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:
J. Schwartz Livestock Ltd. v Ontario Ministry of Agriculture, Food, and Rural Affairs
J. Schwartz Livestock Ltd. v OMAFRA 1998 ONAFRAAT 4
STATUTE:
Ministry of Agriculture, Food and Rural Affairs Act
HEARING:
January 12, 1998
January 20, 1998
1998-04
NEUTRAL CITATION:
1998 ONAFRAAT 4
J. Schwartz Livestock Ltd. 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 J. Schwarz Livestock Ltd., Bowmanville, Ontario from the decision of the Director, Resources and Planning Branch, Ontario Ministry of Agriculture, Food and Rural Affairs, dated October 28th, 1997 to allow a July 4, 1997 positive inhibitor test result taken from their farm to stand.
Before:
Mr. Jim Rickard, Chair; Mrs. Moira Connell, Member; Mr. John Lammers, Member.
Appearances:
Mr. Jayson B. Schwarz , for the appellant J. Schwarz Livestock Ltd.
Ms. Dagny Ingolfsrud, on behalf of the respondent, the Director Resources and Planning Branch, Ministry of Agriculture Food and Rural Affairs.
DECISION OF THE TRIBUNAL
This appeal was heard in Guelph, Ontario, on January 12, 1998. Mr. Joseph Schwarz appealed to the Farm Products Appeal Tribunal (the Tribunal) on behalf of J. Schwarz Livestock Ltd. (Schwarz Ltd.), Bowmanville, Ontario from the decision of the Director, Resources and Planning Branch, Ontario Ministry of Agriculture, Food and Rural Affairs (the Director), dated October 28th, 1997 to allow a July 4, 1997 positive inhibitor test result on a sample of milk taken from the farm of Schwarz Ltd. to stand
Preliminary Matters
At the beginning of the hearing the Dairy Farmers of Ontario (DFO) and Mr. Jayson Schwarz, on behalf of Schwarz Ltd., filed with the Tribunal written waivers of the right of appeal to the DFO on the matter of the DFO decision to apply $6,868.69 in costs associated with the lost load of milk resulting from the milk taken at the Schwarz farm July 4th testing positive for inhibitors. The Tribunal agreed to hear and decide this appeal in conjunction with the appeal of the Director’s decision on the test results of this milk sample.
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."
Schwarz Ltd. owns a dairy farm known to the owners as the Woods Farm. Because of Mr. Schwarz’s livestock dealing business the dairy herd on the Woods Farm varies in number of cows frequently. On July 4th, 1997 there were about 45 cows being milked in a two row tie stall barn using an Alfa-Laval highline pipeline and four milking units. The milk is stored on the farm in an Alfa-Laval tank with a capacity of 3,238 liters. Normal shipments are between 1,600 and 1,800 liters every other day. On July 4th Steve Hornyak, driver for Country Milk Carriers Ltd., picked up 1,928 liters of milk at the Woods Farm and transported it, along with the milk from seven other producers, to Beckers in Toronto. The load was tested at the plant using a SNAP test and showed positive for the presence of an inhibitor (antibiotic residue in the milk). On July 4th , a sample of milk from the load and the eight producer’s samples were delivered to the Laboratory Services Division of the University of Guelph (the lab) for testing. The lab tested the samples using the Disc Assay method. The Disc Assay test on the load sample showed positive for inhibitors. The Disc Assay test on the producer samples showed only the sample from the Woods Farm as being positive. A further test on this sample using a High Pressure Liquid Chromatographic (HPLC) test identified the antibiotic as penicillin G at a level of 2,222 ppb. The legal limit is six (6) ppb. The load of 14,015 liters of milk was disposed of by the DFO.
As a result of the Director’s decision to let the test result stand, Schwarz Ltd. was assessed a penalty of $6.00 per hectoliter for the milk shipped in July 1997 and the DFO also assessed $6,868.69 to Schwarz Ltd. as the cost of the load of milk plus disposal and transportation.
The Issue
There are two issues before the Tribunal. Firstly should the test result of the sample of milk taken at the Woods Farm on July 4th, 1997 be allowed to stand? Secondly, if the test result if allowed to stand should the penalties and costs assessed to Schwarz Ltd. be adjusted?
The Evidence and the Findings
Mr. Jayson Schwarz, counsel to Schwarz Ltd. told the Tribunal that the test results were not being disputed. He said the issue that he was disputing was the method in which the sample was collected and handled by the bulk tank milk grader.
Rene Hubers, Manager of the Raw Milk Quality Program, told the Tribunal that she was appearing at the hearing on behalf of the Director. Ms. Heubers outlined the process that the branch goes through when a positive inhibitor test occurs and filed with the Tribunal reports on the test results and investigation carried out by ministry staff. Since Mr. Schwarz does not contest that the milk tested at the lab was positive for inhibitors, the portion of the documentary evidence from the Director, filed by Ms. Heubers, that is significant for this hearing is the August 27, 1997 report of Grant Brownridge, the milk quality advisor who visited the Woods Farm on August 26. In this report Mr. Brownridge states that treated cows are identified by red leg bands put on one leg. Treated cows are placed at one end of the stable and are milked last after the swing-pipe is removed from the bulk tank. Treated cows are kept in a separate pasture when outside of the barn. No temporary or permanent records are kept of treatments. The herdsman, Mr. Shelley, does all of the treatments and keeps track of withhold dates by memory. Cows are not identified by neck chain or number but are distinguished in appearance by Mr. Shelley. In the week prior to July 4th two cows were being treated with Special Formula 17900. Cow # 1 was treated on June 30, and July 1 and 2 using two tubes a day in one quarter. Cow # 2 was treated June 30, July 1 and 2 with two tubes per day and retreated on July 5th for another three days. Each tube of Special Formula contains 100,000 IU of penicillin G Procaine. The recommended dose is one 10 ml tube every 24 hours. The only other cow being treated had a bandage gauze treated with Liquamycin wrapped around her foot. The veterinarian had told Mr. Shelley that no withdrawal time was necessary for this treatment. Cows are dry treated with Cepha-Dry and moved to a separate barn. No cows had been dry treated in the week before July 4th but no records of dry treatments are kept. Mr. Schwarz keeps a sales book. No records of dry or calving dates or treatment dates are entered in the sales book. Mr. Shelley has access to the sales book.
Ms. Hubers told the Tribunal that the lab reported no unusual markings on the sample vials and that there was no indication that the samples had been tampered with.
Mr. Joseph Schwarz, on behalf of Schwarz Ltd., told the Tribunal that he has been in the cattle business for 61 years and has been supplying milk to Ontario dairies since before the formation of the Ontario Milk Marketing Board, now the DFO. He said he impresses on his help the importance of producing quality products and as a result in all the time he has sold milk he has never before had a positive inhibitor test. In addition to producing milk Schwarz Ltd. buys and sells dairy cattle. Mr. Schwarz told the Tribunal that every cow that is bought by Schwarz Ltd. has a numbered steel ear tag as well as a large plastic ear tag with the same number. This allows easy identification of cows for record keeping purposes. Because of this he disputes the comment in the Brownridge report that the cows are not identified by number. Mr. Schwarz said that Mr. Joe Shelly had worked for him for six months when the positive test happened. He said Mr. Shelley was one of the best herdsmen he had employed. He said that there are 58 tie stalls in the barn and only 32 cows milking so there is lots of space between the treated cows and the rest of the herd so it would be practically impossible to accidentally milk a treated cow and put the milk in the bulk tank.
Mr. Schwarz said that there is a California Test Kit on the farm. He was not aware of any other test kit.
Mr. Joseph Shelley told the Tribunal that he worked as herdsman for Schwarz Ltd. from March to September 1997. He has had 25 years of experience as a dairy herdsman and has never had a positive inhibitor test before the one under appeal. Mr. Shelley told the Tribunal that he is certain that he did not milk a treated cow and put that milk into the bulk tank. He said he started a procedure where all treated cows are kept in a separate pasture from the rest of the herd. When he treats a cow he installs a red plastic leg band on her back leg so it is visible when the milker is being put on. He does not write down the treatments but keeps track of withdraw times in his head. He said the cows do not all have plastic ear tags but he knows each cow. When a new cow is introduced to the herd the practice is to withhold milk for 72 hours. When he treats a cow he withholds the milk for three or four days.
Mr. Shelley said that cows were coming and going all the time so he was very careful in the milking and withholding procedures. He said that the cows had ear tags but he also knew each cow and could not mix them up. He said he always consults with the veterinarian before treating cows. There is no test kit on the farm other than the California kit for testing for mastitis.
Mr. Shelley said that on July 4th he took the swing-pipe out of the bulk tank when he saw the driver coming. At that time he had not started milking the treated cows. After taking the swing-pipe out of the tank he began milking the treated cows into a five gallon pail that he used to feed calves. While milking was going on he was back and forth between the barn and the milk house.
Mr. Shelley said that the driver had is son with him on that day. When Mr. Shelley came into the milk house he observed the son on the ladder at the end of the bulk tank and when he got down from the ladder he had the sample bottle in his hand. Mr. Shelley told the Tribunal that he said to the driver that it was not right for his son to be at the tank with the sample bottle and the driver did not say a word but the driver and his son went out together and then left.. Mr. Shelley said that he thought the son must have taken the sample since he was the one at the tank. Mr. Shelley said the driver was holding his son so he would not fall into the tank. The boy had one hand in the tank and one hand on the rim of the access port when Mr. Shelley saw him. Mr. Shelley said he did not see who took the milk sample or who put the producer label on the sample.
Mr. Steve Hornyak, told the Tribunal that he was the driver who picked up the milk at the Woods Farm on July 4th . He said he has been working as a bulk tank milk grader since March 1990 and has been licensed as a grader since April 1992. He said that when he drove into the farm on July 4th the milk house door was open and he saw the swing-pipe was still in the bulk tank. When he went into the milk house he noticed that the pipe was out of the tank and milk was being pumped into a bucket on the floor of the milk house. He said he had his son Scott with him that day.
Mr. Hornyak said that when Scott entered the milk house he showed him milk being pumped into the glass receiving jar and from there into the bucket. At that time there was milk spilled down the side of the tank. He said that he got the ladder and learned it against the tank. Joe Shelley was in the milk house washing the spilled milk off the tank while Mr. Hornyak was on the ladder. Mr. Hornyak said he asked Mr. Shelley if the milk in the pail was from treated cows and Mr. Shelley said it was. Mr. Hornyak told the Tribunal that he then graded the milk, got off the ladder went to the truck to get his paperwork, hooked up the hose, plugged in the pump and then got on the ladder to measure and sample the milk. He said on this day Mr. Shelley had just completed milking so the tank had been well agitated. Mr. Hornyak said he took the sample with the sampling straw, sealed the sample bottle and then went to the get a label from the dispenser on the wall and put the label on the sample.
Mr. Hornyak told the Tribunal that Scott was on the ladder, looking into the tank but he did not reach into the tank. Scott was on the ladder when the sampling was done and milk was being pumped into the truck. When there was about 500 litres left in the tank Mr. Hornyak said he asked Scott to take the milk sample vial and receipt book to the truck and put the sample bottle into the sample case. He said that the sample was sealed and label affixed at that time. He said he watched Scott place the sample inside the cooler into one of the inserts and put the receipt book on top of the cooler. Mr. Hornyak said that this was the first morning that Mr. Shelley had not completed milking before his arrival to pick up the milk.
Mr. Hornyak told the Tribunal that, in his opinion, Mr. Shelley had improved cleanliness of the premises and that they had a good working relationship up to the point where the positive inhibitor test was reported.
In response to questions from Mr. Schwarz, Mr. Hornyak replied that is could be possible for someone to take a label off the sample bottle and switch the labels.
Tony Koekkoek, milk quality advisor, told the Tribunal that he visited the Woods Farm and put the milk under detention on July 5th . He tested the milk in the tank and found it did not contain any inhibitor. He said that he completed an inhibitor report and filed it with the Director. This report was filed as Exhibit 1 with the Tribunal. Mr. Koekkoek told the Tribunal that when a cow is treated at rates above the recommended dosage rate no one knows for certain what the withdrawal time should be. He said the Ministry recommends that milk from these cows be tested before any of the milk is put into the bulk tank.
Mr. Schwarz argued that, in cases such as this, every person is presumed innocent until proven guilty He said that guilt has to be proven beyond a reasonable doubt and the state (Director) must bear the burden of proof. He argued that he had provided some doubt that the milk sample had been taken and handled properly in this case. He said that there is doubt as to whether Mr. Hornyak or his son Scott took the sample. Mr. Shelley said he saw Scott take the sample to the truck. He argued that Scott could have switched the label on the sample bottle with the label from the sample taken at another producer’s farm and therefore the contaminated sample did not even come from the premises of Schwarz Ltd.. He said Scott could have taken the sample from the pail of milk from the treated cows and not from the bulk tank. He argued that Scott could have mixed some of the milk from the pail with the milk from the tank and thereby contaminated the milk sample. Another alternative was that Scott had been touching the milk in the pail and then contaminated the bulk tank and sample when he was reaching into the bulk tank as observed by Mr. Shelley. According to Mr. Schwarz these arguments raise a doubt about the sample taking and testing process and the benefit of this doubt ought to be given to Schwarz Ltd. He also argued that, if the Tribunal disagreed, then the penalty applied ought to be eliminated or drastically reduced based on the fact that Schwarz Ltd. had a long and exemplary record of production of quality milk.
The Tribunal examined the evidence. The Tribunal notes some inconsistency in the inhibitor report. While all parties agreed that the last treatment of the two cows on the farm was July 2, the report shows in one place July 1st as the last treatment date and July 2nd in another location. While the Tribunal recognizes that recording errors can occur it is important that the reports on inhibitors be completed as completely and accurately and consistently as possible. This is especially important now that producers are responsible not only for their own milk but also for the cost of the milk of other producers that may become contaminated.
The Tribunal notes the following:
There is a long history of satisfactory production by both the producer and the herdsman
Mr. Hornyak indicated that Mr. Shelley improved the cleanliness and operation of the Woods Farm premises when he arrived at the farm.
There is no doubt that the test results on the sample of milk is positive for inhibitors.
There were cows on the farm that had been treated at the time of the positive inhibitor test.
There were drugs on the farm that could have caused the positive inhibitor results.
There are no records of treatments kept and Mr. Shelley relied on his memory for withhold dates.
While the record keeping was not up to recommendations of the ministry good management practices of keeping the cows in separate pastures, leaving a break in the line between treated cows and the rest of the herd and the use of the plastic leg banding are noted by the Tribunal.
The only testing done on the farm is the California test which is a mastitis test not an inhibitor. The Tribunal recommends that an inhibitor testing kit should be on the farm.
It would be very difficult for Scott to switch labels on sample vials. He would have to remove two labels, reinstall them on the vial with the notch lined up and leave no indications of the label or vial that this had occurred. In the opinion of the Tribunal, this would take time and could not have happened without Mr. Hornyak’s knowledge.
If Scott took the sample from the pail of contaminated milk that would not explain how the milk in the bulk tank or the milk on the truck was contaminated.
If Scott contaminated his hands in the milk in the pail or the milk on the side of the bulk tank and then took the sample from the bulk tank and contaminated the bulk tank that would not explain how sufficient inhibitor was introduced to contaminate the truck load of milk.
If Scott took the sample from the bulk tank then the tank had to be positive regardless of who took the sample.
In the opinion of the Tribunal, both Mr. Shelley and Mr. Hornyak were credible witnesses. It appears to the Tribunal that they saw the facts from their individual vantage point and while the detail is a little different there is not a significant difference between the two versions of the events. Both had Scott looking into the tank while standing on the ladder and both had the boy carrying the sample to the truck.
Mr. Shelley could not say who took the milk sample.
Mr. Hornyak said he took the sample.
The evidence presented did not raised any doubt in the Tribunal’s mind that the child Scott had any influence on the quality of the milk in the sample of milk taken at the Woods Farm on July 4th , 1997 and tested at the lab. In the opinion of the Tribunal, there is no doubt that the milk in the bulk tank at the Woods Farm contained inhibitors on July 4th, 1997.
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 Schwarz Ltd..
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:
There were antibiotics on the farm that could have caused the positive test result.
Schwarz Ltd. was unable to present any treatment records that would give the Tribunal cause to grant the appeal.
There is no doubt raised in the Tribunal’s mind that the child Scott had any influence on the quality of milk in the sample taken from the farm on July 4th, 1997.
Dated at Guelph, Ontario this 20th day of January, 1998.