Canadian Food Inspection Agency Delays Release of Potentially Embarrassing Documentation for Over Two Years

In March 2017, Dr. David Kattenburg filed a complaint with the Canadian Food Inspection Agency (CFIA) regarding two wines produced in Israel’s illegal West Bank settlements. Those two wines were being sold in Ontario with false “Product of Israel” labels.

On July 12, 2017, Dr. Kattenburg learned from a post on the Facebook page of B’Nai Brith Canada that, on July 6, 2017, the CFIA had directed the Liquor Control Board of Ontario to order its wine vendors to cease the sale and importation of these settlement wines due to the fact that their labels were false.

The CFIA immediately came under intense pressure to reverse itself from the Israeli government and its advocates in Canada, including B’Nai Brith, the Centre for Israel and Jewish Affairs, and Liberal MP Michael Levitt. As a result of that pressure, the CFIA reversed itself less than 24 hours after Dr. Kattenburg learned of the CFIA’s initial – and correct – decision to bar the sale and importation of these falsely labelled wines.

Since then, Dr. Kattenburg has filed an appeal with the Complaints and Appeals Office of the CFIA in which he argues that the CFIA has capitulated to pressure from Canadian lobbyists for the Government of Israel and that the CFIA is improperly refusing to enforce Canadian consumer protection law. More detail regarding Dr. Kattenburg’s appeal can be found here.

On July 14, 2017, Dr. Kattenburg sent a request to the CFIA pursuant to Canada’s Access to Information Act (AIA). In that request, Dr. Kattenburg sought, among other documents,

(1) Copies of all emails, letters, and other communications regarding his complaint to the CFIA between CFIA personnel, officials of the Canadian government, and Members of Parliament;

(2) Copies of all emails, letters, and other communications regarding his complaint between CFIA personnel, on the one hand, and representatives or agents of B’Nai Brith Canada, the Centre for Israel and Jewish Affairs, or other advocacy Canadian groups or organizations, on the other hand; and

(3) Copies of all emails, letters, and other communications regarding his complaint between CFIA personnel and representatives of the government of Israel.

Under section 7 of the AIA, the head of a government institution like the CFIA is required to give access to the requested records within thirty days after the request is received. The 30-day requirement is, however, subject to certain exceptions. One such exception is set forth in section 9 of the AIA, which provides that the head of a government institution may extend the time limit set out in section 7 “for a reasonable period of time” (emphasis added) if the request is for a large number of records and meeting the original time limit would unreasonably interfere with the operations of the government institution, or if consultations are necessary to comply with the request that cannot reasonably be completed within the original time limit.

On August 17, 2017, Dr. Kattenburg received a letter from the CFIA in which it advised Dr. Kattenburg that it was taking a time extension of up to 800 days and that the revised  due date for completing the processing of Dr. Kattenburg’s request is October  28, 2019. Notably, the next federal election in Canada is scheduled to occur on October 21, 2019 – one week before the CFIA’s revised due date for completing the processing of Dr. Kattenburg’s request.

As a result of the CFIA’s attempt to delay the release of these potentially embarrassing documents for an inordinate period of time, I have filed a complaint on behalf of Dr. Kattenburg with Canada’s Information Commissioner. The text of that complaint is reproduced below, in full.

*****************************************************************

Dear Sirs/Mesdames:

I am counsel to Dr. David Kattenburg, a resident of Winnipeg, Manitoba.

On July 17, 2017, Dr. Kattenburg transmitted to the CFIA an ATIP pursuant to the Access to Information Act (the “Act”). A copy of that ATIP is appended hereto as Annex “A”.

The CFIA responded to my client’s ATIP by letter dated August 17, 2017. It thus took 30 days for the CFIA to respond to my client’s ATIP which, as you know, is the maximum amount of time allowed by section 9(1) of the Act for responding to such a request.

In its August 17, 2017 letter, Heather Smith of the CFIA advised Dr. Kattenburg as follows:

Your request involves a large number of records and meeting the original time limit would unreasonably interfere with the operations of the Agency. In addition, your request also involves information about third parties and other government institutions. Pursuant to section 27 of the Act, we are required to contact the third parties to provide an opportunity to make written representation as to why the records should not be disclosed. The decision to release the records will be based upon review of these representations and will be subject to  appeal by the third  parties.

We are taking a time extension of up to 800 days as defined in paragraph 9(1)(b)(c) of the Act, to complete the processing of your request. The revised due date is October 28, 2019.

I am writing to you to complain on Dr. Kattenburg’s behalf of the inordinate time extension proposed by the CFIA for completing Dr. Kattenburg’s request. As you know, Section 9(1) of the Act provides that “The head of a government institution may extend the time limit set out in section 7 or subsection 8(1) in respect of a request under this Act for a reasonable period of time…” [emphasis added].

By any rational measure, 800 days is an unreasonable period of time to complete my client’s request.

The Background of Dr. Katttenburg’s ATIP

It is important to understand the context in which Dr. Kattenburg filed this ATIP with the CFIA.

In January 2017, Dr. Kattenburg filed a complaint with the Liquor Control Board of Ontario (LCBO). Dr. Kattenburg’s complaint was that the LCBO was selling two wines produced in Israel’s illegal settlements in the West Bank, and that those wines were falsely labelled as “Product of Israel.” The wines about which he complained were Shiloh Legend KP 2012 and Psagot Winery M Series, Chardonnay KP 2014.

By March 2017, the LCBO had not resolved Dr. Kattenburg’s complaint. Dr. Kattenburg therefore filed a complaint directly with the CFIA on March 31, 2017. The CFIA is mandated by law to ensure that food and beverages sold in Canada are accurately labelled.

On July 12, 2017, Dr. Kattenburg learned from a post on the Facebook page of a lobby group, B’Nai Brith Canada, that, on July 6, 2017, the CFIA had directed the LCBO to order its wine vendors to cease the sale and importation of these wines because their labels were false.

Upon making this decision, the CFIA immediately came under intense pressure from the Israeli government and its advocates in Canada, including B’Nai Brith Canada, the Centre for Israel and Jewish Affairs, and Michael Levitt. Mr. Levitt, a Liberal MP for York Centre, is the Chair of the Canada-Israel Interparliamentary Group. These advocates for Israel, who describe their Israel advocacy as ‘relentless’, professed ‘shock’ and ‘dismay’ that a Canadian consumer protection agency would have the temerity to require wines produced in Israel’s illegal settlements to be labelled accurately.

As a result of their pressure, the CFIA reversed itself less than 24 hours after Dr. Kattenburg learned of the CFIA’s initial – and correct – decision to bar the sale and importation of these fraudulently labelled wines. Citing an obscure provision of the Canada-Israel Free Trade Agreement (CIFTA), the CFIA claimed not to have given adequate consideration to CIFTA and, remarkably, apologized for its initial and correct decision.

On August 6, 2017, in my capacity as Dr. Kattenburg’s legal counsel, I transmitted to the CFIA’s Complaints and Appeals Office (CAO) Dr. Kattenburg’s appeal from the CFIA’s decision to continue to allow these settlement wines to be falsely labelled. The basis of Dr. Kattenburg’s appeal to the CAO can be found here: https://dimitrilascaris.org/2017/08/07/dr-david-kattenburg-files-appeal-from-canadian-food-inspection-agency-decision-to-allow-false-and-deceptive-labels-on-wines-from-illegal-israeli-settlements/.

As detailed in documents filed by Dr. Kattenburg with the CAO, the CFIA has refused to provide to Dr. Kattenburg copies of its initial decision to bar the sale of these fraudulently labelled wines. The CFIA has failed to provide this decision to Dr. Kattenburg despite assurances from CFIA inspector Richard Harlos that that decision would be emailed to Dr. Kattenburg.

In addition, the CFIA has refused to provide to Dr. Kattenburg a copy of its decision to reverse its initial decision. Nor has the CFIA provided to Dr. Kattenburg written reasons for either its initial decision or its reversal decision. The CFIA has also refused to disclose to Dr. Kattenburg how B’Nai Brith Canada, a lobby group, learned of the CFIA’s decision to bar the sale of these fraudulently labelled wines before Dr. Kattenburg, the complainant who initiated the CFIA’s initial decision, learned of that decision himself.

The CFIA’s Self-Reversal and Disclosure Failures Contradict its Commitment to Transparency and Independence

The CFIA’s self-reversal and failures of disclosure directly contradict the CFIA’s stated commitment to transparency and independence. According to the CFIA’s Statement of Values:[1]

The reputation and credibility of the Agency are vital to our ability to deliver our mandate. As such, we behave, internally and externally, in a way that trust is preserved.[…]

We maintain our regulatory independence from all external stakeholders. We have the courage to make difficult and potentially unpopular decisions and recommendations, free from personal bias. [Emphasis added.]

Similarly, Section 3 of the CFIA’s Transparency in Regulatory Decision-Making; Policy Framework states:[2]

The Canadian Food Inspection Agency (CFIA) is committed to being as transparent as possible and will proactively provide the public with useful and timely information on CFIA regulatory programs and services, regulatory requirements, and the outcomes of its enforcement actions and decisions. [Emphasis added.]

Timely Disclosure is a Pillar of Canada’s Access to Information Regime

In May 2016, the Information Commissioner of Canada stated as follows to the Standing Committee on Access to Information, Privacy and Ethics:

Timely access to information is a pillar of any access to information regime. Timeliness has been a long standing struggle of our access to information regime. Delays are a frequent subject of complaints by requesters. Investigations of these complaints have revealed a culture of delay across the access to information system.[3]

A delay of 800 days would render any information released by the CFIA extremely stale and of limited if any utility to Dr. Kattenburg or to the general public. Transparency ensures accountability. When information about the conduct of public servants is withheld for prolonged periods of time, the goal of ensuring accountability is undermined.

In this case, the inordinate extension of time proposed by the CFIA raises particular concerns about government accountability. As explained by Dr. Kattenburg in his appeal to the CAO, Liberal MP Michael Levitt clearly pressured the CFIA to reverse its initial – and correct – decision to bar the sale of these fraudulently labelled wines. After the CFIA reversed itself, lobby group B’Nai Brith Canada issued a statement in which it acknowledged that the CFIA was ‘pressured’ to reverse its decision and B’Nai Brith “specifically lauded” Mr. Levitt “for his quick work and leadership behind the scenes to help resolve this issue.”[4]

The CFIA is proposing to release documents responsive to Dr. Kattenburg’s ATIP no earlier than October 28, 2019. The next federal election is scheduled to be held on October 21, 2019.[5] By selecting a disclosure date that falls one week after the next scheduled federal election, the CFIA, whether wittingly or unwittingly, is potentially shielding the current government from the release of embarrassing information before the next federal election. Canadian voters are entitled to know before the next federal election whether Mr. Levitt and/or other MPs from the governing party impeded the enforcement of Canadian consumer protection laws to satisfy the demands of special interest lobby groups like B’Nai Brith Canada.

The CFIA’s Proposed 800-Day Extension is Egregious Even by the CFIA’s Own Poor Standards of Disclosure

In its 2011 report card on the CFIA’s compliance with the Act, the Office of the Information Commissioner (“OIC”) concluded that the CFIA “performed poorly in 2010–2011.”[6] According to the OIC, during the period 2010-2011, the average time for the CFIA to complete a request was 188 days (compared to 50 days in 2009-2010).

The CFIA’s proposed time extension in this case is approximately 4.3 times longer than the average completion period that prompted the OIC to rate the CFIA “poorly” in its 2011 report card. If an average completion period of 188 days is ‘poor’, then a completion period of 800 days is plainly egregious.

The CFIA’s Rationale for its Proposed 800-day Extension is Implausible

The CFIA’s proposed 800-day extension is based in large part on its claim that responding to Dr. Kattenburg’s ATIP requires it to review a “large number of records.” However, five of the six categories of documents sought by Dr. Kattenburg relate to Dr. Kattenburg’s complaint about two fraudulently labelled wine products, neither of which is widely sold in Canada. Moreover, Dr. Kattenburg filed his complaint with the CFIA on March 31, 2017 and the CFIA’s ultimate decision to reject his complaint was made on or about July 13, 2017. Thus, the period to which Dr. Kattenburg’s complaint relates is less than 3.5 months. Finally, the issue raised by Dr. Kattenburg’s complaint was narrow and discrete: namely, did the “Product of Israel” labels on these two wines comply with Canadian laws requiring accurate country-of-origin labelling?

In light of these facts, it is highly implausible that the number of documents that are responsive to Dr. Kattenburg’s request is so large that the CFIA requires well over two years to complete its response to Dr. Kattenburg’s ATIP.

Relief Sought

In light of all of the above-mentioned considerations, Dr. Kattenburg requests that the CFIA be required to complete his request within 90 days of its receipt of that request.

Should you have any questions in regard to the above, please do not hesitate to let me know.

Yours very truly,

Alexander D. Lascaris

 

ANNEX “A”

 Documents Sought from the CFIA

Regarding Dr. David Kattenburg’s March 31, 2017 complaint to the Canadian Food Inspection Agency (CFIA) concerning the false labeling of two wine products on sale by the Liquor Control Board of Ontario (“THE COMPLAINT”), please provide:

a) Copies of all emails, letters, advisories and other communications between CFIA staff regarding THE COMPLAINT;

b) Copies of all emails, letters, and other communications regarding THE COMPLAINT between CFIA personnel, on the one hand, and officials of the Canadian government, Members of Parliament, officials of the Ontario government or members of Ontario’s Provincial Legislature, on the other hand;

c) Copies of all emails, letters, and other communications regarding THE COMPLAINT between CFIA personnel, on the one hand, and representatives or agents of B’Nai Brith Canada, the Centre for Israel and Jewish Affairs (CIJA), or other advocacy Canadian groups or organizations, on the other hand;

d) Copies of all emails, letters, and other communications regarding THE COMPLAINT between CFIA personnel and representatives of the government of Israel;

e) Copies of all emails, letters, and other communications regarding THE COMPLAINT between representatives of the Government of Canada and representatives of the Government of Israel; and

f) Copies of all CFIA directives, rulings, advisories, etc. regarding the country-of-origin labeling of wines produced in/near Israeli settlements within the Israeli-occupied West Bank or Golan Heights.

ENDNOTES

[1] http://www.inspection.gc.ca/about-the-cfia/organizational-information/vision-and-mission/eng/1299780188624/1319164463699.

[2] http://www.inspection.gc.ca/about-the-cfia/accountability/transparency-in-regulatory-decision-making/eng/1363183662938/1363185978804.

[3] http://www.oic-ci.gc.ca/eng/media-room-salle-media_speeches-discours_2016_6.aspx.

[4] http://www.bnaibrith.ca/government_pressuring_agency_to_comply_with_canadian_wine_regulations.

[5] https://en.wikipedia.org/wiki/43rd_Canadian_federal_election.

[6] http://www.oic-ci.gc.ca/eng/rp-pr_spe-rep_rap-spe_rep-car_fic-ren_measuring-up-etre-a-la-hauteur_9.aspx.

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