IN THE MATTER OF THE ONTARIO RACING COMMISSION ACT, 2000,

S.O. 2000, c.20

AND IN THE MATTER OF

THOROUGHBRED OWNER/TRAINER SCOTT FAIRLIE

Thoroughbred trainer Scott Fairlie appealed Stewards' Ruling Number TB341/04, dated October 9, 2004, wherein he was fined the sum of $1,500.00 for violation of Rule 15.06.1(a) and (b) of the Rules of Thoroughbred Racing.

The Panel consisting of Vice Chair Todd and Commissioners Brennan and Garthson convened on March 17, 2005 to hear the matter. Brendan Van Niejenhuis represented the Administration and Nick Coukos represented the Appellant.

On hearing the evidence of Steward Richard Grubb and Scott Fairlie, and on hearing the submissions of the parties, a majority of the Panel consisting of Vice-Chair Todd and Commissioner Brennan ALLOWED the appeal on the issue of liability under Rule 15.06.1(a) and (b) and found that the Appellant had not violated these Rules, but, pursuant to its authority under Rule 13.17 of the Rules of Thoroughbred Racing, substituted a finding that Scott Fairlie had violated Rule 15.09.1(f) of the Rules of Thoroughbred Racing for failing to ensure that appropriate medication records were maintained by the assistant trainer. The Panel imposed a fine of $1,500.00 for this violation.

Commissioner Garthson issued dissenting reasons and would have DISMISSED the appeal and upheld the Stewards' ruling that the Appellant violated Rules 15.06.1(a) and (b) of the Rules of Thoroughbred Racing and upheld the penalty.

The Reasons for Decision of the Majority and the Dissenting Reasons for Decision are attached to this Ruling.

Dated this 19^th day of May, 2005.

BY ORDER OF THE COMMISSION

John L. Blakney

Executive Director

MAJORITY REASONS FOR DECISION

BACKGROUND

Thoroughbred trainer, Scott Fairlie, appeals thoroughbred Ruling Number TB 341/04 by the Stewards dated October 9, 2004 whereby he was fined $1,500 for a violation of Rule 15.06.1(a) and (b) of the Rules of Thoroughbred Racing.

This appeal was heard by a panel consisting of Commissioner Brennan, Commissioner Garthson and Vice Chair Todd on March 17, 2005, with the decision standing over for written Reasons.

The Administration was represented on this appeal by Brendan Van Niejenhuis while the appellant was represented by HBPA Executive Director, Nick Coukos.

The evidence before the panel consisted of three written exhibits and the viva voce evidence of Steward Richard Grubb and the appellant himself.

The following are the Reasons for Decision of the Vice Chair and Commissioner Brennan.

The pre-hearing conference memoranda filed in this matter as Exhibit 1, Tab 1, indicated that certain matters were agreed to by the parties and were to be regarded as admissions. These matters were as follows:

(a) the Naquasone leading to the subject positive test was administered by assistant trainer, Stephen Curtis; and

(b) Stephen Curtis was employed as the assistant trainer to the appellant at all material times;

By way of background, Mr. Fairlie was the trainer of the thoroughbred racehorse, “Smart Coup” who finished second at Fort Erie on May 24, 2004. A subsequent urine analysis by Maxxam Analytics Inc. reported “Smart Coup” registered a positive test for the prohibited substance Naquasone.

By thoroughbred Ruling Number 338/04 dated October 8, 2004 (Exhibit 2), the same Stewards who issued the subject ruling, suspended assistant trainer, Stephen Curtis, for a period of thirty days and further imposed a fine of $500. Mr. Curtis’ suspension was stated to be for a violation of Rule 15.06.1(a) and (b) and Rule 15.09.1(f) of the Rules of Thoroughbred Racing. A $500 fine was stated to be for failure to maintain complete medical records.

Mr. Curtis accepted Thoroughbred Ruling 338/04 and has not disputed or appealed said ruling in any fashion. The evidence before us was consistent that Mr. Curtis took full responsibility for the subject positive test.

FACTS

I find the following to be the pertinent proximate facts to the subject appeal:

(a) the appellant was the trainer of “Smart Coup” at all material times;

(b) the appellant trained a thirty to forty horse stable based at Woodbine Race Track in Toronto;

(c) the appellant also had a smaller stable of thoroughbreds situate and racing at Fort Erie in the care of assistant trainer, Stephen Curtis. This stable included “Smart Coup”;

(d) Mr. Curtis had worked as an assistant trainer for the appellant for four years and was knowledgeable and competent as a trainer;

(e) the race program on the subject date (Exhibit 3) listed the appellant as the trainer, but also disclosed “Steve Curtis” as the assistant trainer;

(f) the evidence was undisputed that Mr. Curtis was in charge of medications, medication records and pre-race vet treatments for the Fort Erie stable of horses;

(g) Mr. Curtis was approved by the Fort Erie Stewards as an assistant trainer for the appellant for the stable situate at Fort Erie;

(h) the decision to use Naquasone on “Smart Coup” on May 24, 2004 was solely that of Mr. Curtis and he did not consult with the appellant regarding this treatment and this decision;

(i) the appellant did not visit or physically attend the Fort Erie division of his stable in 2004. All communications between the assistant trainer and the appellant were by telephone;

(j) Mr. Fairlie has been a licensed and active trainer of thoroughbreds for over twenty years and has never had a positive equine drug test before or since the subject “Smart Coup” race on May 24, 2004;

(k) because a trainer “can’t be in two places at the same time”, it is a common practice for a licensed thoroughbred trainer to have an assistant trainer in “full charge, custody and care” of some of the trainer’s horses located at another race track; and

(l) Mr. Curtis’ medication records required by the Rules of Thoroughbred Racing were “vague” and in some apparent disarray. There was not a real effort by the appellant to improve the medication records of his assistant trainer.

ANALYSIS

Rule 15.06.1 of the Rules of Thoroughbred Racing reads as follows:

“The trainer, groom and any other person who, in the opinion of the Stewards or the Commission, has charge, custody and care of a horse:

(a) is obliged to properly protect the horse, guard it against the administration of a prohibited drug, protect the horse, and guard it against wrongful interference, or a substitution by anyone in taking of a urine or blood sample.

(b) If such person should fail to so protect and guard the horse, he/she or they will be regarded as bearing responsibility along with the person who actually administered such drug, or wrongfully interfered with or substituted in the taking of a urine or blood sample. Where the Stewards find a failure to properly protect a horse, subject to Rule 15.04.2 they shall impose such penalty and take such action as they deem proper, or shall refer the matter to the Commission. The appellant or his representative has the right to record any hearing at their expense.

The Stewards in the ruling from which Mr. Fairlie appeals specifically found that Mr. Fairlie was the trainer of record for the horse “Smart Coup” but that this horse was “under the care and control of his assistant trainer, Stephen Curtis, while stabled at Fort Erie.” (emphasis added)

The Rules of Thoroughbred Racing contemplate situations such as that found by the Stewards. Rule 29.11(c) in particular dictates that:

“An assistant trainer may substitute for and shall assume the same duties, responsibilities, and restrictions as imposed on the licensed trainer.”

Counsel for the Administration urged upon us an interpretation of Rule 15.06.1(a) and (b) whereby a trainer did not have to be “in charge, custody or care” of a horse for this Rule to apply to him. This is an untenable interpretation and reading of the above Rule given its clear and unequivocal wording. I accordingly reject this argument proffered by counsel for the Administration.

Counsel for the appellant argued that Rule 15.06.1(a) and (b) should be read restrictively so that only one person could be seen as responsible for protecting a horse from improper drug administration and an ensuing positive drug test. This submission is equally inconsistent with the clear and unequivocal wording of the first three lines of Rule 15.06.1(a) and (b).

One or more of the “trainer”, “groom” or “any other person” may in a given set of circumstances be liable for a violation of Rule 15.06.1. However, it is a prerequisite and condition precedent for the application of this Rule that any such party have “charge, custody or care” of the subject horse. In short, the breadth and scope of this Rule is fact driven in each case.

On the evidence before me, Mr. Fairlie, while the trainer of record, was clearly not in day-to-day “charge, custody or care” of “Smart Coup”. Some might question the Stewards sanctioning this type of arrangement when approving Mr. Curtis as the assistant trainer for the Fort Erie stable of the appellant. However, a trainer bears many responsibilities beyond day-to-day care and control of horses racing under his name including but not limited to staff, payroll, communications with owners, global business decisions and long term staking programs and arrangements.

For these reasons, Mr. Fairlie’s appeal must be allowed and the purported violation of Rule 15.06.1 by Mr. Fairlie is accordingly quashed.

This, however, does not complete the matter. This was an appeal by thoroughbred trainer Fairlie under Rule 13.17 of the Rules of Thoroughbred Racing. Under this provision in which appeals take the form of a hearing de novo, the Commission may “uphold, rescind, modify, or increase” any penalty or finding imposed by the Stewards.

The evidence disclosed a lack of clarity and precision regarding the steps the appellant took in respect of compliance with the obligation of a trainer regarding medication records (see Rule 15.09.1(f)). Part of the penalty assessed against Mr. Curtis related to this inadequacy. Under Rule 29.11(c) of the Rules of Thoroughbred Racing, there is a requirement for the appellant to ensure that his assistant trainer keeps the appropriate medication records.

This is an obligation independent of whether the trainer “has charge, custody or care” of a particular horse. Mr. Fairlie on the evidence did not meet his joint obligation in this respect. A trainer needs to make an effort to look at an assistant trainer’s medication log and records periodically.

Accordingly, a fine of $1,500 is appropriate for this violation of Rule 15.09.1(f) of the Rules of Thoroughbred Racing.

DATED at Toronto, this 19^th day of May, 2005.

Larry Todd

Vice Chair

REASONS FOR DISSENT BY COMMISSIONER JANE GARTHSON

1. The Background and Facts of the Case are as set out in the majority ruling paragraphs 1 to 16.

2. I differ with respect to whether or not Mr. Fairlie was in charge, custody or control of the horse, as set out in Rule 15.06.1. I find that Mr. Fairlie had sufficient charge of the horse in that he choose to place the horse SMART COUP with his employee, Mr. Curtis, instructed Mr. Curtis with regard to which races to enter the horse into and dealt with the owners of SMART COUP. He made a choice of entrusting the custody and care of the horse with Mr. Curtis. Mr. Fairlie had sufficient control to change that choice at any time and bring the horse into his own care, assign him to another trainer or replace Mr. Curtis entirely. That level of control is sufficient to find that Mr. Fairlie had charge of the horse SMART COUP.

3. The Administration submitted three cases in which the responsibilities of a Trainer of Record were considered, and referenced another recent case. No case law was received or referenced with regard to assistant trainers.

4. In the matter of Rick Welsh, SB66/1996, the Administration outlined its position with regard to trainer responsibility in relation to a positive drug test, in paragraph 8

• “… Mr. Welsh is in breach of the Rules either because he entered a horse to race and allowed it to race when it had been administered a drug which resulted in a positive test or that he failed to safeguard his horse from tampering and failed to exercise reasonable precautions in guarding his horse. This last provision is often referred to as the “Trainer Responsibility Rule” and usually applies where it cannot be established that the trainer actually administered the drug or instructed or authorized someone else to administer the drug in question.”

5. The panel in that case chose to elaborate for the guidance of the industry.

• In paragraph 20, “Rule 26.02 requires in part that a trainer is responsible for the condition of his horse at all times and that he must safeguard the horse from tampering by taking all reasonable precautions to guard his horse”, and

• In paragraph 28, “ Accordingly, there is an onus on the trainer to adduce firsthand evidence of the actual steps taken to protect his or her horse”.

• In paragraph 29, “If trainers insist on caring for their horses after they are entered to race in a manner which falls below a reasonable standard in the circumstances, they must bear the risk and consequences of a positive test for prohibited drugs. The public will wager on horse races only if satisfied with the integrity of horse racing and the public is entitled to be protected in this respect.”

6. The decision was made in favour of the Administration’s position. I note that the emphasis is on the Trainer of Record. That person, as named to the general public in the Program, is held responsible. There is no mention of reduced liability due to any role a groom or other person may have played.

7. The decision in the matter of Rick Welsh took into account the test set out in Regina vs. Gonder (1981), 1981 CanLII 3207 (YK TC), 62 C.C.C.(2d)326, which was:

• In paragraph 22, “To successfully plead the defence of reasonable care the accused must establish on a balance of probabilities there were no reasonable feasible alternatives that might have avoided or minimized injury to others.”

8. In the matter of David Jannone and Westcott LLC, SB24/2004, the passages I noted as relevant are:

• The Rule violations are strict liability offences. Once the positive test results are established, the trainer responsibility rule requires that the trainer establish that he exercised all reasonable due diligence in protecting his horse from racing with a prohibited substance. That outcome includes knowing what the probably outcome will be of the course of treatment the trainer uses on his horse.

• It is the trainer’s responsibility to present his horse for racing in a condition where it will not test positive for prohibited substances. It is up to the trainer who has care and custody of the horse to ensure that whatever medications are given to the horse will not result in a positive test. It is not up to the Administration to prove what happened to result in a positive test and, given that the Administration has no control over the horse, to hold that has that obligation would be entirely inappropriate and impossible to fulfill.

9. Again, the entire onus is put on the Trainer of Record. However, as with Welsh, the decision relates to Standardbred Rules, where no assistant trainers are recognized. The trainer of record is assumed to also have day-to-day care.

10. I therefore turn to the matter of Owens and Els Stable, ORCD 36, TB12a/1997, and take note of paragraphs 26 and 27:

• We note at the outset that this trainer had no written records of medication received by his horse and apparently he did not keep such records as a matter of practice. It was the evidence of Mr. Conrad Cohen that normally the veterinarian’s bills go directly to the owner of the horse and if the owner has questions the owner will go to the trainer for an explanation of what was done. Without a record of the medications, it seems difficult for any trainer to satisfy such very reasonable requests from an owner. In addition, Mr. Owens appears to have had no mechanism in place to confirm that his instructions to the veterinarian had been carried out. While veterinarians are professionals and accountable to a high standard of conduct, they are also human, and the trainer is the person responsible for the care of the horse under the Rules of Racing. Therefore, keeping records and following up in some manner with the veterinarian to ensure that the medication instructions had been followed prior to allowing the horse to race would have been prudent steps to safeguard the horse.

11. The onus is again put on the Trainer of Record, this time to maintain proper medication records and processes. The Stewards found that Mr. Curtis did not maintain adequate records, and Mr. Fairlie’s testimony was that he did not review those records throughout 2004. He appeared to take no prudent steps to safeguard the horses racing under his name.

12. Finally, I turn to the matter of Mike Stoikopoulos, SB 002/2005. This very recent case dealt with trainer responsibilities that might have been shared between the Owner/Trainer of Record, Tonya Backus, and Mr. Stoikopoulos, who was her business and common-law partner. In the reasons for decision, Vice Chair Larry Todd stated:

• We are loath to interpret Rule 26.05 to make two or more people responsible for one single positive test. This could, in our view, cause major concerns and ramifications vis-à-vis a number of issues including rights of parties under the Canadian Charter of Rights and Freedoms and common-law doctrines with respect to double jeopardy.

13. I find the common-law marriage situation above not applicable to the employer-employee relationship between Mr. Fairlie and Mr. Curtis. Mr. Fairlie was responsible for choosing to employ, and continue employing, Mr. Curtis as assistant trainer, a position of responsibility. He was responsible for deciding the amount of oversight of Mr. Curtis that he felt appropriate. I find the level of oversight that he chose unacceptable, as Mr. Fairlie appears to have relied on the Stewards to conduct oversight on his behalf. That is not their role. Trainers should be acting to prevent rule violations rather than just waiting to see if the Stewards find one.

14. As noted, I found Rule 15.06.1 applies, in that Mr. Fairlie had sufficient charge of SMART COUP even though he had delegated custody and care to his assistant. However, the assistant trainer has already been penalized for the same rule violation. I therefore confirmed that joint responsibility, and therefore joint liability for rule compliance, is appropriate within the Rules of Thoroughbred racing. Such sharing of responsibility is confirmed by the general Rule 29.11 (c), which states:

An assistant trainer may substitute for and shall assume the same duties, responsibilities and restrictions as imposed on the licensed trainer. In which case, the trainer shall be jointly responsible for the assistant trainer’s compliance with the rules governing racing.

15. Given the joint responsibility, it is my opinion that trainers who choose to have assistant trainers working without their direct supervision are obliged to take extra care to oversee their work, not less.

16. Steward Grubb also testified that a trainer should be aware of all medications given to a horse racing under their name. He advised that a low penalty had been assigned since Mr. Fairlie’s failure to take such protective measures appeared to be careless rather than malicious.

17. Mr. Fairlie testified that he would occasionally see the medication log when he was at Fort Erie, and told Mr. Curtis to keep it in good order. Since he was not at Fort Erie in 2004, he did not see the log. He had no arrangement to receive copies to let him review the log when not physically present.

18. Mr. Fairlie testified that he evaluated Mr. Curtis’s performance based on following the Rules, but could give no examples of how he conducted any oversight whatever with reference to compliance with the Rules.

19. Mr. Fairlie said that he did not think he could have done anything differently to reduce the chance of a positive test. He did not conduct his own review of practices at his barn at Fort Erie after the positive test. He testified that he just repeated his instructions to Mr. Curtis to keep the medications locked up.

20. Mr. Fairlie’s only defence was that he entrusted the care and custody of the horse to Mr. Curtis, without any regular oversight of medications or medication records. Feasible alternatives would have included a discussion of all medications in the daily calls, at least with regard to horses scheduled to race, regular review of medication records and occasional on-site review of procedures. Since Fort Erie is a same-day drive from Woodbine, a trip that many others make frequently, the lack of even an annual trip stands out. I therefore find that there were a number of actions Mr. Fairlie could reasonably have taken to protect the horse in his charge from a positive test.

21. I am very concerned that the integrity of racing would be at stake if an assistant trainer, whose involvement is unknown to many of the betting pubic and whose role is unclear to most, were to bear the full brunt of Rule violations. The trainer is the name that appears in the main Program and the Racing Form. The trainer receives the purse share, and his or her statistics reflect the results of the races even when they are not present.

22. In any venue, the media and the public hold the more senior person involved as the most responsible person, not their employees or assistants. The greater responsibility falls on the Trainer of Record, who is also the employer, not the lesser. Mr. Curtis’s penalty was not before us.

23. With regard to the extent of the penalty, I note that Mr. Curtis received $500 and 30 days suspension, while Mr. Fairlie was given the lighter penalty of $1,500 with no suspension. The Ontario Racing Commission Guidelines for Penalties for Equine Drug and TCO₂ Offences suggest a first offence fine of 15-75 days plus $1,000 fine for a first offence in relation to a Class IV drug. The total penalty levied in this case is within that Guideline.

For the reasons outlined above, I find that Mr. Fairlie’s appeal of Ruling TB 341/04 should have been dismissed and the Stewards’ penalty of $1,500 confirmed.

DATED this 19^th day of May, 2005.

(original signed by) Jane Garthson

Jane Garthson

Commissioner