Dimi Meat Products v. Director, 2010 ONAFRAAT 7

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

Email: 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 Products v. Director 2010 ONAFRAAT 7

STATUTE:

Food Safety and Quality Act

HEARING:

January 21, 2010

DATE OF DECISION:

March 4, 2010

2010-07

NEUTRAL CITATION:

2010 ONAFRAAT 7

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 (FSQA) from a decision of the Director appointed under the FSQA, dated May 29, 2009, in which the Director suspended the license of Elias Mitri, carrying on business as Dimi Meat Products.

Before:

Frank Handy, Vice Chair; Robert Scouller, Member; Jane Sadler Richards, Member

Appearances:

Elias Mitri, Appellant

John Benedetti, Representative for the Director under the FSQA, OMAFRA

Louis Martel, Witness for OMAFRA

Eloise Jones, Witness for OMAFRA

DECISION OF THE TRIBUNAL

This appeal was heard in Guelph, Ontario, on Thursday, January 21, 2010.

Nature of the Case

Mr. Elias Mitri is the owner and operator of Dimi Meat Products (also called Meat Plant 243) in Tottenham, Ontario. Meat Plant 243 is regulated under the Ontario Food Safety and Quality Act (FSQA), which provides inspectors with unobstructed access to the plant and plant records in order to carry out their duties. Ms. Eloise Jones is a duly appointed Meat Inspector under the FSQA. An exchange of words occurred at the plant on Monday, September 29, 2008 between Mr. Mitri and Ms. Jones. The exchange led Ms. Jones to believe that she must leave the plant immediately and that she could only come back if she was accompanied by another inspector or the police. A follow up telephone conversation on the next day, Tuesday, September 30, 2008 between Mr. Mitri and Ms. Jones also led Ms. Jones to believe that she could enter the plant only when accompanied by another inspector or the police. Subsequently, a hearing was held under sections 6 (1) b and 6 (2) of the FSQA, by a Director appointed under the FSQA, to determine whether Mr. Mitri had contravened section 15 (5) of the FSQA by obstructing an inspector. The Director ruled that obstruction had occurred and the license to operate a meat plant issued to Elias Mitri, carrying out business as Dimi Meat Products (Plant #0243), was suspended for three business days with the stipulations that any activity for which a license is required should cease and that inspectors be permitted to enter the plant to conduct inventories of meat product in the plant.

Elias Mitri appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (Tribunal) for relief from the decision of the Director appointed under the FSQA, dated May 29, 2009, in which the Director suspended the license of Elias Mitri, carrying on business as Dimi Meat Products, for three business days.

Mr. Mitri advised the Tribunal he would represent himself at this and another hearing scheduled to be heard on the two days preceding this hearing. Mr. Mitri was advised by the Tribunal at the prior hearing that, given the nature of his appeals, he may want to reconsider and have counsel represent him or be available to provide guidance to him. Mr. Mitri chose to continue on his own at both hearings.

Issues

1. Did the operator/owner of Meat Plant 243 (Dimi Meat Products) violate section 15 (5) of the Food Safety and Quality Act? The section states: “No person shall obstruct an inspector who is exercising powers under this section or provide an inspector with false or misleading information.”

2. Did the operator/owner of Meat Plant 243 (Dimi Meat Products) know or ought he to have known that his actions could constitute obstruction of an inspector under the FSQA?

The Appeal

Mr. Gordon V. Meakings submitted an appeal on behalf of Mr. Mitri dated June 15, 2009. In essence it states:

“Mr. Mitri submits that the Director’s decision and related order is patently unreasonable and contrary to the admissible facts presented during the hearing in that the Director has failed to weigh all of the factual evidence presented to him during the course of the proceeding conducted at the Ministry of agriculture on the 4^th day of March 2009 in that the evidence did not show that the Appellant obstructed nor precluded the staff at the Ministry of Agriculture, Food and Rural Affairs from conducting an inspection of the Appellant’s premises and records and that the decision of the Director was wrong in that he perceived that an obstruction might occur when facts did not evidence that an obstruction ever took place nor was their evidence to that an attempt to make an inspection was undertaken and rebuffed by the Appellant.”

The appeal before this Tribunal is a hearing de novo, rather than an appeal for error, but it is useful to understand in relation to issue 2 the perspective and understanding of the Appellant regarding this offence.

The Evidence

The Respondent

The first witness for the Respondent, the Ontario Ministry of Agriculture, Food and Rural Affairs (OMAFRA) was Mr. Louis Martel. Mr. Martel is the Regional Manager (East) for the Food Inspection Branch, OMAFRA. He has served in the meat inspection area for 32 years.

Mr. Martel made two significant points. First, he referenced a letter to Mr. Mitri, dated January 11, 2008. The letter was the result of a meeting held on October 29, 2007 between Mr. Mitri, himself, and the Area Manager at the time, Mr. Doug McLean. The meeting was the result of a complaint concerning an earlier alleged act of obstruction by Mr. Mitri. This matter is not before the Tribunal and no finding is made concerning the events that led to that allegation. However, as a result of this event, there was a meeting held by Mr. Martel and Mr. McLean with Mr. Mitri on October 29, 2007, and a letter was sent to Mr Mitri on January 11, 2008. The last paragraph of this letter states, “Please consider this letter as an official warning. OMAFRA takes obstruction, abusive language and harassment very seriously.”

The second point made in the letter and testified to by Mr. Martel concerned Mr. Mitri’s conduct during the meeting. Mr. Martel referred to the letter and his notes of that meeting, which were reviewed and confirmed contemporaneously with Mr. McLean, the Area Manager at the time, who prepared them. Mr. Martel testified that Mr. Mitri made the following statements: that he (Mr. Mitri) “would kill the dirty animals (i.e., inspectors)” and that “the inspectors are dirty animals and make people afraid and should be killed” and “inspectors are all liars”. Mr. Mitri did not dispute this evidence provided by Mr. Martel except to ask a clarifying question during his cross-examination. Mr. Mitri asked Mr. Martel whether he had heard Mr. Mitri ever say “I want to kill the inspector” rather than “they should be killed”.

Mr. Martel stated that during that meeting he felt quite threatened. However, he and Mr. McLean decided to stay another 15 minutes to try and calm the situation. When this failed, they left. Mr. Martel also stated he had never experienced this type of response from an operator in his 32 years with the Ministry.

The next witness called by OMAFRA was Ms. Eloise Jones. Ms. Jones is an Area Manager with the Food Safety Programs Branch, Compliance and Enforcement Unit. She is also a Meat Inspector under the Food Safety and Quality Act. Her evidence covered the reason for her visit of September 29, 2008 to Meat Plant 243. This meeting was to follow up on a deadline date of September 26, 2008, when Mr. Mitri was to provide written records in accordance with an earlier audit report of his facility and a subsequent Order of Compliance to produce the records.

Ms. Jones testified and provided her notes. Upon her arrival at Meat Plant 243 Mr. Mitri met her at the entrance to the Plant and provided her with a binder of records. Since other records were in his office, Mr. Mitri and Ms. Jones proceeded to his office to get the remaining records. According to Ms. Jones, Mr. Mitri stated he did not have to produce maintenance and distribution records. He said it was not the Ministry’s business as to whom he sold his product. Ms. Jones told the Tribunal that Mr. Mitri also said he would not check mouse traps every two weeks as he had a company (pest control) providing that service. Ms. Jones testified she then said to Mr. Mitri that “Every year you renew your licence under the Food Safety and Quality Act. Every year you sign it you agree to comply with the Act and its Regulations. Why do you continue to not comply and renew your license?”

According to Ms. Jones, at this point Mr. Mitri became quite agitated and told her to “get out”. He asked her to leave and not come back without the police or another staff member. Ms. Jones testified she believed that if she did not leave, Mr. Mitri would call the police to have her removed from the plant. When she asked him why, he said it was because she had told him to leave. Ms. Jones said she replied that was not what she meant when she asked him the question (about his willingness to comply).

Ms. Jones testified that at the time of this discussion she was standing at the entrance to Mr. Mitri’s very small office. His agitation continued, at some point he was waving his hands in the air, he stood up and pushed his chair back. At this point she said she felt quite threatened for the first time during the discussion and so left the plant. Ms. Jones testified she was not able to complete her work that day.

The next day, September 30, 2008, Ms. Jones testified she telephoned Mr. Mitri to attempt to calm the situation and to work with him further. According to Ms. Jones, Mr. Mitri responded that she could only come to his plant with Ezekial Martin (another Meat Inspector) or a Compliance Officer (another position in the Branch). He said to her that if she did not bring either of them and came alone, he (Mr. Mitri) would call the police and have her removed from the plant. Ms. Jones further testified she would not go to Mr. Mitri’s plant alone as she felt threatened and, since Ezekial was not available, she did not return to the plant that or any other day following the incident.

Ms. Jones related that other inspection staff did attend the plant subsequent to the incident. The Tribunal was not made aware of any further incidents as a result of their visit(s).

The Appellant

Mr. Mitri was the only witness for the Appellant (himself).

Mr. Mitri testified he never obstructed Ms. Jones or anyone else and he never threatened anyone. He said that Ms. Jones was upset on September 29, 2008 and told him that “you fight with everybody” and “why don’t you leave?” He stated she could come back to his plant but that she must have someone with her, as he wanted a witness present, i.e., Mr. Martin or the police. Mr. Mitri testified that asking for the police presence was not a threat and, in fact, they (the police) represent law and order. Mr. Mitri said that Ms. Jones had never been stopped from entering his plant. As for Mr. Martel’s testimony, he felt that he (Mr. Mitri) could not stop Mr. Martel from lying. When asked by the Tribunal, Mr. Mitri testified he defined “obstruction” as “I stop in their way not to work” or “not to do their duty”. He explained that if he needed to stop an inspector he would call their bosses or the police.

The Findings

Did the operator/owner of Meat Plant 243 (Dimi Meat Products) violate section 15 (5) of the Food Safety and Quality Act? The section states: No person shall obstruct an inspector who is exercising powers under this section or provide an inspector with false or misleading information.

It is not disputed that Mr. Mitri told Ms. Jones to leave the plant on September 29, 2008. Mr. Mitri feels he has the right to do so; there is nothing preventing him from doing so; and to request another witness or the police as a condition of Ms. Jones to return is acceptable. The Tribunal finds this approach incorrect. Section 3 of the Act provides for the “Powers of Inspectors” and precludes permission from the operator for an inspector to enter, stay or leave a facility. Inspection, by its very nature, requires unrestricted access to ensure compliance. A meat plant is not a personal dwelling; it is an operation licensed to provide food for human consumption and therefore food safety is paramount. If operators can schedule inspections and determine who can attend/inspect, then control of the process falls to the person being inspected. This is not the intent of the legislation. While there are limitations to inspection powers, these are found within the Act and its Regulations and are not determined by an operator or, for that matter, the inspector.

The Tribunal notes that obstruction is not defined in the Act or its Regulations, and that many cases are circular in their definition. Also, in this case the parties do not agree on what constitutes obstruction. Mr. Mitri testified he defined “obstruction” as not allowing them (i.e., inspectors) to do their work. Mr. Bennedetti provided the Tribunal with court decisions on this matter. One case (R. v. O’Hara (1993) 1993 CanLII 16917 (NS PC), 119 N.S.R. (2d) 128, (Nova Scotia Provincial Court)) was somewhat helpful in that it quoted, in paragraph 37, from another case (R. v. MacPherson and Cole (1977) 1977 CanLII 3313 (NS CA), 24 N.S.R. (2d) 102, (N.S.S.C. Ap. Div.)) involving obstruction.

…MacKeigan, C.J.N.S., states, at page 105

“the obstruction did not completely frustrate the officer’s accomplishment of his duty. It is sufficient if “the obstructing affected the constable in the execution of a duty that he was then executing”.

This obstruction need not be physical but “may be verbal or merely a failure to do something”.

And in paragraph 38 (R. v. O’Hara (1993)):

“…By being ordered off the property before he had completed discharging of either of these duties, he was affected in such execution. This amounts to obstruction.”

In this case the undisputed facts were that Mr. Mitri told Ms. Jones to leave the plant and that he imposed conditions for her remaining at or returning to the plant. The Tribunal believes Ms. Jones’ testimony that she left the plant on September 29, 2008 and did not return because of Mr. Mitri’s words and actions. The Tribunal believes Mr. Mitri’s testimony that he was upset by Ms. Jones’ comments and wanted a witness to further encounters with Ms. Jones. However, the Tribunal finds that Mr. Mitri’s approach to resolving his concerns was inappropriate, that it constituted obstruction of an inspector and thus, was a violation of the Act.

Did the operator/owner of Meat Plant 243 (Dimi Meat Products) know or ought he to have known that his actions could constitute obstruction of an inspector under the FSQA?

The Tribunal finds that Mr. Martel’s letter of January 11, 2008 did give Mr. Mitri adequate warning that the Ministry took a very serious view of obstruction and threatening inspectors. Mr. Mitri was therefore aware there could be consequences due to his actions. The Tribunal notes Mr. Mitri did not provide evidence of a challenge to the letter of January 11, 2008, although he did challenge Mr. Martel as a “liar” at this hearing. The Tribunal however specifically notes it has no evidence and is not making any findings with respect to whether the earlier obstruction alleged in the letter took place. The undisputed point is that Mr. Mitri received the letter and warning concerning the seriousness of obstruction and the Ministry’s view of such acts.

The Tribunal also notes it is incumbent on any licensee under the Act to understand and fulfill their obligations under the Act. The letter of January 11, 2008 indicates OMAFRA went out of its way to assist Mr. Mitri in this regard. Therefore, we conclude Mr. Mitri did know or ought to have known that his actions could constitute obstruction of an inspector under the FSQA.

The Decision

The Tribunal concludes the operator/owner of Meat Plant 243 (Dimi Meat Products) knowingly violated section 15 (5) of the Food Safety and Quality Act. The Tribunal’s conclusion is based on the following reasons:

1. The words and actions of the operator/owner amounted to obstruction of the inspector in the execution of her duties, and;

2. The operator/owner was aware of his obligations under the Act.

ORDER OF THE TRIBUNAL

The Tribunal orders that the license of Elias Mitri, carrying on business as Dimi Meat Products, be suspended for three business days accountable within the time in which Meat Plant 243 was not operating in 2009.