Dimi Meat Products v. Director under the Food Safety and Quality Act

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.

Before:
Marthanne Robson, Vice-Chair; Claire Belluz, Vice-Chair; Mary Field, Member

Appearances:

• Elias Mitri, appellant

• Mark Madras, counsel to the appellant

• Laura Zizzo, co-counsel to the appellant

• Joan Torrie, counsel to the respondent

Decision of the Tribunal

This appeal was heard in Guelph, Ontario, on Friday, October 24, 2008.

Background

Mr. Mitri owns and operates a meat plant in Tottenham, Ontario. He has been in the meat industry since 1995, and has owned the plant since 2001. Mr. Mitri needs a license to operate the plant, issued under the Food Safety and Quality Act, and its regulations, which require a system to supply the plant with potable water. Operators must install a water sampling tap to test the water in the case of adverse results. Mr. Mitri's plant gets its water from a well on the property.

A Ministry of Agriculture, Food and Rural Affairs inspector visited Mr. Mitri's plant. There were several adverse test results from water samples taken from the plant. The Ministry issued a compliance order requiring Mr. Mitri to, among other things, install a water sampling tap to check water potability prior to the chlorination treatment system in the plant. Mr. Mitri did not do so. His licence was suspended after a hearing before a Director under the Food Safety and Quality Act.

Mr. Mitri eventually installed the tap in the location required by the inspector and appealed to this Tribunal arguing that the Director had misinterpreted the law, and should not have suspended his licence. Mr. Mitri wants the decision of the Director overturned and a declaration by the Tribunal that the water sampling tap should be installed after chlorination.

Issue: Should the water sampling tap be installed before or after the water treatment system inside the plant?

The only issue argued on appeal was where precisely does the regulation require the water sampling tap to be installed. The case came down to a question of statutory interpretation of the term "drinking water system" in the Food Safety and Quality Act, and the Safe Drinking Water Act, 2002, S.O. 2002, c.32 ("Safe Drinking Water Act"). Should the sampling tap be installed before or after the water treatment system inside the plant?

The Tribunal agrees that the Ministry officials correctly interpreted the law, and that the tap is now properly installed.

The Law

The two relevant statutory provisions at issue are:

Section 32 of O.Reg. 31/05 under the Food Safety Quality Act (FSQA):

"(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,

1. at or near where the water from the drinking-water system enters the plant;

2. upstream from all other plumbing fixture; and

3. acceptable to an inspector.

and,

Section 2(1) under the Safe Drinking Water Act, 2002:

"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,

1. any thing used for the collection, production, treatment, storage, supply or distribution of water,

2. 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 treatment system, and

3. a well or intake that serves as the source or entry point of raw water supply for the system;

Argument and Analysis

Ms. Torrie, representing the Ministry, and Mr. Mitri's counsel, Mr. Madras, agreed that the term "drinking water system" used in the relevant regulation to the Food Safety and Quality Act was defined in s. 2(1) of the Safe Drinking Water Act, even though neither Act says so specifically. The Tribunal accepts this analysis for the purpose of this appeal, having heard no other submissions on this point.

Ms. Torrie said that the terms "potable water" and "drinking water" are used interchangeably in various legislation. Section 10 of the Safe Drinking Water Act says that when the term "potable" is used in any Act or regulation, water must meet the drinking water quality standards under the Safe Drinking Water Act.

Ms. Torrie argued that the water should be tested where its source enters the plant in order to isolate whether the source or the treatment system is leading to adverse results. She explained that if the well water were highly contaminated, the treatment system might be insufficient to achieve acceptable water quality test results. She explained that only a certified person could take samples from this tap.

Mr. Madras argued s. 32 of the Regulation refers to ensuring that a meat plant has a system to supply "potable" water, therefore, sampling must be done of the treated water. Mr. Madras raised concerns about untreated water being discharged, through the sampling tap, into the plant.

Mr. Madras argued that when s. 32 of the Regulation says that a water sampling tap should be installed "at or near where the water from the drinking system enters the plant", it means after the well water has gone through the plant treatment system. He argued and emphasized that the definition of "drinking water system" includes clauses (a), and (c). Therefore the "system" includes not only the "source or entry point", the well, but also the treatment system (i.e. chlorination).

Mr. Madras did not address clause (b) of the definition which includes the waste treatment system: "anything 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 treatment system". He did not explain why he would include the "chlorination/treatment" but not the "discharge" part of the system, while arguing that the definition is inclusive.

Ms. Torrie argued that the well is part of the drinking water system and that s. 32 does not mean that the water sampling tap is to be installed after the end of the water system in its entirety, but could mean at any point in the system, so long as it was before any other plumbing.

Mr. Madras argued that, for the purposes of determining the proper location of the sampling tap under s. 32 of the Regulation, the definition of "drinking water system" is inclusive; it must include clauses (a), and (c); treatment system and the source. As a matter of statutory interpretation, "includes.. and" can mean "all of the parts" or "any of the parts".

In essence, Mr. Madras argued the definition includes "all of the parts". If that is the case, clauses (a), (b) and (c) must be included, not just (a) and (c). Using Mr. Madras' logic, the water sampling tap for drinking water would have to be located after the discharge of substances from the waste treatment system. He cannot argue that the definition is all-inclusive, but only pick (a) and (c) ignoring (b), to suit his argument.

The Tribunal prefers the interpretation advanced by Ms. Torrie, that the "drinking water system" includes "any of the parts" of the definition, and not all of the parts.

If Mr. Madras and Ms. Torrie are incorrect in their submission that the definition of "drinking water system" under the Safe Drinking Water Act applies in this case, then a common sense meaning of the term as used in s. 32 of the Regulation should apply. The point where the "water from the drinking water system enters the plant", "upstream from all other plumbing fixtures", is logically the first point at whichever source of water enters the plant.

The Tribunal concludes that the inspector and the Director correctly interpreted the applicable legislation. The Tribunal does not accept the appellant's interpretation that the drinking water system begins after treatment, nor does it accept his interpretation that the purpose of the water sampling tap is to ensure the potability of water that has been treated. That means that the current water sampling tap is installed correctly.

Order

The appeal is dismissed. The Order of the Director under the Food Safety and Quality Act, dated June 24, 2008 is confirmed.

DATED AT Ottawa, Ontario this 9th day of December, 2008.