Background reading for proposed raw milk injunction Court hearings May 29th and 30th re Glencolton Farms

Raoul Bedi, BASc, has thoughtfully compiled some background material for us to study in preparation for going to Court May 29th and 30th in Newmarket (50 Eagle Street) at 9 am. 

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Michael Schmidt and Elisa van der Hout with some of their preparatory reading for this week’s court appearances.

Ontario Court Lexicon for Current Raw Milk-related Matters (Part 1) Compiled by Raoul Bedi, BASc

Newmarket Court Case File Numbers :

                  1. CV-16-125371-00

                  2. CV-16-125250-00

The Applicants, Gavin Downing, Director under the Ontario Milk Act, and the “Regional Municipality of York” draw upon , at least, 7 different sections of law, including laws at the municipal,provincial and federal level, in their claims, in the Ontario Superior Court of Justice, against the defendants, Michael Schmidt, ARC inc., Glencolton Farms, The Church of the Christian Community in Canada, et al . These include :

                1. The Ontario Milk Act RSO 1990 cM.12

                2. The Health Protection and Promotion Act, R.S.O. 1990,Ch.7

                3. Provincial Offenses Act, RSO 1990, cP.33

                4. Municipal Act

                5. Rule 40 of Civil Procedures

                6. Section 101 of the Courts of Justice Act

                7. Section 127 of the Criminal Code

Breaking it down further, the 2 cases most heavily involve #1 , The Ontario Milk Act, and #2 , the HPPA followed by #4, the Ontario Municipal Act, where 4 sections are drawn upon.

The following focuses on the laws and regulations the plaintiffs seek to apply from the Ontario Milk Act and the Ontario “Milk and Milk Products” regulations 761, to interfere with and/or ultimately halt the private, member-only operations of “Agri-Cultural Renewal Co-operative Inc.”, it’s employees, supporters and friends in the enjoyment of their god-given food and private property rights and good health.

I – The Ontario Milk Act

The relevant sections are

A) 1,2,13,15, 21 and 22 of the Milk Act, RSO, 1990 cM.12 .

B) Section 95 to 109 of ‘Milk and Milk Products’, R.R.O., 1990 , Regulation 761

PART A https://www.ontario.ca/laws/statute/90m12

1.Definitions

1. In this Act,

administrative agreement” in relation to a designated administrative authority means an agreement that the Minister has entered into with the authority with respect to the designated legislation for which the administration and enforcement is delegated to the authority; (“accord d’application”)

administrative authority” means the Government of Canada, an agency of the Government of Ontario or Canada, a not-for-profit corporation without share capital incorporated under the laws of Ontario or Canada that operates in Ontario or a marketing board; (“organisme d’application”)

agreement” means an agreement made under this Act or the regulations; (“accord”)

award” means an award made by the Commission or by an arbitrator or board of arbitration under the regulations; (“sentence”)

Commission” means the Ontario Farm Products Marketing Commission under the Ministry of Agriculture, Food and Rural Affairs Act; (“Commission”)

cream transfer station” means premises at which cream is received for the purpose of being transported to a plant for processing; (“centre de transfert de la crème”)

designated administrative authority” means an administrative authority that the Minister has designated under subsection 2.2 (2); (“organisme d’application désigné”)

designated legislation” means this Act, the regulations or provisions of this Act or the regulations, where the Minister has designated the legislation under subsection 2.2 (1); (“texte législatif désigné”)

Director” means, in respect of a provision of this Act or the regulations, the Director appointed under this Act by the person who is responsible for the administration and enforcement of the provision; (“directeur”)

distributor” means a person engaged in selling or distributing fluid milk products directly or indirectly to consumers; (“distributeur”)

field-person” means a field-person appointed for the purposes of this Act; (“inspecteur itinérant”)

fluid milk products” means the classes of milk and milk products processed from Grade A milk and designated as fluid milk products in the regulations; (“produits du lait liquides”)

Grade A milk” means milk designated as Grade A milk in the regulations; (“lait de qualité A”)

industrial milk” means milk designated as industrial milk in the regulations; (“lait industriel”)

licence” means a licence provided for under this Act or the regulations; (“permis”)

marketing” includes advertising, assembling, buying, distributing, financing, offering for sale, packing, processing, selling, shipping, storing and transporting and “market” and “marketed” have corresponding meanings; (“commercialisation”, “commercialiser”, “commercialisé”)

marketing board” means a board constituted under a plan; (“commission de commercialisation”)

milk” means milk from cows or goats; (“lait”)

milk product” means any product processed or derived in whole or in part from milk, and includes cream, butter, cheese, cottage cheese, condensed milk, milk powder, dry milk, ice cream, ice cream mix, casein, malted milk, sherbet and such other products as are designated as milk products in the regulations; (“produit du lait”)

milk transfer station” means premises at which milk is received for the purpose of being transported to a plant for processing; (“centre de transfert du lait”)

Minister” means the Minister of Agriculture, Food and Rural Affairs; (“ministre”)

plan” means a plan that is in force under this Act to provide for the control and regulation of the producing or marketing or both of milk, cream or cheese, or any combination thereof; (“plan”)

plant” means a cream transfer station, a milk transfer station or premises in which milk or cream or milk products are processed; (“usine”)

processing” means heating, pasteurizing, evaporating, drying, churning, freezing, packaging, packing, separating into component parts, combining with other substances by any process or otherwise treating milk or cream or milk products in the manufacture or preparation of milk products or fluid milk products; (“transformation”)

processor” means a person engaged in the processing of milk products or fluid milk products; (“préposé à la transformation”)

producer” means a producer of milk, cream or cheese; (“producteur”)

reconstituted milk” means milk designated as reconstituted milk in the regulations; (“lait reconstitué”)

regulated product” means milk, cream or cheese, or any combination thereof, in respect of which a plan is in force; (“produit réglementé”)

regulations” means the regulations made under this Act; (“règlements”)

transporter” means a person transporting milk or cream; (“transporteur”)

Tribunal” means the Agriculture, Food and Rural Affairs Appeal Tribunal continued under the Ministry of Agriculture, Food and Rural Affairs Act. (“Tribunal”) R.S.O. 1990, c. M.12, s. 1; 1997, c. 44, s. 1; 2006, c. 19, Sched. A, s. 15 (1); 2009, c. 33, Sched. 1, s. 20 (1).

Section Amendments with date in force (d/m/y)

1997, c. 44, s. 1 (1, 2) – 18/12/1997 2001, c. 20, s. 60 – see Table of Public Statute Provisions Repealed Under Section 10.1 of the Legislation Act, 2006 2006, c. 19, Sched. A, s. 15 (1) – 22/06/2006 2009, c. 33, Sched. 1, s. 20 (1) – 15/12/2009

Purpose of Act

2. The purpose and intent of this Act is,

(a) to stimulate, increase and improve the producing of milk within Ontario;

(b) to provide for the control and regulation in any or all respects of the producing or marketing within Ontario of milk, cream or cheese, or any combination thereof, including the prohibition of such producing or marketing in whole or in part; and

  1. to provide for the control and regulation in any or all respects of the quality of milk, milk products and fluid milk products within Ontario. R.S.O. 1990, c. M.12, s.

2. ADMINISTRATION AND ENFORCEMENT

Director

2.1 (1) The Minister may appoint a Director for the purposes of the provisions of this Act and the regulations for which the administration and enforcement are not delegated to a designated administrative authority. 1997, c. 44, s. 2.

Director appointed by administrative authority

(2) If the administration and enforcement of any provisions of this Act and the regulations are delegated to a designated administrative authority, the authority may appoint a Director for the purposes of those provisions. 1997, c. 44, s. 2.

Responsibility of Director

(3) A Director appointed under subsection (1) or (2) shall carry out the administration and enforcement of those provisions of this Act and the regulations with respect to the quality of milk, milk products and fluid milk products within Ontario for which the person who appointed the Director is responsible for the administration and enforcement. 1997, c. 44, s. 2.

Powers and duties

(4) A Director appointed under subsection (1) or (2) shall exercise the powers and perform the duties that are conferred or imposed on the Director by or under this Act. 1997, c. 44, s. 2.

Appointments

(5) A Director appointed under subsection (1) or (2) may appoint the officers, field-persons, graders and other persons who are considered necessary for the Director to exercise the powers and to perform the duties of the Director. 1997, c. 44, s. 2.

Section Amendments with date in force (d/m/y)

1997, c. 44, s. 2 – 18/12/1997

13. Production of books, etc., to field-person

13. (1) Every person engaged in the producing, processing or marketing of milk or milk products, when requested so to do by a field-person appointed for the exercise of the powers and the performance of the duties of the Director, shall, in respect of milk and milk products, produce the person’s books, records and documents and permit inspection thereof and furnish copies thereof or extracts therefrom and permit inspection of the person’s premises and any equipment, milk or milk products therein. R.S.O. 1990, c. M.12, s. 13 (1).

Obstruction of field-person

(2) No person shall hinder or obstruct an officer or field-person mentioned in subsection (1) in the course of his or her duties, furnish him or her with false information or refuse to furnish him or her with information. R.S.O. 1990, c. M.12, s. 13 (2).

Certificate of appointment of field-person

(3) The production by a field-person mentioned in subsection (1) of a certificate of appointment purporting to be signed by the Director shall be accepted by any person engaged in the producing, processing or marketing of milk or milk products as proof of such appointment. R.S.O. 1990, c. M.12, s. 13 (3).

Section 15. Licences

Licence to operate plant

15. (1) No person shall operate a plant without a licence therefor from the Director. R.S.O. 1990, c. M.12, s. 15 (1).

Licence to operate as distributor

  1. No person shall carry on business as a distributor without a licence therefor from the Director. R.S.O. 1990, c. M.12, s. 15 (2).

MISCELLANEOUS

21.Offences

21. Every person who contravenes this Act or the regulations, or any plan or any order or direction of the Commission, the Director or any marketing board, or any agreement or award or renegotiated agreement or award declared to be in force by the Commission, or any by-law under this Act, is guilty of an offence and on conviction is liable for a first offence to a fine of not more than $2,000 for each day that the offence continues and for a subsequent offence to a fine of not more than $10,000 for each day that the offence continues. R.S.O. 1990, c. M.12, s. 21.

22.Injunction proceedings

22. Where it is made to appear from the material filed or evidence adduced that any offence against this Act or the regulations or any plan, order, direction, agreement, award or renegotiated agreement or award made under this Act has been or is being committed, the Superior Court of Justice may, upon the application of the Commission, the Director or a marketing board, enjoin any transporter, processor, distributor or operator of a plant from carrying on business as a transporter, processor, distributor or operator of a plant, absolutely or for such period as seems just, and any injunction cancels the licence of the transporter, processor, distributor or operator of a plant named in the order for the same period. R.S.O. 1990, c. M.12, s. 22; 2006, c. 19, Sched. C, s. 1 (1).

Section Amendments with date in force (d/m/y) 2006, c. 19, Sched. C, s. 1 (1) – 22/06/2006

PART B

Milk Act
R.R.O. 1990, REGULATION 761

MILK AND MILK PRODUCTS

https://www.ontario.ca/laws/regulation/900761

Plant Licences and Permits

95. (1) A person who wishes to operate a plant shall submit an application to the Director for a licence to operate the plant,

(a) before beginning to operate the plant; and

(b) if the plant is not yet constructed or if alterations are required to the plant, before commencing the construction or alterations. O. Reg. 174/14, s. 2.

(2) A person who holds a licence to operate a plant and who wishes to change any aspect of the licence described in clause 96 (2) (d), (e) or (f) shall submit an application to the Director to change the licence before implementing such a change. O. Reg. 174/14, s. 2.

(3) A person who submits one of the following types of application shall, at the same time, submit an application for a permit referred to in section 109:

1. An application for a licence to operate a plant that is not yet constructed or that requires alterations.

2. An application to change a licence, if the change would require that a plant undergo construction or alterations. O. Reg. 174/14, s. 2.

(4) A person who wishes to renew a licence to operate a plant shall submit an application to the Director at least 60 days before the licence expires. O. Reg. 174/14, s. 2.

(5) An application for a licence shall include the following information:

1. The applicant’s name, address, phone number and other relevant contact information.

2. The location or proposed location of the plant.

3. The type of plant for which the licence is sought and, in the case of a processing plant, the kinds of processing activities to be carried out at the plant.

4. A list of the milk products to be processed at the plant.

5. The species of animal that will produce the milk to be processed at the plant.

6. An estimate of the volume of milk to be processed at the plant.

7. The source of milk to be processed at the plant.

8. The signature of the applicant, or of the signing officer, as appropriate. O. Reg. 174/14, s. 2.

(6) An application made under this section shall be in a form provided by the Director. O. Reg. 174/14, s. 2.

96. (1) Subject to section 99.3, the Director shall issue a licence to operate a plant to a person who applies in accordance with section 95 unless the Director determines that the licence should be refused under section 100. O. Reg. 174/14, s. 2.

(2) The licence shall set out,

(a) the licence number;

(b) the licensee’s name, address, phone number and other relevant contact information;

(c) the name and address of the plant;

(d) the species of animal that will produce the milk to be processed at the plant;

(e) the type of plant approved for operation and, in the case of a processing plant, the kinds of processing activities approved to be carried out at the plant;

(f) in the case of a processing plant that will process cow’s milk, the classes or sub-classes of milk established under section 11 of Regulation 753 of the Revised Regulations of Ontario, 1990 (Grades, Standards, Designations, Classes, Packing and Marking) made under the Milk Act that may be processed at the plant;

(g) the effective date and expiry date of the licence; and

(h) the Director’s signature. O. Reg. 174/14, s. 2.

(3) A licence to operate a plant is effective on the date set out in the licence and expires on the earlier of,

(a) the date set out in the licence; and

(b) the day that is three years after the effective date. O. Reg. 174/14, s. 2.

(4) The fee for a licence to operate a plant is an amount equal to $150 for each one-year period the licence is effective, subject to subsection (5). O. Reg. 174/14, s. 2.

(5) If the licence to operate a plant expires on a day other than the anniversary of the licence’s effective date, the Director may prorate the licence fee that is payable for the period from the effective date, or the last anniversary of the licence’s effective date, until the expiry date. O. Reg. 174/14, s. 2.

97. Revoked: O. Reg. 174/14, s. 2.

98. No person shall operate a plant except in accordance with a licence from the Director.  R.R.O. 1990, Reg. 761, s. 98.

99. (1) A licence to operate a plant is subject to the following conditions:

1. The licence holder shall ensure that the only milk processed at the plant is milk produced by the species specified in the licence.

2. The licence holder shall ensure that the plant being operated is the type of plant specified in the licence and, in the case of a processing plant, that the plant carries out only the kinds of processing activities specified in the licence.

3. In the case of a licence to operate a plant that processes cow’s milk, the licence holder shall ensure that the only milk products processed at the plant are within the classes or subclasses of milk specified in the licence.

4. The licence holder shall not permit an employee to work in the plant while the employee has a communicable disease.

5. The licence holder shall ensure that every employee working in the plant wears outer clothing that is clean and light in colour.

6. The licence holder shall ensure that any person who grades milk received at the plant is the holder of a certificate for that purpose issued under section 89.

7. The licence holder shall carry on business in accordance with the law, with honesty and integrity and with regard to the public interest.

8. The licence holder shall observe, perform and carry out the provisions of the Act, the regulations, all plans, agreements and awards and all orders of the Commission, the Director and the marketing board. O. Reg. 174/14, s. 3.

(2) A licence to operate a plant is not transferable. O. Reg. 174/14, s. 3.

99.1 The Director may impose conditions on a licence to operate a plant in addition to those set out in section 99. O. Reg. 174/14, s. 3.

99.2 The Director may, after a hearing, suspend or revoke a licence issued under section 96 if the licence holder fails to comply with any condition of the licence. O. Reg. 174/14, s. 3.

99.3 (1) If the Director receives an application under section 95 in respect of a licence to operate a plant at which cow’s milk is to be processed, the Director shall not issue the licence unless he or she first complies with the process described in this section. O. Reg. 174/14, s. 3.

(2) This section does not apply in respect of an application for a licence in the following circumstances:

1. The application is for a renewal of a licence to operate a plant.

2. The application is in respect of changes to a licence but the proposed changes would not change the classes or subclasses of milk specified in the licence. O. Reg. 174/14, s. 3.

(3) The Director shall notify the following persons and entities of the application:

1. The Canadian Food Inspection Agency.

2. The Dairy Farmers of Ontario.

3. The Ontario Dairy Council.

4. The Ontario Farm Products Marketing Commission.

5. Any person or entity that holds a licence as a producer, processor or distributor issued under the Act if,

i. the person or entity informs the Director in writing that the person or entity wishes to receive notice under this section, and

ii. in the opinion of the Director, the person or entity would be affected by the granting of the licence.

6. Any other person that the Director believes may have information that should be considered before determining whether to issue the licence. O. Reg. 174/14, s. 3.

(4) A notice given under subsection (3) shall include the following information:

1. The name of the applicant.

2. The location or proposed location of the plant.

3. The type or types of plant for which the licence is sought and, in the case of a processing plant, the kinds of processing activities to be carried out at the plant.

4. The fact that the recipient is entitled to provide comments or information in respect of the application in accordance with clause (5) (a), to request a meeting under clause (5) (b) or to request further information under clause (5) (c).

5. Any other relevant information that may reasonably be required to allow the recipients to comment on the application. O. Reg. 174/14, s. 3.

(5) Within 30 days after the date the notice is sent, or within such shorter period of time as may be specified in the notice, the recipient may,

(a) provide the Director with written comments or information relating to the issuing of the licence;

(b) if the recipient believes that the licence should not be issued, request that the Director hold a meeting relating to the issuing of the licence; and

(c) request that the Director provide further information about the application. O. Reg. 174/14, s. 3.

(6) If the Director receives a request for a meeting under clause (5) (b), he or she shall set a time and place for a meeting and invite the following participants to the meeting in order to discuss whether the licence to operate a plant should be issued or refused:

1. The applicant.

2. The entities and persons who provided comments or information to the Director under clause (5) (a).

3. Any other person the Director believes may have information that should be considered before determining whether to issue the licence. O. Reg. 174/14, s. 3.

(7) Even if the Director does not receive a request for a meeting under clause (5) (b), the Director may set a time and place for a meeting and invite the participants listed in subsection (6) to the meeting in order to discuss whether the licence to operate a plant should be issued or refused. O. Reg. 174/14, s. 3.

(8) If the Director receives a request for further information under clause (5) (c), the Director may provide further information in accordance with the request. O. Reg. 174/14, s. 3.

(9) The Director shall not determine whether to issue or refuse a licence until the time permitted under subsection (5) to provide comments or information or request a meeting has elapsed. O. Reg. 174/14, s. 3.

(10) The Director shall consider any comments or information he or she receives under clause (5) (a) or at a meeting held under subsection (6) or (7) in determining whether to issue a licence or refuse it under section 100. O. Reg. 174/14, s. 3.

100. (1) The Director may refuse to issue or renew a licence for the operation of a plant,

(a) where the applicant is not qualified by experience, personnel or equipment to properly engage in the business for which the application was made;

(b) Revoked:  O. Reg. 268/99, s. 1 (1).

(c) where the applicant fails to observe, perform or carry out the requirements of the Act, the regulations, a plan, an agreement or an award, or an order of the Commission, the Director or the marketing board;

(d) where, in the opinion of the Director, any material representation or information made or provided by or on behalf of the applicant is false or misleading;

(e) Revoked:  O. Reg. 268/99, s. 1 (2).

(f) where the applicant does not comply with the Health Protection and Promotion Act and the regulations thereunder;

(g) where, in the opinion of the Director, the issuance or renewal of the licence is not in the public interest having regard to the past conduct of the applicant or, where the applicant is a corporation, of its officers or directors;

(h) where, in the opinion of the Director, the past conduct of the applicant or, where the applicant is a corporation, of its officers or directors, affords reasonable grounds for belief that the business will not be carried on in accordance with law or with honesty and integrity;

(i) where the applicant or, where the applicant is a corporation, any officer, director or servant thereof, or any person who is or will be in any way associated with the applicant in the operation of the business, has contravened or has permitted any person under their control or direction in connection with the business to contravene any provision of the Act or the regulations or of any other Act or the regulations thereunder or of any law of any jurisdiction applying to the carrying on of business and, in the opinion of the Director, such contravention warrants the refusal to issue or renew the licence;

(j) Revoked: O. Reg. 174/14, s. 4 (2).

(k) where the Director is of the opinion that the plant is not necessary or desirable having regard to,

(i) the needs of the producers in the locality in which the plant is located,

(ii) the impacts on the facilities of other plants in operation,

(iii) the interests of consumers who would be served by the plant,

(iv) the conditions and policies governing both the milk supply in Ontario and the allocation of milk to Ontario plants,

(v) the socio-economic impacts resulting from a decision to grant a licence, including direct and indirect economic activity, both in the locality in which the plant is located and in other parts of Ontario. R.R.O. 1990, Reg. 761, s. 100; O. Reg. 348/95, s. 15; O. Reg. 268/99, s. 1; O. Reg. 174/14, s. 4 (1-3).

(2) Before the Director refuses to issue or renew a licence, he or she shall,

(a) give the applicant notice that he or she may request a hearing before the Director; and

(b) if a request for a hearing is made, hold a hearing. O. Reg. 174/14, s. 4 (4).

101. Revoked: O. Reg. 174/14, s. 5.

102. Where, after a hearing, the Director has determined that a licensee or former licensee has contravened any condition of a licence or any provision of the Act, the regulations, a plan or any order or direction of the Commission, the Director may impose a penalty on the person.  R.R.O. 1990, Reg. 761, s. 102.

103. (1) The Director may require that a person engaged in the operation of a plant furnish a performance bond in an amount that does not exceed 10 per cent of the price payable to the marketing board and producers for milk and cream processed during the immediately preceding 12 months in the plant.  O. Reg. 348/95, s. 16.

(2) The Director may determine that a performance bond is forfeited where, after a hearing, the Director has determined that the plant operator who obtained the bond has contravened any condition of a licence or a provision of the Act, the regulations, a plan or an order or direction of the Commission.  R.R.O. 1990, Reg. 761, s. 103 (2).

104., 105. Revoked:  O. Reg. 268/99, s. 2.

106. Every person who operates more than one plant is required to be the holder of a licence in respect of each plant and shall be deemed to be a separate operator in respect of each such plant.  R.R.O. 1990, Reg. 761, s. 106.

107. Revoked: O. Reg. 174/14, s. 5.

108. Where the holder of a licence to operate a plant ceases to carry on the business for which the holder is licensed, the holder shall forthwith surrender the licence to the Director.  R.R.O. 1990, Reg. 761, s. 108.

109. (1) A person who holds a licence to operate a plant and who wishes to construct or alter a building intended for use as a plant or wishes to make alterations to an existing plant shall submit an application to the Director for a permit to construct or alter the building or plant before commencing the construction or alterations. O. Reg. 174/14, s. 6.

(2) The application for the permit shall include all the information required under subsection 95 (5) and two copies of drawings and specifications of the proposed construction or alteration, one copy to be retained by the Director and the second copy to be returned to the applicant. O. Reg. 174/14, s. 6.

(3) An application for a permit shall be in a form provided by the Director. O. Reg. 174/14, s. 6.

(4) A permit to construct or alter a building intended for use as a plant or to alter an existing plant is issued subject to the condition that,

(a) the plant is located on land that is well drained and readily accessible;

(b) the building being constructed or altered or the plant being altered has a supply of clean, fresh water, and has facilities for disposal of sewage sufficient for the purposes of the operation of the plant as constructed or altered;

(c) the construction or alteration of the building or alteration of the plant is carried out in accordance with the drawings and specifications submitted with the application; and

(d) the applicant has complied with the municipal by-laws and the Acts and regulations applicable to the construction or alteration being made. O. Reg. 174/14, s. 6.

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