Operational guideline: Supplemental guidance for Safe Food for Canadians licence action decision makers

On this page

1. 1. Purpose
2. 2. Authorities
3. 3. Reference documents
4. 4. Definitions
5. 5. Acronyms
6. 6. Operational guideline
   1. 6.1 Operation division among the positions identified as the Minister's delegate
   2. 6.2 Responsibilities of the Minister's delegate making licence action decisions
   3. 6.3 Use of another Minister's delegate
   4. 6.4 Consultation with Legal Services
   5. 6.5 Engaging the management oversight body
   6. 6.6 Decide if licence action should be considered
   7. 6.7 Chairing an opportunity to be heard for cancellation decisions
   8. 6.8 Decide if licence action will be taken
   9. 6.9 Review the draft notification of licence action decision
   10. 6.10 Notify the National Centre for Permissions (NCP) of the decision to take a licence action
   11. 6.11 How and when to report licence actions to senior management
7. 7. Appendices
   • Appendix 1 – Forms and templates
   • Appendix 2 – Tips on writing a decision

1. Purpose

The purpose of this document is to provide supplemental guidance to Canadian Food Inspection Agency (CFIA) officials who have been delegated the Minister's authority to amend, suspend or cancel a Safe Food for Canadians (SFC) licence issued pursuant to subsection 20(1) of the Safe Food for Canadians Act (SFCA) and its regulations.

This document is intended to be used in conjunction with other guidance documents as referenced in section 3.0 of this guidance. In particular, this guidance supplements the following operational guidance documents:

• Procedures for suspending and lifting the suspension of an SFC licence
• Procedures for cancelling an SFC licence

This guidance document should be used by CFIA officials who have been delegated Minister's authority to make a decision to amend a licence under section 32 of the Safe Food for Canadians Regulations (SFCR), subject the licence to additional conditions under SFCA 20 (3), suspend a licence under SFCR 35 and SFCR 37, lift a suspension under SFCR 38 or cancel a licence under SFCR 39.

Although this guidance document speaks solely to SFC licence actions, the CFIA has the necessary powers and authorities to address non–compliance through the use of a variety of control and enforcement actions. These actions can be used independently or concurrently as the situation warrants. This document is intended to be used in conjunction with Standard regulatory response process (SRRP) and the Operational guideline – Food regulatory response guideline.

2. Authorities

• Safe Food for Canadians Act (SFCA), section 20(1) and 22
• Safe Food for Canadians Regulations (SFCR), sections 32 and 35 to 40

The inspection powers, control actions and enforcement actions authorized by the above legislation are identified and explained in the Food regulatory response guidelines.

3. Reference documents

• Compliance and enforcement policy
• Standard regulatory response process (SRRP)
• Chart Summarizing Delegation of Ministerial Authorities (accessible only on the Government of Canada network – RDIMS 9366193)
• Operational guideline: Application of digital signature to domestic inspection documents (accessible only on the Government of Canada network – RDIMS 14129982)
• Guide to the Transmission, Storage and Destruction of Protected and Classified Information (accessible only on the Government of Canada network – RDIMS 3707409)
• Operational guideline: Development and Implementation of Management Oversight Bodies
• Daily Issues Guidance (accessible only on the Government of Canada network – RDIMS 17639709)
• Process for Reporting Licence Suspensions or Cancellations of Safe Food for Canadians licences (accessible only on the Government of Canada network – RDIMS 18620063)
• Food regulatory response guidelines
• Procedures for suspending and lifting the suspension of a Safe Food for Canadians licence
• Procedures for cancelling a Safe Food for Canadians licence

4. Definitions

Definitions are located in either the:

• My CFIA Glossary of Terms
• Safe Food for Canadians Regulations: Glossary of key terms
• section 2 of the SFCA
• section 1 of the SFCR
• SRRP

5. Acronyms

Acronyms are spelled out the first time they are used and are consolidated in the Food business line acronyms list.

6. Operational guideline

6.1 Operation division among the positions identified as the Minister's delegate

As referenced in the Procedures for suspending and lifting the suspension of an SFC licence and the Procedures for cancelling an SFC licence, the Director of Operations responsible for the National Center for Permissions (NCP) and the regional Directors of Operations (DO) are delegates of the Minister for sections 35, 38, 39 and 40 of the SFCR and are therefore authorized to suspend or cancel an SFC licence in accordance with the regulations.

While both the regional DOs, and the DO responsible for the NCP are delegated these functions per the Chart summarizing delegation of Ministerial authorities (accessible only on the Government of Canada network – RDIMS 9366193), table 1 below identifies the Minister's delegate typically responsible for the functions and duties associated with the SFC licence actions under normal circumstances in consideration of the role associated with each position.

In the case of amendment of a licence due to inability to conduct an activity [SFCR 32], the functions of the Minister have been delegated to DOs and the DO responsible for the NCP.

6.2 Responsibilities of the Minister's delegate making licence action decisions

When making a decision concerning an SFC licence, complete all of the tasks associated with the licence action process including:

• receive the Recommendation for an SFC licence Action Form (Action Form) and supporting documents from the inspection staff in the responsible region (or in the case of a suspension or cancellation due to non-payment of fees, supporting documents from CFIA Accounts Receivable)
• review the recommendation, supporting documents from CFIA staff and all relevant guidance and policies
• in the case of a cancellation, if the recommendation is supported, proceed to offering the licence holder an opportunity to be heard and, if so, chair the opportunity to be heard
• for a recommendation for licence cancellation, if the licence holder accepts the opportunity to be heard, review the information provided by the licence holder during the opportunity to be heard
• consult as needed with established Management Oversight bodies in the area, Area Operational Specialist Unit, Operational Guidance and Expertise Division and/or Legal Services
• make the decision associated with the licence actions (suspension, cancellation, amendment or lifting a suspension)
• complete and sign the Action Form
• sign all written notices to be sent to the licence holder to communicate decisions on licence actions
• ensure that communication regarding the matter is conveyed to the CFIA senior management according to the guidance in section 6.11 below
• in the case where the decision is not taken by the DO responsible for the NCP, ensure the NCP is notified of the decision to take action on a licence
• document and keep records of all communications with the licence holder in accordance with the established protocols and as directed in the Guide to the Transmission, Storage and Destruction of Protected and Classified Information (accessible only on the Government of Canada network – RDIMS 3707409).

6.3 Use of another Minister's delegate

6.3.1 When to use another Minister's delegate

At times, it may be necessary for the initial Minister's delegate specified in table 1 to refer the decision to another Minister's delegate. Refer the file to another delegate in the following circumstances:

• there is a potential or apparent bias or conflict of interest
• in the event of a potential cancellation, you made the prior decision to suspend the licence for the same non-compliance in regards to the same licence holder

6.3.2 Selecting another Minister's delegate

Table 2 below describes suitable alternatives.

6.4 Consultation with Legal Services

Some decisions resulting in actions on an SFC licence are reviewable by a Federal Court. To ensure the licence holder receives a consistent, impartial, transparent and justified decision, consultation with Legal Services is required when licence cancellation is being considered (at the direction from the President).

Otherwise, it may be useful to consult legal services when:

• the facts are complicated
• there is the risk of a legal challenge
• the situation may be highly political
• the situation may receive or have the potential to receive media attention

6.5 Engaging the management oversight body

The relevant management oversight body in the Operational Area responsible for verifying the compliance of the licence holder, should be engaged to support the Minister's delegate and contribute to a response consistent with the Compliance and enforcement policy. This should occur early in the process, such as shortly after reviewing the case and weighing the factors that will be considered in the decision. Members of the management oversight body may provide their views or insights for consideration however, they do not make the decision.

6.6 Decide if licence action should be considered

Review the Action Form and supporting documentation provided by inspection staff along with any information related to the factors of harm, history and intent when determining whether the proposed licence action is the appropriate regulatory response. Table 3 below identifies actions to be taken when considering a licence action.

At any point during the process, relevant subject matter experts may be consulted including the Area Operational Specialist Unit, Operational Guidance and Expertise (OGE) Division or Legal Services (as per section 6.4) to confirm the application of the SFCR and associated policies.

6.7 Chairing an opportunity to be heard prior to cancellation decisions

In accordance with SFCR 40(1), an SFC licence may not be cancelled unless the licence holder has been provided an opportunity to be heard in respect of the cancellation. An opportunity to be heard is organized by the Minister's delegate making the decision whether or not to cancel the licence. It may be in the form of a written submission, in person meeting or virtual meeting as chosen by the licence holder.

6.7.1 Planning

The following guidelines should be applied to planning the opportunity to be heard:

• send the Notification of grounds to cancel an SFC licence and opportunity to be heard (appendix 1) to the licence holder inviting them to an opportunity to be heard
  Include a summary list detailing the documents and policies reviewed and that led to issuing the notification
• allow a reasonable timeframe for the licence holder to confirm whether they will participate in an opportunity to be heard (1 to 2 weeks suggested, unless there is an immediate risk)
• inform that they may be accompanied by legal counsel, invite witnesses and provide supporting documentation
• if the licence holder indicates they would like to meet virtually or in person, request a list of participants
• if the licence holder indicates that they will have legal representation at the opportunity to be heard, consult CFIA Legal Services
• if the licence holder indicates they would like to participate by a written submission, provide the means to do so
• review documentation the licence holder submits in advance, if applicable
• limit CFIA participants at the meeting to those necessary: the Minister's delegate, 1 or 2 people necessary to address any technical questions related to the non-compliances (such as a supervisor or specialist), and Legal Services, if required

The format (virtual, in person, written submission etc.) of the opportunity to be heard is at the discretion of the licence holder.

6.7.2 Chairing an opportunity to be heard

When chairing an in-person or virtual meeting for an opportunity to be heard:

• introduce yourself as the Minister's delegate for the matter
• introduce CFIA participants and licence holder including those accompanying them
• explain the purpose of the opportunity to be heard
• provide the licence holder with a verbal summary of the events that led the Minister's delegate considering cancelling the licence and explain how those events resulted in the grounds for cancellation
• explain that harm, history and intent are factors that may be considered when making a decision
• provide the licence holder an opportunity to provide any new or additional information they would like to share and that is relevant to the matter
• document all information provided during the meeting including information provided by the licence holder
• do not make a decision during the meeting

In the event that the licence holder declines the opportunity to be heard or does not respond within the period mentioned in the notification, proceed to section 6.8.

6.8 Decide if licence action will be taken

When making a decision on licence action:

• a) determine if the facts support the ground(s) for licence action by considering and weighing all information related to the issue including:
  • the grounds for the licence action as prescribed in the relevant provision of the SFCR
  • Compliance and enforcement policy, SRRP, Food regulatory response guidelines and any other relevant guidance documents
  • information on harm, history and intent
  • in the case of potential cancellation, information provided by the licence holder (as applicable) before and during the opportunity to be heard
  • in all other cases (suspension, lifting a suspension etc.) any information which may have been provided by the licence holder
• b) make the decision whether or not there will be action against the licence within a timeframe that is reasonable based on the risk to human health, complexity of the situation and information to be reviewed
• c) record the following information on the provided Action Form:
  • a summary of the information consider in step a) above
  • address any contradictory or seemingly contradictory information
  • summary of the grounds used for the decision
  • rationale for the decision
  • final decision whether or not to take action against the licence
  • identify any meetings or consultations in relation to the decision
• d) inform the inspection staff of the decision by returning the completed and signed Action Form.

Note: the licence holder should be notified in the event that it is decided not to proceed with licence cancellation after an opportunity to be heard. Send a Decision in respect of cancellation of an SFC licence following the opportunity to be heard to the licence holder to inform them of the decision not to cancel.

6.9 Review the draft notification of licence action decision

Review the notification of licence action which was drafted by inspection staff using the information provided on the Action Form. The notification must be reviewed to ensure the decision is complete, transparent and justified. Appendix 2 provides tips on writing a decision.

Sign the notification digitally if it will be delivered via email to the licence holder as per the Operational guideline: Application of digital signature to domestic inspection documents (accessible only on the Government of Canada network – RDIMS 14129982). If the decision will be delivered in person or by registered mail, a wet signature is appropriate.

Provide the completed and signed notification to the inspection staff to be delivered to the licence holder.

Note: the Minister's delegate is responsible for reviewing, editing, as required, and signing the notification of a licence action. Only the Minister or a person occupying a position to whom the Minister has delegated the duties and functions of the Minister under the provisions of SFCR may make the decision to take licence action.

6.10 Notify the National Centre for Permissions (NCP) of the decision to take a licence action

Once the decision has been made to take a licence action, the Minister's Delegate will ensure a red-flagged e-mail is sent to the NCP at Permission@inspection.gc.ca:

• subject line "Amendment/suspension/lifting suspension/cancellation – SFC licence – licence number – company name" (select appropriate licence action)
• communicate the ground(s) for the licence action in the body of the e-mail
• include the date and time the licence action takes effect
• attach supporting documentation (if applicable) to help the NCP document the Minister's delegate's decision when the NCP removes the regulated party from the Safe Food for Canadians Licence Registry
• request the licence holder be removed from the following lists (as applicable):
  • Canadian fish and seafood establishments approved for export
  • Search the list of Federally Registered Meat Establishments and their Licensed Operators
  • Processed egg stations registered for export
  • Shell egg stations registered for export
• include the inspection staff responsible for verifying compliance of the licence holder on the email

Note: in the event of a licence cancellation refer to the Procedures for cancelling an SFC licence section 6.9 Notify the Food Import / Export Division (FIED) of the decision to cancel a licence.

6.11 How and when to report licence actions to senior management

Once it has been decided that an SFC Licence action will be taken, inform CFIA Senior Management using the following guidance documents:

• Process for Reporting Licence Suspensions or Cancellations of Safe Food for Canadians licences (accessible only on the Government of Canada network – RDIMS 18620063)
• Daily Issues Guidance (accessible only on the Government of Canada network – RDMIS 17639709)

The purpose of the guidance documents are to outline the specific timelines and processes to be followed when reporting a licence action, such as licence suspension and cancellation.

Consult both of the guidance documents in the event of a licence suspension or cancellation, since a Daily Issue is a part of the reporting process.

7. Appendices

• Appendix 1 – Forms and templates
• Appendix 2 – Tips on writing a decision

For general inquiries related to this Operational Guidance Document, please follow established communication channels, including submitting an electronic Request for Action Form (e-RAF) (accessible only on the Government of Canada network).

Appendix 1 – Forms and templates

• Recommendation for an SFC Licence Action Form (accessible only on the Government of Canada network – RDIMS 10461441)
• Notification of grounds to cancel an SFC licence and opportunity to be heard (accessible only on the Government of Canada network – RDIMS 10491403)
• Decision in respect of cancellation of an SFC licence following the opportunity to be heard (accessible only on the Government of Canada network – RDIMS 15708559)

Appendix 2 – Tips on writing a decision

Note: this is not an exhaustive list

Considerations prior to making the decision

• check boxHas all the documentation (written and oral) related to the issue been presented and reviewed?
• check boxHas all applicable CFIA policies and guidance been considered and adequately applied?
• check boxWas the licence holder provided an opportunity to be heard (if applicable)?
• check boxWas a health risk assessment provided (as applicable)?
• check boxWas the harm, history and intent of the licence holder considered?
• check boxThe CFIA has a variety of control and enforcement actions. Are there other actions to be considered which should be used either independently or concurrently as the situation warrants?

Justify the decision

• check boxProvide the legal authority under which the decision is made, including your delegating authority to make the decision
• check boxProvide the context – the history leading to the decision
• check boxClearly state the reasons for the decision
• check boxRefer to the supporting information (including acts and regulations, policies and guidance) that were considered
• check boxRespond to contradictory or seemingly contradictory information
• check boxAddress written or oral arguments provided by the licence holder (if applicable)
• check boxAddress difficult issues
• check boxVerify that the outcome is in line with the provided facts and the SFCA/SFCR
• check boxIndicate the date on which the decision takes effect

Additional elements to consider in writing a decision

• check boxThoroughness
• check boxBe concise – avoid repetition and unnecessary references
• check boxAccuracy
• check boxTone
• check boxObjectivity

Record keeping

• check boxNote taking must be complete, accurate and provide enough detail to justify the decision