McBride v. Director of Regulatory Compliance, Ontario Raw Milk Quality Program, 2004 ONAFRAAT 3

Agriculture, Food and Rural Affairs Appeal Tribunal

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales

1Stone Road West Guelph, Ontario 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:

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

McBride v Director of Regulatory Compliance, ORMQP 2004 ONAFRAAT 03

STATUTE:

Ministry of Agriculture, Food and Rural Affairs Act

HEARING:

December 30, 2004

DATE OF DECISION:

January 21, 2004

2004-03

NEUTRAL CITATION:

2004 ONAFRAAT 03

McBride v Director of Regulatory Compliance, Ontario Raw Milk Quality

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 Harry McBride, Westmeath, Ontario from the decision of the Director of Regulatory Compliance, Ontario Raw Milk Quality Program, to permanently shut him off from the milk market.

Before:

Murray Cardiff, Chair; Denis O’Connor, Vice Chair; Tim Sutton, Member

Appearances:

Harry McBride, appellant

Peter Gould, Director of Regulatory Compliance, respondent

Gordon McBride, witness for the appellant

Jeff Hyndman, witness for the respondent

Gerry Weaver, witness for the respondent

George MacNaughton, witness for the respondent

DECISION OF THE TRIBUNAL

This appeal was heard by the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) in Ottawa, Ontario on December 30, 2004. Mr. Harry McBride appealed from a decision of the Director of Regulatory Compliance, Ontario Raw Milk Quality Program (the Director), by which he was permanently shut-off from the milk market in Ontario.

Statutory Context

This 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 16(4) allows for the Tribunal to refuse to hear the appeal under certain circumstances.

This appeal arises from a decision of a Director appointed under the Milk Act. Section 2.1 of the Milk Act states:

Director

2.1 (1)The Minister may appoint a Director for the purposes of the provisions of this Act and the regulations for which the administration and enforcement are not delegated to a designated administrative authority. 1997, c. 44, s. 2.

Director appointed by administrative authority

(2) If the administration and enforcement of any provisions of this Act and the regulations are delegated to a designated administrative authority, the authority may appoint a Director for the purposes of those provisions. 1997, c. 44, s. 2.

Responsibility of Director

(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.

Powers and duties

(4) A Director appointed under subsection (1) or (2) shall exercise the powers and perform the duties that are conferred or imposed on the Director by or under this Act. 1997, c. 44, s. 2.

Appointments

(5) A Director appointed under subsection (1) or (2) may appoint the officers, field-persons, graders and other persons who are considered necessary for the Director to exercise the powers and to perform the duties of the Director. 1997, c. 44, s. 2.

Regulation 761, under the Milk Act, outlines specific requirements which must be met by producers, transporters, processors and distributors of milk and milk products. 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 Regulation 761 states:

55. (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. Was the appellant, Mr. Harry McBride in contravention of Regulation 761, under the Milk Act?

2. Was the Director acting within his authority as set out in Regulation 761 in permanently shutting off Mr. Harry McBride from the milk market?

3. If there were one or more regulatory infractions, what is the appropriate penalty?

The Evidence

Harry McBride, appellant

Mr. Harry McBride told the Tribunal he had suffered a disastrous barn fire in 2001 which resulted in the loss of 100 cattle and his barn. He said he had been unable to fill his quota since the fire and was in financial difficulty. He explained that financial institutions were threatening to foreclose and provided documents prepared by his creditors.

Mr. H. McBride said that after the fire he had milked out of the barn of his son, Gordon McBride, and had shipped milk from the same bulk tank as his son, for a few months, with the approval of the Dairy Farmers of Ontario. He said he then moved his cows to his current facility, an older barn on Gordon McBride’s farm as his son needed the room in his regular barn for his own cattle.

Mr. H. McBride said he had done nothing wrong but that his son, Gordon McBride, had put milk in his, Harry McBride’s bulk tank and had been caught by the Director’s field-persons. He said he was not involved in transferring the milk into his tank. He asked that he be reinstated to the market.

In response to questions, Mr. Harry McBride said:

• He had reviewed the documentation provided by the Director; he did not understand some of it, and could not see how other documents included in the Director’s brief related to the current situation.

• Some of the data provided by the Director dated from before his barn fire.

• He made one simple mistake in allowing his son to put milk in his bulk tank and he only did it because his creditors were demanding payment.

• His son’s milk is the best quality in Renfrew County.

• The receiving dairy did not turn away the milk shipped from his bulk tank and the transporter did not refuse to pick it up.

• He had never had any trouble with inhibitors and the bacteria level in August 2003 was fine.

• He had hip and knee problems and was not physically able to climb into a truck bed to pump milk out of barrels.

• His son had been putting milk in his, Harry McBride’s, bulk tank for approximately one month before he was caught.

• The equipment used to transfer the milk belonged to Gordon McBride.

• He was not aware that his son, Gordon McBride had transferred milk to another producer until he was caught and it was in the newspaper.

• A few years before, he had transferred another producer’s milk to his bulk tank, via olive barrels and a sump pump, on the advice of a fieldperson, Jeff Hyndman. That was the first time he had transferred milk from another producer to his bulk tank.

• He had agreed not to transfer milk in that way again, and had not done so.

• He was not in his milk house on September 17, 2003, when fieldpeople caught Gordon McBride putting milk in his bulk tank. He was in the barn attending to a sick cow.

• In his current operation, he milked into a bucket and dumped milk from the bucket into his bulk tank. It was difficult to keep the milk clean but he did his best. His son Gordon McBride’s milk was cleaner and his transfer system was more sanitary.

• He did not witness an altercation between his son and the fieldpeople who attended the farm on September 17, 2003.

• His current facility could accommodate 25 milking cows, but he did not recall how many he was milking in the months before September 2003.

• His creditors had agreed to take no further action until the results of the hearing are known.

• He was familiar with the quality requirements under Regulation 761.

Mr. Harry McBride said some of the written documentation submitted by the Director was incorrect. He said that he did not milk infected cows before other cows in 1996.

Gordon McBride, witness for appellant

Mr. Gordon McBride verified that he owned a sump pump, hose and 6 olive barrels that were used to transfer milk to the appellant’s bulk tank on September 17, 2003. He said the pump had never been used for anything but transferring milk and could not be taken apart. He said he cleaned the equipment with CEP Cleaner, which is the same soap that is used to clean his pipeline. He said he then gave it a chlorine rinse before use. He said his milk was not graded on September 17, 2003 as he had been shut-off from the market.

Mr. Gordon McBride told the Tribunal he felt responsible for Harry McBride being shut-off from the market. He said he had already told the Director he would not transfer milk in this manner anymore. He said he intended to buy quota when the price is lower. He explained he had previously held quota but sold it when the export market was better.

He had been involved in an altercation with fieldpeople on September 17, 2003 but charges were dismissed. He did not believe the fieldpeople were afraid to come back on his farm as Mr. Jeff Hydnman had visited it approximately one week before the hearing.

Jeff Hydnman, witness for respondent

Mr. Jeff Hydnman said he had worked for almost five years for the Dairy Farmers of Ontario and was appointed by the Director as fieldperson for enforcing Regulation 761. He said the purpose of the regulation was to enforce the quality and safety of milk in Ontario. He said he had inspected 1000 to 1,500 farms and had never come across milk transfers between farms, other than those involving Messrs. McBride. He explained the activity was dangerous as milk could be contaminated with bacteria or unknown substances and that the public perception of food quality and safety would be ruined if they learned of this type of milk transfer.

Mr. Hydnman said that on April 12, 2000, he and his colleague Mr. Gerry Weaver saw Mr. Harry McBride and his wife taking milk from another producer and using a sump pump to put it into their own milk bulk tank. He said he was not aware of how long that had been going on. He said he investigated as a result of several anonymous tips.

Mr. Hydnman said he and three other fieldpeople - Mr. Gerry Weaver, Mr. Alphonse Poitras and Mr. Alex Hamilton – were at Mr. Harry McBride’s milking facility on September 17, 2003. Mr. Hydnman explained that Mr. Poitras was the first to observe Mr. Gordon McBride transferring milk to the appellant’s bulk tank, and had called in the other three fieldpeople who were watching roads that they thought Mr. Gordon McBride might take to deliver his milk elsewhere. He said they had been observing the farm the night before as well.

Mr. Hydnman said he observed Mr. Gordon McBride and his girlfriend with four barrels in the back of a truck, pumping milk into Harry McBride’s bulk tank on September 17, 2003. He said Mr. Gordon McBride told him that Mr. Harry McBride was in the barn. He said Mr. Harry McBride had left the barn but he found him outside it, near the milk house and he told him that he and the other fieldpeople present were collecting evidence for their superiors. He said at that point, Mr. Gordon McBride assaulted Mr. Alphonse Poitras, and Mr. Harry McBride told the fieldpersons to leave the property. He said there was a standing order from their superiors that fieldpersons were to leave farms when they were in harm’s way.

Mr. Hyndman said milk shipments from Mr. Harry McBride were fairly consistent from mid-July to August 1, 2002 but then increased substantially. He said the shipments in June 2003 were high as well.

A video clip was shown and Mr. Hydnman identified the milk house and tank as being the ones used by Mr. Harry McBride, the truck as one belonging to Mr. Gordon McBride and the people in the video being Mr. Gordon McBride and himself. He said he witnessed an assault by Mr. Gordon McBride on Mr. Alphonse Poitras, who was holding the video camera.

Mr. Hydnman also indicated:

• Other producers in the area were concerned with between farm milk transfers, as they were afraid the industry would get a bad name.

• The fieldpersons had the right to inspect the appellant’s premises, as Mr. Harry McBride is a licensed producer.

• He had received on the job training on surveillance techniques from a retired police officer, and had attended a conference where surveillance was taught by retired policemen.

• If it was a different producer he would think the volume spikes on the farm were due to an influx of milking cows, but given Mr. Harry McBride’s history, he thought that unlikely.

• Dairy cattle produced on average 25 litres of milk per day, but he believed the appellant’s cattle produced in the 10-15 litre range.

• He had inspected the current facilities used by Mr. Harry McBride and approved them as Grade A, prior to milk being picked up at this location.

Gerry Weaver, witness for the respondent

Mr. Gerry Weaver said he had been a Field Service Representative with the DFO for six and one half years and that he performs inspections on farms and gives advice on quota. He confirmed Mr. Hydnman’s testimony as to the events on the McBride farms in April 2000 and on September 17, 2003. He also said Mr. Gordon McBride kicked the door of his vehicle as he was getting in to leave the farm, and bruised his arm. He said he did not press charges as the bruise did not appear the night of the incident and he initially thought he was unhurt. Mr. Weaver said this was the first time fieldpersons had used a video camera in an inspection, but that still photography had been used for many years. He said a legal opinion had been sought and he understood that fieldpersons were allowed to use video surveillance in their work.

With regard to the April 2000 incident, Mr. Weaver said that at that time Mr. Harry McBride’s production was low and his tank was large and he was not making his minimum volume production. He said Mr. Hydnman had told Mr. McBride to bring his volume up or be shut off from the market. He said it was against the regulations to physically move milk between farms.

George MacNaughton, witness for the respondent

Mr. George MacNaughton told the Tribunal he was the Raw Milk Quality Manager, and the Manger of Farm Policies and Programs with the DFO. He said his quality program staff enforce raw milk quality regulations of the Ontario government.

Mr. MacNaughton said the September 2003 surveillance of the McBride farm was planned as a result of fluctuating milk volumes being shipped from the appellant’s bulk tank. He said that there had been a past incident of between farm milk transfers in April 2000 and a suspicious milk volume shift between the two McBride operations in 1996. He said the milk volume shipped in January and February 2000 and July and August 2003 was also suspicious. Mr. MacNaughton acknowledged that milk volumes could shift as a result of a switch in the number of milkings per day, and that transporters could make errors in recording volumes.

Mr. MacNaughton said that since 1996, milk shipped by Mr. Harry McBride had been in the penalty range for bacteria 10 times out of 80 tests, in the penalty range for somatic cell count (SCC) 31 times out of 85 tests and the appellant had been shut-off four times for SCC infractions and twice for having unsanitary conditions. He said the milk often tested in the warning range for bacteria and SCC as well. He acknowledged Mr. Harry McBride had no inhibitor penalties in this time period. However, he said the appellant had a very poor quality record.

Mr. MacNaughton said that it was usual to send in two or more fieldpeople to a farm where there was a difficult producer and that staff was advised to leave the farm if there was a physical threat. He stated he could not order staff to return to the appellant’s facility as Mr. Gordon McBride had threatened to get a gun. He said that Mr. Harry McBride had told one of his colleagues that if his grandson had been present one of the fieldpersons would be in the hospital. He said none of his staff had ever been physically assaulted before the incident on September 17, 2003. Mr. MacNaughton said there had been four surveillance operations by his staff in 2003, that this was an unusually high number and that this was a drain on resources.

Mr. MacNaughton said he was aware of one other incident of milk being transferred between farms, approximately 25 years earlier. He said this was a difficult activity to catch. He said that he was surprised that Mr. Harry McBride was caught in 2003 as he thought that after he was caught in 2000 that would solve the problem.

Mr. MacNaughton said the specific sections of Regulation 761 that the appellant was alleged to have breached on September 17, 2003 were:

• Section 3 - No producer shall sell or offer for sale milk or cream that is not produced, handled and stored in accordance with this Regulation.

• Clause 5(1)(j) No producer shall sell or offer for sale milk or cream that is produced in an unsanitary manner.

• Subsection 14(3) - Unless otherwise authorized by the Director, the producer shall cool and ship directly from each farm bulk tank all milk produced.

• Subsection 14(4) - The producer shall not sell or offer for sale milk removed from a farm bulk tank by the producer.

• Subsection 48 (1) - Subject to subsection (2), no person other than a bulk tank milk grader shall accept, grade, reject, measure or sample, or supervise the accepting, grading, rejecting, measuring or sampling of milk in a farm bulk tank.

Mr. MacNaughton said Mr. Harry McBride had been shut-off from the market in February 1999 as the result of somatic cell count (SCC) penalties. He said Mr. Harry McBride was next shut-off in April 2000 as a result of producing milk in unsanitary conditions resulting from moving milk between farms and shut-off in September 2003 for the same reason.

Mr. MacNaughton said the conditions for reinstating Mr. Harry McBride after the April 2000 infraction were that:

• The farm meet Grade A standards.

• The minimum pick-up volume be posted.

• Mr. McBride provide a letter stating that he would never again engage in the transfer of milk between farms.

• Only milk produced on his farm could be offered for sale.

• He permanently remove the olive barrels which were used to transfer milk.

Summations:

Mr. Harry McBride said he had been a good producer for 60 years, he was not the only one to ever be shut-off as a result of high SCC or bacteria and that this should not be held against him.

He said he was not the only producer to make a mistake and he asked that he be reinstated to the market.

Mr. Gould said he and his fieldpersons have an obligation to ensure that producers comply with Regulation 761. He said Mr. Harry McBride was caught red-handed on April 12, 2000 using a sump pump, hose and olive barrels to move milk between farms and that he was caught doing the same thing on September 17, 2003, and admitted the activity had been going on for one month. He noted there was also a suspicion of wrongdoing in 1996.

Mr. Gould said Mr. Harry McBride had signed a letter in 2000 stating that he would not transfer milk between farms again, but that he had done so. He said Mr. Harry McBride did not appear to have a clear understanding of his regulatory obligations and had shown no regard for consumers or fellow producers.

Mr. Gould said the situation was made worse by the threats to and assaults on his appointed fieldpersons. He said there was no foreseeable circumstances which would allow him to have his staff back on the farm. He submitted that the appellant is ungovernable in a situation with a high degree of regulatory requirements. He also said that Mr. Harry McBride should be aware of the consequences of his actions, as his son Gordon McBride had been involved in a similar contravention in May 2003.

The Findings

On the issue of whether or not the appellant contravened Regulation 761, the Tribunal finds that Mr. Harry McBride did contravene Regulation 761 on the night of September 17, 2003. By his own admission, Mr. Harry McBride was aware that Mr. Gordon McBride was pumping milk into his bulk tank in August 2003 and September 2003. In the Tribunal’s view the act of transferring milk involves both shipping and receiving. The evidence was clear that while Mr. Harry McBride could not himself climb up on a truck bed and transfer the milk, he was present and was responsible for receiving the milk from Mr. Gordon McBride. Mr. Harry McBride then allowed that milk to be picked up and delivered into the milk market.

The Tribunal recognizes that Mr. Harry McBride has undergone some devastating circumstances and financial hardship, and has also suffered health problems with his knee and hip. However, the Tribunal finds this does not excuse his violation of Regulation 761. The Tribunal notes that Mr. Harry McBride was well aware that transferring milk between farms was not allowed, having been caught once before and having signed an undertaking not to do this again. The fact that his son was responsible for physically transferring the milk does not remove his responsibility, as a licensed milk producer, to ensure that the milk in his bulk tank is milk produced from his cows and that it is handled in a sanitary manner.

Mr. Gould explained that one of his reasons for arriving at the conclusion he did was the altercation between Mr. Gordon McBride and the field persons. The Tribunal places little weight on this altercation in the context of the decision of the Director and the penalty he imposed on Mr. Harry McBride. The Tribunal understands that Mr. Gordon McBride’s actions were handled in the courts. In any event Mr. Gordon McBride’s altercation is not a subject of this hearing.

In the Tribunal’s view the Director had no authority under Regulation 761 to terminate the collection of milk from Mr. Harry McBride. The only offence was that the milk of the appellant was “produced from animals or on premises or with equipment that does not comply with sections 3 to 34” of Regulation 761 on one occasion in the 12-month period ending September 17, 2003. Accordingly, the only penalty that could have been applied was that provided in Clause 55(5)(a) of Regulation 761 – a $2 per hectolitre penalty on milk shipped in September 2003.

The Tribunal is very concerned that the appellant breached an undertaking he signed in April 2000 in which he promised he would not transfer milk from another farm to his bulk tank again. The Tribunal rejects Mr. Harry McBride’s argument that he did not physically transfer the milk himself, and thus was not responsible. The Tribunal wants to make it very clear to Mr. McBride that he is responsible for the quality of the milk that he ships from his bulk tank.

Decision and Reasons

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

The reasons for this decision are:

1. The Director exceeded his authority in ordering the appellant to be shut off from the milk market.

2. The Tribunal found that the appellant was guilty on September 17, 2003 of one infraction of Sections 3-34 of Regulation 761. That was the only infraction in a period of twelve months. The penalty for this infraction is found in Clause 55(5)(a) of Regulation 761.