Did you know that the Canadian government can reach beyond your
company’s coffers and into your wallet for importing or
handling food the wrong way? Canadian enforcement agencies have
broad powers to pursue officers and directors when companies breach
certain laws that govern the country’s food supply. In some
cases, the government can hold officers and directors responsible
for the misdeeds of agents and employees. In such instances,
pleading ignorance is insufficient to evade personal liability.
Export and Import Permits
The Export and Import Permits Act (EIPA) gives
Cabinet the power to control which goods enter or leave Canada by
means of control lists. Agricultural products like grains, sugar
and dairy have been placed on control lists. Businesses that wish
to import or export controlled goods must obtain the necessary
permits to do so and not exceed their allotted quantity.
Breaching the EIPA could be a costly affair. The
Crown can choose to prosecute infringements as a summary
or indictable offence. Section 19(a) sets maximum punishment for
summary offences at $25,000 and 12 months of imprisonment. However,
when the Crown elects to prosecute an offence as indictable,
section 19(b) allows judges to set fines at their discretion and
imprison for up to 10 years.
Officers and directors cannot rely on the corporate veil to
protect them. Section 20 of the EIPA makes officers and
directors liable to fines and imprisonment, if they direct,
authorize, consent to, allow or participate in contravening any
provision of the EIPA. The corporation need not be
prosecuted or convicted for directors and officers to be found
In R v Joseph Martin,  1 SCR 838,
aff’g (1991), 2 OR (3d) 16 (ON CA), the Supreme Court of
Canada confirmed that infractions under the EIPA are
strict liability offences like most public welfare infractions.
Once the Crown proves that there was a contravention, the accused
must demonstrate that reasonable care was taken to avoid the
While the MIA, FIA, CAPA and CPLA imposed
officer liability to varying degrees, penalties under the
SFCA will be stricter, when the law comes into force.
Section 39 of the SFCA lists a range of penalties up to
$5,000,000 and two years imprisonment for most contraventions of
the SFCA or its regulations. Section 39(3)(a) allows the
court to impose a fine at its discretion, an imprisonment for a
term of up to five years, or both, on a person who in contravening
the SFCA knowingly or recklessly causes a risk to
human health. The SFCA does not set a cap on fines for
such offences and any individual convicted under these provisions
could be imprisoned for up to 5 years.
According to section 39(4) officers or directors who direct,
authorize, assent to, acquiesce to or participate in the infraction
can be prosecuted. Further, section 39(5) allows these
individuals to be prosecuted for the wrongdoing of employees,
agents or other mandataries of the company. An accused will only
escape liability for the actions of others by showing that he or
she was unaware of the actions or did not consent to them.
Furthermore, the accused must also show that all due diligence was
exercised to prevent commission of the offence.
Wrongdoing encompasses action and inaction. R v A & A Food Ltd and Giovanni
Camporese,  120 CCC (3d) 513 (BC SC) concerned a
company that marketed unlabelled cheese in its possession, contrary
to provisions of the Canada Agricultural Products Act. The
corporate accused and its director were both convicted. The Supreme
Court of British Columbia upheld the director’s conviction,
noting that the director had the ability to ensure that the cheese
had been labelled properly but failed to do so.
Prepared with assistance from summer student Valerie
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