Dimi Meat Products v. Director, 2009 ONAFRAAT 35

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

Dimi Meat Products v. Director - Request for Review

Dimi Meat v. Director - Request for Review 2009 ONAFRAAT 35

Food Safety and Quality Act

DATE OF DECISION:

October 20, 2009

2009-35

2009 ONAFRAAT 35

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 March 23, 2009, 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 July 15, 2009 under Subsection 21.2(1) of the Statutory Powers Procedure Act and Rule 29 of the Rules of Procedure for the Tribunal.

Before:

Kirk Walstedt, Chair

Appearances:

None

BACKGROUND TO THE REVIEW REQUEST

Mr. Mitri, the appellant, is the sole owner of Dimi Meat Products, in Tottenham, Ontario, a free standing meat processing facility that utilizes well water as its source of water in its operations. Mr. Mitri has been in the meat processing industry for approximately fifteen years. In order to operate the plant he was required, pursuant to the Food Safety and Quality Act and its regulations, to hold a licence. He is also required to have a system to supply his plant with potable water and maintain daily records of the plant’s water disinfection system.

On February 13, 2008 the Ministry issued a Compliance Order C 000402 requiring Mr. Mitri to maintain daily records of Dimi Meat Products water disinfection system by measuring the free available 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 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.

Mr. Mitri (Dimi Meat Products) appealed the Director’s decision of March 23, 2009 to the Agriculture, Food and Rural Affairs Appeal Tribunal seeking a revocation of the Director’s decision, and a determination that Mr. Mitri satisfied in full the requirements of the Food Safety and Quality Act and its Regulations.

The Tribunal heard Mr. Mitri’s appeal on June 15, 2009. On July 15, 2009 the Tribunal rendered its decision upholding the Director’s decision.

On August 6, 2009, Mr. G. Meakings, legal counsel for Mr. Mitri, requested an extension of time to request a review of the Tribunal’s July 15, 2009 decision.

Following receipt of further information from Mr. Meakings on why an extension of time was being sought and the length of the extension being sought, on August 18, 2009 the Tribunal granted an extension to September 14, 2009 for Mr. Meakings to submit the request for review.

On September 14, 2009, Mr. G. Meakings, legal counsel for Mr. Mitri, filed a written request with the Tribunal seeking a review of the July 15, 2009, to have said decision overturned.

The Tribunal’s Rules of Procedure

Pursuant to section 25.1 of the SPPA the Tribunal has established Rules of Procedure that includes Rule 29 which is entitled “Review of A Decision”. Rule 29.09 of the Tribunal Rules of Procedure reads as follows:

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;

(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.

COMPLAINTS BEHIND THE REQUEST FOR REVIEW

It is the Appellant’s position that, “The evidence on the most critical of issues is not supported by credible evidence.”

Issues

The appellant puts forth the following issues:

Did Mr. Mitri maintain and keep daily records of his FAC measurement for the chlorination system?
If Mr. Mitri did in fact maintain such records, were they available for inspection by the inspectors attending at his premises?

It is the appellant’s position that a Review of the Tribunal’s decision be conducted based on his belief that the Tribunal erred by relying on the evidence of the Ministry in arriving at its decision.

Findings

I find that it is clear from the evidence presented at the Tribunal hearing that Mr. Mitri failed to keep records of the levels of chlorination (FAC) as required by law, and to make the records available when they were requested by the Ministry. In fact, Mr. Mitri testified at the hearing that in his opinion he was not required to keep such records and it was not his job to test the water.

In addition to Mr. Mitri’s evidence, the Tribunal also relied on the evidence of the Ministry’s witnesses who, in part, confirmed that Mr. Mitri had previously informed them that it was not his obligation to maintain written records of the water treatment system and FAC test results. Dr. D. McEwen, an expert witness, testified that he had requested from Mr. Mitri, the written daily monitoring records relating to FAC results and they have never been provided. He also confirmed the legal requirement to maintain daily water testing records by the industry.

Despite Mr. Meaking’s submissions that the Tribunal erred in its decision by relying on the evidence presented by the Ministry, I can find no justification for his position. Mr. Meakings relied solely on the testimony of Mr. Mitri that Mr. Mitri had met the legal requirements of the Ministry. The Ministry, on the other hand, brought forth a number of witnesses, including an expert witness, all of whom refuted Mr. Mitri’s testimony.

The fact that the Tribunal accepted the evidence of the Ministry’s witnesses over that of Mr. Mitri does not show that the Tribunal erred. It simply demonstrates that it found the evidence put forth by the Ministry to be more credible. It therefore, as a result, upheld the Director’s March 23, 2009 decision.

DECISION OF THE TRIBUNAL

I therefore find that the Tribunal’s July 15, 2009 decision was based on credible evidence and there is no basis for a Review in the context of Rule 29.09 of the Tribunal’s Rules of Procedure.

The request for Review is hereby denied.

Dated at Maidstone, this 20th day of October, 2009