Canada: Agricultural Law Netletter - Thursday, December 21, 2017 Issue 386


* The Federal Court of Appeal has held that s. 9(2) of the Agriculture & Agri-Food Administrative Monetary Penalties Regulations, which provides that a "document sent by registered mail is served on the 10th day after the date indicated in the receipt issued by a post office" means that a document sent by registered mail is deemed to be served on the 10th day after the date indicated in the post office receipt, even if it was actually received before this date. [Editor's note: There is a similar provision in s. 17(2) of the Farm Debt Mediation Regulation which provides that "the giving of a notice [by priority post, courier or registered mail to a farmer] is deemed to be effected 7 days business days after the date on which the notice is sent". The date on which FDMA notices are served is significant, because the mandated stay of execution under the Act runs from the date of service. Based on this decision, the FDMA time period likely does not being to run until the 7 day period has expired.]. (Adebogun v. Canada (Attorney General), CALN/2017-063, [2017] F.C.J. No. 1215, Federal Court of Appeal)


Adebogun v. Canada (Attorney General);


Full text: [2017] F.C.J. No. 1215;

2017 FCA 242,

Federal Court of Appeal,

J.D.D. Pelletier, D.W. Stratas and Y. de Montigny JJ.A.,

December 8, 2017.

Service of Notices -- Regulatory Provisions for Service by Mail -- Date of Service.

Olukayode Adebogun ("Adebogun") applied to the Federal Court of Appeal for judicial review from a decision of the Canada Agriculture Review Tribunal (the "Tribunal"). The Tribunal had ruled that Adebogun's appeal from a Notice of Violation to the Tribunal under the Agriculture & Agri-Food Administrative Monetary Penalties Regulations, SOR/2000-187 (the "Regulations"), was out of time, as it was outside the 15 day limit set by the Regulations.

On April 19, 2013, the Canada Border Services Agency issued a Notice of Violation to Adebogun, and a penalty of $800.00, for allegedly importing meat products into Canada without meeting legal requirements set for importation.

Adebogun requested a ministerial review of this decision. On September 14, 2015 the Minister of Public Safety & Emergency Preparedness upheld the decision, which was sent to Adebogun's address by registered mail on September 16, 2015 and was delivered the following day.

Section 13(a) of the Regulations provides that a person named in a Notice of Violation may request a review of the Minister's decision by the Tribunal within "15 days after the date on which the Notice is served".

Adebogun filed his request for a review on October 5, 2015.

Before the Tribunal, the Minister took the position that the decision was personally served on Adebogun on September 17, 2015, relying on a copy of a Canada Post tracking sheet, apparently signed by Adebogun, showing that the Minister's decision was successfully delivered on September 17, 2015.

The Tribunal accepted this submission and concluded that Adebogun was outside the 15 day limit by 3 days.

Relying on the decision of the Federal Court of Appeal in Clare v Canada (Attorney General), [2013] F.C.J. No. 1237, 2013 FCA 265 at para. 24, 451 NR 349, the Tribunal concluded that it did not have the jurisdiction to extend the timelines for service set out in the Act and the Regulations.

Section 8(1) of the Regulations provides that service of any document originating from the Minister on an individual may be made (a) personally or (b) by registered mail, courier, fax or other electronic means. Section 9(2) of the Regulations provides that

"[a] document sent by registered mail is served on the 10th day after the date indicated in the receipt issued by a post office".

Before the Federal Court of Appeal, counsel for the Minister argued that s. 9(2) of the Regulations was meant to provide a presumed date of service in cases where a person is unavailable or willfully tries to avoid service or refuses to take delivery by registered mail.

Decision: De Montigny, JA (Pelletier and Stratas, JJA concurring) allowed the application for judicial review, quashed the decision of the Tribunal, and returned the Request for Review to the Tribunal to be determined on its merits [at para. 13]. De Montigny, JA stated, at para. 11, referring to s. 9(2):

[11] ...Whatever mischief this provision was designed to prevent, its wording is unambiguous and does not leave room for interpretation. A document sent by registered mail is deemed to be served on the 10th day after the date indicated in the receipt, whether it was actually received by the recipient or not. This was made abundantly clear by this Court in Clare, at paragraph 23, and counsel for Canada did not provide us with any compelling argument to depart from that ruling or distinguish this case on its facts.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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