Agriculture, Food and Rural Affairs Appeal Tribunal
Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales
1 Stone Road West Guelph, Ontario N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email:Tribunal@OMAFRA.gov.on.ca
1, chemin Stone Ouest Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Email:Tribunal@OMAFRA.gov.on.ca
AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL
APPEAL:
Williams v Director of Regulatory Compliance, Ontario Raw Milk Quality Program
Williams v Director of Regulatory Compliance, ORMQP 2004 ONAFRAAT 06
STATUTE:
Ministry of Agriculture, Food and Rural Affairs Act
HEARING:
December 12, 2003
February 11, 2004
2004-06
NEUTRAL CITATION:
2004 ONAFRAAT 06
Williams v Director of Regulatory Compliance, Ontario Raw Milk Quality Program
IN THE MATTER OF THE FARM PRODUCTS MARKETING ACT AND SECTION 16 OF THE MINISTRY OF AGRICULTURE, FOOD AND RURAL AFFAIRS ACT.
AND IN THE MATTER OF:An Appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal by Don Williams, Picton, Ontario from a decision of the Director of Regulatory Compliance, Ontario Raw Milk Quality Program by which he upheld a positive inhibitor test on a sample of milk taken from Mr. William’s farm on January 17, 2003.
Before:
Murray Cardiff, Chair; Denis O'Connor, Vice Chair; Doug Flook, Member.
Appearances:
Don Williams, appellant
Peter Gould, Director of Regulatory Compliance, respondent
Alphonse Poitras, Field Staff, witness for the respondent
DECISION OF THE TRIBUNAL
This appeal was heard in Brighton, Ontario on December 12, 2003. Mr. Don Williams appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) from the decision of the Director of Regulatory Compliance, Ontario Raw Milk Quality Program (the Director) dated May 8, 2003, upholding a penalty for positive inhibitor test on milk, from a sample taken from Mr. Williams farm on January 17, 2003.
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
- (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.
The sections of Ontario Regulation 761, under the Milk Act, that apply to this appeal are as follows:
Section 5(1) states:
"No producer shall sell or offer for sale milk or cream that,
(a) is obtained from an animal,
(ii) to which an inhibitor has been administered, during the period of medication and for such period following the last treatment as is sufficient to ensure that the milk or cream does not contain an inhibitor when tested by an official method at a laboratory approved by the Director”.
Section 52(1) states:
"The milk of every producer,
(a) shall be tested at least once in each month,
(iii) for the presence of an inhibitor by an official method."
Section 54 states:
"(1) Where milk of a producer is tested under section 52 and found to contain an inhibitor, a fieldperson shall place under detention all milk of the producer.
(2) Where a fieldperson places milk under detention under subsection (1), such samples of milk as are necessary shall be taken and delivered to a laboratory approved by the Director for testing for the presence of an inhibitor by an official method.
(3) The results of the testing of a sample under subsection (2) shall be made known to the producer within 24 hours of the time the milk was placed under detention.
(4) Where the testing of a sample under subsection (2) shows that the milk does not contain an inhibitor, the fieldperson shall release the milk from detention."
Section 55 states:
"(3) Where the milk of a producer is tested under section 52 and found to contain an inhibitor, the producer is, in respect of the milk marketed in the same month as the milk that was tested, liable to a penalty of,
(a) $6 per hectolitre where there has been no previous detention of the producer's milk under subsection 54(1);
within any twelve-month period.
(3.1)1. If a truckload of milk cannot be marketed because of the presence of an inhibitor and the milk of a producer with milk in the truckload is tested under section 52 and found to contain an inhibitor, the producer is liable to the marketing board in an amount equal to the value of the milk damaged plus the cost, including transportation costs, of disposing of the milk.”
The Issues
The issues before the Tribunal are:
Should the positive test result from the sample of milk taken from Wilhome Farms on January 17, 2003 be allowed to stand?
Should the first level inhibitor penalty assessed to Don Williams be allowed to stand?
The Background
Mr. Don Williams is a licensed dairy producer from Picton, Ontario. He operates a dairy farm, Wilhome Farms, in partnership with his father. Wilhome Farms milks 45 cows in a closed herd with replacements raised from the milking herd bred by artificial insemination.
Milk was picked up and sampled at Wilhome Farms on January 17, 2003. A load of milk was SNAP tested at the Saputo plant in Trenton, Ontario, which resulted in a positive indication for antibiotics. The milk of the producers who contributed milk to that load was further tested at the University of Guelph Laboratory. The Wilhome Farms sample was in the violation range for antibiotic; further Parallux™ testing resulted in a finding of the presence of cephapirin in the Wilhome Farms sample. On January 29, 2003 the HPLC testing method found the level of cephapirin to be 49 parts per billion (ppb).
The penalty under Section 55, Regulation 761, of the Milk Act was assessed against Wilhome Farms. Upon request, the Director reviewed the circumstances and submissions surrounding the sampling, testing and quality penalty and confirmed the penalty on May 8, 2003.
The Evidence
Don Williams
Mr. Williams testified before the Tribunal that he and his father are partners in the operation of Wilhome Farms. He told the Tribunal that he was proud of the quality of milk produced at his farm and that he was shocked to learn of the positive inhibitor test results.
Mr. Williams submitted to the Tribunal that:
Mr. Alphonse Poitras, the Field Staff person who investigated the circumstances surrounding the inhibitor test results, said that the milk sample tested positive for a cephapirin-type drug. Mr. Poitras indicated in an e-mail to George MacNaughton dated April 10, 2003 that his inspection of the Williams farm with respect to the inhibitor test result was not thorough. Mr. Poitras also indicated that the milk of two cows was put into the bulk tank on the fourth milking following calving. Mr. Poitras wrote that one of the freshened cows was being treated.
Mr. Williams said he wished Mr. Poitras had confirmed this opinion with himself or his father.
A load of milk was SNAP tested at the Don Mills, Ontario, Natrel plant; it contained milk from the two freshened cows that Mr. Poitras had mentioned. That SNAP test was negative.
Mr. Williams said that cephapirin-type drugs are used at Wilhome Farms to treat dry cows only.
He was not initially alarmed at the indication of the test results when Mr. Poitras told him it was a cephapirin, because he did not use cephapirin to treat milking cows in that time period.
Dry cows are removed to the home farm, half a mile away from the milking barn until after calving.
Cow records and appropriate comments are kept for five years.
Records of all treatments and the dates on which the medications were administered are recorded in a binder.
Mr. Williams told the Tribunal:
Cows that are being dried-off are treated with Cefa Dri. The teats are dipped in a brightly coloured sealant medication that distinguishes them as undergoing drying-off treatment. An incident occurred in April 2003, where the milk of a dry treated cow was mistakenly added to the bulk tank by an employee. That bulk tank was dumped after tests indicated that it was slightly positive for inhibitors. The dumping of the tank was at his own volition, as a proactive measure to ensure good milk quality.
He was told by a representative of Wyeth Animal Health that the level of inhibitor found in the milk could only occur if half a tube of the drug was added directly to the bulk tank. He was told that inhibitor concentration detected by testing could not have been achieved by the addition to the bulk tank of milk from a treated cow.
Mr. Williams stated that he believed that his cow #8 is the only questionable problem. He said he treated cow #8 with Excenel at twice the label dose, on the recommendation of his veterinarian. He stated that milk from cow #8 went into the bulk tank, but only after the prescribed period for withholding her milk from the bulk tank had passed.
Mr. Williams evidence was that:
The milk from two treated cows that freshened January 9th and 10th, 2003 and whose milk was added to the tank for the first time on January 12th and 13th, 2003, respectively, could not have contaminated the tank to the degree that the tests results indicated.
He treated one cow on January 16, 2003 with Cefa-lak and cow #52 with Oxyvet.
Mr. Williams told the Tribunal that:
He requested a portion of the milk sample taken January 17, 2003 from George MacNaughton, as he wanted to test it at another laboratory. He was told that the sample could not be released. He believed that the University of Guelph Laboratory which tested the milk was biased in favour of the DFO. George MacNaughton told him that all the tests were completed on February 13, 2003. He asked again for a portion of the sample but was told that there was none left.
He wrote to Mr. MacNaugton and to Mr. Gould on February 13, 2003 requesting a complete review of the circumstances leading to the positive test results. He was frustrated at the delay, as the review and decision of the Director were not completed until May 8, 2003.
Contrary to the Director's findings in his May 8, 2003 decision, he feels that his records are up to date and accurate.
Mr. Williams responded to questions that:
A tank of milk was dumped in April 2003 because it was tested and found to be positive for an inhibitor; he took proactive measures to ensure good quality.
He employs a full time helper and a morning milking man.
Cefa-lak, Oxyvet, Excenel and Trivetrin are among the drugs that are kept on hand to treat cows as necessary. Drugs suitable for lactating cows are always kept separate from dry cow drugs.
The withdrawal time for Cefa-Lak is 96 hours.
Milk from newly freshened cows is kept out of the bulk tank for six milkings after calving.
The term 'off-label' is a term used to describe the use of a drug that is not specified on the label as to dosage, and route of administration.
Any time 'off-label' drug dosages are administered to cows, their milk is tested before it is added to the bulk tank regardless of the withdrawal time.
Prior to January 17, 2003 Wilhome Farms did not have any written standard operating procedures, however, the employees were verbally briefed with regard to the status of medicated cows.
Only he and his father make the decision to administer medications, although their employees may actually administer the medication from time to time. When medications are administered the particulars are recorded. The record of medication is transferred to the Dairy Herd Improvement (DHI) record calendar.
Prior to January 17, 2003, the record of dry cows was kept on the daily weight sheets.
Milking begins at 4:45 a.m. and ends at 6:15 a.m.. After milking, the cows are sent into the yard for exercise. He was usually in the house for breakfast at the time milk was picked up.
Mr. Williams said in response to questions that:
The January 17th, sample was taken by Mr. Charlie Berm, a licensed Bulk Tank Milk Grader. Mr. Berm was the regular transporter who attended at Wilhome Farms. He spoke with Mr. Berm who expressed his surprise to learn that the positive sample was from Wilhome Farms as Mr. Berm was well acquainted with Wilhome Farms high quality standards.
Though he does not dispute the manner in which the milk sample was obtained or stored, he believes that it is impossible that milk produced at his farm contained the levels of inhibitor indicated by the test results.
Mr. Williams answered questions that:
Since Mr. Poitras made recommendations for improving record keeping methods, every effort has been made to keep the permanent records accordingly. Permanent records of treatment include: the cow number, date and time of day of treatment, drug name, amount of drug and method of administering drug. His father adds notes about the cows' appetites and body temperature.
Each cow is milked in a stall numbered correspondingly to her number tag. A red sign is placed over the stall of treated cows.
His children do not assist with milking chores.
No one at Wilhome Farms had administered Excenel (Ceftiofur) intramammary.
It is his policy to have regular veterinary inspections and to keep records of pregnancy.
Alphonse Poitras
Mr. Alphnonse Poitras told the Tribunal that he has worked as a field staff person for the Dairy Farmers of Ontario (DFO) for 16 years. He stated that he was employed as a field staff person during the time that the Director of Regulatory Compliance took on the responsibility of administering Ontario Regulation 761 under the Milk Act. He said that the penalties under Ontario Regulation 761 of the Milk Act are prescribed by the province.
Mr. Poitras told the Tribunal that:
He had made approximately 800 farm inspections for the purpose of grading the premises where milk is produced.
A livestock medicines chart detailing drug type, corresponding withdrawal times and Canadian tolerances for residue levels was distributed to all producers in January 2002. The withdrawal time for Cefa-Dri is 30 days after treatment and 30 days plus seven milkings or 84 hours after calving. The withdrawal time for intramammary application of cephapirin is 96 hours or eight milkings.
On his April 10, 2003 visit to the farm he noticed that Mr. Don Williams questioned his father with regard to whether a cow had been treated or not. He believed that such questioning would not be necessary if all treatments were recorded.
On January 18, 2003, he sampled and tested milk from cow #8; she was recently fresh and had been treated off-label. The sample proved positive on a SNAP test and laboratory tests indicated the sample was positive for Ceftiofur.
The laboratory where milk samples are tested is operated independently of the Director of Regulatory Compliance.
Mr. Poitras’ evidence continued that:
No samples of milk were taken from any other cows that day.
It is generally best to mark treated cows with a crayon designed for that use, to distinguish them from untreated cows.
Permanent records should be kept for all cow health matters, not just cows that are currently lactating. The lactating cow record should however, indicate the type of drug administered, the date and time drug is administered and the date milk can safely be added to the bulk tank.
Mr. Poitras responded to questions that:
The testing of milk that was supplemental to the January 17, 2003 sampling/testing, was done at the request of the Director.
All milk samples are tested pursuant to Ontario Regulation 761.
The recording of cow health information on the DHI calendar is not a compulsory obligation for producers; but it is a recommended practice.
Wilhome Farms is not in his territory and he had never been in the barns before January 2003. He was on call the weekend of January 18-19, 2003; therefore it was his responsibility to attend at the farm.
Peter Gould
Mr. Peter Gould, the Director, told the Tribunal that a penalty was applied because the January 17, 2003 sample from Wilhome Farms was positive for an inhibitor. Mr. Gould told the Tribunal that the January 17,2003 load of milk tested negative on the official disc assay test but positive in both the SNAP and Parallux tests. He stated that:
The methods of milk sampling and sample handling in this matter were found to be satisfactory.
There was evidence of off-label treatment of a cow and drugs were present on the farm.
All other producers' milk samples on the January 17, 2003 truckload tested negative for inhibitors. The sample from Wilholm Farms was found to contain cephapirin which is also found in the products, Cefa-Dri and Cefa-Lak
The Director and his staff are considering requesting that record keeping be made compulsory under the regulations.
No conclusion had been drawn as to the absolute cause of the positive inhibitor test result.
In response to questions Mr. Gould stated that:
The keeping of permanent records and written standard operating procedures are not mandatory requirements for dairy farmers. The exception is when it is ordered by the Director as a condition for returning to market after being shut-off.
It is his practice to request additional Parallux tests from the laboratory in cases where the SNAP test results are positive.
His records indicate that there are, on average, five positive inhibitor test results per month throughout the province. Historically there were as many as 12 per month.
All loads of milk are routinely screened at the processing plant. If a positive result is obtained from plant testing, all samples of milk comprising that load are tested. Milk samples are also randomly tested at the laboratory.
The DFO bears the cost of any additional laboratory testing that it requests.
The penalty of $6 per hl for milk that tests positive for inhibitors is prescribed by Ontario Regulation 761. There is no provision within the Regulation to modify the $6 per hl penalty.
In his estimation dry cow treatments result in approximately 25 percent of inhibitor violations in the province.
Summations
Don Williams
Mr. Williams told the Tribunal that he is proud to be a dairy farmer and that he produced a quality product. He stated that Wilhome Farms hosted public tours of dairy facilities and that the tours provided an opportunity to educate the public about dairy production quality standards. Mr. Williams said that it is important to him to ensure that his product is of the highest quality.
Mr. Williams said that he has always taken the utmost precautions to protect the quality of milk produced on his farm. He said that in the April 2003 incident where milk was dumped, he dumped it to ensure quality. He stated that if he were to produce milk that contaminates a load then he should be liable for the reimbursement of any monetary loss, however, he does not know where the drug found in the January 17, 2003 sample came from.
Mr. Williams said that the January 17, 2003 load was marketed and therefore the DFO did not lose any money. He said that Wilhome Farms keeps adequate records and that the record keeping method suggested by the DFO is not mandatory.
Mr. Williams stated that he was privy to correspondence that indicated that mistakes are made at the DFO. He said that it is reasonable to believe that a mistake on the part of the DFO was responsible for the positive test result. Mr. Williams stated that medication is only administered off-label on the advice of a veterinarian. He stated that the January 17, 2003 violative test results and subsequent penalty was a blemish on an otherwise excellent quality record and that he wished the Tribunal to erase the record of inhibitor violation.
Peter Gould
Mr. Gould told the Tribunal that Mr. Williams exemplified the type of producers that were wanted in the dairy industry. He stated that he did not believe to the slightest degree, that the positive test results were caused by any malicious intention on behalf of anyone at Wilhome Farms. Mr. Gould indicated there were significant risk factors such as the presence of treated cows, unmarked dry cows, and a lack of dry cow permanent records. He stated that penalty application is irrespective of past performance or the feelings of the parties involved.
Mr. Gould stated that, although Mr. Don Williams and his father make the decision to medicate their cows, their employees may also administer drugs and there is no specific person who is designated to write down the particulars of each treatment. Mr. Gould said that the evidence indicated that there were two cows present that had been treated on or about January 17, 2003. He stated that there were no indications that the method of taking and handling the milk sample from January 17, 2003 were at issue. Mr. Gould said that the cow records were poorly kept and that there were inconsistencies in management practices.
In response to Mr. Gould’s comment regarding record keeping, Mr. Williams told the Tribunal that he keeps acceptable records.
The Findings
The Tribunal finds that the positive test and resultant penalty which occurred January 2002, are seen as a blemish by Mr. Williams on an otherwise excellent raw milk quality record.
The Tribunal is satisfied with the submissions of both parties that the sample of milk obtained from Wilhome Farms on January 17, 2003 was taken in a manner pursuant to the regulations. The Tribunal accepts Mr. Poitras' evidence that the University of Guelph Laboratory wherein the sample was tested is independent of the office of the Director. The sampling and testing of milk is therefore not in question as being the cause of the positive inhibitor test. Neither party presented any evidence to persuade the Tribunal that there were any irregularities in the sampling and handling of the milk or the laboratory procedures for testing the milk.
The dairy herd is a closed herd. No cows were purchased. This eliminates the possibility that milk from a cow with an unknown history could contaminate the milk in the bulk tank. Herd health management is overseen by a veterinarian. The decision to begin any cow treatment is the sole responsibility of Mr. Don Williams or his father. The milk of any ‘off-label’ treated cow is tested before being added to the bulk tank
The Tribunal finds that the manner in which Mr. Williams recorded the treatment of cows and the detail contained in his records could have been more thorough and the treatments could have been recorded in a more timely manner. Ontario Regulation 761 does not provide for any specific method of record keeping with regard to treating cows. However, it is important that record keeping be sufficient to ensure that milk from treated animals is kept out of the bulk tank.
The evidence presented indicated that each cow is milked in a stall correspondingly numbered with her identity tag. A sign is hung over the stall of any treated cow, however the treated cow is not marked with a tag or crayon.
A truck load of milk was sampled and SNAP tested at a processing plant in Trenton, resulting in a positive indication for the presence of an inhibitor. The positive SNAP test gave cause for further testing of the milk. The official testing of the milk from that truck-load resulted in an official negative indication for the load but a positive indication for the individual sample from Wilhome Farms. The official test on the Wilhome Farms sample indicated the presence of cephapirin. The SNAP test is a distinctly different test from the official test. The Tribunal finds that it was clear that the milk shipped from Wilholme Farms contained an inhibitor, cephapirin, on January 17, 2003.
Mr. Williams evidence was that cow # 8 had been treated with Excenel in an ‘off-label’ dosage. A milk sample taken from cow #8 on January 18, 2003 was found to be positive for ceftiofur. This drug is not related to cephapirin, which was the drug that was found to be the cause of the positive inhibitor test on January 17, 2003. A veterinary opinion submitted by the Director was that the source of the inhibitor could not be determined.
Notwithstanding that a specific cow or treatment could not be identified as the source of the offending antibiotic, the laboratory test results confirm that the substance was in the milk shipped from Wilholme Farms on January 17, 2003. The Tribunal put significant weight on the laboratory test results and the undisputed evidence that the sampling of milk on the appellant’s farm was sound. The Tribunal also relies on the evidence of Mr. Poitras and Mr. Williams, that the antibiotic found to be in the load that tested positive on January 17, 2003 was present at the dairy farm.
The Tribunal notes that the penalty of $6 per hl was prescribed by section 55. (3) of Ontario Regulation 761. The Tribunal finds this is the appropriate penalty in this case.
Mr. Gould explained the background and the legislation and a summary of his actions in this case. The evidence relied on by the Tribunal was brought by Mr. Poitras and Mr. Williams.
Decision and Reasons
After careful consideration of the evidence presented and submissions made the Tribunal decided to deny the appeal.
The reasons for this decision are:
The laboratory test was conclusive on the sample of milk taken at Wilholme Farms on January 17, 2003. There was cephapirin in the milk.
There was no conclusive evidence to indicate that the inhibitor was introduced to the milk at any point except at the farm.
The Tribunal is cognizant of the onus on the producer to ensure that all milk offered for sale from his farm meets the standards set by the statutes.
Dated at Ethel, Ontario this the 11th day of February, 2004