correctness standard even though, strictly speaking, no standard of review is being applied (see Canadian Pacific Railway Company v Canada (Transportation Agency) , 2021 FCA 69 [ Canadian Pacific Railway ] at paras 46-47 ). IV. Analysis A.

Should the Court grant an Order under Rule 302 of the Federal Courts Rules, SOR/98-106, allowing the Applicant to seek judicial review of more than one decision? [ 33 ] I will address this issue summarily, as the parties agree that a Rule 302 Order is appropriate. This Rule provides that, unless the Court otherwise orders, an application for judicial review shall be limited to a single order in respect of which relief is sought.

However, as contemplated in David Suzuki Foundation v Canada (Health) , 2018 FC 380 at paragraphs 166 and 173 , continuing acts or decisions may be reviewed together without offending Rule 302, where the similarities are such that doing so would be consistent with the policy of ensuring an expeditious and focused process for challenging administrative action. [ 34 ] Although the Applicant is challenging distinct decisions made by different decision-makers (CFIA and the Minister), the Respondents acknowledge (and I agree) that these challenges relate to the same basic issue, namely the regulatory response to the PW situation in PEI, and that requiring separate applications for judicial review would represent a waste of time and judicial resources.

As such, my Order will grant the required relief under Rule 302. B. Are the First Suspension and Second Suspension reviewable decisions? [ 35 ] This issue arises because the Respondents argue that the First Suspension and Second Suspension [together, Suspensions] are not decisions or other matters of the sort that are subject to judicial review. There are two components to the Respondents’ position: A . First, the Respondents submit that the Applicant has mischaracterized the Suspensions as decisions by CFIA prohibiting the export of seed potatoes.

The Respondents take the position that they did not prohibit the export of seed potatoes but rather notified industry and CFIA’s inspectors that, in light of messaging received from the US, CFIA could no longer certify seed potato exports to the US under the Regulations ; B . Second, the Respondents submit that, even if the Suspensions can be characterized as decisions, they are not justiciable because they cross the boundary from the legal to the political.

The Respondents explain that the Suspensions followed a series of discussions between Canada and the US and that Canadian officials ultimately determined that it was prudent to suspend export

certification of PEI potatoes, as requested by the US, to avoid a new US Federal Order that might impact the entire Canadianpotato industry. [36] In support of the first component of their position, the Respondents refers the Court to

section 55 of the Regulations, which createsthe requirement for a Canadian Phytosanitary Certificate, issued by a CFIA inspector, in connection with the export from Canada of anything for which such a certificate is required by the phytosanitary certification authorities in the destination country.

Under subsection55(3), an inspector may issue such a certificate only if the inspector believes on reasonable grounds that the thing to be exportedconforms with the laws of the importing country respecting phytosanitary import requirements. [37] The Respondents argue that if the import requirements of a destination country change or the importing country is no longerprepared to accept certain potatoes, CFIA must respect that position and can no longer certify such potatoes for export.

They take theposition that the Suspensions are not decisions on CFIA’s part, but rather represent an acknowledgement of the state of affairs resultingfrom US decision-making. In the Respondents’ submission, the documents best capturing the Suspensions are not CFIA’s Notices toIndustry, but rather its notices to its inspectors that seed potatoes could no longer be certified for export to the US. [38] The Respondents’ Record in this application includes an affidavit affirmed by Mr. David Bailey, the Acting Executive Director ofthe Plant Health Biosecurity Directorate and the Chief Plant Health Officer with CFIA.

In connection with the First Suspension, Mr.Bailey’s affidavit attaches what he describes as a guidance bulletin, dated November 2, 2021, sent to CFIA’s inspectorate [November 2Bulletin]. He explains that the substance of this document represents advice to CFIA’s inspectors that the Notice to Industry had beensent to the seed potato industry regarding the suspension of seed potato certification for export to the US.

The November 2 Bulletinincorporates the text of the Notice to Industry related to the First Suspension. [39] The Certified Tribunal Record includes a document dated November 22, 2021, which appears to be a similar internal CFIAcommunication that, among other things, states that to address additional phytosanitary concerns raised by the US, the First Suspensionhas been expanded to include table stock potatoes and potatoes for processing that originate from PEI to the US as of November 21, 2021[November 21 Bulletin].

This document further states that the suspension of certification of all potatoes originating from PEI to the USwill remain in effect until further notice. [40] As previously noted, subsection 55(3) of the Act tasks CFIA inspectors with issuing phytosanitary certificates if the inspectorbelieves on reasonable grounds that the thing to be exported conforms with the laws of the importing country respecting phytosanitaryimport requirements.

Against that backdrop, the Respondents submit that, pursuant to CFIA’s responsibility for the administration andenforcement of the Act (see CFIA Act, s 11), it routinely provides inspectors with guidance on the phytosanitary import requirements ofrelevant countries.

While I accept that providing guidance to its inspectorate on foreign import requirements would be consistent withCFIA’s mandate, I have difficulty concluding that CFIA’s communications with its inspectorate in the case at hand fall within thischaracterization. [41] The November 2 Bulletin issued in connection with the First Suspension states that the movement of seed potatoes originating fromPEI to the US has been suspended.

Similarly, the November 21 Bulletin issued in connection with the Second Suspension notes that thecertification of shipments of seed potatoes originating from PEI to the US was suspended on November 1 and states that the suspensionhas been expanded to include table stock potatoes and potatoes for processing. CFIA’s communications with its inspectors, in connectionwith both Suspensions, do not read as informational guidance, i.e., providing them with information on foreign import requirements toassist them in making decisions under subsection 55(3) of the Act.

Rather, as the Applicant submits, they read as the communication ofdecisions, already made by CFIA, to suspend export certification. [42] Turning to the Respondents’ second position, surrounding the justiciability of the Suspensions, I accept their argument that therewas a political element to these decisions. Both parties characterize the Suspensions in this manner.

Indeed, one of the Applicant’sprincipal arguments in challenging the reasonableness of the Suspensions is the assertion that they were issued solely to accede torepeated trade-related threats by the US, which (particularly in the absence of a concurrent change in US law) the Applicant submits wasan irrelevant consideration.

The Respondents dispute that the US trade context was an irrelevant consideration, but they acknowledgethat Canadian officials determined it was prudent to suspend export certification, as requested by the US, to avoid a new US FederalOrder that might impact the entire Canadian potato industry. Indeed, they argue that it was precisely this political element to theSuspensions that makes them non-justiciable. [43] The Respondents refer the Court to the explanation of the principal of justiciability in Hupacasath First Nation v Canada (ForeignAffairs and International Trade Canada), 2015 FCA 4 at paragraph 62: 62.

Justiciability, sometimes called the “political questions objection,” concerns the appropriateness and ability of a court todeal with an issue before it.

Some questions are so political that courts are incapable or unsuited to deal with them, or shouldnot deal with them in light of the time-honoured demarcation of powers between the courts and the other branches ofgovernment. [44] In Democracy Watch v Canada (Attorney General), 2023 FC 31 [Democracy Watch] at paragraph 73, this Court identified a numberof considerations that can inform a justiciability analysis: 73." In considering the appropriateness of judicial involvement in particular matters, Canadian courts have consideredquestions such as the following: (

a) whether the case has a sufficient legal component that it can be resolved by theapplication of a legal standard (see Reference Re Canada Assistance Plan (BC), "" "" (SCC), ""[1991] 2 SCR525"" at p 545)""; (

b) whether the case is argued solely in the hypothetical and abstract sense (""see Page v Mulcair,""2013 FC 402"" at paras ""60-62""); (

c) whether the Court is being asked to express its opinion on the wisdom ofgovernmental action (see Operation Dismantle v The Queen, " (SCC), "[1985] 1 SCR 441"" [OperationDismantle] at p 472)""; (

d) whether there are moral or political dimensions to the case that are inappropriate for the Court todecide (""see ""Operation Dismantle"" at p 465); (

e) whether the relief sought impinges upon policy-makingresponsibilities of other branches of government (see Tanudjaja v Canada (Attorney General), ""2014 ONCA 852""

[Tanudjaja] at paras ""33-34""); and (

f) whether the relief sought would have any practical effect (""see ""Tanudjaja"" atpara ""34""). " [45] The Applicant’s arguments challenging the Suspensions are not focused on their wisdom or whether CFIA made appropriatepolitical or policy decisions. Rather, the Applicant submits that the Suspensions were made without legal authority and based onirrelevant considerations. As in Democracy Watch (at para 76), such determinations involve the application of a legal standard.

As forwhether the Court is being to ask to address arguments advanced solely in the hypothetical or abstract sense, or whether addressing theApplicant’s arguments would have any practical effect, I will further consider comparable principles when considering the Respondents’mootness argument. However, for purposes of the justiciability analysis, I observe that the Applicants’ arguments are raised in thecontext of a concrete and ongoing dispute surrounding the regulatory response to the PW situation in PEI.

I find the Suspensions to bereviewable decisions. [46] In so concluding, I have considered the Respondents’ reliance on Cropvise Inc v Canadian Food Inspection Agency, 2016 NBQB186 [Cropvise], aff’d 2018 NBCA 28, in which the Court of Queen’s Bench of New Brunswick (as it was then called) declined torecognize a duty of care surrounding CFIA’s decision as to how to engage with Venezuelan officials over a dispute involving the exportof potatoes.

The Court held that such a decision represented the outcome of a balancing of economic, social and political considerationsby CFIA and other Canadian government authorities, in the conduct of diplomat relations with the Venezuelan state, and was thereforebased on public policy considerations that could not support a cause of action (at para 110). [47] Leaving aside the fact that Cropvise involved an action for damages, not an application for judicial review, the analysis in that caseis distinguishable from that required in the case at hand which, as explained above, does not involve consideration of the wisdom of stepstaken in the conduct of diplomatic relations but rather whether certain decisions were authorized by law and based on relevantconsiderations.

C. If reviewable, should the Court decline to consider the First Suspension andSecond Suspension due to mootness? [48] Unlike the suspension of export certification following the October 2020 PW detection, there has been no formal notification to theindustry that the Suspensions have been withdrawn.

However, at the hearing of this application, the Respondents’ counsel confirmed thatthe Respondents regard the Suspensions as no longer being in effect, explaining that it was not thought to be necessary to provide formalnotification of this, because the Suspensions were superseded in effect by the 2022 US Federal Order. [49] Based on this confirmation by the Respondents’ counsel, the Applicant’s counsel acknowledged that its challenges of theSuspensions are therefore moot.

However, the Applicant takes the position that the Court should nevertheless exercise its discretion toadjudicate the Applicant’s arguments, at least in relation to the legal authority for the Suspensions. [50] The Applicant’s position is based on the principles explained in Borowski v Canada (Attorney General), (SCC),[1989] 1 SCR 342, as summarized in Democracy Watch v Canada (Attorney General), 2018 FCA 195 [Democracy Watch FCA] atparagraphs 10 and 13.

If the Court concludes that a proceeding is indeed moot, in that no live controversy remains that affects or mayaffect the rights of the parties, a second question arises: whether the Court should nonetheless exercise its discretion to hear and decidethe matter. Three factors bear on the Court’s decision whether to exercise this discretion: (

a) the presence or absence of an adversarialcontext; (

b) the appropriateness of applying scarce judicial resources; and (

c) the Court’s sensitivity to its role relative to that of thelegislative branch of government. [51] Clearly the adversarial context is present in the case at hand, as the parties have fully briefed and argued their respective positionssurrounding the reasonableness of the Suspensions. [52] Judicial resources have already been expended in preparing for and hearing this application, including in relation to these arguments.The additional expenditure of resources associated with adjudication is not significant.

This factor also includes, where applicable,consideration of whether the case presents a recurring issue, but one that is of short duration or otherwise evasive of judicial review (seeDemocracy Watch FCA at para 14). The Applicant argues compellingly that the Suspensions are not the first time that CFIA has madedecisions of this nature, as a similar suspension of export certification was issued following the October 2020 PW detection.

Also, as inthe case at hand, such suspensions may be of short duration and therefore evasive of judicial review due to mootness, when they areovertaken by other regulatory events. [53] The third factor requires that the Court exercise its discretion to adjudicate moot proceedings both prudently and cautiously, as theprimary task of the judiciary within the Canadian constitutional separation of powers is to resolve real disputes (see Democracy WatchFCA at para 14). [54] My decision is to exercise my discretion to adjudicate the parties’ arguments surrounding CFIA’s legal authority for theSuspensions, as these arguments are largely independent of the particular factual context in which CFIA suspends export certification.The arguments surrounding whether the Suspensions were based on irrelevant considerations, and the parties’ procedural fairnessarguments, are far more dependent on factual context and, taking into account both the second and third factors, I decline to exercise mydiscretion to adjudicate those arguments.

D. If reviewable and not moot, were the First Suspension and Second Suspensionreasonable (and is their ongoing operation reasonable)? [55] As explained immediately above, under this issue I will adjudicate only the question of whether the Suspensions were authorized bylaw.

[ 56 ] The Applicant argues that, unlike the Ministerial Order that will be addressed later in these Reasons, neither of the Suspensions was memorialized in an official decision document. Rather, each Suspension was announced by CFIA via a Notice to Industry, and neither such Notice identifies any grant of authority for the relevant Suspension. The Applicant submits that the rest of the record before the Court, including the affidavits filed by the Respondents, are similarly devoid of any reference to such authority.

The Applicant asserts that nothing in the Act , the CFIA Act , regulations made thereunder, or any other statute that CFIA has jurisdiction to administer authorizes it to issue a blanket prohibition of potato export from an entire province to a particular country. [ 57 ] CFIA’s response to this argument is largely as canvassed earlier in these Reasons, in connection with the question whether the Suspensions represent decisions or other justiciable matters.

It submits that it routinely provides inspectors with guidance on the phytosanitary import requirements of relevant countries, pursuant to CFIA’s responsibility for the administration and enforcement of the Act (see CFIA Act , s 11). In adjudicating the justiciability issue, I analysed CFIA’s arguments as to how to characterize its administrative actions.

The same analysis is dispositive of the legal authority question. [ 58 ] As previously explained, I accept that providing guidance to its inspectorate on foreign import requirements would be consistent with CFIA’s mandate, but I find that CFIA’s communications with its inspectorate in the case at hand do not fall within this characterization.

Under subsection 55(3) of the Act , it is CFIA’s inspectors who have the authority to issue phytosanitary certificates, and an individual inspector can only issue such a certificate if they believe on reasonable grounds that the thing to be exported conforms with the laws of the importing country respecting phytosanitary import requirements.

The Respondents have identified no legal authority for CFIA itself to make the determination as to whether export certificates will be issued, or to prohibit export, on a blanket basis or otherwise. [ 59 ] Based on the governing legislation as currently enacted, and the manner in which the Notices to Industry and related communications to the CFIA inspectorate are framed in the case at hand, I agree with the Applicant’s position that the Respondents have identified no legal authority for the Suspensions. [ 60 ] Because this determination represents a discretionary adjudication of an issue that is now moot, it will not give rise to any relief in my Order.

E. Was the Ministerial Order reasonable (and is its ongoing operation reasonable)?

(1) Authority for Ministerial Order [ 61 ] The Applicant advances a number of arguments in support of its position that the Ministerial Order was unreasonable. While I will explain these arguments in greater detail below, the Applicant argues principally that there was no evidentiary basis on which the Minister could form a reasonable suspicion that the entire Province of PEI was " “a place infested with potato wart” " , as required by the Regulations in order for the Minister to make the declaration to that effect contained in the Ministerial Order.

Related thereto, the Applicant also argues that the Ministerial Order was issued based on an irrelevant consideration or for an improper purpose, i.e. , to effect a commitment that CFIA had made to the US in response to a trade threat, rather than based on the presence of PW on PEI as required by the Regulations . [ 62 ] Foundational to the Ministerial Order is the declaration therein that " “… the province of Prince Edward Island which is comprised of the counties of Kings, Queens, and Prince is a place infested with potato wart …” " .

It is common ground between the parties that the Minister made this declaration under the power conferred by subsection 15(3) of the Act , which provides that the Minister may, by order, declare any place to be infested that is not already the subject of a declaration under

section 11 or 12 (which sections empower inspectors to make declarations of infestation). [ 63 ] The Applicant notes that

section 2 of the Regulations defines the term " “infested” " as follows: 2. In these Regulations , " " 2.

Les définitions qui suivent s’appliquent au présent règlement " " … … infested means that a pest is present in or on a thing or place or that the thing or place is so exposed to a pest that one can reasonably suspect that the pest is in or on the thing or place; ( infesté ) ( parasité ) infesté Se dit de la présence d’un parasite sur ou dans un lieu ou de l’exposition telle d’un lieu à un parasite qu’il est raisonnable d’y soupçonner la présence du parasite. ( infested ) parasité Se dit de la présence d’un parasite sur ou dans une chose ou de l’exposition telle d’une chose à un parasite qu’il est raisonnable d’y soupçonner la présence du parasite. ( infested ) [ 64 ] Neither of the parties has identified any judicial consideration of this definition.

However, relying on the phrase " “reasonably suspect” " employed in the definition, the Applicant argues that the definition incorporates the standard of reasonable suspicion that has been applied and interpreted in other contexts. For instance, in R v Chehil , 2013 SCC 49 at paragraphs 26 to 27 , the Supreme Court of Canada described this standard as follows: 26. Reasonable suspicion derives its rigour from the requirement that it be based on objectively discernible facts, which can then be subjected to independent judicial scrutiny. This scrutiny is exacting, and must account for the totality of the

circumstances . In Kang-Brown , Binnie J. provided the following definition of reasonable suspicion, at para. 75: The “reasonable suspicion” standard is not a new juridical standard called into existence for the purposes of this case. “Suspicion” is an expectation that the targeted individual is possibly engaged in some criminal activity. A “reasonable” suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds. 27.

Thus, while reasonable grounds to suspect and reasonable and probable grounds to believe are similar in that they both must be grounded in objective facts , reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability, of crime.

As a result, when applying the reasonable suspicion standard, reviewing judges must be cautious not to conflate it with the more demanding reasonable and probable grounds standard. [Applicant’s emphasis] [ 65 ] The Applicant also notes the explanation by the Federal Court of Appeal in Canada (Minister of Transport, Infrastructure and Communities) v Farwaha , 2014 FCA 56 at paragraph 97 , that fanciful musings, speculations or hunches do not meet the standard of reasonable grounds to suspect.

Rather, as this Court stated in Forget v Canada (Transport) , 2017 FC 620 at paragraph 48 , the existence of objective and ascertainable facts is essential to support reasonable suspicions. [ 66 ] Against this jurisprudential backdrop, the Applicant takes the position that the Court must assess whether the evidence demonstrates that the Minister had before her objectively discernible facts from which she could form a reasonable suspicion of the presence of PW so as to authorize issuance of the Ministerial Order. [ 67 ] The Applicant acknowledges that the Regulations ’ definition of " “infested” " could capture the Regulated fields.

While the Category A fields (or Index Fields) are the only fields in which PW has been confirmed to be present, the Applicant accepts that, by virtue of documented proximity or potential for human-mediated spread, the Category B, C, and D fields could also potentially ground a reasonable suspicion of PW’s presence.

However, the Applicant asserts that the evidence demonstrates the Minister had no objectively discernible facts before her from which she could form a reasonable suspicion that PW is present on any of the Unregulated Fields. [ 68 ] The Respondents do not take issue with the Applicant’s reliance on the Regulations ’ definition of " “infested” " or the jurisprudence upon which it relies to explain the relevant standard.

The Respondents agree that a reasonable suspicion must be grounded in objective facts, but they take the position that this standard was met on the evidence before the Minister. [ 69 ] Before proceeding further, I note that the definition of " “infested” " , upon which the parties’ arguments rely, is found in the Regulations , not in the Act itself. Neither party has advanced any analysis supporting the application of the Regulations ’ definition to the use of the term " “infested” " in the Act .

Moreover, conscious that reasonableness review is concerned with the reasoning of the administrative decision-maker (see Vavilov at paras 83-87 ), I observe that neither the Ministerial Order nor the record before the Minister reveals any such analysis by the Minister. [ 70 ] That said, I also note that paragraph 47(1) (

h) of the Act authorizes the making of regulations for carrying out the purposes and provisions of the Act and prescribing anything that is to be prescribed under the Act , including regulations respecting the declaration under sections 11, 12 and 15 of places that are infested. In the absence of relevant analysis in the record or argument of the parties, I will not engage in further statutory

interpretation involving these sections.

However, as the parties are agreed on the application of the regulatory definition of " “infested” " and the resulting application of the reasonable suspicion standard, I will adopt that agreement for purposes of my analysis of the reasonableness of the Ministerial Order. [ 71 ] Adjudication of the Applicant’s arguments challenging the Ministerial Order involves principally an assessment of the evidence before the Minister that might support the required reasonable suspicion, so as to consider whether the Ministerial Order withstands reasonableness review within the meaning explained in Vavilov .

However, before turning to that evidentiary assessment, I will first address the Applicant’s argument that the Ministerial Order was issued based on an irrelevant consideration or for an improper purpose, related to what the Applicant describes as trade threats made by US officials.

(2) Whether the Ministerial Order was issued based on an irrelevant consideration or for an improper purpose [ 72 ] Similar to the explanation earlier in these Reasons in connection with the Suspensions, it is common ground between the parties that the Respondents’ interest in avoiding a new US Federal Order influenced the decision to issue the Ministerial Order. This conclusion is also clear from the record before the Court. For instance, in a Risk Management Document dated November 19, 2021 [RMD], which formed part of CFIA’s briefing package to the Minister in support of the proposed Ministerial Order, the Executive

Summary includes the following paragraph: With each new detection since 2014, the confidence in the CFIA’s ability to manage PW in PEI has been challenged and criticized by the United States (US). This led to the U.S. publishing a Federal Order to restrict import of seed, table stock and processing potatoes originating from PEI in 2015. The U.S, [sic] has indicated that it is considering additional risk mitigation measures to respond to the three PW detections in the past year by amending their Federal Order, prohibiting PEI seed potatoes.

They have requested a suspension of seed, table stock and processing potato exports from PEI until the investigations have been completed. [ 73 ] The Applicant relies on the principle explained in Apotex Inc v Canada (Health) , 2015 FC 1161 at paragraph 96 (aff’d 2018 FCA 147 ), that discretionary decisions are constrained by the confines of the enabling legislation and must be exercised in accordance with the rule of law, such that it is ultra vires for a minister to make a decision for a purpose other than that for which the power was granted by the legislature (see also Roncarelli v Duplessi , [1959] 2 SCR 121 at 140, 143).

[ 74 ] The Applicant submits that the Regulations constrain the issuance of a subsection 15(3) declaration to only two circumstances: (

a) actual presence of the pest on the place declared; or (

b) sufficient exposure of a place to a pest to ground a reasonable suspicion of the pests’ presence. The Applicant takes the position that the Minister was therefore acting ultra vires , and necessarily unreasonably, in issuing the Ministerial Order to give effect to CFIA’s commitment made to the US made in response to its trade threat. [ 75 ] In support of its argument, the Applicant also relies on internal CFIA documents called ICP Situation Reports, which documented developments following the October 2021 PW detections [Situation Report].

The Situation Report for October 29 and 30, 2021, includes the following entry following a meeting held between CFIA and APHIS on October 29: The US requested that the CFIA immediately implement a suspension of certification of export seed potatoes from PEI and to suspend shipments of PEI seed potatoes to other provinces. The CFIA will complete these actions as soon as possible, although the mechanism to stop seed potato shipments from PEI to other provinces is less clear.

It may require a temporary revocation of the seed potato status of PEI seed potatoes. [Applicant’s emphasis] [ 76 ] The Applicant observes that the Situation Report for November 9, 2021, similarly reflects that as of that date authorities were still being explored to address APHIS’ request regarding restrictions on movement of PEI potatoes to other parts of Canada.

In the Applicant’s submission, CFIA had put the proverbial cart before the horse, by committing Canada to a course of action for which it had no scientific basis and for which it had not yet identified legal authority. [ 77 ] As noted above, I will shortly turn to the assessment of the evidence before the Minister, including the scientific evidence, to assess its support for the reasonable suspicion required under subsection 15(3) of the Act .

However, the immediate question is whether the influence of the trade considerations reflected in the record translate into a conclusion that the Ministerial Order was issued for an improper purpose or based on an irrelevant consideration and is therefore unreasonable. [ 78 ] I am not convinced that the trade considerations that admittedly influenced the decision to issue the Ministerial Order were irrelevant to the decision.

The Minister is responsible for and has the overall direction of CFIA (see CFIA Act , s 4(1)), and CFIA is responsible for the administration and enforcement of the Act (see CFIA Act , s 11(1)). The purpose of the Act is to protect plant life and the agricultural and forestry sectors of the Canadian economy by preventing the importation, exportation and spread of pests and by controlling and eradicating quarantine pests in Canada (see Act , s 2). Previous authorities have recognized this statutory purpose (see Cropvise at para 78 , citing Adams v Borrel , [2008] NBCA 62 at paras 5, 44).

As such, CFIA’s mandate and the Minister’s sphere of responsibility clearly extend to the protection of Canadian economic interests, in so far as they may be affected by either the exportation or spread of pests, and the protection of such interests cannot be characterized as an improper purpose or an irrelevant consideration. [ 79 ] All that said, the existence of relevant economic considerations is clearly not itself sufficient to support issuance of a Ministerial Order under subsection 15(3) of the Act .

The authority conferred by that provision is permissive, and economic considerations of the sort raised in the trade-related discussions with the US in the fall of 2021 represent a consideration relevant to the exercise of that authority. However, the subsection 15(3) authority cannot be exercised unless the requirements of that subsection are met.

That is, consistent with both parties’ positions, the exercise of that authority must be supported by a reasonable suspicion, grounded in objective facts, that the pest is in the place declared as infested. [ 80 ] Before turning to assessing the reasonableness of the Ministerial Order from that perspective, I note that I have considered but am not persuaded by the Applicant’s arguments (explained above) surrounding the Respondents’ exploration of available legal authority, which ultimately resulted in issuance of the Ministerial Order.

As I have found CFIA’s concern about the implications of the 2021 PW detections for US trade to be a relevant consideration, I find nothing unreasonable in CFIA first identifying the need to address that concern and then focusing upon the legal authority available to it to implement a solution. [ 81 ] Also, while I appreciate that the Situation Report for October 29 and 30, 2021 reflects an intention on the part of CFIA to accede to US demands before the relevant legal authority was identified, this does not particularly assist the Applicant’s argument, as the authority and decision to issue the Ministerial Order is that of the Minister, not that of CFIA.

(3) Whether the evidence before the Minister supports issuance of the Ministerial Order (

a) Nature of reasonableness review [ 82 ] Turning to the parties’ arguments surrounding the reasonableness of the decision to issue the Ministerial Order, as informed by the evidence in the record before the Minister, I pause first to observe some general principles related to reasonableness review as explained by Vavilov . [ 83 ] As the Applicant emphasizes, reasonableness review aims to fulfil the constitutional role of judicial review to ensure that exercises of state power are subject to the rule of law (see Vavilov at para 82 ).

Administrative decision-makers are required to adopt a culture of justification (see Vavilov at para 14 ), such that a reviewing court can develop an understanding of the decision-maker’s reasoning process in order to determine whether the decision as a whole is reasonable.

To make this determination, the reviewing court asks whether the decision bears the hallmarks of reasonableness - justification, transparency and intelligibility - and whether it is justified in relation to the relevant factual and legal constraints bear on the decision (see Vavilov at para 99 ). [ 84 ] In the case at hand, the parties’ submissions focus on the legal constraints represented by subsection 15(3) of the Act , the provision on which the issuance of the Ministerial Order is based, the related regulatory definition of " “infested” " , and the resulting application of the reasonable suspicion standard.

In keeping with the required culture of justification, the Court’s assessment of whether the Ministerial Order is reasonable in the context of those legal constraints must focus upon the decision’s underlying rationale (see Vavilov at para 15 ), as informed by the record before the Court.

[ 85 ] The Ministerial Order itself does not contain an analysis of the question whether the requirements of section 15(3) of the Act are satisfied. However, I understand the parties to agree that, to develop an understanding of the reasoning underlying the decision and thereby assess its reasonableness, the Court should have recourse to the briefing package that CFIA placed before the Minister on November 19, 2021, in support of the issuance of the Ministerial Order.

The parties’ submissions focus principally upon three documents that formed part of this briefing package: A . a draft Plant Health Risk Assessment (often referred to as a Pest Risk Assessment [PRA]) finalized on November 18, 2021 (although still labelled as a draft), prepared by the Plant Health Risk Assessment Unit of CFIA’s Plant Health Science Division [Science Branch]. Mr.

Bailey’s affidavit describes the role of a PRA as providing the scientific basis upon which policy and program decisions can be made; B . the RMD (Risk Management Decision), prepared by the Policy and Programs Branch of CFIA [Policy Branch], which Mr. Bailey describes as setting out the pest risk management decision-making process for a particular issue; and C . a Memorandum to the Minister [Memorandum], which culminates with a recommendation that the Minister issue the proposed Ministerial Order. My analysis will similarly focus upon these documents. (

b) Applicant’s position [ 86 ] In support of its position that the evidence before the Minister did not set out objectively discernible facts from which she could form a reasonable suspicion of the presence of PW throughout PEI, the Applicant has provided considerable background on the history of detection and management of PW on PEI. Significant events in this history include the following: A .

Following the first detection of PW on PEI in October 2000, CFIA developed and implemented a three year operational work plan, pursuant to which it visually inspected every potato field on PEI and collected and tested soil samples for PW from every seed lot in the Province. Any fields in which PW was identified were quarantined; B . Between 2001 and 2008, CFIA conducted surveillance activities on close to 99% of all PEI’s potato fields; C . In 2009, based on the baseline data accumulated through the above initiatives, CFIA implemented the Management Plan, as described earlier in these Reasons; D .

Between 2001 and 2011, all additional detections of PW on PEI were in fields that were in some manner associated with the 2000 detection. However, in 2012, PEI experienced the first detections that were not linked with previous detections. This occurred again in 2014. The 2014 detection was also the first detection in a seed potato field (which represents a particular risk because of the inherent intention that seed potatoes be replanted in other fields). E .

As a result of the 2014 detection, the US issued the 2015 US Federal Order, as described earlier in these Reasons, which resulted in the implementation of CFIA’s Phytosanitary Export Certification Program; F . In October 2020, CFIA confirmed detections of PW in two fields, on a potato seed farm, that were unrelated to any previous detections. After these detections, CFIA began to rethink its approach to management of PW on PEI, and in January 2021 its Policy Branch initiated the preparation of the PRA by the Science Branch.

The Policy Branch also asked the Science Branch to prepare, in a shorter timeframe, a document answering particular questions to provide information on the probability of establishment and spread of PW; G . The response to this latter request, entitled " “Biological Information - Science Advice on the Probability of Establishment and Probability of Spread ofSynchytrium Endobioticum (Potato Wart)” " , was provided on May 31, 2021 [Biological Information]; H .

On October 1 and 14, 2021, CFIA confirmed the PW detections that gave rise to the regulatory initiatives that are the subject of this application for judicial review. These detections were on two separate processing potato fields on two separate farms, resulting from the producers submitting a suspect potato to CFIA for testing.

Both fields were associated with fields in which there had been previous detections. [ 87 ] With the benefit of this history, the documents referenced therein, and other documents in the record, the Applicant highlights the following data, which I do not understand the Respondents to contest: A . Prior to implementation of the Management Plan in 2009, 99% of PEI’s potato fields were surveyed for PW; B . Soil testing and surveillance are key components of the Management Plan. Between 2010 and 2019, 67,221 soil samples were collected and tested from 3054 Regulated Fields under the Plan; C .

Surveillance activities are also conducted under the Phytosanitary Export Certification Program, including as required by the 2015 US Federal Order. Between 2015 and 2019, 4900 soil samples were collected and tested from 375 Unregulated Fields to certify their PW-free status to importing countries; D . There are currently 1357 Regulated Fields to which the Management Plan applies, representing a total of 40,616 acres or 11% of the 350,000 acres of potato fields in the Province; E . Of the 1357 Regulated Fields, only 35 are Index Fields ( i.e. , Category A fields), in which PW has actually been detected.

Those 35 fields total 1663 acres or approximately 0.4% of the Province’s total potato field acreage. The other 1322 Regulated Fields ( i.e. , Category B, C, and D fields) are those having a regulated association with the Index Fields;

[ 88 ] The Applicant also places particular emphasis upon the contents of the Biological Information document. That document explains the variety of regulatory controls in place as of May 2021, from both general phytosanitary measures and measures specific to PW, that serve to prevent the spread of PW from Regulated Fields in PEI.

These measures include the following: A . the Canadian Seed Potato Certification Program, conducted by CFIA under the Seeds Act , RSC 1985, c S-8 , which includes crop inspections in the field, post-harvest tuber inspections, and subsequent certification for both domestic and export shipments; B .

Phytosanitary Export Certification, as required by the 2015 US Federal Order, which includes CFIA verifying that potatoes to be exported to the US were not grown in Regulated Fields and conducting field soil sampling; and C . additional import requirements and compliance agreements applicable to potato processing facilities. [ 89 ] One of the questions the Science Branch was asked to answer in the Biological Information document was how effective these then current regulatory controls and mitigation measures were in preventing human-mediated spread of PW within Canada.

In relying on that document, the Applicant emphasizes in particular its Appendix 4, bearing the title " “Summary of Associated Risks and Current Mitigation Measures for Regulated Fields” " . In the

section of the Biological Information document that discusses the Management Plan, it refers to Appendix 4 as including a

summary of the associated risks and mitigation measures for each Regulated Field category. The Applicant draws the Court’s attention to the fact that, for each of Categories A to D, in a column of Appendix 4 headed " “Effectiveness of current measures mitigating the associated risks” " , it contains statements (made at least in

part in the context of human-mediated spread) to the effect that current measures appear to appropriately mitigate the risk of spread. [ 90 ] To similar effect, the Conclusion in the PRA states that, within the context of the Management Plan and export certification, the potential risk of human-mediated spread from regulated areas in PEI is greatly reduced for all pathways. The Conclusion also states that the rate of detection of PW in PEI has not accelerated over the past 20 years.

The Applicant also notes that, when discussing the spread of PW within PEI from 2000 to 2020, the PRA states that, because it can take many years of monitoring and testing to detect the presence of PW in fields that have been regulated as an adjacent, primary contact or other contact field, new findings of PW within the regulated area do not necessarily indicate that the measures in place are ineffective at mitigating spread. [ 91 ] The Applicant argues that the Management Plan has been remarkably effective at detecting and containing the spread of PW. It notes Mr.

Donald’s evidence that there have not been any detections of PW attributable to PEI potatoes in any markets outside PEI. The Applicant submits that the October 2021 detections were not unexpected, as these detections were in Regulated Fields, and any such field has a documented risk of exposure to PW.

Overall, the Applicant asserts, based on the history of PW on PEI and the evidence contained in the work of the Science Branch, that the Minister had no objectively discernible facts before her from which she could form a reasonable suspicion that PW was present on any of the Unregulated Fields. [ 92 ] The Applicant also finds support for its position in its counsel’s cross-examination of Mr. Bailey, citing the following questions and answers: Q. But the only area that you have any evidence to even suspect potato wart on are the regulated fields, right? A.

I would say that at this point you are correct, but there are many experts that feel that there is likely a low prevalence in the island of potato wart, if not some more extreme views feel that it may be endemic to the island. …. Q. And you will agree with me that on the remaining 88% of the acreage in PEI, the remaining … roughly 8,300 fields in PEI, there is no evidence of any potato wart present on those fields, right? A. If I follow your math correctly, then I would say yes, you are correct. But I don’t want to make a decision based on, sort of, your off-the-cuff math.

But the statement is relatively correct. …. Q. So, again, they are called non-regulated because CFIA has no evidence that there has been any contact, or reason to suspect that potato wart would be on those fields, right? A. That is right, but we have not done extensive surveying of those fields to know that for sure. …. Q. Yes, you agreed with the Science … your Science unit’s analysis and conclusion that the current risk mitigation measures were adequate to prevent the spread of potato wart, right? A. That is correct. …. Q.

Yes, I said the Science department, and you agreed with it, as you have said to me a couple of times here, said that the current regulatory measures were effective at preventing the spread of potato wart, right? A. That is correct. Q. So, the only thing that changes at this time is the risk and appetite of the U.S., right? A. And our risk tolerance is changing as well. If you are referring to the United States, certainly theirs is at a much

heightened level, much more heightened level than ours. (

c) Respondents’ position [ 93 ] The Respondents dispute the Applicant’s characterization of the Management Plan as having been " “remarkably effective” " at containing PW. They argue that, since the initial detection and throughout the time the Plan has been in place, the number of PW detections and the area of implicated land have grown considerably, including detections in every county in PEI. Relying on an affidavit affirmed by Ms.

Cheryl Corbett, the National Manager of the Plant Health Risk Assessment unit in CFIA’s Science Branch, the Respondents note that the area of land regulated under the Management Plan as of August 8, 2022, has grown to 40,616 acres, compared to 7836 acres in 2009 when the Plan was adopted. Ms.

Corbett notes that the October 2021 detections alone increased the regulated area by 10% and the number of fields requiring soil sampling by 23%. [ 94 ] The Respondents also dispute the Applicant’s position that the October 2021 detections should not have been regarded as particularly alarming because they were on Regulated Fields where there is a documented risk of exposure to PW. Mr.

Bailey explains that the fact these detections occurred in Category D fields was concerning to CFIA (and APHIS), precisely because they had undergone multiple years of surveillance under the Management Plan and were therefore thought to pose a lower risk of PW transmission. The October 2021 detections did not result from surveillance under the Plan but rather from growers submitting suspect potatoes to CFIA. [ 95 ] Mr. Bailey explains that, following the 2021 detections, CFIA expedited its review of the management of PW that had been initiated after the October 2020 detection.

This resulted in the preparation of the PRA and RMD by CFIA staff. Although it did not include data surrounding the October 2021 detections, the Respondents emphasize in particular the following information provided in the PRA: A . The highest risk pathway for the spread of PW is the planting of infected potato tubers ( i.e., seed potatoes); B . The Management Plan does not impose any requirements for cleaning and disinfection of equipment or vehicles from a Category D field; and C .

The potential economic and trade implications of PW are high, as a single detection can have devastating and far-reaching consequences. [ 96 ] Referencing the RMD, the Respondents highlight the following paragraph in its Executive

Summary: Following the 2020 and 2021 detections, the CFIA undertook a detailed review of the management of PW and science to update its pest risk assessment.

This work identified areas of program limitations and recommended improvements; the scope of the regulated area must increase to address limitations of detection and the seed potato pathway must be further controlled to ensure PW does not spread beyond the province. [ 97 ] Although it canvassed several pest risk management options, ultimately the RMD recommended the use of the Ministerial Order as a means of acting quickly to mitigate the risk of spread of PW from PEI.

The Memorandum that accompanied the PRA and RMD also identified more than one regulatory option but recommended the use of the Ministerial Order. (

d) Analysis of Reasonableness of Ministerial Order [ 98 ] As a starting point in analysing the reasonableness of the Ministerial Order, it is important to repeat that such analysis must be conducted based on the evidence that was before the Minister when the decision was made. As such, there are limits to the usefulness of the evidence of the parties’ respective deponents, both in their affidavits and in their cross-examinations, other than of course to the extent they append to their affidavits documentation that was before the Minister.

Neither party has challenged the admissibility of the other’s affidavits, and I accept that such evidence can be admissible to the Court as background information to assist it in understanding the facts and issues on which the application is based. However, in the absence of a similar evidentiary foundation in the record before the Minister, such evidence cannot form the basis for a conclusion as to the reasonableness of the decision under review. [ 99 ] By way of example, I noted above the Respondents’ reference to Mr.

Bailey’s explanation that the fact the October 2021 detections occurred in Category D fields was concerning to CFIA (and APHIS), precisely because they had undergone multiple years of surveillance under the Management Plan and were therefore thought to pose a lower risk of PW transmission. The Court cannot rely on reasoning offered by Mr. Bailey in his affidavit evidence in assessing the reasonableness of the Ministerial Order.

However, the Respondents’ submissions also emphasized the following passage in the PRA, which forms the final paragraph under the heading " “Risk Rating for Probability of Spread” " and subheading " “Human-Mediated Spread Potential” " in the PRA’s Conclusion: The management plan does not provide clear guidance on requirements for Category D fields for processing and table stock potato tubers and associated soil, bulk soil and soil associated with movement of equipment/vehicles.

While surveillance is required for the first susceptible variety grown, there is no notice of restriction placed on Category D fields to prohibit the movement of soil or to require cleaning and disinfection of equipment and vehicles from these fields.

As a result, the mitigation measures that reduce risk in Category D fields are mainly a result of general phytosanitary measures (e.g. ineligibility for domestic seed potato movement through the Seed Potato Certification Program; ineligibility for export through the Phytosanitary Export Program), rather than specific restrictions for those fields that are listed in the management plan. Given the high overall number of Category D fields, any additional measures imposed within Category D would impact a large number of fields.

However, given the limits of detection of soil and visual tour inspections, a Category D field could be harbouring a sub-detectable population of PW spores that could be spread out of that field by those human- mediated activities which are only restricted in Category A, B or C fields. [ 100 ] I read this passage as explaining the same concern as identified in Mr. Bailey’s affidavit, which the Respondents submit supports the reasonableness of the Ministerial Order. This reasoning forms part of the record before the Minister, and I will return to it later in my analysis.

[ 101 ] As noted above, the Applicant also relies substantially on Mr. Bailey’s evidence, as it argues that its counsel obtained admissions from Mr. Bailey in cross-examination that undermine the Respondents’ position that the Minister was presented with objectively discernible facts from which she could form a reasonable suspicion of the presence of PW throughout PEI. Again, Mr. Bailey’s cross- examination was not before the Minister when she made the decision to issue the Ministerial Order.

As such, it is difficult to understand how that evidence can influence substantively the Court’s assessment of the reasonableness of the decision within the meaning prescribed by Vailov . [ 102 ] Moreover, I am not convinced that Mr. Bailey’s evidence supports the position that the Applicant argues it does, i.e. , that there was no scientific basis on which to declare the Province infested with PW or to prohibit the movement of PEI seed potatoes to the rest of Canada. While Mr.

Bailey agrees with the Applicant’s counsel’s proposition that there is no evidence to support a suspicion of the presence of PW on Unregulated Fields, he qualifies his testimony by noting that CFIA has not done extensive surveying of Unregulated Fields to know that for sure. I read his answers as related to data confirming PW detections, not as disagreeing with the evidence of the Science Branch in the PRA as to the potential for the lack of restrictions on Category D fields to result in the spread of PW through human-mediated activities. [ 103 ] Similarly, when Mr.

Bailey expressed agreement with the Science Branch’s conclusion that the current regulatory measures were effective at preventing the spread of PW, he qualified that testimony by explaining that CFIA’s risk tolerance was changing. Indeed, when the Applicant’s counsel posed this question, he noted that Mr. Bailey had answered it previously. From reviewing the transcript of Mr. Bailey’s cross-examination, it appears that the earlier questions surrounded whether Mr. Bailey agreed with the opinions expressed by the Science Branch in Appendix 4 of the Biological Information document dating to May 2021.

In addition to noting that the document upon which he was being questioned indicated that it had been superseded, Mr. Bailey explained his understanding that the risk mitigation was considered to be sufficient " “at the time” " . His evidence in relation to the opinion expressed in Appendix 4, about Category 4 fields in particular, reads as follows: Q. Okay. And finally, for the category D fields, the current measures appear to appropriately mitigate the risk of spread for the high risk pathways, which were the seed potato tubers and associated soil, right? A. Yes.

Now, there may be a caveat in here that because we found it in the D fields, that it changes some of the risk assessment in D fields, and that may be what is different here. [ 104 ] Again, I do not read Mr.

Bailey’s cross-examination as disagreeing with the evidence of the Science Branch in the PRA as to the risk of spread of PW from Category D fields. [ 105 ] In support of its position that the issuance of the Ministerial Order was unreasonable, the Applicant asserts that the opinions expressed by the Science Branch in the Biological Information document, and its related conclusions, were not incorporated into the PRA or placed before the Minister. However, as Mr.

Bailey noted in his cross-examination testimony, the Biological Information document bears a watermark reading " “Superseded by request 2021-051” " , which I understand to be a reference to the PRA. This is consistent with Ms.

Corbett’s explanation in her affidavit as to the intention that information in the Biological Information document related to the establishment and spread of PW be integrated into the PRA. [ 106 ] While Appendix 4 is not included in the PRA, the opinions expressed in the Conclusion sections of both the Biological Information document in the PRA appear consistent, although the PRA adds the statement that, given the limits of detection of soil and visual tuber inspections, a Category D field could be harbouring a sub-detectable population of PW spores that could be spread out of that field by those human-mediated activities that are only restricted in Category A, B or C fields.

To the extent it is the Applicant’s position that the Minister was deprived of relevant information that militated against issuance of the Industrial Order, I find no merit to that position. [ 107 ] In challenging the reasonableness of the Ministerial Order, Applicant also relies on statements made in the PRA itself, to the following effect; A . The soil sampling required through the Phytosanitary Export Certification Program complements domestic soil sampling related to the Management Plan.

By increasing the total number of soil samples and number of fields sampled, this increases the confidence that PW is absent in Unregulated Fields and the confidence in early detection in any fields that have a low density of spores; B . Unregulated Fields, which have no history of connection to an Index Field, represent a risk significantly lower than Regulated Fields; C . It can take many years of monitoring and testing to detect the presence of PW in fields that have been regulated as an adjacent or primary contact or other contact field.

Therefore, new findings of PW within the regulated area do not necessarily indicate that the measures in place are ineffective at mitigating spread; D . Given the current mitigation measures in place to prevent the domestic spread of PW, the human-mediated potential spread of this pathogen is low; E . Within the context of the Management Plan and export certification, the potential risk of human mediated spread from regulated areas in PEI is greatly reduced for all pathways.

The rate of detection of PW on PEI has remained fairly consistent over the past 20 years, with very few detections that have no linkages to a previous Index Field. [ 108 ] The difficulty with the Applicant’s position is that it amounts to a request that the Court reweigh particular evidence that was before the Minister. However, this is not the Court’s role in judicial review of administrative decision-making (see, Vavilov at para 125 ; Andrews v Public Service Alliance of Canada , 2022 FCA 159 at para 29 ).

Rather, as canvassed earlier in these Reasons, the Court’s task is to assess whether the decision is justified, transparent and intelligible in the context of the legal and factual constraints that bear upon the decision. [ 109 ] As previously noted, the Ministerial Order itself does not contain reasoning underlying a reasonable suspicion of the presence of

PW in Unregulated Fields, and the parties agree that the Court should have recourse to the record before the Minister in an effort to understand and assess such reasoning. The Applicant refers in particular to the following paragraph of the Memorandum: Due to the impact of this pest, the size of the land where PW has been detected and the need to act quickly to control the human-assisted movement of the pest, a [Ministerial Order] is the recommended option. [ 110 ] The Applicant accepts that the impact of PW is severe.

However, it argues that the suggestion that the size of the land where PW has been detected supports the issuance of the Ministerial Order is a mischaracterization of the facts, as such land represents only 0.4% of the total approximately 350,000 acres of potato fields on PEI. The Applicant also disputes that there is a need to act quickly to control the human-assisted movement of PW. [ 111 ] While I appreciate that the briefing package placed before the Minister culminates with the Memorandum, it is a six-page document that is clearly

summary in nature and cannot be read without further reference to the larger briefing package including the PRA and RMD. In relation to the size of the land where PW has been detected, the PRA contains the figure to which the Applicant refers, i.e. , that such land makes up approximately 0.4% of PEI potato production land. Accordingly, this information was before the Minister. The RMD states that each new detection dramatically increases the resources required to regulate larger restricted areas and testing of soil samples to maintain market access.

It also explains that the October 2021 detections increased the restricted area by 10% and the number of fields requiring soil sampling by 23%. Considering the briefing package as a whole, I cannot conclude that the Memorandum’s reference to land size represents mischaracterized or misleading information. [ 112 ] Similarly, the Memorandum’s reference to the need to act quickly to control the human-mediated spread of PW must be read in conjunction with the other briefing documents. In particular, I return to the paragraph quoted above from the PRA’s Conclusion

section under the heading " “Risk Rating for Probability of Spread” " and subheading " “Human-Mediated Spread Potential” " . It is clear from that paragraph that the Science Branch was expressing concern about risks arising from the manner in which the

[…]