Donnanview Farms Ltd. v Director of Regulatory Compliance, Ontario Raw Milk Quality Program, 1999 ONAFRAAT 24

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:

Donnanview Farms Ltd. v Director of Regulatory Compliance, Ontario Raw Milk Quality Program

Donnanview Farms Ltd. v Director of Regulatory Compliance, ORMQP 1999 ONAFRAAT 24

STATUTE:

Ministry of Agriculture, Food and Rural Affairs Act

HEARING:

September 8, 1999

DATE OF DECISION:

September 14, 1999

1999-24

NEUTRAL CITATION:

1999 ONAFRAAT 24

Donnanview Farms Ltd. v Director of Regulatory Compliance, Ontario Raw Milk Quality Program

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 Donnanview Farms Ltd., Stirling, Ontario from the decision of the Director of Regulatory Compliance, Ontario Raw Milk Quality Program, dated June 6, 1999, not to cancel the abnormal freezing point test result on a sample of milk taken from the Donnanview Farm Ltd. premises on May 8, 1999.

Before:

Jim Rickard, Chair; Nick Doelman, Member; Mary MacDonald, Member; Ralph Huckle, Member.

Appearances:

Don and Bev Donnan, on behalf of the appellant, Donannview Farms Ltd.

Peter Gould, Director Regulatory Compliance, Ontario Raw Milk Quality Program.

George MacNaughton, Quality Manager and Field Staff Supervisor for the Dairy Farmers of Ontario (DFO).

DECISION OF THE TRIBUNAL

This appeal was heard in Belleville, Ontario on September 8, 1999. Donnanview Farms Ltd. (Donnanview) appealed to the Farm Products Appeal Tribunal (the Tribunal) from the decision of the Director of Regulatory Compliance, Ontario Raw Milk Quality Program (the Director), dated June 6, 1999, not to cancel the abnormal freezing point test result on a sample of milk taken from the Donnanview premises on May 8, 1999.

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

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

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

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

(e) 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.

The Bulk Tank Milk Grader takes a sample from each tank of milk before it is picked up. This sample is stored in a sample case by the Grader and transported to a depot. It is picked up from the depot and transported to the University of Guelph Laboratory (the Laboratory) where it is subjected to various tests, one of which is for the freezing point of the milk.

Milk freezes at -0.540^o Hortvet (^o H) so the closer the test gets to -0.540^o H the more normal the milk is. If the sample freezes at temperatures warmer than -0.540^o H, it is deemed to indicate that more water than normal is in the milk. A warmer than normal freezing point is an indication of a problem on the farm, either from added water or water in excess of the average milk composition. Several possible sources of excess water have been identified in the past, some of which are:

· Improperly sloped pipelines which allow for residual water in the pipe.

· Flushing milk through the pipeline with water when the milk pipe is still connected to the bulk tank.

· Bypassing safety switches.

· Freezing in the bulk tank. If freezing occurs in the tank and subsequently thaws into the milk, the freezing point can be affected.

· Improper sanitizing procedures. If the pipeline is sanitized before milking and not enough time is provided for all of the water to drain before milking starts, the freezing point of the milk may be affected.

· In rare cases, the feed can cause difficulties.

In March of 1996, the Laboratory changed the equipment used to test milk 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 had some water added during the heating process. Separate samples were tested for freezing point than those tested for composition. New equipment (a Foss 4000) that does not use water to heat the sample was obtained by the Laboratory. Using this equipment, estimated freezing points are calculated from the composition measurements made on the milk sample. This allows technicians to screen milk samples for possible contravention of the freezing point regulation. Screened samples are then tested on the official Cryoscope testing machine. The screening done with the Foss 4000 has allowed the technicians to concentrate on the suspect samples and increase the frequency of the test for freezing point. Freezing point testing on the Cryoscope is labour intensive and therefore was not done as frequently in the past as it currently is being done. In fact, milk samples are now screen tested for freezing point four times a month.

On May 8, 1999, Durham Transport picked up a load of milk from four producers, totalling 15,213 litres. The 4,873 litres of milk from Donnanview was the third farm pick up on the load that day. The sample from Donnanview was pre-selected for milk quality analysis on the Foss 4000 as the official second-quarter analysis for this producer. The Foss 4000 screening test indicated a freezing point estimate of –0.500^oH so the sample was scheduled for official testing on the Cryoscope. The Cryoscope freezing point test result was –0.499 ^oH. The penalty level for freezing point violation is -0.524^o H, therefore a penalty was applied to Donnanview.

The Issue

The issue before the Tribunal is:

Should the freezing point test result of –0.499^o H on the sample of milk taken from Donnanview May 8, 1999, be allowed to stand?

The Evidence and the Findings

Peter Gould, Director, told the Tribunal that:

1. The sample from Donannview on May 8^th had been taken by Andy Whitehead, a certified Bulk Tank Milk Grader, using a pipette and following normal procedures.

2. The sample had been transported to the test laboratory at the University of Guelph. A review of the recording thermometers in the transit system indicated nothing unusual had occurred in the transport.

3. The sample was tested on the Foss 4000 machine and produced a freezing point estimate that indicated an official freezing point test on the Cryoscope should be conducted.

4. The result of the official test was a freezing point of –0.499^o H, which is a violation of the regulation.

5. Field staff contacted Mr. Donnan to discuss the situation and were informed that during the pipeline wash cycle, the first rinse is directed to the drain. The pipeline is sanitized one hour prior to milking giving adequate time for the line to drain. A balanced ration is fed to the cows and the herd body score is alright. There was ice in the cooler quite often after the milk had been picked up.

6. He expects that the cause of the freezing point violation is ice crystals in the milk sample at the time the sample was collected.

7. On the May 8^th sample, the butterfat was normal while the protein, lactose and lactose & other solids (LOS) were significantly depressed. The expected result from water added to the bulk tank would be that all components would be depressed. There is no explanation for why the normal fat test occurred.

He filed a May 19, 1999 memo from George MacNaughton relative to the issue of the butterfat in the sample test result which says:

“I could not find any procedural problems from the time of sample pickup to testing. The fact that there is ice in the tank is the likely cause. The puzzling factor is why the butterfat is high and the other components are significantly lower. A possible explanation would be pulling butterfat off the top of the tank due to inadequate agitation and there also being ice crystals in the sample.”

In his summation, Mr. Gould said that he is not contending that there was deliberately added water in this situation. The freezing point test result was likely from ice build up on the tank. He is not claiming that ice was evident on every pickup but was there on occasion. He said that the regulations are clear and he has limited authority to vary from the regulation. His responsibility is to determine:

1. If the sample is representative,

2. If it was handled appropriately, and

3. That there were no irregularities in testing.

If he concludes that the sample handling and testing procedures are appropriate he has to apply the penalty specified in the regulation.

Mr. Gould told the Tribunal that the raw milk quality program conducts four tests a month for each producer. If something occurs on the farm that affects the sample of milk that is tested but this same event does not occur ever again, that sample could fail the milk quality test while previous and subsequent samples are perfectly fine. That is the way the system works. There is a randomness in the system but that is not necessarily bad. In this case, the sample tested in violation of the regulations and no irregularities were found so the regulations were applied.

Mr. Gould said that the last thing he or the system is doing is impugning the good reputation of Mr. Donnan. Mr. Donnan has done what he can to correct the problem with his bulk tank. Mr. Gould characterized Mr. Donnan as a producer who acts immediately when a problem is found. There was a functional problem on his farm and it was addressed promptly. He said the producer has been very responsible.

Mr. Donnan told the Tribunal that Donnanview:

1. Operates north of Belleville on Highway 62

2. Has a milking herd of 65 cows.

3. Milks three times per day and is on an every other day pick up schedule.

4. Has shipped milk for several decades without violation of milk quality regulations.

5. There is a safety switch on the wash system that prevents cleaning of the pipeline with the hose in the bulk tank.

6. The volume of the milk pickup on May 8^th is consistent with the prior and subsequent shipments. It would take about 350 litres of added water (DFO field staff figure) to get the test result. If water was added to the tank there should have been an increase in the volume of milk shipped on May 8^th .

7. Donnanview fills its quota so there is no financial gain to be had from adding water to the milk.

8. Cows are milked at five a.m. and pick up normally occurs between 6:30 and 7:30. Due to the early pick up, the milk is still fairly warm and this could cause any ice that may be on the bottom of the tank to detach and float. This increases the likelihood of ice crystals contaminating the sample if there happens to be ice in the tank.

9. In March of 1999, Moore Bros. were called to service the tank to resolve a problem of freezing in the tank. The problem was intermittent and therefore difficult to diagnose. They were called back again in mid May and even though the tank worked satisfactorily when they arrived some equipment was replaced. Then when they were called again in July, a sensor wire for the thermostat was replaced and it appears that the problem has now been solved.

10. On May 8^th the milk was likely being agitated continuously from the time the milking occurred until it was picked up so insufficient agitation of the bulk tank by the Bulk Tank Milk Grader is not likely a consideration in the sample pick up procedure.

Mr. Donnan says that he believes the test result is from errant ice in the tank. This ice was formed because the tank was cold enough to freeze the water normally in the milk. He said that the policy book of the DFO states “Freezing Point (Excess or Added Water)”. In his opinion, this test was put in place at a time when some individuals were adding water and getting paid for it. The penalty was to eliminate cheating the DFO and consumers. As a producer, he never thought that he could end up in violation of the milk quality regulations because of a refrigeration problem creating ice crystals in the milk in the tank. In his opinion, it is only luck, or fluke, or for that matter the time the milk may be picked up, that determines whether ice may be floating in the fluid or attached as a mass to the tank. He asked the Tribunal to find that the cause of the freezing point violation was ice crystals from the milk in the tank and to reverse the finding of a freezing point violation from added or excess water.

The Tribunal examined the evidence an made the following conclusions.

In the opinion of the Tribunal:

1. There was no water intentionally added to the bulk tank in this instance.

2. The farmer has exercised due diligence in addressing the problem. The Donnans started in March 1999 to address the issue of ice build up in the milk cooler and it appears that the problem was likely solved by July, 1999.

3. The butterfat levels stayed at about the normal level for this producer while the protein, lactose and other solids were significantly depressed and there is no explanation of this anomaly.

4. The Tribunal was convinced by the evidence that the freezing point problem was caused by ice crystals in the sample of milk taken from the farm.

After considering all of the circumstances of this case the Tribunal concludes that in this situation the producer exercised due diligence in addressing the problem and, considering all of the circumstances of this case, warrants relief from the finding of a violation of the milk quality regulation. In coming to this conclusion the Tribunal feels that the correct procedures were followed responsibly during the sample taking, handling, analysis by the Laboratory and the subsequent actions of the Director.

The Director agreed that the cause of the violation was not due to added water and he characterized the Donnans as a responsible producer acting proactively when a problem was identified. The Tribunal agrees with this assessment of the situation.

Decision and Reasons

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

1. The appellant showed due diligence in systematically pursuing all possible opportunities available to them to correct conditions in their mechanical equipment that could contribute to the formation of ice in their bulk tank.

2. The test results are not consistent with the appellant’s excellent milk quality record, a record which has been unblemished for several decades.

3. The unexplainable normal butterfat content in the May 8^th, 1999 sample test, while the protein and solid content was significantly depressed, cast a doubt on whether the sample was truly indicative of the quality of the milk in the tank

ORDER OF THE TRIBUNAL

The Tribunal orders the Director to forthwith expunge the freezing point test result pertaining to the sample of the milk taken from the appellant’s farm on May 8^th, 1999 from the official records of the appellant’s milk quality and to notify the Dairy Farmers of Ontario accordingly.

The Tribunal further orders that the penalty monies levied against the appellant as a result of the May 8^th , 1999 freezing point test result be reimbursed to the appellant forthwith.

Recommendation of the Tribunal.

In light of the circumstances of this case, the Tribunal recommends to the Board of Directors of the Dairy Farmers of Ontario that they conduct a review of the purpose and operation of the freezing point regulation to satisfy themselves it is working appropriately for the current production and marketing conditions of the industry.