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
AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL
APPEAL:
Vice v Director Regulatory Compliance, Ontario Raw Milk Quality Program
Vice v Director of Regulatory Compliance, ORMQP 2014ONAFRAAT17
STATUTE:
Ministry of Agriculture, Food and Rural Affairs Act
HEARING:
June 17, 2014
DATE OF DECISION:
July 4, 2014
2014-17
NEUTRAL CITATION:
2014 ONAFRAAT 17
Vice v Director Regulatory Compliance, Ontario Raw Milk Quality Program
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 Ronald and Debra Vice of Blackstock, Ontario from the decision of the Director Regulatory Compliance under the Milk Act regarding Abnormal Freezing Point Test Results.
Before:
Glenn Walker, Vice-Chair William Schaefer, Member John Rudics, Member
Appearances:
Ronald Vice, Appellant Graham Lloyd, General Counsel for the Respondent, Dairy Farmers of Ontario George MacNaughton, Witness for the Respondent
DECISION OF THE TRIBUNAL
The appeal was heard in Guelph, Ontario, on Tuesday, June 17, 2014. Ronald and Debra Vice (the “Vices”) appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the “Tribunal”) from the decision of the Director of Regulatory Compliance under the Milk Act pertaining to Abnormal Freezing Point Test Results.
Background
The Vices have been dairy farmers for a number of years, carrying on the business as Birchwind Holsteins at 4220 Townline Road North, Blackstock, Ontario. They carry on an organic operation. On March 7, 2014, the Vices were advised by a message on the Milk Line that a sample of milk taken from their bulk tank on March 4, 2014 had been tested with an Abnormal Freezing Point (AFP). By letter dated March 13, 2014 from the office of the Director of Regulatory Compliance, the Vices were officially advised of the test result and that a penalty of $2.00 per hectolitre would be applied to all milk they shipped during the month of March, 2014. The Vices asked the Director of Regulatory Compliance, George McNaughton, to reconsider his decision. By letter dated April 2, 2014, the Director confirmed to the Vices that, as a result of his investigation, he had determined that the sample was representative of the milk offered for sale and that the sample was handled, tested and reported correctly. He therefore decided to uphold the test result for the sample taken from the Vices’ bulk tank on March 4, 2014.
A penalty of $530.46 was deducted from the Vices’ Dairy Famers of Ontario (DFO) cheque for March, 2014 and the freezing point test result will remain on their quality record and will exclude them from incentive dollars from the Organic Meadow Cooperative and quality awards from DFO.
The Parties to the Appeal
Ronald Vice and Debra Vice, as appellants, and the Dairy Farmers of Ontario, as respondent, were parties to the appeal.
The Issue to be Determined
Are the Vices entitled to a refund of the $530.46 penalty from DFO and to have the AFP test result removed from their DFO record?
The Evidence
Ronald Vice
Ronald Vice gave evidence that the AFP test result came as a complete surprise to him and his wife. They feel that the sample taken on March 4, 2014 from their bulk tank was not representative and they are concerned that the sample was not taken or tested properly.
In support of his position, Mr. Vice challenged the manner in which the subject sample was taken, transported and tested on the following grounds:
- DFO has been changing its milk sample transportation methods.
- He has had incidents when DFO has reported to him that the sample from his farm was “temp damaged – storage/transportation”.
- He has also had incidents when DFO has reported that the sample has gone missing.
- Mr. Vice testified that on March 4, 2014, they were experiencing extremely cold weather at -24.5 degrees Celsius.
- DFO had commented that on March 4, 2014, their volume was up by 114 litres from the pickup on March 2, 2014. He testified that the volume fluctuates daily for a variety of reasons including the fact that their cows go outside every day for their corn and also due to the weather.
- Fat and protein fluctuations can be attributed to a frozen haylage bale fed to the cattle on March 3, 2014.
- Mr. Vice relied upon the fact that he used standard operating procedures on the days leading up to March 4, 2014.
In conclusion, Mr. Vice stated that there are many variables such as extremely cold weather, human error in the sampling, problems during transportation that could have possibly affected the test result and no one is to blame. He respectfully requested that the fine of $530.46 be refunded to them and that the penalty be removed from their record.
George McNaughton
George McNaughton, Director of Regulatory Compliance with DFO then gave evidence on behalf of the Respondent. He testified that he has many years of experience with DFO and has been Director of Regulatory Compliance and responsible to the Minister of Agriculture, Food and Rural Affairs for the enforcement of Regulation 761 under the Milk Act since 2005.
Mr. McNaughton then proceeded to explain the manner in which the samples are taken, transported and tested. He is the person responsible for the certification of Bulk Tank Milk Graders (BTMG). The BTMG is trained with respect to the manner of taking the sample from the bulk tank, either with a dipper or a straw. In this case a straw was used. The sample is then placed in a sample container which is double sealed, which means a seal has to be broken in order to access the container and then it is sealed again so that it is secure until it reaches the lab.
Each container has a label with a unique barcode. The BTMG first scans the barcode on the producer’s licence and then the barcode on the same bottle, which links the two electronically.
The filled sample container is then transferred to a cooler which is cooled with ice water contained in a separate compartment so that the sample bottle does not come in contact with any water.
When the cooler reaches the depot, the samples are transferred to a refrigerator which is owned and monitored by DFO to ensure that the samples remain cooled at the appropriate temperature.
The samples are then transferred in a refrigerated vehicle from the depot to the laboratory where a number of tests are conducted. For the purpose of this decision, the only relevant test is the AFP test. The first AFP test that is done is a screening test or estimate to obtain the Freezing Point Estimate (FPE). If the sample fails that test, then a Cryoscope test is done. A Cryoscope test is done to determine the AFP that results in the imposition of a penalty.
For the purpose of his investigation, Mr. McNaughton stated that he reviewed the FSR & BTMG Information for a Producer Test Challenge report. This document was prepared by Grant Brownridge, the DFO Field Representative for the Vices based on a telephone interview with Kevin Grieve, the BTMG who took the sample on March 4, 2014. Based on the report and a statement given to DFO by Kevin Grieve on May 27, 2014, Mr. McNaughton is content that all proper procedures were followed with respect to the taking of the sample until it reached the depot refrigerator. There were no problems in the sample depot refrigerator or in the transfer of the sample to the lab. Mr. McNaughton testified that he investigated the chain of custody of the sample and found no issues.
This witness also stated that, if a sample had frozen, the lab would not have tested that sample for AFP. However, he further testified that if a sample which had been frozen was tested for AFP, the result of the Cryoscope test would not have been any different as the fact that the sample had once been frozen does not affect that test.
Mr. McNaughton also noted that there were no other producers on BTMG Grieve’s route that day who had issues with an AFP. Of the other twelve producers on the route, one other producer had a freezing point in the elevated range at -0.515 degrees Celsius. All of the other samples were in the normal range. In conclusion, Mr. McNaughton confirmed his opinion that the sample taken from the Vices’ farm on March 4, 2014 was a representative sample of the contents of the tank and that it had been handled, tested and reported correctly.
Analysis and Discussion
Regulation 761 under the Milk Act provides in subsection
5 (1) No producer shall sell or offer for sale milk or cream that,
(g) has an abnormal freezing point as described in subsection 52(5).
Subsection 52 (5) states:
A freezing point test reading of -0.506 degrees Celsius or higher shall be deemed to be an abnormal freezing point.
Subsection 55 (4) of the Regulation further states:
Where the milk of a producer is tested under clause 52 (1) (b) and found to have an abnormal freezing point as described in subsection 52 (5), 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) $2 per hectoliter in the case of the first penalty;
If the sample is tested with a result higher than -0.506 degrees Celsius, the penalty is mandatory. In the present case, the FPE for the subject sample was -0.482 degrees Celsius and the AFP, based on the Cryoscope test, was -0.481 degrees Celsius.
This appeal is brought by the Appellants under section 16 of the Ministry of Agriculture, Food and Rural Affairs Act. After conducting a hearing, the Tribunal may by order direct the Director to take such action as he is authorized to take under the Milk Act and as the Tribunal considers proper and for this purpose, the Tribunal may substitute its opinion for that of the Director.
The Appellants’ challenge is based on pure speculation as to what might have happened with respect to the collection, transportation and testing of the impugned sample. The evidence of DFO shows that a great deal of care is taken with respect to maintaining the integrity of each milk sample. That does not mean that there cannot occasionally be errors made during collection, transportation or testing of any particular sample; however, when those errors are detected, it would appear that the sample is discarded. It is simply not good enough for the Appellants to allege that one of these errors may have occurred with respect to the March 4, 2014 sample. They must in fact prove to the Tribunal’s satisfaction that the subject sample was not representative of the contents of the bulk tank on that occasion or that the sample was not handled, tested or reported correctly. The evidence does not disclose any irregularities in the manner in which this sample was taken, transported or tested. The onus rests upon the Appellants and has not been discharged.
Decision and Order of the Tribunal
Based on the evidence and the reasons given above, the Appellants’ appeal is dismissed.
Dated at Ridgetown, Ontario this 4th day of July, 2014.