Zehr v. Director of Regulatory Compliance, Ontario Raw Milk Quality Program, 2003 ONAFRAAT 20

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

Zehr v Director of Regulatory Compliance, ORMQP [Revised] 2003 ONAFRAAT 20

STATUTE: Ministry of Agriculture, Food and Rural Affairs Act

HEARING: April 4, 2002

DATE OF DECISION: July 15, 2003

2003-20

NEUTRAL CITATION: 2003 ONAFRAAT 20

Zehr v Director of Regulatory Compliance, Ontario Raw Milk Quality Program [Revised]

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 Ray Zehr, Shakespeare, Ontario from the decision of the Director of Regulatory Compliance, Ontario Raw Milk Quality Program, to impose penalties for abnormal freezing point of milk in the months of January, 2003 to March, 2003 (inclusive).

Before: Murray Cardiff, Chair; Denis O'Connor, Vice Chair; Tim Sutton, Member.

Appearances: Ray Zehr, appellant. Peter Gould, Director of Regulatory Compliance; respondent. Eric McLeod Field Service Representative; witness Merv Reynolds, Manager University of Guelph Laboratory Services; witness

DECISION OF THE TRIBUNAL

This appeal was heard in Guelph, Ontario on Friday April 4, 2002. Mr. Zehr appealed to the Tribunal from decisions of the Director of Regulatory Compliance to impose penalties for abnormal freezing points of milk in the months of January, February 2003.

The Background

A sample of milk taken at the Zehr farm on February 2, 2003 was tested and found to have a freezing point of -0.509 Hortvet. The Hortvet scale is a method used to measure freezing point in milk. The penalty range is a freezing point temperature greater than -0.525 Hortvet. Samples with a freezing point greater than -0.524 Hortevt, is an indication that the milk contains added or excess water. Mr. Peter Gould, Director of Regulatory Compliance (the Director), imposed a penalty in the amount of $8 per hectolitre as this was the fourth freezing point penalty within a 12 month period. Mr. Ray Zehr and Mrs. Laurel Zehr were shut-off from the milk market.

The shut off, which was effective February 10, 2003, was the third time the Zehr farm had been shut off from the milk market in a rolling 24-month period. Mr. and Mrs. Zehr had previously been shut-off in May 2001 and September 2001. In accordance with Regulation 761, under the Milk Act, the Director ordered that Mr. and Mrs. Zehr would not be reinstated to market milk under any circumstances, in a letter dated February 13, 2003.

Statutory Context

Section 2.1 (3) of the Milk Act states:

Responsibility of Director

2.1(3)A Director appointed under subsection (1) or (2) shall carry out the administration and enforcement of those provisions of this Act and the regulations with respect to the quality of milk, milk products and fluid milk products within Ontario for which the person who appointed the Director is responsible for the administration and enforcement. 1997, c. 44, s. 2.

Sections 53(1) and 55 (9), (a) and (b) and 55(9)of Ontario Regulation 761 to the Milk Act state:

53. (1) Where a producer is aggrieved by the result of any test made under section 52, 54 or 57 or by the finding of a fieldperson under subsection 55 (5), the producer may so notify the Director and the Director shall, without a hearing, consider the matter and decide whether the result or finding should be confirmed, varied or rescinded. R.R.O. 1990, Reg. 761, s. 53 (1).

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. R.R.O. 1990, Reg. 761, s. 55 (9); O. Reg. 348/95, s. 10 (4).

The Issues

The issues before the Tribunal are:

1. Did the freezing point test accurately indicate the quality of the milk being produced at the Zehr farm in January and February 2003?

2. Should the freezing point penalties incurred in January 2003 and February 2003 be upheld?

The Evidence

Ray Zehr

Mr. Zehr told the Tribunal that the freezing point penalty incurred in February 2003 would not have occurred if the Dairy Farmers of Ontario (DFO) had given him better information regarding the freezing point penalty incurred in January 2003. He said he was not aware of the January 2003 freezing point penalty until February 2003. Mr. Zehr said he had called the DFO Interactive Voice Response System (IVR) in January 2003 and it had stated that there was a freezing point screening. Mr. Zehr said that he interpreted the word "screen" as "clean" and he therefore believed that his milk had been tested and found to be of adequate quality to be marketed.

Mr. Zehr told the Tribunal that extra water in his milk caused the first freezing point penalty. He said:

• He milks 40 -50 cows in an older tie stall barn. The cows are fed a balanced ration and milk production is on average between 15 - 20 kg per cow per day. Milk production on the farm had declined.

• His practice is to flush the milk line at the end of milking with compressed air, in order to have all the residual milk in the line enter the bulk tank before washing the line.

• His father, who is 78 years old and becoming forgetful, had flushed the milk line with water which was to be diverted in such a manner that the milk portion from the line would enter the bulk tank and the water portion would flow into a pail to be fed to calves. Sometimes the swing pipe leading from the milk line into the bulk tank was not transferred to the pail before water was introduced to the bulk tank. This procedure is known as 'chasing the milk'.

• He told his father to discontinue the practice of flushing with water but his father may have forgotten.

• He understands he is responsible for the quality of milk produced on his farm.

• He received three freezing point penalties in a row beginning in December 2002 and ending February 2003.

• The laboratory that tested the milk notified producers of penalty range test results with a notice printed on pink paper. He noticed that a pink notice had arrived in January, but he was too busy to open it.

• Milk quality results are also printed on producer’s milk statements but these are not available until the following month after each shipment is made.

• In early February 2003, a freezing point penalty was incurred which prompted him to open the DFO Internet website. That was when he first read the details of the January freezing point penalty.

• When he had been shut-off on previous occasions it had been for Somatic Cell Count (SCC) infractions. In those instances, the pink notification letter arrived approximately two weeks after the information was available on the IVR and the Internet.

• The telephone messages on the IVR clearly indicated to him when test results were in the penalty range for SCC and bacteria levels.

• He did not regularly check the DFO Internet site for milk quality results because his computer is slow.

• Equipment malfunction can cause milk quality infractions.

• His DFO field representative had inspected the Zehr farm and made some recommendations for maintaining the milk pipeline. He understands that it should be inspected by a technician bi-annually. The line was inspected in the last three years. The pipeline sags in some sections but this is not detectable with the naked eye.

• Penalties for milk quality infractions have cost him approximately $3000 in the last year.

Peter Gould

Mr. Peter Gould, Director of Regulatory Compliance, explained to the Tribunal that milk has a lower freezing point than water. He said that as the ratio of liquid to solids in milk increases, the temperature at which the milk freezes also increases.

Mr. Gould explained the process for sampling milk; screening milk samples; testing milk samples; notifying the producer of test results and imposing penalties upon producers. He said that:

• Bulk Tank Milk Graders are trained to sample milk by the DFO and by individual transport companies. DFO provides refresher training courses and monitors their skills by accompanying them on their rounds once every five years.

• Milk samples are stored at a temperature range of 1° to 4° Celsius. Fifteen samples of milk are taken each month from each producer and five are tested for quality. Samples that are tested must be no more than 48 hours old.

• The milk samples are tested at the University of Guelph Laboratory, a facility that is accredited by the National Laboratory Accreditation Program. The laboratory is independently audited.

• When an initial screening of a milk sample indicates a freezing point greater than -0.543 Hortvet, the sample is tested further on a Cryoscope machine. The Cryoscope test result is the official freezing point indicator.

• When test results confirm a penalty range violation the laboratory sends the producer a notice indicating the test result. The notice is printed on pink paper.

• The laboratory also informs the DFO of the penalty range test result. The DFO then programs a message on the IVR system. The IVR system telephones the producer with a message to call the DFO information line or access the Internet for test results. The IVR telephones producers at meal times, repeatedly, up to nine times. After the ninth attempt to contact the producer has been made, failing any communication has been established, the appropriate field staff personnel are advised.

• Penalties for quality infractions are applied to milk for which the official test results are in the penalty range specified in Regulation 761, under the Milk Act. There are four penalty levels for each type of quality infraction.

Mr. Gould told the Tribunal that improper slope of the milk pipeline, poor cow nutrition and adding water to the bulk tank are all possible contributing causes of freezing point abnormalities.

Mr. Gould told the Tribunal that he had warned Mr. and Mrs. Zehr in November 2001 that they would be permanently shut off from the milk market if they were shut-off a third time in a rolling 24 month period. He said their February 2002 freezing point penalty was their fourth freezing point violation in under 12 months and the penalty was to shut them off from the market. He said they had previously been shut off four times since 1998 as a result of SCC penalties and high bacteria count infractions.

Mr. Gould said that Mr. and Mrs. Zehr had attended two hearings related to milk quality. He said that the purpose of the hearings was to ensure that Mr. and Mrs. Zehr understood the nature and importance of the milk quality issues on their farm and to convey the DFO's recommendations for production of better quality milk. He said they had also been sent 28 letters regarding milk quality issues in the past 10 months.

Mr. Gould testified that the DFO IVR telephone call when answered, or recorded on an answering machine, indicated to the producer that he/she should telephone the DFO toll free information line, or access the DFO website for information regarding milk quality. Mr. Gould submitted into evidence a recording of the IVR milk quality tests from the Zehr farm from January 2003.

Mr. Gould also told the Tribunal that:

• The milk sample taken on the Zehr farm on February 2, 2003 was estimated to contain 5.74% water. This amount of added or excess water also impacts the SCC level in the milk.

• When poor quality milk is co-mingled with better quality milk on a transport truck, the poor quality milk will detrimentally affect the better quality milk.

• It is his duty to enforce Ontario Regulation 761, under the Milk Act.

• He does not have the authority to license or revoke the license of a producer, or to issue or cancel quota. This is the responsibility of the Board of Directors of the DFO.

Merv Reynolds

Mr. Merv Reynolds, Manager Laboratory Services, University of Guelph, told the Tribunal that milk samples undergo a preliminary screening procedure which tests the conductivity of the milk. He said the results were used to decide whether or not the sample should be tested to confirm the freezing point. Mr. Reynolds testified that the Cryoscope test is the definitive indicator of freezing point. He said that producers were sent a notice, printed on pink paper, after the Cryoscope test has confirmed an abnormal freezing point.

Eric McLeod

Mr. Eric McLeod, Field Services Representative for the DFO told the Tribunal that he has provided field services to Mr. and Mrs. Zehr for the past five years, though he has known Mr. Zehr for 25 years. He said that he often provided management advice by telephone to Mr. Zehr. Mr. McLeod stated that most of his telephone conversations with Mr. Zehr concerned bacteria or SCC issues. He said that he attended at the farm in January 2003 to discuss Mr. Zehr's concerns about water in the milk and the practice that Mr. Zehr's father had, of chasing milk in the line with water.

Summation

Mr. Zehr told the Tribunal that the recorded information on the IVR misled him with regard to the results of his milk quality tests. He said that the word "screen" sounded to him like "clean" so he was unconcerned with the test results and did not respond to the message by telephoning the DFO information line or accessing the Internet. Mr. Zehr told the Tribunal that dairy farmers are very busy and do not have time to sort through poor information. He argued that the dairy industry involves many farmers and large monetary investments and that it was unacceptable for information regarding milk quality to be unclear. He said that no producer would deliberately put water into his/her milk, as the penalty for freezing point violations was prohibitive. Mr. Zehr also disputed Mr. McLeod’s testimony. He said Mr. McLeod did not visit his farm between December 1, 2002 and January 31, 2003. Mr. Zehr asked the Tribunal to order that he be reinstated.

Mr. Gould said that Mr. Zehr's case was unusual in that Mr. Zehr had acknowledged the source of water in the milk though he did little to correct the error. He said that Mr. Zehr also acknowledged that he knew that a pink notice indicated a penalty level test result, but he still did not open the notice he received in January 2003. Mr. Gould told the Tribunal that Mr. Zehr received 28 pink notices in a 10-month period, indicating that there was a host of milk quality issues at the farm. Mr. Gould told the Tribunal that the numerous penalties and shut offs at the farm indicated that Mr. and Mrs. Zehr had little concern or regard for their fellow producers, the DFO or the consumer. He said that Mr. Zehr admitted that production was low and it became difficult for him to judge how much water was added to the milk. Mr. Gould said that the onus was on Mr. and Mrs. Zehr to respond to information regarding milk quality and that if he had any doubts about the IVR recorded information it was his responsibility to confirm what he heard by accessing the internet or telephoning the DFO information line. Mr. Gould said that Mr. Zehr told the Tribunal that the slope in the milk line was not adequate. He argued that it was incongruous that Mr. Zehr would not wait for his slow computer to access the internet, but that he had paid over $6000 in milk quality penalties over two years.

The Findings

Mr. Zehr was forthcoming in acknowledging that water was introduced to the bulk tank through the practices of his father but that the responsibility for the quality of milk produced on his farm rested solely with himself. Mr. Zehr did not dispute the results of the freezing point tests from milk sampled at his farm in December 2002, January 2003 and Febraury 2003. Nor did he take issue with the manner in which the samples were taken or transported to the laboratory. The Tribunal finds that Mr. Zehr's testimony was consistent with the respondent’s description of DFO policies and procedures with regard to testing milk, notifying producers of test results and imposing penalties, including the shut-off penalty.

It is clear to the Tribunal that Mr. Zehr was familiar with the DFO policies and procedures as well as the requisite remedial action that was necessary to improve conditions to avoid quality infractions and/or reinstate the marketability of his milk. The Tribunal finds that the onus is on the producer to address all milk quality issues in a thorough and timely manner.

In this case, ample information was provided to the producer regarding milk quality by way of IVR messaging, toll free telephone advice and the internet. The quality record for milk produced in the month previous to its issue, was also available on the Milk Statement. There is no evidence to indicate that Mr. Zehr was not informed in a timely manner and through various media of the status of the quality of milk produced on their farm.

The Tribunal heard the IVR recorded message pertaining to the screening and test results for the January and February, 2003 milk samples. The Tribunal cannot agree with Mr. Zehr that the message was confusing. The Tribunal notes also that the figures from the test results were stated twice in the IVR recording.

The Tribunal finds no evidence to indicate that the policies and procedures of the DFO for the quality testing of milk were prejudicially applied to Mr. and Mrs. Zehr.

The freezing point penalty incurred by Mr. Zehr on February 10, 2003 was not an isolated penalty from which Mr. Zehr sought relief. In conjunction with numerous other quality violations for which the DFO imposed a penalty or shut off, in the of previous rolling 24 month period, the February 10, 2003 freezing point penalty is also the threshold where the Director is required by regulation, to permanently suspend the marketing of milk.

In a letter dated February 13, 2003, the Director advised Mr. and Mrs. Zehr that they were permanently shut-off from the milk market. It also advised that the deadline for selling their quota was the May 2003 exchange

Decision and Reasons

After careful consideration of the evidence filed and the submissions made the Tribunal orders:

1. The decisions of the Director to impose freezing point penalties in the months of January and February, 2003 are upheld and the appeal of Ray Zehr is denied.

2. The Tribunal orders the Director of Regulatory Compliance to immediately notify the DFO that the Tribunal upheld his decisions to impose freezing point penalties in January to March 2003 and to permanently shut-off from market, the milk produced by Mr. and Mrs. Zehr.

3. The Tribunal orders that the final deadline for the sale of the Zehr's quota be extended to include the exchanges in the months of May, June, and July 2003.

The reason for this decision is that the Tribunal finds that the information provided to Mr. Zehr regarding milk quality penalties was clear; Mr. Zehr was not treated prejudicially and the evidence was clear that the milk shipped from the Zehr farm in January 2003 and February 2003 was in the penalty range for freezing point.

Dated at Ethel Ontario, this 15th day of April 2003.

REVISED July 15, 2003