Creighton v. Director of Regulatory Compliance, 2021 CanLII 72881

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:

Creighton v Director of Regulatory Compliance

Creighton v DRC 2021AFRAAT14

STATUTE:

Ministry of Agriculture, Food and Rural Affairs Act

HEARING:

May 14, 2021

DATE OF DECISION:

July 15, 2021

003Creighton20

NEUTRAL CITATION:

2021ONAFRAAT14

FILE NO.: 003Creighton20

DATE: 2021/07/15

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 (the “Tribunal”) by D & S Terry and Tara Creighton appealing the Director of Regulatory Compliance decision dated April 7, 2020 regarding Somatic Cell Count percent demerit for March 2020.

BETWEEN:

Terry and Tara Creighton Appellant

– and –

Maria Leal Director of Regulatory Compliance Respondent

Donald Good, Counsel for the Appellant

Geoff Spurr, Counsel for the Respondent

HEARD: May 14, 2021

Before: Christine Greydanus, Vice-Chair; Katie DeBlock, Vice-Chair; David Stevens, Member

Appearances: Terry Creighton, Appellant Donald Good, Counsel for the Appellant Maria Leal, Director of Regulatory Compliance, Respondent Geoff Spurr, Counsel for the Respondent

DECISION OF THE TRIBUNAL

INTRODUCTION

1This appeal was heard electronically on May 14, 2021. The Appellants, Terry and Tara Creighton, appealed the April 7, 2020 decision of the Director of Regulatory Compliance (“DRC”) regarding Somatic Cell Count (“SCC”) percentage demerit for March 2020, requesting relief in the form of the level 4 penalty applied be expunged from their record and a refund of the penalty that was imposed at the time.

2The Respondent, Maria Leal, is the DRC and has the legal obligation to implement and uphold Ontario Regulation 761 and the Raw Milk Quality Program Policies.

THE ISSUE

3Are the Creightons entitled to have the level 4 penalty expunged from their record and to be refunded the penalty that was imposed at the time?

Agreed Statement of Facts

4The parties filed an agreed statement of facts prior to the hearing. The agreed facts are as follows:

a) Terry and Tara Creighton (the “Creightons”) own a 55-milking cow tie stall dairy operation near Bath, Ontario and operate under Dairy Farmers of Ontario (DFO) license number 450481.

b) They have developed a Jersey herd of cows along with some Holsteins which came with the farm that they purchased from Terry's uncle in 2015.

c) The Creightons incurred Somatic Cell Count (SCC) penalty levels on milk shipments in each of January, February and March of 2020, with the highest frequency of penalty level SCC occurring in February of 2020.

d) Based on a milk pick up every second day, the Creightons would have had 45 milk pickups between January and March of 2020.

e) If each milk pick-up load was sampled there would have been a total of 45 samples over the three month period.

f) During these 3 months of 2020 the Creightons had a total of 39 tests out of the 45 samples taken at pick up.

g) During this 3-month period 6 samples taken by the milk truck driver did not reach The Agriculture & Food Laboratory (University of Guelph) in Guelph for testing, 5 were not properly refrigerated and one was left in the milk house.

h) The samples that were taken at the farm on January 8, 10, 12, 14, and 16 by the milk truck driver were delivered to the local processor Wilton Cheese for delivery to The Agriculture & Food Laboratory.

i) Terry Creighton's Field Service Representative (Andrew MacDonald) advised Terry Creighton that the milk sample fridge at Wilton Cheese had broken down and the sample courier did not look in the replacement fridge for the samples where the milk samples were being temporarily stored. As a result, the Creighton milk samples (as well as other samples from other producers) were not sent to The Agriculture & Food Laboratory.

j) The sample of the Creightons' milk for January 6, 2020 was 302,000 SCC.

k) The sample of the Creightons' milk for January 18 was 366,000 sec.

l) On February 27 and March 2, 2020, Linda Asselstine, the Bulk Tank Milk Grader, had difficulty reaching the milk in the tank due to low milk production levels. Accordingly, she obtained samples from the bulk tank outlet valve which were sent to The Agriculture & Food Laboratory.

m) Asselstine advised that she failed to enter on her hand-held computer the Code indicating that the samples were taken from the outlet valve.

n) The Agriculture & Food Laboratory is the laboratory used by DFO to test milk samples.

o) These samples were tested by The Agriculture & Food Laboratory and both samples produced penalty level SCC results.

p) The DFO Raw Milk Quality Program provides that where samples cannot be obtained using a pipette or long handled dipper, the sample is to be obtained from the outlet valve. Samples taken from the outlet valve are only suitable for inhibitor testing. The SCC results initially appeared on the Creighton's quality record but were subsequently marked as unsuitable ("other sampling problem") and not counted against Creightons.

q) On March 20 the milk in the tank had an SCC level of 177,000 and on March 24 the milk in the tank had a level of 212,000 SCC.

r) On March 22, 2020 the milk truck driver took the milk sample from the tank and when leaving the farm forgot it in the milk house. Upon returning to the milk house for evening chores the Creightons found the sample, however, the sample had been sitting there for over 4 hours and was unusable.

s) For January, 10 of 15 samples were tested and 10 were suitable. For February, 15 of 15 samples were tested and 14 were suitable. For March, 14 of 15 samples were tested and 13 were suitable. A total of 37 of 45 samples were suitable.

t) Of the 37 suitable samples, 15 were over 400,000 cells per millimetre and assigned a demerit. The percentage of demerits on a rolling three-month basis was 40%. A SCC penalty is applied if there is at least one demerit in the third month of the most recent three-month period and the percentage SCC in the same three-month period is at least 40%.

THE EVIDENCE

Terry Creighton

5The Appellant, Terry Creighton, is forty-one years old. He operates a dairy farm with his wife Tara that they purchased from his uncle in 2015. He has two daughters age 9 & 13. Growing up Terry worked on various farms including the one he now owns. He went to the University of Guelph, graduating in 2003 with a bachelor in Agriculture of Commerce. Terry testified that he worked for commercial banks doing commercial lending for 12 years from 2003 to 2015 until he and Tara purchased the farm.

6Mr. Creighton testified that during the months of January, February and March 2020 the appellants milk samples were tested 37 times. January 2020 test results showed elevated SCC on 6 of the 10 tests and 4 at penalty level. February 2020 test results showed elevated SCC on 9 of the 14 tests and 5 at penalty level. March 2020 test results showed elevated SCC on 9 of the 13 test results, 2 at penalty level and 2 at normal level SCC.

7During the month of January 2020, 5 samples were temperature damaged rendering them unsuitable for testing. During the month of March 2020, 1 sample was unsuitable for testing. The Appellant’s “SCC Rolling 3 Month % Demerit” went from 27% at the beginning of January 2020 to 40% at the end of March.

8Mr. Creighton testified that he was managing cows that were freshening and presenting with mastitis by excluding their milk from the milk tank. Mr. Creighton stated that their procedure is to do manual stripping of any cow that they have suspicion of having elevated cell counts or mastitis and it is performed before the milkers go on.

9The California milk test is provided by the vet. The procedure for using the California milk test is that prior to milking, milk from each the four teats is tested for elevated SCC. Cows identified with high SCC do not have their milk put into the bulk tank.

10Mr. Creighton testified that cows with elevated SCC went undetected during January and February as the cows had no visual signs of mastitis; no swelling and no decrease in production. In order to deal with the high SCC and discover the source of the problem they were pre-stripping every cow in February and performing the California milk test to a number of cows including the four cows that were later discovered in February with the Lactanet testing to have elevated SCC.

11Lactanet is a third party that performs tests providing results for milk production, butter fat, solids, protein and SCC. On March 2, 2020, Mr. Creighton stated they had the Lactanet tests and found the four cows that were showing results that were problematic. Three cows had SCC over 2,000,000 and one over 6,000,000. Mr. Creighton stated that once they had the results they isolated the 4 cows’ milk and removed them from the milk line.

12In March there was another fresh cow with elevated SCC levels. This cow’s first two milkings’ milk went into the tank. It was discovered after the second milking that she had mastitis. The cow’s milk was then no longer added to the tank. Her milk was in the tank for two pickups. Test result for both pickups were elevated.

13Mr. Creighton testified that the milk samples that were taken from his farm went to the Wilton Cheese factory to a designated fridge. Mr. Creighton stated he checked the DFO producer site he noticed the first two of the five sample were unusable. He once again checked the DFO producer site the following week noticing three more samples came up as unusable. Mr. Creighton stated that at that time he thought it was unusual that there were 5 straight samples that were unusable so he called his field service representative Andrew MacDonald to find out what the problem was. Mr. Creighton stated that he was advised by Andrew MacDonald that the fridge for the samples at the Wilton Cheese Factory had broken down and replaced with a new rented fridge but the old fridge not removed. The samples were in the new rented fridge however the sample courier checked the old fridge for samples not the new fridge and left the samples behind. By the time the samples were found they were too old for testing.

14Mr. Creighton stated that he has concerns with the samples not being useable as there had been two samples over 400,000 SCC at the being of January. He testified that he had gotten the mastitis under control and there that was no mastitis in the barn until the end of January when two more samples tested over 400,000. He believes that the 5 samples that were damaged and could not be tested would have been under the threshold and in good standing.

15On March 22, 2020, another sample, the sixth sample, was left behind at the farm by the milk truck driver. It was not noticed for several hours and by the time it was noticed it was too late for it to be used for sampling. The prior sample, on March 20, 2020 was 177,000 SCC and the one after, on March 24, 2020, was 212,000 SCC. During the intervening four days, no cows were identified as having mastitis, no cows’ milk was being withheld from the bulk tank and nothing changed in the barn. Mr. Creighton testified that he is as confident as he can be that that missed sample would have been under 400,000 SCC.

16There were two samples that were taken from the bottom valve that are excluded from the test results as they cannot be used for SCC testing and only to determine the presence of inhibitor. These samples taken February 27 and March 2, 2020, initially were tested at the Guelph lab. Mr. Creighton saw the test results from February 27 on the DFO online dashboard, the SCC was very high, he called Andrew McDonald and told him that this sample was taken from the bottom of the tank and advised him that the March 2 sample was also from the bottom of the tank. Mr. Creighton stated he wanted to make sure it wouldn’t also come up on his test results as he was going on a family vacation and would not have internet access and see the results while away.

Maria Leal, Directory of Regulatory Compliance

17Ms. Leal was first employed by DFO in December 2012 as a Milk Quality Field Services Manager and appointed as the DRC in 2018. Ms. Leal holds a degree in Food Engineering from a university in Venezuela.

18Ms. Leal stated that the Raw Milk Quality Program Policies provides the requirements for milk production premises, equipment, milk quality and testing, the standards and penalty programs associated with the quality criteria, the shut-off and reinstatement provisions and the authority of the Director over the Bulk tank operators.

19Ms. Leal testified that Ontario Reg 761, under the Milk Act, provides the requirements producers must meet to sell milk. The Raw Milk Quality Program Policies gives the detail of how the Reg. 761 will be administered. Reg 761 has provisions for the grading and testing of raw milk. Milk is tested for SCC, bacteria, abnormal freezing points and inhibitors. Reg 761 prescribes the penalty level for SCC as over 400,000 cells per ml.

20Ms. Leal testified that as the DRC she trains and certifies staff to be bulk tank milk graders (BTMG). The process of sampling is prescribed. Samples once taken are labeled, sealed and put in a sample case in an ice water mixture. The label is scanned and linked to the farm code by the BTMG using a handheld device. The sampling process is uniform across the province. All samples go to a lab at the University of Guelph. Samples are taken to a sample depot where they will be picked up and transferred to the lab. A contractor picks up the samples to transport them to the University of Guelph. The depots have dedicated fridges for the samples to be dropped off by the BTMGs. There are 3,300 milk producers across the province of Ontario. Samples are taken approximately every other day. There are about 620,000 samples per year. Of the 620,000 samples approximately 2% of the samples are not suitable for sampling.

21Ms. Leal testified that the January 2020 milk samples that were left at Wilton Cheese and rendered unsuitable, resulted in a higher than average number of samples that were unsuitable for testing. Ms. Leal testified that it is not unprecedented to have a high number of samples not being suitable for testing but it is not something that happens on a daily basis.

22Ms. Leal stated that SCC is an indication of udder health and that for Processors, milk with high SCC can cause reduced shelf life and for Cheese Producers it can result in reduced yields.

23Ms. Leal testified that under the Raw Milk Quality Program Policies, a producer is assessed a demerit each time their milk tests over 400,000 cells/mL. If a producer has a demerit in 3 consecutive months and 40% of their test results in these three months are over 400,000 cells/mL they are assessed a penalty. The regulations prescribe that at least one test per month for SCC be performed.

24Ms. Leal stated that on April 7, 2020, she sent a letter to the Creightons with regard to their challenge of the SCC percentage demerit for March 2020. The reason that Ms. Leal rejected the Creightons’ challenge was that upon review of the test results that were available the calculations were correct at 40%. Therefore, it was determined that the percent demerit was to stay on the Creightons’ record. The damaged samples were not included in the calculation.

25An April 9, 2020 letter from Ms. Leal to the Creightons provided them with their Notice of a 4th Level SCC Penalty and Shut-Off (2nd shut-off in a rolling 24-month period). The letter explained the penalty calculation and instructions for reinstatement. The calculation of percentage demerits used 37 test results with 15 demerits to arrive at an average of 40 percent demerit.

26On April 16, 2020 Ms. Leal held a hearing for the Creightons. This hearing was a follow up on the April 7, 2020 decision to the Creightons’ challenge that had not been successful.

27On cross examination, Ms. Leal testified that the Creightons were shut out of the milk market for 34 days and that it was longer than usual. The Creightons were shut-off on April 9, 2020 and reinstated on May 14, 2020.

28Ms. Leal testified that there is no provision in Reg 761 that permits construing test results for a sample that was not tested and that there is no level of SCC above which the milk will not be used.

THE LAW

29Ontario Regulation 761

52. (1) The milk of every producer,

(a) shall be tested for bacterial content and somatic cell content by an official method at least once each month;

(1.1) A test under subsection (1) shall take place at a laboratory approved by the Director.

(4) The somatic cell count for milk shall not exceed the following amounts:

1. For each milliliter of cow’s milk, 400,000 somatic cells.

2. (2) The producer of milk that is tested for somatic cell count under section 52 in any given month is liable to a penalty in accordance with subsection (2.0.1) if,

(a) the somatic cell count is found in a test in that month to exceed the amount specified in subsection 52 (4); and

(b) the somatic cell count was also found to exceed the amount specified in subsection 52 (4) in at least 40 per cent of all of the tests conducted on the producer’s milk in a three-month period that includes,

(i) the month in which the test referred to in clause (a) was conducted, and

(ii) the two months preceding the month described in subclause (i). O. Reg. 122/18, s. 13 (1).

30Raw Milk Quality Program Policies

2.2.2 Somatic cell count Rev. July 1, 2019

Each bulk tank sample will be scheduled for SCC testing. Milk must contain less than 400,000 cells per mL. A milk sample with a test result greater than 399,000 cells/mL is in the penalty range.

Effective May 1, 2018, SCC shall not exceed 400,000 cells/mL. A milk sample with a test result greater than 400,000 cells/mL is in the penalty range.

Consequences if standards for SCC are not met

Effective May 1, 2018:

A SCC demerit applies each time a bulk tank test result is in the penalty range (greater than 400,000cells/mL).

A SCC penalty is applied when the following two conditions are met:

a) The producer has at least one SCC demerit in the third month of a three-month period; and

b) The percentage of SCC demerits (referred to as SCC percent demerit) in the three-month period is equal to or greater than 40 per cent.

SCC percent demerit calculations will be truncated. For example, a SCC percent demerit equal to 39.9 per cent will be truncated to 39 per cent.

2.2.9 Producer challenge of test results Rev. July 1, 2019

If a producer feels a sample and associated test result are not representative of the milk offered for sale, the producer may request the test result or penalty be deleted or varied by the Director of Regulatory Compliance.

31The Appellants have also relied on the cases of Berendsen v Director of Regulatory Compliance, Ontario Raw Milk Quality Program, 2000 ONAFRAAT 10 and Donnanview Farms Ltd. v Director of Regulatory Compliance, Ontario Raw Milk Quality Program, 1999 ONAFRAAT 24.

ANALYSIS AND FINDINGS

32The Appellants had 45 milk pickups during the months of January, February and March 2020. Routinely samples are taken at each pickup and sent for testing, however, through a series of events including human error, only 37 of the samples were suitable for testing for SCC and providing test results for the purpose of calculating the SCC demerit percentage.

33The evidence of the DRC shows that a great deal of care is taken with respect to maintaining the integrity of each milk sample but that there is room within the system for errors to be made resulting in significant loss of samples. Errors result in an average of 2% of all samples being rendered unsuitable for testing.

34The Tribunal notes that the missed milk samples from the Appellants’ dairy farm were as a result of circumstances outside of their control.

35The Tribunal finds that the Appellants were exercising due diligence in tracking and monitoring the SCC levels of their herd and were taking corrective action in a proactive manner. The Tribunal notes that these actions did not resolve the high levels of SCC such that their milk in the bulk tank when sampled consistently produced SCC scores lower than penalty levels.

36The Tribunal finds that the Respondent DRC routinely takes and tests milk samples at each milk pick up and that milk producers rely on this testing to monitor milk quality and to assist them when making herd management decisions. The Tribunal notes that the missing test results potentially delayed the Appellants’ response to problems that were developing in the barn.

37The Tribunal finds that the Appellants had corrected their SCC problem by the end of March near the time they were to be shut-off from the milk market.

38The Tribunal relies on 2.2.9 of the Raw Milk Quality Program Polices which states “If a producer feels a sample and associated test results are not representative of the milk offered for sale, the producer may request the test results be deleted or varied by the Director of Regulatory Compliance.” The Tribunal interprets this to mean that the DRC can vary test results and further that this variance is not only the deletion of test results but also other variances if the “associated test results are not representative of the milk offered for sale”.

39The Appellants argued that the test results were not representative of the milk offered for sale. The Tribunal finds that it cannot determine the quality of the milk being offered for sale in January 2020 during a 10-day period when 5 samples were not suitable for testing.

40The Tribunal finds that on a balance of probabilities the milk being offered for sale on March 22, 2020 was of similar quality to the milk offered for sale on March 20, 2020 and March 24, 2020 having SCC between 177 cells/mL and 212 cells/mL.

41In order for the appeal to be successful, the Appellants are asking the Tribunal to impute test results for the March 22, 2020 damaged and unusable sample, that are representative of the milk that they were offering for sale on the 20th and 24th of March, 2020.

42Further, the Tribunal would need to have this sample counted as a non-penalty sample in order reduce the Creightons’ SCC demerits below 40% for the months of January, February and March and thereby provide relief from the penalties invoked by the DRC finding of SCC violations at the end of March 2020.

43This current matter on appeal is distinguishable from Berendsen v Director of Regulatory Compliance, ORMQP Milk 2000 ONAFRAAT 10. In Berendsen the milk sample of concern was found to be altered by an unknown person. Excluding the sample test results relieved the problem and the penalty was expunged. In this matter the Tribunal is being asked to impute favourable test results for samples that did not get tested in order to reduce the Creightons’ SCC demerits below 40% for the months of January, February and March.

44In Donnanview Farms Ltd. v Director of Regulatory Compliance, ORMQP 1999 ONAFRAAT 24 a milk sample was incongruent with the producer’s quality record and it was found that it was not representative of the quality of milk in the producer’s bulk tank. In this case the sample was expunged from the producer’s record, not added.

45The Tribunal takes the gravity of the DRO’s responsibility of upholding Ontario Regulation 761 very seriously and cites Berendsen;

“The Tribunal is very mindful that Ontario Regulation 761 is the bulwark of milk production and supply management in this Province. It imposes a very high onus upon all involved in the process of delivering dairy products to consumers in Ontario and beyond. The object of the system and of the Regulation is the delivery of high quality, safe dairy products to the consuming public. While there is a clear public health aspect to this, the integrity of the system is also important to enhance and promote an industry that is significant to the Provincial economy. The integrity of that system will, however, be compromised if it results in the imposition of penalties upon a producer that can demonstrate the problem could not reasonably have originated from the farm operation. In making this distinction the Tribunal emphasizes that the onus is on the producer to convince the Tribunal that the problem could not reasonably have originated from the producer’s farming operations. There is no intention from the Tribunal that the Director has to prove that the source of the problem was on the farm.”

46The Tribunal finds that the test results, taken on the whole are representative of the milk being offered for sale. Further, the Tribunal does not find authority at 2.2.9 of the Raw Milk Quality Program Policy to impute test results.

47Therefore, after careful consideration of the evidence presented and the submissions made, the Tribunal has decided to dismiss the appeal.

ORDER

48The appeal filed by Terry and Tara Creighton is hereby dismissed.

Recommendation of the Tribunal

In light of the facts of this case, the Tribunal recommends to the Board of Directors of the DFO that they conduct a review of the operations of the milk sampling collection, holding and logistics to satisfy themselves it is working efficiently to meet the needs of both the milk producers and the dairy industry.