IN THE MATTER OF THE RACING COMMISSION ACT, S.O. 2000, c.20;
AND IN THE MATTER OF
THOROUGHBRED OWNER/TRAINER STEVE ATTARD
Whereas trainer Steve Attard appealed the decision of the Stewards at Woodbine Racetrack dated November 23, 2003 in Ruling TB 487/2003 wherein they fined Mr. Attard $1,000.00 and suspended him for 15 days as a result of the horse Dillinger having tested positive for the prohibited substance Methocarbamol (Robaxin) after the eighth race on September 14, 2003. Additionally, the Stewards in the same order fined Mr. Attard $1,500.00 for a violation of his obligation to maintain adequate medication records.
On July 16, 2004 and August 6, 2004, Vice Chair Larry Todd and Commissioners Jane Garthson and George Kelly of the Ontario Racing Commission convened to hear the Appeal.
Ben Salsberg appeared on behalf of Mr. Attard. Tim Snell appeared on behalf of the Administration.
Upon hearing the evidence of Dr. Darryl Bonder, Saravanan Sundaramoothy, Steward Gunnar Lindberg, Steve Attard, Paul Adams, Sharon Attard, Hardol Bhumpaul, Monica Knowland, Darren Fortune, and Erskin Ford, having read the exhibits filed and heard the submissions of the parties, the Ontario Racing Commission allowed the appeal in part as follows:
The suspension and two fines assessed to Mr. Attard in Ruling TB 487/2003 are quashed. However, the order of finish of the horses as found by the Stewards after Dillinger’s positive test remains as is given that Mr. Attard’s horse ran with prohibited medication in its system and as such had an unfair advantage over other horses in the race. That order of finish as referenced in the penultimate paragraph of the order of the Stewards dated November 23, 2003, therefore remains unchanged.
DATED this 7th day of September, 2004.
BY ORDER OF THE COMMISSION _________________________
Don Bourgeois
Executive Director (Acting)
REASONS FOR DECISION
NATURE OF THE APPEAL
Trainer Steve Attard has appealed the decision of the Stewards at Woodbine Racetrack dated November 23, 2003 (TB 487/2003) wherein they determined that Mr. Attard’s horse, Dillinger, tested positive for the prohibited substance Methocarbamol (Robaxin) in the eighth race on September 14, 2003.
Additionally, the Stewards in the same order fined Mr. Attard $1,500.00 for a violation of his obligation to maintain adequate medication records.
This appeal was heard by a panel consisting of Commissioner Garthson, Commissioner Kelly, and Vice Chair Larry Todd on July 16, 2004 and August 6, 2004. The following are the reasons for the unanimous decision of this panel.
Trainer Attard was represented by Ben Salsberg and the Administration was represented by Tim Snell.
THE EVIDENCE AND FACTS
This panel heard evidence from Dr. Darryl Bonder, D.V.M., Steward Lindberg and veterinary technician Saravanan Sundaramoothy on behalf of the Administration. Mr. Salsberg called as his witnesses trainer Attard, Paul Adams from Woodbine Entertainment Group, Sharon Attard, Hardol Bhumpaul, Monica Knowland, Darren Fortune, and Erskin Ford.
As a consequence of a random urine test after the horse Dillinger finished third on September 14, 2003 at Woodbine Racetrack, Cantest Laboratories determined that Dillinger tested positive for the drug Methocarbamol (Robaxin).
The Certificate of Analysis was part of Exhibit 2 in the proceedings before us. The facts set out in the Certificate of Analysis were admitted by the appellant.
We also by the agreement of counsel were advised through Exhibit 3 that the split urine sample from Dillinger in the subject race “contained Methocarbamol at a concentration 651.6 micrograms per milliliter of urine”. This information was contained in a report dated November 19, 2003 from Dr. George Maylin, the Director of the New York State Racing and Wagering Board at Cornell University.
Counsel further advised us that there was an agreement that 1 gram of Methocarbamol (hereinafter referred to as “Robaxin”) administered to Dillinger on September 13, 2003 was not the source of the positive Robaxin urine test taken on the afternoon of September 14, 2003. This agreement of counsel for the purposes of this hearing was contained in an exchange of correspondence filed before us as Exhibit 4.
Counsel additionally through their exchange of correspondence in Exhibit 4 agreed that the concentration of Robaxin in the split sample of the urine of Dillinger from September 14, 2003 was either “high” or “extremely high”.
Trainer Attard in September 2003 utilized the veterinary services of the Toronto Equine Hospital. Its primary veterinarian at that institution was Dr. Peter Vatcher who was not called as a witness by either party.
The evidence indicated that Dr. Bonder from the Toronto Equine Hospital covered treatments for his partner, Dr. Vatcher, on certain weekends, one of them being September 14, 2003. The treatment records for Dillinger from the Toronto Equine Hospital were before us at Tab 8 of Exhibit 1. These records from the Toronto Equine Hospital covered the period from March 12, 2003 to September 19, 2003 for the subject horse.
There is no dispute on the evidence that Dr. Vatcher on September 13, 2003 on the instructions of Mr. Attard administered 1 gram or 10 c.c. of Robaxin to Dillinger along with other medication and a sodium jug. Additionally, it is not disputed that on the race date in question, September 14, 2003, Dr. Bonder administered two separate sets of medication to Dillinger, the first at 10:30 in the morning and the second at or about 1:30 in the afternoon. Some of these medications were administered intravenously and some through the intramuscular route. The particulars of the drugs to be administered to Dillinger on the race day are delineated in detail in Exhibit 1, Tab 8.
Dr. Bonder for both of the above treatments of Dillinger on September 14, 2003 had received a tray of drawn syringes containing medication and labeled at or about 9:30 on Sunday, September 14, 2003. The syringes had been filled by a veterinary technician and labeled at the Toronto Equine Hospital by veterinary technicians. While we heard from the veterinary technician who drew the syringes for the treatment of Dillinger on September 13, 2003, we did not have the benefit of the technician who prepared the loaded syringes for Dr. Bonder on September 14, 2003.
It was Dr. Bonder’s evidence that he did not give Robaxin to Dillinger on September 14, 2003 nor did he tell anyone else to treat Dillinger with Robaxin on that date. However, Dr. Bonder did acknowledge that he had no actual personal knowledge of what was in the syringes contained in the tray of medications delivered to him for treating horses including Dillinger on September 14, 2003.
Both Dillinger’s veterinary records from the Toronto Equine Hospital and Dr. Bonder confirm that Dillinger was treated with 50 c.c. of Clotol at 1:30 p.m. on race day. Dr. Bonder, of course, relied on the label on the syringe and couldn’t absolutely say that the syringe contained Clotol. We were advised by Dr. Bonder that both Clotol and Robaxin are clear liquids in a syringe and have an identical outward appearance.
To the suggestion by counsel for the appellant that he may have given 50 c.c. of Robaxin in error when supposedly administering Clotol, Dr. Bonder agreed that mistakes “are possible”. Dr. Bonder further acknowledged that both Clotol and Robaxin are intravenous injections and that 50 c.c. of Robaxin is within the treatment range and would not have any obvious adverse effect on Dillinger.
Dr. Bonder indicated that he was not qualified in analytical chemistry and could not comment on whether 651.6 micrograms per milliliter of urine was an inordinately high concentration or in any way consistent with 50 c.c. of Robaxin being administered approximately 3 – 3 1/2 hours before Dillinger’s post time and the subsequent urine test. Dr. Bonder additionally was not able to assist us as to how the instructions on September 14th for the preparation of drugs were conveyed to the technician at the Toronto Equine Hospital. The documentation or list of required drugs that is generally written out and/or copied from the treating veterinarian’s daybook was not available and not apparently kept in the ordinary course of business after the preparation of the listed medications for patient horses.
Lastly with respect to Dr. Bonder’s evidence, he was able to confirm that the records of the Toronto Equine Hospital with respect to Dillinger were available and would be available to Mr. Attard on short notice at any time. Dr. Bonder further confirmed that the computerized hospital records for patients such as Dillinger are, to the best of his knowledge, an accurate record of medications used on the subject horse.
This panel heard evidence from a veterinary technician at the Toronto Equine Hospital in the person of Mr. Sundaramoothy. However, this witness’s evidence related only to the drawing and administration of drugs on September 13, 2003. The evidence was that a different and unnamed technician drew, prepared and labeled the drugs and syringes for Dr. Bonder on September 14, 2003.
From the summary of the initial hearing before the Stewards and from the evidence before us, it is fair to say that Dr. Bonder offered no real explanation as to how Dillinger exhibited the “high” or “extremely high” Robaxin reading in the post race test of September 14, 2003.
Exhibit 1, Tab 8 contains a narrative report of actions taken by the investigative unit of the Ontario Racing Commission at the time of the disclosure to trainer Attard of Dillinger’s positive test. Suffice it to say that both an extensive barn search and questioning of the trainer disclosed no evidence or even inference of Robaxin being administered by the trainer or even available to him at the relevant times.
We did, however, have before us certain evidence that Dillinger some five days after the race in issue did not receive the medication listed in his patient history or report at Exhibit 1, Tab 8. There is reference to this in correspondence of November 23, 2003 from Senior Steward Nelson Ham to the Director of Racing (Exhibit 1, Tab 9). Further evidence of an apparent significant mistake in the treatment of Dillinger was given by both Mr. and Mrs. Attard. It is noteworthy that we did not hear from Dr. Vatcher who was listed as the treating veterinarian on September 19, 2003 when Dillinger apparently received three treatments totally unrelated to the Winstrol injection that was supposed to have been given and which shows on the patient history report at Exhibit 1.
It is significant to note that Steward Lindberg in his evidence did confirm through contemporaneous notes kept by Steward Ivan McHutchion that Mr. and Mrs. Attard did bring their “training notes and drug charts” to the original Stewards’ hearing which led to the order that is the subject matter of this appeal. Steward Lindberg indicated that the Stewards never saw Mr. Attard’s training charts or medication records and the Stewards’ Reasons for Decision found at Exhibit 1, Tab 10, appear to confirm this finding. These training and drug charts for the months of September and October 2003 were made Exhibit 8 in the subject proceedings.
It should be noted that the Administration did not see fit to call any reply evidence after there was clear evidence led by the appellant of erroneous treatment given to Dillinger on September 19, 2003. In the context of the evidence as a whole, and in particular with respect to the high reading of Robaxin in the subject positive test, one might have expected some evidence of either the principals or employees of the Toronto Equine Hospital.
Mr. Attard in his evidence indicated that he had been a self-employed trainer for 20 years and had an unblemished disciplinary record with this Racing Commission and all others. This record was confirmed by the Administration’s evidence.
Mr. Attard specifically directed his veterinarian, Dr. Vatcher, to treat Dillinger with Robaxin on September 13, 2003 but gave no direction for Robaxin on September 14, 2003. Mr. Attard gave evidence that he had no knowledge of Robaxin being given to Dillinger on September 14, 2003 and gave no authority to anyone to give Robaxin at any relevant time to Dillinger other than the 1 gram on September 13, 2003. The evidence of Mr. Attard confirmed by numerous other witnesses and investigation reports indicated that injectible Robaxin or oral Robaxin was not used by Mr. Attard and was not even on his premises at Woodbine Racetrack in the second week of September 2003.
We heard detailed evidence from Mr. Attard, his wife and assistant trainer and his staff as to their barn attendances, supervision and safeguarding of their horses both in generalities and specifically as to September 13 and 14, 2003.
With the benefit of Exhibit 3 and the agreements of counsel contained in Exhibit 4, it was Mr. Attard’s position that Dillinger was treated by Dr. Bonder with 50 c.c. of Robaxin instead of 50 c.c. of Clotol on September 14, 2003. Mr. Attard noted that the veterinarians are very busy on race dates and hence the possibility of an error. We were advised that trainer Attard had given all his instructions to Dr. Vatcher prior to September 14, 2003 and that he had no direct or personal dealings with Dr. Bonder who was to administer the four requested drugs on race date.
Trainer Attard did confirm that after the apparent error of treating Dillinger on September 19, 2003 with an antibiotic, a painkiller and a swelling reduction agent instead of Winstrol that the owner of Dillinger instructed him not to utilize the Toronto Equine Hospital after the end of the 2003 racing season at Woodbine Racetrack.
We heard evidence from Woodbine Entertainment’s Vice President of Security who detailed the degree of patrolling and control over the backstretch premises where Dillinger was stabled at Woodbine Racetrack, both during the day and throughout the overnight period. We had the benefit of the computerized security rounds records for Mr. Attard’ stable located at Barn 33 in the form of Exhibit 7. Mr. Adams did advise that only “a few” trainers at Woodbine at the present or at any time in the past have hired their own night watchmen or security staff to supervise their barns and horses 24 hours a day, seven days a week. While we did hear some evidence of the use of camera surveillance, this was again stated to be an unspecified number of trainers “under ten” of the several hundred trainers on the backstretch at Woodbine Racetrack.
There was also evidence before us to the effect that the Horsemen’s Benevolent and Protection Association had indicated to their membership in 2003 that a veterinarian’s patient hospital records were sufficient compliance for the medication record requirements for treatments given by the veterinarian. While HBPA’s advice can in no way be determinative, it is nonetheless a component of the factual matrix at hand.
The following evidence was given by Mrs. Attard:
(a) the exercise rider who held Dillinger for his treatments at 1:30 on September 14, 2003 would have no difficulty identifying the horse;
(b) the exercise rider was used instead of Dillinger’s own groom because Dillinger was sometimes difficult to treat and unruly during the treatment period;
(c) Dr. Vatcher after the disclosure of the positive test proffered “contamination” as the causation;
(d) after Dillinger’s positive test, however, Dr. Vatcher himself attended to do the actual treatments as opposed to the veterinary technicians as was the previous practice on many occasions; and
(e) there was a recent acknowledgment by one of Dr. Bonder’s veterinary technicians that the colour coding of the syringes from the dispensary of the Toronto Equine Hospital only commenced after Dillinger’s positive test.
THE LAW
Mr. Attard, with respect to the drug positive test, has been found by the Stewards in violation of Rule 15.06.1 (a) and (b) of the Rules of Thoroughbred Racing.
We note there are many prior decisions of this Commission defining and delineating the parameters of a trainer’s obligations under these Rules. We note in particular the observations of Chair Sadinsky speaking for the Commission in Re: Welsh [1996] ORCD No. 58 wherein it is noted at paragraph 28 as follows:
“Accordingly, there is an onus on a trainer to adduce first-hand evidence of the actual steps taken to protect his or her horse.”
We were additionally referred by counsel to the decision of this Commission in Re: Owens [1997] ORCD No. 36, Re: Blanchard [1996] ORCD No. 21 and Re: Hickey [1995] ORCD No. 27.
It is the aforesaid cases that mandate that we must determine whether Mr. Attard satisfies us on a balance of probabilities that he took reasonable care in protecting Dillinger.
The aforesaid decisions interpreting the trainer responsibility rule in issue here are very fact specific and all decisions under Rule 15.06.1 (a) and (b) have to be decided on their own facts.
The above cases further make it clear that the test to be applied under the trainer responsibility rule is one of strict liability and not absolute liability.
A positive drug equine test is a serious assault on the integrity of racing. Both the horse racing industry and the general public are entitled to know that horses competing in any race are not performing with the assistance of prohibited drugs.
Therefore when there is a positive post-race test, that does not automatically mean that anyone is liable under the trainer responsibility rule. However, it does indicate that the onus shifts to the trainer to satisfy the Stewards and/or this Commission that he took all reasonable precautions in protecting his horse.
Additionally, the trainer responsibility rule makes it clear that there can be more than just one party who may be liable for a breach of the rule when there is a positive test. The responsibility for a positive test can fall on the shoulders of a trainer, the veterinarian, the groom or any combination thereof including others who might have breached the rules of thoroughbred racing. For a trainer to successfully plead and rely on the defence of reasonable care or due diligence as it is sometimes referenced, the trainer must establish on a balance of probabilities there were no reasonable or feasible alternatives that he could have taken to avoid the positive test.
In the case at hand, Mr. Attard has satisfied us on a balance of probabilities that he took all reasonable available care in protecting Dillinger. Mr. Attard personally instructed his treating veterinarian as to the medications to be administered on September 13 and 14, 2003. Mr. Attard saw his veterinarian making notes of those instructions.
We find that Mr. Attard and his stable and staff were well managed, adequately instructed and properly deployed to minimize the possibility of sabotage and/or external contamination.
We find as a fact that as of September 2003, a trainer of a medium sized public stable at Woodbine Racetrack was not obliged to hire at his own expense 24 hour a day watchmen for their stable.
Additionally, we find as a fact that on September 14, 2003 Mr. Attard had trained, knowledgeable and competent staff available to identify Dillinger and assist Dr. Bonder in the administration of the requested medications to that horse. In short, trainer Attard was entitled to expect that the directions and instructions given to Dr. Vatcher would be carried out with regard to Dillinger by Dr. Vatcher or appropriate alternate staff from the Toronto Equine Hospital.
Based on the evidence that we heard and the evidence that we did not hear but would reasonably expected to have heard, we are left to conclude that the “high” or “very high” concentrations of Robaxin in the urine test of Dillinger on September 14, 2003, were the result of an error by one or more parties at the Toronto Equine Hospital. Our finding in this respect is supported by the Schedule of Drugs 2002 issued by the Canadian Pari-Mutuel Agency, a portion of which is found at Exhibit 1, Tab 8 in these proceedings. This booklet is provided by the Canadian Pari-Mutuel Agency “for the information of veterinarians and horsemen…”. In this publication regularly used by both horsemen and veterinarians, it is indicated that the highest detection limit for concentrations of Robaxin administered intravenously is within the first few hours of the 24-hour detection limit for intravenous administration of Robaxin. This information is only too consistent with the concentration levels and the agreements between the parties delineated in Exhibits 3 and 4 before us.
Mr. Snell was candid in his admission to us that none of the cases referenced to the panel in argument, other than the 2002 Reasons by Chair Sadinsky in The Matter of Thoroughbred Trainer Philip Gracey, contained any allegations or acceptance of the contribution of veterinarian error to the positive test.
We specifically find that trainer Attard did take all reasonable steps to protect and guard Dillinger against the administration of a prohibited drug and/or interference by any third party. It was suggested by Mr. Snell that trainer Attard’s care was deficient because he didn’t have round-the-clock security in his barn. We have found that this requirement as of September 2003 at Woodbine Racetrack was not a reasonable requirement. We stress that this should not necessarily be taken as the standard at other times and other venue.
In conclusion with respect to the positive Robaxin test, trainer Attard is entitled to rely on his veterinarian professional to administer the requested drug. On a balance of probabilities, it appears that the Toronto Equine Hospital somewhere and somehow failed in this respect.
Trainer Attard is also appealing a finding that he failed to comply with the prerequisites of Rule 15.09.1(f) of the Rules of Thoroughbred Racing. Trainer Attard proffers Exhibit 8, as well as Exhibit 1, Tab 8, being the five pages of patient history report of the Toronto Equine Hospital. We find that Exhibit 8, being the medical records and training charts kept by Mrs. Attard were available to the Stewards at the original hearing, but were somehow not considered in their conclusions. Exhibit 8 records all medications and treatments not given by trainer Attard’s veterinarians, but given by either he or his staff to the horses. These records, while kept in some degree of coding, are easily decipherable.
The five pages of patient history report for Dillinger found at Tab 8 of Exhibit 1 contains all the necessary detail and particularity to satisfy any “generally accepted standards of good conduct” within the context of Rule 15.09.1 of the Rules of Thoroughbred Racing. We have concluded that the combination of Exhibit 8 and the patient history report for Dillinger from the Toronto Equine Hospital satisfy the prerequisites of sub rule (f) of Rule 15.09.1 in the circumstances at hand here. It is uncontroverted that the records of the Toronto Equine Hospital were available to trainer Attard on a few minutes notice at any time for any of his horses. It should also be noted that there is no prohibition in the applicable rule against a trainer delegating the maintenance of medication records to staff and/or a third party.
When such delegation does take place, it is essential that the trainer keep close scrutiny of the treatment records to ensure that they reflect to the best of his knowledge the medications administered and not just those billed. We did hear, unfortunately, that there were on occasion, discrepancies between recorded and actual treatments.
CONCLUSIONS
In the result, this appeal is therefore allowed and the suspension and two fines assessed to Mr. Attard in the Stewards’ order at Tab 2, Exhibit 1, are hereby quashed. However, the order of finish of the horses as found by the Stewards after Dillinger’s positive test remains as is given that Mr. Attard’s horse ran with prohibited medication in its system and as such had an unfair advantage over other horses in the race. That order of finish as referenced in the penultimate paragraph of the order of the Stewards dated November 23, 2003, therefore remains unchanged.
DATED at Toronto, this 7th day of September, 2004.
Larry Todd
Vice Chair