Triple J Sausage Limited v Director, 2019 ONAFRAAT 17

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 Courriel: AFRAAT@ontario.ca

Triple J Sausage Limited v Director

Triple J Sausage Limited

Food Safety and Quality Act

October 2, 2019

DATE OF DECISION:

October 8, 2019

001TripleJSausage19

2019 ONAFRAAT 17

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 Triple J Sausage Limited, in Windsor, Ontario, under Section 35(1) of the Food Safety and Quality Act, 2001 (FSQA) from the January 2, 2019 decision of a director appointed under the FSQA that conditionally restored the appellant’s license to operate pursuant to Section 9(1) of the FSQA.

Before:

John O’Kane, Vice-Chair; Patricia Meehan, Vice-Chair; Arnold Strub, Member

Appearances:

Alfred Lebherz, principal of the Appellant Triple J. Sausage Limited

Kirk Andrews, Counsel for the Respondent

Adrien Lessard, witness for the Respondent

DECISION OF THE TRIBUNAL

Overview

This appeal considers the Food Safety and Quality Act, 2001 (the “Act”) and Ontario Regulation 31/05 (the “Meat Regulation”) in a licence suspension of Triple J. Sausage Limited (the Appellant), a licenced free-standing meat plant operator.

On August 14, 2018, a director appointed under the Act issued an immediate provisional suspension of the Appellant’s license to operate a meat plant. In that suspension decision, the director’s opinion was that the licence suspension was “necessary for the immediate protection of the safety and health of the public because our inspectors cannot gain access to your meat plant to inspect your meat products despite their authorization to do so under section 24” of the Act.

Under the Act’s licence suspension process, the Appellant sought and had a hearing before the director on December 7, 2018 and the director issued a written decision on January 2, 2019 restoring the Appellant’s operating licence subject to five conditions.

The Appellant appealed to the Tribunal from the director’s decision to conditionally restore the operating licence.

The Appellant asked the Tribunal to restore the operating licence with no conditions and asked the Tribunal to overturn the director’s determination that the Appellant had obstructed a Further Processing Inspector (“FPI”) from the Ministry of Agriculture, Food and Rural Affairs (the “Ministry”).

Under the Act, obstructing an inspector is an offence subject to penalties on conviction as set out in section 46. The Tribunal has no jurisdiction over obstruction issues. Determinations related to obstruction are reserved to judges in the law courts.

The Issue

The sole issue within the Tribunals’ jurisdiction for determination in this appeal is the licensing issue.

In this licensing appeal, the Tribunal conducts a new hearing to determine whether to suspend or revoke the licence, with or without conditions, and the Tribunal has all the power that the director has under Part II (“Licensing”) of the Act.

The Tribunal Panel will restore the Appellant’s licence subject to conditions.

Regulatory Regime for Meat Plants

The primary purpose of the Act is animated by the title; quality and safety of food. The secondary and tertiary purposes are respectively, managing food safety risks and control and regulation of regulatable activities.

The Appellant processes meat involving curing, drying and smoking meat into food products. Under the Meat Regulation that is a Category 2 activity and that activity is prohibited unless licensed under the Act.

The Appellant carries on its processing at its licensed Meat Plant and, in an adjacent retail deli shop, sells food products to the public.

Part IV of the Act establishes inspectors and sets out a hierarchy of inspections. The legislature mandates inspections to further the purposes of the Act: food quality and safety; managing food safety risks; and, controlling regulated activities.

Regulatory inspections and the powers of inspectors in such inspections are detailed in Section 24 of the Act. Where an inspector has reasonable grounds to believe that premises are used for a regulated activity, that inspector has broad entry and inspection powers during reasonable hours for the premises.

The Hearing Evidence and Findings of Fact

The testimony of Alfred Lebherz (“Lebherz”), the principal of the Appellant and FPI Adrien Lessard (“Lessard”) comprised the oral evidence before the Tribunal, supplemented by their respective documentary evidence.

The genesis of the director’s immediate provisional suspension of the Appellant’s licence was an attempt by Lessard to inspect the Appellant’s meat plant on August 10, 2018 and the interactions that day between Lessard and Lebherz. Much of their respective evidence about the events of August 10, 2018 was consistent and not challenged or contradicted and therefore, the Tribunal finds the following as fact about August 10, 2018:

Lessard arrived at the Meat Plant premises around 9:45 a.m. to conduct a random regulatory inspection.
Receiving no response to his knock at the Meat Plant door, Lessard entered the adjacent deli shop where he advised Lebherz he was there to inspect the Meat Plant.
The adjacency of the Meat Plant and deli shop is separated by a common wall with a depth of about six inches.
The Meat Plant and the deli shop have separate entry doors.
Lebherz asked Lessard to speak outside the deli shop and they moved to the parking area for the balance of their interactions.
Lebherz advised that the Meat Plant was closed, that the deli shop was separate from the Meat Plant, that he could not leave the deli shop, and that Lessard could return to inspect after the deli shop closed at 1:00 p.m., or he could return on the following Tuesday.
Lessard explained to Lebherz that returning, as Lebherz had suggested, would defeat the purpose of a random inspection, and that he had advised Lebherz that his inspections would be conducted on a random basis.
In response to Lessard’s inquiry, Lebherz confirmed that he had the keys to unlock the Meat Plant, but that it was closed.
Lessard advised Lebherz, more than once, that if he did not allow Lessard entry to the Meat Plant to inspect, Lessard would consider that Lebherz was obstructing him in his duties.
Lebherz advised Lessard, more than once, that the Meat Plant was closed and that the deli shop was separate from the Meat Plant.
Lessard left the premises that day without inspecting the Meat Plant.
Neither the Meat Plant nor the deli shop are part of a dwelling.
The Meat Plant had no posted hours of operation.
Lebherz did not know when he would be processing in the Meat Plant.

There was also other evidence from Lebherz and Lessard about interactions antecedent to August 10, 2018 not contradicted and not challenged and therefore, the Tribunal finds the following as fact regarding those matters antecedent to August 10, 2018:

Lebherz maintained processing logs that reflected that the Appellant conducted processing infrequently and not on any regular schedule.
Before Lessard became the FPI for the Appellant’s Meat Plant,

o the previous FPI inspected on a scheduled, rather than random basis;

o those previous scheduled inspections occurred when the Meat Plant was closed, and no processing was occurring.

When Lessard became the FPI for the Appellant’s Meat Plant in July 2017, he met with Lebherz and explained that based on his training and based on Ministry policy for Meat Plants in the same risk category as the Appellant, Lessard’s inspection of the Appellant would be random, not scheduled, inspections.

Besides the uncontradicted/unchallenged portions of the evidence, there was evidence from each of Lebherz and Lessard conflicting or contradictory that will require the Tribunal to determine which version is more reliable. As explained, in any area of material contradiction between the evidence of Lebherz and Lessard, the Tribunal finds the evidence of Lessard to be more reliable.

Lessard gave his evidence in a concise and straightforward manner. Lessard was cross-examined by Lebherz, but his evidence remained unshaken and largely unchallenged and uncontradicted through cross-examination.

He testified that he is an FPI with the Ministry and:

Lessard believed that he could never fulsomely inspect the Appellant’s Meat Plant.
He inspects medium risk Meat Plants such as the Appellant on a randomized basis in a 21-day cycle and obtains test samples of meat products quarterly.
Before August 10, 2018, Lessard had unsuccessfully attempted to randomly inspect the Appellant’s Meat Plant six times.
Lessard believed that Lebherz knew that he had attempted those prior six random inspections:

o Lessard had only the deli shop hours of operation to work from so he would attend when the deli shop was open to get access to inspect the Meat Plant;

o When he made the attempts,

if there, Lebherz claimed that he had other engagements; or,
if Lebherz was not there, Lessard would ask if the deli attendant could contact Lebherz to get him to come meet Lessard so he could do his inspection;
Typically, on those latter occasions he would get an e-mail response from Lebherz after he had left the deli shop asking Lessard why he was at the deli shop and would claim the Meat Plant was closed.
Once Lessard obtained a sample of one of the Appellant’s ready to eat (“RTE”) meat products for testing and that test result was an adverse test result.
Lessard believed that regulated activities occurred at the deli shop because on two occasions when he entered the deli shop, he saw unrefrigerated meat products hanging to dry and under the regulation, drying was a regulated activity;
Lessard believed that regulated activities were taking place at the Meat Plant.
Lessard believed it was possible that regulated activities could take place while the Meat Plant was closed.
Lessard could not ascertain what was happening behind the Meat Plant’s closed/locked door.
Lessard believed that meat processing could be happening behind a closed/locked door.
Some processing activities, such as the drying of a processed meat product, could take place passively, with no person present.
During an inspection, there is no need for the operator to be present.
In Lessard’s experience as an FPI, many facilities have an adjacent Meat Plant and a “front of house” deli shop and in those typical facilities:

o Lessard would inspect the Meat Plant unaccompanied by the operator;

o The operator would be available in the adjacent deli shop;

o If Lessard had questions during the inspection, he would go get the operator, set out his question/concern, receive the operator’s response, after which Lessard would carry on with his inspection.

Lessard believed that in all his interactions with Lebherz, he treated the Appellant fairly with the same approach to random inspections he treats all fifteen medium risk Meat Plants in his geographic jurisdiction.
Lessard believed that attending to inspect the Meat Plant at 9:45 a.m. on August 10, 2018 was during reasonable hours for those premises.

The Tribunal finds as a fact each outlined point of evidence from Lessard.

The evidence of Lebherz was largely self-serving and predicated on a theory erected to advance Lebherz’ fanciful notion that because the Meat Plant and the deli shop were “separate”, and because the Meat Plant did not have regular hours of operation and was “closed” each time the inspector attempted a random inspection, that the Appellant could have some form of advance notice from the Ministry of either its concerns that warranted an inspection or advance notice of an inspection.

The reasons to support our determination that much of Lebherz’ evidence was not reliable include:

He went to great lengths to reinforce how “separate” the Meat Plant and the deli shop are when both businesses operate out of the same structure. While the Meat Plant and the deli shop may be separated by a common wall, it is a fiction to suggest that he, as operator of both the Meat Plant and the deli shop, can forestall or avoid an inspection by claiming the Meat Plant closed, while standing in the adjacent deli shop.
He testified that on August 10, 2018 he could not leave the deli shop but acknowledged in questions from the panel he did leave the deli shop to speak with Lessard in the parking lot. That contradiction undermines both the reliability of Lebherz’ evidence but also reveals his explanation to Lessard about his inability to leave the deli shop as fictitious.
In response to questions from the panel he testified that he would “do anything required” to schedule his processing and then he almost immediately contradicted himself by testifying that “no that doesn’t work” for him to agree to processing on any schedule and that he could “live with” the Ministry informing him when they wish to review his processing.
In his closing submissions to the Tribunal, Lebherz:

o Clarified that he refused Lessard’s August 10, 2018 request to inspect the Meat Plant because he had “no desire to close the deli because he was alone in the deli”.

That submission reinforced that Lebherz’ views about random inspections were subject to his “desires”. In that respect he was wrong. An operator in a regulated environment where food safety and food quality are the primary objectives does not enjoy the luxury of operating as they desire. Regulated operators must know and understand the regulations and must operate by those regulations.

o Argued the inspection system was unreasonable.

There was no evidence to support the argument that the inspection system was unreasonable.
We find the randomized inspections proposed by Lessard to be reasonable and appropriate in this regulatory regime.

o Argued the inspection system was inconsistent.

While it is evident that the FPI before Lessard inspected the Appellant’s Meat Plant on a scheduled basis and when the Appellant was not processing, when Lessard became the FPI in July 2017, he advised the Appellant he would be conducting randomized inspection.
There is nothing in the Act or Meat Regulation addressing the consistency or inconsistency of inspections.
In the context of processing meat into food products, both practically and logically, scheduled inspections are anathema to ensuring quality and safety of food manufacturing.

Conclusion

The efficacy of the manufactured food system under the Act and Meat Regulation rests on a foundation of inspection and testing to ensure food quality and food safety.

The evidence demonstrates that the Appellant has actively avoided inspection of its Meat Plant since mid-2017 and in the one instance since then where sampling occurred in an RTE product, it received an adverse test result.

These circumstances are untenable in the regulatory regime under the Act. These circumstances might be answered by a conclusion that the Appellant should not enjoy the privilege of a licence to manufacture food for public consumption.

The Tribunal is mindful that often licence is synonymous with livelihood. While there may be cases where suspending or revoking a licence is warranted at first instance, we are not convinced this is such a case and we are not convinced that the Appellant is incapable of rehabilitation and conformity to the regulated system.

However, we also know this Meat Plant has not been inspected since mid-2017 and, according to Lebherz’ evidence, has not operated or processed since the provisional license suspension of August 14, 2018. That reality presents the Tribunal with serious concerns about the current state and condition of the Meat Plant to produce safe, quality food products. In consideration of that concern and the Appellant’s demonstrated resistance to inspection, we do not consider the five conditions imposed by the director’s January 2, 2019 decision to be enough and will require, as a condition of restoring the licence that the Meat Plant be subject to a “pre-start-up” inspection to satisfy the Ministry that the state and condition of the Meat Plant will allow for processing of safe and quality food.

Our authority under the Act includes attaching whatever conditions we consider proper, to advance the purposes of the Act. Therefore, the Appellant’s licence for Meat Plant #6394 is reinstated, subject to conditions to the licence of Triple J Sausage Limited.

Order

Based on the evidence and submissions of the parties, the January 2, 2019 decision of the director is varied and the licence of Triple J Sausage Limited, Meat Plant #6394 is restored, subject to the following conditions of that licence:

Before the resumption of any processing at the Meat Plant, it shall have been subject to an inspection to satisfy the FPI of the state and condition of the Meat Plant;
Any time the Appellant intends to process, the Appellant shall notify the local Meat Inspection Program Area Manager and the assigned area FPI via e-mail, telephone, voice message, or text message of the proposed processing at least twenty-four (24) hours before the start of the proposed processing;
Submit to requests for random entry and inspections during reasonable hours for the premises (and in this context the premise(s) includes both the Meat Plant and the adjacent deli shop), including occasions when no processing is occurring or when the Meat Plant may be otherwise closed;
Provide any assistance reasonably necessary to Ministry inspectors conducting the inspections.

Dated at Collingwood, Ontario this 8^th^ day of October, 2019.