Jeff Cridland v. Director of Regulatory Compliance, DFO

In the matter of the Milk Act and Section 16 of the Ministry of Agriculture, Food and Rural Affairs Act.

And in the matter of:

An Appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal by Jeff Cridland, c/o Metro Toronto Conservation Authority Farm, Alliston, Ontario, from a decision of the Director of Regulatory Compliance, Dairy Farmers of Ontario dated June 23, 2008, to uphold the non-grade A penalty assessed against licence # 494798.

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

Appearances:
Jeff Cridland, the appellant
George MacNaughton, on behalf of the respondent, Dairy Farmers of Ontario (DFO)
Alex Hamilton, witness on behalf of the respondent
Grant Brownridge, witness on behalf of the respondent

Decision of the Tribunal

This appeal was heard in Guelph, Ontario, on Tuesday, May 19, 2009.

Preliminary Matter

Before the Hearing began, concern was raised over Mr. Cridland's authority to represent the Metro Toronto Conservation Authority (MTCA), the holder of the producer license with DFO.

Mr. Cridland noted that he manages the farm, with quota licensed to the MTCA, and receives any income generated by the farm, minus any rent owed to the MTCA. He further noted that three individuals have managed the MTCA's operation since the 1970s. Mr. Cridland stated that he did not contact the MTCA regarding his appeal to the Tribunal. The Tribunal, however, noted that the MTCA was a noted recipient of the notices of the Hearing before the Tribunal.

Background

Mr. Cridland is a farmer who manages his own dairy operation near Alliston, Ontario. He also managed an operation for the Metro Toronto Conservation Authority (MTCA), in Palgrave, Ontario for 14 years, until October 2008 which is the subject dairy operation of this appeal.

On February 21, 2008, the MTCA farm was inspected by DFO, and was classified as "Conditional Grade A", noting several requirements including: the washing of a pipeline, slow cooling of milk, the replacement of a rubber breather on the milk tank lid, the full cleaning of the milk house, and the repair of the floor in the milk house.

During the follow up inspection on March 27, 2008, the appointed DFO field person noted that not all requirements for Grade A status were completed, and thus, the farm was classified as Non-Grade A, leading to a penalty in the amount of $2.00 per hectoliter of milk, on 325.33 hectolitres shipped in March 2008, for a total penalty of $650.66.

Mr. Cridland noted that he did not receive the report from the February 21, 2008, inspection, although he was assured it was left on the farm.

The Issue

The issues before the Tribunal were:

1. Were the procedures used by the DFO sufficient, to notify the producer of quality issues which needed correction?

2. Should Mr. Cridland receive an exemption to the DFO policy requiring him to maintain Grade A status on his milk?

Evidence

Jeff Cridland

Mr. Cridland operated the MTCA farm for 14 years, during which time, quality issues had arisen, with which he has subsequently complied. In March 2006, a similar incident arose, where a high bacteria count was found, and the maintenance of his Grade A status came with 5 conditions, which he brought into compliance shortly thereafter. He noted that he responds to inspection reports as quickly as possible, and takes food safety matters very seriously. In February 2008, Mr. Cridland noted that he took immediate steps to correct high Bactoscan test results.

Upon learning of the penalty imposed upon him following DFO's March 27, 2008, inspection, Mr. Cridland contacted the inspector, Mr. Grant Brownridge, who informed Mr. Cridland that making any changes to the penalty imposed upon Mr. Cridland was beyond his ability. Mr. Cridland noted that Mr. Brownridge said he left an inspection report from the February 21 inspection, although it must have been misplaced.

Mr. Cridland's hired assistant on the MTCA farm was an individual who was a former dairy farmer. This individual was aware of the DFO's operations and, although he did not receive the milk cheques, he was made aware of rising bacteria or somatic cell count (SCC) issues to ensure they are brought to acceptable levels. Mr. Cridland maintained a list of standard operating procedures in the milk house, and was not able to speak to why he didn't receive the inspector's report of February 21.

Mr. Cridland requested the DFO inform producers of inspections by way of phone call, to ensure the producer is made aware of the inspection being done, in addition to reports being left. He noted that DFO has an automated phone system that informs producers of high bacteria levels, which allows producers to take immediate action.

In response to questions from Mr. MacNaughton, Mr. Cridland told the Tribunal that, since he was the manager of the MTCA farm, six farm inspections were conducted, of which, he received all six inspection reports. He also told the Tribunal that his on-farm assistant was the front-line person for the day-to-day operations of the farm, and that he, himself, made great effort to be on-site when it was being used for educational purposes. With respect to maintaining the status of the farm, he noted that it was his responsibility to ensure its Grade A status.

Regarding the cooling system used on the MTCA farm, Mr. Cridland told the Tribunal that the system used was made in 1975, and that it often had issues with the speed at which cooling would occur. He noted that an upgrade of the cooling system on the MTCA farm was not considered, as he knew the farm was scheduled to be decommissioned and converted to another farming operation. On the basis of cooling, he noted it could not meet the regulatory requirements, although based on cleanliness, that it would meet the requirements.

Regarding a crack in the floor of the milk house, Mr. Cridland told the Tribunal that it was located beneath a valve for the cooler, and didn't show any signs of dirt or contamination.

Mr. Cridland stated that he is requesting a one-time exemption from the DFO policy, and noted that he genuinely didn't receive the inspection report. He stated that he has a history of being proactive and following up with prior reports.

Dairy Farmers of Ontario

Alex Hamilton

Mr. Hamilton is the Policies and Regulations Manager at DFO, and has been for the last year and a half. He deals with the raw milk quality program, the Canadian quality program, and field staff issues. He started as a field person with the Milk Marketing Board in 1987, in Prescott, Ontario. He noted that, as a field person, he has conducted approximately 2,000 inspections to date.

Mr. Hamilton referenced several sections of Regulation 761, including section 5(2)(c), regarding the cooling of milk; section 12(3)(b) and (c), and 12(4)(a), regarding the requirements of a milk house; section 13(2) and (3), regarding equipment and utensils used. He added that the DFO is under an agreement with the Minister of Agriculture, Food and Rural Affairs for implementing regulations for the provincial government and, regarding Grade A inspections. There are six areas to be reviewed, including biosecurity, milk contact surfaces and cleanliness, milk cooling, physical structures, and the overall barn. Mr. Hamilton also referenced section 9 of the DFO's policy, noting the timeframes involved in follow up inspections, and the fees associated with non-compliance with the Grade A requirements. He also noted that two of the eight items listed in his February 21 inspection report were completed, with six remaining incomplete.

Mr. Hamilton told the Tribunal that the inspection report of February 21 was left on Mr. Cridland's desk in the milk house, and that it is not the responsibility of DFO to manage communications between the farm manager, and any staff employed by the farm. He also told the Tribunal that the DFO could have imposed a penalty of $2 per hectoliter for the month in non-compliance, as well as the next month, leading to a penalty of $1,301.32; however, it chose to only apply a penalty of one month.

In response to questions from Mr. Cridland, Mr. Hamilton told the Tribunal that Mr. Cridland has a history of compliance with the requirements, although not a history of full compliance, which would be achieved by consistently maintaining Grade A status, as opposed to conditional Grade A status. He also noted that DFO has a responsibility to perform inspections, and to use reasonable means to ensure the farmer is aware of such inspections. He added that among approximately 2,000 inspections he has performed, he has not previously had an issue with producers not seeing or receiving the inspection report.

In response to questions from the Tribunal, Hamilton noted that ever since DFO assumed responsibility for conducting inspections, it has been DFO's policy to leave the inspection report in an obvious place in the working milk house, in a protective plastic sheet.

Grant Brownridge

Mr. Brownridge has been a field person and inspector for 28 years. He began in this capacity with the Ontario Ministry of Agriculture, Food and Rural Affairs in 1981, and continued in this capacity with the DFO since 1998, when DFO assumed responsibility for the inspection program. He holds a Bachelor's of Science degree in Agriculture, from the University of Guelph, and has completed ongoing training since being in this position. In his 28 years as an inspector, he has conducted approximately 7,000 inspections, roughly 28 of which have been of the MTCA farm.

Mr. Brownridge stated that, during his inspection of February 21, 2008, no one was present at the MTCA farm, and that he left the report on a table in the milk house. He noted that, during his follow up inspection on March 27, 2008, he questioned the individual working the farm about the completion of the items noted in the February 21 inspection report, and the individual told him the items would soon be completed. He added that, based on that statement, he understood that this individual received and read the report of February 21.

Mr. MacNaughton told the Tribunal that the non-Grade A items outlined in the February 21 inspection report are not in dispute, and that DFO has followed consistent protocols in leaving the inspection report in the milk house. He added that Mr. Brownridge understood the on-farm assistant to have received the report, and that any communication of its contents would be an issue to be dealt with between the on-farm assistant, the MTCA, and the farm manager.

Analysis and Findings

Based on our analysis of the evidence before us, we make the following findings:

DFO Policy

• Mr. Cridland testified he is an experienced dairy farmer who is aware of, and who understands the DFO's policies and procedures.

• The DFO policy, whereby the inspector leaves the inspection reports in the milk house, has been in place since DFO assumed responsibility for administering the program.

• Mr. Cridland did not disagree with the requirements in Regulation 761, as presented by the DFO.

Inspection Report

• Mr. Cridland did not dispute Mr. Brownridge's statement of having left the inspection report of February 21, 2008, in the milk house at the MTCA farm.

• The on-farm assistant hired by Mr. Cridland was not brought forward to the Tribunal to testify as a witness and, therefore, could not be questioned with respect to whether or not he had seen the inspection report.

• Mr. Cridland acknowledged that he was responsible for ensuring the maintenance of the farm's Grade A status.

• Mr. Cridland was aware of DFO's practice to leave the inspection reports in the milkhouse on each dairy farm.

• It is clear from the evidence that it is the responsibility of the producer to ensure that the requirements of Grade A status are met.

• Once the inspection report is left in the milk house of the dairy farm, it becomes the responsibility of the dairy farmer; in this case, Mr. Cridland, to ensure the conditions contained therein are complied with pursuant to the provincial regulatory requirements, as administered by the DFO. At this point, the DFO has done its job in properly implementing provincial regulation, and its own policies, both created pursuant to provincial legislation. The DFO clearly has no control over the communication arrangement between the dairy farmer and his employees and therefore cannot be held responsible for ensuring the individuals communicate in a timely manner with respect to the operation of the dairy farm.

Penalty

• The evidence shows that DFO showed compassion toward Mr. Cridland with the fine imposed, by only imposing a fine against the producer equivalent to one month, instead of one equivalent to two months, which was within its jurisdiction to do so. We therefore find that under the circumstances, the fine imposed by the DFO was fair and equitable.

Order of the Tribunal


After careful consideration of the evidence filed and the submissions made the Tribunal hereby denies Mr. Cridland's appeal.

Dated at Maidstone, Ontario, this 10th day of June, 2009.