2019 CAFLP Annual Conference Panel Recap: “Updates in Canadian Food Law and Policy”

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Nine people who work in the field of food law and policy provided updates in their respective areas of practice for this keynote.

The first speaker was Tom Rosser, who works at Agriculture and Agri-Food Canada. He spoke about the National Food Policy, specifically that this is a way of looking at the food system as a system opposed to its parts in silos.

The federal government has 15 agencies that have some sort of mandate around regulating aspects of the food system. Currently, there is no systemic or institutional way to see what these agencies are doing, and creating this policy under which agencies will work together is part of what the National Food Policy is looking to do. The National Food Policy came out of a fairly intensive consultation period which resulted in consensus around the recommendations. 47 000 people participated in the consultation across Canada, and there was engagement with five national Indigenous organizations. Out of this came three big themes.

The first theme was food security. Canada has a low rate of food security, especially among some demographic grounds such as Indigenous communities. To address this, they created a local food infrastructure fund and funding for northern and remote communities. Now, the federal government is doing consultations on a National Food Policy for Schools. The second theme was food waste. Although data is unreliable in this area, it suggests that a third of food is wasted throughout the good system. The National Food Policy tries to show federal leadership on this issue and provides funding to help scale up and replicate some community level work around food waste that is being done. The third theme was governance. For this, a National Food Policy Advisory Council was created.

The second speaker was Lyzette Lamondin from the Canadian Food Inspection Agency, who spoke specifically about the Safe Food for Canadians Act and Regulations. When the Safe Food for Canadians Act was passed in 2012, it presented a challenge – whether to update the current existing regulations or to be more ambitious and try to fix a lot of problems with the current system. The government chose the ambitious route, primarily because the laws were old and intended for a more regional food system and therefore had a lot of holes. For example, an import license was only required if importing meat, fish and cheese.

There are now three pillars for food safety in Canada – licensing, preventative control plan, and traceability. There has been a move to outcome-based regulations wherever possible to allow businesses to introduce new technologies, processes and procedures, and to respond to emerging threats. Changes were also made to reflect consistent, internationally recognized requirements, level the playing field between imported and domestic products, support ongoing market access and to align with trading partners.

The third speaker was Glenford Jameson from G.S Jameson and Company, who spoke about advertising and labelling. Bill S-228 was a public bill from a member of the Senate that sought to limit the ability for food companies to advertise to people who were 17 years of age or less. This had support of all three parties and was footsteps from being passed but did not make it over the line because of the election. He believes that this is a harbinger of things to come and should be keeping an eye out for changes in this area.

The second thing that Glenford spoke about was front of package labelling. Specifically, that the Gazette had published some proposed changes to the regulations, which would require specific nutritional labelling on the front of packaging. This currently exists in other jurisdictions such as Europe, but for now seems to have quieted off in Canada.

The third thing that Glenford spoke about was a change in the Safe Food for Canadians Act that is a huge change for Canadian lawyers. A lot of laws that existed have migrated under this Act from being quasi-criminal enforcement to a licensing approach. This means that a license is required for many things and can be taken away if there are violations. There are now administrative monetary penalties for infringements within the Act and Regulations as well, which he sees as creating a totally different relationship from what existed before.

The fourth speaker was Carmen Francis, who is a senior associate at McCarthy Tétrault. She spoke about free trade agreements (FTA). Currently, Canada is in a free trade frenzy with Latin America and we have been building these relationships very successfully. She saw this as being a wise thing to do given the current state of some of our trading relationships, which have been fickle and subject to retaliatory tariffs.

However, we are seeing a lot of replication. For example, we have three existing FTAs with Peru – the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), an individual FTA and a bilateral one. This means that we now have trading partners who are subject to multiple FTAs that have different provisions. This presents some potential obstacles such as implications for sourcing diversification, strategic selection for optimal rules of origin and choice of alternative dispute mechanisms.

The fifth speaker was Melana Roberts, who is the Chair of the Board for Food Secure Canada. This is a pan-Canadian alliance that works with individuals and organizations to advance food security and food sovereignty through three interlocking goals – information hubs, dynamic networks and policy advocacy.

Looking at the current state of food insecurity in Canada, we need to centre dismantling racist structures to address food insecurity. Black households are twice as likely to experience food insecurity regardless of other factors, and half of Indigenous households in Canada experience food insecurity. Affordability and purchasing power are key determinants for measuring food insecurity and we need to look at income-based solutions. The focus needs to not be on cheap food because that puts a burden on other parts of the food system, such as farmers, who are often food insecure themselves.

The sixth speaker was Darcy Lindberg from the University of Alberta who spoke about Indigenous laws and food security. Indigenous laws are being used to protect foodscape sovereignties as well as to reclaim a humane relationship to food sources, respond to social, legal, economic and environmental inequities and to respond to climate change.

There has been a reclamation and resurgence of Indigenous law and tradition regarding foodscapes specifically. Darcy gave several examples, one being in his home community, in which there is now the Buffalo Treaty. It is a multi-national treaty between several Indigenous nations, Canada and the U.S.A. to reclaim historical relationships with buffalos and to revitalize buffalo on the prairies.

Overall, Indigenous nations are feeling the brunt of food insecurity and the impact of climate change, so they are taking broad steps to address these issues using their historical traditions. Traditionally, resource development has effects on Indigenous laws regarding food sourcing and there is a lack of response to Indigenous food crises in relation to non-Indigenous emergencies and we are seeing a resurgence of Indigenous people relying on their traditions to address issues in their communities.

The seventh speaker was Camille Labchuk, who is the executive director of Animal Justice, and she spoke about animal rights. Canadians are eating more and more meat, especially chicken. Many organizations are emphasizing chicken and fish consumption to reduce the impact of eating meat on climate change, but she sees this as being useless because more fish and chicken need to be raised and killed opposed to larger animals.

However, there are not many federal laws around raising and consuming animals; just around transport and slaughter. Our laws in Canada for animal transport lag behind others. Until recently, they hadn’t been updated since 1977. Animals are transported in open-sided vehicles where they are exposed to all types of weather and are not given food or water. New transport regulations were introduced and are coming into force next year. However, these are not in line with what was proposed by researchers. For example, cattle currently can be transported for 48 hours (up to 52). Research suggests 24 hours should be the maximum, but the new proposed time is 36 hours.

Humane labelling was another problem area that Camille spoke about. There are no defined terms or legal requirements for terms like pasture-raised and humane. We need to start regulating use of these terms.

The eighth speaker was Ryan White, who is a partner at Cavaluzzo LLP, and spoke about workers’ rights. App-based delivery services have quickly become part of the fabric of our ever day lives. However, many of these services work by saying that they are only connecting three parties together contractually and so their workers are independent contractors opposed to employees. These workers are not being given a voice in their workplace. Foodora is currently saying that independent contractors cannot be unionized because of their distinction as independent contractors. This is currently being challenged in court.

There is also a class action lawsuit that was started in 2017 against Uber for failing to provide minimum standards. It was stayed in 2018 because of a clause that was in contracts stating that they need to go to the Netherlands to arbitrate any issue. However, the Ontario Court of Appeal held that the contract was unconscionable and now it is at the Supreme Court being argued. These cases could be precedent setting and cover a huge swath of the economy.

The ninth and final speaker was Shane Martinez from Martinez Law on the temporary foreign worker programs. The Seasonal Agricultural Worker Program started in 1966 and uses workers from Mexico and the Caribbean to keep the agriculture sector alive in Canada. These work permits are negotiated by the two countries involved and the employer. The worker does not get a seat at the table.

Currently, work permits are tied to a particular employer and there is no way to move to a different employer for better work conditions except by filing a complaint. However, these complaints need to be filed over the internet or in an immigration office. A lot of these workers do not have internet access or access to transportation to get to an immigration office, so this is a largely useless process.

In Nova Scotia, there was a case called Millan Farms Limited, and the court addressed the conditions seasonal workers work in. The court determined that overworking is okay as long as it is through informed consent and they declined to say whether breaks should be mandatory.

Migrant farm workers in Canada are currently excluded from the Residential Tenancies Acts, and have no pathway to permanent residency even though many of them have been coming to Canada for upwards of 8 months out of the year for many years and have spent more time in Canada than they have in their own home countries. We need many legislative changes to better support migrant farm workers.