The Supreme Court of Canada has refused leave to appeal in a decision of the Ontario Court of Appeal regarding the rights of an individual to run a “cow-share” program providing unpasteurized milk and milk products to program members bringing an end to years of litigation between the organic milk farmer and the Government of Ontario and confirms that food safety and public health protection legislation will be strictly and broadly enforced in Ontario.

Mr. Schmidt is a milk farmer who produces unpasteurized milk. The sale of unpasteurized milk is illegal in the province of Ontario under Ontario’s Health Protection and Promotion Act (HPPA). However, it is not illegal under the HPPA to consume unpasteurized milk from one’s own cow(s). Mr. Schmidt ran a “cow-share” program, providing unpasteurized milk and milk products to members of the program who purchased a fractional interest in a cow through a “cow share agreement”. In addition to the fractional cost of a cow, cow-share members also paid an amount per litre of milk to cover the cost of keeping the cow and producing the milk.

Mr. Schmidt was charged with several counts of selling and distributing unpasteurized milk and cheese contrary to the HPPA, operating an unlicensed milk plant contrary to the Ontario Milk Act, and failing to obey an order of the Public Health Inspector. The milk farmer argued that he did not violate the HPPA or the Milk Act by operating his cow-share program and that the provisions of those statutes he allegedly breached are contrary to the Canadian Charter of Rights and Freedoms, which provides a right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

At trial, the Justice of the Peace presiding over the case acquitted Mr. Schmidt of all charges, finding that his provision of milk to those who had entered into cow-share agreements with him was not caught by the HPPA or the Milk Act. The Justice of the Peace found that the cow-share program was essentially a private arrangement between the farmer and the cow-share members. However, the trial decision was appealed by the Government of Ontario to the Ontario Court of Justice, which found that the Justice of the Peace had erred in his approach to statutory interpretation and that the farmer should be convicted on thirteen counts, fined almost $10,000, and put on probation for a year.

The farmer appealed his convictions to the Ontario Court of Appeal. The Court dismissed his appeal. The Court did not accept that cow-share agreements resulted in an arrangement that removed the farmer’s activities from the reach of the HPPA and the Milk Act. The Court likewise found no violation of the farmer’s constitutional rights.

The Ontario Court of Appeal noted that one of the purposes of the HPPA is the prevention of the spread of disease and the promotion and protection of the health of the people of Ontario. Likewise, one of the purposes of the Milk Act is 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.

While the Court acknowledged that the farmer had a sincere and honest belief in the benefits of unpasteurized milk, the Court reinforced that it was the legislature’s choice to ban the sale and distribution of unpasteurized milk based on the evidence of its potential health risks, and that the legislature’s choice must be respected.

On August 14, 2014, the Supreme Court of Canada refused leave to appeal the farmer’s case. This brought an end to the protracted litigation of this matter and confirmed that Mr. Schmidt’s activities pursuant to his cow-share agreements will not be permitted to resume—or at least could not resume as previously structured.

It is clear from the decision of the Ontario Court of Appeal that statutes designed to protect public health and food safety will be applied broadly to achieve their goals. The decision reinforces the need for food producers, manufacturers, and distributors to ensure that their processes and practices are compliant with the relevant regulatory frameworks at all times.

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