Farmers lose appeal on stray voltage decision

Thursday, January 9, 2014

by SUSAN MANN

The Ontario Appeal Court upheld a Superior Court judge’s decision that former dairy farmers Ron and Helen Cowan failed to prove their herd’s milk production and quality problems were due to tingle voltage caused by the Hydro One electrical system.

In a Jan. 7 written ruling the Appeal Court judges, David Doherty, Robert J. Sharpe and J. MacFarland, dismissed the appeal launched by the Cowans and their daughter, Shannon. The appeal was heard and the oral decision was released Dec. 20, 2013. The Cowans were also assessed the appeal court costs of Hydro One Networks Inc. at $45,000. Coupled with Hydro’s court costs for previous proceedings, the couple could end up having to pay $1.8 million, says Ron Cowan.

Cowan, 57, says they were surprised by how fast the appeal judges handed down their decision. “I’ve waited longer in line for a hamburger and French fries than it took them to figure that one out. I think it was cut and dried before we even went there.”

While he hasn’t yet talked to his lawyer, Cowan says if they can find grounds to go the Supreme Court of Canada “that’s where it’s going. We’re going to take it as far as we can push it.”

Nancy Shaddick, Hydro One communications officer, says by email Hydro One respects the decisions of the trial judge and Appeal Court. “The trial judge, as confirmed by the Court of Appeal, found that on a balance of probabilities tingle voltage was not a contributing factor in the production losses experienced on the Cowan farm. The production issues were more likely from an on-farm source rather than from Hydro One’s system.”

Cowan says he was at the appeal and heard the oral decision but hasn’t yet read the written copy.

The appeal court judges note in their decision the trial judge, Robbie D. Gordon, said the Cowans failed to prove their case “on a balance of probabilities. He concluded that while a number of factors could have caused the problems experienced by the appellants (the Cowans)” the only one proved on a balance of probabilities was inadequate labour.

But in the initial decision handed down Oct. 31, 2011, Cowan says the judge “accepted the fact that our cattle were well looked after, well fed; being properly milked and bred. Basically we met or exceeded industry standards.”

Cowan also notes they worked with a veterinarian and tried everything to fix the problems on their farm. “A program designed by the vet that worked well on somebody else’s farm didn’t work well on ours.”

The appeal decision says “we see no error in his (Gordon’s) conclusion that causation has not been proved.” The appeal judges also said they didn’t want to interfere with Gordon’s  “lengthy” reasons for his decision, noting Gordon “thoughtfully considered and weighed the evidence before him.”

Gordon found that tingle voltage was present in the barn regularly in amounts exceeding 1.0 volts and occasionally between 2.0 volts and 3.0 volts. “But the trial judge said he wasn’t satisfied on the balance of probabilities that tingle voltage was a contributing factor to the production issues” faced by the Cowans, the appeal decision says. There are several facts disputing the conclusion that tingle voltage negatively impacted the Cowans’ milk production including:

• The farm had positive production levels in 1995/96.
• The herd had acceptable somatic cell counts for most of the time the farm operated.
• There was a lack of health issues on the farm that ought to have been apparent had tingle voltage been causing significant stress to the cows.

The Cowans milked cows from 1992 to 2002 near the village of Earlton. Towards the end of their dairy farm’s life they were milking 40 cows. They were successful at first but were plagued by poor milk quality and low production after 1997.

Cowan says they kept expanding their milking herd because they needed the 40 cows to fill their quota. He notes they had everything under control for a while but “it just seemed that we couldn’t maintain it. If you ask any expert on stray voltage (also known as tingle voltage) it comes and goes depending on the type of weather, how much moisture is in the ground, all sorts of various stuff.”

The appeal judges note the Cowans don’t agree with Gordon’s findings. “They argue the trial judge ought to have accepted the evidence of their experts and concluded, in fact, that tingle voltage in the barn caused damages of which they complain, which is essentially the loss of their farm. We do not agree.”

Cowan says “basically what it boils down to is I can’t produce the kind of proof that the courts are requiring.” BF