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 Email: AFRAAT@ontario.ca
AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL
APPEAL:
Walton v Ontario Ministry of Agriculture, Food, and Rural Affairs
Walton v OMAFRA 1997 ONAFRAAT 33
STATUTE:
Ministry of Agriculture, Food and Rural Affairs Act
HEARING:
August 7, 1997
DATE OF DECISION:
August 19, 1997
1997-33
NEUTRAL CITATION:
1997 ONAFRAAT 33
Walton v Ontario Ministry of Agriculture, Food, and Rural Affairs
IN THE MATTER OF: THE MILK ACT AND SECTION 16 OF THE MINISTRY OF AGRICULTURE AND FOOD ACT.
AND IN THE MATTER OF: An Appeal to the Farm Products Appeal Tribunal by R. John and Margaret Walton, Waltlea Farms, R.R. #1, Woodstock, Ontario from the decision of the Director, Resources and Planning Branch, Ontario Ministry of Agriculture, Food and Rural Affairs, dated June 9, 1997, to allow a December 11, 1996 positive inhibitor test result taken from their farm to stand.
Before: Dr. Denis O’Connor, Vice-Chair; Mrs. Anna Andres, Member; Mr. Murray Cardiff, Member; Mrs. Karen Ratcliffe, Member.
Appearances: Mr. & Mrs. Walton, appellants in person Ms. Rena Hubers, on behalf of the respondent, Resources and Planning Branch, Ontario Ministry of Agriculture, Food & Rural Affairs.
DECISION OF THE TRIBUNAL
This appeal was heard in Guelph, Ontario on August 7, 1997. Mr. and Mrs. Walton appealed the decision of the Director, Resources and Planning Branch, Ontario Ministry of Agriculture, Food and Rural Affairs (the Branch), dated June 9, 1997, to allow a December 11, 1996 positive inhibitor test result taken from their farm to stand.
The Background
Ontario Regulation 761, Section 5 states:
"(1) No producer shall sell or offer for sale milk or cream that,
(a) is obtained from an animal,
(ii) to which an inhibitor has been administered, during the period of medication and for such period following the last treatment as is sufficient to ensure that the milk or cream does not contain an inhibitor when tested by an official method at a laboratory approved by the Director.
Section 52(1) states:
"The milk of every producer,
(a) shall be tested at least once in each month,
(iii) for the presence of an inhibitor by an official method."
Section 54 states:
"(1) Where milk of a producer is tested under section 52 and found to contain an inhibitor, a fieldperson shall place under detention all milk of the producer.
(2) Where a fieldperson places milk under detention under subsection (1), such samples of milk as are necessary shall be taken and delivered to a laboratory approved by the Director for testing for the presence of an inhibitor by an official method.
(3) The results of the testing of a sample under subsection (2) shall be made known to the producer within 24 hours of the time the milk was placed under detention.
(4) Where the testing of a sample under subsection (2) shows that the milk does not contain an inhibitor, the fieldperson shall release the milk from detention."
Section 55 (3) states:
"Where the milk of a producer is tested under section 52 and found to contain an inhibitor, the producer is, in respect of the milk marketed in the same month as the milk that was tested, liable to a penalty of,
(a) $6 per hectolitre where there has been no previous detention of the producer's milk under subsection 54(1); O. Reg. 534/92.
(b) $9 per hectolitre where there has been one previous detention of the producer's milk under subsection 54(1); O. Reg. 534/92."
The Waltons own a 150-acre farm near Woodstock and have a milking herd of 30 to 35 cows. The cows are housed in a tie-stall barn and are milked with a Surge 2", stainless steel, highline, pipeline system. Their milk is stored in a 600 U.S. gallon (2400 litre) Mueller bulk tank. Shipments in December were in the 1200 litre range.
Mr. Walton starts the morning milking around 6:00 a.m. and is finished by about 7:30 a.m. The milk transporter picks up their milk every other day at about 8:15 a.m.
The Evidence
Mrs. Walton stated that they do not feel the December 11, 1996 milk sample accurately reflects the quality of milk that was in their tank that day.
She said that Mr. Walton does all of the milking except for Sundays when he has a 19-year old assist him. She stated that Mr. Walton did all of the milking for the December 11, 1996 shipment.
Mrs. Walton testified that udder preparation is completed with the use of a pre-dip, Surge Theratec which is an iodine based product. This same product is used as a teat dip after milking. She said that treated animals are milked last after the swing line has been removed from the bulk tank. Milk is diverted into a trap bucket which is hooked to the milk line for vacuum. Milk from all quarters is withheld. Treated cows are marked on the hip with a “P” to indicate that the milk should be milked into the bucket or pail rather than into the bulk tank. Also, a string is tied on the pipeline inlet beside the treated animal and a tag is hung on the trainer line. Dry cows are treated with Dry-Clox, marked on the hip with a “D” for dry and immediately moved to the pole barn.
She indicated to the Tribunal that the only purchased feed for the herd is a concentrate and barley. She produced into evidence a letter from Yantzi Feed indicating that Mr. Walton received his custom feed supplement on November 2, 1996 and that there was no sulpha medication in the feed. In his letter, Mr. Yantzi also stated that he was confident there was no truck or mill contamination in this feed.
She said that replacement cows are mainly from their herd. However, a cow was purchased at a sale on December 11, 1996. This cow did not arrive on their farm until the evening of December 11 so none of her milk was in the tank when the milk was picked up December 11, 1996 at 8:30 a.m.
She expressed some concern about how quickly their bulk milk tank grader picked up their milk. She said they had timed him and he was in and out of the yard in only seven minutes. She stated that they were concerned that if the bulk tank milk grader had not agitated the milk for five minutes, as is required, it may have affected the test results of the sample. She also expressed concern that the sample vials are put in a cooler in the truck and that the cooler is not locked.
Mrs. Walton stated that treatment records are kept on an erasable chart supplied by Dairy Farmers of Ontario. No permanent treatment records were kept, however they are now keeping permanent records. She produced into evidence treatment records from their veterinarian, Dr. Shewfelt.
Dr. Shewfelt, Tavistock Veterinary Clinic, testified on behalf of the Waltons. He said he treated a cow at their farm on November 22, 1996 with Borgal. (Borgal does not contain sulphamethazine (SMZ).) Another cow was treated on December 5, 1996 for a twisted stomach but that cow did not survive. On December 7, 1996, a cow was dry treated with Dry-Clox and was immediately moved to the pole barn. He said that he reviewed his records and no SMZ products had been sold to the Waltons for at least one year prior to December 11, 1996.
Mrs. Walton said that recently both she and her husband toured the University of Guelph’s Milk Testing Laboratory (the Lab). She expressed some concerns they had about how easy it was to remove the label from the sample vial and that once removed there were no marks left that would indicate the vial had been tampered with. She also expressed the concern that they have no control over the sample vial once the bulk tank milk grader takes the sample and it leaves their farm.
In her summation, Mrs. Walton said they have put a lot of time and effort into trying to locate a source of contamination and no source of contamination was found. She said the concern they have is that once that sample is taken and leaves their farm they cannot be assured 100% that nothing happened to that milk sample.
Ms. Rena Hubers, Manager, Livestock Legislation Program, testified on behalf of the Branch. She said that the sample taken on December 11, 1997 was a routine sample which tested positive. The sample was taken by a certified bulk tank milk grader and was tested at the Lab and found to be positive using two screening tests. Subsequent testing of this sample on December 13, 1996 found the sample to be positive for SMZ on the LacTek test. In addition, confirmatory testing of the sample by high pressure liquid chromatography (HPLC) on December 17, 1996 revealed SMZ contamination at the level of 25 ppb. The marketing of such milk is in contravention of Regulation 761, Section 52 of the Milk Act (Ontario). The Lab did not notice any unusual markings on the sample and the vial security tab was in place.
She said that in May, 1996, the Waltons had expressed concern about the short length of time it took the bulk tank milk grader to take a milk sample and pick up their milk. This led to the Branch having a milk quality advisor ride with the bulk tank milk grader to ensure he was following correct procedures when picking up milk and taking milk samples.
Ms. Hubers said that the Branch completed a routine follow up of milk samples from other producers on that route and no other sample tested positive. The Branch also compared quality and composition results of other producers on the route and nothing was unusual.
She said that when the Branch completed their investigation in March, 1997, they did not find any drugs that contained SMZ. The Branch also noted that no permanent records of treatments were kept by the Waltons.
Mr. David Hocking, General Manager, Oxford Milkway Transport Co-operative, explained the procedures used by the bulk tank milk grader when he picks up milk. He stated that when the driver gets to the farm, he agitates the bulk tank for five minutes. Using a pipette, he takes a sample of the milk, puts it in the vial that has a producer label on it and then puts the security tab in place. The milk is then pumped from the bulk tank to the truck. The driver puts the sample vial in his truck in a cooler that has a handle lock. The driver brings the samples to their depot, puts them in the racks in the large cooler which is called their sample room. The samples are then transported to the Lab.
In response to a question of the Tribunal, he estimated that for most “milk” pickups, it would take the bulk tank milk driver approximately 10 minutes.
Ms. Hubers stated that the chances of accidental contamination of the vial are extremely low. She said that tampering with a vial is highly unlikely and that if an individual had intent to tamper with a vial they would also require a thorough knowledge of testing procedures. She said there was no evidence that the vial had been tampered with and thus the Branch has no reason to doubt the positive SMZ test result.
In response to a question of the Tribunal, she stated that once the level of contamination is above 10 ppb, the producer is in a penalty situation. She said that the Waltons’ milk sample that was tested on December 11, 1996 was contaminated at the level of 25ppb.
The Findings
Mrs. Walton raised some concerns about the possibility of contaminating a vial before the milk sample was put in the vial and the possibility that the label could be removed from the vial. Ms. Hubers pointed out that each vial has a hinged lid and a security tab that must be broken before the empty vial is opened. After the sample of milk is placed in the vial it is again made secure by means of a pronged strip that is subsequently cut off at the testing lab. The Tribunal was told that after the vials were used once, they were destroyed. Ms. Hubers told the Tribunal that it was highly unlikely that the sample vial could be contaminated unless someone had intent to do so. Since the Waltons did not raise any evidence that would substantiate that someone intentionally tampered with the milk test sample or give evidence that anyone had tampered with their vial, the Tribunal concludes that the security of the Waltons’ vial was intact.
Mr. Walton did purchase a cow on December 11, 1996. The Waltons presented into evidence a copy of the bill of sale and evidence that the sale did not start until after the milk had been picked up the morning of December 11, 1996. Therefore, the Tribunal is satisfied that the contamination did not come from the purchased cow.
The Tribunal was convinced that no drugs containing SMZ had been purchased from the Tavistock Veterinary Clinic for at least one year prior to December 11, 1996. There was some evidence that sulpha was used in feed for young calves but that was purchased after the December 11, 1996 test. However, the Tribunal is aware that SMZ is a non-prescription drug that can be purchased from other sources and that, unknown to the Waltons, SMZ could have been contained in products that were purchased from other sources.
The Tribunal heard evidence that four separate tests were performed on the milk sample and each test was positive. The Tribunal also heard evidence that no other milk sample on the route that day tested positive. In fact, the composition of all other samples was consistent with past producer records. In the absence of any other evidence, the Tribunal concludes that the SMZ, in all likelihood, came from some accidental unintentional occurrence on the farm.
The Waltons raised the concern that the bulk tank milk grader may not be agitating their milk for the required five minutes before taking the sample. The Tribunal was not convinced that this would have affected the outcome of a positive inhibitor milk test.
The Tribunal noted that no permanent treatment records were kept in the past and would like to commend the Waltons for the fact that they are now keeping permanent treatment records.
Decision of the Tribunal
After careful consideration of all the evidence and submissions before it, the Tribunal decided to deny the appeal for the following reasons:
No evidence was presented to suggest that sample handling or testing procedures were conducted improperly.
Mr. and Mrs. Walton’s milk sample was the only one that tested positive on the load that day.
The Tribunal was not presented with any evidence that the sulphamethazine could have entered the milk from any source other than from the farm.
The Tribunal understands that not being able to determine the source of contamination is of great concern to Mr. and Mrs. Walton. In this case, the Tribunal feels it has to leave the responsibility with the producer.
DATED at Guelph, Ontario this 19th day of August, 1997.