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 Courriel: AFRAAT@ontario.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL:

Ferme Maisonneuve Inc. vs Dairy Farmers of Ontario (DFO)

Ferme Maisonneuve Inc. vs Dairy Farmers of Ontario (DFO) 2021ONAFRAAT04

STATUTE:

Ministry of Agriculture, Food and Rural Affairs Act

HEARING:

February 25 and 26 and March 15, 2021

DATE OF DECISION:

April 01, 2021

009FermeMaisonneuve20

NEUTRAL CITATION:

2021ONAFRAAT04

FILE NO.: 009FermeMaisonneuve20

DATE: 2021/04/01

IN THE MATTER 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 Miguel Maisonneuve and Ferme Maisonneuve Inc., from a decision of the Dairy Farmers of Ontario dated December 10, 2020, denying the appellants’ request to suspend its decision to cancel operating licence No. 620017.

AND IN THE MATTER OF An electronic hearing to be held pursuant to Rule 10 of the Tribunal’s Rules of Procedure.

BETWEEN:

Miguel Maisonneuve and Ferme Maisonneuve Inc. Appellants – and – Dairy Farmers of Ontario Respondent

Represented by Charles R. Daoust

Represented by Geoffrey P. Spurr

HEARD: February 25 and 26, and March 15, 2021

Before: Harold McNeely, Vice-Chair; Peter Koroneos, Member; and David Fawcett, Member.

Appearances:

Charles Daoust, counsel for the Appellants Geoff Spurr, counsel for the Respondent Miguel Maisonneuve, Appellant Luc Gagné, witness for the Appellants Dr. Glen Collard, witness for the Appellants Maria Leal, witness for the Respondent Guy Séguin, witness for the Respondent Albert Fledderus, witness for the Respondent

INTRODUCTION

1. Ferme Maisonneuve Inc. is a dairy producer licenced by Dairy Farmers of Ontario (“DFO”) to produce milk. Miguel Maisonneuve is the President. Ferme Maisonneuve Inc. and Miguel Maisonneuve are also hereinafter referred to as the “Appellant”. DFO has the legal obligation to regulate and control the marketing of milk to ensure the safety of milk and the food products made from milk, and to ensure also the integrity of the milk system over which it has exclusive jurisdiction.

2. The Appellant was shut off from the milk market on 3 separate occasions over a twenty-four-month period. Based on DFO’s policy, the Appellant’s licence was cancelled following the third shut-off. The Appellant requested the Board of DFO to reconsider its decision. Both requests were turned down. For reasons that follow, we uphold the Decision of DFO and dismiss the Appeal.

THE EVIDENCE

Miguel Maisonneuve

3. Mr. Maisonneuve is thirty-one years old. He took over as owner/operator of the Maisonneuve dairy farm effective January 1, 2016. He is the fifth generation of Maisonneuves to operate this dairy farm. He has a degree in agriculture granted by the Alfred Campus of the University of Guelph. When he became owner, the operation was carried on in an older style tie stall barn using a conventional pipeline system to milk cows.

4. In 2017, Mr. Maisonneuve presented an expansion project to his financial institution and was approved to build a new barn to have more space for dry cows and for a greater number of cows, modernize the ventilation system and to purchase a robotic system to become more efficient. He had to purchase two robots for his 90-cow milking herd since one robot only had capacity for approximately 55 cows. Robots would also allow him to milk three times per day. On May 4, 2018, he purchased additional cows to increase his milk production.

5. Mr. Maisonneuve encountered several challenges and setbacks in carrying out his expansion project. These can be summarized as follows:

A) Infected Cows

Some of the dairy cows he purchased were infected with elevated Somatic Cell Count (“SCC”). After he identified the infected cows, he sold 20 cows in an attempt to reduce the SCC levels in his herd. The elevated SCC resulted in an accumulation of four (4) SCC penalties, applied during the months of July, August, September and October, resulting in a shut-off from the milk market effective November 12, 2018. Following an inspection on November 27, which classified the operation as Grade A, the Appellant’s farm was reinstated to the milk market on December 4, 2018.

B) Construction of new barn and Milkomax Robots

i) A new barn was to be completed by the end of December 2018. As part of this expansion, the Appellant had planned to have two reconditioned milking robots, supplied by Milkomax, functional by the end of 2018. However, the installation was delayed until January 2020, after the cows were moved to the new barn. Mr. Maisonneuve experienced many difficulties with the system and with poor service and lack of support by Milkomax. The Appellant produced fourteen (14) invoices for parts and services provided by Milkomax between January 29 and September 18, 2020. In a letter from Milkomax dated January 25, 2020, the company acknowledges several failures in the quality of service attributed to labour shortage, staff turnover, and lack of training of technicians and promised improvements starting in March. Mr. Maisonneuve also produced his Telus cellular phone usage records for June, July, August, and September 2020 which confirm the alarms from the robots received on his cell phone and calls made to Milkomax to respond to his complaints concerning the many problems experienced. The Milkomax robots are equipped with a telephone device designed to send alarms to the producer to advise of a malfunction of the equipment. A review of the Appellant’s cell phone records for the period from July 11, 2020 to August 10, 2020 (Exhibit A6) discloses that 225 alarm notifications were sent by the Milkomax equipment to the Appellant’s cell phone. The same records confirm that 19 telephone calls were made by the Appellant to the Milkomax phone no. 819-289-2930. The telephone records for the previous months and the period ending September 10, 2020 demonstrate a similar frequency of alarm calls and calls to Milkomax. In an email dated September 8, 2020 (Exhibit A9), Mr. Maisonneuve sets out several complaints regarding constant alarms received from the robots, incomplete milking of cows (the udder is not emptied), inadequate washing of equipment, elevated SCC, significant decrease in milk production. He also complains of freezing milk for the past month. He states that each time Milkomax attends at his farm to service the equipment, there is another problem with the equipment as soon as the technician leaves the farm. Mr. Maisonneuve advises of his intention to sell the robots and seek financial compensation from Milkomax for his losses and his plan to return to conventional milking without robots.

ii) Milkomax refused to accept a return of the robots unless another producer was found to purchase the equipment from the Appellant.

iii) Mr. Maisonneuve also experienced abnormal Freezing Point Estimates (“FPE”) and other issues with his milk and discussed these with the DFO inspector, Adam Lefebvre, in a visit by Mr. Lefebvre on September 9, 2020 as recorded in a report entered as Exhibit J. This report was written with Guy Seguin who was also present at the meeting. A Summary of the DFO Fieldpersons’ observations are found later in this decision.

iv) Mr. Maisonneuve continued to rely on the Milkomax robots to produce milk and supply it to DFO until he was suspended from shipping milk for a third time on September 28, 2020. The robots were abandoned in November 2020 when these were replaced with a traditional pipeline system. Since September 28, Maisonneuve has not shipped milk to DFO and has been forced to dispose of the milk on his farm. He testified that he continued to use the robots after repairs by Milkomax on or about September 8, 2020, as he believed Milkomax technicians had corrected the freezing problem.

C) Financial Difficulties/Advice of Consultant

The Appellant faces serious financial difficulties having been unable to pay loans from the Bank of Nova Scotia secured on the farm assets. The bank required the Appellant to retain the services of Luc Gagné, a Farm Business Advisor, who visited the farm in September 2020 to carry out an analysis of the financing status and to plan a future course of action to improve the financial position of the farm. In a report dated January 23, 2021, this consultant states he observed during his visit that SCC records confirmed that SCC levels were above 400,000 and understood that this condition could result in a license suspension as of October 1. He advised Maisonneuve to test all cows and remove from production any cows with an unacceptable SCC level. He confirmed the Appellant acted on his advice. He advises that the absence of reliable technical support from Milkomax contributed to the elevated SCC count, the presence of water in the milk and the abnormal FPE. To achieve a good quality milk production, he recommended the Appellant to consult regularly with specialists such as a nutritionist, a veterinarian, a financial advisor and a mentor, as well as conduct frequent testing of milk. He recommended he maintain monthly contact with the Appellant to achieve financial stability. These recommendations are reported as being accepted by Maisonneuve.

D) Birth of Baby in 2020

Mr. Maisonneuve’s spouse gave birth to their third child in the summer of 2020. This was another source of distraction which likely caused him to pay less attention to the milk production and milk quality.

6. Under cross examination, the Appellant admitted the DFO quality reports and records were available to him during the two-year period leading to his final suspension. He acknowledged that test results of 29 demerit points in 46 tests reported in DFO’s letter of November 12, 2018 (Exhibit D) for the October production represents a serious and unacceptable SCC level. A similar report for the month of June 2019 (Exhibit Q) of 19 Demerit points in 45 tests also demonstrates an unacceptable SCC level in the milk sent to DFO.

7. The Appellant also acknowledged the daily test results reporting SCC and abnormal FPE are available to him online within 2 or 3 days from the date milk is picked up. He admitted that he checked his daily test results more frequently in 2020 after he became familiar with its use. He did not check every shipment. The reports also set out the penalties assessed to the Producer which he should have observed had he verified these more carefully.

8. Mr. Maisonneuve acknowledged that wash water containing soap or chemicals was contaminating the milk he was shipping to DFO during August and September 2020. He acknowledged that the Daily Quality and Composition Test results for his dairy operation contained several warnings of abnormal FPE and elevated SCC levels. He acknowledged that his May 2020 elevated results were a warning of the danger of one more suspension which would result in a permanent suspension.

9. Guy Séguin had observed that the Appellant had acquired a De Laval meter which could give Mr. Maisonneuve reports on the quality of the milk. However, the Appellant stated he was not using the equipment to test his milk in September 2020.

Luc Gagné

10. Luc Gagné is a Farm Business Advisor providing financial and technical advice to farm producers. He graduated from the University of McGill in 1995. In September 2020, he was asked by the Bank of Nova Scotia to perform a financial analysis of the Maisonneuve farm. He was aware the Appellant was facing serious financial problems. The debt ratio was the highest he had observed for a dairy farm.

11. In the afternoon of September 18, he was present during the milking of cows using the Milkomax robots. Mr. Maisonneuve advised him that the robots had recently been adjusted or repaired and he believed the milk would be of good quality in the future. He also advised Mr. Gagné that he had sold the cows which had elevated SCC results.

12. Mr. Gagné also looked at the DFO records of milk quality and advised Mr. Maisonneuve to take the following immediate measures to resolve his financial difficulties and to prevent a third shut-off:

A) Stop the use of robots and use the old pipeline milking system;

B) Get an experienced milk producer to act as a mentor and provide ongoing advice;

C) Mr. Gagné would do a monthly follow-up with Maisonneuve and the bank to monitor the financial situation.

13. According to Mr. Gagné, the milk quality problems were due to the failure of Mr. Maisonneuve to act promptly when faced with high SCC counts, failure to request assistance from consultants or experts, inexperience in the use of the robotic equipment, inadequate or poor technical support from Milkomax, and also partly due to Covid 19 conditions. He also recognized that Mr. Maisonneuve was under considerable stress caused by his financial problems.

14. Mr. Gagné acknowledged that the second shut-off should have been a “big wake-up call” to the producer.

Dr. Glen Collard

15. Dr. Glen Collard has been a veterinarian with the Vankleek Hill Veterinary Services for the last thirty-one years. He specializes in the care of large animals, such as dairy cattle and horses.

16. Dr. Collard has been involved in the care of dairy cattle at the Maisonneuve farm for many years. His veterinary clinic looked after the dairy herd which was owned by Mr. Maisonneuve’s parents. Most of the farm calls were for milk fever, pneumonia or calving difficulties.

17. Dr. Collard testified that a high SCC problem comes from bacteria caused by failure to keep animals, stalls and bedding clean. These bacteria can be spread by infected cows purchased from other producers. He also analyzed the equipment used during milking. He stated that when the vacuum on the equipment is set too high, this leads to inflammation in the teats and can result in an elevated SCC.

18. Dr. Collard’s colleague, Dr. Marie-Eve Borris visited the farm in the summer of 2020 and recommended to Mr. Maisonneuve that he return to a pipeline system for milking which he had previously used to milk his cows. She also prescribed vaccines to control mastitis and to reduce SCC levels.

19. Dr. Collard agreed that the penalty levels incurred in 2018 and 2019, before the use of robots, was evidence of high SCC levels which could not be attributed to the robots but arose from other sources mentioned previously in his evidence.

20. In reviewing the reinstatement letter of August 9, 2019 from Maria Leal, Director of Regulatory Compliance of the Ontario Raw Milk Quality Program, (Exhibit L) which confirmed satisfactory SCC and FPE test results in August 2019, Dr. Collard stated that Mr. Maisonneuve “fixed things” after he was made aware of the problem.

Guy Séguin

21. Guy Séguin has been employed by DFO since 2002. He holds a degree from the University of Guelph in Agricultural Engineering and Computer Science. In 2019, his responsibilities at DFO included meeting with milk producers who have experienced high SCC problems.

22. In July 2019, he called the Appellant to ask him if he was open to having a visit from him at the farm to discuss the elevated SCC problems. The witness stated that while he is a Registered Inspector under the Milk Act, he only uses the powers delegated to him in extremely serious cases, such as in cases where drugs are found in the milk. The approach he used in this case was to try to assist the Appellant to reach an improved level of production.

23. Mr. Séguin attended at the farm on July 25 and met with the Appellant. He also spoke with the Dr. Borris, the Appellant’s veterinarian. Following his visit, he prepared a report (Exhibit I) dated August 6, 2019 which contains his observations, identifies the issues which caused or contributed to the elevated Somatic Cell Count and offers advice to correct these problems. He reviewed these issues with the Appellant during his visit and summarized these in the report.

24. There are eight additional observations and recommendations contained in the report.

25. The report states that these recommendations are listed in the order of importance with headings, as follows:

A) Milking of Cows

Milking should be performed by an experienced person or by Mr. Maisonneuve. He observed that the cows were being milked by a student who had little experience in milking cows. He stated that this person should receive additional training from the veterinarian to improve his technique and knowledge of preventing high SCC in the milk. An inexperienced employee should be trained by the veterinarian to improve his techniques and knowledge of SCC. Other recommendations deal with proper techniques to reduce the risk of spreading mastitis in the herd.

B) Cleanliness of Cows

• Cows should be kept in a far cleaner and more comfortable condition

• Place more bedding to keep the cows clean and their udders dry

• Keep exhaust fans on constantly and add more fans if necessary to reduce humidity in the barns

C) California Mastitis Test (“CMT”)

• make use of the test as shown in the brochure and video links provided

• do not add to the bulk tank, milk from a cow with an infected teat or with infected milk detected by the CMT

D) De Laval Meter which calculates Somatic Cells (“SCC”)

• properly measure, verify and compare with the laboratory in Guelph the results of the De Laval appliance which calculates Somatic Cells.

• Do not ship from your bulk tank to DFO milk that has a Somatic Cell Count greater than 325,000 for the next months. Perform the test at least once a day and decide accordingly.

E) Detection and culture of bacteria of the milk of all cows in the herd

• Dr. Borris undertook to take a milk sample of all cows and to carry out a bacterial analysis to identify all mastitis present in the cows’ udders

• the test results will guide Dr. Borris in the treatment to be prescribed for cows that can be treated. Follow Dr. Borris’ recommendations to the letter.

F) Treatment of dry cows

• follow Dr. Borris’ recommendations and treat all dry cows with an adequate treatment and Orbeseal

G) Flies

• Reduce the number of flies in the barn. Flies are a means of spreading mastitis.

• Selenium and Vitamin E

• Ask the veterinarian to verify the dosage of Selenium and Vitamin E to be given to cows to properly maintain the immunity level of cows

26. Guy Seguin also visited the Appellant’s farm on September 9, 2020 and he prepared a report dated September 13, 2020 (Exhibit J). Adam Lefebvre, a Field Services Representative with DFO, co-authored the report and was also present during the visit, which started at approximately 5:00 a.m. to allow them to witness the milking operation and the washing of the robots and of the bulk tank.

27. Mr. Séguin had advised Mr. Lefebvre that Mr. Maisonneuve’s name was on the alarm list. This is an internal list kept by DFO of milk producers who have shipped milk in the penalty range. Producers whose names are on the list receive an automatic voice phone call to warn them their milk is out of condition and is subject to a penalty. This is an automated call system.

28. Mr. Séguin also reviewed the record of milk production between August 2018 and September 2020 and stated that the Appellant was not producing good quality milk. He also reviewed the Daily Test Results reports for the period between September 1 and September 29, 2020 (Exhibit H) and stated the milk shipped during this period was not good quality milk because the recorded temperature was greater than the FPE of -.507 c and the SCC was greater than 400,000 for 8 shipments of milk out of 15 shipments.

29. The report of September 13 contains 3 pages of observations and recommendations. At this time, the animals were housed in a new barn and milking was carried out by robots. He observed icicles floating in the milk and detected a sheet of ice in the bottom of the bulk tank. There should be no ice in milk. Ice denotes the presence of water which is not allowed. They also noted that the readings and records provided by the equipment measuring milk temperature were not being kept on file for all the emergencies and alarms triggered by the equipment. According to this witness, there were alarms activated on the system the day of this attendance which had not been cancelled. At the end of the meeting, Mr. Séguin recommended to the Appellant that he should milk using the old pipeline system until he rectified his equipment problems. Mr. Lefebvre also suggested to the Appellant that he should not ship any milk until all his problems were solved to make sure the milk was of acceptable quality and free of water.

30. Mr. Séguin reviewed the DFO records between 2016 and 2018. He observed that there had been no infractions disclosed in this period. He stated that infractions started in 2018 during the period of the new barn construction and continued in 2020 after the introduction of robotic milking.

Maria Leal

31. Maria Leal has been the Director of Regulatory Compliance with DFO since September 2018. She holds a degree in Food Engineering from a university in Venezuela. She has been employed at DFO since 2012.

32. Starting in November 2018, Ms. Leal sent letters to the Appellant confirming his right to ship milk to DFO was suspended, the reasons for the suspension and advising of conditions to be reinstated to the Milk Market.

33. The first letter dated November 12, 2018 (Exhibit O) confirms his first shut off from the Milk Market effective November 12, 2018 arising from elevated SCC in shipments of milk over a three-month period. The letter states “This is your fourth SCC penalty in the last twelve months. A penalty of $5.00 per hectoliter will be applied on all production for the month of October and you were shut-off from the Milk Market on November 12, 2018.” The letter sets certain standards of quality that must be met before reinstatement. The letter also warns the Appellant that if he is subject to a second shut-off in a rolling 24 month period, he will be called upon to attend a hearing before the Director of Regulatory Compliance “…to review your quality history, the condition of your farm premises, determine a strategy for producing quality milk from a Grade A farm in the longer term and establish reinstatement requirements.”

34. A second letter (Exhibit Q) was sent to the Appellant on July 10, 2019. The letter warns of a second shut-off effective July 10, 2019 for the same reasons outlined in the letter of November 12, 2018. The conditions to resume shipping his milk are summarized and the Appellant is notified of a Hearing before the Director of Regulatory Compliance on July 18, 2019 for the same purpose as stated in paragraph 33 above.

The letter contains the following warning:

This is your second shut off in the last 24 months. Be advised that if you incur a third shut-off from the Milk Market during a rolling 24-month period, your access to the Milk Market will be suspended permanently and you will not be reinstated under any circumstances.

35. A third letter, dated July 18, 2019 (Exhibit R), issued following the Hearing summarizes the reasons for the November 2018 and June 2019 shut-offs. Conditions to reinstatement are also outlined. Recommendations include the following:

• Continue to work with veterinarian to develop mastitis management protocols

• Conduct SCC testing on bulk tank milk before it is offered for sale and aim for bulk tank SCC levels of no more than 300,000 Somatic Cells/ML

• Ensure proper milk procedures are being followed

The letter contains the same warning stated in the July 10 letter.

36. The fourth letter is dated September 30, 2020 (Exhibit S) and it summarizes infractions related to abnormal FPE. The letter refers to four freezing point penalties in the last 12 months and advises of a third shut-off in a rolling 24-month period effective September 30, 2020. The letter concludes as follows:

As you have incurred a third shut-off in a rolling 24-month period, according to DFO Raw Milk Quality Program Policies, you will not be reinstated under any circumstances.

37. On October 30, DFO advised the Appellant “…the Board decided to cancel your licence to market milk effective January 2, 2021” (Exhibit U, page 19). The Appellant is also advised of his right to request a reconsideration hearing.

38. On October 21, 2020, Maria Leal drafted a memo to the Board advising it of the recent suspension for a fourth abnormal FPE and third shut-off within a 24-month period. Ms. Leal provides additional DFO quality related records for the Appellant’s operations to the Board and recommends the cancellation of the Appellant’s licence. The records include Daily Test Results generated by DFO and made available to producers which provide important information such as SCC and FPE test results for each shipment of milk.

39. In rendering its decision, the Board had several detailed Quality Reports submitted by the DFO local Field Services Representatives, Adam Lefebvre, Gerry Weaver and Guy Séguin, a Registered Inspector. These persons are responsible for inspection of the producer’s premises, cattle and milking equipment and the enforcement of rules for milk production. The following reports were provided to the Appellant following each inspection and were entered as Exhibit F at the Hearing.

The Quality Inspection Reports by DFO Field Services Representatives

40. The first report dated October 19, 2017 advises that the Appellant’s operation is not Grade A and of requirements as follows:

A) clean the heifer box stalls, and apply additional bedding

B) Clean the heifer stalls and apply bedding. All heifers to be kept clean

C) Remove the swine from the barn

D) Clean the flanks of dairy cows; animals must be kept clean

E) Displace two calf huts in the yard to provide better access to milk truck

F) Place additional bedding in calf huts. Calves need a dry environment

G) Carry out a general cleaning of the milk house. Remove all items not required for milking or to wash milking equipment

H) Repair the door to the barn in order it will close automatically

These are all conditions which are required to be met to attain a Grade A level.

41. A reinspection report dated November 8, 2017 confirms the above recommendations have been implemented and the premises now qualify as Grade A.

42. A second inspection report is dated May 4, 2018 and states the premises are not Grade A. The report contains eight recommendations, several of which are found in the first report. The observations are directed at the need to improve cleanliness of the premises of the animals and the need for more bedding for animals to keep them clean. Fifteen photos illustrate the observations.

43. A reinspection report dated June 14, 2018 confirms that the premises have not attained a Grade A level. It repeats its earlier recommendations to clean the heifer stalls and to apply more bedding to keep the heifers dry and clean. This report further notes that seven of eight earlier recommendations have been implemented.

44. A third inspection report is dated November 27, 2018. It notes that the premises meet the Grade A level. It contains three recommendations. The report congratulates the Appellant on being classified Grade A and advises him of three deficiencies to be corrected including keeping the stalls dry and cleaning the flanks of cows.

45. The fourth report is dated March 28, 2019. It confirms the Appellant complies with Grade A standards. It congratulates the Appellant and notes the animals are clean and well cared for.

46. The fifth report is dated January 13, 2020 and confirms the premises are not at a Grade A level. There are eight irregularities noted. Most of these advise of issues with the cleanliness of the barn, the milk room, the animals, the lack of bedding to keep animals clean and dry. The producer is advised to clean the cows, flanks, udders, etc. He is told to prevent goats from roaming freely in the barn, to clean mangers and remove fecal matter from the mangers. The producer is also advised that he will be penalized for failing to be at a Grade A level. There are four photos illustrating the observations.

47. Maria Leal notified the Appellant of his third shut-off in a letter of September 30, 2020 (Exhibit S). She also confirms the reason, “fourth abnormal freezing point penalty in the last twelve months” and that the farm will not be reinstated to produce milk under any circumstance.

48. At a meeting of the Board of DFO on October 27-28, the Members were made aware of the action taken on September 30 and were provided with documents referred to as “quality documents”. These are the records of quality prepared by field persons, milk test reports from DFO reporting on SCC, abnormal FPE and other results for the Appellant’s milk.

49. The Board notified the Appellant that it had decided to cancel the DFO licence based on policy 2.6 c). The Appellant was also made aware of his right to request a hearing to ask the Board to reconsider its decision.

50. The two hearings before the Board were held on December 8, 2020 and February 24, 2021. At these hearings, the Appellant explained his difficulties with the robotic system, the removal of the robots in November 2020 and presented the quality reports which he obtained from an independent laboratory demonstrating the quality of milk produced after returning to the pipeline system. These reports confirm that the milk produced exceeded the quality standard set by DFO.

51. The Appellant’s requests for a reconsideration were both denied.

52. The Board’s position is explained in a letter of February 25, 2021 (Exhibit V) to the Appellant’s lawyer which has been reproduced below:

During the Regular DFO Board meeting on February 24, 2021, the Board reviewed your letter of February 8, 2021 and the attached supporting information. The DFO Board remains fully aware of the impact of its decision in this matter to Mr. Maisonneuve. It has not made its decision lightly.

A heavy obligation placed on DFO, as the exclusive marketer of raw milk in Ontario, is to ensure that milk intended for human consumption is safe in that regard. DFO relies on the enforcement of the milk quality scheme to accomplish this purpose. DFO’s policy of licence cancellation reflects a balancing exercise between the individual farmer whose licence is cancelled and the remaining producers, who count on DFO to ensure that the supply management system is protected and maintained to the benefit of all producers. Therefore, once a producer crosses the threshold of 3 shut-offs in a rolling 24 month time frame, DFO must exert a zero tolerance towards re-occurrence.

In the context of risk to the system being of paramount concern, DFO considered the additional evidence provided on February 8, 2021 but was not prepared to assume additional risk by reinstating the Ferme Maisonneuve Inc. licence.

Yours very truly,

Arlene Minnot

General Counsel and Corporate Secretary

Albert Fledderus

53. Albert Fledderus has been a Member of the Board of DFO since 2015. He is familiar with the regulations and in particular, with policy 2.6. While the Director of Regulatory Compliance can suspend a producer’s licence, only the Board can order the cancellation of a licence. The decision of the Board to cancel the Appellant’s licence was made at a meeting held on October 27 and 28, 2020.

54. The Board of DFO met on December 9 at the request of the Appellant to reconsider the decision to suspend or revoke the Appellant’s licence. Mr. Fledderus testified that a producer has to ship poor quality milk over a prolonged period of time to be subject to a shut-off in a 24-month period. There is a strong emphasis to have only Grade A milk shipped to DFO and to not mix poor quality milk with the milk of other producers. The cancellation of a licence for a third shut-off in a rolling 24-month period is extremely rare.

55. The Board of DFO had a further reconsideration meeting on February 24, 2021 but it was not persuaded to reverse its position after reviewing the Appellant’s record and the history of issues with milk shipped by the Appellant over the past two years. The history of the poor quality milk over 24 months was the factor which led the Board to rule against Mr. Maisonneuve. The witness said the Appellant would have received a phone call from the DFO’s system alarm each time the test of his milk disclosed an abnormal FPE. The Board could not accept the risk to the dairy system caused by the poor quality milk shipped by the Appellant.

ARGUMENTS OF THE APPELLANT

56. The Appellant submits that the Tribunal should take into consideration his production quality records between January 2016 to July 2018 during which no quality issues were noted.

57. The Appellant further submits that he acted on the advice to get rid of the problem cows and to vaccinate animals infected with mastitis to cure these of this condition.

58. The Appellant further submits that between January 2020 and the end of September 2020, the overall conditions were not good on the farm. He was operating with facility robots, was not receiving proper service from the robot supplier and was also facing financial pressure from the bank. He was also under the mistaken belief that the defective robots were repaired in early September.

59. He also submits that he has continued to milk cows since the final shut-off and has demonstrated through lab tests that he has consistently produced milk that meets all quality standards set by DFO. He has also received advice from a qualified Farm Business Advisor, which he has implemented. He asks to be given a final chance to produce milk. He is willing to undergo a probationary period with conditions set by the Tribunal, if he is reinstated.

60. Since the Regulation 761 states DFO may “…suspend or revoke a licence…” there is a residual decision in the Tribunal to suspend the licence instead of applying the “three strikes and you are out” policy found in DFO policy 2.6 c).

DFO’S ARGUMENTS

61. DFO has the exclusive responsibility to oversee the quality of milk marketed in Ontario and to set standards for production. The standards are in the Raw Milk Quality Program Policies. Section A 2.6 reads as follows:

2.6 Reinstatement following shut-off

Reinstatement requires change as the number of shut-offs increases, as follows:

a) For the first shut-ff in a 24-month period, the FSR will review, with the producer, the reinstatement requirements outlined in this Raw Milk Quality Program Policies book;

b) For the second shut-off in a rolling 24-month period, the producer must attend a Hearing with the Director of Regulatory Compliance, who will establish the reinstatement requirements; and,

c) For the third shut-off in a rolling 24-month period, the producer will not be reinstated to the milk market under any circumstances.

62. As a self-regulated industry, DFO applies these standards by visits from Field Services Representatives and Inspectors who observe the conditions on the farm, by testing of milk and by providing ongoing test results to the producer. These programs are designed to maintain consumer confidence in, and safety of, milk.

63. DFO submits that the pattern of the shut-offs demonstrated a return to acceptable standards for a period of time upon reinstatement with a subsequent deterioration of milk quality. This supports the conclusion that consistency was not maintained by the producer.

64. DFO argues that the Appellant received several warnings by letters, milk quality reports, and at the Hearing before DFO in July 2019. The risks of a third shut-off were explained to him at many levels, including the visit of Adam Lefebvre and Guy Séguin on September 9, 2020. Therefore, his persistence at shipping milk of unacceptable quality demonstrates he cannot continue to produce milk, as the prudent course of action would have been to stop shipping milk until the tests demonstrated the quality issues of both FPE and SCC were resolved. DFO further argues that it cannot clean milk once it is picked up at the farm.

ANALYSIS

65. The standards for the production of milk in Ontario are set in Regulation 761. These standards apply to the conditions in which the animals are kept and their cleanliness, the condition of the stable, the milking area, the condition of the room where the milk is kept before pickup, ventilation, etc. These detailed standards are to ensure that only milk of good quality is produced and are applied by DFO Inspectors and Field Services Representatives whose duties are outlined in the Regulation.

66. DFO employees examine the premises, animals, and milking equipment to ensure these comply to a Grade A Standard and submit reports to DFO. A copy of each report is provided to the producer and filed with DFO as part of the producer’s history of production.

67. These reports prepared over three years were part of the record before the Board of DFO when it rendered its decision on October 28, 2020 and when it was requested to reconsider its decision.

68. There was a total of eight (8) quality reports submitted by Field Services Representatives for the Maisonneuve operation between October 19, 2017 and January 13, 2020. Four of these reports state that the producer does not meet Grade A Standards. The same conditions which prevent the operation from attaining Grade A are repeated in the reports and relate to lack of cleanliness of cows, lack of cleanliness of cow stalls, insufficient bedding, lack of cleanliness of heifer stalls. Photographs were included with these reports to illustrate the inspectors’ comments. The producer is advised of penalties and risks of being shut-off from the market, if the conditions persist.

69. Four reports of inspections carried out on August 1, 2018, November 27, 2018, March 28, 2019 and August 2, 2019 confirm the animals and facilities comply with level Grade A.

70. The letters issued by Maria Leal to Mr. Maisonneuve all contain warnings in bold type regarding penalties, shut-off and the requirements for reinstatement. The first notice of shut-off letter of November 12, 2018 warns of a Hearing before DFO, if he is subject to a second shut-off.

71. The second notice of shut-off letter is dated July 10, 2019 and also contained a warning in bold type confirming that if a third shut-off occurs in a rolling 24-month period, his access to the market will be terminated permanently and that he will not be reinstated to the market under any circumstances (emphasis by us) The same warning appears in DFO’s letter of July 18 and the conditions for reinstatement are outlined.

72. A further letter from Maria Leal of August 9, 2020 entitled “Reinstatement following a Somatic Cell Count” also contains the same warning in bold type, as seen in previous letters.

73. The final letter from Maria Leal dated September 30, 2020 advises of the third shut-off for milk pickup date of September 25, 2020 for the fourth level abnormal freezing point penalty in a rolling 12-month period, and that the Appellant’s right to ship milk is suspended permanently.

74. Starting in approximately December 2019, Mr. Maisonneuve switched to robots to milk the cows. He testified of the many difficulties he encountered in milking with the new system. There is a period of adaptation both for the producer and the cows when a robot system is installed. This period of transition was further exacerbated by a failure or delays of the supplier Milkomax to supply the technical support required by the producer. This failure is acknowledged in Milkomax’s letter of January 25, 2020.

75. Equipment malfunctions are reported by Mr. Maisonneuve to Milkomax in numerous text messages in April, May, June, July, August, and September 2020. Abnormal FPE levels and elevated SCC counts are reported to Milkomax by text message on September 4, 2020 and Mr. Maisonneuve states he wants to call the company to return the robots which are not working properly. He states “j’va me mettre dans la rue avec ces penaliter” (Translation: I will be out on the street with these penalties).

76. In his email to Milkomax of September 8, Mr. Maisonneuve summarizes his many problems with the robotic equipment. The ongoing problems with elevated SCC which he qualifies as “going through the roof” is mentioned and he states that he is “border line to lose his licence”. Mr. Maisonneuve has clearly lost confidence in the equipment and the supplier. Notwithstanding this knowledge, he continues to use the equipment and does not go back to milking with a pipeline.

77. In the report of Adam Lefebvre and Guy Séguin arising from their visit of September 9, 2020 they comment on the technical problems regarding the milking system and corrective measures to adopt. The agitator for the refrigeration basin and the wall behind the basin are said to be dirty. Mr. Maisonneuve is also advised to place “much more bedding” to keep the cows clean and their udders dry.

78. Mr. Maisonneuve attributes the high SCC counts and abnormal FPE reading in September 2020 to the malfunction of the robotic system and the inadequate support he received from Milkomax. There is no doubt there were factors which contributed to the production of poor quality milk. However, he had received training from DFO Field Services Workers on how to test his milk using the De Laval meter and the California Mastitis Test. His attention was also directed to the records of milk quality available from DFO online within 2 days of the pick up of milk and the various quality alarms received from DFO or emitted by the equipment on his farm. He disregarded Mr. Séguin’s advice given to him on September 9, 2020 to use the old pipeline system and to stop shipping any milk until all problems were resolved. He also ignored the same advice from Luc Gagné on September 18 to immediately stop using the robots and to use the pipeline system.

79. The lack of cleanliness of cows and the lack of bedding to keep them clean is repeated in many reports up to September 2020. Many of these recommendations were not followed. As stated previously, these were production records the Board of DFO had when it reached its Decision and when it was asked to reconsider its Decision.

80. While Mr. Maisonneuve acknowledges having received many warnings from DFO advising of the risk of the cancellation of his licence, advice to avoid penalties and to improve the quality of his milk, the record demonstrates that these warnings were ignored and the advice not implemented. He attributes his third shut-off and penalties to the delays in completing the new barns, the robots which were either defective or operating improperly due to poor technical support, the birth of his third child in the summer of 2020 and the financial stress of significant debt load and loss of income.

81. The DFO Daily Test Results from May 2020 to September 2020 demonstrate elevated SCC levels which are increasing in number over time, and abnormal FPE levels are also reported in increasing frequency in the same period. Demerit points are also shown.

82. In the face of these unacceptable quality results during July, August and September 2020, Mr. Maisonneuve continued to ship milk of unacceptable quality to DFO. He had a choice, which he eventually adopted after the third shut-off, to return to a pipeline system in use before the conversion to robotic equipment. He considered making this change earlier but delayed it notwithstanding the many warnings from the DFO phone line, from the daily test results available to him online or from the De Laval meter on his farm which could have been used to monitor SCC levels and abnormal FPE on a daily basis.

83. The Board of DFO analyzed the considerable evidence of noncompliance or inadequate compliance and concluded that in the interest of the safety and integrity of the milk marketing system, Mr. Maisonneuve could no longer continue as a producer and revoked his licence. We agree with the Board’s decision. An overall review of the records and the evidence justifies DFO’s Decision. The responsibility for milk quality rests with the producer and the onus rests with the producer to address all milk quality issues in a thorough and timely manner.

DECISION

The Tribunal orders:

1The Decision of the Members of the Board of Dairy Farmers of Ontario dated October 28, 2020 is upheld with the amendment stated in paragraph 2 below.

2The Appellant will be allowed three exchanges after May 1, 2021 to sell the quota.

3This Decision is being released in the English language only at this time with the consent of Mr. Daoust. A French language version will follow.