Bedard v. Ontario Ministry of Agriculture, Food, and Rural Affairs, 1998 ONAFRAAT 33

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:

Bedard v Ontario Ministry of Agriculture, Food, and Rural Affairs

Bedard v OMAFRA 1998 ONAFRAAT 33

STATUTE:

Ministry of Agriculture, Food and Rural Affairs Act

HEARING:

July 29, 1998

DATE OF DECISION:

August 14, 1998

1998-33

NEUTRAL CITATION:

1998 ONAFRAAT 33

Bedard v Ontario Ministry of Agriculture, Food, and Rural Affairs

IN THE MATTER OF:

THE FARM PRODUCTS MARKETING 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 Marcel Bedard, St. Eugene, Ontario from a decision of the Director, Resources and Planning Branch, Ontario Ministry of Agriculture, Food & Rural Affairs, dated March 24, 1998, not to cancel the December 17, 1997 freezing point test result and associated penalty.

Before:

Mr. Jim Rickard, Chair; Gertrude Levac, Member; Stewart Hart, Member; Ron MacDonell, Member.

Appearances:

Mr. Marcel Bedard, appellant.

Ms. Rena Hubers, on behalf of the respondent, the Director, Resources and Planning Branch, Ontario Ministry of Agriculture, Food & Rural Affairs.

DECISION OF THE TRIBUNAL

This appeal was heard in Alfred, Ontario on Wednesday July 29, 1998. Marcel Bedard appealed to the Farm Products Appeal Tribunal (the Tribunal) from a decision of the Director, Resources and Planning Branch (the Director), Ontario Ministry of Agriculture, Food & Rural Affairs, dated March 24, 1998, not to cancel the freezing point test result and associated penalty for a sample of milk taken from the Bedard farm on December 17, 1997.

The Background

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

Subsection 52(1)

The milk of every producer,

(a) shall be tested at least once in each month

(i) for bacterial content by a plate loop test,

(ii) for somatic cell content by an official method, and

(iii) for the presence of an inhibitor by an official method, and

(b) may be tested for added or excess water at any time by a freezing point test

at a laboratory approved by the Director.

Subsection 52(5)

A freezing point test reading of -0.524^o Hortvet or higher shall be deemed to indicate added or excess water.

Subsection 55(4)

Where the milk of a producer is tested under section 52 and found to contain added or excess water, 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) $2 per hectolitre in the case of a first penalty;

(b) $4 per hectolitre in the case of a second penalty;

(c) $6 per hectolitre in the case of third penalty; and

(d) $8 per hectolitre in the case of a fourth or subsequent penalty

incurred within any twelve month period.

Subsection 55(9)

Where a producer incurs four penalties under subsection (4) within any twelve-month period,

(a) the Director shall so notify the marketing board and the producer in writing; and

(b) the milk of the producer shall not be marketed until the producer satisfies the Director that no milk that contains added or excess water will be sold or offered for sale.

Ferme Bedard & Freres (Bedard) milks between 65 and 70 Holsteins twice a day using Universal milking equipment and a two-inch stainless steel highline pipeline. The system is equipped with a functioning safety switch. The pipeline and bulk tank are sanitized with chlorine prior to milking. The pipeline has two sections and is a relatively long line being about 150 feet long. The pipeline slope appears to be satisfactory. The milk is cooled and stored in a 5,072 litre bulk tank. In December 1997, Bedard was shipping approximately 3,000 litres every other day with a general trend of decreasing volumes. 2,924 litres were shipped on December 17, 1997.

The Issue

The issue before the Tribunal is should the freezing point test result performed on the sample of milk taken from Bedard on December 17, 1997 and the associated penalty be allowed to stand?

The Evidence and the Findings

Mr. Marcel Bedard spoke to the Tribunal on behalf of Bedard. Mr. Bedard told the Tribunal that he does not dispute the sampling procedure, the testing procedure or the test results. He said his concern was that there was information available to the Director that indicated Bedard was operating close to or above the allowable freezing point temperature for a great deal of time during 1997 yet the Director did not provide the information to Bedard. Mr. Bedard said that had the Director provided this information then he and his brother could have made changes in their procedures and avoided the freezing point violation in December 1997 and not had to pay the $900 penalty.

Mr. Bedard told the Tribunal that Bedard had a freezing point penalty assessed in September 1996. At that time, they used water to chase the residual milk out of the pipeline at the end of milking. He said that none of this water ended in the bulk tank but to avoid any possibility of water getting into the milk this practice was stopped.

Mr. Bedard said that the usual practice at the first milking when the bulk tank was empty was to turn the compressor on to begin cooling the bulk tank before any milk was put into the tank. After the December 1997 penalty, it was recommended that this practice be changed to turn the compressor on only after the level of milk in the tank was high enough to touch the agitator. Mr. Bedard told the Tribunal that he changed the practice in January 1998 and did not turn the bulk tank cooler on until after 20 cows were milked into the empty tank. In March, Mr. Pommainville, the milk advisor for the Director, told him the freezing point was still not perfect so he increased the number of cows to 35 milked before turning the tank on. This appears to have solved the freezing point problem but he has some concerns that the delay in cooling the milk may result in increased levels of bacteria.

Mr. Bedard asked the Tribunal to decide that if he were given the information that was available to the Director throughout 1997 he would have altered his procedures and avoided the December 17, 1997 freezing point violation and not had to pay the penalty.

Ms. Rena Hubers spoke to the Tribunal on behalf of the Director. Ms. Hubers took the Tribunal through the full sampling and testing procedures but since there is no dispute on the procedures this evidence is not repeated here. The Tribunal concentrated on the portion of the evidence dealing with the issue identified by Mr. Bedard.

Ms. Hubers told the Tribunal that Mr. Pommainville had reported to her that the discussion about delaying turning the bulk tank on until the agitator could reach the milk took place after the September 1996 penalty was assessed not after December 1997 penalty as reported by Mr. Bedard.

Ms. Hubers told the Tribunal that there were changes made in the way samples were tested for freezing point at the laboratory in 1996. In March of 1996, the laboratory investigated the equipment used to test for composition. Prior to that time all samples were heated in a water bath. These samples could not be tested for freezing point because there was a possibility the sample could have some water added during the heating process. Different samples had to be tested for freezing point and composition. New equipment that does not use water to heat the sample was installed. Using this equipment, estimated freezing points are calculated from measurements made on the milk sample. This allows the technician to screen the milk samples for possible contravention of the freezing point regulation. The reliability of the calculation was not known at the beginning of the evaluation process so the Ministry and the DFO staff decided to start screening the milk samples using the equipment and see what data the procedure gave. These results were not reported to the producer but were used to screen samples for testing freezing point on the official Cryoscope testing machine. She pointed out that the official test and procedures of the official test have not changed in this process. However, the screening has allowed the technicians to concentrate on the suspect samples and increase the frequency of the test for freezing. She said that freezing point testing is labor intensive and therefore was not done as frequently in the past as it currently is being done. The samples are now screen tested four times a month.

Ms. Hubers told the Tribunal that the number of freezing point penalties has increased significantly since the change in procedures. The penalty test results are:

1993 96 penalties assessed.

1994 180 penalties.

1995 89 penalties.

1996 318 penalties, of which 176 occurred after October 1.

1997 415 penalties.

Ms. Hubers said that, in August 1996, the laboratory switched officially to the new testing equipment and started to calculate estimates of freezing points. Now that the test data is available, the scientists at the laboratory are confident in the ability of the new equipment to produce the data necessary to calculate an accurate freezing point estimate. She said that milk freezes at -0.540^oH so the closer the test gets to -0.540^oH the more normal the milk is. If the sample freezes at temperatures warmer than -0.540^oH it indicates more water than normal is in the milk. She said that the freezing point is an indication of a problem on the farm. It is not necessarily added water but water in excess of the average milk composition water. Ms. Hubers said that the data was not released to the producers unless asked for. She said there was a great deal of data for the staff to deal with and this made it virtually impossible to inform all of the producers who were close to the penalty level.

Mr. Alex Hamilton, fieldman for the DFO, told the Tribunal that since the DFO assumed responsibility for the milk quality program it has begun placing the quality data for producers, that are in a “warning” or “penalty” situation, on the Internet and a 1-800 voice message system, as soon as it is available. He said this should solve the problem identified by Mr. Bedard.

Ms. Hubers said that the DFO gets a daily download of test results from the laboratory. She said that since the Director found no problems with the sampling process or testing procedures and since Mr. Bedard was not disputing the test results, the test result and the penalty should be allowed to stand.

The Tribunal examined the evidence and made note of the following facts:

1. Bedard was assessed a freezing point penalty in 1996. At that time, Marcel and his brother changed the equipment washing procedures and the freezing point test results improved.

2. There is a dispute on whether Bedard was informed about the possible problem with the bulk tank after the September 1996 penalty or the December 1997 penalty.

3. Mr. Bedard would have known the rule and regulations after receiving the September 1996 penalty.

4. Both parties appeared comfortable that the problem was with the bulk tank and it appears that it has now been solved.

5. For 1997 the freezing point screening tests were close to the penalty level or the warning level.

6. Ms. Hubers told the Tribunal that Bedard operated a well-managed farm. The changes made, by the DFO, in the procedures of notifying producers of possible penalty situations should address Mr. Bedard’s concerns.

7. Mr. Bedard indicated that if the Branch informed him he was in a warning zone, he would have made the changes in bulk tank operation earlier and might have avoided the penalty. While this may have been true, Mr. Bedard was not treated any differently than any other producer during this time.

8. In a perfect world, the Tribunal would have expected the Director to follow up with a producer that had just experienced a freezing point violation when data showing poor results was available. In that same world, the Tribunal would have expected a producer who had just experienced a penalty for any infraction to follow up with the Director asking for milk quality test results and information tests to ensure that the corrective action taken on the farm was producing milk of good quality. In this case, neither party took the expected action.

The Tribunal finds that Mr. Bedard was sincere in his request but there is no dispute that the milk sample properly represented the milk marketed by Bedard on December 17, 1997, and there is no dispute that the test result was in the penalty range.

Decision and Reasons

After careful consideration of the evidence presented and the submissions made, the Tribunal decided to deny the appeal and uphold the decision of the Director.

The reasons for this decision are:

1. The Tribunal was not convinced that there was anything wrong with the testing procedures or test results.

2. Mr. Bedard has been treated in the same manner as others who have been penalized for the same offense.

Dated at Guelph, Ontario this 14th day of August, 1998.