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: 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 - Request for Review
Dimi Meat v. Director – Request for Review 2009 ONAFRAAT 32
STATUTE:
Food Safety and Quality Act
HEARING:
March 25, 2009
2009-32
NEUTRAL CITATION:
2009 ONAFRAAT 32
IN THE MATTER OF THE FOOD SAFETY AND QUALITY ACT, 2001
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 2001, S.O. 2001, c.20 (“Food Safety and Quality Act”) from a decision of the Director appointed under the FSQA, dated June 24, 2008, in which he suspended the license of Elias Mitri, carrying on business as Dimi Meat Products.
AND IN THE MATTER OF: A request for review by Dimi Meat Products (Elias Mitri) from a decision of the Tribunal dated December 9, 2008 under Subsection 21.2(1) of the Statutory Powers Procedure Act and Rule 29 of the Rules of Procedure for the Tribunal.
Before:
Gene Trotman, Vice-Chair
Appearances:
None
BACKGROUND TO THE REVIEW REQUEST
Mr. Mitri, the appellant, has owned Dimi Meat Products, in Tottenham, Ontario since 2001. In order to operate the plant he was required, pursuant to the Food Safety and Quality Act and its regulations, to obtain a licence. He was also required to have a system to supply his plant with potable water and to install a water sampling tap to test the water for adverse water quality. Water for the plant was obtained from a well on Mr. Mitri’s property.
Water samples taken at the plant for testing by an inspector from the Ministry of Agriculture, Food and Rural Affairs (the Ministry) showed several adverse results. As a consequence, the Ministry issued a compliance order requiring Mr. Mitri to install a water sampling tap prior to the chlorination treatment system at a location acceptable to the inspector to check water potability. This location was fixed at a point “approximately half way between the wall where the main water pipe enters the plant and the existing backflow valve, and approximately one (1) foot above the ground in order to avoid its potential contamination.”
Mr. Mitri failed to comply with the order and his licence was suspended following a hearing by a Director appointed for so doing under the Food Safety Quality Act. Upon compliance with the order, Mr. Mitri’s licence was restored. Mr. Mitri, however, launched an appeal under his trade name, Dimi Meat Products, (Elias Mitri) to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) seeking an overturn of the decision of the Director and a declaration that the water sampling tap should be installed elsewhere after chlorination.
According to the decision of the Tribunal, “the only issue argued on appeal was where precisely does the regulation require the water sampling tap to be installed.” The two statutory provisions relevant to the issue were identified as:
Section 32 of O.Reg. 31/05 under the Food Safety Quality Act (FSQA) which states:
“(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.
(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 fixture; and
(c) acceptable to an inspector.
and,
Section 2(1) under the Safe Drinking Water Act, 2002 which states:
“drinking water system" means a system of works, excluding plumbing, that is established for the purpose of providing users of the system with drinking water and that includes,
(a) any thing used for the collection, production, treatment, storage, supply or distribution of water,
(b) any thing related to the management of residue from the treatment process or the management of the discharge of a substance into the natural environment from the
(c) a well or intake that serves as the source or entry point of raw water supply for the system;”
Counsel for the appellant, Mr. Madras, argued on appeal that when s. 32 states that a water sampling tap should be installed “at or near where the water from the drinking system enters the plant”, means after the well water has gone through the plant treatment system, because the definition of “Drinking Water System” includes not only the source or entry point, but also the treatment system. He concluded that sampling must be done of the treated water as s. 32 (a) is intended “to sample water after it has gone through the drinking water system; the very purpose is to enable access to inspectors to ensure that it is suitable.”
Mr. Madras argued that the tap is now located before the water enters the drinking system and that before the water is treated by chlorination it is not yet drinking water. He submitted that the purpose of the water sampling tap is for sampling the water after it has gone through the drinking water system and, therefore, the location of the sampling tap must be to allow for the assessment of the quality of the drinking water to make sure it meets requirements. He further concluded that the present location of the tap does not do that and, as such, it is contrary to s. 32 (a) and flies in the face of that regulation. In that regard, he felt the inspector erred in requiring Mr. Mitri to install a tap that is not in compliance and the director erred in upholding that requirement.
Counsel for the Ministry, Ms. Torrie, argued that s. 32 does not mean that the water sampling tap must be installed after the end of the “drinking water system” but must be located where the water source enters the plant “in order to isolate whether the source or treatment system is leading to adverse results.” She added that the requirement and policy of the Ministry is that there should be a tap to determine whether the water entering the plant is safe, and that having a tap at or near where the water system enters the plant is to ensure the source of contamination. She concluded that by having a tap after chlorination, if there is a problem, one would not know its source.
Counsel for the Ministry submitted further that the Safe Drinking Water Act defines water system to include the well, and that the tap is now located at or near where the water system enters the plant. The inspector, therefore, followed the regulation involved. The Tribunal found that “the Ministry officials correctly interpreted the law, and that the tap is now properly located.” The Tribunal dismissed the appeal, whereupon a Request for Review of the Tribunal’s decision was made by Mr. Anser Farooq on behalf of Dimi Meat Products. He asked:
(a) to set aside the decision of the Tribunal dated 9th day of December 2008;
(b) to set aside the compliance order of inspector Pierre Adrien dated February 27, 2008;
(c) to set aside the decision of the Director Wayne Patterson dated 25th July, 2008;
(d) that the tap be placed in its original location or a location authorized by legislation;
(e) for costs payable to Mitri for removing and replacing the tap; and
(f) for costs for the proceedings.
COMPLAINTS BEHIND REQUEST FOR REVIEW AND FINDINGS BY THE TRIBUNAL
COMPLAINT #1
“The Member, Marthanne Robson, errored in law by failing to provide a thoughtful and structured analysis of the arguments made by counsel for Dimi Meat Products, Mark Madras, in particular with respect to the genesis of the problem, namely;
(i) that the inspector….erred in requiring Mitri to install a tap at a location acceptable to him…not in compliance and flew in the face of the regulations.
(ii) the director erred in upholding the requirement and suspended a licence on that basis, and
(iii) requiring Mitri to install a tap that is not in compliance with 32 (2) (a)”
FINDING #1
The Tribunal, of which Marthanne Robson was the chairperson, stated quite clearly in its decision that it “prefers the interpretation advanced by Ms. Torrie”, counsel for the Ministry. That interpretation was succinctly included in the decision. There was, therefore, no need for the Tribunal to go further into an analysis of the issue involved. Having concluded that it was in agreement with the submission made by counsel for the Ministry, it decided that “the Ministry officials correctly interpreted the law, and that the tap is now properly installed.”
For the reasons stated in the preceding paragraph, the Tribunal finds that the inspector did not err in requiring Mitri to install a tap, that the director did not err in upholding the requirement for same and that requiring Mitri to install a tap was in compliance with s. 32 (2) (a).
COMPLAINT #2
“The Member, Marthanne Robson, errored in law by failing to consider the facts with respect to the genesis of the problem, the member, subsequently failed to consider whether the inspector had abused authority and discretion by terms of the compliance officer issued…requiring Mr. Mitri to:
(i) Have a professional assessment done on the well and provide a report…
(ii) Install a water-sampling trap in a location that is acceptable to the inspector…
(iii) Keep daily records of water distillation by measuring the chlorine level (FAC).”
FINDING #2
Having found that there was no error in law with respect to complaint #1 then complaint #2, upon which it is based, must be found to be without foundation.
COMPLAINT #3
“The member’s failure to consider the error made by the inspector, and the failure to consider abuse of authority and discretion by the inspector; resulted in the member’s inability to correct the error of the compliance order dated February 27, 2008.”
FINDING #3
The issue on appeal was “where precisely does the regulation require the water sampling tap to be installed.” By holding that the Director correctly interpreted the applicable law means that there was no error to correct.
COMPLAINT #4
“Mitri believes that the conduct of the inspector has been irresponsible, careless and bordering on malicious persecution. The placement of the tap in a location that is acceptable to the inspector is discretionary and the consequences of that has been Mitri’s inability to comply with the Regulation.”
FINDING #4
Mitri’s belief was not an issue in the appeal before the Tribunal. Moreover, the placement of the tap at a location acceptable to an inspector is a requirement of Section 32 of O.Reg. 31.05 under the Food Safety Quality Act. There was no evidence tendered at the appeal to support this complaint. Moreover, the Tribunal found that “the inspector and the Director correctly interpreted the applicable legislation.” See also Finding in #1 above.
CLAIM OF SIGNIFICANT NEW EVIDENCE
Submitted along with the request for review was a letter from Cambium Environmental Inc. dated December 15, 2008 described as “significant new evidence” dealing with the subject matter “Comments Regarding Rationale for Tribunal Dismissal of Appeal Dimi Meat Products Drinking Water Treatment System.” The letter stated in part to Mitri “I have reviewed the documentation that you provided by facsimile on December 13, 2008. That documentation included:
- Decision of the Ttribunal dated December 9, 2008 and associated fax transmittal, and
- Letter from Gowling Lafleur Henderson LLP dated December 12, 2008. Among other things, the letter states: “in the case of Dimi Meat Products, the well, supply pump, and treatment equipment (and associated discharges) are all considered as elements of the drinking water system…Treated water samples are collected at locations immediately after the treatment system….It is my interpretation that section 32 of O.Reg. 31.05 is requiring that a water-sampling tap should be installed to collect treated water samples…”
FINDING
The letter does not constitute new evidence. Mitri did not avail himself of what is really an opinion document, for use at the appeal. As such, the letter does not constitute newly acquired evidence. Even if it were to be classified as evidence, it would not be categorized as newly acquired because it was certainly available and attainable prior to the appeal.
All the complaints seem to be an effort by Mitri to obtain a second chance to make a better case and this effort does not fit into the context of Rule 29.091 of the Tribunal’s Rules of Procedure.
DECISION OF THE TRIBUNAL
For the reasons stated in the Findings the request for Review is hereby denied and so is the request for costs.
Dated at Ottawa, this 25th day of March, 2009
Evaluation of a request for review 29.09 In deciding whether it is advisable to conduct a review of all or any part of a final decision or order, the Tribunal may consider any relevant circumstances including, (a) whether there is significant new evidence which was not available at the time of the original appeal; (b) whether the Tribunal made a material error of law or fact such that the Tribunal would likely have reached a different decision; (c) the extent to which any party to the appeal or any other person has relied upon the final decision or order; (d) the extent to which any party to the appeal or any other person will be affected by the review process; and (e) whether the public interest in finality of decisions is outweighed by the alleged prejudice to the requester.