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:

Berendsen v Director of Regulatory Compliance, Ontario Raw Milk Quality Program

Berendsen v Director of Regulatory Compliance, ORMQP 2000 ONAFRAAT 10

STATUTE:

Ministry of Agriculture, Food and Rural Affairs Act

HEARING:

April 25, 2000

DATE OF DECISION:

May 24, 2000

2000-10

NEUTRAL CITATION:

2000 ONAFRAAT 10

Berendsen 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 Mr. Ben Berendsen, Chepstow, Ontario from the decision of the Director of Regulatory Compliance, Ontario Raw Milk Quality Program, dated September 27, 1999 not to cancel the positive inhibitor test result on a sample of milk taken from the Berendsen farm on April 24, 1999.

Before:

Jim Rickard, Chair; Andrew Wright, Vice-Chair; Andrew Koopal, Member.

Appearances:

Ben Berendsen, appellant.

Donald Good, counsel to the appellant.

Peter Gould, Director of Regulatory Compliance.

Geoff Spurr, counsel to the respondent, the Director of Regulatory Compliance.

Tom Graham, counsel to the Tribunal.

DECISION OF THE TRIBUNAL

This appeal was heard in Guelph, Ontario on Tuesday April 25, 2000. Mr. Ben Berendsen appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) from the decision of the Director of Regulatory Compliance, Ontario Raw Milk Quality Program (the Director), dated September 27, 1999 not to cancel the positive inhibitor test result on a sample of milk taken from the Berendsen farm on April 24, 1999.

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.”

At the beginning of the hearing the parties filed an agreed upon statement of facts. The following are the facts of the case.

The Appellant, Ben Berendsen (Berendsen) farms with his family at Chepstow, Ontario and is licensed by Dairy Farmers of Ontario (DFO). On April 24, 1999 Berendsen produced milk on his farm in the normal manner and no cows were treated with penicillin. On April 24, 1999, Greg Fischer (Fischer) on behalf of Gay Lea Foods Co-operative (Gay Lea) picked up milk from five farms in a two compartment trailer and delivered the load to Gay Lea’s plant in Teaswater. Fischer collected the milk from four producers and put the milk in the front compartment. This milk included the Berendsen farm milk. Fischer also put approximately 2,000 litres from the fifth farm, that being the Ikendale Farm, in the front tank. Fischer collected an additional 15,006 litres of milk from the fifth producer and put the milk in the back compartment. Fischer took farm samples of milk from each of the farm producers and stored the samples in the normal manner.

Fischer, on arrival at Gay Lea’s plant, collected samples from the front and back compartments of the trailer and tested the samples on the SNAP BL test kit. The samples from both the front and back compartments of the trailer tested suspect-positive for inhibitors. Samples of the milk were immediately transported to Guelph for official testing and the load of milk was held separate, until