Jim Jenkins v. Dairy Farmers of Ontario, 2009 ONAFRAAT 1

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 Stone Road West Guelph (Ontario) N1G 4Y2 Tél. : (519) 826-3433, Téléc. : (519) 826-4232 Courriel : appeals.tribunal.omafra@ontario.ca

APPEAL: Jim Jenkins v. Dairy Farmers of Ontario

Jenkins v. DFO 2009 ONAFRAAT 1

STATUTE: Ministry of Agriculture, Food and Rural Affairs Act

HEARING: January 8, 2009

DATE OF DECISION: January 23, 2009

2009-01

NEUTRAL CITATION: 2009 ONAFRAAT 1

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 Jim Jenkins, Belmont, Ontario, from a decision of the Director of Regulatory Compliance, Dairy Farmers of Ontario (DFO) dated March 7, 2008, to uphold the test results with respect to penalties assessed against his farm due to a trailer load of milk containing milk from his farm testing positive for inhibitory substances on December 2, 2007.

Before: Kirk Walstedt, Chair; Doug Flook, Member; Euclid Mailloux, Member

Appearances: Jim and Jeanette Jenkins, appellant George MacNaughton, Director of Regulatory Compliance Ross Crawford, DFO Field Services Representative Alex Hamilton, DFO Policies and Regulations Manager Mark Mitchell, Supervisor, Drug Residue Screening Laboratory, University of Guelph Laboratory Services

DECISION OF THE TRIBUNAL

Overview

This appeal was heard in Guelph, Ontario on January 8, 2009. Mr. Jim Jenkins appealed¹ to the Agriculture, Food and Rural Affairs Appeal Tribunal (Tribunal) from a decision of the Director of Regulatory Compliance to uphold test results with respect to penalties assessed against his farm due to a trailer load of milk containing milk from his farm testing positive for inhibitory substances on December 2, 2007.

On December 3, 2007, Mr. Jenkins was informed by Ross Crawford, a DFO Field Services Representative, that a sample of milk taken from his bulk tank on December 2, 2007 had tested positive for antibiotics. As antibiotics are listed as a prohibited substance in Regulation 761, the DFO was required to dispose of the entire load of milk that had been contaminated by the addition of the milk from Mr. Jenkins farm. DFO subsequently imposed the required penalties, pursuant to Regulation 761, which included the value of the contaminated truckload of milk which had to be disposed of.

Mr. Jenkins disputes the evidence of the DFO that the contaminated milk originated on his farm.

Issue

The issue before the Tribunal is whether or not the contaminated milk in question originated on Mr. Jenkins’ farm, and if so, were the penalties imposed by DFO proper and just.

Evidence

Jim and Jeanette Jenkins have operated a dairy farm in Belmont Ontario since 1969 and were milking approximately 90 cows on the date the event before the Tribunal took place.

Mr. Jenkins stated that at no time had any of the milk shipped from his farm been found to be contaminated with inhibitors. On December 3, 2007, he received a call from Ross Crawford, a DFO field services representative, who informed him that milk taken from his bulk tank on December 2, 2007 had tested positive for antibiotics. After hearing about the positive test result, the milk in his bulk tank was dumped since a Veterinarian had treated a cow on November 29, 2007 with a sulpha drug, Trivetrin, and the cow’s milk was in the bulk tank. Mike Tomlin, a licensed Bulk Tank Milk Grader came to the Jenkins farm at Mr. Jenkins’ request and tested two samples of milk for antibiotics with a SNAP test. One test was done on a sample of milk taken from the partial load of milk that had been dumped earlier in the evening of December 3, 2007, and the other sample was taken from a pitcher of milk in the house that contained milk from either milkings of December 1 or December 2, 2007. Both samples tested by Mr. Tomlin were negative on the SNAP test. However, Mr. Jenkins noted that the SNAP test material used had an expiry date of November 17, 2007.

The Tribunal heard evidence from Mr. Jenkins that three cows had freshened around the time of the positive inhibitor test. The milk from one of these cows that had freshened on November 29th was put in the bulk tank on December 2, 2007. These cows had been dry treated with Novo Dry Plus, a long term antibiotic, and were moved to a separate barn until they freshened. The cows had been dry for 51 days, 68 days and 118 days. The label for Novo Dry Plus indicates that no milk is to be shipped for 30 days after use, and milk should be withheld for 72 hours after calving. Although Mr. Jenkins acknowledged he only withholds milk for 48 hours and therefore does not follow the manufacturer’s recommendations, he also stated he had never experienced a problem before. In support of his practice, Mr. Jenkins provided the Tribunal with a letter dated July 9, 2008 from Dr. Randy Graham, Pfizer Animal Health on the possible effect of putting milk in a bulk tank from cows treated with Novo Dry Plus prior to the required 72 hour withholding time. Mr. Graham’s letter states in part, “Considering the length of the dry periods involved, the fact that colostral milk had been held out of the tank on all suspect cows for a minimum of 4 milkings, and the dilution factor in the bulk tank, it is my opinion that these three cows would most likely not be the source of the violative residue in this case.” We note, however, that Ross Crawford conducted a Veterinary Drug Residue Report on December 4, 2007 which states that the milk from at least one of the three cattle in question was put in the tank approximately 24 hours after she had freshened. Mr. Jenkins had signed this report and acknowledged its contents were correct.

Mr. Jenkins explained the process for keeping records in his dairy barn which includes the posting of the cows’ names that had been drug treated on a large board, in full view for his family and the hired help. He stated that he was confident that the procedures he had set out for the medical care of his herd were sound and had left little or no room for error. Despite this statement, Mr. Jenkins also agreed that his posted procedures did require improvement, as was indicated in the previously referenced December 4th Drug Residue Report.

Mr. Jenkins concluded his testimony by stating he did not dispute the validity of the testing, nor that the test on the truck load of milk was positive. It was his view that the producer sample tested was not from his farm since the type of inhibitor substance found in the sample of tested milk had not been used on his farm since October 1, 2007.

Mr. Jenkins asked that if the Tribunal finds in his favour, he would like compensation of $16,832.70, which was the total of penalties imposed on him.

Under cross examination of Mr. Jenkins by Mr. McNaughton, the Tribunal learned that:

an antibiotic given to a cow that had been treated by the Veterinarian with Trivetrin had not been recorded and the cow’s milk was put in the bulk tank.
after speaking with DFO’s Field Services Representative, Ross Crawford, late December 3, 2007, the bulk tank containing the milk from the cow treated with Trivetrin was dumped.
A young student, Brian Vine, was also involved in milking cows at the time of the contamination problem.
Mr. Jenkins does not have standard operating procedures posted in his barn.
Penicillin containing drugs Pen G, special-formula, and Novo Dry are used on the farm.
An incident occurred on the Jenkins farm after December 2, 2007 where a worker accidentally put a treated cow’s milk into the bulk tank, but no residue was found in the tank upon testing the tank.

The Tribunal heard evidence from Alex Hamilton, DFO’s Policies and Regulations Manager that the requirements in Regulation 761² under the Milk Act were properly followed with respect to the process and procedures for the sampling and testing of Mr. Jenkins’ milk sample for inhibitors, and that the penalties provided in the regulation where an inhibitor is found, were also properly applied.

Mr. Mark Mitchell, Supervisor, Drug Residue Screening Laboratory, University of Guelph stated that the University of Guelph laboratory is ISO recognized and is accredited under the Standards Council of Canada. Every step in the testing process is documented. Mr. Mitchell stated that it is not possible for the sample which was tested to be that of a producer other than Mr. Jenkins.

Mr. Mitchell testified that the truck load sample tested code 2 positive for penicillin on a disc assay test with an inhibition ring of 20 mm. He stated that penalties are assessed at .01 penicillin level which is equivalent to an 18 mm inhibition ring. The producer’s sample was found positive as well on the disc assay test and another test was performed to confirm the result. The zone of inhibition on the producer’s sample was 23 mm, which exceeds the .01 level for imposing penalties. Mr. Mitchell confirmed that the report entitled DFO Request for Inhibitor Testing correctly identified the number given to the sample collected at Mr. Jenkins’ farm with his producer number. Mr. Mitchell also confirmed that he reviewed all results and Quality Assurance procedures at the time the milk samples were analyzed and found them to be acceptable.

Mr. Ross Crawford, a Field Services Representative for DFO testified that he has been a field officer since 1998 and has been providing services to the Jenkins since 1991. Mr. Crawford noted the following:

Routine farm inspections were completed at the Jenkins farm in July 2005 and August 2007.
Key improvements in Mr. Jenkins’ record keeping was needed in 2005 and 2007 with respect to the use of “Inhibitors” as cows were being treated and the action was not recorded.
He noted that in 2007, cows were being treated with drugs and the procedures had not been recorded.
He completed a Veterinary Drug Residue Investigation Report on December 4, 2007 after receiving a call that an inhibitor had been shipped from the Jenkins farm.
Under the heading of Management Procedures, the report identified that posted procedures were unacceptable, and that permanent records, temporary records and proper treated cow milk procedures needed improvements.
Under the heading of Fresh Cows, the report identified a cow named Jade as having freshened on December 1, 2007 and her first milk in tank on December 2, 2007. The report also identified a cow named Carme as having freshened on November 28, 2007 and her first milk in tank on November 30, 2007. Mr. Crawford explained that the label for Novo Dry Plus indicates that milk from cows should be withheld for 72 hours after calving, which was not the case for these two cows.
Other matters Mr. Crawford noted from his drug investigation included milk from a cow treated with Trivetrin, a sulpha drug, was put in the bulk tank and the tank later dumped; a cow named Lucy had been treated by the Veterinarian but it was not known how much antibiotic had been given to the cow; the vacuum hose for the bucket milker used on treated cows was being hooked into same pipeline used to milk untreated cows; cows are dry treated in the parlour and then moved to another barn which could cause cows to get mixed up.
He conducted an interview with the truck driver who collected the sample of milk on December 2, 2007 from the Jenkins farm that was found to contain an inhibitor and confirmed that the sample was collected properly.

Analysis and Findings

After consideration of the evidence filed and submissions made, the Tribunal denies the appeal for the following reasons:

There was no evidence presented by either party to indicate there were any flaws in the standard process and procedures used to sample and test the milk sample collected from the Jenkins farm on December 2, 2007.

The contents of the Veterinary Drug Residue Investigation Report dated December 4, 2007 was unchallenged by Mr. Jenkins. In fact, Mr. Jenkins himself testified that he did not question the validity of the DFO testing procedure. He simply did not believe that the milk sample in question originated on his farm.

The standard process and procedures for sampling and testing milk samples as outlined in Regulation 761 under the Milk Act were followed and there was no evidence presented to question, in any manner, the system that DFO has had in place for a number of years. In addition, there was no evidence presented by Mr. Jenkins to convince the Tribunal that the penalties assessed against him were not applied properly, pursuant to what is permitted in Regulation 761.

DFO identified risk factors in Mr. Jenkins’ dairy operation in 2005 and 2007 farm inspections that could have contributed to the contamination of his milk, and the positive inhibitor test result. Of note is the evidence to suggest possible inhibitor contamination could arise at the Jenkins farm when treated animals are milked using bucket milkers, since the vacuum line for the bucket milker is connected to the same pipeline used for milking untreated cows. Mr. Jenkins acknowledged that this was indeed his past practice; however, this practice had ceased upon the recommendation of Ross Crawford that it could cause contamination problems in the future. This practice, coupled with the addition of the milk from the freshened cows into the bulk tank prior to the recommended 72 hour time period, is very likely to have caused the inhibitor contamination.

We note that Mr. Jenkins had acknowledged these findings by the DFO both in his testimony and also from the fact that he signed the Inspection Report on the same day it was conducted by Ross Crawford.

Mr. Jenkins attempted to refute evidence from the DFO that the contamination did in fact originate on his farm. This was in the form of a letter from Dr. Graham. Dr. Graham stated that in his opinion, the three cows in question would most likely not be the source of the drug residue in this case. Mr. Jenkins did not provide any additional evidence to support his position that the milk sample in question did not originate on his farm.

Despite the evidence before us that the contamination could only have originated on the Jenkins farm, the Tribunal believes that efforts have been made by the Jenkins to prevent an inhibitor contamination problem occurring again in the future.

Order of the Tribunal

The Tribunal Orders that the penalties assessed by Dairy Farmers of Ontario be upheld.

Dated at Maidstone, Ontario this 23rd day of January, 2009

Subsection 16(1) of the Ministry of Agriculture, Food and Rural Affairs Act states:

(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); 2006, c. 19, Sched. A, s. 16 (3).

Excerpts of Regulation 761 under the Milk Act Relating to Inhibitors

No producer shall sell or offer for sale milk or cream that is not produced, handled and stored in accordance with this Regulation. R.R.O. 1990, Reg. 761, s. 3.
(1) No producer shall sell or offer for sale milk or cream that,

(a) is obtained from an animal,

(i) in the period of fifteen days before, or in the period of three days after, parturition, or such longer period as is required to insure that the milk or cream is colostrum-free,

(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, or

(iii) that is not in good physical condition and free from any illness or disease that adversely affects the quality or flavour of the milk or cream;

(1) 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; and

(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. R.R.O. 1990, Reg. 761, s. 54 (1).

(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. R.R.O. 1990, Reg. 761, s. 54 (2).

(3) The results of the testing of a sample under subsection (2) shall be made known to the producer within twenty-four hours of the time the milk was placed under detention. R.R.O. 1990, Reg. 761, s. 54 (3).

(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. R.R.O. 1990, Reg. 761, s. 54 (4).

(5) Where the testing of a sample under subsection (2) shows the presence of an inhibitor, the fieldperson shall,

(a) notify the marketing board that the milk from which the sample was taken shall not be marketed;

(b) take such steps and make such orders as are considered necessary to ensure that such milk is not used for food, or in the preparation of food, for human consumption; and

(c) maintain the detention, sampling and testing of the milk of the producer until such time as the testing shows that the milk does not contain an inhibitor. R.R.O. 1990, Reg. 761, s. 54 (5); O. Reg. 348/95, s. 9.

(6) Upon receiving notice under clause (5) (a), the milk marketing board shall notify the operator of the tank-truck that the milk from which the sample was taken shall not be marketed. R.R.O. 1990, Reg. 761, s. 54 (6).

(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);

(b) $9 per hectolitre where there has been one previous detention of the producer’s milk under subsection 54 (1); and

(d) Revoked: O. Reg. 7/92, s. 2 (1).

within any twelve-month period. R.R.O. 1990, Reg. 761, s. 55 (3); O. Reg. 7/92, s. 2 (1); O. Reg. 534/92, s. 1.

(3.1) 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. O. Reg. 406/96, s. 1 (1).

(3.2) If a truckload of milk cannot be marketed because of the presence of a foreign substance, and the milk of a producer with milk in the truckload is found to contain the foreign substance, 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. O. Reg. 634/00, s. 4 (1).

(3.3) If more than one producer is liable under subsection (3.1) or (3.2) in respect of the same truckload, each producer is liable in the same proportion that the producer’s milk has to the volume of the damaged milk. O. Reg. 634/00, s. 4 (1).

(6) Any penalty to which a producer is liable in any month under subsections (1) to (5) is in addition to any penalty that may be levied under any other of the said subsections. R.R.O. 1990, Reg. 761, s. 55 (6).

(8) Where a producer incurs two penalties under subsection (3) 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 will be sold or offered for sale that contains any inhibitor. R.R.O. 1990, Reg. 761, s. 55 (8); O. Reg. 7/92, s. 2 (3); O. Reg. 348/95, s. 10 (3); O. Reg. 392/99, s. 10 (5).

Footnotes

Appeal to Tribunal
Producers