Dimi Meat Products v. Director under the Food Safety and Quality Act, 2009 ONAFRAAT 15

Agriculture, Food and Rural Affairs Appeal Tribunal

1Stone 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: appeals.tribunal.omafra@ontario.ca

Guelph (Ontario) N1G 4Y2

Tél. : (519) 826-3433, Téléc. : (519) 826-4232

Courriel : appeals.tribunal.omafra@ontario.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL:

Dimi Meat Products v. Director under the Food Safety and Quality Act

Dimi Meat v. Director 2009 ONAFRAAT 15

STATUTE:

Food Safety and Quality Act

HEARING:

June 15, 2009

DATE OF DECISION:

July 15, 2009

2009-15

NEUTRAL CITATION:

2009 ONAFRAAT 15

IN THE MATTER OF THE FOOD SAFETY AND QUALITY ACT AND THE MINISTRY OF AGRICULTURE, FOOD AND RURAL AFFAIRS ACT.

AND IN THE MATTER OF:

An Appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal by Dimi Meat Products (Elias Mitri), in Tottenham, Ontario, under Subsection 10(1) of the Food Safety and Quality Act (FSQA) from a decision of the Director appointed under the FSQA, dated March 23, 2009, in which the Director suspended the license of Elias Mitri, carrying on business as Dimi Meat Products.

Before:

Paula Lombardi, Vice-Chair; Rob Scouller, Member; Richard Smelski, Member

Appearances:

Elias Mitri (Dimi Meat Products), appellant

Gordon Meakings, counsel to the appellant

John Benedetti, respondent, Ontario Ministry of Agriculture, Food and Rural Affairs

Joan Torrie, counsel to the respondent

Ezekiel Martin, witness for respondent

Lee-Ann Walker, witness for respondent

Pierre Adrien, witness for respondent

Eloise Jones, witness for respondent

Dr. David McEwen, witness for respondent

DECISION OF THE TRIBUNAL

This appeal was heard in Guelph, Ontario, on Monday, June 15, 2009. Mr. Elias Mitri, the owner and operator of Dimi Meat Products, appealed to the Tribunal from a decision of the Director appointed under the Food Safety and Quality Act, 2001 dated March 23, 2009 to suspend the operating license of Elias Mitri, plant 243, carrying on business as Dimi Meat Products for a period of five working days.

Preliminary Matters

At the onset of the hearing, Tribunal member, Rob Scouller made a declaration advising the parties that he worked for the Ministry of Agriculture, Food and Rural Affairs approximately ten years ago in the area of labour relations and was familiar with the names of some of the individuals mentioned in documents provided for these proceedings. Mr. Scouller indicated that since leaving the Ministry he has had no professional dealings with any of the individuals, or discussed any matters relating to this appeal before the Tribunal. Mr. Meakings advised that his client has no concerns or obligations with Mr. Scouller participating on the panel.

As a preliminary matter, Mr. Meakings raised an objection relating to the inclusion of Tabs 15 onwards in the book of documents provided by the Ontario Ministry of Agriculture, Food and Rural Affairs (“Ministry”). Specifically, Mr. Meakings objected to the inclusion of documents relating to matters that occurred after the date of the January 30, 2009 hearing before the Director on the basis that they are not relevant to this appeal. Ms. Torrie objected to the inclusion of transcript pages 27 to 40 found at Tab 6 in the Appellants’ Document Book on the basis that the transcripts dealt with a separate matter before the director that is not properly before this Tribunal. On the agreement of both parties, the Tribunal ruled that Tabs 15 onwards in the Ministry’s book of documents would be excluded, and that transcript pages 27 to 40 in Tab 6 of the Appellants’ Document Book would also be excluded.

Ms. Torrie also identified that notwithstanding that she has had no communications whatsoever with the Tribunal’s counsel, Ms. Shannon DeLeskie, about the hearing of this matter, Ms. Torrie does report directly to Ms. DeLeskie on other legal matters. Mr. Meakings advised that he has no concerns about the relationship and reporting structure identified by Ms. Torrie.

Background

Mr. Elias Mitri is the owner and holder of a licence to operate a meat plant, identified as plant 243, carrying on business as Dimi Meat Products, in Tottenham, Ontario. Mr. Mitri has been in the meat industry for approximately fifteen years, and has been the sole owner of Dimi Meat Products since 2000. Dimi Meat Products is a free standing meat processing facility that utilizes well water as its source of water in its operations.

On February 13 , 2008 the Ministry issued Compliance Order C 000402 requiring Mr. Mitri to maintain daily records of Dimi Meat Products water system that utilizes chlorination as a means of disinfection. The Compliance Order C 000402 required Mr. Mitri to keep daily records of the water disinfection by measuring the chlorine level (“FAC”). The Ministry claimed that numerous requests were made verbally and in writing advising Mr. Mitri that he was required to keep a written record of the FAC tests and provide copies of the daily water records to the Ministry. According to the Ministry, despite their repeated requests, Mr. Mitri advised that he would not keep daily records and failed to provide the written records relating to the daily FAC tests.

On January 30, 2009, a hearing was held by the Director appointed under the Food Safety and Quality Act, 2001 (“Act”) to determine whether to suspend or revoke the licence of Elias Mitri, carrying on business as Dimi Meat Products, to operate a meat plant (plant 243) located at 6789 Mill Street, in Tottenham, Ontario. The issue at the hearing was to determine whether Mr. Mitri had complied with Compliance Order C 000402 issued on February 13, 2008 requiring Mr. Mitri to keep daily records of Dimi Meat Product’s water treatment system by measuring the free available chlorine level (FAC) and reporting the daily results in writing.

On March 23, 2009 the Director issued his decision finding that, on the balance of probabilities, Mr. Mitri was not keeping the written water treatment records as required and suspended Mr. Mitri’s licence to operate the meat processing plant for a period of five days. Mr. Mitri appealed the Director’s decision to this Tribunal which was heard by way of a hearing de novo.

Evidence – Dimi Meat Products

Mr. Elias Mitri testified that he is licensed to operate a meat processing plant and has been in the business of processing meat for approximately fifteen (15) years, and has been operating, as the sole owner of, Dimi Meat Products (plant 243) since the year 2000. Mr. Mitri employs between two (2) to three (3) employees on average at Dimi Meat Products.

Mr. Mitri produced a photograph taken on May 11, 2008 demonstrating the existence of the water disinfection system located at the Dimi Meat Products plant. Mr. Mitri stated that the disinfection system was in place and functioning in 2008. Mr. Mitri identified on the photograph the location of the tap used to take the water samples and test the FAC levels. Mr. Mitri provided the Tribunal with the test kit he uses to test the FAC in the water samples.

Mr. Mitri testified that he started taking water samples and using the kit to determine the FAC level in July 2008 after the Ministry advised him that he had to keep records of the levels of chlorination (“FAC”). The Ministry further advised Mr. Mitri that if he did not keep the records, the Ministry would take action such as suspending Mr. Mitri’s license to operate Dimi Meat Products (plant 243). Mr. Mitri advised that when he began FAC sampling of the water treatment system in July 2008, he would write the FAC test results on a calendar hanging in his office. Mr. Mitri provided the Tribunal with the original calendar pages reporting the FAC sampling results for the months of July, August, September, October and November 2008. For the months of July and August the calendar showed the time the water sample was taken along with the FAC levels. For the months of September to November 2008 only the FAC levels were written on the calendar and no times reported. Mr. Mitri stated that the FAC test results ranged from 0.5 to 2.0. Mr. Mitri noted that some of the test results were recorded in blue ink while others were reported in red ink depending on the pen that was available at the time.

Mr. Mitri stated that Area Manager Eloise Jones and Inspector Ezekiel Martin regularly attended the plant and when they were at the Dimi Meat Products plant they never requested the water treatment system sampling records reporting the FAC test results. Mr. Mitri testified that he showed Ms. Jones the calendar hanging on his office wall where he would write in the daily FAC test results of the water treatment system. When asked if Mr. Martin ever requested the written water testing records on November 13, 2008, Mr. Mitri stated that Mr. Martin did not ask for the water disinfection records. When asked whether Mr. Martin asked to see the written water sampling records on December 10, 2008, Mr. Mitri stated that he thought both Ms. Jones and Mr. Martin saw the FAC results written on the calendar that was located on his desk. Mr .Mitri stated that on November 13, 2008, Mr. Martin took a sample of water and checked the FAC level and reported the results in his log book and gave Mr. Mitri a copy of the log page. Mr. Mitri stated that there were no comments on the log page about him not keeping records.

Mr. Mitri testified that in his opinion he is not required to maintain daily water disinfection records and report the results of the FAC test results as it is not his job to test the water. Mr. Mitri testified that it is his understanding that the regulation requires the inspectors for the Ministry to test the water and FAC levels. Mr. Mitri stated that Section 36 of Ontario Regulation 31/05 (O.Reg. 31/05) requires the inspector to take a water sample from the water treatment system and test for FAC. Notwithstanding this understanding, Mr. Mitri indicated that when he was required to keep daily water disinfection records reporting the FAC test results, Mr. Mitri would take the FAC sample and write the results on the calendar hanging in his office.

Under cross examination by the Ministry, Mr. Mitri stated that he only took daily water sample readings on the days that the Dimi Meat Products meat processing facility was operational and that the FAC results were always either greater than one (1.0) or less than three (3.0), which Mr. Mitri understands to be the acceptable FAC levels. Mr. Mitri indicated that he uses the kit to check the chlorine levels and on a monthly basis adds chlorine to the water treatment system.

Mr. Mitri clarified that he did not operate the plant full time in December 2008 but could not recall the days he operated and agreed that it was possible that Dimi Meat Products was operational during the first two weeks of December 2008. Under questioning, Mr. Mitri agreed that he operated the meat processing plant for the whole month of November. Ms. Torrie noted that there were no water disinfection records for the FAC results reported for the last week of November on the calendar that Mr. Mitri stated he used to keep the daily water records.

Mr. Mitri also confirmed that he stopped keeping the daily water records of the FAC test results in the last week of November 2008 or in December 2008 because his license was suspended. Mr. Mitri again testified that, in his opinion, the legislation does not require him to test the water and keep daily water records. Specifically, Mr. Mitri advised that he was neither advised, nor aware, of any requirement in the Act that requires him to keep daily records. Mr. Mitri indicated that he was not aware of the requirement to have sanitation records or potable water.

Mr. Mitri was unable to confirm his signature on Compliance Order C 000402 and claimed that he needed to see the original document to confirm his signature. The Compliance Order was dated February 13, 2008 and found at Tab 11 of the Ministry’s Document Book. When asked about why Mr. Mitri did not provide an original copy of the calendar showing the daily FAC test results representing Mr. Mitri’s daily water records at the January 30, 2009 hearing, Mr. Mitri advised that the calendar was in his office. There was some confusion as to why Mr. Mitri provided the Ministry with copies of the calendar but failed to produce the original calendar at the January 30, 2009 hearing. Although it is unclear as to why the original calendar was not produced earlier, it was apparent that the first time the Ministry had an opportunity to view the original calendar was at the Tribunal hearing.

Under questioning by the Tribunal, Mr. Mitri indicated that he did not see the Compliance Order and when asked why Mr. Mitri did not give the inspector a copy of the daily water disinfection records reporting the FAC test results, Mr. Mitri indicated that the calendar was available to the inspectors.

Evidence of Ministry

Mr. Ezekiel Martin testified that he is a food processing inspector for the Regional Municipality of Peel and has been to plant 243, Dimi Meat Products, on several occasions. Mr. Martin stated that Dimi Meat Products is a free standing meat plant that takes in carcasses for additional processing but does not conduct any slaughtering and is not classified as an abattoir. Mr. Martin stated that a typical inspection at a free standing meat plant includes an external and internal inspection of the premise, an examination of plant processes used by workers, a review of all written records along with the taking of a water sample from the plant. Observations from the inspection are then recorded in a log book that is kept in a secured locker at the free standing meat plant.

Mr. Martin stated that he attended Dimi Meat Products on December 10, 2008 for the purpose of providing Mr. Mitri copies of the food processing worksheets. Mr. Martin indicated that in his experience Mr. Mitri refuses to sign the food processing worksheets and normally doesn’t take copies of the worksheets. Mr. Martin’s visit on December 10, 2008 was not a regularly scheduled inspection and, as a result, Mr. Martin did not ask to see any records.

Mr. Martin stated that at a normal inspection of free standing meat plants, he would ask for the written records that free standing meat processing facilities are required to keep and maintain under the Act. However, in Mr. Martin’s experience the required written records, including the daily water treatment system sampling records, have never been provided by Mr. Mitri. When questioned about whether other free standing meat plants, similar to Dimi Meat Products, are required to test the water and FAC levels, Mr. Martin stated most free standing meat plants are on a municipal water supply and the distinction is that Mr. Mitri’s facility utilizes well water as its source of potable water.

Meat processing plants relying on well water as a source of potable water, such as Dimi Meat Products, require the operators to monitor their water for free available chlorine (FAC) as chlorination is one of the acceptable methods for disinfecting the water system. The results from monitoring the FAC indicate how much chlorine is in the system. A FAC test result below one (1.0) indicates that there is not enough chlorine in the system at which time the operator adds more chlorine. Mr. Martin advised that it is infrequent that a FAC test is below one (1.0) but it does occur on occasion. Where the FAC test result is above three (3.0), this means there is too much chlorine in the water treatment system and it needs to be adjusted. Although a high FAC level does not impact the safety of the water from a potability standpoint, the taste, texture and feel of the product would be impacted by higher chlorine levels.

Mr. Martin testified that he was responsible for inspecting Dimi Meat Products between February and November 2008 and had no recollection of seeing a calendar at Mr. Mitri’s premises that reported the daily FAC test results. Mr. Martin stated that he also visited the plant at least once between July and August 2008 and that on July 22, 2008 he visited the plant and took a FAC reading at 8:30 am and reported a FAC level of 1.5. A reading taken by Mr. Mitri at 7:00 am that day also reported a FAC level of 1.5. Mr. Martin testified that it would be unusual for FAC test results to be exactly the same on a daily basis for a period of five months. Mr. Martin testified that a FAC reading taken at 8:30 a.m. would be different than a reading taken 1 ½ hours earlier at 7:00 a.m. When asked if he ever saw the calendar, Mr. Martin replied no.

Mr. Martin, when questioned by the Tribunal, stated that acceptable ranges for FAC levels are found in the Ministry’s Standards of Compliance, although he could not immediately refer to the section outlining what constitutes the acceptable level.

Under further questioning by the Tribunal, Mr. Martin stated that upon a first visit to a plant, the inspector regularly reviews the legislative requirements and the standard operating procedures with the plant operator.

The Tribunal heard the testimony of Ms. Lee Anne Walker, General Manager of the Meat Inspection Program for the Ministry. Ms. Walker indicated that, contrary to the understanding of Mr. Mitri, Mr. Mitri’s licence was not suspended in December 2008.

The Tribunal also heard from two Area Managers, Mr. Pierre Adrien and Ms. Eloise Jones, about their interactions with Mr. Mitri and their attempts to obtain the daily records reporting the FAC levels from Mr. Mitri for the Dimi Meat Products facility. Mr. Adrien testified that he delivered Compliance Order C000402 in person to Mr. Mitri and confirmed that one of the signatures on the Order was Mr. Mitri’s. Mr. Adrien further indicated that the reason for issuing Compliance Order C000402 was due to the Ministry receiving consecutive adverse water test results from the Dimi Meat Products facility. The description, nature of non-compliance contained in Compliance Order C000402 states:

“Dimi Meats, plant 243, located at 6789 Mill Street, Tottenham, ON continues to have adverse water results: 5 (five) adverse water results over the last 6 months. A water sampling tap has been installed where the water system enters the plant. Operator does not keep daily records of the results of water disinfection.”

Mr. Adrien indicated that the water results subject to the Compliance Order tested positive for coliform and E. coli bacteria. Mr. Adrien stated that Compliance Order C000402 issued to Mr. Mitri required daily written records be kept of the water treatment system by measuring the chlorine FAC level. Mr. Adrien testified that since the Compliance Order was issued, he has neither seen nor received any written records of the FAC test results, and further, that Mr. Mitri informed him directly that he would not keep written records and it was not his obligation to maintain written records of the water treatment system and FAC test results.

Eloise Jones testified that she attended a corrective action plan (CAP) meeting on August 28, 2008 with Mr. Mitri and Dr. Dave McEwen at the Dimi Meat Products facility to discuss corrective actions arising from an annual audit conducted at Mr. Mitri’s plant on August 14, 2008. Ms. Jones stated that on August 28, 2008 the issue of maintaining written records was discussed and the specific issue of keeping daily water records reporting the FAC test results was also discussed. Ms. Jones further stated that at the meeting, Mr. Mitri indicated that he would not keep daily written records because he was unable to read or write. Ms. Jones testified that she reviewed Sections 32 to 38 of O. Reg. 31/05 of the Act, with Mr. Mitri. The Tribunal notes that the sections referred to by Ms. Jones are the sections relating to water used in meat plants, disinfection of water and the requirement that all drinking water supplied from a water system such as the chlorination system located at Mr. Mitri’s meat processing plant be required to meet the standards prescribed by the Safe Drinking Water Act, 2002.

Under cross-examination by Mr. Meakings, both Mr. Adrien and Ms. Jones stated they did not bring any notes of their meetings with Mr. Mitri with them to this hearing, nor could they identify specifically in the legislation or Standard of Compliance where it required the taking of samples and recording results on a daily basis.

The Tribunal also heard from Dr. Dave McEwen, a Doctor of Veterinary Medicine, introduced as an expert witness, who is currently a consultant on food safety matters and previously employed by the Canadian Food Inspection Agency. Mr. McEwen testified that prior to March 31, 2009 he was an auditor for the Ontario Ministry of Agriculture Food and Rural Affairs and was qualified and accepted as an expert witness with no objection from Mr. Meakings.

Dr. McEwen stated that he audited plant 243, Dimi Meat Products, being Mr. Mitri’s free standing meat processing plant, and that he audited Dimi Meat Products in August, 2008. Dr. McEwen was responsible for auditing thirty-five other meat processing plants located throughout Ontario. Mr. McEwen testified that he conducted the audit of plant 243, Dimi Meat Products, on August 14, 2008 and noted on the last page of his report that the water treatment equipment was not being monitored on a daily basis and daily FAC levels not reported. Dr. McEwan stated that an operator of a free standing meat inspection facility is required to prove that they have potable water at the facility. The use of chlorination is one of the acceptable ways of achieving potable water. Dr. McEwen stressed the importance of testing the water and that the purpose of the testing was to ensure that there are no public health risks.

Dr. McEwan stated that operators use the same test kit as the auditors to determine FAC levels to ensure that the chlorine is at an acceptable level. Dr. McEwan confirmed that Mr. Mitri is using the proper test kit, being a “hatch kit” to test the water.

On September 4, 2008 Dr. McEwen noted in his report that the operator of plant 243, Mr. Mitri, refused to keep daily written monitoring records of the water treatment equipment, that the water treatment equipment be monitored at least daily, and that Mr. Mitri retain records of the monitoring.

Dr. McEwen stated that Section 46 of O. Reg. 31/05 requires that written records of water disinfection be kept by the meat processing plant operator to ensure the supply of potable water. Dr. McEwen referred to Section 46(5) requiring the operator to keep written records of the results of the daily water testing and monitoring. Dr. McEwen testified that he has requested the written daily monitoring records relating to FAC test results from Mr. Mitri for Dimi Meat Products and that these records have never been provided. Dr. McEwen recalled that the Ministry attempted to have an individual from the operations side assist Mr. Mitri in keeping and maintaining records. For the 2008 inspection year, Dr. McEwen indicated that he never saw any daily written water records. The Corrective Action Report prepared by Dr. McEwen found at Tab 6 of the Ministry’s book of documents, indicate:

“Defect Statement – Records indicate that water treatment equipment is not monitored daily.

Corrective Action / Comments - 2008/Sep/04 – DMCEWEN – Operator refuses to keep records. Monitor the water treatment equipment at least daily for functionality and effectiveness, and maintain a record of monitoring.”

Mr. Meakings asked Dr. McEwen to indicate where the requirement to keep daily water monitor records is set out in the regulations. Dr. McEwen referred to Section 38(1) of O. Reg. 31/05 under the Act states:

“In accordance with section 32 of the Act, if drinking water used in a meat plant does not meet a standard prescribed as a drinking water quality standard for the purpose of the Safe Drinking Water Act, 2002, an inspector may order the operator of the plant to take the steps that are necessary to ensure that the water meets the standard, including installing at the plant effective water disinfection or water treatment equipment.”

Dr. McEwen confirmed that the requirement to keep daily water testing records is standard industry practice. In response to a question of whether he had specifically asked Mr. Mitri for written water testing records, Dr. McEwen stated he did not because the assumption is that a request for any records would include daily water testing records.

Mr. Meakings, in his closing remarks commented that the main issue the Tribunal has to determine is whether Mr. Mitri kept the daily water testing records in 2008 following the reinstatement of his licence. Mr. Meakings argued that the Ministry had never requested the daily water testing records from Mr. Mitri and that if he was asked for them, Mr. Mitri would have provided the daily water testing records. Mr. Meakings further argued that there is no specific legislative requirement that daily water disinfection records be kept by Mr. Mitri. Mr. Meakings questioned that if the daily water disinfection records were not available on November 13, 2008, why did Inspector Martin not specify the failure of Mr. Mitri to keep the daily water disinfection records in the food processing log. Mr. Meakings indicated that there was no legislative authority requiring Mr. Mitri to maintain daily water disinfection records.

Ms. Torrie, for the Ministry, indicated that the issue to be determined by the Tribunal is whether Mr. Mitri kept the daily water disinfection records for the period in question. Ms. Torrie stated that Mr. Mitri admitted that he did not keep daily water disinfection records prior to July 2008. Mr. Mitri had advised several inspectors and the auditor that, in his opinion, he was not required to keep daily water disinfection records. Ms. Torrie noted that the December 10, 2008 visit to Dimi Meat Products was not an inspection and there would be no reason for the inspector to request the daily water disinfection records. Ms. Torrie also pointed out that the audit report from August 14, 2008 indicates that there were no records available for Dimi Meat Products. Ms. Torrie referred to the letter addressed to Dimi Meat Products found at Tab 7 of the Ministry’s Book of Documents. The letter indicates that Mr. Mitri informed the inspector at the Corrective Action Plan meeting that he would not keep any written records. The letter from the Ministry dated July 4, 2008, refers to a letter from Ms. Lee Anne Walker also dated July 4, 2008 reinstating Mr. Mitri’s license to operate a meat plant and reiterating the requirement that Mr. Mitri keep water disinfection records and make them available to the inspector on each visit.

Ms. Torrie relied upon Section 46 of O. Reg 31/05 under the Act pointing out subsections 2(b), 4 and 5 that requires:

46. (1) The operator of a meat plant shall establish and maintain a written maintenance program for the premises, equipment and utensils of the plant. O. Reg. 31/05, s. 46 (1).

(2) The maintenance program shall include,

(b) effective measures to prevent contamination of the premises, equipment, utensils of the plant and carcasses, parts of carcasses, meat products and ingredients at the plant, including effective schedules, procedures and methods for,

(i) ensuring that meat products are not contaminated, and

(ii) ensuring the supply of potable water. O. Reg. 31/05, s. 46 (2).

(3) The operator shall ensure that the maintenance program is implemented and complied with.

(4) The operator shall ensure that the implementation and results of the maintenance program are regularly monitored to ensure that the program is complied with and is effective. O. Reg. 31/05, s. 46 (4).

(5) The operator shall ensure that written records of the results of the monitoring mentioned in subsection (4) are made on the day of the monitoring. O. Reg. 31/05, s. 46 (5).”

Ms. Torrie also referred to Sections 32 to 38 of the Act[i] with respect to the obligations of meat plant operators to have a potable water supply, and drew the Tribunal’s attention to Section 36 setting out the discretion of inspectors to take samples of water to determine if the water meets the standards prescribed for the purpose of the Safe Drinking Water Act. Ms. Torrie then referred to Section 10 of the Safe Drinking Water Act that states:

“Potable water

10. Despite any other Act, a requirement that water be “potable” in any Act, regulation, order or other document issued under the authority of any Act or in a municipal by-law shall be deemed to be a requirement to meet, at a minimum, the requirements of the prescribed drinking water quality standards. 2002, c. 32, s. 10.”

Ms. Torrie pointed out that while the standards in the Safe Drinking Water Act, 2002 are quite specific, it is not specific on chlorine levels because some drinking water systems use ultraviolet light as an appropriate means of disinfection and others may rely on municipal water systems. However, there are legislative requirements applying to water treatment systems for potable water whether it is a chlorinated system or an ultraviolet system.

Ms. Torrie stated that the issue is whether Mr. Mitri kept daily water treatment records after the reinstatement of his licence in July 2008.

Issues

The issues before the Tribunal in this matter are:

1. Is there a requirement that meat processing plants maintain water disinfection

records, and retain and provide those records to an inspector when requested?

2. If the answer to number 1 is yes, has Mr. Mitri satisfactorily complied with the requirement to maintain, retain and provide daily water disinfection records?

Findings and Analysis

1. Is there a requirement that meat processing plants maintain water disinfection

records, and retain and provide those records to an inspector when requested?

Section 6 of the Act gives the director broad discretion to refuse to renew a licence for a meat processing facility, or suspend or revoke a license if the director finds that the Act or its regulations are not being met, or there is a contravention of the Act, its regulations or any other Act and it is in the public interest to suspend or revoke the license.

Based on the evidence provided by the Ministry including the Corrective Action Report and the daily plant logs prepared by the inspectors for Dimi Meat Products, the Tribunal is of the opinion that Mr. Mitri was advised that he is required to test the FAC from the water treatment system and keep daily water disinfection records. Over a period of at least four months, Mr. Mitri was advised on numerous occasions that he was required to keep and maintain written records, including daily water disinfection records.

On July 4, 2008 when Mr. Mitri’s license was reinstated to operate a meat plant, Mr. Mitri was advised in writing by the Ministry that he is required to keep water disinfection records and make them available to the inspector on each visit. The Ministry’s letter dated July 4, 2008 stated: “Specifically, you are required to keep water disinfection records and make them available to the inspector on each visit.”

The Tribunal accepted the evidence of Dr. McEwen that Mr. Mitri was advised during the regularly scheduled audit, and again at the Corrective Action Plan meeting, of his obligation to monitor the water treatment equipment and to maintain a daily written record of Mr. Mitri’s monitoring activities and record the FAC test results. The Ministry has also taken numerous steps to assist Mr. Mitri in achieving compliance with the Act and assist him with the written records requirement. There is some confusion as to why, if Mr. Mitri had the written daily records available on a calendar hanging in his office, Mr. Mitri did not show the records to the Ministry during the Correction Action Plan meeting or at the hearing held in January 2009. The original calendar with the FAC records was shown to the Ministry for the first time at the hearing before the Tribunal.

The Tribunal is of the opinion that the Ministry appropriately administered the requirements of the Act and regulations and there is no indication that the Ministry purposely or unnecessarily harassed Mr. Mitri in conducting its regular inspections and audits. Despite the Ministry’s repeated requests for daily water records, Mr. Mitri has refused to maintain written records for a period of what appears to be approximately five (5) years.

It is clear that as an operator and license holder for a free standing meat processing plant Mr. Mitri is required, as all other operators and license holders of free standing meat processing plants, to adhere to the legislative requirements.

Mr. Mitri, owner and operator of Dimi Meat Products, was issued Compliance Order C 000402 orally on February 13, 2008 and in writing on February 27, 2008. He also had his license suspended on a prior occasion due to his failure to comply with O.Reg. 31/05 and was required to have a professional assessment of the well; install a water sampling tap; and keep daily records of water disinfection by measuring the chlorine level (FAC).

Upon reinstatement of Mr. Mitri’s license to operate a meat plant, the Ministry sent Mr. Mitri a letter dated July 4, 2008 reminding him of the requirement to keep daily water disinfection records and make them available to the inspector on each visit. Mr. Mitri believed he was required to maintain daily written records of water disinfection by measuring the chlorine levels and wrote the FAC results of the testing he conducted with the Hatch kit on a calendar in his office. The rationale provided by Mr. Mitri for maintaining the daily written records was that Mr. Mitri was advised by the Ministry that if he did not keep the written records he would lose his license to operate the meat plant. However, Mr. Mitri’s rationale for not producing the daily written records was that it was his understanding that he did not have to provide the daily written records of the FAC testing of the water treatment system.

Notwithstanding Mr. Mitri’s understanding of his obligations, Mr. Mitri was reminded of his obligation to keep daily records by the Ministry inspectors and auditor on numerous occasions both verbally and in writing. On November 13, 2008 the Ministry inspector, Mr. Ezekiel, advised Mr. Mitri that if he does not maintain his written records he could be facing another Compliance Order.

Sections 32 to 39, Part V of O. Reg. 31/05 of the Act applies to water used in meat plants. These sections clearly place an obligation on Mr. Mitri, as the license holder and operator of Dimi Meat Products, to ensure that the meat processing plant is supplied with potable hot and cold running water that is protected against contamination. Dimi Meat Products relies on well water that is treated with a chlorination system to supply potable water to the meat processing plant.

Sections 32 to 39 of the Act set out the following requirements, among others, and requires potable water be used in a meat processing plant:

• operator must install a water-sampling tap in an accessible location;

• the water used at the plant must be potable, monitored, stored and distributed in a manner that prevents contamination;

• sets out the testing requirements when applying for a licence to operate a meat plant;

• requires that all steam used must be from a potable water source and free from toxic substances;

• provides inspectors with the discretion to take samples of the drinking water at the expense of the operator to ensure that the water meets the standards for drinking water quality prescribed by the Safe Drinking Water Act, 2002;

• requires that the operator must ensure that all drinking water used at the plant is disinfected using water disinfection equipment that is designed and constructed to be capable of meeting the drinking water quality standards prescribed by the Safe Drinking Water Act, 2002;

• for those drinking water systems falling within the requirements of the Safe Drinking Water Act, 2002, the owner of the drinking water system to make available upon request any information required under section 12 of the Safe Drinking Water Act, 2002; and

• that any water disinfection system or water treatment equipment used at the plant is operated and maintained in accordance with the manufacture’s instructions.

Mr. Mitri relies on well water as the source of potable water for the meat processing operations at Dimi Meat Products. Mr. Mitri has a water disinfection system using chlorination as a means of supplying potable water to plant 243, Dimi Meat Products.

Section 46, of O. Reg. 31/05 places an obligation on Mr. Mitri to establish and maintain a written maintenance program for Dimi Meat Products that includes measures to prevent contamination including schedules, procedures and methods for ensuring the potable supply of water. Mr. Mitri is also required to ensure that the implementation and results of the maintenance program is complied with, and that written records of the monitoring are kept and maintained. O.Reg. 31/05 requires a plant operator to meet the specified standards of the Safe Drinking Water Act, 2002.

It is important to note that Part III of the Safe Drinking Water Act, 2002 provides that water that is required to be potable under any other Act, regulation or municipal by-laws must meet the prescribed drinking water-quality standards. Section 166 of the Safe Drinking Water Act, 2002 provides that the Safe Drinking Water Act and the applicable regulations prevail over the provisions of any other Act and any regulation made under any other Act unless the other Act expressly states otherwise.

Mr. Mitri is required to meet all of the obligations to meet the potable water requirements set out under the Act and the applicable regulations and the requirements of the Safe Drinking Water Act, 2002. Schedules 7, 8, and 9 of Ontario Regulation 170/03 (“O.Reg. 170/03”) passed under the Safe Drinking Water Act, 2002 requires “that a water sample is taken at least once every day … and is tested immediately for free chlorine residual.” O. Reg. 170/03 requires that the owner keep copies of the test results required under the statute or order available for inspection. The Compliance Order C 000402 along with the statutory requirements under the Safe Drinking Water Act, 2002 require that Mr. Mitri measure the chlorine levels on a daily basis, retain the test results, and make those results available for inspection.

Mr. Mitri’s statutory obligations also require that Mr. Mitri maintain a written maintenance program that includes ensuring potable water and that this written maintenance program is implemented and complied with. Mr. Mitri is also obligated by the Act to ensure that the written records of the results of the monitoring are made on the day the monitoring occurred. It is clear that as part of Mr. Mitri’s written maintenance program to ensure the supply of potable water to Dimi Meat Products, plant 243, required that the chlorine level (FAC) be tested on a daily basis and that written records be kept of the daily test results.

Section 15 of the Food Safety and Quality Act establishes the powers of the Ministry inspectors. Inspectors may, demand the production of “any books, records or other documents”and “inquire into all information, records and other matters that may be relevant to the existence of a food safety risk.” The Act clearly gives the Ministry inspectors the authority to require Mr. Mitri to produce the written records of the daily FAC test results.

The Act, its regulations, Compliance Order C 000402 coupled with the applicable requirements of the Safe Drinking Water Act, 2002 place an obligation on Mr. Mitri to conduct daily testing of the chlorine level (FAC) of the water treatment system for plant 243, Dimi Meat Products, retain the daily FAC test results in a written format, and provide the written FAC test results to inspectors when requested whether such request be in made in writing or verbally.

2. If the answer to number 1 is yes, has Mr. Mitri satisfactorily complied with the requirement to maintain, retain and provide daily water disinfection records?

Finding that Mr. Mitri has an obligation to maintain, retain and produce written records of the daily FAC testing to ensure potable water at Dimi Meat Products, the Tribunal has to determine whether Mr. Mitri complied with this requirement.

Mr. Mitri claimed that the inspectors and auditors did not specifically request daily written records of the FAC testing of his water system. It is clear that the daily FAC tests of the water treatment system form part of the written maintenance program for Dimi Meat Products required by section 46 of the Act and are part of Mr. Mitri’s obligations under the Safe Drinking Water Act. In the event that the Tribunal were to accept Mr. Mitri’s evidence that he was never specifically requested by the inspectors, or the auditor, to provide the daily written water FAC test results, it is clear that Mr. Mitri received numerous letters and reports advising Mr. Mitri that he was required to keep water disinfection records and make them available to the inspector on each visit. Mr. Mitri has not provided any evidence indicating that these records were made available, or provided to Ministry inspectors.

Mr. Mitri failed to make the daily written FAC records available to the inspectors when requested. The Act gives the inspectors broad authority to request the written test results and demand the production of the daily FAC records.

Mr. Mitri revealed an unacceptable approach to maintaining daily FAC records by his statements that it was not his job to keep records, and his refusal to sign or accept the food processing worksheets. The daily written sampling records of the water treatment system would be included as part of a request by an inspector or auditor as part of the written maintenance program. Mr. Mitri confirmed that he operated plant 243, Dimi Meat Products during the last week of November and the first couple of weeks in December for which no written records have been provided. Mr. Mitri admitted that he never provided the inspectors or auditor with a copy of the calendar on which he wrote the daily FAC results.

Mr. Mitri failed to meet his statutory obligations to maintain daily FAC test results in writing which is evidenced by his failure to maintain the written records when he operated the meat processing facility in November and December. The Tribunal also finds that Mr. Mitri failed to provide copies of the written FAC test results to the inspectors when requested.

ORDER

The Tribunal orders that the decision of the Director under the Food Safety and Quality Act, dated March 23, 2009 is confirmed, thereby suspending the operating license of Elias Mitri, plant 243, carrying on business as Dimi Meat Products for a period of five working days.

The Tribunal notes that in the written submissions, Mr. Meakings, on behalf of Mr. Mitri requested costs of the hearing. The Tribunal makes no order with respect to costs as no submissions were made by the Appellant with respect to how the request for costs meets the requirements of Rule 28 under the Tribunal’s Rules of Procedure.

Dated at Lasalle, Ontario this 15^th day of July, 2009

[i] FSQA Sections 32 to 38

Part V WATER USED in meat plants

Drinking water system

32. (1) The operator of a meat plant shall ensure that it has a system to supply the plant with potable hot and cold running water that is protected against contamination. O. Reg. 31/05, s. 32 (1).

(2) The operator of a meat plant shall ensure that the plant has a water-sampling tap installed in an accessible location in the plumbing of the plant that is,

(a) at or near where the water from the drinking water system enters the plant;

(b) upstream from all other plumbing fixtures; and

(c) acceptable to an inspector. O. Reg. 31/05, s. 32 (2).

(3) The operator shall ensure that the water-sampling tap is only used for sampling the water. O. Reg. 31/05, s. 32 (3).

(4) The operator shall ensure that the plant has a back-flow prevention device installed immediately downstream of the water-sampling tap to prevent water from the plant’s plumbing from re-entering the drinking water system. O. Reg. 31/05, s. 32 (4).

Non-potable water system

33. In addition to a drinking water system, a meat plant may be supplied with a system of non-potable water if,

(a) the system is not connected to a drinking water system;

(b) the piping of the system is identified by markings that are permanent, distinct and easily recognized; and

(c) no outlet from the system is located where it can discharge into,

(i) a sink or lavatory,

(ii) a fixture into which an outlet from a drinking water system is discharged, or

(iii) a fixture that is used for a purpose related to the processing, packaging, labelling, storing or other handling of carcasses, parts of carcasses, meat products or ingredients. O. Reg. 31/05, s. 33.

Standards for water used

34. (1) The operator of a meat plant shall ensure that all water used at the plant is,

(a) potable, subject to subsection (4);

(b) adequate in quantity and pressure to serve the needs of the plant;

(c) stored and distributed in a manner that prevents the contamination of the water; and

(d) monitored to ensure that the temperature is appropriate for the activity for which the water is used. O. Reg. 31/05, s. 34 (1).

(2) The operator of a meat plant shall ensure that all ice used at the plant is,

(a) made with potable water;

(b) free of toxic substances;

(c) handled in a manner that prevents its contamination;

(d) stored in a manner that prevents its contamination; and

(e) without limiting the generality of clause (d), stored in covered containers that are,

(i) used solely for storing ice,

(ii) clearly marked as ice storage containers, and

(iii) cleaned and sanitized immediately before each refilling. O. Reg. 31/05, s. 34 (2); O. Reg. 221/05, s. 18.

(3) The operator of a meat plant shall ensure that all steam used at the plant that may come into contact with a carcass, a part of a carcass, a meat product, an ingredient, packaging material or a food contact surface is,

(a) generated from potable water;

(b) free of toxic substances; and

(c) adequate in pressure to serve the needs of the plant. O. Reg. 31/05, s. 34 (3).

(4) Non-potable water may be used at a meat plant if it is used,

(a) exclusively for fire protection, boilers or auxiliary services not related to carrying on licensed activities at the plant; and

(b) in a manner that will not contaminate a carcass, a part of a carcass, a meat product or an ingredient, except if it is used for fire protection. O. Reg. 31/05, s. 34 (4).

Testing by applicant for licence

35. (1) Subject to subsection (4), when applying for a licence to operate a meat plant, a person shall have the water of the plant’s drinking water system tested in accordance with this section to determine if the water meets the microbiological standards set out in Schedule 1 to Ontario Regulation 169/03 (Ontario Drinking Water Quality Standards) made under the Safe Drinking Water Act, 2002. O. Reg. 31/05, s. 35 (1).

(2) The tests shall be conducted,

(a) by a person who holds a drinking water testing licence within the meaning of the Safe Drinking Water Act, 2002 and at the laboratory specified in the licence; or

(b) at a laboratory located outside Ontario that is an eligible laboratory under subsection 11 (4) of the Safe Drinking Water Act, 2002. O. Reg. 31/05, s. 35 (2).

(3) The applicant for a licence to operate a meat plant shall provide the person doing the testing with samples of water at the plant taken at a location in the plumbing of the plant that is downstream of the water-sampling tap that subsection 32 (2) requires. O. Reg. 31/05, s. 35 (3).

(4) An applicant for a licence to operate a meat plant is not required to have the water of the plant’s drinking water system tested under subsection (1) if,

(a) a licensee has operated the meat plant at any time in the 30 days before the day on which the applicant applied for a licence; and

(b) a director is satisfied in the circumstances that it is not necessary to have the testing done and so advises the applicant. O. Reg. 31/05, s. 35 (4).

Testing required by inspector

36. (1) An inspector may, at the risk and expense of the operator of a meat plant, take samples of the drinking water supplied to or used at the plant and have the samples tested to determine if the water meets the standards prescribed as the drinking water quality standards for the purpose of the Safe Drinking Water Act, 2002. O. Reg. 31/05, s. 36 (1).

(2) The tests shall be conducted,

(a) by a person who holds a drinking water testing licence within the meaning of the Safe Drinking Water Act, 2002 and at the laboratory specified in the licence; or

(b) at a laboratory located outside Ontario that is an eligible laboratory under subsection 11 (4) of the Safe Drinking Water Act, 2002. O. Reg. 31/05, s. 36 (2).

Disinfection of water

37. (1) The operator of a meat plant shall ensure that all drinking water used at the plant that is not from any of the sources described in subsection (2) is disinfected using water disinfection equipment that is designed and constructed to be capable of producing water that meets the standards prescribed as the drinking water quality standards for the purpose of the Safe Drinking Water Act, 2002. O. Reg. 31/05, s. 37 (1).

(2) The sources mentioned in subsection (1) are drinking water systems to which Ontario Regulation 170/03 (Drinking Water Systems), made under the Safe Drinking Water Act, 2002, applies. O. Reg. 268/05, s. 1.

(3) If drinking water supplied to a meat plant is from a system described in subsection (2), the owner of the system shall, upon request of a director, provide to the director any of the information that section 12 of Ontario Regulation 170/03 (Drinking Water Systems) made under the Safe Drinking Water Act, 2002 requires the owner to make available for inspection. O. Reg. 31/05, s. 37 (3).

Order for remedial steps

38. (1) In accordance with section 32 of the Act, if drinking water used in a meat plant does not meet a standard prescribed as a drinking water quality standard for the purpose of the Safe Drinking Water Act, 2002, an inspector may order the operator of the plant to take the steps that are necessary to ensure that the water meets the standard, including installing at the plant effective water disinfection or water treatment equipment. O. Reg. 31/05, s. 38 (1).

(2) If the medical officer of health has directed the operator of a meat plant to take steps under section 2 of Ontario Regulation 169/03 (Ontario Drinking Water Quality Standards) made under the Safe Drinking Water Act, 2002, the steps that an inspector orders under subsection (1) shall be in addition to the steps that the medical officer of health directs. O. Reg. 31/05, s. 38 (2).