Dimi Meat Products vs. Director (Revocation of Licence)

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 August 14, 2009, in which the Director revoked 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
Lee-Ann Walker, Witness for OMAFRA
Eloise Jones, Witness for OMAFRA
Kirsty Tobin, Witness for OMAFRA

Decision of the Tribunal

This appeal was heard in Guelph, Ontario, on Wednesday, January 20, 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). The plant does not conduct any slaughtering; it is defined therefore as a free standing meat plant, as it receives meat from slaughter plants for further processing.

A Director appointed under the FSQA revoked the operating license of Mr. Elias Mitri, carrying on business as Dimi Meat Products, on August 14, 2009 after holding a hearing under subsections 6(3) and 6(4) of the FSQA and 7(4) of the Regulation 31/05. The purpose of the hearing was to determine whether Mr. Mitri had failed to comply with the FSQA, Ontario Regulation 31/05 - Meat (the "Regulation") made under the FSQA, orders and directions of an inspector or director as required under Section 9 of the Regulation, and the conditions of his license renewal. Mr. Mitri appealed pursuant to subsection 10(1) of the FSQA to the Agriculture, Food and Rural Affairs Appeal Tribunal (Tribunal) for relief from this decision. This is the record and decision arising from the hearing of that appeal.

Mr. Mitri advised the Tribunal he would represent himself at the appeal hearing. The Tribunal asked Mr. Mitri whether, given the serious nature of the appeal and the potential consequences, he wanted to reconsider and have counsel either represent him or be available to provide guidance to him. Mr. Mitri advised the Tribunal he would represent himself and he was prepared for the hearing to continue.

Issues

1. Did Mr. Mitri, the operator/owner of Meat Plant 243 (Dimi Meat Products) breach the FSQA and/or its Regulation?

2. If so, what penalty is warranted under the FSQA?

The Appeal

The first issue is whether breaches of the FSQA have occurred. If there have been no breaches, as Mr. Mitri contends, then there can be no penalty. Only if breaches have occurred will we need to move to the second issue.

This matter, although termed an appeal, is a hearing de novo, so the Ontario Ministry of Agriculture, Food and Rural Affairs (the Ministry), which is responsible for implementing the FSQA, will have to prove its allegations against Mr. Mitri and bears the burden of doing so. This is not a criminal matter but a regulatory offence, so the Tribunal may find a contravention has occurred if it is convinced by clear evidence alone rather than proof beyond a reasonable doubt. The Ministry thus led its case first.

The Evidence

The Respondent: Ministry

The first witness for the Ministry was Ms. Lee-Ann Walker. Ms. Walker has been in the public service since 1988 and with the Ministry since 1994. She is a Director under the FSQA, and she is now the General Manager of the Food Inspection Branch of the Ministry. That Branch is responsible for licensing abattoirs and meat processing plants.

Licensing encompasses a number of food safety standards as set out in the Regulation of the FSQA, such as sanitation, pest control, adequacy of water supply, record keeping, maintaining and approving licenses, establishing conditions for licenses, and ensuring that licensees maintain compliance with the FSQA at all times.

Ms. Walker described the progressive compliance approach used by the Ministry when dealing with plants regulated under the FSQA. This system includes, in this order:

1. Education through inspections and site visits, during which the inspectors and area managers demonstrate and review compliance mechanisms with the plant operator;
2. Verbal warnings that the operation is not in compliance, following which the Ministry helps the operator develop an action plan to correct the deficiency;
3. Written warnings for the same purpose and using the same correction method, to ensure there is a record and clear communication of the situation;
4. Compliance orders, a legal document with specific time lines and tasks to be completed;
5. Provisional suspension if there is an immediate risk; and finally, if all other tools have been exhausted,
6. Hearing before an independent adjudicator before a final penalty can be imposed.

Ms. Walker reviewed the history of Ministry interactions with Mr. Mitri regarding his operation in Tottenham, Ontario. She noted that on June 25, 2009, the Mitri license had been provisionally suspended after an inspection conducted on June 24, 2009 had revealed a number of contraventions, including the following:

1. Mr. Mitri had removed the tap used to sample non potable (i.e., untreated) water, which is required so that samples of water can be taken prior to its treatment and use in the plant;
2. Mr. Mitri had refused the inspector's request to re-install the tap;
3. Mr. Mitri advised the inspector he (Mr. Mitri) was not recording the Free Available Chlorine (FAC) count (i.e., the amount of chlorine in the treated water, which indicates the effectiveness of the chlorination system in the plant);
4. Mr. Mitri had failed to make and maintain records of the implementation and results of a written maintenance program for the premises, as required by the operating license and subsections 46(5) and 46(6) of Ontario Regulation 31/05 under the FSQA, and had failed to produce the records at the inspector's request;
5. Mr. Mitri had failed to provide written records showing the functionality and effectiveness of the water treatment equipment; and
6. Mr. Mitri's maintenance program had failed to include effective measures in the maintenance program to ensure the supply of potable water as required by subsection 46(2)(b)(ii) of Ontario Regulation 31/05 under the FSQA.

This suspension was immediate as a result of conditions placed in the license renewal dated April 3, 2009, which stated that failure to produce adequate records during an inspection would lead to immediate suspension. The license renewal letter was submitted in evidence (Exibit 4), and sets out the history of hearings that led Ms. Walker to impose conditions on the renewal.

Ms. Walker testified Mr. Mitri had also been subject to a short suspension for failure to meet a compliance deadline in late April 2009. The suspension was lifted after one day when Mr. Mitri complied by providing the required records.

In addition, Ms. Walker testified Mr. Mitri had been ordered, pursuant to a hearing before the Director on June 24, 2008 and confirmed on appeal to another panel of this Tribunal, to install the water sampling tap referred to in a) above in a location acceptable to an inspector. By removing this tap, Mr. Mitri was also in violation of subsection 32(7) of the FSQA and subsection 32(2) of Ontario Regulation 31/05.

Ms. Walker indicated she was very familiar with Mr. Mitri's case history, as she is responsible for compliance at all plants in Ontario, and monitoring Mr. Mitri's plant required significantly more time and effort from her and her inspectors compared to other plants. She is responsible for some 400 licensed free standing meat plants and 155 abattoirs. There are also federally inspected operations. She indicated that visits to plants are based on risk assessment, and the state of Mr. Mitri's plant was seen to create a significant risk of non-compliance with the FSQA and Regulation. She noted the level of effort required to manage compliance at Mr. Mitri's plant took a disproportionate amount of resources away from other plants and responsibilities.

Mr. Mitri cross-examined Ms. Walker and reviewed with her the Ministry's Standards of Compliance document, attempting to demonstrate this document is not described or mandated in the FSQA or Regulation and therefore compliance orders and guidelines based on it are not legal. Ms. Walker explained that warning letters and compliance orders are issued by area managers. Compliance orders have several parts to them. The operator is required to sign indicating they understand the order. One copy is left with the operator, one copy is filed with the area manager and one copy is filed at head office in Guelph. When the direction of the inspector is fulfilled the compliance order is logged as completed. Meat plant guidelines supplement the rules with examples and procedures that the Ministry finds acceptable, but that they are based on the FSQA and Regulation. Ms. Walker did not have a copy of the compliance order issued to Mr. Mitri related to the water sampling tap. Ms. Walker recalled that Mr. Mitri refused to sign and accept a letter from the Ministry dated April 3, 2009, which addressed issues associated with his license renewal application.

Mr. Mitri asked Ms. Walker to show him where in the FSQA it says he must provide non potable water and FAC records. Ms. Walker responded she relies on her inspectors for specific technical requirements related to the FSQA. Mr. Mitri continued to insist she show him where in the FSQA it specifies the operator is required to provide non potable water and FAC records. Ms. Walker's responses indicated these requirements were covered under the more general heading of maintenance records in the FSQA and more specifically in the Meat Plant Guidelines.

In response to a question from Mr. Mitri, Ms. Walker listed several recent instances, all outlined in the letter of April 3, 2009 related to his license renewal application, where Mr. Mitri had failed to meet his responsibilities under the FSQA, and had ignored or violated license conditions, Director orders and Tribunal rulings.

The next witness called by the Ministry was Ms. Eloise Jones. Ms. Jones is an Area Manager with the Food Safety Programs Branch, Compliance and Enforcement Unit. She was a Meat Hygiene Officer under the FSQA and in that capacity prior to becoming Area Manager she did inspections, estimating perhaps 100 visits over the course of 2 to 3 years. In her experience at Meat Plant 243, there was a constant effort by Ministry staff to ensure compliance, numerous negative incidents took place, and deficiencies were ongoing.

Ms. Jones related that, on June 23, 2009 she received a call from Mr. Mitri. He told her he was going to move the water chlorinator outside his plant and it would be located before the tap used to sample non potable water in his water system. He also said he was not going to keep FAC records anymore. Ms. Jones said she indicated to Mr. Mitri that the sampling tap needed to be located upstream of the chlorinator, to which he replied it was none of the Ministry's business and he wasn't going to test the water. Ms. Jones said she reminded him that he had been ordered to put the tap in, that his license depended on it, and that this requirement was the same in all other plants in the province. Mr. Mitri also asked that a particular inspector be assigned to his plant, a request that was refused.

In light of this conversation, Ms. Jones assigned Ms. Tobin to inspect Mr. Mitri's plant the next day. As part of her duties as Area Manager, Ms. Jones was advised of Ms. Tobin's inspection findings, and in discussion with her supervisors, including Ms. Walker, Mr. Mitri's license was provisionally suspended.

Mr. Mitri cross-examined Ms. Jones, who stated that Mr. Mitri had also gone through an education program conducted by an inspector who spoke Mr. Mitri's native language, in an attempt to ensure there were no language barriers leading to confusion about the standards that were applicable to his plant. Ms. Jones also stated that every other plant in Ontario that she has dealt with complies with the water testing protocol and standards.The next witness called by the Ministry was Ms. Kirsty Tobin. Ms. Tobin has been Area Coordinator for the Midhurst Region, which includes Mr. Mitri's plant, since March 2009, and reports to Ms. Jones. She has been a Meat Hygiene Officer since May 2002 and is an Inspector under the FSQA, a role that has continued since she became Area Coordinator. Ms. Tobin reviews all reports from the 31 plants in the Midhurst Region to ensure delivery of the Meat Inspection Program; she also schedules 14 inspectors, completes plant tours and monitors plants. She was responsible for inspections of Mr. Mitri's plant for a time in 2002-2003, and again in 2009.

On June 24, 2009 Ms. Tobin attended at Mr. Mitri's plant while operations were being conducted to inspect the water disinfection system. Ms. Tobin testified Mr. Mitri asked her to follow him and he showed her that the tap used to sample non potable water had been removed. She proffered two photographs in evidence to the Tribunal that demonstrated the system as it had first existed, and then with the tap removed.

Ms. Tobin said she attempted to review the FAC count (referred to above) while at the plant. No record was being kept. In addition, in her view, the records that had been kept previously were inadequate: they were simply a notation on a calendar without information about when the sampling had been done, a record of the actual count, or a checklist of elements of the system that were visually checked.

The inspection by Ms. Tobin, the results of which were recorded and submitted in evidence to the Tribunal, resulted in a report to the Area Manager, Ms. Jones, and the eventual suspension and revocation of Mr. Mitri's license, which is now under appeal.

Previously, an inspection conducted in August 2008 listed about 45 deficiencies in the plant, many, but not all, of which had been corrected by the June 2009 inspection by Ms. Tobin. The 6 remaining deficiencies were outstanding up to the time of the revocation. These included: not updating and completing written procedure manuals, not documenting freezer temperatures, not replacing items in the plant that were not cleanable, not covering exposed insulation, and not keeping conditions outside the plant clean. Finally, removing the tap had prevented Mr. Mitri from being able to take the required non potable water samples. In Ms. Tobin's experience, these deficiencies are not difficult to correct, nor would they be time-consuming or expensive changes to make.

When cross-examined by Mr. Mitri, Ms. Tobin testified she could not show him a section in the FSQA that specifically says he must provide a sample of non potable water. Her understanding of the legislation was that a sample prior to treatment must be provided when needed, and potable water samples are taken from points after treatment. The Tribunal's understanding from this exchange is that water prior to treatment may therefore be potable or non-potable, but the key point from a food safety perspective is to have a sample that shows the state of water as it enters the treatment system, in order to be able to pinpoint potential sources of contamination regardless of where they occur.

The following exhibits, submitted during the hearing and spoken to by the witness who produced them, particularly detail various compliance problems at Mr. Mitri's plant and the Ministry's response to them:

1. Corrective Action Report Food Safety 2008 dated August 14, 2008
2. Letter dated April 3, 2009 to Mr. Elias Mitri from General Manager Lee-Ann Walker
3. Letter dated April 28, 2009 to Mr. Elias Mitri from General Manager Lee-Ann Walker
4. Letter dated June 25, 2009 to Mr. Elias Mitri from General Manager Lee-Ann Walker

In the Tribunal's opinion these documents record a history of significant breaches of the FSQA and Regulation by Mr. Mitri. Examples associated with public health and food safety include:

• Operator reluctance/refusal to keep records associated with product distribution for use in case of product recall;
• Operator reluctance/refusal to keep records associated with maintenance activities;
• Operator reluctance/refusal to develop, follow and document a written protocol for the periodic testing of and calibration of all thermometers;
• Operator reluctance/refusal to equip each room and area where carcasses, parts of carcasses or meat products are processed, refrigerated or frozen with an effective system to establish, maintain and verify the temperature;
• Operator did not have available a transport container equipped to maintain an internal product temperature of -18 °C or less when required;
• Operator failure to provide records showing the functionality and effectiveness of the water treatment equipment; and
• Operator failure to include effective measures to ensure the supply of potable water.

The Appellant: Elias Mitri

Mr. Mitri testified on his own behalf. He indicated he had originally installed the water treatment system and complied with the tap requirement because he had been forced to, under threat of being closed down. He said that Bill 170, the outcome of the Walkerton tainted water tragedy, was the reason for these rules, not food safety. He stated that his interpretation of the legislation is that there is no requirement for such a tap, because he is required to supply potable water, and that water is not tested. He said that the requirement is not a legal one, and he has no duty to comply, and that if anyone got sick he would be responsible.

He also indicated he had tried to work with the Ministry, but that they lie, and he doesn't trust them. He says the law is impossible to follow, so it is not the law, and the Ministry's goal is to build an empire on law and power. He said the Ministry had tried to shut him down for years. He also indicated he had the right and power to change the water chlorination system because he controlled it and it was not part of the meat processing system.

In cross-examination, Mr. Mitri indicated he was not interested in running the business anymore, but that he would battle with the Ministry for retribution and to call them to account.

The Findings

In our view, Mr. Mitri has breached the FSQA and Regulation. He has deliberately taken steps to remove a required sampling system, he has not complied with the terms of his license, and he has deliberately chosen not to act in accordance with the requirements of the inspector.

The Tribunal reviewed the evidence provided and found no mitigating circumstances to account for Mr. Mitri's lack of compliance with the FSQA and Regulation. In fact, Mr. Mitri's attitude to the Ministry, public health and safety, and compliance generally are aggravating circumstances.

Having decided that the breaches occurred, we must review whether revocation is an appropriate penalty. In our view, revocation is the correct penalty because Mr. Mitri has consistently and wilfully put public health at risk, which is not in the public interest.

The pattern of Mr. Mitri's behaviour is clear, and in the Tribunal's view, contrary to Mr. Mitri's assertion, the Ministry has shown patience and restraint in dealing with him. He has had many opportunities to comply and support in achieving compliance. His behaviour in removing an existing sampling tap and moving the chlorination system, then specifically leading the inspector to show her his actions, demonstrates wilfulness and the intention to breach the rules.

Ms. Walker in her testimony went through the compliance management process that the Ministry uses to support and encourage compliance before using enforcement. This system includes, in this order: education, verbal warnings, written compliance orders, provisional suspensions, and a hearing before an independent adjudicator before a final penalty can be imposed. We note, of course, there is also an appeal available from any penalty.

Mr. Mitri has had the benefit of access to all these progressive compliance tools. Ms. Jones spoke of the many visits she made in which she tried to educate Mr. Mitri, and also those situations in which he was given verbal warnings, including the telephone conversation she had with him on June 24, 2009. The Ministry arranged for an inspector who spoke Mr. Mitri's native tongue to work with Mr. Mitri for several months to try to bring the operation into compliance. Ms. Tobin showed the inspection and compliance reports and action plan that Mr. Mitri had received (and at times refused to sign). The suspension of course led to the revocation hearing and then to this appeal.
In all of these proceedings, Mr. Mitri has chosen to attack and malign the Ministry rather than taking stock of the state of his operations. He has operated his freezer and coolers at unsafe temperatures, he admits he had contaminated water readings but had no mechanism to correct it and no record of proper operation of it, and then disconnected the sampling tap rather than simply take a sample. He has misread the legislation and chosen to call the Ministry liars when different inspectors try to inform him about the legislation.

His recent history of contraventions is lengthy and clear. There have been three previous hearings and two appeals to this Tribunal prior to this proceeding that are referenced in the record and the conditions of license from April 2009. In each proceeding Mr. Mitri was found to be in contravention of the FSQA and Regulation. Mr. Mitri is also aware, in our view, of the seriousness of the scope of his contraventions.

The contraventions in question go to food safety: not ensuring that water used in processing is acceptable in quality and not maintaining the proper temperature of coolers and freezers are two examples of problems that could lead to serious consequences related to public health. Not only was he not in compliance, he refused to keep the records that would allow him to demonstrate either the adequacy of his operations or allow the Ministry to limit potential damage from his operations if there was a problem.

This history and attitude is grounds for revocation, in accordance with section 6(1) (a) and (b) of the FSQA, which allows revocation if the licensee does not meet the requirements of the legislation, or the licensee has contravened the legislation and that it would be in the public interest to revoke the license. The Tribunal acknowledges there are options for lesser penalties including administrative penalties (fines) for contraventions. However, in this case the Tribunal was convinced by the evidence that the imposition of fines would not change Mr. Mitri's unfounded interpretation of the legislation or his wilful disregard for his obligations as a licensee under the FSQA. In the meantime public health would continue to be at risk. In our view, Mr. Mitri's history of breaches of the legislation, his reckless attitude to food safety requirements, and his lack of care for the implications of his actions make it in the public interest to revoke his license. He has shown no indication that he is interested in operating in a safe and responsible manner in accordance with the requirements of the legislation.

The Decision

The Tribunal concludes that:

1. Mr. Mitri has breached the following sections of the FSQA and Regulation:

   1. FSQA:

      1. Section 4(2): Carrying on activity in contravention of license

      2. Section 32(7): Failure to comply with order

   2. Regulation 31/05

      1. Section 9: Requirement to comply with legislation, orders, and license;
      2. Section 32: Water system and sampling requirements;
      3. Section 46: Maintenance program record keeping
      4. Section 51: Temperature record keeping;

2. The Tribunal concludes it is in the public interest to revoke the license of Mr. Mitri in light of the nature of the breaches, the history of contraventions and the lack of any reasonable prospect of future compliance.

Order of the Tribunal

The Tribunal orders that:

1. the license of Elias Mitri, carrying on business as Dimi Meat Products, be revoked effective August 14, 2009; and
2. should an application for a license under the FSQA be submitted in the future by Elias Mitri, the review of such an application for a license must be made by a Director of the FSQA other than the Director from whose decision this appeal was taken.

Dated at Toronto, Ontario, this 4th day of March, 2010.