Amplifying AMPs – Part II

This column last month explained that the extension of Administrative Monetary Penalties or AMPs (essentially a ticketing system) to the Meat Inspection Act and Regulations (MIA) was a significant development in Canadian food law. Whether it would prove to be a positive development for the meat industry or another unnecessary regulatory burden depends, like most public policy initiatives, on how well the change is implemented.

Fortunately, the Canadian Food Inspection Agency (CFIA) has formally recognized in its Regulatory Impact Analysis Statement that this major new compliance tool cannot be introduced until a detailed implementation strategy is developed in close co-operation with industry.

It is also to the Agency’s credit that before taking the step to extend AMPs, it commissioned a thorough evaluation of how well it has worked over the past decade when it applied only to plant and animal health legislation. It makes interesting reading. The evaluation concluded that AMPS “have not lived up to expectations in terms of speed, cost and likely deterrence effect.” It found in particular considerable evidence of inconsistency in its application. The evaluation noted that even under the old limited mandate there was a serious lack of training of investigators and inspectors and when one region (Ontario) spent considerable resources to train 50 inspectors only five ever used it. The evaluation makes it clear that before AMPs is expanded to any other acts, and especially to legislation as sweeping as the MIA, the Agency will have to make a number of operational improvements. Is it any wonder that the meat industry is apprehensive?

The evaluation noted that for an AMPs system to work well and consistently, legal requirements and industry performance standards need to be clearly spelled out. There is a contradiction here that the evaluation does not address. For years the CFIA has said that it wants to move to a situation in which the rules would be more “outcomes-based” and less prescriptive. It’s not clear how the CFIA can move in both directions at the same time. This is especially problematic for the meat sector as the MIA is very prescriptive and of the 84 rules to which AMPs would apply, 77 are considered by the CFIA to be “serious or very serious” violations.

Depending on how the CFIA uses AMPs for the MIA, it’s likely to have a significant impact on the Canada Agricultural Review Tribunal (CART). All Notices of Violation and ministers’ decisions involving AMPS can be reviewed by this little known quasi-judicial tribunal. Using oral and written proceedings, in 2011/2012 it considered 26 applications for review, overturning eight decisions. In 2012/2013 CART issued 30 rulings, overturning 14 decisions on review. CART chairman Don Buckingham sees the extension of his jurisdiction to MIA as a “natural fit.” CART has done an excellent job of formalizing and standardizing its procedures and processes and by most accounts provides a fairly cost effective arm’s length review. With only one full-time and one part-time member, the extension of AMPs will necessitate new resources for CART if it’s to avoid the current criticism that it takes too long to set hearings and render decisions. It already bills itself as “the little Tribunal that could.”

For the successful expansion of AMPs to the MIA it is clear that the CFIA has to develop with industry a comprehensive implementation strategy that includes, among other things, a thorough training program. Given its potential implications, it would be prudent to roll out the extension as a pilot in one of the regions before imposing it nationally. And a well-functioning and speedy review process could help ensure that AMPs is applied fairly. Implemented well, this extension of AMPs to MIA could prove to be an important tool that enhances compliance and avoids the disproportionate use of other heavier enforcement powers such as criminal prosecution, product seizure and license suspension or revocation.

Ronald L. Doering, BA, LL.B., MA, LL.D., is a past president of the Canadian Food Inspection Agency. He is counsel in the Ottawa offices of Gowlings. Contact him at Ronald.doering@gowlings.com