Bruggeman v. Director of Regulatory Compliance, Ontario Raw Milk Quality Program, 2004 ONAFRAAT 11

Agriculture, Food and Rural Affairs Appeal Tribunal

1 Stone Road West Guelph, Ontario N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: Tribunal@OMAF.gov.on.ca

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1, chemin Stone Ouest Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Email: Tribunal@OMAF.gov.on.ca

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

Bruggeman v Director of Regulatory Compliance, ORMQP 2004 ONAFRAAT 11

STATUTE: Ministry of Agriculture, Food and Rural Affairs Act

HEARING: March 9, 2004

DATE OF DECISION: March 18, 2004

2004-11

NEUTRAL CITATION: 2004 ONAFRAAT 11

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

IN THE MATTER OF THE MILK 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 Frank A. Bruggeman Woodstock, Ontario from a 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 September 2003.

Before: Murray Cardiff, Chair; Elwood Quaile, Member; George Klosler, Member

Appearances: Frank Bruggeman, appellant Peter Gould, respondent Jaring Hettinga, witness for the appellant Tim Emerson, witness for the appellant David Faragher, witness for the appellant John McKay, witness for the appellant George MacNaughton, witness for the respondent Phil Alyea, witness for the respondent Ross Crawford, witness for the respondent

DECISION OF THE TRIBUNAL

This appeal was heard in Guelph, Ontario on March 9, 2004. Mr. Frank Bruggeman, a milk producer, appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (Tribunal) from a decision of Mr. Peter Gould, Director of Regulatory Compliance, Ontario Raw Milk Quality Program (Director) to uphold a non Grade A penalty assessed to him for the month of September 2003. The term “non Grade A penalty” describes the penalty assessed to a milk producer found to be in non-compliance with one or more of Sections 3 to 34, Regulation 761 under the Milk Act.

Statutory Context

The appeal comes to the Tribunal by way of Subsection 16(1) of the Ministry of Agriculture, Food and Rural Affairs Act, which states:

Appeal to Tribunal

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. R.S.O. 1990, c. M.16, s. 16 (1).

Subsection 4 allows for the Tribunal to refuse to hear appeals that are trivial, frivolous, vexatious, not made in good faith or made by persons who do not have a sufficient interest in the matter.

The Milk Act provides the Director with the mandate to enforce the raw milk quality provisions of Regulation 761, under the Milk Act. Subsection 55(5) of Regulation 761 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).

Subsection 55(10) of the same regulation states:

(10) Where a producer incurs four penalties under subsection (5) 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 establishes that the milk produced is produced in compliance with sections 3 to 34. R.R.O. 1990, Reg. 761, s. 55 (10); O. Reg. 348/95, s. 10 (5); O. Reg. 634/00, s. 4 (4).

The Issues

The issues before the Tribunal were:

1. Did the Bruggeman dairy farm comply with sections 3 to 34 of Regulation 761 on September 3, 2003?

2. If the Bruggeman dairy farm did not comply with sections 3 to 34 of Regulation 761 on September 3, 2003, was it in compliance with these sections on October 24, 2003?

The Evidence

Appellant’s Case

Mr. Frank Bruggeman told the Tribunal he had been raised on a dairy farm and had purchased his own dairy farm in 1985. He said he followed the rules and produced quality milk. He submitted that the rules must be interpreted in the context of animal behavior.

Mr. Bruggeman testified that he had switched to a robotic milking system in September 2003 and that fieldpersons employed by the Dairy Farmers of Ontraio (DFO) had inspected his farm on September 3, 2003 while it was under renovation. He explained that he had two milking systems operating at the time, as he could not remove his old system until the robotic system was operational. He said he was under stress as he had several technicians on the farm that day and he asked the fieldpersons to inspect his premises another day but they elected to stay.

Mr. Bruggeman acknowledged that there were some structural problems on his farm on September 3, 2003 related to the renovation. He said these were all corrected by October 24, 2003, the next date on which his farm was inspected.

Mr. Bruggeman said he did not agree with the fieldpersons on ‘housekeeping’ issues. Also, he pointed to a newspaper article where Mr. George MacNaughton, DFO, was quoted as saying: “If it’s a housekeeping issue, we won’t penalize. But if it’s a structural issue we’ll apply a penalty.” He said that Mr. MacNaughton had told him that it was acceptable if up to 10% of the herd were ‘alleyway cows’.

Mr. Bruggeman told the Tribunal the dispute was about cleanliness. He said he goes to an extreme to keep contact points clean but that there would always be some ‘alleyway cows’ that will not use the stalls that are provided. He said cows are not naturally clean animals and on hot days will try to find a cool, damp place to lie. He estimated it was 30 degrees Celsius on September 3, 2003.

Mr. Bruggeman said he uses hydrated lime in his stalls for disease control and that does stain the cattle. He said he had tried to use shavings, on the recommendation of the fieldpersons, but found his herd somatic cell count (SCC) increased when shavings were used. He provided statements showing that his herd SCC counts for the periods in question were fine.

Mr. Bruggeman explained that he had been very upset when he received the non Grade A penalty on October 24, 2003 (for September 2003 and October 2003). He said he had called the Ontario Society for the Prevention of Cruelty to Animals (OSPCA) to have its inspector assess his farm. He said Mr. Ross Crawford, DFO fieldperson and Dr. Jocelyn Jansen, a veterinarian with the Ontario Ministry of Agriculture and Food attended his farm with Mr. Jamie Frye, OSPCA on October 31, 2003. Mr. Bruggeman said that he had followed the recommendations of Dr. Jansen that he received after that meeting and that Mr. Frye had revoked an OSPCA order.

Mr. Bruggeman also pointed out:

• Dr. Jansen had said he should try to train the ‘alleyway cows’ to use the stalls, and if they could not be trained they should be culled as soon as feasibly possible. He explained he had attempted training, one cow had improved and another had been culled due to age.

• It was not feasible to cull healthy cows with high milk production. He was under-producing in September 2003 and October 2003 as he had recently purchased quota and was building up his herd.

• Ms Leslie Ballantine, Ontario Farm Animal Council, had written that there can be a wide gulf between what farmers and outside agencies or individuals consider to be appropriate animal care.

• There had been past disputes between him and the DFO about a milk spill, a licence transfer and a blueprint; he believed this led to there being two DFO inspectors on his farm when everyone else only got one.

• It was not possible to keep cows absolutely clean at all times.

Mr. Bruggeman said his heifer barn was a loafing-type stable and Section 11, Regulation 761 provided an exception to the cleanliness requirements for this type of structure. He preferred sand bedding to straw in the heifer barn as it provided better traction. A heifer had been injured and was put down after he switched to straw bedding. It was better to keep bedding to a minimum in the summer as the manure will run off. His heifers did have manure balls but were cleaner than some he had purchased.

Mr. Bruggeman also said he had viewed one barn that was similar to his and spoken to Mr. Renkema, a fellow producer with a similar barn, but both those barns had a dirt floors; he was required to have a concrete floor by a municipal by-law.

In response to questions, Mr. Bruggeman indicated:

• With his robotic milker, every teat enters a rotary brush system with a chlorine and water sanitizing rinse. Robots could not exercise judgement but he had also seen problems with the judgement of tired people.

• On September 3, 2003 his premises were not literally Grade A; that was impossible due to the changeover between milking systems. Milk quality was maintained.

• He understood that he was required to meet all the conditions in the September 3, 2003 report to avoid a non Grade A penalty in September and October; he had met these conditions.

• His cattle were clean enough to produce milk with low SCCs.

• No farm is television-perfect at all times.

• The cows’ udders were clean.

• He did have 5 or 6 ‘alleyway cows’ that were not clean. Most of his cattle lay in the stalls. He had more stalls than he had cows.

• He had been trying to scrape his barns twice a week before receiving Dr. Jansen’s recommendations; his new target was once every other day.

• Photographs submitted into evidence by both parties showed his cattle were reasonably clean. The exceptions were a few ‘alleyway cows’.

• His milking cows had rubber and nylon cow mattresses in the stalls.

• He had tried to build up a manure pack in his heifer barn but it was not as good as sand.

• His robot could milk cows up to four times per day, depending on each cow’s production. Cows were trained to go to the robot on their own but he occasionally had to chase one in if she was dribbling milk.

• He agreed manure was a good medium for bacteria growth.

Mr. Tim Emerson, Dairy Specialist – Nutrition, Mr. Jaring Hettinga, former dairy farmer and dairy equipment dealer, and Mr. David Faragher, hoof trimmer, all testified that there were several dairy farms which were worse than the Bruggeman farm. Mr. Emerson testified that he was on the farm on September 3, 2003. He said Mr. Bruggeman’s cattle were average, his stalls were an acceptable design and that there were 3 or 4 ‘alleyway cows’. He said 60% of the herds he worked with were in the United States, and acknowledged these farms had generally worse conditions than Ontario dairy farms.

Mr. Faragher rated the cleanliness of Mr. Bruggeman’s cattle as B minus on a scale of A to D. Mr. Hettinga provided photographs taken on the Bruggeman farm the day before the hearing.

Mr. Hettinga also testified that:

• Mr. Bruggeman had low SCC results and these had improved steadily for 15 years.

• The cow mattress system, coupled with lime was more effective at disease control than organic bedding materials such as straw and sawdust.

• Mr. Bruggeman had an excellent ventilation system.

• The robotic milker identified and disposed of poor quality milk.

• Mr. Crawford may be biased against Mr. Bruggeman due to past disputes being resolved in Mr. Bruggeman’s favour. He had not witnessed any confrontations between the two men.

• Mr. Bruggeman would never harm his animals.

• Cows milked 3 or 4 times per day should not leak much milk; some cows leak more easily than others.

Mr. John McKay testified that he occasionally assists Mr. Bruggeman on his dairy farm and that he and another gentleman were in charge of the farm on November 27, 2003 when DFO fieldpersons, Ross Crawford and Phil Alyea inspected it. He said it was raining heavily that day and they had been unable to scrape manure in the heifer barn. He said the DFO fieldpersons required him to put his hand in the wettest part of the bedded area to show that there was manure there, and so that a photograph could be taken. He said this resulted in his colleague having an anxiety attack.

In response to questions, Mr. McKay indicated:

• Mr. Bruggeman left written instructions for feeding and milking.

• He agreed lumber should be used to keep bedding in the high area of the heifer barn; straw bedding was discussed.

• Mr. Bruggeman was away from the farm from Thursday to Sunday that weekend. He and Mr. Bruggeman bedded the heifers with straw on his return.

• Heifers were cleaner on sand bedding than they were after they had been on straw bedding for some time.

• Bedding the heifers led to the reinstatement of the farm to Grade A status on December 3, 2003.

Director’s Case

Mr. George MacNaughton told the Tribunal he was the DFO Manager of Farm Policies and Programs, and also the Manager of the Raw Milk Quality program. He explained DFO administers the Raw Milk Quality program for the Ontario government, under an administrative agreement.

Mr. MacNaughton presented the following statistics:

• 75% of dairy farms are grade A on every inspection.

• 21% are conditional Grade A on first inspection; approximately 80% of these avoid a penalty by coming into compliance.

• The balance of farms are non Grade A on initial inspection.

He also said non Grade A penalty farms are found across the province, not concentrated in one area. DFO fieldpersons worked together to achieve consistency in assessing farms. Also, two DFO fieldpersons will be sent out together when there has been past difficulty on a particular farm. He said he directed that two fieldpersons attend the Bruggeman farm. Mr. MacNaughton said all farms were to be inspected every other year; more frequently if problems are identified.

Mr. MacNaughton quoted the following sections of Regulation 761:

5. (1) No producer shall sell or offer for sale milk or cream that,

(b) is not clean;

8. (1) Animals shall be clean. R.R.O. 1990, Reg. 761, s. 8 (1).

(2) When animals are in stables, the hair on udders, flanks and tails above the switch of the animals shall be kept short. R.R.O. 1990, Reg. 761, s. 8 (2).

(3) The switch of an animal's tail shall clear the floor when the animal is standing. R.R.O. 1990, Reg. 761, s. 8 (3).

(4) Immediately before the time of each milking of an animal, the udder shall be cleaned. R.R.O. 1990, Reg. 761, s. 8 (4).

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

(a) clean and in a sanitary condition;

10. No producer of milk shall permit animals other than of the bovine or caprine genus in any part of a stable used for the stabling or milking of animals. R.R.O. 1990, Reg. 761, s. 10.

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).

(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).

Mr. MacNaughton said the goal was to keep animals clean, dry and comfortable. He said it was particularly important to keep udder surfaces clean to minimize the contamination of teats. He stated stalls, walls and equipment must also be clean.

Mr. MacNaughton explained there were currently no regulations specific to robotic milking systems but that voluntary guidelines were developed as there were problems with early robotic systems. He said Mr. Bruggeman’s robotic system was installed after those guidelines were in place. Mr. MacNaughton said robots are good at cleaning dirty teats, but cannot be programmed to clean long enough for really dirty teats. He said the basic premise is the cow must be reasonably clean before entering the robot system.

Mr. MacNaughton indicated it was important to keep heifers clean so they would not desire a dirty environment as cows. He agreed Mr. Bruggeman’s heifer barn was a loafing-type barn. He said cow and heifer cleanliness were not minor issues, as they are high risk factors. He said milk from the Bruggeman farm was approaching the penalty level for SCC in the time period in question. He said Mr. Bruggeman could have avoided non Grade A penalties had he made improvements in a more timely manner.

In response to questions, Mr. MacNaughton said:

• Regulation 761 requires that loafing-style barns be kept clean.

• The regulation did not require straw bedding; other bedding could be used but sand is not part of a bedding pack. The key is that it be kept clean.

• Regulation 761 was a Government of Ontario regulation. Employees of the government could not override the regulation.

• He interpreted Dr. Jansen’s letter to mean the ‘alleyway cows’ should be trained to use stalls or removed from the herd.

• It is up to the producer to keep animals clean; most have one or two who are dirty. He believed it was reasonable that 98% be clean.

• A copy of an inspection report is normally left on a farm the day of the inspection.

• Robotic milking systems were much improved since the voluntary guidelines were adopted; milk quality was still not as good as that obtained with mainstream systems.

Mr. Ross Crawford said he was a Field Service Representative, had been with DFO since 1991 and had served Oxford County for all that time. He said he took most of the photographs in the Director’s evidence binder, and that his colleague Phil Alyea took the rest of these photographs.

Mr. Crawford said he had given the Bruggeman farm a conditional Grade A in 1999 and improvements were made to bring it to Grade A status at that time. He said he inspected the farm on September 3, 2003 and would have found it to be non Grade A, but, because the renovation for the robot was underway, gave it a conditional Grade A instead. He said he then allowed seven weeks before he re-inspected the farm on October 24, 2003, to allow Mr. Bruggeman time to comply with the regulation. He said there were six regulatory requirements on a list of eight items requiring improvement on his September 3, 2003 report. In his October 24, 2003 report, he identified two items that still required attention – cleanliness of animals and the heifer barn.

Mr. Crawford said the cattle were not clean on September 3, 2003 and there was no sand bedding in the heifer barn. He said the situation had not improved by October 24, 2003 and this triggered the non Grade A penalty. He said he attended the farm when Mr. Bruggeman invited the OSPCA to visit on October 31, 2003 but that was not an official visit. He agreed with Dr. Jansen’s estimate that 90% of the cows were dirty. He said they could not all be ‘alleyway cows’. He clarified that not all 90% were as dirty as ‘alleyway cows’. He pointed out most of the heifers were standing in the photographs and said he did not see a dry place for them to lie down.

Mr. Crawford said he inspected the farm on November 27, 2003 and discussed bedding requirements with Mr. McKay. He said sand had been used to bed the heifer barn but that it was still dirty. He said Mr. McKay put his hand in the bedding to show it was dry, but it came up wet. Mr. Crawford said a good test of cleanliness is if a person would be comfortable putting a knee down on the bedding it was clean enough. Mr. Crawford said he returned to the farm on December 3, 2003 and it met the Grade A standard on that day.

Mr. Phil Alyea testified that he had been a DFO Field Service Representative since August 1998. He said he accompanied Mr. Crawford when he inspected the Bruggeman farm in 2003 and concurred with Mr. Crawford’s diagnosis. Mr. Alyea said they did not tell Mr. Bruggeman that he had to remove the ‘alleyway cows’, but suggested it as an option, as well as stall redesign and training cows.

Mr. Alyea said Mr. McKay told him that the heifer barn was scraped every three days and that manure was not removed from the sand bedding daily. Mr. Alyea said the barn needed to be scraped as often as necessary to keep it clean. He suggested that if sand bedding at the front and straw bedding at the back worked in the barn then it would still need to be kept clean. Mr. Alyea said he did not perform the ‘drop to the knee’ test in the heifer barn.

Mr. Alyea agreed that cattle will try to find a wet spot on warm days but said it was the producer’s responsibility to ensure there were no wet spots for them to find.

Summations

Mr. Bruggeman said he agreed there must be standards and regulations but submitted that the regulations must be reasonably applied. He said that dairy animals’ housekeeping was not very good, and that while ideally producers were going to have clean animals, the witnesses testified there are very few farms where every cow is absolutely clean. He told the Tribunal he met the structural requirements for Grade A but could not control animal behavior. He said he agreed that ‘alleyway cows’ should be culled, but not while they were healthy and at their peak production. He pointed out that his milk was of excellent quality, despite the ‘alleyway cows’ and the robotic milker.

Mr. Bruggeman reminded the Tribunal that the regulation does not specify that straw must be used as bedding and said that in his experience, sand was better as it prevented slippage injuries. He said the Ontario government regulation allowed for manure accumulation in loafing-type barns.

Mr. Gould said Mr. Bruggeman’s argument was that his cows were clean enough. Mr. Gould argued that the cows were exceedingly dirty and the heifers did not have a dry place to lie down. He said Mr. Bruggeman was ordered to comply with the regulations on September 3, 2003 and did not do so by October 24, 2003, and that he was aware that this would result in penalties. Mr. Gould said it was not just ‘alleyway cows’ that were dirty and said that farms in this condition in any part of the province would not be Grade A. He asked the Tribunal to uphold the penalties.

The Findings

The Tribunal notes that Mr. Bruggeman and the Director agreed that the Bruggeman farm did not meet the structural requirements set out in Regulation 761 on September 3, 2003, and was thus not up to ‘Grade A’ standard. It was clear to the Tribunal from the testimony of the witnesses present on the farm on September 3, 2003, and by photographs taken that day that the structural problems were the result of renovations. Much of the problem was related to the shut down of one type of milking system and the installation of a different milking system. Those problems were resolved by the re-inspection on October 24, 2003.

The key disputes between the parties were whether the animals on the farm were clean enough to meet the regulatory requirement, whether the heifer barn met the regulatory requirement and whether regulatory infractions of a ‘housekeeping’ nature warranted a penalty.

Regulation 761 under the Milk Act requires that all the requirements in Sections 3 to 34, inclusive, be met in order to avoid a penalty. Mr. Bruggeman argued that Mr. MacNaughton had indicated in a press interview that producers were not penalized for ‘housekeeping’ infractions. The Tribunal notes that Mr. MacNaughton does not have the authority to override Regulation 761; standards for dairy facilities, equipment and animals are set by the government, not the DFO. Further, the Tribunal finds that the requirements that Mr. Bruggeman had to meet to avoid a penalty were clearly laid out in the DFO Field Services Quality Report left with Mr. Bruggeman on September 3, 2003 and the follow up report left with Mr. Bruggeman on October 24, 2003. The Tribunal was not persuaded that there was any confusion as to which standards had to be met in order to meet the ‘Grade A’ status.

The Tribunal finds that the Bruggeman farm did not meet the animal cleanliness requirements of Section 8 of Regulation 761 on both September 3, 2003 and October 24, 2003. The Tribunal recognizes that a subjective judgement must be made to determine what ‘clean’ means in the context of a dairy farm. It is the Tribunal’s judgement that there were several animals that were not clean on the dates in question. The most compelling evidence were the photographs taken on those dates. These were supported by the testimony of Mr. Crawford and Mr. Alyea. In a letter she wrote after viewing the farm on October 31, 2003, Dr. Jansen indicated she had observed several dirty animals. The Tribunal did not give this evidence significant weight as Dr. Jansen was not available to testify and face cross-examination on her statement.

Mr. Bruggeman and his witnesses testified that his farm had cleaner cattle than some others with which they were familiar. That is not particularly relevant. The standard that must be met by all producers is set out in Regulation 761. Also the Tribunal notes that Mr. Faragher and Mr. Hettinga were not on the Bruggeman farm in the time period that the penalty was incurred.

With regard to the ‘alleyway cows’, the Tribunal appreciates that Mr. Bruggeman has taken steps to attempt to train these animals to lie in stalls where they will stay clean, with limited success. It is the producer’s responsibility to keep cattle clean; if these cows will not keep themselves clean then Mr. Bruggeman will have to take steps to ensure they are cleaned or cull them from the herd.

With regard to the heifer barn, the Tribunal interprets Section 11 of Regulation 761 to mean loafing-style barns may have an accumulation of manure, but it must be in a firm pack and dry on top so that animals can lie on it without getting dirty. The alleyway in the heifer barn must be kept scraped and dry. The Tribunal agrees with Mr. Bruggeman that he may use whatever bedding material he desires. Different bedding materials will require different management. Whatever bedding material is used, it must be sufficient to keep the heifers clean.

Photographic evidence was introduced to illustrate that the Bruggeman farm met Grade A requirements on December 3, 2003 and on March 8, 2004. The Tribunal appreciates that the problems first identified in September 2003 have been resolved. However, for the purposes of this decision, the photographs taken in September 2003 and October 2003 were relied upon, as they covered the period in which the penalty under appeal was incurred.

Decision and Reasons

After careful consideration of the evidence filed and the submissions made the Tribunal orders that the appeal by Mr. Frank Bruggeman is denied.

The reasons for this decision are:

1. The cows and heifers on the Bruggeman farm did not meet the ‘Grade A’ standard for cleanliness set out in Section 8, Regulation 761, under the Milk Act in September 2003 and October 2003.

2. The heifer barn did not meet the ‘Grade A’ standard for cleanliness set out in Section 11, Regulation 761, under the Milk Act in September 2003 and October 2003.

Dated at Guelph, Ontario the 18th day of March 2004.