Wilson v Director of Regulatory Compliance, Ontario Raw Milk Quality Program, 2002 ONAFRAAT 23

Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West Guelph, (Ontario) N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: AFRAAT@ontario.ca

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Email: AFRAAT@ontario.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL: Wilson v Director of Regulatory Compliance, Ontario Raw Milk Quality Program

Wilson v Director of Regulatory Compliance, ORMQP 2002 ONAFRAAT 23

STATUTE: Ministry of Agriculture, Food and Rural Affairs Act

HEARING: June 25, 2002

DATE OF DECISION: July 4, 2002

2002-23

NEUTRAL CITATION: 2002 ONAFRAAT 23

Wilson 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, FOOD AND RURAL AFFAIRS ACT.

AND IN THE MATTER OF: An Appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal by David E. Wilson, Norval, Ontario from the decision of the Director of Regulatory Compliance, Ontario Raw Milk Quality Program, to impose a non Grade A penalty (non-compliance with one or more of Sections 3 to 34, Regulation 761 under the Milk Act) in the month of April, 2001.

Before: Murray Cardiff, Chair; Gertrude Levac, Member; Doug Flook, Member

Appearances: David Wilson, appellant Peter Gould, Director of Regulatory Compliance, respondent Grant Brownridge, Fieldperson, Dairy Farmers of Ontario (DFO), witness George MacNaughton, Farm Policies and Field Services Manager, DFO, witness

DECISION OF THE TRIBUNAL

This appeal was heard in Guelph, Ontario on June 25, 2002. Mr. David Wilson appealed a decision of the Director to assess him a penalty because a fieldperson found that his dairy facility and equipment did not meet standards set out in Regulation 761 under the Milk Act.

Statutory Context

Subsection 16 (1) of the Ministry of Agriculture, Food and Rural Affairs Act is as follows:

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.

Subsection (4) outlines conditions under which the Tribunal may refuse to hear an appeal.

Subsection 55(5) of Regulation 761 under the Milk Act states:

55.(5) Where a fieldperson finds that the milk of a producer is produced from animals or on premises or with equipment that does not comply with sections 3 to 34, the producer is, in respect of the milk marketed during the month the finding of non-compliance is made, 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; and

(c) $8 per hectolitre in the case of a third or subsequent penalty,

incurred within any twelve-month period. O. Reg. 634/00, s. 4 (3).

The Issue

The issue before the Tribunal was:

1. Were Mr. Wilson's premises and/or equipment in compliance with sections 3-34, Regulation 761 under the Milk Act in April 2001?

The Evidence

Appellant's Case

Mr. David Wilson told the Tribunal he felt he had been treated unfairly by the Director as it took too long for the Director to hear his appeal and as he did not believe the Director based his decision on a balanced view of his testimony and the fieldperson's evidence.

Mr. Wilson testified that:

• His facility received a conditional Grade A rating in 1999. His feed mill had broken down and chores were not completed when the fieldperson arrived at the farm that year. As a result the facility was not as clean as usual.
• His facility was found to be non-Grade A on April 12, 2001. The premises were very clean and chores were completed when the fieldperson arrived at the farm that day.
• He felt there were errors in the fieldperson's reports in 1999 and 2001.
• There were some problems with the premises in 1999 as he had removed a wall to install a new bulk tank and a porthole was damaged. Also a truck receptacle should have been installed outside the milkhouse. He did not agree with the fieldperson on issues such as the adequacy of lighting and inflations.
• After the inspection in April 2001 he tried to get a second opinion from George MacNaughton but the inspection was immediately prior to the Easter weekend and he was unable to reach him. He did reach a board member and learned there was an appeal process.
• He was notified by the Director that his appeal had been denied on January 7, 2002.
• He disagreed with the fieldperson on several points in the April 12, 2001 report as: there were no potholes in the lane; the loading area only had a bucket milker and some loose weeds in it; the milk house, floors and exterior of the bulk tank were clean; the inflations were installed February 1, 2001 and should have been acceptable; the milking claws were clean; his records were marked on a Dairy Herd Improvement calendar.
• He agreed that: there were two small patches of protein build-up inside the bulk tank; the jetter cups were due for replacement and he did not have the current wash procedures charts posted.
• He had been unable to obtain a wash procedures chart from his dealer but had copied and posted the amounts of soap and acid required from the labels on the cleaning materials.

Mr. Wilson referred the Tribunal to two series of photographs of his farm and equipment. He pointed out that equipment stored in a straw-packed pen was used for hoof trimming. He said the pen was also used for calving and holding cows. Mr. Wilson said marks on the bulk tank were hard water deposits, not dirt. He indicated he stored items in the milkhouse, as it was the only part of the barn that was heated.

Mr. Wilson said he disagreed with the fieldperson's contention that four items that were identified as requiring improvement in 2001 had also required improvement in 1999. He said the milkhouse and equipment had been dirty in 1999 but that it had been pressure washed in 2001; there were pipes beside the heifer barn in 1999 but these were removed by 2001; and there was a concern with junk and manure between the parlour and the milkhouse in 1999 but the concern was with the straw-packed pen in 2001.

Mr. Wilson said he did not agree there were cobwebs in the milkhouse in 2001. He said that there was some manure splash marks on containers stored in the milkhouse as this was unavoidable when cleaning with a pressure washer. He said that manure was brought into the milkhouse on his boots. Mr. Wilson acknowledged the containers in the milkhouse could have been stored in a straighter line but said there was plenty of room for the milk truck driver. He agreed there was some build-up of debris under the tank.

Mr. Wilson said there was no manure on the lips of the inflations. He said a small line of manure or dirt forms where the inflations fit together, but that this was not in contact with milk. He said this should not mean the farm is non-Grade A. Mr. Wilson said the jetter cups were approximately one year old in April 2001 and were due to be replaced.

Mr. Wilson said there was 8-10 inches of manure in the straw-packed pen, not two feet as indicated by the fieldperson. He said that he placed straw between the calf hutches and the laneway and it got wet but that there was no effluent from the calf hutches running onto the lane.

Mr. Wilson said he had visited many other dairy farms but that he had no formal training in determining whether a farm met Grade A standards. He said he was a member of the Halton Dairy Committee for ten years and that he chaired the Committee for two years. He acknowledged he had been at a conference in Geneva Park where changes in the penalty for non-Grade A premises had been discussed and that he received the Milk Producer magazine. Mr. Wilson said he used hired help in the summer and on some weekends but that for the most part he milked the cows and kept the premises and equipment clean. He said he was milking 40 cows in April 2001.

Mr. Wilson said it was not easy to clean the area between the bulk tank and the wall and that it was not cleaned as frequently as the rest of the milkhouse. He said his milking parlour was not enclosed but that the herd was kept in a separate barn.

Director's Case

Mr. George MacNaughton, Manager, DFO presented an overview of the DFO farm inspection program, a regulatory change which increased the non-Grade A penalty effective January 2001 and farm inspection statistics. He said that when the DFO accepted responsibility for inspecting farms in 1998 its fieldpeople gave warnings by way of Conditional Grade A classification of premises and facilities. He said if the same problem was observed at the next inspection the fieldperson was trained to report the farm as non-Grade A.

Mr. MacNaughton cited subsections of Regulation 761, under the Milk Act, for which the fieldperson who inspected Mr. Wilson's farm had found alleged infractions. These were:

9. (1) Every producer shall keep all buildings or premises where animals are stabled or milked,

(a) clean and in a sanitary condition;

11. (1) Every producer shall keep all parts of the premises clean and, except for loafing-type stables, free from accumulations of manure and refuse. R.R.O. 1990, Reg. 761, s. 11 (1).

12. (2) Every producer shall store manure so as to be inaccessible to animals and so as to minimize run-off and the breeding of flies. R.R.O. 1990, Reg. 761, s. 11 (2).

13. (4) Every milk house shall be,

(a) kept neat and clean and reasonably free from insects at all times;

(b) used only for,

(i) cooling and storing milk or cream,

(ii) storing milking equipment and utensils, and

(iii) washing and sanitizing milking equipment and utensils; and

(c) maintained so as not to impede the bulk tank milk grader in the performance of his or her duties. R.R.O. 1990, Reg. 761, s. 12 (4).

13. (2) Every producer shall provide and maintain in good condition and state of repair milking equipment and utensils for the producing, handling and storing of milk or cream. R.R.O. 1990, Reg. 761, s. 13 (2).

14. (3) No producer shall use utensils that are not in good condition and state of repair. R.R.O. 1990, Reg. 761, s. 13 (3).

Mr. Peter Gould, Director of Regulatory Compliance, Ontario Raw Milk Quality Program, told the Tribunal:

• His records indicated that Mr. Wilson's farm had not met the Grade A standards on its first inspection since 1994.
• Producers are expected to maintain their premises and equipment to Grade A standards at all times.
• Regardless of the 1999 report, based on the 2001 report he found the farm did not meet Grade A standards.
• The fieldperson observed worn, cracked jetter cups. These are hard to wash and are a breeding ground for bacteria.
• He preferred that there not be manure tracked into the milkhouse on a regular basis. He believed the area between the milking parlour and the milkhouse was not kept clean on a regular basis.
• The milkhouse was not neat and clean when the fieldperson made his inspection. There were items not necessary for milking stored in the milkhouse.
• It is important to keep the loading area clean for biosecurity reasons.
• The regulatory standards were designed to reduce the risk of contaminated milk.

Mr. Gould said there are always degrees of judgement used and that in his view an infraction such as a screen missing from a window is less serious than the presence of manure in jetter cups and inflations. He said the most serious problems on Mr. Wilson's farm were that the milk equipment was not in good repair and the premises and equipment were not kept clear of manure and refuse.

Mr. Gould said he had offered to have Mr. MacNaughton and Mr. Brownridge, Fieldperson, Halton Region meet with Mr. Wilson at his farm to conduct an inspection for information purposes only. He indicated that offer was still open.

Mr. Gould also said:

• It would be appropriate to wash milking units in soapy water.
• Calf starter should not be stored in a milkhouse.
• He does not write all of his own correspondence. Occasionally Mr. McNaughton drafts letters for his signature.
• A more lenient approach was taken with regard to non-Grade A premises in 1999 than in 2001 because many farms had not been inspected in some time before the DFO was given the authority to inspect them.

Mr. Grant Brownridge told the Tribunal he was the fieldperson who inspected Mr. Wilson's farm in both 1999 and 2001. He said he had inspected farms since 1981, first with the Ontario Ministry of Agriculture and Food, then with the DFO. He said he attended training sessions twice a year and that he periodically inspected the same farm with other fieldpeople to ensure that a similar approach was used. He said he had worked in the Halton Region since 1993 and that he had inspected approximately 1000 farms in the past four years.

Mr. Brownridge testified:

• On April 12, 2001 he inspected the jetters and inflations on Mr. Wilson's milking equipment and observed 'inking', manure residue and cracked cups. He explained 'inking' was an indication that the equipment was porous and that it could result in black spots in milk.
• It is unusual to observe any manure on washed equipment. He checked one inflation on the Wilson farm and found it was dirty so he checked approximately six more and they were in the same condition.
• He was concerned with the milkhouse as it was untidy, there were jugs placed around the hose port area, manure was splattered on the walls and containers and there was dirt built up between the bulk tank and the wall.
• The space between the wall and the bulk tank would not be easy to clean unless it was cleaned regularly. The outside of the tank was dirty on that side.
• Of the 340 farms in his area, 12 were classified non-Grade A in 2001. Of those, 11 had been classified conditional Grade A at their last inspection and 4 of the 11 had repeat problems identified.
• Mr. Wilosn was treated the same way as other producers in the same situation.

Mr. Gould indicated there were 200 non-Grade A farms in Ontario in 2001.

Summations

Mr. Wilson told the Tribunal that he did not believe the Director had the right to penalize him if the DFO fieldperson could not prove the farm was not Grade A. He said the Director had no evidence but just assumed there was something wrong on the basis of Mr. Brownridge's inspection report. He said the problems on his farm in 1999 were caused by equipment failure. Mr. Wilson said the farm was clean in 2001 and it should have received the Grade A classification. He told the Tribunal he had never before received a penalty in 14 years of farming and that he had received a quality award in all but one of those 14 years. He asked the Tribunal to rule in his favour and order the repayment of the penalty of $840.92.

Mr. Gould said the appellant's premises and equipment did not meet Grade A standards on April 12, 2002 and that it was appropriate that he be penalized as the conditional Grade A classification he received in 1999 allowed him a grace period to resolve problems. He told the Tribunal the parties agreed that dirt had accumulated between the bulk tank and the milkhouse, that the milk equipment was inking and that there was some manure on the milking equipment. He said that the parties disagreed as to what is required to meet the Grade A standard. Mr. Gould said consumers expect milk to be produced in clean conditions and that all milk producers and their customers were affected if it was not. He asked the Tribunal to uphold his decision.

The Findings

The Tribunal acknowledges that there is considerable room for individual judgement in determining what is meant by terms such as "neat", "clean" and "good condition". It is clear that the appellant and the fieldperson had different views as to what these terms mean in the context of a dairy farm. The Tribunal is convinced that both Mr. Wilson and Mr. Brownridge are credible witnesses. It is left to the Tribunal to determine whether the regulatory standards were met, based on the evidence brought before it.

The Tribunal finds there was sufficient evidence presented by Mr. Wilson and Mr. Brownridge to persuade it that some of the milking equipment on the appellant's farm was not in good repair on April 12, 2001, and that the equipment was not thoroughly cleaned on the same date. The Tribunal was persuaded by the testimony related to 'inking' and the need for replacement of the jetter cups, and by the evidence that there was a thin line of manure residue on the milking equipment. The Tribunal also finds that the milkhouse was not neat and clean and that the bulk tank was dirty on April 12, 2001.

Based on the photographs submitted, the Tribunal finds that the driveway was in a good state of repair. While the washing procedure charts were not posted, the Tribunal finds that the appellant did use his best efforts to meet this requirement by posting handwritten instructions when he could not obtain washing procedure charts from his equipment dealer.

The evidence was less clear on the other alleged regulatory infractions, but it is not necessary for the Tribunal to rule on each allegation as the appellant's premises and equipment did not meet the Grade A standard with respect to the condition of the milking equipment and the milkhouse.

The Tribunal notes that the appellant has consistently produced good quality milk using the equipment and premises in question. However, there are minimum facility standards which apply to all producers in Ontario and it is the view of this panel of the Tribunal that the appellant did not meet them.

The Tribunal urges the appellant to take advantage of the Director's offer to have an inspection conducted for information purposes only.

Decision and Reasons

After careful consideration of the evidence filed and the submissions made the Tribunal has decided to deny the appeal.

The reason for this decision is that the Tribunal finds the appellant was in contravention of Subsection 12(4) and Subsection 13(2) of Regulation 761, under the Milk Act.

Dated at Ethel, Ontario the 4th day of July, 2002.