Roelofsen v. Director of Regulatory Compliance, DFO, 1998 ONAFRAAT 32

Agriculture, Food and Rural Affairs

Appeal Tribunal

1Stone 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:

Roelofsen v Director of Regulatory Compliance, Dairy Farmers of Ontario

Roelofsen v Director of Regulatory Compliance, DFO 1998 ONAFRAAT 32

STATUTE:

Ministry of Agriculture, Food and Rural Affairs Act

HEARING:

August 5, 1998

DATE OF DECISION:

August 13, 1998

1998-32

NEUTRAL CITATION:

1998 ONAFRAAT 32

Roelofsen v Director of Regulatory Compliance, Dairy Farmers of Ontario

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 Art & Ruth Roelofsen, RR 2, Arthur, Ontario from a decision of the Director of Regulatory Compliance, Dairy Farmers of Ontario, dated May 22, 1998, not to cancel the positive inhibitor test results of January 21, 1998 and associated penalty and load liability costs.

Before:

Denis O’Connor, Vice-Chair; Gordon Hill, Member; John Lammers, Member.

Appearances:

Art Roelofsen, appellant, in person.

Peter Gould, on behalf of the respondent, the Dairy Farmers of Ontario.

DECISION OF THE TRIBUNAL

This appeal was heard in Guelph, Ontario, on August 5, 1998. Mr. Art Roelofsen, RR 2, Arthur, Ontario appealed to the Farm Products Appeal Tribunal (the Trtibunal) from a decision of the Director of Regulatory Compliance, Dairy Farmers of Ontario (DFO), dated May 22, 1998, not to cancel the positive inhibitor test results of January 21, 1998 and associated penalty and load liability costs.

The Background

The sections of Ontario Regulation 761 that apply to this appeal are as follows:

Section 5(1) states:

"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 states:

"(3) 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);

within any twelve-month period.

(3.1) If a truckload of milk cannot be marketed because of the presence of an inhibitor and

the milk of a producer with milk in the truckload is tested under section 52 and found to contain an inhibitor, the producer is liable to the marketing board in an amount equal to the value of the milk damaged plus the cost, including transportation costs, of disposing of the milk.”

Art Roelofsen and his son Chris operate a dairy farm north of Arthur. It is a family farm which was purchased in 1962 by Art’s father. There is an older barn on the farm which has been converted to free stalls with a double five milking parlour. The Roelofsen’s milk 55 cows and ship approximately 2600 litres of milk every other day.

The Issue

Should the test result of the sample of milk taken at the Roelofsen farm on January 21, 1998 and associated penalty and load liability costs be allowed to stand?

The Evidence and the Findings

Art Roelofsen said that he and his son, Chris, take great pride in the quality of milk they produce. When they were advised their milk sample tested positive for penicillin, they were surprised as no animals were being treated with pencillin. He does not feel the milk sample was indicative of the quality of milk they shipped. In his opinion, the only answer to the positive test is that the error occurred somewhere other than on his farm.

He also told the Tribunal that:

• he and his son Chris do most of the milking. Occasionally another son helps out.

• if they are suspicious that their milk might contain an inhibitor, they take a sample to their local vet service for testing before shipping.

• no cows or calves were being treated with penicillin at the time of the positive inhibitor test.

• his daughter and Chris’ wife are allergic to penicillin, so they are very careful about not getting drugs in their milk.

• the dry cow treatment they use does not contain penicillin.

• dry cows do come through the milking line with the milking cows about 10 to 12 days prior to calving so they get accustomed to the feed.

• when he was advised of the positive test, he called Inter-County in Arthur. They advised him that their test showed a high level of penicillin. The test at the Central Milk Testing Laboratory (the Lab) confirmed this information.

• the sample of milk tested on January 22, 1998 was negative.

• he checked with his feed supplier and was assured that the truck that delivered feed to his farm did not contain any other feed that was medicated.

• a fresh load of feed is delivered approximately once every two weeks. A fresh load of feed was delivered January 22, 1998. The same shipment of feed was fed to cows January 21 and 22, 1998, so it is unlikely that the inhibitor entered the system from the feed.

• he visited the Lab at the University of Guelph as he wanted to see how milk samples were tested. He said he also requested to see the sample vial taken from his farm January 21, 1998 so that in his mind he could be assured that the label and vial had not been tampered with. However, he was advised by Lab staff that for security reasons they were unable to show him the vial.

• in 1993, he had an inhibitor in his milk, but it was below penalty level. At that time, some calves were being treated with penicillin. Since then, they treat the calves after milking so there is no chance of contamination through hands.

• he does not believe anyone would deliberately contaminate their milk.

Peter Gould, Director of Regulatory Compliance, DFO, spoke on behalf of the DFO. He said that on January 21, 1998 milk was picked up at the Roelofsen farm by Inter-County Milk Transport. This was the third pickup on the load which was then taken to the depot in Arthur where it tested positive for inhibitors using the SNAP test. Milk samples from the load and the three producers were picked up at the depot by Gord Johnson, DFO fieldman, and delivered to the Lab in Guelph. The samples arrived at the Lab on January 21, 1998 in sealed tamper proof vials at a temperature of 2 degrees Celsius. The load sample and Roelofsen producer sample both tested positive on the standard Disk Assay test as well as the SNAP and LacTek tests. The other two producer samples, whose milk was also on the load, tested negative. The total load of milk was contaminated and had to be dumped.

Introduced into evidence was a February 10, 1998 letter to Mr. Roelofsen from George MacNaughton, Manager Farm Policies and Programs, DFO. In the letter he states:

“Regulation 761 under the Milk Act provides that if a truckload of milk cannot be marketed because of the presence of an inhibitor and the milk of a producer with milk in the truckload is found to contain an inhibitor, then the producer is liable to DFO the value of the milk damaged plus the costs, including transportation costs, of disposing of the milk. In addition, where the milk of a producer is found to contain an inhibitor, the producer is, in respect of the milk marketed in the same month as that was tested, liable to a penalty of $6 per hectoliter where there has been no previous detention of the producer’s milk,...”

The letter also advised Mr. Roelofsen that he was liable to DFO for the value of the load of milk, plus disposal and transportation charges totalling $3,751.73. The inhibitor penalty of $6 per hectoliter to January production amounts to: $2,165.93 (347.86 hl x $6).

Mr. Gould also told the Tribunal that:

◼ Sample handling procedures were not questioned by the producer. In fact, Mr. Roelofsen expressed confidence in the performance of the Bulk Tank Milk Grader.

◼ The Lab test of the load and producer sample found penicillin G at levels of 210 and 786 ppb in load and producer sample respectively.

◼ Penicillin G procaine, the medicine found in the milk, was present on the farm at the time of the positive test.

◼ Good management practices recommended by DFO are that permanent treatment records be kept and that treated dry and lactating cows be kept separate. These are not practices that were followed on this farm prior to January 21, 1998.

◼ The milk composition and SCC results of the sample taken January 21, 1998 compare closely to Roelofsen’s other milk sample test results taken in January.

Louise Spilsbury, Scientist with the Drug Unit at the Lab, testified that she has been involved with research to determine whether or not penicillin G procaine when found in cow’s milk has been metabolized. Louise postulated that if procaine were found in the milk in a ration of 1:1 that this would indicate that the drug had not been metabolized by the cow but had entered the milk from some source other than through the cow. However, because her research todate has been conducted on a small number of animals, she cautioned that results may be less reliable. In her opinion, based on research to date, it would appear that the antibiotic, penicillin G procaine found in the Roelofsen sample was not metabolized.

The Tribunal reviewed the evidence and noted the following facts:

1. Evidence was that on or around January 21, 1998 no cows were being treated with penicillin.

2. One cow had been dry treated with a product that could not have caused a penicillin G positive test.

3. The load tested positive at the depot. All samples of producers’ milk that were on the load were delivered to the Lab January 21, 1998. The SNAP and Lac Tek tests at the Lab confirmed the Roelofsen sample and load as positive. The other two producer samples, whose milk was on the load, tested negative.

4. Sample testing procedures used by the Bulk Tank Milk Grader were not in question.

5. No permanent treatment records were kept prior to January 21, 1998. The Tribunal commends the Roelofsen’s for instituting this as a new management practice on their farm.

6. Penicillin G procaine and Special Formula 17900 (an intramammary product which contains Penicillin G) were kept in a cupboard in the barn. Good management would dictate that these drugs be stored under refrigeration.

7. Research as to whether or not a drug that is in the milk has been metabolized is in initial stages and thus is not conclusive. Research and analysis presently available suggests that the penicillin, in this case, did not enter the milk via the cow.

The Tribunal was convinced that the Roelofsen’s take great pride in their business and would not knowingly ship milk that contained an inhibitor. However, Mr. Roelofsen failed to present any evidence to convince the Tribunal that the penicillin in the milk taken from the farm that day originated from any other place than from the farm. In the opinion of the Tribunal, responsibility for the milk produced and shipped from the farm must remain with the producer.

The Tribunal has sympathy for the frustration of the Roelofsen’s as they have been unable to determine how the milk could have been contaminated.

Decision and Reasons

After careful consideration of the evidence presented and the submissions made, the Tribunal decided to deny the appeal for the following reasons:

1. The Tribunal was not convinced that there were any errors with the sample handling or testing procedures.

2. There were antibiotics present on the farm that could have caused the positive test result.

3. Mr. Roelofsen was unable to present any permanent treatment records that the Tribunal feels are so necessary for good management, particularly in situations where more than one person is milking the cows.

Having found that the positive inhibitor test result should stand, the Tribunal found no reason to modify the penalty imposed by the regulation or the cost of disposing of the contaminated milk assessed by DFO to Art Roelofsen.