Agriculture, Food and Rural Affairs Appeal Tribunal

1 Stone Road West Guelph, (Ontario) N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: appeals.tribunal.omafra@ontario.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: appeals.tribunal.omafra@ontario.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL: Denby et al. v Dairy Farmers of Ontario Denby et al. v Dairy Farmers of Ontario 2007 ONAFRAAT 07

STATUTE: Ministry of Agriculture, Food and Rural Affairs Act

HEARING: December 18 and December 22, 2006

DATE OF DECISION: March 7, 2007

2007-07

NEUTRAL CITATION: 2007 ONAFRAAT 07

IN THE MATTER OF THE MILK 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 Bill Denby, John Denby and Betty Denby, Sutherland, Ontario from a decision of the Director of Regulatory Compliance, Dairy Farmers of Ontario, dated September 20, 2006 by which he decided not to vary the official somatic cell count (SCC) test results on milk samples collected from their dairy farm in June 2006.

Before: John O’Kane, Vice Chair; Bill Schaefer, Member; Cor Kapteyn, Vice Chair

Appearances: Donald Good, counsel to the appellants Geoff Spurr, counsel to the respondent Bill Denby, appellant Gwen Denby, witness for the appellants Gary Smitheram, witness for the appellants Bruce Pearse, witness for the appellants Ian Crowe, witness for the appellants George MacNaughton, Director of Regulatory Compliance, respondent Charles Fulton, witness for the respondent

DECISION OF THE TRIBUNAL

Bill Denby, Betty Denby and John Denby (the “Denbys”) are dairy farmers. They appealed to this Tribunal challenging a decision of the Director of Regulatory Compliance (the “DRC”), dated September 20, 2006. In that decision the DRC upheld a Somatic Cell Count (“SCC”) penalty related to milk from Denby’s dairy farm from June 2006. On consent of all parties the appeal was broadened to include the SCC penalty results for July and August 2006.

The appeal was heard on December 18 and December 22, 2006. The Denbys were represented by Mr. Donald Good. However Mr. Good’s representation of the Denbys ended when Bill Denby’s cross-examination finished prior to 10:00 a.m. on December 22. With the Tribunal’s permission Mr. Good then withdrew as counsel for the Denbys and Bill Denby took over to conduct the remainder of the Denbys appeal.

The evidence was completed late on the afternoon of December 22 and the Tribunal directed the parties to exchange and file their submissions and legal arguments in writing by January 15, 2007. The Tribunal also directed the Appellants then had until January 20, 2007 to file any reply submissions.

On December 27 the panel learned the appellants filed a request on December 26 for the appeal proceedings be dissolved. The appellants asked for a full investigation into allegations they raised at that time of bias on the part of the panel. The panel ruled against the Denby request to dissolve the proceedings

Hearing Preliminaries

At the commencement of the hearing Mr. Good raised a concern over materials in the DRC productions related to (i) bacteria testing in the Fall of 2006, (ii) cleanliness and farm operations, (iii) a non Grade “A” penalty.

Mr. Spurr, counsel for DRC, clarified that their materials were divided into Part A, dealing with the SCC issue and Part B dealing with the bacteria and non Grade “A” penalty issue. He indicated the DRC was only prepared to deal with the SCC issue. The Part B materials were assembled and included by the DRC anticipating the appellants’ leading evidence on (i), (ii) and (iii). He submitted that those issues were not properly before the Tribunal. Mr. Good agreed that the Tribunal did not have jurisdiction to deal with those other issues in this appeal.

The Tribunal confirmed that, subject to proper proof, it would only consider the material filed by DRC that related to the SCC issue.

The next issue was raised by Mr. Spurr in response to Mr. Good’s advice that he had Bill Denby and Gwen Denby available to testify on December 18 and an additional fifty witnesses on his witness list. Mr. Spurr, who indicated he had four witnesses, submitted the hearing should not proceed if there was to be a long delay between hearing days to accommodate fifty witnesses. The Tribunal ruled that the hearing would start and encouraged Mr. Good to re-examine his witness list to consider if all fifty witnesses were necessary.

Mr. Spurr disclosed that in the past he had done legal work for the Ontario Broiler Hatching Egg and Chick Commission. Tribunal Member Cor Kapteyn had been involved with that commission in the past. Mr. Good confirmed that the appellants were satisfied there was no conflict in Mr. Kapteyn participating on the panel.

Statutory Context

Section 52 of Ontario Regulation 761 made under the Milk Act provides that the milk of every producer must tested at least once a month for, among other things, somatic cell count (SCC). The testing must be done at a laboratory approved by the DRC. The SCC cannot exceed 500,000.¹

Section 55 of O.Reg 761 provides that where, as with the appellants, the section 52 SCC test exceeds 500,000 for three consecutive months, an escalating penalty is imposed on the producer.²

Section 53 of O.Reg. 761 provides a producer aggrieved by a section 52 SCC test the right to ask the DRC to reconsider the test results. In this case the appellants exercised that right and the DRC confirmed the unfavourable SCC test results.³

Under section 16(1) of the Ministry of Agriculture, Food and Rural Affairs Act the Denby’s can appeal the DRC’s confirmation of the unfavourable SCC test results to this Tribunal.⁴

The Evidence

Mr. Good made opening remarks stating that the appeal was from the decision of the DRC to uphold SCC test results. Mr. Good said that the Tribunal would hear evidence with respect to duplicate milk sampling and testing by the appellant and the relationship between the operation of the milking barn and SCC test results.

Ms. Gwen Denby gave evidence before the Tribunal. She stated that she is a dairy farmer from Sunderland, Ontario. Ms. Denby told the Tribunal that:

• She has been married to the appellant Bill Denby for 29 years.
• She has been milking the Denby herd twice daily for 30 years on behalf of the licensees, Bill Denby and his parents Betty and John Denby.
• The Denby milking herd is made up of approximately 80 cows.
• Their milk line is sanitized prior to each day’s milking. Each milking machine unit is dipped in chlorinated water and rinsed before attachment to the next cow to be milked. After milking the lines are washed with soapy hot water and rinsed in a cold acid rinse.
• Each cow’s teats are dipped in sanitizing solution before and after milking. After milking each cow’s teats are sprayed with a solution that prevents bacteria from entering the teat canal.
• After each day’s milking the milking machine units are scrubbed out, the milk house is washed with bleach and dish soap and pressure washed.
• The milk is filtered before it enters the bulk tank from the lines. Two filters are used instead of the usual single filter.
• Before milking, each cow’s udder is pre-stripped and the milk examined for irregularities. If the milk appears lumpy or of a yogurt like consistency, the cow is marked with dye and milked last. Listerine may be injected into the teat to treat the condition. When cows appear sick they are separated from the herd and treated by Bill Denby. The irregular milk and milk from sick cows is not added to the bulk tank.
• SCC is indicative of cows shedding white blood cells due to bacteria in the udder. The udder of such a cow is hard and swollen. The cow will become sensitive to touch and the milk will appear abnormal at time of stripping.
• Cows with high SCC may or may not show clinical signs indicating that they have high SCC.
• During the months of June, July and August 2006, nothing was changed in the routine operation of the barn.
• The health of the herd was normal in the period of June to August, 2006. The milk house and equipment was maintained in its usual state in June to August of 2006.
• During the month of October 2006 an SCC penalty was incurred. Mr. Charles Fulton, University of Guelph Laboratory Services (UGLS), the laboratory used by the DRC for official SCC testing drew two graphs and explained how the SCC test results could be interpreted in one of two ways depending on who was reading the results. The graphs and explanation were sent to Mr. George MacNaughton, DRC.
• Mr. Fulton confirmed that summer students working at the lab may have interpreted the SCC test results differently from how laboratory staff usually interpret them.
• The SCC test results are included in the monthly milk cheque stub. If she notices that the SCC test results are high she renews her diligence in checking cows for abnormal milk by pre-stripping each quarter.
• When SCC is high, the filter on the milk line will become plugged with thickened milk. The Denby filters had not been plugged in the past 2 years.
• Veterinarian Chris Green manages the reproductive operation and health of the herd. Cannington Vet Services manages any non reproductive health issues for the herd. Cannington Vet Services had not been called to the farm recently because the herd had been healthy and Bill has managed minor health issues himself.
• Dairy Herd Improvement (DHI) services for milk testing are not always used. In June through August 2006, DHI services for milk testing were used.
• She could not recall if anything unusual occurred because of SCC in June through August of 2006.

Ms. Denby responded to questions. She stated that:

• She was the person in charge of milking on the farm. Both she and Bill Denby are knowledgeable with respect to administering DHI supervised testing. She recollects that DHI testing supplies were delivered to the farm on two occasions in June through August of 2006.
• As stated by Dr. Schell DVM in his letter dated December 5, 2006, no medications for treating or preventing mastitis had been purchased by Bill Denby from Cannington Veterinary Services in the last five years. This included the period June through August 2006.
• If udder health issues are not apparent at the time of milking, an inspection of the filter will indicate that it is plugged and that an SCC issue exists.
• She believed that the filter did not prevent all somatic cells from going through into the bulk tank.
• The DHI test results indicated that some cows had high SCC but they did not show any visible signs. Cows known to have high SCC were slaughtered; however their milk could have been introduced to the bulk tank before slaughter.
• She is familiar with the term clinical mastitis, however, not certain of the term sub-clinical mastitis in the context of the Denby farm never having had a big issue with mastitis.
• The Denby’s raise their own replacements cows, however, cows are bought at auction from time to time. Cows purchased at auction receive a vitamin shot prior to joining the herd.
• She is aware that SCC tests results that exceed 500,000 will incur a penalty.
• In June 2006, the SCC test result indicated 532,000. Some months were higher. She was not familiar with the method for determining SCC, nor was she aware of the provincial average for SCC.
• When she noticed the sharp increase in SCC test results (obtainable on a weekly basis online from the DFO producer website) in June 2006, DHI testing was administered by her and Bill Denby. Milk samples were taken to a laboratory independent of the UGLS used for SCC testing by the DRC.
• As indicated in the December 5, 2006 letter from Dr. Schell, DVM, Cannington Veterinary Services, California Mastitis Tests (CMT) were purchased by Bill Denby in September 2006.
• Bill Denby conducted any necessary CMT testing. No CMTs were used in June through August 2006. Individual cow culture testing is done in cases where SCC is an issue; however there was no need for culture tests as there was no issue with SCC. Dry cows do not receive dry cow treatment.

Bill Denby

Mr. Bill Denby gave evidence before the Tribunal. He told that Tribunal that:

• He had been a dairy farmer since 1976, entering the business with his parents. The Denby family is fifth generation dairy farmers.
• The Denby dairy operation uses very little outside help. He manages the overall dairy operation including the accounts, scheduling veterinary visits and the day to day activities of feeding cows and replacing bedding.
• He has other interests that frequently take him away from the farm. His wife Gwen Denby is largely responsible for managing the farm in his absence. Ms. Denby has high standards for the management and maintenance of the milking operation and equipment.
• The high SCC was first noticed in June through August of 2006.
• He is known in the industry for challenging Dairy Farmers of Ontario (DFO) policy. He had noticed that his milk quality test results begin to deteriorate when he challenges the DFO.
• He began testing milk samples at an independent laboratory several years ago. He obtained sample vials from Bulk Tank Milk Graders (BTMG) and followed proper procedures for taking samples. He has taken the Wisconsin Bulk Tank Grader course and has found that the procedures are more rigorous than those in force among Canadian BTMG.
• The herd was purchased as a group from Carson’s Auction of Listowel. The herd had a history of low SCC. No new cows were purchased during the period of June through August, 2006.
• Ms. Denby will relate any problems with the herd to him for follow up.
• Herd health is his responsibility. Ms. Denby does not administer the CMT.
• Herd health is maintained by taking great care with the cleanliness of the environment in which the cow lives, and the machinery and premises used for milking.
• Dry cow treatments do not prevent mastitis. Dry cows in the Denby herd, have their teats sealed to prevent the entry of pathogens.
• When a cow is identified as having any health issues, it is immediately isolated and each udder pre-stripped and the CMT administered. The CMT gives an indication that infection may be present so that further testing can be done. When the CMT results indicate that infection is present, Listerine is used. The milk of cows treated with Listerine appears normal the next day 90 percent of the time.
• During the period of May through August 2006 he administered the CMT approximately 10 times to a herd containing 80 animals living in a scrupulously clean environment.
• There was no need to isolate any cows due to health concerns during the period May through August 2006.
• Six cows were isolated in May through August 2006 due to minor symptoms of mastitis.
• He administers the DHI testing when he has not been able to determine the cause of a problem. DHI testing does not involve pre-striping a quarter. The DHI testing requires the use of a meter to regulate the filling of a sample vial. The metered volume of milk is considered to be representative of the milk from the tested cow.
• He and Ms. Denby kept records of the identification numbers of cows sampled and their corresponding vial bar code numbers under the DHI testing method for the entire herd on July 11, 2006.
• Several of the cows tested under the DHI method in July 2006 had their cow numbers linked to sample vials containing samples taken from the bulk tank. This was indicated in the record of the July 2006 DHI testing by a check mark beside the vial bar code number.
• DHI rules do not permit the substitution of milk from the bulk tank for that of individual cows.
• DHI testing was also done on August 14, 2006 the results are dated August 15, 2006. The results of the testing done August 14, 2006 indicated that the SCC was in the range of 392,000 to 452,000
• SCC in August 2006 is 527,000 according to the data on the milk cheque dated Septmeber 14, 2006.
• Double samples were taken from May 30 until December 1, 2006.
• Greenbank Milk Transport serves the Denby farm. Milk is picked up every other day.
• During the time period under appeal four BTMGs picked up milk at his farm. He is satisfied that the BTMGs from Greenbank Milk Transport sample milk according to the industry standard.
• BTMG were informed not to give him a second sample, therefore he devised a system where he took a sample under the same conditions with similar equipment and at the same time that the BTMG took samples.
• Sometimes the BTMG recorded his sample vial number on the record of pick ups.
• Once the BTMG has taken a sample, it is kept at a regulated temperature during transfer to the depot. An agent independent of Greenbank Milk Transport carries the samples to the UGLS for testing. The UGLS is an accredited test facility. His independent samples were tested at Meyer Laboratory Services (MLS); also an accredited facility.
• He had stored milk from samples taken over a 60 day period in his freezer. The samples corresponded with the samples taken and tested by the BTMG and Guelph Laboratory Services during the months of June, July, August, September, and November, 2006 as indicated in his document submission at Tab 5. The test results at Tab 5 of his materials were provided by DFO Producer Services at his request. He paid DFO Producer Services to obtain the test results.
• Mr. Charles Fulton, UGLS, explained the effects of using frozen milk samples on the test results for SCC. He understood that SCC test results from frozen milk samples will indicate a higher level of somatic cells because the milk constituents are shattered into fragments by freezing. He obtained a similar explanation from staff at MLS. Test results for frozen milk samples indicate a 10 percent higher SCC as compared with liquid milk samples.
• He took all frozen samples for which he has submitted test results to the laboratory on the same day. The UGLS report dated July 13, 2006 (Tab 7 second page) contained the results of testing of frozen milk samples that he had prepared independently. The corresponding official test results from tests done by the DRC have been recorded in the test report located on the second page of Tab 7 of his document brief.
• In some instances the DRC test result indicated higher SCC than his own independently tested samples and vice versa.
• The milk of several cows with SCC in the range of 1.1 to 2.2 million was kept out of the bulk tank when testing was done. The milk from these same high SCC cows was not included in DHI sampling and testing, however the SCC count was still high, which led him to believe that there was a problem with the official test results through the office of the DRC rather than an SCC issue at his farm.
• When he first became aware of the high SCC on his farm he requested assistance from DFO Field Services; he was told by Mr. Tony Koekoek Field Services Representative DFO that no Field Service Representative would attend if he did not culture individual cow samples.
• The high SCC was not an issue to the extent that the DRC official tests indicated it to be.
• Dr. Chris Green, veterinarian, suggested the use of selenium in the high SCC cows. He treated the cows with SCC over five million with selenium.
• The cows with high SCC showed no clinical signs of infection.
• His milking equipment underwent its usual inspection and routine servicing during the time frame under appeal.
• MLS was used for his independent sampling from September 2006 onward.
• Despite no changes to the milking practices, management or equipment, his SCC has declined.
• The DRC’s milk quality table submitted as evidence, (Exhibit 2, tab 3) indicates the penalty and warning ranges for SCC for his farm. The table indicates that the SCC at his farm was in the penalty level during June, July and August of 2006. He understood that a penalty is applied if SCC is above 500,000 for three consecutive months.
• Neither the graph indicating SCC levels for his farm as submitted by the DRC (Exhibit 2, tab 11) nor the Summary of Monthly Quality Results (Exhibit 2, tab 12) accurately reflect the quality of milk produced on his farm.
• The provincial average level of SCC has no bearing on his operation.
• The DRC conducted a review of the practices of BTMG on his farm. Four BTMG submitted written verification of sampling procedures, on August 29, 2006 and September 5, 2006.
• He believes that there is a correlation between ongoing litigation between himself and the DFO and the high SCC test results for his farm.

Mr. Denby responded to questions. He told the Tribunal that:

• By way of facsimile dated December 5, 2006, he requested documented verification of the UGLS performance results from Mr. Fulton, Laboratory Supervisor. Mr. Fulton informed him by way of telephone, that he could not meet the request. This raised suspicions that a third party was involved in preventing the requested verification from being communicated.
• Beyond a suspicion that a third party was involved in denying him access to UGLS performance record, he has no evidence that calls into question the technical protocols of the UGLS.
• He had reviewed the performance record for MLS.
• DHI testing was conducted in August and September 2006. In August the DHI testing assisted in identifying cows with high SCC. The DHI testing method is based on the sampling of milk from individual cows.
• The DHI test results for SCC were congruent with the results obtained from his own independent testing at MLS. He wanted the results of his independent testing to reflect the highest SCC possible for each cow, similar to DHI methods.
• Cows with SCC in the millions had their milk put into the bulk tank during the time that the DHI testing was undertaken. This was done to obtain a realistic result from the independent testing.
• At other times, the milk of some cows with high SCC was kept out of the bulk tank. The decision as to which cows’ milk to leave out of the bulk tank was made on the basis of low volume of milk with high SCC. Their milk was left out of the bulk tank (Exhibit 1, tab 13).
• SCC levels were high in August and September, even when the milk of cows with SCC was removed from the bulk tank.
• No culturing of cow samples was done.
• In circumstances where the bulk tank is not agitated properly before sampling occurs, the SCC test result may indicate a higher count than is accurate, due to the adherence of somatic cells to the butterfat particles in the milk.
• An unofficial test result table prepared by Mr. Fulton, UGLS dated July 13, 2006 indicates that SCC was above 500,000. in more instances than it was below 500,000. The results of official SCC tests are written in the margin. In some instances the official result is a number greater than the unofficial result and vice versa. It appears that the unofficial results are similar to the official results.
• Test results from independent samples can be found in the tables from MLS (Exhibit 1, tab 33 and Exhibit 1, tab 35).
• The tables indicate results from tests taken on frozen milk samples. None of the milk in the samples that were frozen and tested was produced in the months of June, July or August, 2006; however the milk sampled and tested, was produced on the Denby farm.
• Mr. John Meyer, proprietor of MLS, explained to him that test results obtained from frozen samples may indicate a variance of 10 percent in SCC, as compared with test results from samples of fresh milk.
• No veterinarian was engaged to assist in identifying or treating cows for mastitis in the period June through August 2006.
• Regardless of a variance rate of 10 percent, all test results in the unofficial report from UGLS (Exhibit 1, tab 7) indicate SCC above 300,000. Three hundred thousand is the warning range.
• Regardless of the variance rate of 10 percent, and not including the last two test results in the table, (Exhibit 1, tab 7) 13 of 25 samples tested indicate a result of SCC higher than 500,000.
• The DHI testing was carried out in the presence of a DHI representative. Milking of cows whose milk was not put into the bulk tank occurred during the time that the DHI representative was present.

Gary Smitheram

Mr. Gary Smitheram gave evidence before the Tribunal. He stated that he lives on the Denby’s second farm. Mr. Smitheram explained that in his position on the farm he assists with field work and miscellaneous chores. He stated that:

• He was present at the farm in the time period under appeal. He did field work and helped Ms. Denby with the milking.
• He is knowledgeable about the appearance of milk from a cow that has mastitis.
• During the months of June, July and August, 2006 he saw no evidence of any cows having mastitis.
• He worked for Schneider’s Foods for eight years, during which time he became familiar with the processes related to baking and quality control. He maintained premises that met Agriculture Canada’s regulated standard for cleanliness and quality.
• The Denby farm provides separate facilities for dry cows and sick cows. Sick cows are identified and removed from the milk line to a separate facility.

Mr. Smitheram responded to questions; he stated that:

• The Denby farm operation is similar to other dairy farms; however the level of cleanliness is superior.
• He was present during the times that milk samples were taken in June through August of 2006.
• He understands the protocol under which milk is sampled.
• During his tenure at Schneider’s he was responsible for visually monitoring the product. When issues arose he followed a prescribed procedure to deal with it.
• He observed the milk produced at the farm during the months of June through August 2006. There were no signs of irregularity.
• The practice of double sampling is a reasonable method of ensuring milk quality.
• There was no change in the practices related to milking and maintenance of the facility at the Denby farm during June through August 2006. The milking herd was also unchanged during that time.
• During the two years that he had worked at the Denby farm, the veterinarian had not been called to deal with any cow illness issues.
• He was also employed off-farm.
• Although he was not familiar with Regulation 761, under the Milk Act, he understood that milk quality penalties were imposed at certain levels of infraction.
• SCC is not always detectable from visually inspecting a milk sample.
• During the period under appeal the milk from some of the cows that were milked was withheld from the bulk tank.
• He did not have the expertise to visually inspect a cow in order to determine whether is sick or not. He did witness however, a very sick cow with a swollen udder that was treated and after its recovery was returned to the milk line.
• The milk of the sick cow had a dense lumpy appearance.

Bruce Pearse

Mr. Bruce Pearse gave testimony before the Tribunal. He submitted a copy of his certification in the Utilization of Sludge and Other Wastes on Agricultural Lands. He stated that:

• He was raised on a dairy farm and presently operates his own crop farm. He was familiar with the requirements of Regulation 761 under the Milk Act and the duties of the BTMG. The process had changed since he grew up.
• His knowledge of Mr. Denby’s dairy operation was limited to a few business arrangements such as purchasing feed and spreading waste milk.
• Due to increased bio-security measure due to BSE, he had not closely observed the Denby dairy operation. However, the cows he had seen appeared healthy and in good condition.
• He recalled that Mr. Denby informed him that double sampling was being carried out in June, July and August of 2006. He was not present during the taking of any samples.

Ian Crowe

Mr. Ian Crowe gave evidence before the Tribunal. Mr. Crowe said that:

• He is the Office Manager at Greenbank Cartage, a milk transport company. He is himself a certified BTMG. He picked up milk at the Denby farm during the period under appeal.
• In a letter dated June 2, 2006 Mr. Darrel Windsor, Regional Marketing Officer with the DFO, instructed Mr. Paul Bryan, President of Greenbank Cartage not to permit BTMG to take double samples at the request of producers.
• No BTMG continued to take double samples after they had been advised not to.
• Each BTMG has a hand held computer where he records data for milk pick up and sampling. Any irregularities with the pick up, sampling or equipment used to store, sample and pick up milk are also recorded in a log book stored in the milk house.
• He could not recall any irregularities in the operation of the Denby’s bulk tank agitator during June through August, 2006.
• The time needed to agitate the milk before sampling is not related to the volume of milk in the tank.

Mr. Crowe responded to questions. He stated that:

• Each BTMG is responsible for maintaining the quality of the sample during transfer to the depot. Greenbank Milk Transport does not want to be responsible for maintaining the quality of samples that are not in its possession.
• A transporter under contract to the DFO or UGLS, is responsible for taking the milk samples from the depot to the laboratory.
• Samples may be discarded; however the BTMG does not make such a determination. BTMG must submit all samples in their possession for transportation to the laboratory.

Charles Fulton

Mr. Charles Fulton gave evidence before the Tribunal. He stated that he has held his position with the UGLS since 1986. He stated that:

• UGLS conducts SCC testing four times a month.
• The UGLS received re-accreditation the week of December 11, 2006.
• Every day the UGLS receives a file containing milk sample data from the BTMG hand held computers. A robotic scanner is used to correlate data from the sample vials with the data from hand held computer. In this way the producer of the sample is tracked.
• The UGLS maintains calibration samples. Calibration samples contain known amounts of somatic cells. The calibration samples are tested three times per day to ensure that the equipment is performing within the range of technical specifications.
• With regard to the UGLS Unofficial Results Report (Exhibit 1, tab 7) he recalls the Mr. Denby had submitted samples for testing. The samples were in a liquid state and were cool when he received them.
• It was his experience that SCC tests done on previously frozen milk samples would result in fewer whole somatic cells being counted than SCC test on fresh samples; the opposite of what Mr. Denby had described. Freezing fractures the somatic cells. The degree to which the somatic cells fracture is affected by the temperature at which the frozen sample is maintained.
• He had responded to SCC test result challenges at various times in the past. When a challenge is made he reviews the temperature at which the sample was maintained during transport and storage, the results for calibration samples tested on the same day as the milk sample was tested, quality control records for the machinery and that the data from the BTMG hand held computers is accurately correlated with the sample vials.
• He recalled that he drew a diagram in an attempt to explain the effects of freezing on SCC to Mr. Denby.
• There is no way for the laboratory staff to know which producer submitted any given sample during for testing.
• The DFO had never instructed him to manipulate test results.

Mr. Fulton responded to questions. He said that:

• He is reasonably certain that the vials used by Mr. Denby for independent sample collection were identical to those used by the BTMG.
• He did not provide Mr. Denby with any published material about the effects of freezing on SCC.
• During July 2006 there were no problems with any of the equipment used to test milk for SCC.
• The UGLS uses different methods for determining SCC than MLS, however the results are similar.
• UGLS uses the same equipment to test DRC milk samples as is used for testing for other clients.
• UGLS guarantees the test results for the samples “as presented”.
• The DHI testing is not carried out at the UGLS. Sometimes variations in calibration samples occur. The calibration samples may be sent to the DHI laboratory for a third and confirming test result.
• He had no reason to believe that the UGLS is not working properly.

George MacNaughton

Mr. George MacNaughton gave evidence before the Tribunal. He stated that:

• He has held the position of Director of Regulatory Compliance for one year.
• Every month four milk samples from each producer are tested for SCC.
• If the SCC is over 500,000 in three months in any four month period, a penalty is applied under Regulation 761 of the Milk Act.
• Producers with SCC test results of 300,000 are considered to be at the “warning” level. A level of 200,000 somatic cells is considered normal milk by the National Mastitis Council.
• Automated telephone messages are sent to producers whose test results are in the penalty range.
• SCC penalties were assessed to Mr. Denby in the months of June, July and August 2006, as the SCC had tested in the penalty range in three of four months for each of the four month periods ending in June, July and August.
• His office issues BTMG certificates to applicants who pass a written test.
• He issues guidelines for BMTGs. Milk sampling procedures are similar throughout the world but Ontario has its own milk cooling specifications.
• Milk samples are collected in vials with sealed lids and any tampering would be detected in the testing laboratory as the seal is broken when the vial is opened.
• Each sample vial has a unique number which is scanned into a hand held computer by the BMTG, along with the producer license number. No one can tell whose sample is whose using this system, until the data is downloaded into a data recording system.
• Fieldpersons may take extra samples if they are troubleshooting at a particular farm.
• The DFO employs Udder Health Specialists who can be asked to visit farms and check equipment.
• If a producer receives a fourth-level penalty and is shut off from the market, a veterinarian must check the herd and milk cultures must be done before milk from the herd may be marketed.
• When test results are challenged a review of the method of sampling, sample handling, transport and storage is undertaken by his office. One of his staff checked to be sure the bulk tank was agitated before the samples were taken, milk in the valve was not used in the samples and the proper temperatures were maintained while the samples were transported to the laboratory.
• Temperature logs were kept for the depot refrigerator, the delivery truck refrigerator and the laboratory refrigerator.
• There were no malfunctions of the hand held computers used by the BTMG on the Denby farm in June, July and August 2006.
• There is no way to identify a particular producer’s milk sample while it is being tested in the laboratory.
• The test results Mr. Denby obtained from DHI were difficult to read but showed some cows had SCC of over 1,000,000.
• The Denby herd tested around the warning level for SCC on an ongoing basis.
• He found that Mr. Denby’s private test results were higher than the official SCC test results on 20 out of 26 occasions (Exhibit 2, tab 37).
• Mrs. Denby testified that she observed signs of acute clinical mastitis in some of the Denby cows; ideally an SCC problem is identified before it reaches that stage.
• He was concerned about the use of Listerine to treat mastitis.

In response to questions from Mr. Denby, Mr. MacNaughton indicated:

• If a milk producer has a high SCC his office sends a voice advisory and follows up with a letter containing advice on lowering the SCC and fieldpersons may visit to see what they can do at the farm.
• The fieldpersons may investigate to see if the BTMG sampled the milk properly.
• The onus is on the producer to meet the regulated quality standards.
• The BTMG uses the hand held computer to scan the license and the date is recorded; a time/date stamp is put on the vial by the BTMG from Greenbank Cartage.
• After testing the samples, laboratory personnel reconnect the test results to the data from the hand held computer and give it to DFO to put all the data together to match producers to samples.
• To check whether a bulk tank was agitated, you can check the tank’s time-temperature recorder or rely on the testimony of the BTMG.
• BTMGs must report anomalies at the time that milk is picked up.
• Mr. Denby had asked that Tanya Bolt inspect his farm to see if it met Grade A standards, observe his sampling procedure, then drive him to the laboratory.
• He is not a veterinarian.
• He had provided sample bottles to Mr. Denby through one of his staff.
• Producers are allowed to continue to market milk when they receive SCC penalties up to a certain point and then they are shut off from the market. They can later be reinstated but first must meet reinstatement requirements.

In response to questions from the Tribunal, Mr. MacNaughton responded:

• Approximately 80% of producers use dry cow treatment.
• He can only force producers to meet the reinstatement requirements after they have been shut off from the market, and then they must meet them in order to market milk again.
• Producers rarely reach the third level SCC penalty.
• Mr. Denby did not take the actions he was encouraged to take to deal with the SCC problem.
• If Mr. Denby had asked fieldpersons to visit his farm to advise him on his SCC issue they would have come.

Summations

The Agriculture, Food and Rural Affairs Appeal Tribunal accepted written submissions in this matter.

Mr. Denby argued that the testimony of Mr. MacNaughton was not credible as it was not supported by evidence. He submitted that with respect to his testimony about an interaction between Mr. Denby and Ms. Tanya Bolt, Mr. MacNaughton’s testimony did not make sense as he would have no reason to ask Ms. Bolt to watch him sample milk then drive him to the laboratory. He submitted that, contrary to his testimony, Mr. MacNaughton could track results as his office had the authority to contact the laboratory at any time on quality issues.

Mr. Denby submitted that a study cited by Mr. Fulton regarding the impact of freezing on SCC was not relevant as it tested milk collected from individual quarters of cows, rather than milk taken from a bulk tank and because the milk samples in the study were frozen for shorter periods of time than the milk samples collected on the Denby farm. He acknowledged that a letter authored by Mr. Myers indicated that frozen milk samples would have a slightly higher reading on a flow cytometry cell counter and that his results showed lower readings.

Mr. Denby submitted that for the most part the SCC test results in the laboratory he used were lower than the official test results on milk samples collected in September, October and November 2006. He noted that Mr. Fulton had acknowledged there was a problem with one of his machines in this time period.

Mr. Denby pointed out that Mr. Crowe had testified that the agitator on the Denby bulk tank was working properly when he – Mr. Crowe - sampled milk, notwithstanding a sensitive switch. Mr. Denby submitted that there were no concerns with the process he himself used to collect samples that were tested in the DHI laboratory. He said a DHI representative watched him take the samples and a DFO representative could have done the same if that organization had any concerns. Mr. Denby pointed out that he took his samples immediately after the DFO representative collected the official sample. He reminded the Tribunal he held a Wisconsin milk grader’s licence, which the BTMG did not.

Mr. Denby submitted that the testimony of Ms. Gwen Denby was that everything was kept as clean as possible when milking and that the cows and the environment were their priorities. He pointed out that no new milking cows had been purchased in two years and the farm had a process to deal with issues. He argued that he had provided proof that Listerine was used by organic farmers to treat mastitis.

Mr. Denby agreed that there was a SCC problem with specific cows in his herd. He argued that when their milk was diverted from entering the bulk tank and fed to calves the official SCC test results did not change. He submitted the DHI test results on samples collected in September 2006 did show lower SCC but the test pattern fluctuated between the DHI laboratory and the official test results.

Mr. Denby argued that he had received special treatment from the DFO on all issues related to quality and policy and that if he challenged the DFO on anything, it used its powers to make life difficult for him on the farm. He submitted that the milk testing program used to collect and sample milk for the official test results could be manipulated. He argued that a system that was developed by him, Mr. Fulton, the BTMG and Mr. Myers of MLS was more reliable.

Mr. Denby submitted that his malfunctioning agitator contributed to the SCC test results in the period in question and argued that the official results were not representative of the milk offered for sale.

Mr. Denby asked the Tribunal to expunge the official SCC test results for the Denby farm from the period June 1, 2006 – September 19, 2006 and order the repayment of all SCC penalties in that time period.

Mr. Spurr submitted that Mr. Denby had not provided any evidence to support his allegation of tampering with milk samples collected on the Denby farm. He submitted that the official SCC test results on the Denby farm on samples collected in June 2006 - which were in the penalty range - were consistent with SCC test results for the preceding year. Mr. Spurr argued that a coordinated effort between the DFO, the DRC and personnel at the UGLS would have been required in order for the Denby milk samples to be tampered with on a uniform and consistent basis.

Mr. Spurr argued that the evidence was that the milk samples collected by BTMGs from the Denby farm were procured, handled, tested and recorded correctly. He submitted that greater care would have been taken by BTMGs when Mr. Denby asked them to take a second sample for him, and later secured his own samples immediately after they collected the samples used for official testing.

Mr. Spurr pointed out that Mr. Fulton had testified that milk producers’ samples are randomly tested, UGLS personnel do not know the identity of the producers of milk throughout their testing procedures and he had undertaken a review of the Denby milk samples tested in June, July and August 2006 and found no discrepancies or errors in the laboratory procedures.

Mr. Spurr submitted that the milk testing regime for the official test results which uses qualified BTMGs using electronic technology, a third party milk sample transportation provider and a third party laboratory to test the samples is a reliable system for testing SCC.

Mr. Spurr argued that the Denby farm lacked the ability to properly identify cows with elevated SCC levels as the Denby family had discontinued DHI testing when the herd was acquired and only engaged in limited SCC testing on individual cows in August 2006 after incurring penalties in June and July.

Mr. Spurr argued that Mr. Denby did not use recognized udder health management systems such as veterinary treatment for udder health, dry cow treatment, expert evaluation of milking equipment and procedures, the California Mastitis Test or culturing fresh and problem cows. He submitted that treating cows with mastitis with an intramammary infusion of Listerine, as Mr. Denby was doing, was not a proper use of that product.

Mr. Spurr pointed out that a comparison undertaken by Mr. MacNaughton of official SCC test results and SCC test results on samples collected the same day for Mr. Denby found that in 20 of 26 instances, the Denby results were higher than the official results. He argued that Mr. Denby’s suggestion that freezing milk samples he sent for private testing would result in higher SCC tests was refuted by Mr. Fulton who testified that freezing milk samples would actually lower the SCC test results.

Mr. Spurr submitted that a significant number of the test results obtained privately by Mr. Denby tested SCC in the penalty range. He argued that the Denby test results, the DHI test results and the official test results taken together proved that there was a herd SCC issue in the month the testing was done.

Mr. Spurr asked the Tribunal to uphold the official SCC test results for the months of June, July and August 2006 and to dismiss the appeal.

Mr. Denby was given an opportunity to make written submissions in reply. He indicated that it was not necessary to make any further submissions on the matter but raised an issue with regard to the process of the proceeding before the Tribunal. Mr. Denby objected to a Tribunal decision not to entertain a motion related to allegations of bias that was raised after the formal hearing process was complete.

The Issues On Appeal

For June, July and August, 2006

1. Are the official SCC results on the appellants’ milk incorrect?
2. If so, what are the correct SCC results?

The Findings

The onus in this appeal is on the appellants to satisfy the Tribunal that it is more probable than not that the SCC results for the period in issue were not in excess of the penalty level prescribed in the Regulations.

Although the appellants testified about suspicions concerning the official SCC test result they did not produce evidence to satisfy this Tribunal that the official SCC results were inaccurate. The Tribunal was not convinced by the appellants’ evidence that the DRC or the DFO is able to interfere in the UGLS testing procedures or to influence the UGLS test results.

The allegation that the Denby farm milk samples were tampered with, was not supported by evidence given by the appellants. On the contrary, adequate safeguards are in place from the time the samples are taken at the farm, delivered by a third party to an independent testing laboratory and the test results tied electronically to the farm of origin.

Although the appellants provided evidence that their own testing produced different results than the official test results there was insufficient evidence to satisfy us that the official results were incorrect. The differences in the test results could well be explained by the appellants freezing their samples and then later thawing the samples for testing. There was some conflicting evidence, primarily hearsay, about the science associated with the effect on SCC levels of freezing and thawing milk samples. The Tribunal is not satisfied with the evidence that the comparison of the official test results to the appellants’ test results is a true “apples to apples” comparison.

In any event, the appellants’ parallel testing of samples at several laboratories showed results for SCC levels to be at or near the official SCC level reported by the DFO.

Therefore, the appellants have failed to discharge their onus to prove to us that it is more probable than not that the official SCC test results are incorrect. Given this finding there is no basis to disturb the official SCC test results.

Decision and Reasons

After careful consideration of the evidence filed and the submissions made and based on the findings above the Tribunal orders:

1. The appeal by Bill, John, and Betty Denby of the SCC test results for June, July and August 2006, is dismissed.
2. The Tribunal confirms the decision of the DRC to uphold the official SCC test results for the months of June, July and August 2006.

Dated at Guelph, Ontario this 7th day of March, 2007

Footnotes

1. 152. (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). … 52 (3) The somatic cell count of milk shall not equal or exceed the following levels expressed in somatic cells per millilitre of milk during the periods indicated opposite thereto: 700,000 August 1, 1991, to July 31, 1992 650,000 August 1, 1992, to July 31, 1993 600,000 August 1, 1993, to July 31, 1994 550,000 August 1, 1994, to July 31, 1995 500,000 August 1, 1995 and thereafter. R.R.O. 1990, Reg. 761, s. 52 (3).
2. 255 (2) Where the milk of a producer is tested under section 52 and found in three of any four consecutive monthly tests to contain somatic cells in an amount equal or greater than the somatic cell level established by subsection 52 (3), the producer is, in respect of the milk marketed in the month in which the milk was last tested and found to contain somatic cells in an amount equal or greater than the somatic cell level, liable to a penalty of, (a) $3 per hectolitre in the case of a first penalty; (b) $4 per hectolitre in the case of a second penalty; and (c) $5 per hectolitre in the case of a third or subsequent penalty, (d) Revoked: O. Reg. 392/99, s. 10 (1). (e) Revoked: O. Reg. 392/99, s. 10 (1). incurred within any twelve-month period. R.R.O. 1990, Reg. 761, s. 55 (2); O. Reg. 392/99, s. 10 (1).00000 55 (2.3) For the purpose of subsection (2), the weighted average of the somatic cell content of a producer’s milk tested for somatic cells during the month shall be deemed to be the somatic cell content for the month of the milk from which the samples are taken. O. Reg. 392/99, s. 10 (2). … 55 (7.1) Where a producer incurs four penalties under subsection (2) within any twelve-month period, (a) the Director shall so notify the marketing board and the producer in writing; and (b) the milk of the producer shall not be marketed until the producer satisfies the Director that no milk that contains somatic cells in an amount equal or greater than the somatic cell level will be sold or offered for sale. O. Reg. 7/92, s. 2 (2); O. Reg. 348/95, s. 10 (2); O. Reg. 392/99, s. 10 (4).
3. 353. (1) Where a producer is aggrieved by the result of any test made under section 52, 54 or 57 or by the finding of a fieldperson under subsection 55 (5), the producer may so notify the Director and the Director shall, without a hearing, consider the matter and decide whether the result or finding should be confirmed, varied or rescinded. R.R.O. 1990, Reg. 761, s. 53 (1). 53. (2) The Director shall notify the producer and the marketing board in writing of the decision. O. Reg. 348/95, s. 8.
4. 416 (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.