FOSTER FARMS LLC v. FOSTER POULTRY FARMS,, 2020 FC 656

Date: 20200603 Docket: T-967-19 Citation: 2020 FC 656 Ottawa, Ontario, June 3, 2020 PRESENT: Mr. Justice Gascon BETWEEN: FOSTER FARMS LLC AND FOSTER POULTRY FARMS, A CALIFORNIA CORPORATION Applicants and MINISTER OF INTERNATIONAL TRADE DIVERSIFICATION Respondent JUDGMENT AND REASONS I. Overview [ 1 ] The Applicants, Foster Farms LLC and Foster Poultry Farms [together, Foster Farms], operate poultry farming corporations in the United States and Canada and import poultry products in Canada.

Following a verification of Foster Farms’ import activities in Canada, the Canada Border Services Agency [CBSA] discovered that, between 2014 and 2016, multiple shipments of chicken products were misclassified by Foster Farms at the time of their importation into Canada. The reclassification of the imported goods resulted in a duty assessment exceeding $8 million. [ 2 ] Foster Farms applied to the Minister of International Trade Diversification [Minister] to obtain retroactive supplemental import authorization permits [SIPs] for those shipments of chicken products [Permit Application].

In a d ecision issued in May 2019 [Decision], the Executive Director for Supply-Managed Trade Controls at Global Affairs Canada, in her capacity as delegate for the Minister, denied Foster Farms’ request, as the circumstances regarding the importation of the improperly classified chicken products did not qualify as either exceptional or extraordinary. [ 3 ] Foster Farms have now brought an application for judicial review challenging the Decision. Foster Farms claims that, in rendering the Decision, the Minister breached his duty of procedural fairness and natural justice in four different ways.

Foster Farms contend that: 1) the Minister failed to provide them notice of the assertion, set out in the Memorandum for Action prepared for this matter [MOA], that Foster Farms had not explained the reason for their customs classification error; 2) the MOA failed to refer to the facts, mentioned by Foster Farms in their Permit Application, showing the reasons for having made an inadvertent error when importing the chicken products; 3) the Minister failed to provide them notice of the assertion, also set out in the MOA, that requests for SIPs which are based upon the existence of " “extraordinary and unusual circumstances” " (as was Foster Farms’ Permit Application) are generally granted only where the chicken products are in short or limited supply; and 4) the Minister failed to properly consider the Permit Application in light of the applicable administrative policy, in that he conflated two grounds contained in such policy, namely, short and limited supply and extraordinary and unusual circumstances. [ 4 ] Foster Farms ask this Court to declare the Minister’s Decision invalid or unlawful, to quash it, set it aside and refer it back to the Minister for redetermination. [ 5 ] Foster Farms submit that the sole issue raised by this application for judicial review is whether the Minister breached his duty of procedural fairness and natural justice by making the Decision in a manner that warrants vitiating his conclusions.

At the hearing before this Court, Foster Farms confirmed that they were solely challenging the Decision on grounds of procedural fairness, even though some of their arguments appeared to question, at least indirectly, the reasonableness of the Decision. The Minister responds that Foster Farms’ application should be dismissed as no breach of procedural fairness tainted the Decision. In addition, the Minister maintains that the Decision was reasonable. [ 6 ] For the reasons that follow, I will dismiss Foster Farms’ application for judicial review.

I detect no breach of procedural fairness in the decision-making process followed by the Minister in the circumstances. The Minister’s Decision is highly discretionary and the level of procedural fairness owed to Foster Farms falls at the lower end of the spectrum. In this context, Foster Farms were not entitled to receive the type of prior notices they claim was owed to them by the Minister. Nor were there grounds to justify their alleged legitimate expectation to receive a preliminary decision from the Minister.

I am also satisfied that the Decision was justified and intelligible, and that the Minister considered all relevant information in his Decision. The reasons contained in the May 2019 letter and in the underlying MOA demonstrate that the Decision is based on an internally coherent and rational chain of analysis, and that it is justified in relation to the facts and law that constrain the Minister. There are therefore no grounds to justify the Court’s intervention.

II. Background A. Factual context [ 7 ] Between 2014 and 2016, Foster Farms imported around 2.3 million kilograms of certain chicken products into Canada. These chicken products were food preparations based on meat from broiler chicken, and are known as corn dogs. [ 8 ] Following the verification of Foster Farms’ import activities, CBSA found that multiple shipments of these chicken products had been incorrectly identified as " “spent fowl” " (a non-import controlled product) rather than " “broiler chicken” " (an import controlled product) at the time of their importation into Canada.

" “Spent fowl” " is a duty-free product, whereas " “broiler chicken” " is subject to duties at rates ranging from 238 to 253% when imported without a permit from the Minister. Further to the verification, the CBSA required Foster Farms to correct the classification and issued a duty assessment in the amount of $8,263,089.25 [Assessment Amount].

Foster Farms admit that the chicken products at issue were misclassified. [ 9 ] On August 10, 2018, Foster Farms submitted its Permit Application, requesting that the Minister issues retroactive SIPs pursuant to subsection 8.3(3) of the Export and Import Permits Act , RSC 1985, c E-19 [ EIPA ]. The issuance of the said SIPs would allow for the duty assessment to be substantially reduced. The Permit Application outlined the Minister’s jurisdiction to grant a permit, detailed the classification of the chicken products, and described the business environment related to the import and sale of corn dogs in Canada.

In the Permit Application, Foster Farms requested that the Minister make the decision relating to their request. [ 10 ] In the Permit Application, Foster Farms laid out four grounds supporting their request for retroactive SIPs: 1) the goods were chicken corn dogs manufactured largely from Canadian chicken inputs which were further processed in the United States; 2) Foster Farms had not made an application for an import permit authorization allocation because of inadvertence and their mistaken belief that the goods were entitled to duty-free tariff treatment; 3) Foster Farms was eligible for partial duty relief under the Canadian Goods Abroad Program during the relevant period; and 4) there were " “extraordinary and unusual circumstances” " within the meaning of the Notice to Importers No. 865 - Chicken and Chicken Products - Supplemental Imports (Items 96 to 104 on the Import Control List) dated December 15, 2014 [Notice 865], warranting the granting of the Permit Application.

Throughout their application letter, Foster Farms notably insisted on the fact that the meat portion of the imported corn goods was primarily comprised of chicken inputs originating from Canada and that granting the SIPs would not likely adversely affect Canadian businesses. [ 11 ] Upon receipt of the Permit Application, Mr. Blair Hynes, deputy director and acting executive director within the Supply-Managed Trade Controls Division of Global Affairs Canada [GAC], delegated the primary review of the file to Mr.

Guy Giroux, the officer responsible for the administration of the tariff rate quota [TRQ] and supplemental import policies for chicken and chicken products under the EIPA . [ 12 ] On August 16, 2018, at the request of Foster Farms, Mr. Hynes held a conference call with them and their counsel. During this call, Mr. Hynes asked Foster Farms to provide some further information in support of their Permit Application.

Foster Farms submitted the additional materials requested by GAC on August 21, 2018, and updated the said materials on September 26, 2018. [ 13 ] After evaluating the further materials and Foster Farms’ Permit Application, Mr. Giroux drafted the MOA in which he recommended that the Minister rejects the request and denies issuing the retroactive SIPs. The MOA recommended to refuse the requested SIPs because the Permit Application did not meet the " “extraordinary or unusual circumstances” " component of the supplemental imports policy for chicken and chicken products. [ 14 ] In the MOA, Mr.

Giroux referred to the Minister’s broad discretion with respect to the issuance of retroactive SIPs, specifying that the exercise of such discretion must take into account all relevant factors. He notably referred to the purpose for which the chicken products at issue were placed in the Import Control List , CRC, c 604 [ Import Control List ] at ss 101, 110, namely to " “support supply management” " . [ 15 ] In his considerations for the recommendation to the Minister, Mr.

Giroux indicated that SIPs sought for " “extraordinary or unusual circumstances” " have normally been authorized to address two types of situations: 1) " “to meet short to medium term Canadian market needs resulting from emergencies such as destruction of Canadian poultry flocks due to avian influenza” " ; and 2) " “to address chronic lack of domestic supply of products that may not be domestically produced in Canada, such as ultra-kosher dairy products” " . Mr.

Giroux then referred to the rationale provided by Foster Farms for their failure to initially request import permits and noted that Foster Farms provided " “no explanation as to why the finished product manufactured with Canadian broiler chicken imported by Foster Farms was declared as spent fowl at the time of re-export into Canada” " . Mr. Giroux concluded that the circumstances presented by Foster Farms did not " “qualify as either exceptional or extraordinary in so far as these considerations are normally applied” " , and did not warrant the issuance of retroactive SIPs. B.

The Decision [ 16 ] The Minister’s Decision to refuse the Permit Application and the requested SIPs was communicated by a short letter , extending over one page and a half. [ 17 ] In the Decision, the Minister first outlined the law and regulations applicable to Foster Farms’ request, namely, the EIPA , its regulations, and the Minister’s policies set out in the Notice 865. The Minister then explained that the Notice 865 provides for six categories of supplemental import authorizations for chicken and chicken products. These categories notably include, under

section 10.1 of the Notice 865, authorization to import chicken and chicken products under " “extraordinary or unusual circumstances” " . The Minister noted his understanding that Foster Farms had incorrectly identified multiple shipments of chicken products as spent fowl rather than broiler chicken at the time of import into Canada, and that Foster Farms were requesting the SIPs under this " “extraordinary or unusual circumstances” " component of the Notice 865.

[ 18 ] After laying out the applicable law, the Minister then listed the four grounds advanced by Foster Farms for the issuance of the retroactive SIPs, as follows: 1) The goods were manufactured at Foster Farms’ manufacturing facility using broiler chicken inputs, which originated from Canada; 2) Foster Farms did not submit an application for a chicken or a chicken product import allocation because of inadvertence and not as a result of an intention to deceive; 3) During the relevant period, Foster Farms could have applied for partial duty relief in respect of the goods under the Canadian Goods Abroad Program; and 4) There are “extraordinary or unusual circumstances” within the meaning of Notice 865 that warrant the issuance of the requested retroactive SIPs. [ 19 ] The Minister explained that requests for SIPs invoking extraordinary and unusual circumstances are evaluated on their individual merits.

The Minister specified that such requests " “are normally authorized to address short to medium term Canadian market needs resulting from emergencies such as destruction of Canadian poultry flocks due to avian influenza, or to address chronic lack of domestic supply of products that may not be domestically produced in Canada” " . [ 20 ] The Minister concluded that Foster Farms’ circumstances regarding the importation of improperly classified chicken products into Canada, as presented in their Permit Application, did not qualify as either exceptional or extraordinary, and thus denied Foster Farms’ request. C.

Relevant statutory framework [ 21 ] Imports of chicken and chicken products into Canada are subject to controls under the EIPA and the Import Control List. Accordingly, an import permit is required for shipments of chicken and chicken products to enter Canada. Import permits are generally issued to allocation holders under a TRQ. Within the TRQ, chicken and chicken products may be imported at a low rate of duty. By contrast, imports in excess of the TRQ are normally subject to high duty rates ranging from 238% to 253%.

The Minister may, at his discretion, issue SIPs for imports of chicken and chicken products outside the TRQ and apart from the import access quantity. [ 22 ] The relevant provision of the EIPA is

section 8.3 , and more specifically subsection 8.3(3) dealing with SIPs. The provision reads as follows. Import permits — allocation " Licences en cas d’allocation " 8.3

(1) Notwithstanding subsection 8(1), where goods have been included on the Import Control List for the purpose of implementing an intergovernmental arrangement or commitment and the Minister has determined an import access quantity for the goods pursuant to subsection 6.2(1), the Minister shall issue a permit to import those goods to any resident of Canada who has an import allocation for the goods and applies for the permit, subject only to compliance with and the application of such regulations made pursuant to

section 12 as it is reasonably necessary to comply with or apply in order to achieve that purpose. " 8.3 (1) " "

Malgré le paragraphe 8(1), en cas d’inscription de marchandises sur la liste des marchandises d’importation contrôlée aux fins de la mise en œuvre d’un accord ou d’un engagement intergouvernemental, s’il a déterminé la quantité de marchandises bénéficiant du régime d’accès en application du paragraphe 6.2(1), le ministre délivre à tout résident du Canada qui a une autorisation d’importation et qui en fait la demande une licence pour l’importation des marchandises, sous la seule réserve de l’observation des règlements d’application de l’article 12 qui sont nécessaires à ces fins. " Import permits — no allocation " Licences en l’absence d’allocation "

(2) Notwithstanding subsection 8(1), where goods have been included on the Import Control List for the purpose of implementing an intergovernmental arrangement or commitment and the Minister has determined an import access quantity for the goods pursuant to subsection 6.2(1), but has not issued import allocations for the goods, the Minister shall " (2) " "

Malgré le paragraphe 8(1), en cas d’inscription de marchandises sur la liste des marchandises d’importation contrôlée aux fins de la mise en œuvre d’un accord ou d’un engagement intergouvernemental, s’il a déterminé la quantité de marchandises bénéficiant du régime d’accès en application du paragraphe 6.2(1), mais n’a pas délivré d’autorisation d’importation, le ministre délivre : " (

a) if in the opinion of the Minister the import access quantity has not been exceeded, issue a permit to import those goods to any resident of Canada who applies for the permit, or " a) " " s’il est d’avis que la quantité de marchandises n’a pas été atteinte, à tout résident du Canada qui en fait la demande une licence pour leur importation, sous la seule réserve de l’observation des règlements d’application de l’article 12 qui sont nécessaires à ces fins; " (

b) issue generally to all residents of Canada a general permit to import those goods, subject only to compliance with and the application of such regulations made pursuant to

section 12 as it is reasonably necessary to comply with or apply in order to achieve that purpose. " b) " " aux résidents du Canada une licence de portée générale autorisant l’importation des marchandises, sous la seule réserve de l’observation des règlements d’application de l’article 12 qui sont nécessaires à ces fins. " Supplemental import permits " Licences — quantité additionnelle "

(3) Notwithstanding subsection 8(1) and subsections (1) and (2) of this section, where goods have been included on the Import Control List and the Minister has determined an import access quantity for the goods pursuant to subsection 6.2(1), the Minister may issue " (3) " "

Malgré le paragraphe 8(1) et les paragraphes (1) et (2), en cas d’inscription de marchandises sur la liste des marchandises d’importation contrôlée, s’il a déterminé la quantité de marchandises bénéficiant du régime d’accès en application du paragraphe 6.2(1), le ministre peut " (

a) a permit to import those goods in a supplemental quantity to any resident of Canada who applies for the permit, or " a) " " délivrer à tout résident du Canada qui en fait la demande une licence pour l’importation des marchandises en quantité additionnelle ou " (

b) generally to all residents of Canada a general permit to import those goods in a supplemental quantity, subject to such terms and conditions as are described in the permit or in the regulations. " b) " " aux résidents du Canada une licence de portée générale autorisant leur importation en quantité additionnelle, sous réserve des conditions prévues dans la licence ou les règlements. " [ 23 ]

Section 8.5 of the EIPA further allows the Minister to issue retroactive permits, including SIPs. [ 24 ] Turning to the Notice 865, it sets out the policies and practices pertaining to the issuance of supplemental import authorizations for chicken and chicken products. It identifies six categories of authorizations. The first five relate to specific situations relating to domestic market shortages, domestic sourcing constraints, manufacture of new products, re-exports and test marketing for new products. The last category covers authorizations under " “extraordinary or unusual circumstances” " (the category under which Foster Farms made their Permit Application).

Section 10 of the Notice 865 relates to those extraordinary or unusual circumstances, and reads as follows.

10. Authorization to ImportChicken and Chicken Productsunder Extraordinary orUnusual Circumstances "10. Autorisation d’importer dupoulet et des produits du pouleten cas de circonstancesextraordinaires ou inhabituelles" 10.1. Other applications forauthorization for supplementalimports due to extraordinary orunusual circumstances will beevaluated on their individualmerits. "10.1. ""Les demandesd’autorisation d'importationssupplémentaires d'un produitprésentées dans des circonstancesextraordinaires ou inhabituellesseront évaluées chacune selon sonmérite propre. " D.

Standard of review [25] In Canada (Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov], the Supreme Court of Canada [SCC] set out a revisedframework for determining the standard of review with respect to the merits of administrative decisions (Vavilov at para 10).

In thatdecision, the SCC articulated a new approach to determining the applicable standard of review, holding that administrative decisionsshould presumptively be reviewed on a standard of reasonableness, unless either the legislative intent or the rule of law requires that thestandard of correctness be applied (Vavilov at paras 10, 17). [26] The Vavilov decision did not deal directly with issues of procedural fairness, and the approach to be taken on this front has thereforenot been modified (Vavilov at para 23).

It has typically been held that correctness is the applicable standard of review for determiningwhether a decision maker complies with the duty of procedural fairness and the principles of fundamental justice (Mission Institution vKhela, 2014 SCC 24 at para 79; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 [Khosa] at para 43). [27] However, the Federal Court of Appeal [FCA] has recently affirmed that questions of procedural fairness are not truly decidedaccording to any particular standard of review.

Rather, it is a legal question for the reviewing courts, and the courts must be satisfied thatprocedural fairness has been met.

When the duty of an administrative decision maker to act fairly is questioned or a breach offundamental justice is invoked, it requires the reviewing courts to verify whether the procedure was fair having regard to all of thecircumstances (Lipskaia v Canada (Attorney General), 2019 FCA 267 at para 14; Canadian Airport Workers Union v InternationalAssociation of Machinists and Aerospace Workers, 2019 FCA 263 at paras 24-25; Perez v Hull, 2019 FCA 238 at para 18; CanadianPacific Railway Company v Canada (Attorney General), 2018 FCA 69 [CPR] at para 54).

This assessment includes the five, non-exhaustive contextual factors set out by the SCC in Baker v Canada (Minister of Citizenship and Immigration), (SCC),[1999] 2 SCR 817 [Baker] (Vavilov at para 77).

It is up to the reviewing courts to make that determination and, in conducting thisexercise, the courts are called upon to ask, "“with a sharp focus on the nature of the substantive rights involved and the consequences foran individual, whether a fair and just process was followed”" (CPR at para 54). [28] Therefore, it is fair to say that the ultimate question raised when procedural fairness and alleged breaches of fundamental justice arethe object of an application for judicial review is not so much whether the decision was "“correct”".

It is rather whether, taking intoaccount the particular context and circumstances at issue, the process followed by the decision maker was fair and offered the affectedparties a right to be heard and a full and fair opportunity to know the case they have to meet and to respond to it (CPR at para 56; Huangv Canada (Citizenship and Immigration), 2018 FC 940 at paras 51-54). III.

Analysis [29] As mentioned above, Foster Farms allege that, in rendering his Decision, the Minister breached the applicable requirements ofprocedural fairness in four different ways: 1) by failing to provide them notice of the assertion, set out in the MOA to the Minister, thatthey had not explained the reasons for their customs classification error; 2) by failing to refer, in the MOA, to the facts contained in thePermit Application showing that they had made an inadvertent error when importing the chicken products; 3) by failing to provide themnotice of the position, also set out in the MOA and in the Decision, that permit applications seeking relief based on "“extraordinary orunusual circumstances”" were generally granted where the goods are in short supply or limited supply; and 4) by failing to properlyconsider the Permit Application in light of the policy set out in the Notice 865 and by conflating two different grounds contained in suchpolicy, namely, short or limited supply and extraordinary or unusual circumstances. [30] Despite the fact that, at the hearing before the Court, Foster Farms reiterated that they were only raising procedural fairnessconcerns against the Decision, it became apparent, during their counsel’s oral submissions, that many of their arguments in factquestioned the substance of the Decision and its reasonableness.

I will therefore discuss both the procedural fairness and reasonablenessissues in these reasons. A. Preliminary matter [31] A preliminary matter must however be addressed before dealing with the issues disputed by Foster Farms. On October 24, 2019,the Minister brought a motion to strike portions of Mr. Satinder Bains’ affidavit [Bains Affidavit], which was sworn July 26, 2019 andsubmitted by Foster Farms in support of their application for judicial review. The Minister claims that certain portions of the BainsAffidavit contain material that is irrelevant, opinion and/or argumentative.

During the hearing of this application before the Court, both

parties confirmed relying entirely on their written submissions on this preliminary matter. As such, I have decided this issue in light ofthe arguments made by the parties in their motion materials. [32] The Minister first maintains that the Bains Affidavit contains information which does not fall within any category of allowableaffidavit evidence on an application for judicial review.

It is well recognized that, in applications for judicial review, the general rule isthat materials which were not in front of the decision maker cannot be considered by the reviewing court, except for limited exceptions(Gittens v Canada (Attorney General), 2019 FCA 256 at para 14; Association of Universities and Colleges of Canada v CanadianCopyright Licensing Agency (Access Copyright), 2012 FCA 22 [AUCC] at paras 19-20).

Those limited exceptions extend to materialsthat: 1) provide general background assisting the reviewing court in understanding the issues; 2) demonstrate procedural defects or abreach of procedural fairness in the administrative process; or 3) highlight a complete absence of evidence before the decision maker(Bernard v Canada (Revenue Agency), 2015 FCA 263 at paras 23, 25; AUCC at paras 19-20; Nshogoza v Canada (Citizenship andImmigration), 2015 FC 1211 [Nshogoza] at paras 16-18). [33] The Minister further submits that, even if they were to fit within these limited exceptions and be admissible despite not beingmaterials which were before the Minister at the time of the Decision, numerous paragraphs of the Bains Affidavit are inadmissiblebecause they contain opinion and argument, contrary to Rule 81 of the Federal Courts Rules, SOR/98-106 [Rules].

Rule 81 stipulatesthat affidavits shall be confined to facts within the personal knowledge of the deponent, and must be delivered "“without gloss orexplanation”" (Canada (Attorney General) v Quadrini, 2010 FCA 47 [Quadrini] at para 16). In light of the foregoing, the Ministerspecifically takes issue with paragraphs 1, 7, 14 to 16, 19, and 20 to 22 of the Bains Affidavit. [34] In response, Foster Farms assert that Mr. Bains duly provided his written testimony, as he had the requisite testimonial capacity.Furthermore, they note that, whereas Mr.

Bains is employed under the title of "“customs expert”", the fact that he is referred to as such inhis affidavit does not mean that the Bains Affidavit was tendered as expert opinion evidence. According to Foster Farms, the impugnedportions of the Bain Affidavit provide a factual narrative which is relevant to the issues raised in their application for judicial review, andthe Court should receive it in its entirety as evidence.

Specifically, they respond that paragraphs 1 and 7 fall in the general backgroundexception identified in AUCC, whereas paragraphs 14 to 16, 19, and 20 to 22 are relevant as they fit within the second exception andassist to demonstrate that the Minister violated his duty of procedural fairness. Foster Farms also note that the affidavit of Mr. BlairHynes [Hynes Affidavit], tendered as evidence in support of the Minister’s response to the application for judicial review, appears to bean attempted response to the impugned paragraphs of the Bains Affidavit.

In particular, they refer to paragraph 10 of the HynesAffidavit, in which Mr. Hynes denies that the release of "“preliminary decisions”" was ever a practice of GAC decision makers. [35] It is well established that the Court may strike all or parts of affidavits where they are abusive or clearly irrelevant, or where theycontain opinions, arguments or legal conclusions (Quadrini para 18; Cadostin v Canada (Attorney General), 2020 FC 183 [Cadostin] atpara 36).

The general rule is that a lay witness may not give opinion evidence but may only testify to facts within his or her knowledge,observation and experience (White Burgess Langille Inman v Abbott and Haliburton Co, 2015 SCC 23 [White Burgess] at para 14;Toronto Real Estate Board v Commissioner of Competition, 2017 FCA 236 [TREB] at para 78). Expert evidence is an exception to thisgeneral rule barring opinion evidence. The main rationale for excluding lay witness opinion evidence is that it is not helpful to thedecision maker and may be misleading (White Burgess at para 14). As admitted by Foster Farms, Mr.

Bains is not an expert in thetechnical sense, and they did not tender the Bains Affidavit as expert opinion evidence. Mr. Bains was therefore a lay witness and theBains Affidavit was submitted to "“provide the narrative of facts which is relevant to [their] application for judicial review”". [36] The SCC has recognized that "“[t]he line between ‘fact’ and ‘opinion’ is not clear”" (Graat v The Queen, (SCC),[1982] 2 SCR 819, 144 DLR (3d) 267 at p 835).

The courts have thus developed some freedom to receive lay witnesses’ opinions whenthe witness has personal knowledge of the observed facts and testifies to facts within his or her observation, experience andunderstanding of events, conduct or actions.

In that respect, the FCA recently stated that, in the context of a proceeding before theCompetition Tribunal (a specialized administrative decision maker), opinion from a lay witness is acceptable "“where the witness is in abetter position than the trier of fact to form the conclusions; the conclusions are ones that a person of ordinary experience can make; thewitnesses have the experiential capacity to make the conclusions; or where giving opinions is a convenient mode of stating facts toosubtle or complicated to be narrated as facts”" (TREB at para 79).

As such, when a witness has personal knowledge of observed factssuch as a company’s relevant, real world, operations, the evidence may be accepted by a court or an administrative decision maker evenif it is opinion evidence (TREB at para 80; Pfizer Canada Inc. v Teva Canada Limited, 2016 FCA 161 at paras 105-108). [37] Furthermore, it has been recognized that lay witnesses can provide opinions about their own conduct and their own business (TREBat paras 80-81).

The FCA however specified that there are limits to such lay opinion evidence: "“lay witnesses cannot testify on mattersbeyond their own conduct and that of their businesses in the ‘but for’ world”" and they "“are not in a better position than the trier of factto form conclusions about the greater economic consequences of the ‘but for’ world, nor do they have the experiential competence”"(TREB at para 81).

In other words, when a witness had an opportunity for observation and was in a position to give real help to thedecision maker, the evidence may be admissible and the real issue will be the assessment of weight. [38] A careful reading of the Bains Affidavit leads me to conclude that some of the impugned paragraphs could fall within the limitedexceptions set out in AUCC. As such, I am satisfied that paragraphs 1, 7 and 19 provide some background assisting the Court inunderstanding the issues before it.

In the same vein, I accept that, to some extent, paragraphs 7, 14 to 16 and 20 to 22 could assist todetermine whether the Minister violated his duty of procedural fairness. However, many of those paragraphs are riddled with opinions,rather than referring to only facts. For example, at paragraphs 14 to 16 of his affidavit, Mr. Bains refers to other cases involving dairyinputs and relating to a different industry to draw the conclusion that, in his view, the fact that GAC granted a meeting in those otherimport permit applications suggests that Foster Farms should also have been provided with a similar opportunity.

Turning to paragraphs20 to 22, Mr. Bains refers to what, in his view, is "“the custom course and practice of decision-making”" in SIP applications, and claimsthat such practice entails providing applicants with an interim report or a proposal letter setting out a proposed decision and providingthem with an opportunity to deal with any concerns on the part of the decision maker before a final decision is made. Such statementsrest on Mr.

Bains’ own assessment of practices by government officials in different files and offer an opinion that the decision-makingprocess followed for Foster Farms was inconsistent with previous customs of government officials. Instead of testifying on facts relevantto Foster Farms’ application for judicial review before the Court, Mr. Bains refers to his career experience and familiarity with thecustom, course and practice of Government of Canada officials respecting the process of making decisions relevant to importers and

taxpayers. His testimony in that respect has the typical attributes of expert opinion evidence. In sum, he is trying to extrapolate from hispersonal knowledge and experience in another, distinct industry, and draws conclusions allegedly applicable to Foster Farms’ situation. [39] However, Mr. Bains was not qualified as an expert witness and I agree with the Minister that paragraphs 14 to 16 and 20 to 22 ofhis affidavit contain improper opinions, arguments and legal conclusions regarding the issues before the Court.

In my view, they go farbeyond what the case law mentioned above has recognized as acceptable lay opinion evidence. As such, I agree that they were notproperly included in the Bains Affidavit and that they cannot be considered by the Court. [40] In such a situation, the Court has the discretion of striking the impugned paragraphs or of giving them no weight or probative value(CBS Canada Holdings Co. v Canada, 2017 FCA 65 at para 17; Cadostin at para 36; Abi-Mansour v Canada (Attorney General), 2015FC 882 at paras 30-31).

For the sake of efficiency, I have opted to exercise my discretion to give no weight or probative value to thoseparagraphs of the Bains Affidavit in these reasons. This will be discussed further below when addressing the issue of legitimateexpectations. B. Procedural fairness [41] The four different breaches of procedural fairness raised by Foster Farms can in fact be regrouped under two separate headings. Onthe one hand, Foster Farms allege that the administrative law principle of audi alteram partem entitled them to be given prior notice bythe Minister before the Decision was made.

In their various arguments, Foster Farms claim that they were not given notice on severalmatters ultimately retained or considered by the Minister in his Decision, such as the fact that no explanation was given for the customsclassification error, the grounds for the inadvertent error, and the fact that SIPs for "“exceptional or unusual circumstances”" werenormally granted in situations of short supply or limited supply.

On the other hand, Foster Farms claim that they had a legitimateexpectation to be given an opportunity to respond to the Minister’s concerns before the Decision was made (Baker at para 26). [42] For the reasons that follow, I am not persuaded by Foster Farms’ submissions on their alleged breaches of procedural fairness.

Iinstead find that, throughout the process followed by the Minister and GAC, Foster Farms were afforded the appropriate level ofprocedural fairness required by the circumstances of the matter, were provided with an adequate notice of the case they had to meet, andhad a full and fair opportunity to respond.

(1) The scope of the duty [43] It is well recognized that the requirements of the duty of procedural fairness are "“eminently variable”", inherently flexible andcontext-specific (Vavilov at para 77; Dunsmuir at para 79), and that they "“[do] not reside in a set of enacted rules”" (Green v LawSociety of Manitoba, 2017 SCC 20 at para 53). The actual level and content of the duty of procedural fairness, and whether a decision isprocedurally fair, must therefore be determined on a case-by-case basis (Baker at para 21).

It is also important to underline that, in anysituation, procedural fairness strictly relates to the process followed by the decision maker (Baker at para 26). It does not createsubstantive rights nor does it entitle a person to a given outcome.

In other words, the duty to act fairly is not related to the merits orcontent of a decision, or to a particular result in the treatment of a matter, and Foster Farms cannot claim to have a right to the Ministeragreeing with them. [44] The purpose of the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure,appropriate to the decision being made and its statutory, institutional and social context, with an opportunity for those affected by thedecision to put forward their views and evidence fully, and to have them considered by the decision maker (Baker at para 22).

In generalterms, the administrative process followed by a decision maker will be fair when it offers the affected parties a right to be heard and afull opportunity to know and to respond to the case against them. [45] The specific procedural requirements that the duty of procedural fairness imposes are determined with reference to all thecircumstances, and the nature and scope of the duty will vary depending on various factors.

In Baker, the SCC identified a non-exhaustive list of factors that inform the content of the applicable level of procedural fairness required in a given set of circumstances(Baker at paras 23-27; Suresh v Canada (Minister of Citizenship and Immigration), 2002 SCC 1 at para 115; Varadi v Canada (AttorneyGeneral), 2017 FC 155 at paras 51-52).

Those factors include: 1) the nature of the decision being made and the process followed inmaking it; 2) the nature of the statutory scheme; 3) the importance of the decision to the individual or individuals affected; 4) thelegitimate expectations of the person challenging the decision; and 5) the choices of procedure made by the administrative decisionmaker itself. [46] Foster Farms advance that a higher level of procedural fairness is required in this case because the impact of the Decision maymitigate a significant tariff assessment of over $8 million (Kane v Bd. of Governors of U.B.C., (SCC), [1980] 1 SCR1105 [Kane] at p 1113), and because the EIPA does not provide an appeal provision (Baker at para 24; 7687567 Canada Inc. v Canada(Foreign Affairs and International Trade Canada), 2013 FC 1191 [7687567 Canada] at para 49).

Applying the Baker factors to theDecision, I am not persuaded by Foster Farms’ arguments. I instead find that, on the contrary, a minimum level of procedural fairnesswas owed to Foster Farms in the circumstances. [47] The first Baker factor refers to the nature of the decision being made and the process followed in making it. The closer anadministrative process (and decision) resembles a court process, the higher the level of procedural fairness will be (Baker at para 23).

Inthis case, the nature of the process arriving to the Decision does not resemble a court process, as the Minister was tasked with making ahighly discretionary decision based on his opinion on whether certain Canadian market needs regarding imports of chicken productsjustified granting the Permit Application before him. This is a discretionary decision made from a Ministerial position, as opposed to anadjudicative decision. This suggests a situation calling for a lower level of procedural fairness. This Court has indeed concluded that theMinister’s broad discretion to issue permits pursuant to

section 8 of the EIPA suggest that only a minimal duty of procedural fairness isowed (Ultima Foods Inc. v Canada (Attorney General), 2012 FC 799 [Ultima Foods] at para 87). [48] The second factor relates to the role of the decision within the statutory scheme, the statutory language itself and the institutional

and social context. These elements all inform the processes owed to a party (Baker at paras 22, 28). A statute should not be read as toinsert procedural steps that do not exist or are not contemplated. In this case, neither the EIPA nor its regulations provide any proceduralsteps in the consideration of requests for retroactive SIPs by the Minister. For instance, the EIPA does not provide for a right to meetingswith the Minister or his delegates, nor a right of reply for the permit applicants. As stated by counsel for the Minister, the statutoryprocess set out in

section 8 of the EIPA is meant to ensure that applicants make their entire case in their initial applications, and put theirbest foot forward in their application materials. That said, I acknowledge that, since no appeal procedure is provided within the statuteand the Minister’s Decision is determinative of the issue, this second factor weighs in favor of some procedural protections (Baker atpara 24). [49] The third Baker factor is the importance of the decision to the individuals affected.

Generally, the more important a decision is to anaffected individual, the greater the level of procedural fairness that will be mandated. Foster Farms argue that the Decision is of majorimportance to them because of its significant financial impact of over $8 million, and hence that a higher level of procedural fairnessapplies. However, I point out that this factor refers to the importance of the decision to the lives of individuals affected, such as situationswhere an individual’s freedom, ability to work, or risk of physical harm are at stake (Baker at para 25; Kane at p 1113).

Here, FosterFarms are corporations, not individuals, and Foster Farms’ financial interests are somewhat dissimilar to situations where thejurisprudence retained the importance of a decision to the individuals affected as a significant factor calling for a heightened level offairness and procedural rights. In the present case, the Decision involves economic interests and therefore does not affect fundamentalrights per se.

That said, I am prepared to accept that the Decision is not negligible for Foster Farms and that this is a factor that cannot beoverlooked when assessing whether sufficient explanations should have been given for the Decision (7687567 Canada at para 49).However, it cannot receive the same weight, in terms of the required level of procedural fairness, as situations where decisions affect thelives of individuals affected.

I pause to observe that the 7687567 Canada decision relied on by Foster Farms was a case where no reasonswere given with no comments or notes from the decision maker. [50] The next factor mentioned by Baker is the legitimate expectations of the person challenging the administrative decision. In essence,if a legitimate expectation is found to exist with respect to a procedure to be followed, it will affect the content of the duty of fairnessowed to the individuals affected by the decision (Baker at para 26).

In the present case, as discussed in more detail below, I cannotidentify a legitimate expectation of a particular practice or process to which Foster Farms may have been entitled, apart from the fact thatthe Minister had to follow the requirements of the Notice 865. No clear and convincing evidence supports that unqualifiedrepresentations had been made, or that an established conduct or practice existed, such that it could have caused Foster Farms to have alegitimate expectation of any specific process for the Minister’s decision-making.

On this point, I agree with the Minister that, even if Iwere to accept that, in other previous cases, a right to reply was provided by the Minister to a SIP applicant (as stated in the BainsAffidavit for situations in the dairy industry), the fact remains that requests for SIPs are to be determined on a case-by-case basispursuant to the EIPA. [51] The last Baker factor refers to the decision maker’s process and the choice of procedures made in a given case.

Where, as here, thestatute is silent on the procedural mechanisms and the decision maker has expertise in determining what procedures are appropriate inthe circumstances, the Minister’s selected procedures for decision-making should be respected. This militates in favour of a level ofprocedural fairness located towards the lower end of the range. In the case of Foster Farms, there was no need to follow processes or givereasons comparable to those given by a court. All that was required was to explain the rationale for the Decision, including the legalbasis, according to the facts of the case.

In such circumstances, the Minister simply had to give a comprehensible justification for hisDecision. [52] In light of the foregoing, and after balancing the various Baker factors against the particular circumstances surrounding FosterFarms’ Permit Application, I conclude that the level of procedural fairness owed to Foster Farms resides at the lower end of thespectrum.

(2) The notice requirement [53] I now turn to the claims for a notice requirement. Foster Farms allege that the Minister violated procedural fairness by failing toprovide them prior notices on several fronts and that they were not given an opportunity to respond and to address these issues before theMinister rendered his Decision.

In support of their submissions, Foster Farms rely on administrative case law which recognized that, incertain cases, the principle of audi alteram partem imposes on a decision maker a duty to provide notice (Supermarchés Jean LabrecqueInc v Flamand, (SCC), [1987] 2 SCR 219 [Labrecque] at p 233; Doucet-Boudreau v Nova Scotia (Minister ofEducation), 2003 SCC 62 [Doucet-Boudreau] at para 104).

They submit that the substantive requirements of notice will only be satisfiedif the administrative decision maker lets the affected person know the essentials of the evidence on the principal issue it has to decide, sothat the affected person may have a reasonable opportunity to make representations on that issue and to respond to the argumentspresented in opposition (Scott v Nova Scotia (Rent Review Commission), (NS CA), 81 DLR (3d) 530 (NSCA) at para59). [54] Foster Farms more specifically complains of the failure of the Minister to give them prior notice of the assertion, contained in theMOA, that they had not explained why the misclassification had occurred.

Foster Farms maintain that the emphasis placed on this lackof explanation invited the Minister to draw negative inferences, namely that Foster Farms intentionally misclassified its imported goodsto avoid tariff costs. Foster Farms submit that these would be unfair inferences and that they should have been notified of this lack.

Theyargue that they were denied a meaningful opportunity to address this issue with the Minister before the denial of the retroactive SIPs. [55] Foster Farms also contend that the Minister further violated procedural fairness when it failed to provide them notice of theposition, set out in the MOA to the Minister and in the Decision, that SIP applications based upon the existence of extraordinary orunusual circumstances were generally granted "“only”" where the goods are in short or limited supply.

Foster Farms submit that thewords "“short supply”" or "“lack of supply”" do not appear in the Notice 865, and that they should have been given the opportunity torespond to this issue before the denial of the SIPs. They further maintain that their Permit Application did not expressly deal with theissue of limited domestic supply, because the Notice 865 does not use such wording. [56] I disagree with Foster Farms and I am not convinced by their submissions. Further to my review of the evidence and the applicable

law, I am instead satisfied that, in the context of a permit application, Foster Farms were provided with an adequate notice of the casethey had to meet. Furthermore, Foster Farms knew what the process before the Minister would entail, they had notice of the informationrequired from them, and they had a fair and full opportunity to provide further information. (

a) No right to a prior notice [57] In essence, Foster Farms argue that, once applicants provide reasons for which SIPs should be granted in their permit applications,the Minister has to provide such applicants another opportunity to explain why the SIPs should be awarded to them if the Ministerhappens to disagree with the applicants’ submissions.

With respect, this is not the case. [58] The audi alteram partem rule refers to the requirement that persons be given sufficient information to provide them with areasonable and meaningful opportunity to answer the case against them before the decision maker renders his or her decision. In R vRodgers, 2006 SCC 15 [Rodgers], the SCC refused to acknowledge that notice and participation are "“themselves principles offundamental justice”", or that they are invariable constitutional norms.

Rather, the SCC ruled that procedural fairness entails a context-sensitive approach, and "“[n]otice and participation may or may not be required to meet this norm”" (Rodgers at para 47). As such,whether a notice is required to meet the duty of procedural fairness must be determined on a case-by-case basis, adopting the contextualapproach set out in Baker. [59] Moreover, the object of notice is to ensure that the persons directly affected by a pending decision are provided with sufficientinformation and opportunities to meet the case against them.

However, what is sufficient varies with each case, informed by the level ofprocedural fairness due in the circumstances.

The Court must therefore determine, while adopting a contextual approach, whether, in thecontext of requests for SIPs, the duty of procedural fairness required that the Minister allows Foster Farms to address the absence ofexplanation or the question of short or limited supply. [60] The notice requirement dictates that applicants be provided with the information necessary to build and present their best case to adecision maker, taking into account the factors that are likely to be considered and the process involved.

Such notice requirement doesnot extend to draft decisions or memoranda written to inform a decision maker.

Unless new and relevant information comes to thedecision maker’s attention that would influence the disposition, there is no requirement to go back to the applicant for furthercommentary (Uniboard Surfaces Inc v Kronotex Fussboden GmbH and Co KG, 2006 FCA 398 [Uniboard] at paras 21-22; CanadianCable Television Assn v American College Sports Collective of Canada Inc, (FCA), [1991] 3 FC 626 at paras 31-37). [61] In Ultima Foods, the applicants had argued that their view was not adequately described in the memorandum sent to the Minister.The Court ruled that there was no breach of procedural fairness by the Minister because the duty owed was at best minimal, and did notinclude the right to make representations: [99] I find there was no duty to hear the Applicants’ views for two reasons.

First, the Minister’s broad discretion to issuePermits that suggests there is, at best, only a minimal duty of fairness. Second, given the confidential nature of the ChobaniApplication process, the Applicants would not, in the normal course, have had any opportunity to make submissions to theMinister. This means, in my view, that the minimal duty of fairness would not have included the right to makerepresentations. [62] I am mindful of the fact that, in Ultima Foods, the applicants were parties opposing the issuance of SIPs under subsection 8.3(3) ofthe EIPA to a third-party yogurt producer.

Therefore, this precedent must be applied with caution to the present case. However, theCourt’s finding in relation to the Minister’s broad discretion to issue SIPs under subsection 8.3(3) of the EIPA remains relevant todetermine the content of the duty of procedural fairness owed to Foster Farms in the present case. [63] The Court is aware of no precedents supporting Foster Farms’ assertion that the duty of procedural fairness in the context of importpermit applications under

section 8.3 of the EIPA requires the decision maker to give an opportunity to an applicant to respond to thedecision maker’s concerns. Indeed, Foster Farms has not directed the Court to any precedent to that effect. [64] In my view, in a context such as this one where the level of procedural fairness is located towards the lower end of the range, a fairprocess does not encompass a duty to give notice of how a decision maker has actually interpreted and applied his or her discretionaryauthority, and if so, in what circumstances.

Nor does it imply a duty to inform the applicants about results achieved in other cases orabout existing precedents. [65] Rather, administrative case law regarding permit applications provides that applicants generally carry the duty to ensure that nodeficiencies exist within their applications (Penez v Canada (Citizenship and Immigration), 2017 FC 1001 at para 32; Singh v Canada(Citizenship and Immigration), 2012 FC 526 at para 52). Analogies are never perfect, but they can be informative.

The jurisprudencedealing with study permits or work permits in immigration matters has repeatedly established that procedural fairness does not impose aduty to provide notice to the applicants regarding the deficiencies of their applications or concerns about it (Chowdhury v Canada(Citizenship and Immigration), 2019 FC 1417 [Chowdhury] at para 10; Masam v Canada (Citizenship and Immigration), 2018 FC 751 atpara 11). In such situations, procedural fairness does not generally give applicants the right to address concerns that might arise from thematerials submitted.

In the context of these permit applications which are subject to a high level of discretion, decision makers do nothave a duty or legal obligation, in the exercise of their discretion, to seek to clarify a deficient application, to apprise an applicant aboutconcerns arising directly from the legislation or regulations, to provide the applicant with a running score at every step of the applicationprocess, or to offer further opportunities to respond to continuing concerns or deficiencies (Lv v Canada (Citizenship and Immigration),2018 FC 935 at para 23).

To impose such an obligation would be akin to giving advance notice of a negative decision, an obligation thatthe Court has expressly rejected on many occasions with respect to administrative decision makers ruling on work permits or studypermits. It is well recognized that the onus is on permit applicants to put together applications that are convincing, anticipate adverseinferences contained in their evidence and address them. [66] Similarly to the situation for work permits or study permits, there are no legal rights to SIPs, the burden was on the Foster Farms to

establish their entitlement to such exceptional permits, the decision typically has a less serious impact on the applicants compared with the removal of a benefit, and there is a public interest in containing administrative costs. [ 67 ] While in some exceptional cases, providing notice may be required as an exception to the general rule ( Chowdhury at para 11 ; Li v Canada (Citizenship and Immigration) , 2012 FC 484 at para 32 ), I find that this is not such a case. There is no ambiguity in the EIPA to support that procedural fairness in the context of SIPs issuance under

section 8.3 of the EIPA requires the decision maker to give an opportunity to the applicant to respond to its concerns. In sum, Foster Farms was not entitled to the form of notice requirement they are claiming. (

b) Adequate notice was given [ 68 ] In any event, I am satisfied that Foster Farms were provided with an adequate notice of the case they had to meet. [ 69 ] First, Foster Farms were provided a de facto notice of the case against them because they were fully aware and informed of what the discretionary SIPs issuance process entails. Foster Farms were represented and assisted by experienced counsel throughout the process, they knew that SIP issuance is highly discretionary, and they appropriately provided lengthy submissions in their Permit Application.

In this case, Foster Farms were obviously well aware of the potential tax assessment they were facing, from the very start of the process. I pause to underscore that their detailed Permit Application was provided to the Minister along with the MOA, and was thus before the Minister when he rendered his Decision. [ 70 ] In addition, the principle of a notice requirement dictates that applicants be provided with the information necessary to build and present their best case to a decision maker, taking into account the factors that are likely to be considered and the process involved.

Here, Foster Farms had access to the EIPA and its regulations, to the Notice 865 as well as to other notices to importers regarding goods listed in the Import Control List and subject to restrictive conditions of import.

With this information available to them, Foster Farms had to put their best foot forward in their Permit Application and could not simply wait for the Minister to express his concerns before providing their evidence or arguments in support of their request. [ 71 ] Furthermore, the record shows that Foster Farms were granted a meeting after issuing their Permit Application, further to their request. As such, Mr. Hynes held a conference call with Foster Farms and their counsel on August 16, 2018. Following this call, Foster Farms were able to provide the additional information requested by Mr.

Hynes during the call and made further written submissions on two different occasions, on August 21, 2018 and September 26, 2018. Through their written submissions, both initial and supplementary, and in the phone call with GAC officials, Foster Farms had a clear and fair opportunity to meet the case against them. [ 72 ] In light of the lower level of procedural fairness due in the circumstances, I am satisfied that Foster Farms sufficiently knew the case they had to meet, received all relevant documents and had a fair opportunity to respond to the Minister’s concerns. (

c) The lack of explanation [ 73 ] Foster Farms takes particular exception with the excerpt of the MOA stating that Foster Farms had failed to provide explanations regarding their classification error. With respect, Foster Farms’ argument on this front is without merit. [ 74 ] It is worth citing what the MOA specifically stated in that regard, at paragraph 10.

The MOA indicated that the rationale provided by Foster Farms in their Permit Application and in their submissions " “provides no explanation as to why the finished product manufactured with Canadian boiler chicken imported by Foster Farms was declared as spent fowl at the time of re-export to Canada” " . [ 75 ] Further to my review of the Permit Application and the record, I have no doubt that this observation made in the MOA is accurate.

While Foster Farms argued that the chicken products at issue were misclassified by inadvertence, it remains that they were misclassified in such a way that they attracted no tariff. In addition, the Permit Application contains multiple references to the fact that Foster Farms mistakenly believed that, since their corn dogs were manufactured with broiler chicken meat of Canadian origin, they were entitled to duty-free treatment.

But Foster Farms provided no explanation as to why, in this context where Canadian broiler chicken inputs were used, the category " “spent fowl” " (which attracted no duties) was chosen and not " “broiler chicken” " (which would have attracted duties). When the sentence is read in its entirety, it looks obvious to me that the lack of explanation related to the choice of the " “spent fowl” " classification, instead of " “broiler chicken” " .

The statement on the absence of explanation for the choice of " “spent fowl” " mentioned in the MOA and provided to the Minister thus reflected a correct reading of the Permit Application. I further observe that the Minister had specifically noted in the Decision the statement by Foster Farms that they had no intention to deceive.

In light of this, Foster Farms’ suggestion that, as drafted, the MOA invited the Minister to draw negative inferences about their intention appears totally ill- founded and baseless. [ 76 ] All of this information was placed before the Minister, and the fact that Foster Farms had not provided reasons for classifying the goods as " “spent fowl” " was not new relevant information that could affect or influence the Decision. It was not something that Foster Farms were unaware of at the time of their Permit Application. There is simply no breach of procedural fairness or of any right to be heard here.

The absence of explanation was an accurate observation made by GAC officials on the contents of the Permit Application made by Foster Farms. [ 77 ] Again, the Minister had no duty to go back to Foster Farms and give them a second chance to explain why, in a context where they repeatedly refer to the Canadian origin of the broiler chicken inputs used in the imported corn dogs, they nonetheless elected to classify their imports as spent fowl and not broiler chicken. (

d) Limited domestic supply [ 78 ] Foster Farms also argue that they ought to have been given notice of the examples provided to the Minister regarding the circumstances in which permits are " “normally” " granted for extraordinary or unusual circumstances. In the Decision, the Minister

specified that such SIP requests " “are normally authorized to address short to medium term Canadian market needs resulting from emergencies such as destruction of Canadian poultry flocks due to avian influenza, or to address chronic lack of domestic supply of products that may not be domestically produced in Canada” " .

This wording echoed what had been mentioned in the underlying MOA. [ 79 ] There is no requirement in law that a Minister provide an applicant with all examples of other cases in which permits have been granted, especially in circumstances where the Minister has a wide-ranging discretion and where permits are specifically granted based on their individual merits. What is extraordinary or unusual in a particular case will vary and the legislation, regulations and policies cannot account for all possible scenarios.

The duty of procedural fairness does not imply a duty to inform applicants about other specific cases or precedents, or to give applicants a roadmap of how a discretion has been exercised by the decision maker. As the language used in the Decision clearly illustrates, the two situations singled out by the Minister were examples and were not meant to be exhaustive. [ 80 ] I would add that the Decision states that such requests for SIPs under the " “extraordinary and unusual circumstances” " component are " “normally authorized” " in the circumstances described in the reasons.

Contrary to Foster Farms’ allegations, the Decision does not say " “only” " . The reasons thus imply that these circumstances are not exhaustive and that there may be other, less frequent, situations where authorization under that category could arise. On this note, Mr. Hynes’ cross-examination supports the fact that the Minister was not misled on applying the Notice 865 or was not led to think that the examples of the extraordinary or unusual circumstances category provided in the MOA were exhaustive or exclusive. [ 81 ] Mr.

Hynes explained that the instances reflective of the " “normal practice” " were given to provide examples to inform the Minister. Not all possible situations were listed. Rather, simply those that were easily identifiable and relatable to a decision maker were outlined. The Minister had no obligation to list all possible reasons for which the Permit Application was denied, nor to give all possible examples of where a permit may have been approved.

In coming to his Decision, the Minister gave some examples of where permits may be issued under the extraordinary or unusual circumstances category but did not suggest these examples were complete or comprehensive. [ 82 ] Contrary to the argument put forward by counsel for Foster Farms at the hearing before the Court, I am not persuaded that the Minister deviated from the Notice 865 or " “narrowed the goal posts” " by providing the examples of " “normal” " authorizations.

He simply indicated where permit applicants have been successfully aiming if they want to score in the " “extraordinary and unusual circumstances” " net. The requirement was, and has always been, to demonstrate the existence of extraordinary and unusual circumstances in the context of the Notice 865. (

e) Absence of prejudice [ 83 ] I add one other observation.

In order for a procedural defect to constitute a breach of procedural fairness opening the door to the Court’s intervention, it must result in some form of prejudice for the applicant complaining about such defect, even in cases where it can be difficult to obtain evidence to that effect ( Ellis-Don Ltd. v Ontario (Labour Relations Board) , 2001 SCC 4 at para 49 ; Taseko Mines Limited v Canada (Environment) , 2019 FCA 320 [ Taseko Mines ] at para 62 ; Uniboard at para 24 ; Pounall v Canada (Border Services Agency) , 2013 FC 1260 at para 20 ). [ 84 ] In Taseko Mines , the FCA clarified that, where a party invokes a breach of the audi alteram partem principle in cases involving a minimal duty of procedural fairness, a possibility of prejudice must arise from the alleged failure ( Taseko Mines at paras 60-62 ): [61] Thus, Kane cannot be used in support of the idea that a mere apprehension of a breach of procedural fairness is sufficient to justify intervention.

Kane considered an existing breach; not only was the Board of Governors presented new information (in the sense that the party had not been given an opportunity to address it earlier), but that information was “necessary” for the resulting decision. While it is true that “actual prejudice” need not be shown for a breach to be found, there still needs to be a “possibility” of prejudice on the face of the record. This is particularly true in a case such as this one, where the degree of procedural fairness owed is minimal.

The judge therefore applied the correct approach when he stated that “a party must show that a possibility of prejudice arose from such a meeting or submission in order to constitute a breach of the audi alteram partem principle” (Reasons, at para. 71). [Emphasis added] [ 85 ] In other words, Foster Farms had to show that, had it known about the fact that retroactive SIPs will normally be granted under extraordinary and unusual circumstances when there is a chronic lack of domestic supply, they would have fitted within the said circumstances and exception.

In this case, nothing in Foster Farms’ Permit Application even obliquely suggested that the extraordinary and unusual circumstances they were invoking had anything to do with the supply conditions in the Canadian market for corn goods. The main arguments put forward by Foster Farms in their Permit Application to explain their inadvertent misclassification error revolved around the Canadian origin of the chicken broiler inputs used in the imported corn dogs.

Moreover, Foster Farms did not provide, in their application for judicial review, any evidence with respect to a potential limited domestic supply of the chicken products at issue in Canada, and at no point did they attempt to demonstrate a " “possibility” " of prejudice on the face of the record ( Taseko Mines at para 61 ). [ 86 ] There is nothing on the record before me in terms of evidence showing what Foster Farms’ response would have been had it be given notice that permit applications raising the extraordinary and unusual circumstances are generally accepted in one of the two situations outlined in the Decision.

Stated differently, there is no evidence showing that the result could have been different had Foster Farms known or been told that SIPs sought for extraordinary or unusual circumstances are normally granted in cases of a chronic lack of domestic supply of products that may not be domestically produced in Canada. [ 87 ] In its written submissions, Foster Farms assert that the word " “short supply” " or " “lack of supply” " do not appear in the Notice 865, and they claim that they should have been given the opportunity to respond to this issue with the Minister before the denial of SIPs.

However, for this alleged failure to provide notice to amount to a violation of the duty of procedural fairness, in a context where the duty falls at the lower end of the spectrum, Foster Farms had to show that had it known about the allegedly " “narrowed goal posts” " , it would have been able to demonstrate that it fits within the " “normal” " instances where SIPs have effectively been granted by the Minister.

Foster Farms failed to demonstrate such possibility of prejudice. [88] I pause to point out that the examples provided by the Minister should not come as a surprise or be unexpected. The "“extraordinaryand unusual circumstances”" is the residual category of SIP authorizations contained in the Notice 865. This component has to be read inthe overall context of that policy, which allows the Minister to authorize imports over and above the import access quantities,"“particularly if he judges that the importation of these products is required to meet Canadian market needs”".

As is the case for productson the Import Control List, the driving concern is supply management and how supply can respond to Canadian market needs. The otherfive authorizations are indeed all related to supply concerns prompted by particular Canadian market requirements such as shortages,constraints in domestic sourcing of certain products or testing for new products. [89] In their Permit Application, Foster Farms had mentioned their mistaken belief that the chicken products were entitled to duty-freetreatment because they were primarily manufactured from chicken inputs that originated from Canada.

Misclassification errors, even ifthey are prompted by inadvertence or by the Canadian content of inputs being used in the imported products, bear no relation withconditions affecting the Canadian market or supply constraints for certain chicken products. These may have been legitimateexplanations for Foster Farms’ classification error, but they have no resemblance with the situations covered in the Notice 865 and withthe actual wording and intent of that policy.

(3) Legitimate expectations [90] I now move to Foster Farms’ claim of legitimate expectations. Foster Farms submit that the Minister violated procedural fairnessbecause they had a legitimate expectation that the MOA would fully consider and mention the facts, stated by Foster Farms in the PermitApplication, that the misclassification of the chicken products was caused by inadvertence. They complain that they were not given theopportunity to clarify the facts surrounding their classification error.

More generally, in the oral representations before the Court, counselfor Foster Farms maintained that procedural fairness and the principle of legitimate expectations entitled Foster Farms to receive noticefrom the Minister prior to the issuance of the Decision. [91] I do not agree and find that no issue of legitimate expectations arises here.

Foster Farms’ argument on this front is without merit andsimply amounts to an attempt to give the doctrine of legitimate expectations a scope it does not have. [92] Foster Farms correctly states that the doctrine of legitimate expectation is an extension of the rules of natural justice and proceduralfairness (Reference re Canada Assistance Plan (B.C.), (SCC), [1991] 2 SCR 525 at p 557).

Where the doctrine applies,it implies certain procedural entitlements in relation to administrative decision-making (C.U.P.E. v Ontario (Minister of Labour), 2003SCC 29 , [2003] 1 SCR 539 [CUPE] para 131; Canada (Attorney General) v Mavi [2011] SCC 30 [Mavi] at para 69; Agraira vCanada (Public Safety and Emergency Preparedness), 2013 SCC 36 [Agraira] at para 94). [93] As explained by the SCC in Agraira, the doctrine of legitimate expectations provides that, if a public authority has maderepresentations about the procedure it will follow in making a particular decision, or if it has consistently adhered to certain proceduralpractices in the past in making such a decision, the scope of the duty of procedural fairness owed to the affected person will be broaderthan it otherwise would have been.

While truly reasonable or legitimate expectations may affect what procedural fairness protections arerequired, an expectation will only meet that threshold if it is based on a decision maker’s "“clear, unambiguous and unqualified”"representation, conduct or established practice (Agraira at paras 94-95; Mount Sinai Hospital Center v Québec (Minister of Health andSocial Services), 2001 SCC 41 [Mount Sinai] at para 29).

Furthermore, the doctrine of legitimate expectations does not create substantiverights, and it cannot hinder the discretion of a decision maker responsible for applying the law (Re Canada Assistance Plan (B.C.), (SCC), [1991] 2 SCR 525 at pp 557-558; Nshogoza at paras 41-42).

In addition, the representations must be within the scopeof the government official’s authority, they must be "“procedural in nature”" and they must "“not conflict with the decision maker’sstatutory duty”" (Mavi at para 68; CUPE at para 131; Mount Sinai at para 29). [94] An important tenet of the doctrine of legitimate expectations is that it cannot operate to defeat a statutory prohibition on the processcontended for (Lidder v Canada (Minister of Employment & Immigration), (FCA), [1992] FCJ No 212 (FTD), 136NR 254 at para 28).

As stated by the Court in Yoon v Canada (Citizenship and Immigration), 2009 FC 359 [Yoon], "“no legitimateexpectation can exist that is contrary to express provisions” "of a regulation (Yoon at para 20). In other words, the doctrine cannot beused to "“counter Parliament’s clearly expressed intent to confer an authority to a decision-maker”" (Canada (Minister of Citizenship andImmigration) v Dela Fuente, 2006 FCA 186 at para 19).

In no case can a public authority place itself in conflict with its duty and foregothe requirements of the law (Nshogoza at para 42; Oberlander v Canada (Attorney General), 2003 FC 944 at para 24). [95] In the present case, there is no evidence of "“clear, unambiguous and unqualified”" representations made to Foster Farms, or thatthere was a conduct or established practice that could have caused them to have legitimate expectations of any specific process. On thecontrary, there is a total absence of any representations made by the Minister or of a practice by GAC or CBSA officers. [96] Foster Farms argue that Mr.

Bains’ experience on a "“like”" file and experience observing some practices of government agenciesprovide sufficient grounds to establish legitimate expectations. In his affidavit, Mr. Bains claims to have become familiar with thecustom, course and practice of government of Canada officials respecting the process of making decisions relevant to importers andtaxpayers. Mr. Bains says he has worked as a CBSA verification officer and has issued interim verification reports setting out a proposeddecision and providing importers with an opportunity to address any concerns before making a final decision.

In his affidavit, Mr. Bainsalso refers to dairy import files where counsel for the applicant was given an opportunity to meet with GAC officials and to discuss theprobable decision. Through this process, says Mr. Bains, the applicant in that case was able to speak to GAC’s concerns and wasprovided, effectively, a right of reply. Based on those statements supported by limited evidentiary facts, Mr.

Bains submits that thecustom, course and practice of decision-making is to provide the person concerned with an interim report or a proposal letter setting out aproposed decision and to also provide them with an opportunity to deal with any concerns on the part of the decision maker before a finaldecision is made. I am not persuaded by the argument. [97] First, Mr. Bains is a lay witness and he did not file his affidavit as an expert witness. He was not qualified as an expert witness,through either education or experience.

He therefore cannot provide opinion evidence and, as stated above, I am not giving weight to

those portions of the Bains Affidavit as it is inadmissible lay opinion evidence. Moreover, and in any event, even if I were to give weight and probative value to that evidence, the examples offered by Mr. Bains are unhelpful to Foster Farms. Decisions on SIPs are made on a case-by-case basis pursuant to the EIPA and the applicable policies. In fact, the Notice 865 clearly provides that " “authorization for supplemental imports due to extraordinary or unusual circumstances will be evaluated on their individual merits” " .

What happened on unrelated files regarding different products and a different industry does not amount to evidence of an " “established” " practice with respect to the treatment of retroactive SIPs for chicken products. Furthermore, Mr. Bains’ evidence is directly countered by Mr. Hynes, a current GAC manager who was involved in Foster Farms’ Permit Application. In his affidavit filed in support of the Minister’s response to Foster Farms’ application for judicial review, Mr.

Hynes specified that, while departments (other than GAC) may have processes by which " “preliminary” " decisions may be provided to applicants, it is not, nor was it at the time of Foster Farms’ Permit Application, nor has it ever been the practice of GAC decision makers to do so when making decisions or recommendations related to requests for retroactive SIPs. Mr. Hynes was questioned on this statement by counsel for Foster Farms when he was cross-examined on his affidavit, and he did not resile from it.

His evidence on the absence of any established practice in the specific context of Foster Farms’ Permit Application stands uncontradicted. I find it far more convincing than the general, unrelated evidence tendered by Mr. Bains. [ 98 ] In sum, based on the evidence before me, and even if I was to accept Mr. Bains’ lay opinion evidence, I am therefore not persuaded that, on a balance of probabilities, Foster Farms has established the existence of " “clear, unambiguous and unqualified” " representations that could open the door to the application of the doctrine of legitimate expectations.

In addition, the legitimate expectation claimed by Foster Farms would run contrary to the large discretion given to the Minister under

section 8 of the EIPA and to the express provisions of the Notice 865 on " “extraordinary and unusual circumstances” " . In such a case, the doctrine of legitimate expectations cannot apply " . "

(4) Issue of no reference to inadvertent error [ 99 ] In addition to their claims about the notice requirements and the legitimate expectations, Foster Farms also allege that the Minister failed to meet the required level of procedural fairness because the MOA did not make reference to the fact that their Permit Application mentioned that Foster Farms had made an inadvertent error when importing its chicken products. More specifically, Foster Farms maintains that the MOA omitted to fully and fairly set out the facts expl

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