McBride v. Director of Regulatory Compliance, Ontario Raw Milk Quality Program, 2003 ONAFRAAT 38

Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West

Guelph, (Ontario) N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: AFRAAT@ontario.ca

Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Email: AFRAAT@ontario.ca

McBride v Director of Regulatory Compliance, Ontario Raw Milk Quality Program

McBride v Director of Regulatory Compliance, ORMQP 2003 ONAFRAAT 38

Ministry of Agriculture, Food and Rural Affairs Act

December 23, 2003

DATE OF DECISION:

December 23, 2003

2003-38

2003 ONAFRAAT 38

McBride v Director of Regulatory Compliance, Ontario Raw Milk Quality Program

IN THE MATTER OF THE MILK ACT AND SECTION 16 OF THE MINISTRY OF AGRICULTURE AND FOOD ACT.

AND IN THE MATTER OF: An Appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal by Harry McBride, Westmeath, Ontario from the decision of the Director of Regulatory Compliance, Ontario Raw Milk Quality Program, to permanently shut him off from the milk market.

AND IN THE MATTER OF: A motion by the Director of Regulatory Compliance, Ontario Raw Milk Quality Program, that the Tribunal limit or cancel the stay in effect by virtue of Section 25 of the Statutory Powers Procedure Act and Section 16 (6) of the Ministry of Agriculture Food and Rural Affairs Act.

Before:

Andrew Osyany, Vice Chair; Ralph Huckle, Member.

Appearances:

Geoffrey P. Spurr, counsel to the applicant, the Director of Regulatory Compliance

Harry McBride, respondent to the motion

Gordon McBride, witness for the respondent

DECISION OF THE TRIBUNAL

This motion was heard by the Agriculture, Food and Rural Affairs Appeal Tribunal (Tribunal) by way of a conference call on December 23, 2003. The Director of Regulatory Compliance, Ontario Raw Milk Quality Program (Director) brought a motion seeking to limit or define the stay resulting from the appeal by Mr. Harry McBride from the Director’s decision to shut him off from the milk market. The appeal of the Director’s decision is to be heard by the Tribunal, with a different panel, on December 30, 2003.

Statutory Context

Subsection 16.(6) of the Ministry of Agriculture, Food and Rural Affairs Act states:

Effect of appeal

(6) Where, by virtue of subsection 25 (1) of the Statutory Powers Procedure Act, an appeal under subsection (1) or (2) operates as a stay in the matter, the Tribunal may limit or define the scope of the stay.

Subsection 25. (1) of the Statutory Powers and Procedures Act, states:

Appeal operates as stay, exception

(1) An appeal from a decision of a tribunal to a court or other appellate body operates as a stay in the matter unless, another Act or a regulation that applies to the proceeding expressly provides to the contrary; or (b) the tribunal or the court or other appellate body orders otherwise. 1997, c. 23, s. 13 (21).

Background

On September 24, 2003, Mr. Peter Gould, the Director, issued a decision to permanently shut-off Mr. Harry McBride from the milk market on the grounds that milk was stored, transported and transferred in an unsanitary manner on September 17, 2003. Field Services Representatives (fieldpeople) had advised the Director that milk was transferred from olive barrels to Mr. McBride’s bulk tank with a sump pump.

The Director was asked to reconsider his decision by Mr. McBride. On October 29, 2003 he affirmed his original decision. Subsequently, Mr. McBride appealed to the Tribunal.

Mr. McBride’s appeal to the Tribunal triggered a stay of the Director’s decision to shut-off Mr. McBride from the milk market.

Position of Parties

Mr. Geoffrey Spurr, representing the Director, submitted that a stay on the Director’s decision was not appropriate in this circumstance. He said that enforcing the stay would repudiate the Director’s decision and that the danger to human health posed by milk being transferred in unsanitary conditions outweighed any prejudice to Mr. McBride. He also submitted that the lapse of time between the Director’s decision and the launching of an appeal indicated there was no immediate urgency in picking up Mr. McBride’s milk and also that the hearing was scheduled for December 30, 2003.

Mr. Spurr said that the Director had indicated he would not endanger his staff by sending them to the McBride farm, as Mr. Gordon McBride had assaulted one of his staff. He said that decision was distinct from the decision to shut-off Mr. Harry McBride from the market and had not been appealed.

Mr. Spurr pointed out that one of the purposes of the Milk Act was to control and regulate the quality of milk. He said Regulation 761, which Mr. McBride was alleged to have violated, was designed to ensure milk is produced, stored and transported safely.

Mr. Spurr said the test the Tribunal should use in considering this matter was found in a decision by the Supreme Court of Canada in a case involving RJR MacDonald Inc.. He said the first step was to determine whether or not there is a serious question to be considered. Mr. Spurr submitted that this case was clearly on a serious matter. He said the Tribunal should then determine if allowing the stay would cause irreparable harm. He submitted that the potential for harm to the public was sufficient to meet the test of irreparable harm. Mr. Spurr said the final step is for the Tribunal to balance the inconvenience alleged to be suffered by both parties in making its decision. Mr. Spurr argued that the interest of public safety outweighed the potential financial harm to Mr. McBride.

Mr. Harry McBride told the Tribunal he wanted to get back on the market before he lost his farm. He said the Farm Credit Corporation and another creditor had both threatened to foreclose. He explained he was required to make loan payments of $10,000 per month and that he needed income from his milking herd in order to make the payments. Mr. McBride submitted that he had made one mistake in allowing his son to market milk through his bulk tank and he should not be punished forever. He said he had suffered from being shut-off from the market for three months. Mr. McBride said he had still not recovered from losses related to a barn fire a few years before.

Mr. Gordon McBride said the assault charge against him as a result of an altercation with a fieldperson had been dropped and he was never convicted. He said he had spoken with fieldpeople who said they were willing to come back on the farm. Mr. Gordon McBride told the Tribunal there would be no more transfers of milk from his farm to Harry McBride’s bulk tank.

Mr. Spurr said the Director did not dispute that there is a significant financial consequence to Mr. Harry McBride because he is shut-off from the milk market.

Findings

The Tribunal finds that in an administrative type appeal, such as market quota and the like, there may be good reasons to stay the decision under appeal until the hearing of the appeal. In this case, however, the risk to health and safety from unsanitary milk production and transportation practices is the principal consideration. The health of the public is at risk by accepting milk that has been produced and provided under unsanitary conditions. The confidence of the public and the producers in the entire statutory scheme would also be undermined by the acceptance of milk that has been produced and provided under unsanitary conditions. Mr. McBride has already been cautioned against what he has been found to do in this decision and it is most appropriate that until the hearing in this matter is concluded and a decision is rendered the Director’s decision should remain in effect. The public considerations far outweigh the financial harm that will be caused to Mr. Harry McBride by continuing to be shut out from the milk market.

Decision

After careful consideration of the evidence filed and the submissions made the Tribunal orders:

The motion by the Director to limit or define the scope of the stay is granted.
The statutory stay in effect by virtue of Mr. McBride’s appeal is lifted and Mr. McBride shall continue to be shut out of the milk market until a decision in the appeal is rendered.

Dated at Shelburne, Ontario the 23^rd day of December, 2003.