1055496 Ontario Limited v. Director of Regulatory Compliance, Dairy Farmers of Ontario, 1998 ONAFRAAT 49

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

Bucholtz v Director of Regulatory Compliance, Dairy Farmers of Ontario

Bucholtz v Director of Regulatory Compliance, DFO 1998 ONAFRAAT 49

Ministry of Agriculture, Food and Rural Affairs Act

November 16, 1998

DATE OF DECISION:

November 23, 1998

1998-49

1998 ONAFRAAT 49

Bucholtz v Director of Regulatory Compliance, Dairy Farmers of Ontario

IN THE MATTER OF THE FARM PRODUCTS MARKETING ACT AND SECTION 16 OF THE MINISTRY OF AGRICULTURE AND FOOD ACT.

An Appeal to the Farm Products Appeal Tribunal by 1055496 Ontario Limited, Stanley Bucholtz, Pembroke, Ontario from a decision of the Director of Regulatory Compliance, Dairy Farmers of Ontario, dated August 21, 1998, not to cancel the positive inhibitor test result taken in May.

Before:

Jim Rickard, Chair; Denis O’Connor, Vice-Chair; Stewart Hart, Member; Mary MacDonald, Member.

Appearances:

Stanley Bucholtz, on behalf of the appellant, 1055496 Ontario Limited.

Gail Bucholtz, on behalf of the appellant, 1055496 Ontario Limited.

Peter Gould, Director of Regulatory Compliance, the respondent.

George McNaughton, Field service Manager, on behalf of the respondent Director of Regulatory Compliance.

This appeal was heard in Belleville, Ontario on Monday, November 16, 1998. 1055496 Ontario Limited appealed to the Farm Products Appeal Tribunal (the Tribunal) from the August 21st, 1998 decision of the Director of Regulatory Compliance, Dairy Farmers of Ontario, not to cancel the positive inhibitor test result on a sample of milk taken from its farm on May 30, 1998. After the evidence was presented to the Tribunal and before final summations Mr. Hart asked to be excused from the hearing panel and left the hearing room. Mr. Hart took no further part in the proceedings and did not deliberate the evidence or participate in making the decision of the Tribunal.

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.”

On May 30, 1998 a tanker of milk tested positive on the SNAP test for β-Lactam antibiotics at the Parmalat, Eganville, Plant. A sample of milk from the load and the samples taken at the producer’s farms that made up the load of milk were sent to the University of Guelph Laboratory Services for testing. Testing of the load and all producer samples on May 31, 1998 on the Standard Disk Assay found that both the load and producer #603341 were Code 2 positive (i. e. Penicillin G) and in contravention of Regulation 761, Sections 52 and 55 under the Milk Act (Ontario). All other producer samples tested negative. In addition, the positive samples were tested using the LacTek and SNAP tests for β-Lactam antibiotics and were found to be positive using these two tests as well. High Pressure Liquid Chromatographic (HPLC) analysis of the load sample and the producer sample found penicillin G at levels of 7 and 18 ppb respectively. The acceptable standard is less than 6 ppb.

As a result of the positive inhibitor test the Director applied a penalty of $6 per hectolitre for all milk shipped by producer #603341 during May 1998 and billed producer #603341 for the value of the milk on the tanker and the cost of disposal of this milk. The total monetary value for this infraction is:

a) the value of the producer’s own milk (4,358 litres).

b) $4,114.13 for the $6 per hectolitre penalty.

c) $4,363.98 for the cost of milk from the other producers on the load and the cost of the disposal of the tanker of milk.

The Issue

The issue before the Tribunal is: Should the positive inhibitor test result on the sample of milk taken from the farm of 1055496 Ontario Limited on May 30, 1998 be allowed to stand?

The Evidence and the Findings

Stanley Bucholtz spoke to the Tribunal on behalf of 1055496 Ontario Limited. He told the Tribunal that he has been milking for 40 years having started working with his father when he was fifteen years of age. He currently milks 100 cows, finishes steers, produces red veal, and crops 1000 acres of hay, barley and corn. Most of the crop is fed to his livestock. The farm work was all done by family until two years ago when he hired two men to help. One hired man does field work and the other feeds the stock. He said that the cows are held in a tie stall barn and not let out. They have mattresses in their stalls for comfort. He milks using a looping pipeline, with two lines of cows tail to tail and a third single line arranged so he leaves the milk house, travels down the double line, then back the single line to the milk house. He has seven auto-take-off milking units that he operates. His niece helps out during milking by washing the cows ahead of him and putting on about every third milker. He puts the fresh and treated cows at the end of the line and these cows are milked into a bucket and the milk is not put into the bulk tank. The bucket and claw are rinsed every other cow. He said this is the procedure he has used for the past 40 years and he has not had an inhibitor problem in all that time using this process.

Mr. Bucholtz told the Tribunal that no penicillin was being used during the time the milk sample was taken and he cannot figure out when, or how, the inhibitor could have gotten into the milk on the farm. He said that his veterinarian was at the farm the day before to treat a cow with a retained placenta and the product used was an intra-uterine tetracycline pill. This would not have resulted in a positive penicillin test result.

Mr. Bucholtz told the Tribunal that he does not keep written records of treatments. He does all of the treating and marks the cow with a red plastic band on the leg and a large red tag on the line over the treated cow. He withholds the milk from treated cows for a period of two weeks. He explained that he needs milk to feed his calves and so is cautious with his withholding times. Because of all of these factors, he does not believe that the milk sample is representative of the milk shipped from the farm on May 30, 1998.

Mr. Bucholtz said that the DHI tester was in the barn on May 29th and the morning of the 30th. Voda, the cow that was treated with the tetracycline pill, was tested that day. During the testing procedure the DHI tester collects more milk than is needed for the sample vial. The excess milk is dumped into a bucket carried by the tester. When the testing was completed, this milk may have been inadvertently added to the bulk tank instead of being fed to the calves.

In response to questions Mr. Bucholtz said that:

He feels the Bulk Tank Milk Grader, Mr. Blimke, is one of the best in the province and he has confidence that he does his job well.
He does not dry treat his cows.
Voda calved on May 17th and retained her placenta. He monitored her temperature and when it became elevated, he called the veterinarian on May 29th. Voda was treated with Exenel, Banimine and Penicillin. No dry cow treatment used. Voda was not in the milk line.
He normally treats mastitis with Special Formula 17900.

Mr. Bucholtz told the Tribunal that even if he has to pay for the disposal of the load of milk, he should not be assessed the penalty for all the milk he shipped in May. He said his 40 years of production without penalty indicate that something else must have happened. He pointed out several errors in the correspondence from the Director and staff of the DFO concerning the calculation of the penalties. He said that these errors show that other errors could have been made. He said he is certain that no inhibitor got into the milk on the farm, so perhaps an error was made somewhere else and he should not be penalized for that error.

Mr. Peter Gould, the Director, told the Tribunal that the sample collection, care and integrity is not in question in this appeal. Mr. Bucholtz has expressed his satisfaction with the Bulk Tank Milk Grader. He pointed out that the milk from the Bucholtz farm was the last pick up on the truck on May 30th and so there was no opportunity for any other producer to have tampered with the milk sample, and this is the only sample on the load that tested positive. He said that at least one cow (Voda) in the barn had been treated with Exenel, Banimine and Penicillin G under the supervision of the veterinarian. Penicillin G was the drug found in the milk. He said that there are no records of the treatments administered on this farm. He also said that when milking treated and non-treated cows together, if the milk bucket and claw are not adequately rinsed then this could result in the contamination of the milk in the bulk tank.

The Tribunal examined the evidence and made the following conclusions.

In the opinion of the Tribunal, the practice of separating the milking cows on the milk line from the fresh and treated cows is a good practice. However, the Tribunal feels that written records of dates and dosage of treatments is a desirable practice. These records assist a producer to identify herd health problems and confirm proper withhold times are followed. This is especially important for producers, such as Mr. Bucholtz, who do not test the milk from treated cows before the milk is put into the bulk tank.

While Banimine is not cleared for use in lactating cows, in the opinion of the Tribunal, its use in this case is not an off-label use because it was administered under the supervision of the veterinarian.

Mr. Bucholtz requested that, if the Tribunal found that he is responsible for the cost of disposing of the load of milk, he should not be required to pay the penalty based on all of the milk shipped during the month of May. The Tribunal notes that the amount of this penalty is fixed by a provincial regulation. The Tribunal has no authority to vary a provincial regulation and therefore cannot grant the relief requested.

In the opinion of the Tribunal, producers are responsible for the quality of the milk produced on their farm. There was no evidence presented at the hearing to indicate the inhibitory substance could have gotten in the milk other than on the farm.

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:

The Tribunal was not convinced that there was a problem in milk sampling or testing procedures.
The appellant’s milk samples were the only samples on the load that tested positive for inhibitory substances.
The Tribunal was not presented with any evidence that the penicillin G could have entered the milk from any source other than from on the farm.

The Tribunal understands that not being able to determine the source of contamination is of great concern to Mr. and Mrs. Bucholtz. In this case, the Tribunal feels it has to leave the responsibility with the producer.

Dated at Guelph, Ontario this 23rd day of November, 1998.