Second opinion not needed, tribunal rules
Monday, March 18, 2013
by SUSAN MANN
Dairy farmers’ inability to get a second opinion if a certified bulk tank milk grader rejects their milk on the farm was discussed during a recent Ontario Agriculture, Food and Rural Affairs Appeal Tribunal hearing.
In the decision handed down March 15, the tribunal ruled Dairy Farmers of Ontario appropriately upheld the decision of the bulk tank milk grader, Gary MacPherson, to reject the load of milk on Nov. 28, 2010 at La Gantoise Inc. in Lefaivre, Ontario. Farm owner, Charles Goubau, appealed the decision of DFO’s regulatory compliance director to endorse the grader’s rejection. The appeal was heard last year on Oct. 18 and Dec. 19 in Ottawa.
Goubau says by email he needs more time to study the tribunal’s decision before commenting on it.
The 7,959-litre tank load of milk was rejected after MacPherson lifted the lid and sensed heat plus smelled a “malty” odour, the written decision says. He left a rejection tag, called a “red tag,” at the farm that says the grader’s decision to reject the milk is final and DFO doesn’t offer second opinions. It was the fist time in Goubau’s 32-year dairy farming career that his milk was rejected.
The tribunal says it’s possible the tank’s contents might have passed quality control tests even though MacPherson sensed heat and noted the malty smell but that’s not how the system works. Under the Milk Act, DFO has the discretion to not market rejected milk.
DFO operations division director George MacNaughton testified that in 2005 the board approved a recommendation from its raw milk quality committee to not market milk from rejected farm bulk tanks. The committee also recommended that farmers not be given second opinions if they disagree with the grader’s decision. The committee’s opinion was that the bulk tank graders/drivers are the experts and the board should support their decisions.
Once MacPherson told Goubau he wasn’t picking up the milk, Goubau tried to get a second opinion but was told by his milk transporter, Villeneuve Transport, DFO didn’t authorize them to provide another milk grader at the farmer’s own expense, the decision says. Similarly, Goubau called a local processor who also told him DFO prohibited them from giving another opinion.
According to the tribunal decision, Goubau had someone named Mr. Blum evaluate the milk almost three hours after MacPherson rejected it and Blum found it fit for human consumption. But the tribunal notes when Blum rendered his decision, the milk had cooled, and Goubau didn’t provide any test results or reports of Blum’s findings. In addition, Blum wasn’t called as a witness and there was no evidence of his expertise to evaluate milk.
MacNaughton testified DFO doesn’t provide second opinions because the person offering them at the farm level may not have the same experience as the main person grading the milk. “This would mean relying on a less qualified person who may do it less frequently to provide a second opinion,” the decision says.
While Goubau suggested several reasons why a person’s sense of smell might malfunction, there wasn’t any evidence that MacPherson’s ability to smell malty odours was impaired.
The tribunal sympathized with Goubau’s limited options to contest the grader’s decision and for having to dump the tank-load of milk so he could proceed with the next milking but “it is the opinion of the tribunal it was a situation of his own making,” the decision states. That’s because Goubau and his employees chose to consider the alarms that went off from the time temperature recorder to be a problem with the monitoring equipment rather than a faulty agitator, which it turned out to be.
DFO field services representative Guy Seguin did a report about the Nov. 28, 2010 incident and said the agitator wasn’t working properly for at least nine months.
He says improper cooling is the number one factor for milk being malty. On Dec. 3, 2010, Goubau got his bulk tank agitator repaired and there hasn’t been a “no agitation” alarm since then, the decision says. BF