La Gantoise Inc. v. Dairy Farmers of Ontario, 2013 ONAFRAAT 2

Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West

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: AFRAAT@ontario.ca

Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Email: AFRAAT@ontario.ca

La Gantoise Inc., v. Dairy Farmers of Ontario

La Gantoise v. DFO 2013 ONAFRAAT 2

Ministry of Agriculture, Food and Rural Affairs Act

October 18, 2012 and December 19, 2012

DATE OF DECISION:

March 15, 2013

2013-02

2013 ONAFRAAT 2

La Gantoise Inc. v. Dairy Farmers of Ontario

IN THE MATTER OF SECTION 16 OF THE MINISTRY OF AGRICULTURE, FOOD AND RURAL AFFAIRS ACT, R.S.O. 1990, CHAPTER M.16, AS AMENDED.

AND IN THE MATTER OF: An Appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal by La Gantoise Inc., of Lefaivre, Ontario, from a decision of the Dairy Farmers of Ontario in which the Director of Regulatory Compliance upheld the decision to reject the contents of the bulk milk tank.

Before:

Marthanne Robson, Vice-Chair

Harold McNeely, Vice-Chair

Euclid Mailloux, Member

Appearances:

Charles Goubau, La Gantoise Inc., Appellant

Graham Lloyd, General Counsel and Corporate Secretary, Dairy Farmers of Ontario

Guy Séguin, witness

Gary MacPherson, witness

George MacNaughton, witness

DECISION OF THE TRIBUNAL

The appeal was heard in Ottawa, Ontario, on Thursday, October 18 and Wednesday, December 19, 2012. Mr. Charles Goubau owner of La Gantoise Inc., (“La Gantoise”) appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the “Tribunal”) from the decision of the Dairy Farmers of Ontario (the “DFO”) to uphold their decision to reject the contents of the bulk tank.

Background

The Appellant, La Gantoise, has been a milk producer in Eastern Ontario for over 30 years. Mr. Charles Goubau is the farm manager/owner. In the fall of 2010 the farm carried out three milkings a day. Villeneuve Transport picked up the contents of the farm bulk tank, a total of six milkings, every second day.

There is no dispute that on Sunday, November 28, 2010, at approximately 7:30 am, Gary MacPherson, a certified Bulk Tank Milk Grader (“BTMG”) arrived at the farm to pick up milk from its bulk tank. Mr. MacPherson rejected the milk because of an off odour "malty" smell. He took two samples, and did not pick up the milk. He left a rejection tag, also known as a "Red Tag" at the farm.

The Parties to the Appeal

Mr. Charles Goubau of La Gantoise, as appellant, and the Dairy Farmers of Ontario (DFO), as respondent, both appeared as parties to the appeal.

The Issue to Be Determined

Did the Dairy Farmers of Ontario properly refuse the contents of the bulk tank of La Gantoise on November 28, 2010? The issue, from the Appellant's perspective is not a dispute as to what happened on that day, but whether the proper procedure for rejecting milk was followed by DFO. If DFO erred in rejecting the contents of the bulk tank, what is the proper remedy?

The Appellant submitted the following questions:

Did the DFO comply with the provisions of the Milk Act specifically sections 37 (1) (b), 37 (1) (d) and 37 (2) of Regulation 761?
Was the measuring equipment used to evaluate the milk on the farm appropriate and in compliance with the Milk Act in terms of reliability and accuracy?
Was the evaluation of the milk on November 28, 2010 and its rejection by the BTMG accurate without the shadow of any doubt? (The more accurate legal test is on the balance of probabilities.)
Does DFO pursue a specific policy in order to make it difficult to contest the rejection of milk?

Regulatory Framework – Raw Milk Quality

Revised Regulations of Ontario 1990 Regulation 761 (“Regulation 761”) under the Milk Act in force in 2012, sets out in considerable detail requirements for producers in carrying out milking operations, specifics with respect to Time Temperature Recorders, duties and procedures for transporters of milk, including a procedure for rejecting milk. The relevant provisions are reproduced here,

(1) Before transferring any milk from a farm bulk tank to a tank-truck, a bulk tank milk grader shall examine the milk in the farm bulk tank and, if he or she determines that the milk examined either before or during the transfer should be rejected, the bulk tank milk grader shall cease or refuse the transfer of the milk to the tank-truck, as the case may be, and shall,

(b) attach to the tank a rejection tag showing the reason for the rejection;

(d) notify the marketing officer of the marketing board as soon as possible. R.R.O. 1990, Reg. 761, s. 37 (1); O. Reg. 348/95, s. 5 (1); O. Reg. 634/00, s. 2; O. Reg. 302/04, s. 2 (1).

(2) Where a producer receives a rejection tag, the marketing board may apply to the operator of a plant for acceptance of the milk for which the rejection tag was issued. O. Reg. 348/95, s. 5 (2).

(1) No bulk tank milk grader shall transfer milk from a farm bulk tank without determining the volume of the milk in the tank. R.R.O. 1990, Reg. 761, s. 38 (1).

(3) The bulk tank milk grader, immediately after determining the volume of the milk in a farm bulk tank, shall make a report to the producer showing,

(a) the date;

(b) the volume of milk in the tank;

(d) the temperature of the milk determined by an accurate hand thermometer with a stainless steel stem, supplied by the bulk tank milk grader. R.R.O. 1990, Reg. 761, s. 38 (3).

(4) Immediately after determining the volume of the milk in a farm bulk tank, the bulk tank milk grader shall start the agitator. R.R.O. 1990, Reg. 761, s. 38 (4).

(5) After the agitator has been in operation for at least two minutes and so much longer as may be necessary for the milk to be thoroughly mixed, the bulk tank milk grader shall take a sample of the milk with a sampling pipette or, if a sampling pipette cannot be used, a sanitized long-handled dipper. R.R.O. 1990, Reg. 761, s. 38 (5); O. Reg. 569/06, s. 1.

The DFO has produced a Bulk Tank Milk Graders’ Manual to accompany these regulatory provisions.

Time Temperature Recorder

The Time Temperature Recorder (“TTR”) is a monitoring and recording device. It has sensors for milk temperature, agitation, power, wash temperature in the bulk tank, sink and pipeline used for cleaning. Regulation 761, Section 34.1 requires that every producer of milk install and maintain a TTR. Regulation 761 specifies technical requirements for the TTR such as power source, types of alarms for power outage and milk temperature, and the frequency for recording milk temperature (every five minutes). Regulation 761 prescribes specifications for recording data for each alarm signaled and storage of data for three years. The TTR must be located in the milk house or in a vestibule that is attached to the milk house. The first TTRs were installed around 2004.

Mr. Guy Seguin, a DFO Field Services Representative, and engineer, designed the TTR. He is also the DFO inspector assigned to La Gantoise.

Mr. Seguin explained that the purpose of the TTR is to assist producers in maintaining milk quality. For example, on the first milking transferred to an empty bulk tank, the cooling and agitation do not start until the milk has reached a certain level. If cooling starts too soon, ice can form. A common human error prior to the required installation of TTRs was forgetting to turn on the cooling or agitation after the milking began. The TTR is designed with sensors, alarm lights and sounds to alert farm workers when the cooler or agitator has not been functioning for a certain period of time.

The cooling feature of a bulk tank is necessary to cool the milk to the temperatures required by the Regulation (Section 16 (1) (a)). The Regulation requires the TTR to display a visual alarm when the temperature of the milk in the bulk tank is higher than 10°C, except in the hour after the completion of milking; is higher than 4°C at any time except in the two hours after the completion of milking, or is lower than 1°C at any time. (Section 34 (11))

Agitation in the bulk tank is required for five minutes every hour (Section 16(2)) and a visual alarm must be triggered if the milk in the bulk tank is not agitated for at least five minutes every hour (Section 34.1 (11) (b)). Agitation mixes the milk, and assists in cooling the milk in the bulk tank as each subsequent milking is added to the tank (at a temperature between 35°C and 38°C). The bulk tank has refrigeration plates that would freeze the milk instantly if not for the agitation. The agitation per se does not cool the milk. An independent bulk tank control senses when the milk is warm and starts both the agitation and the cooler. Agitation is independent from cooling.

If there is a problem with agitation, the TTR signals an alarm and a flashing green or red light. There is also a beep which continues until the reset button is pushed.

The Evidence

Evidence of Gary MacPherson, Bulk Tank Milk Grader

Mr. MacPherson has been a BTMG for 23 years, 11 of which have been with his employer in 2010, Villeneuve Transport. His current licence as a BTMG expires March 31, 2013. He took his last refresher course and testing in February 2008.

He described the types of odours that would result in rejecting milk, including a malty smell. He described the certification testing he underwent. It included grading ten different sample bottles of milk, opening them, smelling them, writing down whether the contents were rejectable or not, and if rejected, give the reason. There is also an open book written test. He estimated he had graded tens of thousands of bulk tanks. He had rejected 5 or 6 in his career for off odours.

Mr. MacPherson testified that on November 28, 2010 at about 7:30 am, he pulled up to the farm, went into the dairy and noted that the milking had just finished. He noticed that the agitator wasn't going. He thought that odd because the agitator is usually going while the producer is still milking. He looked at the TTR and noted it said "4".

He opened the lid of the bulk tank sensed heat and smell at the same time. He then checked the breaker and saw that it was all right. He said to the farm employee who was present that there was something wrong; he was getting a malty odour. He then turned on the agitator manually, smelled the milk again and said to the employee, "I can't take it; it's malty."

He asked the employee to call the boss, and Mr. Goubau arrived. Mr. Goubau went up to the bulk tank and smelled it. Mr. MacPherson asked whether he was getting malty smell, and according to Mr. MacPherson, Mr. Goubau said "Yes." Mr. MacPherson handed Mr. Goubau the “Red Tag”, and advised him that he was rejecting the tank for being malty.

Mr. Goubau then went into the office and spoke with the employee in French and it appeared they were having a heated discussion.

Mr. MacPherson took two samples, called the office, Villeneuve Transport and spoke to his manager. He reported that he was rejecting the milk, the quantity of milk (7,959 litres), the reason for rejection was malty, he had left the Red Tag, the producer agreed and he had taken two samples.

Mr. MacPherson was advised by the manager to keep the samples, and not to put them in the sample rack, just in the fridge. Notes taken by the staff person at Villeneuve Transport confirm this information. The notes indicate a call to the DFO weekend number and a call back from “Joan” at 8:05 am, who took all the info and said this could be reported on Monday to DFO. The BTMG Manual identifies Joan McCarrel as a Marketing Officer for Western Ontario (Mississauga).

Mr. MacPherson asked Mr. Goubau what he wanted to do with the milk. Mr. MacPherson advised him it was his understanding that if a producer dumped the milk voluntarily he would lose the milk but not the production. Mr. Goubau responded that he was not going to dump it. Mr. MacPherson noted information in his handheld computer: the volume, license number, and sample number, and amount of litres. He then left the farm.

Mr. MacPherson retained the samples but did not put them with the "good" samples which would go to Guelph for quality analysis. He explained the rejected sample does not go to Guelph because it is not a representative sample.

The Red Tag is produced by DFO. Mr. MacPherson did not use the then current Red Tag (rev. 06/09), but an older version (rev. 02/06) which reads:

Your milk has been rejected for off-odour/foreign matter and is now considered Non-Grade A. The DFO office at ________________ has been/will be so informed.

Mr. MacPherson did not circle either off-odour or foreign matter, and was not aware he was required to do so. He did not fill in the name of the DFO office.

The 2009 tag has slightly different wording:

Your milk has been rejected and is now considered Non-Grade A. Reason: ____________ The DFO office at _____________________ has been/will be so informed.

In both cases the tag goes on to state:

Please be advised that according to DFO policy a rejected farm bulk tank of milk cannot be marketed under any circumstances. Also, the Bulk Tank Milk Grader decision to reject your milk is final. No second opinions are offered by DFO.

Evidence of Charles Goubau

On the morning of November 28, 2010 Mr. Goubau was advised by an employee that the truck driver was rejecting the milk. Mr. MacPherson said “Your milk is no good.” He explained the milk was too warm.

He went up the ladder to the bulk tank and found the Red Tag affixed to the bulk tank. He read the tag. He opened the cover.

Mr. MacPherson asked him to dump the milk voluntarily. He refused.

He was upset and left the milking room to go to his office. He took out all the regulations and related documents to see what recourse he might have. It was the first time this had happened to him in 32 years. The truck left. He noted the tag said “No second opinions are offered by DFO.”

He reasoned if DFO didn’t offer second opinions, he would try to hire one. He called Transport Villeneuve to ask if he could hire a BTMG at his own cost, and was advised that was not an option. DFO did not authorize them to provide another milk grader. He called a local milk processor who likewise advised that DFO prohibited them from giving another opinion.

He then tried to call all the numbers for DFO Marketing Offices on the back of the tag as well as Mr. Seguin. There was no answer at any of the numbers. This was about 9 am on that Sunday morning.

He took a sample of milk from the tank and put it in a yogurt container. He then called Mr. Blum to evaluate the milk around 10 am. By this time the milk had cooled. Mr. Blum came and evaluated the milk and according to Mr. Goubau found it to be fit for human consumption. No test results or report were presented to the Tribunal, nor was Mr. Blum called as a witness. There was no evidence of Mr. Blum’s expertise to evaluate milk, for example, whether he was a certified BTMG.

The next milking was at 1 pm, Mr. Goubau felt he had no other option but to dump the milk and clean the equipment.

La Gantoise has a TTR that was installed in 2004. Mr. Goubau testified that the TTR continually gave false alarms. At the farm they called it the Christmas tree. (It has red and green flashing alarm lights.) The alarms were very random. The producer chose to ignore that piece of equipment because of the ongoing false alarms. It was their habit to go into the milking room and stop the alarms. He testified that they had lived for 26 years without this equipment, so they went about their business in their usual way.

He described the TTR as extremely “anti-user friendly”. More recently, the company which installed the TTR recommended upgrading to the new generation which is supposedly much more user friendly.

Mr. Goubau testified that he did not have access to the data recorded by the TTR.

The first time there was any intervention regarding the TTR was in January 2010, when Mr. Seguin advised of problems with the TTR in an inspection report. There was a problem with the temperature differential. Repairs were made, but Mr. Goubau did not notice any difference in the alarms after the repairs.

Following the incident on November 28, 2010, repairs were made to the automation of the agitator in late November or early December 2010. The producer replaced the part themselves.

Evidence of Guy Seguin

As noted above, Mr. Seguin designed the TTR and was the DFO Field Services Officer for La Gantoise. He explained that up to 10 years of data is collected on an SD card in the box of the TTR. The TTR creates a data point every 5 minutes of cooling, records any alarm, any acknowledgement, such as a button pushed to stop an alarm, or maximum temperature reached.

The Report dated 7 March 2011 re-November 28, 2010 incident, prepared by Mr. Seguin states:

"The Time Temperature Recorder has been accurate in giving the correct temperatures and correct time and date for the last 12 months. The data shows that the producer and her employees knew or ought to have known that the agitator of his Bulk Tank was not working properly for a period of at least 9 months. The data shows that although the Time Temperature Recorder would show a temperature of 4°C, they would sometimes be layers of warm milk on top of cold milk in the bulk tank because of the poor bulk tank agitation for blending milk. In many instances, the milk temperature – when agitated after a long period of no agitation – would rise by a differential of more than 5°C. It would sometimes trigger a “SLOW COOLING” alarm…

For the period March 1st, 2010 to the end of November 2010, the employees and producer of La Gantoise knew or ought to have known that the bulk tank agitator was not working properly since they acknowledged at least 690 times that the agitator was not working properly…

On December 3, 2010, the producer got its bulk tank agitator repaired. The agitator is now mixing the milk for at least 5 minutes per hour.

There has not been a single “NO AGITATION” alarm since December 3, 2010.

The report summarizes the TTR data between November 26, 2010 at 10:00 am and November 28, 2010 at 12:00 pm which supports those conclusions.

Mr. Seguin testified that improper cooling was the number one factor for milk being malty. Milk at 13°C would be consistent with malty but this would not necessarily be the only reason for maltiness.

Evidence of George McNaughton, Director of Production and Regulatory Compliance, DFO

Mr. McNaughton has been employed with DFO except for one year since 1981. He has held progressively senior positions during that time, including Raw Milk Quality Program Manager. He is very familiar with the regulatory framework under the Milk Act. He is also a certified BTMG. DFO has an agreement with the Ministry of Agriculture, Food and Rural Affairs to administer Regulation 761.

Mr. McNaughton testified that DFO has adopted a policy of not marketing rejected milk which it has discretion to do under Regulation 761 Section 37 (2). In September 2005 the Raw Milk Quality Committee of DFO addressed the following issue:

A number of producers have complained that they are not entitled to a second opinion if they disagree with the driver's flavor grade. The committee is of the opinion that drivers are the experts and that the Board should support their decision.

The Committee then made the following recommendation: "that the Board not market rejected farm bulk tanks of milk." The DFO Board accepted the recommendation in September 2005, and that is the policy currently in place.

Mr. McNaughton, who was also secretary to the Raw Milk Quality Committee in 2005, explained there are two issues behind the rationale for not providing second opinions. The first one relates to quality. The person providing the second opinion at the farm level may not have the experience of the primary person doing the milk grading. This would mean relying on a less qualified person who may do it less frequently to provide a second opinion. The processing plant has the final call on that milk. Having a second opinion would merely shift the responsibility from the primary bulk tank milk grader to the second party providing the opinion.

The second aspect relating to quality concerns the image of milk. As stated by Mr. McNaughton "milk quality doesn't get any better after you leave the farm". If you have a poor quality tank of milk that makes its way through the system, it affects the keeping quality of the product. As far as the image of milk goes, DFO "only markets quality milk".

The second issue with provision of a second opinion is the logistics: How many people would be needed? What is the response time in terms of getting back to provide that second opinion? What are the associated budgetary requirements to make sure that there are personnel on the rare occasion when a tank gets rejected? Waiting for a second opinion would hold up the transportation and processing equipment.

Before installing Time Temperature Recorders in 2004, 1200 to 2000 bulk tanks were rejected each year. Currently, there are approximately 760,000 pickups of milk per year in Ontario; less than 100 farm bulk tanks are rejected each year. The primary reason for bulk tank rejections prior to the TTR was that producers would forget to turn on the cooling mechanism. The milk might sit overnight until the first milking the next day. The cooler would then be turned on trying to salvage it, but it would still be malty.

Mr. McNaughton testified that sense of smell for the purposes of grading milk is an art. He is a certified BTMG, and may grade samples once a year. He admitted he did not have the experience of someone doing it every day.

DFO can require a BTMG to take a refresher course at any time. DFO monitors how many bulk tanks and loads of milk are rejected. BTMG accountability guidelines provide that infractions are documented, there may be a hearing, and in extreme cases he has revoked certification for poor performance.

The ability to detect rejectable milk in a sample is verified every five years, not the sense of smell per se. There is no interim testing unless an issue is identified. A high number of rejected bulk tanks may identify an issue with a BTMG, as well as rejected loads at the plant.

When there are poor cooling conditions, there is accelerated bacterial growth. Dying bacteria create the odour. Malty is a fairly common smell, which will turn to a sour smell over time. He explained that the “malty” smell comes from one particular bacterium, streptococcus lactis var. maltigenes. The term “malty” comes from the name of the bacterium.

There is a generic test to measure overall bacterial count and to measure bacterial growth. Certain types of bacteria have bigger effect on quality of milk than others. Spore forming bacteria tend to create spoilage, but are not measured. Streptococcus lactis var. maltigenes bacteria can be measured with a specific test, but, according to Mr. McNaughton, it is not feasible in a system with thousands of samples. It is a cultured process which may take several days.

The analysis of the total bacterial count could be done after the fact. The results would be several days later and would not necessarily determine why the milk was rejected or the type of bacteria. In the case of rejected milk, DFO decided not to identify the specific bacteria. There would be a series of tests needed to identify specific bacteria, by elimination.

Whether bacteria in milk makes it unfit for human consumption depends on the length of time milk is on the shelf. At the initial stages of spoiling it may be fit for human consumption. Over time bacteria may spoil the product. The whole milk distribution system is set up around the length of time the product is out in the market place. As an example, fluid milk with a 30 day shelf life may be good for the first few days; it may spoil at 8 or 9 days. It may not have the full shelf life and end up getting pulled and returned to the dairy. You could drink sour milk and not necessarily get sick.

Normally when milk is rejected it is traced to a farm issue. The TTR has helped reduce the number of rejections. It would be a lot of effort to set up a testing program for a very few number of cases.

According to Mr. McNaughton, the rejected sample is not part of the regulatory framework. Section 38 applies only when the determination to transfer the milk has been made. There is an obligation to take sample where the milk is to be transferred from the bulk tank, not when milk is rejected.

When asked by the appellant whether DFO prohibits BTMGs from giving a second opinion on a private basis, Mr. McNaughton declined to answer and said it was a question for the transporter.

Analysis and discussion

There is corroborating evidence to support the opinion of Mr. MacPherson in rejecting milk for an off odour. TTR data summarized in Mr. Seguin’s Report, shows that there was a problem with the agitator, or at the very least that there were numerous and ongoing alarms indicating that there was a problem with the functioning of the agitator.

Mr. Goubau and his employees chose to consider the alarms, which he described as going off like a Christmas tree, to be a problem with the TTR monitoring equipment rather than a problem with the agitator. It is analogous to having a repeated check engine light in one's car, and concluding it must be the check engine light that is malfunctioning and not the engine itself.

The Appellant ignored these warnings at its peril. On November 28, 2010 the strategy of pressing the reset button finally failed, and as the agitator had not been functioning properly for sufficient length of time the temperature of the contents of the bulk tank rose and created the malty smell and heat that Mr. MacPherson described.

While Mr. Goubau suggested many reasons why someone's olfactory senses might malfunction, there was no evidence to suggest that Mr. MacPherson was not fully functioning in his ability to detect a malty odour. Testing qualifications are conducted every five years, which might be a fairly large time gap, considering how few bulk tanks are in fact rejected. Mr. MacPherson's assessment is consistent with the evidence of malfunctioning agitation and failure to cool the entire contents of the tank.

Once the underlying equipment issue i.e. the automation for the agitator, was repaired, there were no more random alarms.

The regulation requires that the rejection tag show the reason for rejection. In this case, the tag specified two possible reasons for rejection: off odour/ foreign matter. Neither was circled. Mr. MacPherson was not aware that he was supposed to circle one of the reasons. The tag did show the reason for rejection, but did not specify it. The producer was none the less informed and clearly understood the reason for rejection.

Mr. MacPherson believed that Mr. Goubau had agreed that here was a malty smell. However, Mr. Goubau's actions from the time he was informed of the rejection of the bulk tank contents until the date of hearing are unequivocal in demonstrating his belief that the contents should not have been rejected. It is not relevant whether Mr. Goubau agreed or did not agree with Mr. MacPherson's assessment of the contents of the bulk tank.

The evidence shows that a DFO Marketing Office was informed of the rejection within a half hour or so of Mr. MacPherson rejecting the milk. By any standard, that is “as soon as possible”, in particular on a Sunday morning. The Regulation does not require the BTMG to directly inform the Marketing Officer.

DFO submitted that there is no legal requirement to take a sample of or test rejected milk under Regulation 761 Section 37 which describes the procedure when rejecting a bulk tank of milk. If the milk is rejected, as in this case, Section 38 outlining sample storage procedures does not apply; nor does Section 57 requiring testing of samples referred to in Section 38.

The procedure for taking samples determined by DFO is the same whether the milk is rejected or not. It is only the procedure after sampling (storing and testing) which varies. The DFO Bulk Tank Milk Graders’ Manual (Worksheet #8) relating to rejected milk states:

Do not put the sample in the fridge sample rack for submission to the U of G Lab. Retain at depot, for personal reference or another opinion and disposal.

Why would the BTMG be instructed to take a sample if it is not to be tested? If nothing else, it could be another quality control mechanism to validate the decision to reject the milk. Mr. McNaughton claimed there were far too many possible causes for rejected milk to test for. However he stated that the “malty” smell comes from one particular bacterium, streptococcus lactis var. maltigenes, and that there are tests to identify and quantify this particular bacterium. In this case it would have been possible to test the samples for the exact cause of the rejection. Testing one hundred samples of rejected milk per year would not necessarily be onerous for DFO.

The DFO argues it has adopted a policy of "no second opinions" for rejecting milk, after the initial determination of the BTMG. The rationales are milk quality, its image, logistics and expense.

DFO associates not providing second opinions with not marketing rejected bulk tanks of milk. However these are two distinct steps. According to the documents presented as evidence at the hearing by DFO, the Raw Milk Quality Committee was addressing the issue of providing second opinions; however, their recommendation was to not market rejected tanks of milk. There was no evidence submitted to document more specifically the policy regarding not providing second opinions. Counsel for DFO submitted that the BTMG Manual was not policy.

The DFO publishes a booklet entitled “Raw Milk Quality Program Policies”. A copy of the booklet dated November 1, 2011 was filed with the Tribunal, but not submitted as evidence at the hearing. A copy of this booklet, as well as, any updates to DFO policies, is available on the DFO’s website.

While not made evidence in this case, the Tribunal notes on page 2 that there is a reference to testing the sample “from each bulk tank of milk shipped”, but no reference to taking or not testing samples of rejected milk.

The “Raw Milk Policy Book” does not include any statement regarding “no second opinions”. It may be that this policy is specified elsewhere in some DFO document that was not made available to the Tribunal at this hearing. A policy statement on the rejection tag is not sufficient to adopt a policy.

DFO has chosen not to exercise its discretion to allow rejected tanks to be considered by processors. This is consistent with their decision of no second opinions, and is within their legislative discretion.

It is possible that even though Mr. MacPherson sensed heat and smelled a malty smell, the contents of the tank might have passed the quality control tests. That is not how the system works. While the Tribunal is sympathetic to Mr. Goubau's limited options and having to dump the tank in order to proceed with the next milking, it is the opinion of the Tribunal it was a situation of his own making.

DFO does make it difficult to contest the decision of the BTMG. As stated on the rejection tag, the BTMG’s decision to reject milk is final. This is done for valid supply management reasons, as explained by Mr. McNaughton.

The procedural errors made by DFO and its agent, Mr. MacPherson: not properly filling out the tag, and not proving DFO had in fact adopted a policy of “no second opinions”, at least in terms of the evidence presented in this case, nevertheless does not negate the determination by the BTMG.

On appeal, the Tribunal may substitute its decision for that of DFO. In this case, the Tribunal would not have decided differently.

Order of the Tribunal

The Tribunal accepts that DFO appropriately rejected the contents of the bulk milk tank. The appeal is dismissed.

Dated at Ottawa, Ontario this 15th day of March, 2013.