Background

[1]          Eliazer Parulan (“Applicant”) is requesting a review of an Administrative Monetary Penalty (“AMP”) issued on March 23, 2023, for a violation of s. 7(1) of the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act (“WAPPRIITA”). The AMP levied was for $800.

[2]          In December of 2021, the Applicant transported a leopard tortoise (stigmochelys pardalis) from Saskatoon, Saskatchewan to Winnipeg, Manitoba, without first obtaining a Live Wild Export permit from the relevant provincial authority. The cost to obtain the permit would have been $30, but the Applicant was not aware of the requirement to procure it. At the time of this hearing, the Applicant fully acknowledged he contravened the applicable legislation and did not have the requisite permit.

[3]          The Applicant travelled with the tortoise, as a courtesy, to deliver it to his friend without expectation of profit. He ultimately received $100 from his friend as reimbursement for travelling expenses.

[4]          A pre-hearing conference took place on September 21, 2023. At that time, counsel for the Minister of Environment and Climate Change Canada (“ECCC” or the “Minister”), indicated that the penalty appeared to have been incorrectly calculated. Mr. Morrow undertook to file written submissions with the Environmental Protection Tribunal of Canada (“Tribunal”) explaining why, in his submissions, the correct amount of the AMP should have been $500.

[5]          Following receipt of the Minister’s submissions, the Applicant confirmed in writing to the Tribunal that he agrees with the amended penalty calculation.

[6]          For the reasons set out below, the Tribunal finds that the request for review must be allowed in part. The incorrect amount was imposed for the element of economic gain. The amount of the AMP should therefore be corrected from $800 to $500. The notice of violation is upheld, but the amount of the AMP is corrected from $800 to $500.

Issues

[7]          The issues are:

(a)   Whether ECCC has established the elements of a violation of subsection 7(1) of the WAPPRIITA;

(b)   If so, whether the amount of the AMP should be changed.

Facts

[8]          The parties agree to the relevant facts as set out in the Notice of Violation and amplified by the Agreed Statement of Facts also filed herein. The Applicant transported a live tortoise from Saskatchewan to Manitoba without previously obtaining a permit under the WAPPRIITA.

[9]          On March 23, 2023, Officer Mitchel Elder issued Notice of Violation no. 9400-8331 to the Applicant. The amount in the AMP was $800, broken down as follows:

$400 (baseline amount for the violation)

$400 (economic gain).

Discussion

[10]       In his written submissions, counsel for the Minister submitted that in the monetary penalty under review, the economic gain penalty amount used was $400 – which is the amount intended to apply to Type B violations. In this case, however, the additional economic gain incurred by the Applicant was limited to his failure to obtain a permit prior to transporting the tortoise. As such, the Minister submitted that the correct economic gain penalty should be calculated pursuant to s. 8(2) of the Environmental Violations Administrative Monetary Penalties Regulations (“EVAMP Regulations”). As a result, the Minister concluded that the appropriate economic gain amount with respect to this violation should be $100.

[11]       The Applicant agrees with the Minister’s submissions and accepts that the correct amount of the AMP should be $500 in total.

Analysis and Findings

[12]       Subsection 7(1) of the WAPPRIITA prohibits transportation of an animal between provinces if a permit is required, and section 31(1) of Saskatchewan’s Wildlife Act, 1998 mandates the permit.

[13]       Read together, the Wildlife Act, 1998 and Appendix 1 of Saskatchewan’s Captive Wildlife Regulations, 2021 apply to the tortoise at issue in this case and a permit to transport is clearly required. As a result, the violation is established.

[14]       This kind of violation is subject to an AMP under the regime established by the Environmental Violations Administrative Monetary Penalties Act (“EVAMPA”). Given that the Applicant admits he transported the tortoise without a permit, issuing an AMP was warranted.

[15]       Under s. 20 of EVAMPA, after receiving a request for review and relevant information and representations, the Tribunal must verify whether the alleged violation was committed by the Applicant and whether the amount of the penalty was calculated correctly. To calculate the amount of an AMP, one must refer to the EVAMP Regulations. 

[16]       The burden of proof lies with the Minister, who must discharge it on a balance of probabilities. Section 20 is reproduced in full below:

[17]       The amount of an AMP is calculated in accordance with the EVAMP Regulations. In this case, the relevant provision is s. 4(1) of the EVAMP Regulations:

[18]       With respect to economic gain, the relevant provision is s. 8 of the EVAMP Regulations:

[19]       The Applicant admits that he violated s. 7(1) of the WAPPRIITA by transporting the tortoise without a permit.

[20]       A violation of s. 7(1) of the WAPPRIITA corresponds to a Type B violation according to Schedule 1, Part 3, Division 1 of the EVAMP Regulations. The baseline amount for a person who commits a Type B violation is $400. The AMP issued to the Applicant included the $400 baseline amount, as well as $400 for the economic gain component. There were no allegations of a history of non-compliance or environmental harm.

[21]       The $400 economic gain component in the AMP issued to the Applicant was calculated under subsection 8(1) of EVAMP Regulations. The Minister, on whom the burden rests to establish the elements of the AMP, has not established that the Applicant benefited from his violation of the WAPPRIITA. To the contrary, both the Applicant and the Minister agree that the only economic gain to the Applicant in this case was the avoidance of the cost of obtaining a permit.

[22]       The Tribunal finds that 8(2) is the correct provision to calculate the penalty in this case since the only economic gain was the avoidance of the cost of obtaining a permit. Column 7 of Schedule 4 for a Type B violation sets this economic gain component at  $100.

Conclusion

[23]       Given the Applicant’s admission, the role of the Tribunal is limited to verifying the amount of the AMP. The Tribunal finds that the baseline amount was calculated correctly, however the economic gain component was not.

Decision

[24]       The review is granted in part. The notice of violation is upheld, but the AMP amount is corrected from $800 to $500.