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
AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL
APPEAL:
OtonaBee Apiary v Director
OtonaBee Apiary v Director 2014ONAFRAAT18
STATUTE:
Food Safety and Quality Act
HEARING:
June 26, 2014
July 9, 2014
2014-18
NEUTRAL CITATION:
2014ONAFRAAT18
OtonaBee Apiary v Director
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 OtonaBEE Apiary, in Indian River, Ontario, under Section 35(1) of the Food Safety and Quality Act, 2001 (FSQA) from a decision of a Director appointed under the FSQA dated April 24, 2014 in which the Director dismissed the appellant’s appeal of a compliance order and found that OtonaBEE Apiary is not in compliance with Sections 17(1) and (2) of Ontario Regulation 119/11.
Before:
John O’Kane, Vice Chair
Stan Benda, Vice-Chair
Corry Martens, Member
Appearances:
Astrid Manske and David Moffat – OtonaBee Apiary, Appellants
Kathryn Evans-Bitten – Representing the Ministry of Agriculture and Food, Ministry of Rural Affairs (the Ministry), Respondent
DECISION OF THE TRIBUNAL
Overview
OtonaBEE Apiary operated by Astrid Manske and David Moffat, sells honey at several retail outlets, farmers’ markets and, by appointment, at their residence.
OtonaBEE Apiary’s sale of honey is regulated under Ontario Regulation 119/11 made under the Food Safety and Quality Act, 2001.
Part IV of Ontario Regulation 119/11 regulates the containers and labels used by OtonaBEE Apiary. Section 17 of Ontario Regulation 119/11 incorporates by reference the container sizes permitted under the Honey Regulation made under the Canada Agricultural Products Act, which in this case include 500 gram and 1 kilogram container sizes.
OtonaBEE Apiary packed its honey into 500 millilitre and 1 litre jars that they purchased from a local hardware store.
However honey is a dense substance and when filled, the 500 millilitre jars contained 650 grams of honey and the 1 litre jars contained 1,330 grams.
As the result of a complaint received at the Ministry of Agriculture and Food about the size of the containers OtonaBEE Apiary used to pack its honey for retail sale, an Inspector appointed under the Food Safety and Quality Act, 2001 (the “Act”) investigated and determined that OtonaBEE Apiary’s honey containers did not comply with Ontario Regulation 119/11.
The Ministry Inspector issued an Order that OtonaBEE pack its honey for retail sale in compliant containers. OtonaBEE appealed that Order to the Director under the Act. The Director confirmed the Compliance Order and OtonaBEE and the Ministry agreed to a 45 day period to achieve compliance.
OtonaBEE appealed to this Tribunal under section 35 of the Act. The appeal to the Tribunal was not an appeal on the record of the previous proceeding before the Director but rather, was a new hearing.
The parties filed an Agreed Statement of Fact at the hearing and both Astrid Manske and David Moffat testified. The Ministry did not call any witnesses to give oral evidence. The parties agreed the case was essentially about statutory interpretation.
The parties agreed there is no food safety issue at stake in this proceeding and the sole issue relates to the regulated size of OtonaBEE Apiary’s honey containers.
The Issue
Do the honey jars used by OtonaBEE Apiary comply with Ontario Regulation 119/11?
Discussion and Analysis
Ms. Manske and Mr. Moffat presented two alternative theories about why OtonaBEE Apiary’s containers complied with Ontario Regulation 119/11 (the “Regulation”).
The first theory was that the container sizes set out in the Regulation should be interpreted to mean that a container size is capable of containing the particular net weight set out in the Regulation. As an example, one container size specified in the Regulation is the 1 kilogram container. Since the jars used by OtonaBEE Apiary contain 1,330 grams of honey, that container is “capable of containing” the 1 kilogram amount.
The theory continues by suggesting that the additional honey (150 grams in the 500 gram jar and 330 grams in the 1 kilogram jar) is “bonus” honey. The jars are labeled identifying those amounts as “bonus honey” and OtonaBEE asserts that it is giving that bonus honey away to their customers for no consideration.
The wording and structure of section 17 of Ontario Regulation 119/11 together with the relevant wording and structure of the incorporated Federal Honey Regulations (section 29), both reproduced below, militate against the first theory.
- (1) No person shall pack honey in a consumer container unless the container is of a size permitted under subsection (2).
(2) The following are the permitted sizes of consumer containers for the purposes of subsection (1):
A container capable of containing a net weight of 330 grams of honey.
A container of a size permitted under the Honey Regulations made under the Canada Agricultural Products Act for purposes of sales to consumers under that Act.
(2) Subject to subsection (3), on and after January 1, 1980, prepackaged honey that is graded under these Regulations shall be packed in accordance with the following sizes of containers:
(a) any net weight up to and including 150 g;
(b) 250 g;
(c) 375 g;
(d) 500 g;
(e) 750 g;
(f) 1 kg;
(g) 1.5 kg;
(h) 2 kg;
(i) 3 kg; or
(j) 5 kg.
Had the legislature intended the interpretation argued by OtonaBEE Apiary, it would have used the words “capable of containing” in paragraph 2 of subsection 17(2). That phrase appears in paragraph 1 of subsection 17(2). Since that phrase appears in paragraph 1 but not in paragraph 2, we interpret that as a signal from the Legislature that the list of containers referred to in paragraph 2 are not to be considered as “capable of containing” but rather to be considered as “containing” the specified weights.
To illustrate an extreme application of the OtonaBEE Apiary theory, it would be permissible to pack 150 grams of honey in a 5 kilogram container. The 5 kilogram container is “capable of containing” 150 grams of honey. However, that extreme example illustrates the fault in that logic. If that interpretation prevails, the list of regulated sizes becomes redundant and meaningless. When the Legislature uses words in an Act or Regulation, the Tribunal must strive to give meaning to every word. Accepting the OtonaBEE Apiary theory would require us to ignore the plain words of Ontario Regulation 119/11 and the list of specific container sizes.
While OtonaBEE is free to give away honey if it chooses, if it is giving it away at a retail establishment other than at Ms. Manske’s and Mr. Moffat’s place of residence, it must still comply with the regulated container sizes referred to above. The “giving” of food or agricultural commodities is a regulated activity under the Food Safety and Quality Act.1
Therefore, OtonaBEE Apiary’s current containers do not meet the required regulated size and the characterization of the additional honey as a free bonus does not render the containers compliant with Ontario Regulation 119/11.
The second theory was that by applying a liberal interpretation developed by OtonaBEE Apiary, their honey jars could be considered compliant with Ontario Regulation 119/11. The essence of the second theory was that the regulated sizes are predicated on the weight of water. If so, then any standard 500 millilitre (ml) container converts to a 500 gram container and any 1 liter container converts to a 1 kilogram container. Therefore any standard metric container of 500 millilitres or 1 litre can be used in compliance with the container sizes set out in the Regulation.
Once again the actual words used by the Legislature militate against this interpretation. Ontario Regulation 119/11 is about containers for honey, not containers for water.
While milliliters and litres are typically considered liquid measurements and grams and kilograms are typically considered dry measurements, it is not open to the Tribunal to substitute for the words the Legislature chose to use. Since the Legislature chose to use 500 grams and 1 kilogram, it is not open to the Tribunal to ignore the words used and interpret those words to mean 500 millilitres and 1 litre.
Therefore, OtonaBEE Apiary’s current containers do not meet the required regulated size and while they may be standard metric containers, they do not meet the size requirements of Ontario Regulation 119/11.
Ms. Manske and Mr. Moffat testified that the 500 gram and 1 kilogram honey containers are readily available however the suppliers of those containers have minimum purchase orders and charge shipping. For a small honey producer such as OtonaBEE Apiary it is not economical to purchase those compliant containers. That reality probably confronts all small honey producers and may create a competitive disadvantage for small honey producers.
However, the Tribunal’s role is not to decide about the wisdom of government regulations nor is it to amend government regulations. The Tribunal’s role is to interpret the legislation as drafted and apply it to the facts given in evidence.
In these circumstances, OtonaBEE Apiary has not discharged its onus on this appeal to satisfy the Tribunal, on a balance of probabilities that its honey containers comply with the size requirements of Ontario Regulation 119/11.
ORDER OF THE TRIBUNAL
The Tribunal orders that:
- The Compliance Order issued March 12th, 2014 by Inspector Paul Bailey is hereby confirmed, subject to the following qualification:
a. OtonaBEE Apiary shall have forty-five (45) days from the date of these reasons for decision to remove any non-compliant containers from the market.
Dated at Brampton, Ontario this 9th day of July, 2014.