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:

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

Lafrance v Director of Regulatory Compliance, ORMQP 2002 ONAFRAAT 1

STATUTE:

Ministry of Agriculture, Food and Rural Affairs Act

HEARING:

March 26, March 27, October 22, 2001

DATE OF DECISION:

January 2, 2002

2002-01

NEUTRAL CITATION:

2002 ONAFRAAT 1

Lafrance 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 Rosaire and Lina Lafrance, St. Albert, from the July 27, 2000 decision of the Director of Regulatory Compliance, Ontario Raw Milk Quality Program, to maintain test results which indicated Somatic Cell Count (SCC) levels in the penalty range on the appellants farm on six occasions in 1999.

Before:

Denis O’Connor, Vice Chair; Gertrude Levac, Member; Luc Corbeil, Member

Appearances:

Ron Caza, counsel to the appellants

Pascale Giguere, counsel to the appellants

Geoff Spurr, counsel to the respondent, the Director

Rosaire Lafrance, appellant

Lina Lafrance, appellant

Vincent Lafrance, witness for the appellant

Richard Cantin, witness for the appellant.

Dr. David Douglas, witness for the appellant

Dr. Harman, witness for the appellant

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

Alexander Hamilton, witness for respondent

Dr. David Kelton, witness for the respondent.

Leo Brisson, witness for the respondent.

DECISION OF THE TRIBUNAL

The appeal was heard in Alfred, Ontario on March 26, 2001, March 27, 2001 and October 22, 2001. Mr. and Mrs. Rosaire and Lina Lafrance appealed a decision of the Director of Regulatory Compliance, Ontario Raw Milk Quality Program to uphold test results which indicated that milk on their farm tested in the penalty range for SCC on six occasions in 1999.

The Background

The appeal was made pursuant to Subsection 16(1) of the Ministry of Agriculture, Food and Rural Affairs Act which states:

16 (1) Subject to subsection (4), if a person is aggrieved by an order, direction, policy or decision of the Commission or Director, made under the Farm Products Marketing Act or the Milk Act, that person may appeal to the Tribunal by filing with the Tribunal and sending to the Commission or Director written notice of the appeal.

The Sections of Ontario Regulation 761 made under the Milk Act that relate to SCC penalties are as follows:

52. (1) The milk of every producer,

(a) shall be tested at least once in each month,

(i) for bacterial content by an official method,

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

(iii) for the presence of an inhibitor by an official method; and

(b) may be tested for its freezing point at any time by a freezing point test to determine if the milk has an abnormal freezing point as described in subsection (5),

at a laboratory approved by the Director. R.R.O. 1990, Reg. 761, s. 52 (1); O. Reg. 430/98, s. 1; O. Reg. 634/00, s. 3 (1).

52 (3) The somatic cell count of milk shall not equal or exceed the following levels expressed in somatic cells per millilitre of milk during the periods indicated opposite thereto:

700,000

August 1, 1991, to July 31, 1992

650,000

August 1, 1992, to July 31, 1993

600,000

August 1, 1993, to July 31, 1994

550,000

August 1, 1994, to July 31, 1995

500,000

August 1, 1995 and thereafter.

R.R.O. 1990, Reg. 761, s. 52 (3).

55 (2) Where the milk of a producer is tested under section 52 and found in three of any four consecutive monthly tests to contain somatic cells in an amount equal or greater than the somatic cell level established by subsection 52 (3), the producer is, in respect of the milk marketed in the month in which the milk was last tested and found to contain somatic cells in an amount equal or greater than the somatic cell level, liable to a penalty of,

(a) $3 per hectolitre in the case of a first penalty;

(b) $4 per hectolitre in the case of a second penalty; and

(c) $5 per hectolitre in the case of a third or subsequent penalty,

(d) Revoked: O. Reg. 392/99, s. 10 (1).

(e) Revoked: O. Reg. 392/99, s. 10 (1).

incurred within any twelve-month period. R.R.O. 1990, Reg. 761, s. 55 (2); O. Reg. 392/99, s. 10 (1). 55 (7.1) Where a producer incurs four penalties under subsection (2) 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 somatic cells in an amount equal or greater than the somatic cell level will be sold or offered for sale.

O. Reg. 7/92, s. 2 (2); O. Reg. 348/95, s. 10 (2); O. Reg. 392/99, s. 10 (4).

The Issue

1. Should the Tribunal allow six SCC test results which indicate the milk on the Lafrance farm tested in the penalty range in 1998 and 1999 to stand?

The Evidence and the Findings

Appellants’ Case

Rosaire Lafrance, appellant

Mr. Rosaire Lafrance told the Tribunal he bought his farm and a purebred dairy herd in 1959 and that he had improved and expanded the herd over time. He said that he had 50 purebred cows in 1999. He said that after initially culling only high SCC cows from the herd, he eventually sold the entire herd.

Mr. R. Lafrance said his son Vincent had worked with him on the farm full time for 13 years and that his son does the milking. He told the Tribunal that to keep SCC counts down, they:

• Had Normand Lafleche of Ontario Dairy Herd Improvement Corporation (DHI) weigh each cow’s milk individually once each month and had it tested for fat, protein and SCC.
• Treated cows with high SCC counts or sold these cows.
• Changed milking claws.
• Cleaned the barn and brushed it with lye once per year.
• Lengthened the stalls by six inches.
• Clipped the cows once per year and brushed the cows.
• Dried up older cows for two months and treated them with penicillin.
• Improved the ventilation in the barn.
• Had cows hooves trimmed in April 1999.
• Had the feed analyzed.
• Purchased new equipment.
• Purchased new cows.

Mr. R. Lafrance said that the official test results for SCC from Dairy Farmers of Ontario (DFO) were always higher than the DHI test results and that the DHI tests were better monitored. He said he relied on the DHI tests to cull high SCC cows between December 1998 and July 1999. He said that in July 1999 he took samples from all cows to a laboratory in Kemptville and culled an additional six cows on the recommendation of a veterinarian.

He testified that his quality problems continued and his herd was reduced to 24 cows by late August 1999. He said he was advised by the DFO that he would be barred from selling milk on September 13, 1999. Mr. R. Lafrance said he was told by Mr. Alex Hamilton, DFO, that his cows had to be illness free for two tests before the milk could be put back in the system. He said he was told the test results must show a SCC of zero, not just be under the penalty level. He said he decided to sell off the remaining cows at that point as he felt it was impossible to remove the illness from the herd.

Mr. R. Lafrance said he sold his herd on September 13, 1999 and bought eight new cows on September 17, 1999. He said seven of the new cows were fresh heifers that had calved at least seven days earlier. He said Mr. Hamilton sampled the bulk tank on September 20, 1999 and the SCC was 766,000, which was worse than the 525,000 SCC from the cows he sold the week before. He said his family decided that the next time Mr. Hamilton took a sample, they would take one as well and have it independently tested. He said different results were reported from these two tests. He said he tested his milk the same day that Mr. Hamilton returned for a third sample and continued to test his milk after he was reinstated. He said the SCC tests conducted by DHI were consistently lower than the official tests. Mr. R. Lafrance used a chart and several reports to show the variance between the two sets of test results.

Mr. R. Lafrance told the Tribunal that he received one SCC penalty in 1998 and he received escalating penalties in March 1999, April 1999, May 1999 and July 1999. He said he was also penalized in August 1999 and that this was his last penalty before being suspended. He said he lost $41,000 on the replacement of his herd and $50,000 in lost revenue due to reduced milk shipments in 1999.

In response to questions Mr. R. Lafrance said:

• He had used DHI for several years and found DHI data useful when he decided which cows to cull.
• He was introducing heifers to the herd at the same time he was culling cows.
• He did not lose any quota as DFO credited him with the time he was shut-off from the market.
• He did not believe his new cows were infected by his herd, or that they brought disease into the herd.
• He could not explain why the DHI records of certain cows did not reflect a lactation history and others did, or why some records included cow names and others did not.
• He re-used cow numbers, so records referencing the same number in different time periods could relate to different cows.
• The records of Cow #57 were bulk tank samples.
• His son took the bulk tank samples sent for independent testing in September 1999. The DHI representative had shown him how to take a sample from the bulk tank.
• He did not have a record of the sale of his last 24 cows, as they were cash sales.
• He agreed that a letter from the DFO indicated that two consecutive milk samples had to be below the SCC penalty level before he would be reinstated.
• He understood the herd had to be illness-free before he would be reinstated.
• He did not discuss the matter with his veterinarian before deciding to sell his last 24 cows.
• Of his eight new cows, one cow, Sadie, initially had an elevated SCC count; her milk was not shipped until the SCC dropped to 91,000. Another new cow, Elsa, had her milk removed from the tank after two bulk tank tests were taken.
• He could not say when exactly the six cows identified by a veterinarian to be culled, based on the results of June 14, 1999 tests, were sold.
• He was aware he had an infectious mastitis problem in the herd. His vet divided the cows into four groups to prevent contamination of healthy cows.
• All his milk producing cows were tested by DHI. He had 29 cows in production on March 25, 1999.

Dr. Harman, D.V.M., witness

Dr. Harman participated in the Hearing by way of videoconferencing. He told the Tribunal his theses for his Masters and Doctorate degrees were based on mastitis, that he had published papers on mastitis using SCC responses as part of his criteria, that he troubleshoots with farmers from time to time, and that he served on a Mastitis Council

Dr. Harman said that a test of the bulk tank was the best measure of the SCC of the milk shipped from a farm. He said a weighted average of individual SCC tests would provide an estimate of the bulk tank test, but that it would not be exactly the same. He explained that two different

sampling procedures were used. He said an electronic SCC analysis could be conducted on either type of sample.

Dr. Harman said that a high SCC would be expected in healthy first time heifers for one-to-two days after calving. He said that after seven-to-ten days, the SCC should drop to the normal range but that there is variation from animal to animal.

With respect to the data collected by DHI and the official test on the Lafrance farm, Dr. Harman said that the tests were showing the same thing between December 1998 and June 1999. He said that although there were absolute differences in the SCC between the two laboratories, based on his experience, the differences in values were not dramatic. Dr. Harman said there was considerable difference in the two data sets between August 1999 and October 1999.

In response to questions, Dr. Harman said:

• He assumed heifers were uninfected if their high SCC counts dropped within seven days after calving. When new heifers are introduced into a herd the milk needs to be tested with bacteriological cultures to be sure they are uninfected. New heifers can infect a herd.
• There is no guarantee that a cow with a low SCC will be uninfected several days later.
• Taking one bacterial culture on a cow is a good start but he recommends periodically re-culturing the herd, as well as monitoring the SCC. Not everyone cultures an entire herd.
• There can be errors in culturing, particularly if a composite milk sample is tested, rather than testing milk from each quarter.
• One negative culture is not conclusive evidence that a high SCC cow has been cured
• It is important to use uniform procedures and ensure adequate mixing of bulk tanks to get a good sample to test for SCC. Also the bulk tank must be kept cold. It is also important that the milk of all cows be in the tank and that the sample be kept cool until analyzed.
• He uses trained and licensed samplers. He prefers trained samplers over untrained samplers but he never takes for granted that a licensed sampler has done everything by the book.
• DHI does not test fresh cows as milk composition and SCC are abnormal in the first few days after calving.
• Uninfected cows tend to have consistently low SCC tests but the SCC tests of infected cows vary dramatically from day to day. The production of infected cows also varies and this affects the total number of cells they put in the bulk tank from day to day.
• The bulk tank SCC results will vary from day to day, depending on the health status of cows in the herd. A highly infected herd will display more variation than a herd with a low level of infection.
• Most new mastitis infections occur in the first month of lactation.
• Oedema or blood in the milk would indicate a high SCC. Oedema results in an altered milk composition but not necessarily an infection.
• A damaged teat would not affect SCC, but damaged teats frequently lead to infection which does elevate SCC.
• He expects to see 10-15% variation in test results from sample to sample with split samples. He would expect greater variation if the samples were taken at 5-10 minute intervals.
• He would expect samples taken from a bulk tank at two minute intervals to approximate one another but not be the same.
• Respiratory infection should not affect the SCC in milk. A high SCC is the result of the attraction of white cells into the udder due to some damage initiated in the mammary tissue.
• There are two manufacturers of SCC counters. Both function in a similar fashion, but each needs to be periodically standardized against samples with a known SCC test.
• Different strains of mastitis will result in different SCC test results.
• Bulk tank SCC results of 400,00-500,000 herd suggest a significant level of infection.
• A herd with 10 of 21 cows testing positive with Staph aureus would be expected to have a bulk tank SCC count over 500,000 on a month to month basis.

Mr. Cantin, DHI, witness

Mr. Cantin told the Tribunal he does not know Mr. R. Lafrance but that Mr. R. Lafrance had been a client of DHI since May 1995 and had purchased SCC tests since 1996. He said Mr. R. Lafrance purchased a supervised service whereby a DHI representative makes 10 farm visits per year to sample the herd and provide herd management advice. Reports, including laboratory results, are sent to the client. He said Mr. R. Lafrance also collected samples himself and sent them to the DHI lab, in specially marked DHI vials.

Mr. Cantin said that the DHI standard procedure was to:

• Take samples from each cow at an evening milking and at the following morning milkings.
• Store the samples in a sample box with cows identified by bar codes.
• Bundle the samples with metal straps.
• Ship the samples overnight by Purolater to the DHI laboratory in Guelph.
• Refrigerate the samples in Guelph if they arrive on Saturday as the laboratory is closed on weekends.

Mr. Cantin said unsupervised samples taken by producers were sent to the DHI laboratory under the same process.

He said that DHI staff are trained on how to enter data into DHI software, the procedures to follow on farms, rules and regulations of milk recording, how to work the meter and sample cows.

Mr. Cantin said the process used in the laboratory to measure SCC was:

• Samples are loaded on racks and warmed in a water bath to an optimum temperature for analysis.
• Analyses are performed on one of four lines between 9 a.m. and 3 p.m..
• The nuclei of somatic cells are dyed and then counted by microscope or laser technology.

He said the DHI has an accredited laboratory with two microscopic systems and two laser systems. These are Posomatic models 360, 400 and 5000. The two 5000 models were not purchased until late 1999 or early 2000. He said all equipment must operate within same tolerance levels and it is tested daily and once every 170 samples. Mr. Cantin testified that the DHI laboratory analysis was used by the DFO for payment purposes for approximately one week, due to a labour dispute at the laboratory operated by the University of Guelph (government laboratory).

Mr. Cantin said he believes the DHI tests are accurate. He said that the DHI weighted herd average was representative of all cows and an approximation of the milk in the bulk tank.

In response to questions, Mr. Cantin indicated:

• DHI obtained standard milk samples used to test its equipment from the government laboratory used by the Director. The allowable tolerance was plus or minus 10% of the standard sample.
• He believed the equipment at the government laboratory was tested after every 150 samples.
• Samples are not placed on ice on the farm, but a preservative is added to the samples. Holding the sample for two days before testing would not affect the SCC.
• The primary purpose of DHI is individual cow management. It is not concerned with regulatory compliance for raw milk quality.
• DHI records show when cows are sold and when new cows are introduced to the herd. A cow’s lactation history can be transferred to a new owner when the cow is sold.
• New cows in a herd are entered into DHI records after they calve.
• In 1999, any cow that freshened 14 days or less before the day the DHI representative visited the farm was not tested. Also, sick cows and those away at shows are not tested.
• DHI staff are not trained to take bulk tank samples.
• The laboratory staff have no way of knowing if a sample was from a cow or a bulk tank.
• He would expect the fat and protein levels of the bulk tank to be close to those of the cows in the herd, assuming the milk of all cows in the herd was in the tank.
• He agreed that if Cow #57 was a bulk tank sample, a volume of milk was incorrectly assigned as production from Cow #57. He said that is a prohibited practice.
• He said he remained confident in the DHI laboratory analysis, but had some concern about the assignment of data to each cow, if Cow #57 was a bulk tank sample.
• The inclusion of a false production value to represent the bulk tank as Cow #57 would lower the weighted average SCC calculated for the herd. This would have a greater impact if the milk of fewer cows was in the bulk tank.
• If the milk from all cows in the herd is tested, the DHI weighted average SCC test should be a good approximation of what is in the bulk tank.
• He was not aware of any major differences in laboratory procedures used in the DHI laboratory and the government laboratory.

Dr. Dave Douglas, D.V.M., witness

Dr. Dave Douglas said he had been a large animal veterinarian for 20 years after graduating from the University of Guelph in 1981.

Dr. Douglas said that if the production of all cows is measured by the DHI, he would expect the DHI weighted average SCC to be fairly consistent with the official test result, assuming samples are properly taken. He said he would also expect similar fat tests between the DHI weighted average and the official test result and consistency in the SCC between two samples of similar fat content taken at approximately the same time.

Dr. Douglas said he remembered the test results of the milk of seven cows on the Lafrance farm taken in late September 1999. He said there was no bacterial growth and no bacterial pathogens, and therefore nothing to cause mastitis. He said that the official SCC result of 766,000 in September 1999 was inconsistent with the results from the laboratory of those seven cows.

He commented that the results between the DHI laboratory and the government laboratory were consistent before July 1999 and after November 1999, but dramatically different in between these months.

In response to questions, Dr. Douglas said:

• He received bacteriological training as part of his veterinary training and had on the job experience.
• He could see from the DHI records that the SCC of one cow, Sadie, increased significantly between September 22, 1999 and September 26, 1999.
• If there was milk from an eighth cow in the bulk tank on September 22, 1999, that could account for a higher SCC test from the government laboratory, but that cow would have to have an exceptionally high SCC.
• Staph. aureus mastitis is challenging to treat as cows can infect each other quickly. Culling the herd is one solution but not his first choice. The herd should be cultured more than once. He would want the culture data to assist in culling decisions.
• He is not the veterinarian for the Lafrance herd.
• He agreed the Lafrance herd is a small herd with a significant mastitis problem.
• Butterfat tests are more consistent than SCC tests.
• The first milk and the last milk from an infected cow has the highest SCC.
• The SCC increases as lactation progresses; there is normally a 50% increase between the start and the end of lactation.

Normand Lafleche, witness

Mr. Normand Lafleche told the Tribunal he had been a DHI representative for almost 25 years and that he collected data on the Lafrance farm. He said that SCC testing and custom laboratory tests ordered by Mr. R. Lafrance are optional services provided by DHI

Mr. Lafleche said on a typical farm visit:

• He arrives shortly before milking and sets up a table for his equipment.
• He takes a reading of the bulk tank when he arrives to determine the amount of milk in the tank before milking.
• He asks the producer if any milk is fed to calves.
• The producer attaches the milking machines and scales to cows and he collects a sample of milk in a container and reads the weight of milk produced by each cow.
• He mixes the evening and morning milk samples and puts the sample on his calibrating unit.
• He identifies the sample bottles with a number and a bar code, then adds the cow number and the weight of the milk.
• He asks the producer if there are any new heifers or cows in the herd, any dry cows, any calvings or any illnesses.
• He sends the samples to the DHI laboratory by Purolator courier.

Mr. Lafleche said that he takes sealed sample bottles home in an aluminum container and records data into a computer at his home. He said he leaves a preliminary report with the producer. He said that he provided sample bottles for the custom service that Mr. R. Lafrance used, but that the producer collected the milk samples. He said he was aware that Mr. R. Lafrance was having milk from the bulk tank tested at the DHI laboratory. He confirmed that he showed Mr. R. Lafrance and Mr. V. Lafrance how to collect bulk tank samples. Mr. Lafleche confirmed that he had entered an approximate weight for the production record of Cow #57, which sample was in fact taken from the tank.

Mr. Lafleche said he helped Mr. R. Lafrance because he wanted to provide a service and because his morale was low after having sold his herd. He said the bulk tank tests were taken starting in Fall 1999 after the producer noticed differences between the DHI weighted average results and the official test results.

In response to questions, Mr. Lafleche said:

• He saw Mr. V. Lafrance take a bulk tank sample on two or three occasions. He used a long rod with a dipper to collect the samples.
• He has no formal training on how to take a bulk tank sample.
• He approximated a milk weight for the bulk tank sample, based on how far along in her lactation Cow #57 would have been, had she not been culled. In his view, the problems with herd health on the farm outweighed the need for accurate production data.
• He supervised 13 or 14 herds. Usually herds with a first time penalty used the custom services of DHI.

Serge Quesnel, witness

Mr. Serge Quesnel told the Tribunal he was an electrician who was working in the Lafrance milk shed in October 1999. He said he saw an official sample collected from the bulk tank by someone he did not know, and saw Mr. V. Lafrance collect a sample on the same day.

Vincent Lafrance, witness

Mr. Vincent Lafrance told the Tribunal that he was the son of Rosaire Lafrance and that he had worked with him on the family farm for 12 or 13 years. He said they farmed 270 acres and had a herd of 40 lactating cows in 1998-99. He explained that his job was to milk cows and that he and his father shared the clean up tasks.

Mr. V. Lafrance told the Tribunal that he milked with four machines and that his milking procedure prior to June 1999 was to:

• Pre-rinse the pipeline with chlorine.
• Prepare a teat cleaning solution and test kits for mastitis.
• Wash udders with a towel and dry with a different towel.
• Check the cow if she is contaminated, then wash and dry the udder again.
• Hook up the milking machine.
• After milking, bathe the teats for protection from infection.
• Dip the teats in a goblet of solution.
• Clean the pipeline for 1 hour with chlorine, acid and soap together.

He said that he later started wearing gloves to prevent the spread of infection when the cows were divided into groups. He also said that the cows were milked in the order of least infected to most infected.

Mr. V. Lafrance said that when cows became ill in late 1998 he sampled each cow to try to ferret out the problem and followed a veterinarian’s advice to cull 5-6 cows from the herd. He said when the milk quality problems began the DFO advised he and his father to remove spider webs and fill cement cracks in floor but gave no advice on improving the herd.

Mr. V. Lafrance said he took samples from the bulk tank, using the same procedure as is used by the milk truck driver. He said he wore gloves, the tank was well agitated, and he put samples in vials. He said he gave the vials to Mr. Lafleche. He testified that he took six tests on September 20, 1999. He said that Cow #57 represented the bulk tank. Mr. V. Lafrance said that he did a better job agitating the tank than the milk truck driver, as the driver was occasionally in a hurry.

Mr. V. Lafrance testified that the milk of fresh cows is normally put in the tank 8-9 days after calving. He said that he tested each teat of fresh cows with a California mastitis test and the milk is not added to the tank until the cow passes this test. He said he took a course on how to administer the test from a veterinarian. He said that one of the new cows purchased in September 1999 died in calving. He said that when the DFO started accepting milk from the farm after the shut off, Mr. Doug Dulmage, DFO visited the farm and discussed milking procedures with him.

In response to questions, Mr. V. Lafrance said:

• He was milking approximately 40 cows. Other cows on the farm were dry.
• The veterinarian did not recommend additional culture tests on the cows, only the DFO said they had to have two negative tests. He believed this was impossible.
• He had confidence in his veterinarian and followed his advice. The cows were culled the day after the veterinarian recommended it. His father made the culling decisions.
• He started using the California mastitis test when 8-9 new cows were purchased in September 1999.
• There were calves and heifers on the farm that were not sold when the herd was dispersed.
• There may have been two heifers from the original herd calving in September 1999.
• A new 1000 gallon bulk tank was installed about the time the new herd was purchased. The old tank was 600 gallons. The new bulk tank was purchased in May 2000.
• He estimated the milk truck driver did not properly agitate the tank once every two months on average, mostly during hockey season. He did not record the dates that the tank was not properly agitated.
• The DFO advised him to bed the calves with more sawdust and to wear a sampling scoop around his neck.
• He did not see correspondence from the DFO or the Director that was addressed to his father.
• Area veterinarians advised wearing gloves when milking as it reduces the risk of contamination from cow to cow. He wore the same pair of gloves for all cows but he used fresh gloves at each milking.
• He used the dipper to collect milk samples from the bulk tank. It was a new dipper that came with the new tank. Sometimes he wore gloves.
• He took his milk samples before the milk truck arrived. Sometimes he collected samples when Mr. Lafleche was present; in those instances there were only two milkings in the tank, rather than four.
• He only knew he was dealing with a very contagious form of mastitis when the culture test results arrived. He believed the veterinarian, not the Director, persuaded his father to order culture tests.
• He used one towel per cow to wash the udders and one towel per cow to dry the udders.
• He does not read the DFO magazine as it comes to his father. He was aware the DFO had a milk hotline and said his father uses this service.
• A visit by Mr. Dulmage, DFO, was required in order to be able to market milk again.
• Between January 1999 and June 1999 he was treating cows that were treatable with penicillin and tubes of medication in teats.

Lina Lafrance, appellant

Mrs. Lina Lafrance told the Tribunal she had married Mr. Rosaire Lafrance in 1960 and that they had expanded the farm he purchased in 1959 and made a significant investment in their purebred dairy herd. She said the herd was their pride and they had wanted to keep it intact for their son.

She told the Tribunal that when the first penalty sheet was received her husband treated the herd and phoned the milk line regularly, to try to solve the problem. She said the family has been hurt financially and emotionally by the situation. In response to a question, she said Mr. R. Lafrance kept the farm accounts.

Respondent’s Case

Alex Hamilton, witness

Mr. Alex Hamilton told the Tribunal he had worked for the DFO for 13 years and that he is the liaison between producers and the DFO. He said he was also the representative of the Director in the field with respect to inspections, shut off and reinstatement for milk quality matters. He said he is bilingual and he believed the appellants understood his French.

Mr. Hamilton confirmed he had been on the Lafrance farm on September 20, 1999. He said he wrote an inspection report that day on his computer, as the farm had to meet grade A standards in order for the producer to be reinstated. He said he left a copy of the inspection report with the producer and sent a copy to the main office.

Mr. Hamilton said he had contacted Mr. R. Lafrance in early September 1999 to tell him that he was being shut off from the market on September 13, 1999. He said he was familiar with the shut-off procedure as there was a disproportionate number of shut-offs due to high SCC in his area, Glengarry–Prescott. Mr. Hamilton said he told Mr. R. Lafrance that the requirements for reinstatement were:

• Two samples below 500,000 SCC;
• Bacteriological cultures;
• A veterinarian report;
• An agreement that 10 DHI tests will be used;
• A visit by the DFO udder health specialist; and
• Proof that recommendations of the veterinarian and the udder health specialist will be followed.

Mr. Hamilton said that Mr. R. Lafrance was upset that he was being shut-off. He said Mr. R. Lafrance told him that he did not feel that culturing was necessary, as he knew he had problems in the herd. Mr. Hamilton said he explained to Mr. R. Lafrance that the Director required the cultures. Mr. Hamilton said that he did not tell Mr. R. Lafrance that he had to have a disease free herd before he could be reinstated.

Mr. Hamilton said he took a bulk tank sample on September 20, 1999 without agitating the tank as an electrician was working on the farm and there was no power. He said he took that sample for the information of the producer. He said normally milk is agitated for five minutes before a sample is taken, he uses a straw or a dipper to collect the samples, puts the sample in a security tab bottle and stores it on ice. He said the sample taken on September 20, 1999 had a SCC of 766,000.

Mr. Hamilton said he had advised Mr. R. Lafrance to culture and re-culture the herd after he had received five penalties and was facing a shut-off. He said that he advised him to use the California mastitis test when his new heifers were not performing as well as he had expected.

Mr. Hamilton said he did not recall the exact date that Mr. R. Lafrance told him he sold his entire herd but said he was surprised. He said he recalled there was more milk in the bulk tank on September 20, 1999 than on September 28, 1999 or October 5, 1999. Mr. Hamilton said the producer was reinstated on October 8, 1999. He said normally producers are reinstated in 1-2 weeks but under exceptional circumstances it can take 3-4 weeks to be reinstated.

Mr. Hamilton said that he collected a milk sample on September 28, 1999 and it had a SCC of 265,000. He said he informed Mr. R. Lafrance of that result and returned on October 5, 1999 for a second sample. He said he recalled the SCC was in the 200,000 range on that occasion.

Mr. Hamilton said that when he advised Mr. R. Lafrance he was to be reinstated, Mr. Lafrance was upset as his own sample showed a lower SCC count than the official test result and he was adamant there must have been some kind of problem.

In response to questions, Mr. Hamilton indicated:

• He had not heard Mr. R. Lafrance allege that Mr. Hamilton told him each of his cows had to be in perfect health before he could be reinstated prior to the Hearing.
• A veterinarian had telephoned him to tell him that Mr. Lafrance told the veterinarian that Mr. Hamilton said he had to sell all his cows. He told the veterinarian that he needed culture samples and read the reinstatement protocol to the veterinarian. He was confident the veterinarian understood the protocol by the end of the call. He told the veterinarian that he thought it was completely unnecessary to sell the entire herd, as normally sick cows are identified, segregated and treated.
• He did not think it necessary to follow up with Mr. R. Lafrance as he understood the veterinarian was the advocate of the producer.
• He did not know the date of this telephone call but believed it was September 1999. He was sure the call from the veterinarian was made after the cows had been sold. He did not discuss the call with the Director or his supervisors.
• He had spoken to Mr. R. Lafrance by telephone before receiving the call from the veterinarian and was aware that he had sold his cows. Mr. Lafrance did not tell him that he disposed of the herd on his advice. His impression from the phone call was that Mr. R. Lafrance was resistant to culturing and tended to remove cows rather than deal with the root of the problem.
• Usually there is one regular milk truck driver and one swing driver on each route.
• He is responsible for inspecting each farm in his area once every two years. He is advised when producers receive SCC test results in the penalty range. He tries to visit producers with quality problems first.
• In December 1998 he had 60 producers with quality problems in his area. His practice was to visit the ones with more penalties first. He has over 500 dairy farms in his area.
• He believed he inspected the Lafrance farm in the summer of 1998. That visit was not specifically related to SCC tests. He recalled speaking on the telephone with Mr. R. Lafrance on more than one occasion after he received his first SCC penalty, but could not recall if he visited the farm to discuss how to resolve the SCC problem specifically.
• He is required to visit farms that have received five quality penalties but will visit sooner at the producer’s request.
• He was aware that a Raw Milk Quality booklet published in April 1998 stated that fieldstaff would be on the farm once an SCC count exceeds 499,000. He said that there was a heavy workload when this program was implemented and most of the work was done over the telephone.
• In December 1998, one sample of milk from the Lafrance farm was tested for SCC. The current practice is to test four samples per month.
• He could not be certain that September 20, 1999 was the date that the electricity was out on the Lafrance farm. He visited three times in two weeks and the electricity was out on one occasion. He did not inform anyone but the producer that the sample was unreliable the day he took it without agitating the tank.
• He did not measure the volume of milk in the bulk tank on the three occasions he visited the farm after the producer was shut-off but he recalled that there was less volume in it on each successive visit. The level of milk in the tank reached the agitator on each of his three visits.
• He did not recall telling Mr. R. Lafrance that it was acceptable to have the milk from six milkings in the bulk tank.
• He does not keep a log book of farm visits and phone calls. He does prepare inspection reports when he visits farms.
• On October 5, 1999 he followed up his earlier report to ensure the production facility met grade A standards.
• He believed that the farms in his area were now close to the provincial average for SCC levels. His general impression was that the number of farms shut-off slowed down in the summer of 2000.

Peter Gould, respondent

Mr. Peter Gould told the Tribunal that he is the Director of Regulatory Compliance and also works for the DFO. Mr. Gould told the Tribunal that the DFO is responsible for enforcing the regulations that govern the quality standards of milk production in Ontario. He said that the milk is tested under the governance of the Director of the Food Industry Division of OMAFRA. Mr. Gould explained that the DHI is a private organization that is not connected to the raw milk quality program and that he is not an agent of the DHI. Mr. Gould said that somatic cells are indicative of an immune response to bacteria in the lactating cow and that milk is tested for the presence of somatic cells in quality programs throughout the world. Mr. Gould made a submission to the Tribunal regarding milk quality and raw milk issues with respect to somatic cells that:

• A somatic cell count in the individual cow, of 200,000 (cells are measured per millilitre of milk) is indicative of an infection in the udder.
• A somatic cell count of 500,000 is the Ontario threshold at which penalties are applied.
• A producer will be penalized if test results indicate a somatic cell count of 500,000 or higher in three out of four consecutive monthly tests.
• The penalty is applied to the total volume of milk shipped in a month and ranges from two to twelve percent of a producer’s monthly income.
• In 1999 the minimum time that passed from when the first penalty was levied until shut-off was eight months. The producer had some time to take action to remedy the situation.
• DFO samples are picked up by certified Bulk Tank Milk Graders 15 times per month.
• Five of the fifteen samples are tested and each of these samples is tested for composition, freezing point and somatic cell count. The samples must be obtained no more than six days before the somatic cell count is tested.
• The lab at which the tests are conducted is; -approved by the Director Food Industry Division OMAFRA. -accredited with the National Lab Accreditation Program. -registered as in compliance with ISO 9002 -independently audited for precision and performance.
• The DFO established the Milkline, and a web site where, upon entering a password, producers can access their confidential test results by telephone or internet, on the day following the testing.
• At every occurrence of elevated cell counts, the DFO will send a letter to producers advising them of the cell count. The letter will include recommendations to: test individual cows for SCC, consult with the veterinarian, check the milking equipment for proper function, engage an udder health specialist.
• The DFO provides an udder health program, on a fee for use basis. The Udder Health Specialists will attend at the farm at the request of the producer.
• The high cell count advisory letter is available in English or French and Mr. and Mrs. Lafrance received their letter in French.
• The number of penalties levied by the DFO for SCC has been declining annually, since the DFO took over the program in 1998.
• As of January 2000 the DFO will shut-off a producer who incurs four penalties consecutively in a five month period. At the time the appellants were shut-off the threshold for shut-off was eight monthly cell counts above 499,000 in a twelve month period.
• Mr. and Mrs. Lafrance incurred a penalty in every month from December of 1998 to August of 1999, except for the month of June 1999.
• In August of 1999, 10 of 31 cows on the Lafrance farm that were tested individually, had a SCC greater than 1,000,000, and 12 of the 31 cows that were individually tested, had been in the herd for less than four months.
• The DFO takes the position that where a producer exceeds the limit for acceptable cell counts, it is the producer’s responsibility to take action. The DFO does not direct a producer to take a specific action or meet certain requirements in order to avoid shut-off.
• The DFO does have specific requirements for reinstatement after shut-off, among them the scheduling of a visit with an Udder Health Specialist, the taking of individual cow cultures and a farm inspection to determine if the farm meets the Grade A standard. Producers are informed of the improvements needed in order for the farm to meet the criteria to be classified as Grade A.
• Mr. Hamilton gave the appellants a farm inspection report, wherein the reinstatement requirements were listed.
• The results of SCC testing from DFO are derived from calculating the weighted average of somatic cells in the bulk tank.
• In September of 1999 seven of nine newly purchased cattle had negative bacterial pathogens as a result of culture testing, but the SCC test taken from a sample in the bulk tank, resulted in SCC count of over 700,000.
• The high cell count was attributed to the electricity being shut-off which prevented the mixing of the contents of the bulk tank.
• Mr. Hamilton made a judgement call at the time he submitted the sample, as he was sympathetic to the appellants’ wish to be reinstated as soon as possible.
• Mr. Hamilton recommended at this time that cultures be tested again in three to four weeks.
• Mr. Hamilton’s recommendation to treat all dry cows in the future, indicated that this was not routinely done.
• Mr. Hamilton also advised, that the appellants obtain health records for any newly purchased heifers and that the heifers should also be cultured before being introduced to the herd.
• Mr. and Mrs. Lafrance were reinstated on October 8, 1999.
• On November 3, 1999 Mr. Dulmage, an Udder Health Specialist, made his report on his findings at the Lafrance farm.
• The DFO does not impose a mandatory follow-up to the recommendations made in an Udder Health Specialist’s report.
• The DFO was informed by letter on November 18, 1999, that, Mr. Lafrance had retained Mr. Caza to represent him and that he had obtained independent laboratory test for SCC counts during the months of August, September and October of 1999.
• The November 18, 1999 letter indicated that, had Mr. Gould been aware of the independent test results he may have decided not to shut-off the Lafrance farm from shipping milk at that time.
• There was no accompanying information regarding the independent tests such as the laboratory at which the samples were tested nor the method of sampling or testing.
• No information regarding the independent testing was forthcoming.
• Upon receipt of the November 18th letter, the DFO launched an investigation into its SCC testing to ensure that the results obtained and the decision to shut-off the Lafrance farm were based on accurate findings.
• Reports obtained from the DHI reinforced the DFO’s test results, as the level of infection in some individual cows correlated closely with the DHI’s SCC sample testing.
• The challenge was denied in July 2000.

Mr. Gould told the Tribunal that Mr. Caza had submitted a schematic with his testimony that was misleading. Mr. Gould explained that a schematic representing the DHI and University of Guelph somatic cell findings over a seven month period included the graphing of several observations in some months and the graphing of only one observation in other months. Mr. Gould explained that this method of graphing the findings stretches out the scale and amplifies any anomalies. Mr. Gould told the Tribunal that comparisons should be made with samples taken on the same day and produced by the same cows. Mr. Gould explained further that:

• The misleading schematic compared the SCC findings from DHI findings for the new herd with DFO findings from the old herd.
• The September 28 result expressed in the schematic cannot be correct, as the value for butterfat in the milk of cow 57, is greater than that of all individual cows and it is very unlikely that this is true for a sample taken from the bulk tank.
• Since the reinstatement after shut-off, corrective action has been taken as only 2 of 71 samples tested for SCC have been in the penalty range.
• Prior to the current appeal, Mr. and Mrs. Lafrance had never had issue with the DFO’s methods of obtaining samples and testing milk. The DFO saw no evidence of tampering with the samples taken from the Lafrance farm.

Mr. Gould submitted a test sample vial, to the Tribunal. He told the Tribunal that he does not know of any situations where a sample vial was tampered with. Mr. Gould responded to questions that:

• Test results for three consecutive months that indicate the SCC is over 500,000 will result in a penalty fine.
• Despite his description that the test results were strongly indicative of infection, the results for SCC count were by his own definition, not much higher than the acceptable limit.
• Within the industry, it is common knowledge that improper mixing of the bulk tank can result in a SCC that is not truly representative of the contents of the tank.
• The actual SCCs are declining as a result of improved management of infectious conditions by producers.
• The present cut-off threshold is imposed after a result of 4 SCC penalties, not 6 as it was when the appellants were cut-off in 1999. The threshold was adjusted beginning January 2000.
• Though more information has come to light, he is still satisfied with the decision he made regarding the appellants’ penalties and shut-off.

Dr. David Kelton D.V.M., witness,

Dr. David Kelton testified that he is an Associate Professor in the Department of Population Medicine at the Ontario Veterinary College, University of Guelph. He said that he instructs graduate and undergraduate students in dairy health management and that he conducts research in udder health and milk quality. Dr. Kelton told the Tribunal that he occasionally does consultation for the DHI and that the professional associations to which he belongs make use of DHI data to monitor dairy health trends and to develop new services. Dr. Kelton told the Tribunal that:

• He had contributed to the development of SCC reports over the past 10 years, with respect to recognizing and managing mastitis in particular.
• Infectious mastitis is commonly caused by Staphylococcus aureus (Staph. aureus) or Streptococcus agalactiae (Strep. ag.) bacteria. Environmental mastitis is commonly caused by Streptococcus non agalactiae (Strep. non-ag) or Escherichia coli (E. coli) bacteria.
• With contagious mastitis spiking occurs after a period of prolonged elevated SCC. The spiking will result in cell counts near the 1,000,000 level, but rarely over 1,000,000.
• With environmental mastitis, spiking occurs after a short period of elevated SCC; the spiking can result in cell counts of 10,000,000 to 100,000,000 within hours.
• Obtaining cultures from cows suspected of being infected is the most accurate method of determining their condition and planning disease management.
• Two cultures are most reliable, as, under laboratory conditions, the bacteria do not always grow in amounts representative of the level of infection, and the bacterium can mutate, or encyst within the udder.
• Culling or systematic dry-cow treatment is recommended for cows with chronic mastitis.
• Normal management practice results in the culling/replacement of 1/3 of the herd every 12 months.
• The appellants’ herd turnover was approaching 40% per 12-month period in 1998.
• The introduction of newly purchased cows to a herd should follow a thorough check of the health history of each cow and two cultures taken over three to four days.
• Bulk tank sampling results of SCC are typically representative of the milk offered for sale over a two-day period, from the morning of one day to the evening of the following day.
• Cows that are less than five days into their lactation will not have their milk included in DHI records.
• DHI and DFO samples would have to be taken from the bulk tank at the same time, with the same cows contributing milk to the tank, in order to make any accurate comparisons. This method of comparison has not been evidenced with regard to the Lafrance comparisons.
• The comparisons of the Lafrance samples were undertaken by the Lafrance family; there is no indication as to the date the samples for comparisons were removed from the bulk tank, nor was it documented which cows had contributed their milk to the bulk tank at the time the samples were obtained. The discrepancies in the comparisons were further amplified by comparing the bulk tank sample taken by the Lafrance family with the DHI weighted average test results.
• High SCC levels in a single cow will have an impact on the bulk tank contents that are inversely proportionate to the size of the herd.
• The DFO sample vials have tamper proof safety tabs and the producer identification seal is affixed to the lid of the vial. The DFO samples are shipped in refrigerated trucks to the laboratories.
• The DHI sample vials are not tamper proof and are not refrigerated during transport to testing facilities. The DHI sample vials do contain however, a preservative tablet that eliminates the need for refrigeration.
• The milk components of fat and protein are not affected by the high cell count when samples are placed for testing, though high cell counts may affect the composition if the infection has progressed to the point of damaging the health and productivity of the cow.
• In reviewing the composition data of the Lafrance’s milk, there were no unusual findings.
• With regard to agitation of the contents of the bulk tank, it has been observed that samples taken from the top of a tank that has not been properly agitated will indicate an SCC higher than that which would result from a properly agitated bulk tank.
• Cows that are chronically infected should be culled for slaughter and not sold for milk production.

Dr. Kelton responded to questions that:

• He is presently involved in DFO funded research projects.
• He recommends culturing to identify the Staph. aureus positive cows in the herd.
• In 95% of cases where samples are obtained over two consecutive days, the tests result in a difference of 100,000 somatic cells or less.
• It is expected that 5% of SCC sample testing, will result in abnormal levels of cells.
• The appellants’ membership in the DHI program is voluntary.
• Upon observing the Lafrance SCC test results through January of 2000 to March of 2000, there is an indication that the DHI results show more somatic cells than the DFO results.
• The rate of turnover in DHI herds is 33%.
• SCC can be influenced by such factors as injury to the udder, presence of any number of non mastitis causing organisms in the udder, and the point within the lactation cycle at which the sample was obtained.
• Environmental bacteria tend to proliferate more in the spring and fall when there are warm temperatures and plenty of moisture.
• Research indicates that a heifer calving for the first time will have some levels of Staph. aureus present.
• The DHI does not normally test bulk tanks for SCC with any regularity.
• He personally has not conducted research into the levels of SCC in proportion to the agitation of the bulk tank contents. His findings that less agitation will result in higher SCC from samples taken from the top of the tank is a deduction based on observation of reports.

Leo Brisson. witness

Mr. Leo Brisson told the Tribunal that he was a Committeeman for the DFO representing Region 1 and that he had been a dairy farmer since 1968. Mr. Brisson testified before the Tribunal that:

• The bulk tank sample testing for SCC is a reliable indication of mastitis problems in the herd.
• In 1969 he received a “pink card” warning him that tests results for bacteria in the milk indicated that shut-off was imminent.
• He consulted with his veterinarian and obtained information from Kemptville College to manage the situation. Within a year the bacteria in the milk was at acceptable levels.
• When he suspects mastitis in one of his cows he takes a culture to Kemptville College for testing. If the testing of a culture shows a SCC of 500,000 or more, a California test is administered to determine which quarter is infected. The cow is then treated in consultation with the veterinarian and records of findings and treatment are entered into the cows file.
• In cases where a cow is repeatedly infected with Staph. aureus she is sold for slaughter.
• It is his practice to buy only heifers or raise them for milk production. He does not purchase cows from the sale barn.

Mr. Brisson told the Tribunal that his milk has a SCC of less than 100,000, 90% of the time. He told the Tribunal that he is on the Milk Quality Committee and has observed that there are a few producers who will take no action with regard to high SCC results until it becomes the only way to avoid shut-off. He explained that there are resources for resolving and controlling infection such as the DFO, the veterinarian and OMAFRA. Mr. Brisson said it was his opinion that the reduction of the number of penalties allowed before shut-off (from 6 penalties to 4 penalties as of January of 2000) may not allow enough time to reduce a SCC to a level below 500,000 and that this encourages producers to maintain SCC well below 500,000 cells/ml.

In response to questions Mr. Brisson told the Tribunal that:

• He is in the top five percent of producers in the province of Ontario with regard to low SCC.
• He is a producer in the same region as Mr. and Mrs. Lafrance.
• As a Committeeman, it is his duty to represent the concerns of the producers in his region to the DFO.

Mr. Brisson explained that Mr. Gould requested that he attend the hearing to explain how he produces good milk and that he was not bearing witness to judge whether or not the appellants were good producers. Mr. Brisson told the Tribunal that he had tried to get another producer to attend the hearing in his stead, but he was unable to do so.

Mr. Brisson told the Tribunal that his wife had taken a telephone message from Ms. Giguère, counsel to the appellant, and that the message indicated that Ms. Giguère wished to ask him some questions regarding the appeal. Mr. Brisson testified that he did not return the telephone call, but that Ms. Giguère telephoned him again on October 21, 2001, at which time he indicated to her that he did not wish to talk to her about the appeal. Mr. Brisson testified that at no time during the brief conversation did he indicate to Ms. Giguère that he had a particular opinion regarding Mr. and Mrs. Lafrance’s appeal. Mr. Brisson maintained that his recollection of the telephone call was as he had just explained to the Tribunal and that the appearance of Ms. Giguère as a witness would not compel him to change that recollection.

Summations

In summary Mr. Caza told the Tribunal that:

• The onus of proof is the duty of the Director of Regulatory Compliance and he has not met this obligation, as he did not call Mr. Sylvain Savage the Bulk Tank Milk Grader to testify.
• The regulations stipulate that the bulk tank must be agitated for 10 minutes prior to obtaining a sample, otherwise the sample is not representative of the contents of the bulk tank.
• Mr. Lafrance has been a producer since 1959 and has never experienced these SCC levels and subsequent penalties before.
• Dr. Kelton testified about the inadequacy of comparing DFO and DHI test results, which emphasized the finding that SCC test results from DHI tend to be higher than the results of DFO SCC testing.
• Despite his scientific background Dr. Kelton had difficulty in concluding that in 95% of tests results, from samples obtained from the same bulk tank on the same day the difference is within 100,000 cells/ml.
• The field staff did not do their jobs properly as Alex Hamilton sampled the tank on September 20, 1999 without agitating the tank, which resulted in a SCC of over 700,000 cells/ml.
• Mr. Gould relied on Alex Hamilton during the investigation, when Mr. Hamilton had not told Mr. Gould that he had not mixed the bulk tank.
• Mr. Hamilton’s evidence is not reliable.
• Mr. Brisson’s evidence is not reliable because as a producer, he meets a far higher standard than that which is necessary and therefore elicits an unfair comparison.
• Mr. Lafrance had a genuine interest in producing quality milk as he took measures to remedy the problems to the extent of culling the entire herd and he subscribed to the DHI; a voluntary association.
• Mr. Lafrance was a casualty of a breakdown in the system.

Mr. Caza asked the Tribunal to set aside the penalty fines, except for those incurred in April and May of 1999. Mr. Caza stated that the appellants would return to their former position as producers in good standing if the fines were lifted.

Mr. Spurr in his final submission told the Tribunal that:

• The onus is not on the Director to justify his decision but rather on the producer to provide evidence to refute the basis for the fines.
• The appellant had every opportunity to call Mr. Sylvain Savage as a witness or cross-examine other witnesses, if doing so would result in making their position more clear.
• This producer’s participation in a secret testing protocol impugns his credibility.
• The private testing only occurred after the new herd was purchased and was not representative of the condition of the herd that produced the milk containing high SCCs.
• The producer did not submit proof that the samples tested were not representative of the contents of the bulk tank.
• The DHI test results indicated that Mr. Lafrance was facing a crisis with SCC.
• There was no previous allegation by Mr. and Mrs. Lafrance that the bulk tank was not adequately mixed before sampling.
• Mr. Hamilton was trying to help Mr. Lafrance when he submitted the sample from the unmixed bulk tank.
• Mr. Lafrance and Mr. Brisson use the same veterinary services, but they use the information and advice differently.
• There are still some unexplained discrepancies in data comparisons with regard to milk composition, and the “new” and “old” herd’s milk.
• Mr. Lafrance made decisions and choices regarding the high SCC and, whether or not they were effective, he is responsible for the outcome.

Mr. Caza told the Tribunal that:

• The appellant has never contended that bulk tank sampling is not an effective means of identifying milk that is representative of his product.
• Mr. Hamilton did not do anything that was helpful to Mr. Lafrance by submitting the sample from the un-mixed bulk tank.
• There was never a visit to the Lafrance farm when the SCC was above 499,000 cell/ml as per the regulations.
• It was only after the cell count was determined to be above 700,000, that Mr. Hamilton supplied the information that he had obtained a sample without mixing the bulk tank.
• The electrician stated that the bulk tank had not been disconnected.

The Findings

The evidence of specialists and others at this hearing is that the high SCC scores in a herd of dairy cows is caused by mastitis.

Evidence presented indicated that two types of mastitis could cause the problems, environmental (e.g. E. coli and others) and infectious mastitis (primarily Staph. aureus and Strep. ag.). There is ample evidence that the Lafrance herd had a high rate of infection with Staph. aureus. This high rate of infection brought the shipments of milk from this herd into the penalty range many times and resulted in the herd being shut-off from shipping milk by September of 1999.

There was also ample evidence presented at this hearing that herds infected with Staph. aureus could be managed to maintain SCC scores in the non-penalty range. The producer was aware of the maximum limit of 500,000 SCC in raw milk being the established standard for all milk producers in Ontario. The monthly DHI report identified specific cows as being well above the maximum limit for several months before suspension. It is the producer’s responsibility to react to such warnings and to govern his actions in order to promptly seek a remedy or solution to such a problem. In this particular case, it is only after a 9 month period that the first culture test was initiated and the result of the test dictated a necessary immediate correction of the problem in this herd. There is evidence that the Lafrance family did improve management but not soon enough to prevent shut-off. The DHI report was also repeatedly identifying (from a cumulative report) several cows with an unacceptable SCC.

There is evidence that there could be some variation in the reading of SCC scores. The Tribunal was given evidence also that there was a higher than expected rate of penalties and shut-offs in this district at that time. No explanation was presented to explain this alarming situation. The standards and procedures used by DFO are defined and verifiable. No proof of anomalies in the standard procedures used by DFO for sampling, handling and testing raw milk were found. The producer was made aware of his status by DFO, (including penalty status). This producer was not treated any differently than any other producers with regard to milk quality.

There is evidence that there was not adequate communication within the Lafrance family about the DHI and DFO reports and that there was a lack of understanding of the warning signs reported by the DHI analysis of individual cow testing. As explained by the experts, there is a difference between herd weighted averages and the tank samples; this may have confused the issue for the Lafrance family. The reason for the abnormally high SCC score of a sample taken September 20, 1999 was not explained by the evidence presented and is not considered by the Tribunal to have significant weight to affect the decision of the Tribunal in this case. The Tribunal recognizes that management procedures are now in place in this herd that have maintained the SCC scores in the non-penalty range for several months.

Upon hearing all of the evidence and reviewing all the material presented the Tribunal finds that a high incidence of Staph. aureus mastitis in the Lafrance herd, together with less than adequate management, was the cause of the penalties imposed and the shut-off from shipping milk from the farm.

Decision and Reasons

After carefully considering the evidence presented and the submissions made, the Tribunal decided to deny the appeal of Rosaire and Lina Lafrance.

The reasons are:

Mastitis on a herd basis can be detected and controlled.

The owners of herds are responsible for managing the quality of milk shipped.

Dated at Guelph, Ontario this 2nd day of January, 2002.