Agriculture, Food and Rural Affairs Appeal Tribunal
1Stone Road West Guelph, Ontario
Tribunal d’appel de l’agriculture,
de l’alimentation
et des affaires rurales
N1G 4Y2
Tel: (519) 826-3433, Fax: (519) 826-4232
Email:Tribunal@OMAF.gov.on.ca
1, chemin Stone Ouest
Guelph (Ontario) N1G 4Y2
Tél.: (519) 826-3433, Téléc.: (519) 826-4232
Email:Tribunal@OMAF.gov.on.ca
AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL
APPEAL:
Ashmore Farms Ltd. v Director of Regulatory Compliance, Ontario Raw Milk Quality Program
Ashmore Farms Ltd. v Director of Regulatory Compliance, ORMQP 2004 ONAFRAAT 14
STATUTE:
Ministry of Agriculture, Food and Rural Affairs Act
HEARING:
April 14, 2004
DATE OF DECISION:
April 27, 2004
2004-14
NEUTRAL CITATION:
2004 ONAFRAAT 14
Ashmore Farms Ltd. 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 Ronald G. Ashmore, Ashmore Farms Ltd., Lindsay, Ontario from a decision of the Director of Regulatory Compliance, Ontario Raw Milk Quality Program by which he upheld a high bacteria test result on milk produced on his farm in October 2003.
Before:
Murray Cardiff, Chair; Denis O’Connor, Vice Chair; Rob Scouller, Member
Appearances:
Ronald Ashmore, appellant
Peter Gould, respondent
George MacNaughton, witness
Carolyn Geer, witness
Ian Gilmore, witness
Alphonse Poitras, witness
DECISION OF THE TRIBUNAL
This appeal was heard in Guelph, Ontario on April 14, 2004. Mr. Ashmore appealed from a decision of the Director of Regulatory Compliance, Ontario Raw Milk Quality Program (the Director) by which he upheld a bacteria test result on a sample of milk collected on the Ashmore Farm on October 15, 2003. The bacteria test result prevented Mr. Ashmore from receiving an annual quality award from the Dairy Farmers of Ontario.
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. Subsections 52(1) and 52(2) of Regulation 761 state:
- (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).
(2) The grades for milk, when tested for bacterial content, are,
(a) grade 1, for milk that contains less than 50,000 bacteria in a millilitre of the milk; and
(b) grade 2, for milk that contains 50,000 or more bacteria in a millilitre of the milk. R.R.O. 1990, Reg. 761, s. 52 (2); O. Reg. 392/99, s. 9.
Preliminary Matter
Mr. Ashmore objected to documentary evidence submitted by the Director in tabs 7-9 of his document brief. Mr. Ashmore submitted the evidence related to matters that had occurred years before and was not relevant to the appeal of the October 2003 bacteria test result. Mr. Gould submitted the evidence was relevant as it demonstrated a pattern of behavior, but said he would not be spending much time on this aspect of his case. The Tribunal allowed the documents to remain in evidence and reminded the parties that it assigns weight to the evidence before it.
The Issues
The issues before the Tribunal were:
Was milk shipped from the Ashmore Farm on October 15, 2003 grade 2 milk as a result of a high bacteria count?
If milk shipped from the Ashmore Farm on October 15, 2003 was grade 2 milk, are there any mitigating circumstances such that the test result should be set aside?
The Evidence
Ronald Ashmore, appellant
Mr. Ronald Ashmore told the Tribunal he was a dairy farmer who first purchased quota in 1989 and was currently the president of Ashmore Farms Ltd. He testified he had earned a number of diplomas, was working toward a Master of Business Administration in Agriculture, had international dairy experience, and had served on the executive of his local dairy committee.
Mr. Ashmore said he had demonstrated a long history of quality milk production as evidenced by several gold and general quality awards he had been awarded. He said that the October 2003 bacteria count of 10.1 million was a ludicrous number and out of keeping with his usual results. He testified that he did not deny that milk picked up from his farm in October 2003 had a high bacteria count but submitted that this was due to unauthorized adjustments made to his milking equipment by technicians servicing a time-temperature recording device (TTR).
Mr. Ashmore explained that a TTR was installed on his farm in March 2002 as part of a testing project established by the Dairy Farmers of Ontario (DFO). He said technicians from various companies associated with the device were on his farm working on it approximately once per month until November 2003 when it was removed. He said that sometime after the technicians were on the farm in September 2003 he and his staff noticed that an indicater dial on a washer timing device on a control panel that the technicians had opened was backwards and he subsequently discovered a two-way valve in his washing system had malfunctioned. He submitted a work order which outlined the problems with the two-way valve. Mr. Ashmore cited research done in the United States which indicated that faulty two-way valves could lead to high bacteria counts in milk.
Mr. Ashmore submitted a letter written by Mr. John deGroot, a refrigeration specialist, which he said showed that his milk cooling system was working and the temperature recorded on the TTR laptop was 4.75 degrees F warmer than the actual milk temperature. Mr. Ashmore said Mr. deGroot’s letter also explained that the compressor on the milk bulk tank takes longer to cool milk the last couple of degrees that is necessary.
Mr. Ashmore told the Tribunal he believed the high bacteria count test result led to his farm being classed as conditional grade A, rather than grade A, as it had been in the past. He said he was required to replace a PVC pipe, which had been in place for a number of years without previously affecting his grade A farm status.
Mr. Ashmore said his farm water, which was supplied by two drilled shallow wells, had tested zero for both total coliforms and e. coli in July 2003 and that purchased water came from the municipal supply of Lindsay and was chlorinated.
In response to questions, Mr. Ashmore added:
His farm was designated conditional grade A on November 27, 2003; then grade A on December 16, 2003.
He normally milks approximately 65 cows.
He had one full time employee and one part time employee.
Normally he and his full time employee milked in the morning and afternoon; he had every third weekend off and the part time employee assisted.
An employee usually turns on the agitator before milking, if there is milk already in the tank.
He had quite a few fresh cows in Fall 2003.
His yard was scraped regularly and his stable cleaned two times per day.
He and his farm equipment dealer had twice re-sloped his pipeline. The dealer did not think it was necessary to remove one 90-degree turn in the pipeline.
He understood the TTR technicians were allowed to come on his farm by the Milk Act because the DFO hired them.
He trusted his employees but double-checked his equipment himself.
When the timer dial is not installed properly the washer is thrown off and it is possible that would be the reason the wash cycle did not function properly.
His wash cycle starts with a warm water flush, then is followed by a hot water circulating wash and an acid rinse. If the timer is off the wash water could be dumped after one circuit, rather than continuously circulating for the prescribed time.
He noticed the timer dial was on backward in early October and called his equipment dealer immediately but the dealer did not repair it until late October. That was when the problem with the two way valve was discovered.
His bulk tank was installed in 1977.
He had never seen such a high bacteria count as the October 15, 2003 result from his farm and did not believe it could be accurate.
Mr. deGroot’s letter indicated that in his opinion bacteria spikes were not related to extended milk cooling times.
Over half the well water on farms in Ontario tested positive for total coliforms and e. coli.
His milk had tested positive for bacteria on October 25, 2003 as well as on October 15, 2003. There was no financial penalty assessed, as the test was below the penalty level in subsequent months.
He used Dairy Herd Inspection to test cows for somatic cell counts but only 1-2% of the herd was culled for mastitis.
The TTR used two sensors to monitor the temperature of milk in the bulk tank and the wash water. The TTR technicians frequently changed the location of the sensors to try to obtain more accurate results.
He rarely had frost on his bulk tank.
He did not require a chlorinated rinse in his wash system.
George MacNaughton, witness
Mr. George MacNaughton testified that he was the Manager of the Raw Milk Quality Program and reported to the Director, and that he also had another position with the DFO and had been with the organization for over 20 years.
Mr. MacNaughton told the Tribunal the DFO had been testing TTR systems since 1998 as it intended to use them to assure consumers that milk quality was good. He said 72 producers participated in the test program.
Mr. MacNaughton said Mr. Ashmore did not qualify for a DFO quality certificate in 2003 because of the high bacteria test in October 2003 and because the farm did not meet grade A standards in November 2003. He verified that the November 2003 farm inspection was made because of the high bacteria test in October, and that it was standard procedure to schedule a visit in these circumstances.
Mr. MacNaughton explained that the laboratory technicians who tested milk samples did not manually input data, as there was a direct electronic transfer from the bactoscan machine to the computer and that the computer telephoned producers advising them to check their quality results when the test was high. He said that milk truck drivers collected a representative sample of milk on each farm, placed these in a cooler in an ice-water bath and transferred them to a refrigerator at a collection point. He said that samples were transported in refrigerated trucks to the laboratory where they are placed in a cooler. He stated that if there were any anomolies in cooling the samples the entire batch will be discarded without being tested. He also said that a lock tab must be in place on the sample container or it would not be tested.
Mr. MacNaughton said that the bacteria count of tested samples was over one million 0.3% of the time, or on approximately 50 samples per year. He said a count of 10 million was not unusual and that he had seen much higher counts. He stated that with a bacteria count that high he would expect a cooling problem because bacteria grow very quickly in warm milk. He said he would also look at the cleanliness of the tank and equipment. He agreed that forgetting to turn the bulk tank on when milking into an empty tank, or failing to wash after milking could cause a high bacteria count.
With regard to problems identified in the November 27, 2003 farm inspection, Mr. MacNaughton indicated:
Improper milk cooling contributes to high bacteria counts.
PVC pipes can pit over time and harbour bacteria.
Negative slopes in the pipeline can allow alkaline water to sit in the pipe and later neutralize the acid rinse. Also solids in dirty water sitting in the pipe can re-attach to the pipe.
Inking of rubber hoses could reflect age or improper chemical use. As soon as they lose their sheen they can crack and harbour bacteria.
Solids suspended in water sitting in the receiver jar can reattach to the jar surface.
A film around a gasket or claw on a milking unit could be an incubation site for bacteria.
A chart outlining milking and washing routines is recommended.
If cows’ flanks are dirty, the milker’s hands and the milking unit can get dirty.
Air quality issues are particularly important with pipeline milking systems.
Mr. MacNaughton said two supplementary tests were automatically taken on Mr. Ashmore’s milk sample because of the high test result. He said a test taken after pasteurization was simulated showed a slight problem with equipment cleanliness on the October 15, 2003 sample, and that a total coliform test showed the problem was not caused by fecal matter. It was his opinion that the problem was most likely with the cooling system. With regard to the October 27, 2003 test, he said the supplementary tests again indicated a slight problem with equipment cleanliness but in this case total coliform was very high, indicating fecal contamination. He said water tests taken in November had a high coliform level.
In response to questions, Mr. MacNaughton indicated:
Information provided to the Tribunal on the milk quality certificates awarded to Mr. Ashmore was incorrect. Mr. Ashmore had a better record than indicated in the advance documentation filed with the Tribunal.
Approximately 60% of Ontario dairy farms had coliform in their well water.
Acid was used to neutralize soap residue.
Regulations require that milk lines be sanitized before milking.
There is a lag time with the temperatures recorded by TTRs; milk truck drivers are required to take temperatures manually.
His staff can list up to five problems and still rate a farm grade A. Probably the PVC pipe was not noticed in previous farm inspections.
If mastitis is suspected, the laboratory can test the milk of individual cows. Special tests must be arranged through DFO fieldpersons.
The age of a bulk tank should not affect milk quality as long as it is properly maintained.
The TTR technicians would have no reason to touch the two-way valve in the washing system. They would have to get into the washing system to check their sensors. The timer knob would have to be removed to give them access to the sensors.
Carolyn Geer, witness
Ms Carolyn Geer testified that she had been a field representative with the Ontario Ministry of Agriculture and Food from 1988 to 1995 and a Field Services Representative with DFO since then. She said the Ashmore farm was in her assigned area and she conducted the farm inspections on November 27, 2003 and December16, 2003.
Ms Geer stated that on November 27, 2003:
She visited the farm with her colleague Mr. Poitras from approximately 11:30 a.m. to 2:00 p.m.
The receiver jar was half full of water after the wash, containing perhaps 10-15 litres. It should be let out after the wash to prevent it from going into the tank at the next milking.
She took the temperature of milk in the bulk tank with a hand-held thermometer when she arrived and it was 6º C; it was 4º C when she tested it between noon and 1:00 p.m., the tank did not shut off until approximately 2:00 p.m. when the milk temperature was 1.5º C.
The temperatures recorded by the TTR were within 1 degree of the temperatures she took.
Mr. Ashmore told her he finishes his morning milking between 8:00 a.m. and 8:30 a.m.
In response to questions, Ms Geer said:
She believed that if water was not manually drained from the receiver jar before milking it would end up in the bulk tank, but she was not sure on this point.
She and Mr. Poitras both checked the milk temperature with their hand held thermometers; she did not know how Mr. deGroot checked it or what time of day he checked it.
Most pipeline systems have receiver jars that automatically drain.
Milking surfaces should be kept clean and dry.
It is not unusual for milk tank compressor radiators to need cleaning in the summer months because of dust.
Compressor radiators need to be cleaned as dirt can impede airflow and slow down the cooling of milk in the bulk tank.
The receiver jar had been replaced since the Ashmore farm was inspected in 2001.
Ian Gilmore, witness
Mr. Ian Gilmore told the Tribunal he was a partner with Inland Machinery, the company that installed the TTR on the Ashmore farm. He said he had previously worked for the milk equipment company Alfa Laval from 1985 to 1994.
Mr. Gilmore said he was one of three people looking at the TTR on the Ashmore Farm on September 3, 2003. He said an electrician and a representative of the manufacturer were also in attendance. Mr. Gilmore verified that he had removed a panel and that the electric clock timer knob had to be unscrewed to open the panel. He said he believed he had put the knob and indicator dial back on correctly but acknowledged he could have put it on backwards. He said if he had made a mistake it would have been obvious right away as the indicator notch would be off by 20 degrees. He said no one from the TTR companies were back on the farm after September 3, 2003.
Mr. Gilmore said he and his colleagues had arrived at the farm at approximately 2:00 p.m., spoken to Mr. Ashmore, who was in the yard at the time, and left after approximately one hour. He said Mr. Ashmore and his employees were getting ready to milk as they left. He recalled someone sanitized the pipeline, the equipment stuttered but someone tapped it and then it was fine.
Mr. Gilmore said his understanding of Mr. Ashmore’s work order was that there was a mechanical problem with the two-way valve. He said that could not be caused by the timer indicator dial being put on backwards as the only connection between the timer and the valve was electronic and he felt the problem was mechanical not electrical. He explained that as the timer turned, a vacuum was created to move the valve.
In response to questions, Mr. Gilmore said:
The TTR technicians did not adjust any of the equipment on the Ashmore farm.
The TTR technicians measured the current flow through wires.
If the timer indicator dial were put on backwards it would move the signal by twenty degrees but once the cycle began, it would complete the cycle.
There were solenoid valves, interconnecting wires, water valves and a detergent canister behind the panel he opened.
Alphonse Poitras, witness
Mr. Alphonse Poitras said he had been a DFO Field Services Representative since 1988 and had worked on raw milk quality issues for six years. He said he was also a dairy farmer and that he had the same or a similar wash system as Mr. Ashmore. Mr. Poitras told the Tribunal that a signal from the timer on the wash systems tells the two way valve when to dump wash water into a sink to be drained away, and when to recirculate it through the pipeline. He said if the valve was not working, the wash water could go down the sink after one pass, rather than cleaning for ten minutes as it should. He said the timer dial shows where you are in the cycle if it is put on correctly.
In response to questions. Mr. Poitras said:
There are only two places for the timer to stop – the end of the wash cycle and the end of the sanitation cycle.
Whether or not a malfunctioning two-way valve would cause a bacteria spike would depend on if it malfunctioned every time or just occasionally, the season and other factors that affect bacteria count.
Summations
Mr. Ashmore told the Tribunal there were three topics at issue – the TTR, the bacteria test and the alleged cooling problems.
Mr. Ashmore told the Tribunal that his refrigeration expert had given his professional opinion and written that there was no problem with refrigeration on the Ashmore farm.
He said he had volunteered to assist the DFO with its TTR test and that he thought it was a good program although not necessarily cost effective. He said in his situation he felt strongly that the TTR technicians had caused him headache and heartache and that adjustments made to the TTR led to his bacteria count problem in October 2003. He said he felt the DFO should have been keeping closer controls on how the TTR system was implemented on farms.
With respect to the bacteria test result, Mr. Ashmore pointed out that a lot of scientific and technical data had been presented. He said he wanted to stand up for himself and other producers who may be in this situation. He also said the fieldpersons had a
contradictory pattern in rating his farm as grade A or conditional grade A. He said his quality record was not perfect but it was good and he asked the Tribunal to change the bacteria result and the conditional grade A rating so that he would qualify for a quality award in 2003.
The Chair reminded the parties that it was the bacteria test result, not the conditional grade A rating that was under appeal.
Mr. Gould said he thought Mr. Ashmore was a conscientious producer who generally produced good quality milk. He said he disagreed with Mr. Ashmore’s contention that the TTR technicians had caused the bacteria spike on the Ashmore farm. He argued there was no connection between the timer dial that the TTR technicians touched, and the faulty two-way valve that Mr. Ashmore’s equipment dealer replaced.
Mr. Gould submitted there were significant risk factors on the Ashmore farm which included: dirty cows, non potable water, worn rubber components, a cooler that did not cool milk to 4º C within two hours of milking, a PVC pipe in the milking system, negative pipeline slope, a 90 degree turn in the pipeline, sanitation problems and a receiver jar that did not automatically drain after the wash cycle.
With respect to the October 15, 2003 bacteria count, Mr. Gould said a spike of this nature could be caused by not turning on the cooler before milking, running out of soap or a dirty bulk tank. He said the milk sample was handled correctly and there was no reason to think the bacteria test result was wrong. Mr. Gould also said there was no reason to overturn the conditional grade A rating given to the Ashmore Farm on November 27, 2003.
Mr. Ashmore replied that the fan on the bulk tank may still be running after the actual cooling had ceased. He also said he had to wait some time before the dealer could repair his timer dial. Mr. Ashmore told the Tribunal that his was the first farm in his county to have Standard Operating Procedures, that he worked hard on his quality standards and that the October 2003 was an exception to the usual quality of milk on his farm. He asked that the October 2003 result be struck from his record and asked that the DFO recognize the quality awards he had received in the past.
The Findings
The Tribunal commends Mr. Ashmore for an excellent history of milk quality and for his support for his industry. The Tribunal favours Mr. Ashmore’s testimony on his record of quality certificates to the information provided by the Director. Mr. Ashmore had direct knowledge of the certificates he received, whereas the Director relied on a staff search of DFO records. Mr. MacNaughton acknowledged that there were some inaccuracies in the information provided on Mr. Ashmore’s quality record. The Tribunal notes that Mr. MacNaughton indicated he would look into correcting the DFO records.
With regard to the October 15, 2003 bacteria test result indicating a bacteria count of
10,152,000, the Tribunal finds that though high, this is not an impossible reading. Supplemental tests on the sample indicated a possible problem with unclean equipment and Mr. Ashmore’s equipment technician subsequently replaced a two-way valve on the washing system. The identified equipment problem supports the finding that there was a problem on the Ashmore farm that led to a high bacteria count. There was no evidence presented to suggest the sample in question was not obtained at the Ashmore farm or was mishandled en route to the laboratory.
Mr. Ashmore was of the view that his equipment problem was caused by the TTR technicians who were on the farm on September 3, 2003. The Tribunal finds the evidence does not support this view. Mr. Poitras, who owns a similar washing system, testified that the placement of the dial on the timer could not have affected the two-way valve. This was supported by Mr. Gilmore’s testimony that the work undertaken on the two-way valve was mechanical, not electronic. It was not clear whether or not the TTR technicians put the timer indicator dial on backwards when they were in the milk house, but even if they did, there was no evidence of any link between the backwards timer indicator dial and the high bacteria count. The Tribunal also notes that it was six weeks after the TTR technicians were on the farm that the bacteria problem was discovered and that there were other potential sources of the bacteria problem on the farm.
With regard to the conditional grade A rating in November 2003, the Tribunal recognizes Mr. Ashmore’s frustration over apparent inconsistencies in enforcement of the standards. The standards to be met for animals, premises and equipment used in milk production are set out in Sections 3-34 of Regulation 761 under the Milk Act.
Decision and Reasons
After careful consideration of the evidence filed and the submissions made the Tribunal decided to deny the appeal.
The reasons for this decision are:
The laboratory test result indicated there was a high bacteria count on milk collected on the Ashmore farm on October 15, 2003. One of the supplementary tests also identified a problem and tests taken later that month also indicated there was a bacteria problem on the farm.
The evidence did not support the contention that the actions of the TTR technicians caused the high bacteria test on October 15, 2003.
Dated at Ethel, Ontario the 27th day of April, 2004.