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:

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

Posch v Director of Regulatory Compliance, ORMQP 2000 ONAFRAAT 32

STATUTE:

Ministry of Agriculture, Food and Rural Affairs Act

HEARING:

November 20, 2000

DATE OF DECISION:

December 18, 2000

2000-32

NEUTRAL CITATION:

2000 ONAFRAAT 32

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

IN THE MATTER OF THE MILK ACT AND SECTION 16 OF THE MINISTRY OF AGRICULTURE AND FOOD ACT.

AND IN THE MATTER OF:

An appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal by, Bruce Posch, Thornloe, Ontario from the decision of the Director of Regulatory Compliance, Ontario Raw Milk Quality Program, dated October 1, 1999, not to cancel the abnormal freezing point test results taken July 22, 1999 and August 13, 1999.

Before:

Denis O’Connor, Vice Chair; Jim Rickard, Chair; Murray Cardiff, Member;

Andy Koopal, Member

Appearances:

Bruce Posch, appellant

Peter Gould, Director the Director of Regulatory Compliance, Ontario Raw Milk Quality

Program, respondent

George MacNaughton, Farm Policy and Field Services Manager, Dairy Farmers of Ontario,

on behalf of the respondent

Paul Girard, Field Staff, Dairy Farmers of Ontario, on behalf of the respondent

Rena Hubers, Manager, Dairy Food Safety Programs, Ontario Ministry of Agriculture, Food and

Rural Affairs, on behalf of the respondent

DECISION OF THE TRIBUNAL

This appeal was heard in Guelph, Ontario on Monday, November 20, 2000.

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.

Mr. Bruce Posch first received a freezing point violation penalty in January 1998. Shortly thereafter he discovered that his milk had been close to a freezing point violation 25 times in the twelve months prior to the penalty. Mr. Grant Brownridge, a milk quality advisor, visited the farm and inspected the equipment and obtained samples of milk from the cows. Mr. Brownridge made a slight adjustment to the slope at the end of the pipeline but indicated that the problem was with the cows. On the advice of a nutritionist, Mr. Posch increased the protein content of his feed, using a variety of protein sources. He testified that there was some improvement but that the freezing point stayed in the warning range.

A second penalty was incurred on milk shipped July 22, 1999. That sample was tested on July 27, 1999 and the results were mailed on July 28, 1999. Mr. Posch contacted the local Dairy Farmers of Ontario (DFO) milk quality advisor, Mr. Paul Girard on August 3, 1999, upon receiving the test results. Mr. Girard visited the farm the next day and collected milk samples. He also measured the slope of the pipeline, with Mr. Posch’s assistance. Mr. Girard observed ‘frosting’ in the milk tank.

Milk shipped from the Posch farm on August 13, 2000 also incurred a freezing point violation penalty. Samples of milk from six cows in the Posch herd were collected on that day and were tested at the Laboratory and also tested at the Michigan Milk Producers’ Association Laboratory in Novi, Michigan.

The Issues

The issues before the Tribunal are:

Should the freezing point test result of –0.515 H on the sample of milk taken on the Posch farm on July 22, 1999 be allowed to stand?

Should the freezing point test result of –0.521 H on the sample of milk taken on the Posch farm on August 13, 1999 be allowed to stand?

The Evidence and the Findings

Mr. Posch told the Tribunal that:

1. There was some doubt in his mind that his milk was causing the freezing point violations and he wanted to clear his good name.

2. He had checked his test results since the problem in January 1998 and he did not see any correlation between lactose and protein levels and freezing point test results.

3. Milk samples taken with two different dippers had slightly different test results (-0.526 H vs –0.523 H) when tested in 1998.

4. The summer of 1999 was very hot and when temperature rises above 30 degrees Celsius, there is some information that this may causes a drop in lactose levels, and this may impact the freezing point of the milk. A bulletin from International Dairy Federation (dated 1983) on measurements of extraneous water in milk was entered into evidence to support various reasons for an abnormal freezing point.

5. Scientists are unclear as to what causes the freezing point of milk to vary.

6. The problem may be that the Cryoscope used in the Laboratory is too sensitive at the penalty level. He noted that it had been recalibrated by 5/1000^th of a degree in 1999.

7. The results of the split tests on Cow #185 were quite different – the Laboratory found a freezing point of -0.519 H while the laboratory in Michigan yielded a result of -0.527 H. He acknowledged the tests on the other cows’ milk and the bulk tank were very similar.

8. In the summer of 1999, he was advised to try feeding ground grain in the early morning as this would elevate the cows’ blood sugar and should improve the lactose levels. He noted that when he fed 18% pelleted feed first thing in morning, this did increase his cows’ lactose levels.

9. Livestock specialist Barry Potter, Ontario Ministry of Agriculture, Food and Rural Affairs had visually appraised his herd and farm in August 1999 and had said that most cows were in good condition and that the hay and silage looked fine.

10. His pipeline had been found to have an inadequate slope (2 inches on 136 feet of pipeline) by Paul Girard, DFO Field Staff, measuring with a string line. Two subsequent measures of the pipeline by an equipment dealer and a drainage specialist found the slope to be 11.5 inches on the low side and 14.5 inches on the high side by one; and 15 inches over 136 feet by the other. Mr. Posch questioned the accuracy of the measurement taken by Mr. Girard.

11. On the day that Mr. Girard observed frosting in his bulk tank, he had deviated from his normal milking procedures. He had turned on the tank before milking, rather than waiting until a few cows had been milked.

12. The difference between the freezing point of milk taken from the frosted tank before agitation (-0.526 H) and after agitation (-0.525 H) was not significant.

13. The provincial average was 12.49% total solids and his total solids test results were all over 13% at the time of his penalties. He questioned how the Laboratory could find he had excess solids and excess moisture in same sample.

14. He was concerned that representatives of the DFO had publicly announced that his freezing point penalty was due to a poor milk line slope, freezing in the tank and poor feeding at a local Milk Committee meeting.

In response to questions, Mr. Posch indicated that:

1. His bulk tank has a capacity of just over 4000 litres. A typical pickup from his farm in the summer is 600 litres.

2. He agreed that an improper slope in a pipeline may result in wash water not draining from the line completely, thus contributing to excess water in the milk.

3. He also agreed that rations fed under certain conditions may adversely affect the freezing point of milk.

4. He did not agree that a low volume of milk was the cause of frosting in his milk tank.

5. He did not know that his milk had been at the warning level 25 times until after his first freezing point penalty in January 1998. He could not have known, as the information was not provided on the DFO milk statements at that time.

6. He did not know exactly how much added water was needed to change the freezing point of milk.

7. He had individual cows whose milk had been tested at freezing points higher than that allowed by the regulation.

8. He was not questioning that the milk samples tested were representative of milk produced that day on his farm.

9. He was questioning the accuracy of the Cryoscope results.

10. He had a comfortable relationship with DFO staff.

11. His milk tank drivers had signed a document indicating that they had never seen frosting in his milk tank. His milk had always been picked up and no one had ever left a note indicating that there was a problem.

12. His silage was stored as hay silage in a tower silo.

13. He never got a chance to make a presentation on freezing points at the Milk Committee meeting and he was on the defensive all night. He did not think it was a normal practice for DFO to air producers’ problems publicly.

14. Feeding grain first in the morning brought lactose levels up but the freezing point of his milk still varied.

15. He was now using the DFO MILKLINE to get freezing point results earlier. In the summer of 1999 his telephone was a party line and it was not possible for him to phone the MILKLINE from the farm; he had to drive into town.

16. He had moved his Southern Ontario herd to the North in 1989. He was using the equipment that was with the farm when he bought it.

17. Mr. Posch milks approximately 25 cows in the fall and winter but normally milks 12-15 cows in the summer.

18. His pipeline was hung from stands, not the ceiling.

19. Cow #185, Sassy, had freshened 3 days before her milk was sampled and her production was 3.4 kilos that day. Mr. Posch acknowledged that it was probably not a normal sample as a result but he felt that the two laboratories still should have determined the same result.

20. He felt his cows had average body scoring; perhaps 2.5 on the Rodenburg scale and about 3 on the Elanco scale used by his veterinarian.

21. His regular routine was to start the sanitizer, feed the cows, scrape and bed down the stalls and 45 minutes later start milking. Cows were fed 5-6 lbs of pelleted feed and followed by hay. His milking routine was to wash two cows, put milkers on them one minute later and then wash the next two cows. The cows were eating during milking.

22. His milk had tested in the warning range at least once since the penalties were received.

23. The milk protein had increased 10% since the feed was changed. The same ration is fed to milking cows year round.

24. The herd did not have feet problems.

25. He normally looks in the bulk tank when he washes it and before his milk is picked up he reads the dipstick. He had never seen frosting in the tank except the day that Paul Girard was on the farm.

Mr. Peter Gould, Director, supported by Mr. George MacNaughton, told the Tribunal that:

1. Mr. Posch’s milk statements for July 1999 and August 1999 show that there were only 521 litres shipped on July 22^nd, and that shipments continued to be well below 600 litres in July and August. He observed this was not much milk relative to the capacity of the tank and noted that Mr. Girard had seen frosting in the tank

2. With regard to the frosting in the tank, milk freezes at –0.540 H and 3% water must be added to increase the freezing point to the penalty level of -0.524 H.

3. After the penalty on July 22, 1999, milk from the Posch farm tested in the penalty range on July 26th and August 13^th. The policy at that time was that there had to be a minimum of 15 days between freezing point penalties. There were 22 days between the July 22^nd and August 13^th test. No additional penalty was charged because of the high freezing point on the milk shipped on July 26^th.

4. From January to September 1999, Mr. Posch’s shipments had 3 penalty level test results for freezing point, 10 warning level test results and 19 normal results. Since then, the milk had been much improved, testing in the warning level 3 times and the normal range 29 times.

5. While Regulation 761, 52(5) deems that a high freezing point result indicates excess water, this does not mean that water was necessarily added to the tank. He noted that the wording of the regulation was to be changed to read “A freezing point test reading of –0.0524 Hortvet or higher shall be deemed to be an abnormal freezing point.”.

6. A letter outlining possible causes of freezing point violations was sent o Mr. Posch in July 1999. This was a standard letter, not specific to his operation.

7. The freezing point of the Posch milk was in the warning range at least 25 times prior to his first penalty (January 1998). This information was not readily available to producers, because it was not put on the monthly milk statement at the time.

8. Mr. Posch had been encouraged to work with his veterinarian on the feed ration. After the first penalty (January 1998) the Posch cows were individually tested and 7 had Cryoscope readings above the official limit.

9. At the second investigation (August 1999) a minimum agitation volume was established and the slope of the pipeline was measured as 2 inches over 136 feet. Mr. Gould testified that this was lower than the standard and that ideally he would like 17-18 inches of slope on that pipeline. He recognized that Mr. Posch’s evidence suggests that the slope is now much improved but indicated that it is still lower than desired.

10. There was sufficient time between the two penalties; the higher standard of 18 days between penalties which had been implemented since the penalties were assessed, had also been met.

11. DFO provides results of milk tests on a telephone line and on an Internet site.

12. Mr. Posch was aware that he has had ongoing trouble with freezing points.

13. Mr. Posch was not contesting the milk tested were representative of the samples.

14. The penalties were applied in accordance with the regulations.

In response to questioning, Mr. Paul Girard indicated that:

1. He felt the milk was properly agitated when he took his samples from the bulk tank. He did not recall at what point the agitator began to effectively move the milk.

2. He had to climb up on something to test the slope at the top end, but not at the bottom end of the pipeline.

3. In August 1999 there was no negative slope in the pipeline and the pipeline switch worked when he was on the farm. He did not know if the thermometer on the tank was functioning properly.

4. He confirmed he had written a letter to Mr. Posch dated August 13, 1999, with the results of his investigation.

5. He did take the milk samples with and without agitation. The first sample was taken with frost on tank; the second sample when frost was integrated into the milk in the tank.

6. Mr. Posch had verbally indicated that he did not mind his situation being discussed at the Milk Committee meeting, according to Mr. Girard.

In response to questioning. Mr. Gould said that:

1. The first two DFO farm reports indicated the pipeline had an inadequate slope. He said there is no negative slope, so the pipeline would drain but not as quickly as it would if the slope were steeper.

2. He did not believe the milk quality advisors who had visited the Posch farm had observed him adding water to the milk.

3. When individual cows’ milk was sampled it would not have had contact with the pipeline or the tank.

4. The Cryoscope measures the freezing point, not milk components. It is possible to have low component herds with normal freezing points.

5. Mr. Posch was penalized for freezing point violations, not abnormal milk.

6. He agreed that it could take ten days from the date of sampling for the test results to reach the producer by mail.

7. He indicated Mr. Girard was on the Posch farm the day after he was called but that it took some time for him to get his report to Mr. Posch. The regulation did provide for 15 days between official samples at that time.

8. The onus is on producers to find out their test results. Since March 1998, results have been shown on their monthly statement. At any time they can call the MILKLINE to get the results faster. Approximately 70% of producers use the MILKLINE.

9. The preferred slope for a pipeline is 1 ¼ inches per 10 feet. The use of a string with line level to measure slope is the industry standard. There was a difference of over a year between the slope measurement by Mr. Girard and by Mr. Posch’s consultants.

10. He acknowledged there were two opinions as to the minimum milk volume required for proper agitation in the Posch tank. The supplier says 80 litres is adequate; the DFO standard is 120 litres for that tank.

11. The instruments in the Laboratory were re-calibrated in August 1999 as there had been a drift off calibration on both machines of approximately 5/1000 of a point. The Laboratory was made aware of the problem when the number of samples testing in the warning range increased.

12. An advisory letter is sent out automatically when a producer receives a penalty; it is mailed out the day after the test result is known. The DFO has no obligation to visit a farm where there has been an infraction and it may be days or weeks before they respond to a request for a farm visit. The length of time depends on their priorities at the time. In this case, the farm visit was the day after the producer was notified of the problem. This response time was normal for that region.

13. He believed that Mr. Posch should have been aware of the freezing point problem since January 1998, but even if he had not had a history of this problem, the Cryoscope reading indicated an abnormal freezing point, which warranted a penalty.

Rena Hubers testified that:

1. The previously mentioned article (1983) makes it clear that other components than water affect the freezing point of milk. Freezing point of milk is all that is measured by the Cryoscope.

2. She would expect to find abnormal milk from fresh cows due to the presence of colostrum.

3. The Laboratory normally had less than 10 milk samples per month test in the penalty range for freezing point, and there had been a decline in penalties.

4. The difference in test results between the two dippers may be within the normal standard deviation of samples.

5. It was relatively rare to find freezing point penalties related to the feed ration, but if the problem is ration related it can be corrected almost immediately.

In summary, Mr. Posch stated that there were a few questions about the Cryoscope test not answered and that he felt that alleged inadequacies in his equipment were being used against him. He indicated that he had provided counter-evidence to try to clear his name.

In summary, Mr. Gould stated that there are certain times of the year when Mr. Posch is a low volume shipper and that it appears that some combination of low milk volume, nutrition and frosting in the tank was causing the problem. With regard to the pipeline, he suggested that it was his position that the slope was inadequate at the time the penalties were assessed. He noted that Mr. Posch has experienced freezing point issues since 1998 and that, to his credit, he has taken steps to obtain information to resolve the problem. However, he pointed out that the regulation is clear and that the Cryoscope readings called for penalties. He reiterated that the official tests on the two samples which triggered penalties were 22 days apart and that this was over the 15 day time period required. He stressed that the industry should strive for quality milk every day and that ultimately it is the producers responsibility to ship quality milk. He suggested that unless the problem is addressed Mr. Posch could receive future penalties.

The Tribunal examined the evidence and made the following conclusions:

In the opinion of the Tribunal:

1. Mr. Posch took steps to correct the problem immediately after being notified of the July 22, 1999 penalty. He called the Milk Quality Advisor, Mr. Girard to investigate the problem.

2. Mr. Posch may not have had sufficient time between the two penalties to resolve the problem because the Civic Holiday appears to have delayed his receipt of the July 22, 1999 test result. Because the results of the July 22^, 1999 penalty were not received until August 3, 1999, Mr. Posch effectively had only ten days between the receipt of the notice of the first penalty and the collection of the sample that triggered the second penalty.

3. The evidence does not support the suggestion that the Cryoscope readings were not accurate. The Tribunal discounted the disparate test results on the sample of milk from Cow # 185 because a cow so close to parturition would be expected to have abnormal milk, and her milk would not have been placed in the bulk tank. The Tribunal accepts that the test results of July 22^nd and August 13^th were correct, even though Mr. Posch had some misgivings with them.

4. The Director acted within his jurisdiction in assessing these penalties.

5. There appeared to be a nutritional element to the problem – when the feeding practice was changed, the freezing point results improved.

6. The Tribunal accepted that the slope on the pipeline was adequate.

7. The evidence on the minimum amount of milk for effective agitation in this bulk tank was inconclusive.

The Tribunal was impressed with the efforts of the Dairy Farmers of Ontario to notify producers of the results of their milk sample test results in a timely manner. The Tribunal believes that producers should be encouraged to make use of information on the MILKLINE and Internet site that the DFO makes available to them.

Decision and Reasons

After careful consideration of the evidence presented and the submissions made, the Tribunal decided to partially grant the appeal of Bruce Posch. The Tribunal denies the appeal of the Director’s decision not to cancel the abnormal freezing point test results taken July 22, 1999 but grants the appeal with regard to the test results taken August 13, 1999, for the following reasons:

1. The producer effectively had only ten days notice to resolve the freezing point problems identified in the July 22, 1999 milk sample.

2. The producer took immediate action to rectify the problem once the test results were received.

ORDER OF THE TRIBUNAL

The Tribunal orders the Director to forthwith expunge the freezing point test result pertaining to the sample of milk taken from the appellant’s farm on August 13^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 August 13^th freezing point test result be reimbursed to the appellant forthwith.

Dated at Guelph, Ontario this18th day of December, 2000.