Executive Summary: Key Legal and Evidentiary Issues

• The PEI Potato Board challenged federal decisions restricting the movement of seed potatoes due to potato wart detections.

• The Court found the CFIA’s export suspensions were unauthorized but deemed the issue moot.

• The Ministerial Order declaring PEI “infested” was ruled reasonable and supported by scientific evidence.

• The Domestic Movement Requirements were upheld as consistent with the Ministerial Order and pest risk management standards.

• Procedural fairness was found to have been met given consultations and document sharing prior to the Order.

• Each party bore its own costs due to mixed outcomes, with no damages awarded.

Facts and outcome of the case

The Prince Edward Island Potato Board sought judicial review of a series of federal decisions made in response to the detection of potato wart, a quarantine pest, in potato fields across PEI. These decisions included a voluntary suspension of seed potato exports to the United States in November 2021, a Ministerial Order declaring the entire province as an “infested place” under the Plant Protection Act, and the implementation of movement restrictions known as the Domestic Movement Requirements.

The CFIA had acted after U.S. authorities requested a halt in exports due to the new detections of potato wart in PEI, with the risk of the U.S. imposing a full ban on Canadian potato imports. CFIA issued two notices suspending export certification of PEI seed potatoes first to the U.S., then to the rest of Canada. Subsequently, the Minister issued an order prohibiting the movement of PEI seed potatoes without inspector authorization. The PEI Potato Board argued these actions were taken without legal authority, lacked procedural fairness, and were unreasonable given the minimal spread and strong containment of the pest.

Court’s analysis and findings

The Court, presided over by Justice Southcott, found that the export suspensions by CFIA were not authorized by the Plant Protection Act because the law grants individual inspectors—not the CFIA broadly—the authority to issue or deny export certification based on the laws of importing countries. However, this issue was declared moot because the suspensions were no longer in effect and had been overtaken by U.S. policy changes.

The Court upheld the Ministerial Order. It ruled that the Minister had a reasonable basis to declare PEI infested based on scientific evidence, including risk assessments showing that human-mediated spread from certain fields could not be ruled out. Although only a small fraction (0.4%) of PEI potato fields had confirmed potato wart, the Court accepted that the risk of undetectable presence in other areas justified a province-wide declaration. The Court also found that trade considerations with the U.S., while relevant, did not improperly influence the decision.

The Court further upheld the Domestic Movement Requirements. These were based on international phytosanitary standards and designed to minimize risk from high-risk pathways like seed potatoes. The Court rejected the Board’s claims that these requirements misrepresented scientific assessments.

On the issue of procedural fairness, the Court determined that the Potato Board had been consulted prior to the Ministerial Order and had received draft documents and participated in meetings. Given the urgency and scope of the decision, the Court found that the level of consultation satisfied the duty of fairness.

Conclusion and result

The application for judicial review was dismissed. While the Applicant partially succeeded in demonstrating the CFIA’s export suspensions were unauthorized, this did not result in any remedy due to mootness. The Court confirmed the reasonableness of the Ministerial Order and the Domestic Movement Requirements. No costs were awarded, with each side ordered to bear their own legal expenses.