Dr. Martin Ian Levman (Re), 2006 CanLII 84605

IN THE MATTER OF THE RACING COMMISSION ACT, S.O. 2000, c.20;

AND IN THE MATTER IN THE APPEAL OF

STANDARDBRED AND THOROUGHBRED LICENSEE DR. MARTIN IAN LEVMAN, DVM

Dr. Martin Ian Levman requested a hearing under s. 11(7) of the Racing Commission Act, 2000, with respect to Ruling SB 221/2005 and Ruling TB ADMIN 7/2005, both issued September 22, 2005, wherein the Executive Director ordered that no horse for whom Dr. Martin Ian Levman provides or has provided veterinary services on or after September 24, 2005, may be eligible to be declared to race in Ontario, and further ordered that any licensee entering or attempting to enter such a horse could be found in violation of the Rules of Standardbred Racing or the Rules of Thoroughbred Racing.

On April 25, 2006, a Panel of the Commission consisting of Chair Lynda Tanaka and Commissioners George Kelly and Jane Garthson convened to hear the appeal. The Administration was represented by Brendan Van Niejenhuis and Patricia Latimer. Dr. Levman was represented by Gary Luftspring and Jessica Caplan.

On reading the Agreed Statement of Facts, filed, and the Exhibits, filed, and on hearing the evidence of Doug Griffis, Cory Stewart, and Dr. Levman, the Panel upheld the Executive Director's determination and Rulings SB 21/2005 and TB ADMIN 7/2005 but ordered that the Rulings be amended to provide a termination date of September 24, 2009, and more particularly as follows:

1. The first paragraph of each such Ruling shall be amended to read as follows: "... that no horse for which Dr. Martin Ian Levman, License No. H66863 (expired), provides or has provided veterinary services at any time on or after September 24, 2005 to and including September 24, 2009, shall be eligible to be declared to race at any racetrack in Ontario";

2. The second paragraph of each such Ruling shall be amended to add, following the words "after September 25, 2005", the words "up to and including September 24, 2009".

The Panel gave written reasons for decision, a copy of which is attached to this Ruling.

DATED in Toronto this 18th day of May 2006.

BY ORDER OF THE COMMISSION

John L. Blakney

Executive Director

REASONS FOR DECISION

Dr. Martin Ian Levman requested a hearing following the issuance by the Executive Director of Rulings SB 221/2005 and TB ADMIN 7/2005, both issued September 22, 2005. Both rulings provided that no horse for whom Dr. Levman provides or has provided veterinary services shall be eligible to be declared to race at any racetrack in Ontario. The Ruling further provided that any participant entering or attempting to enter such a horse after September 24, 2005 may be found to be in violation of the Rules of Racing.

Dr. Levman filed an appeal to the Commission.

Evidence

Dr. Levman entered into an agreed statement of facts in which certain facts were admitted by him to be true. This agreed statement of facts, together with certain documents, was marked in a document brief as Exhibit 1. Exhibit 2 consisted of a brief of documents containing 13 tabs, of which all but four were entered as evidence on consent of the parties. The remaining four tabs were admitted as evidence based on the testimony of the witnesses called by the Administration.

The appeal was considerably shorter than would otherwise have been the case as a result of the agreed statement of facts.

The agreed facts may be briefly summarized as follows:

• Dr. Levman is a veterinarian licensed by the College of Veterinarians of Ontario but not licensed by the Commission. He had been licensed but he allowed the licence to expire as of July 16, 2003.
• Between September 13, 2001 and May 25, 2004 Dr. Levman purchased drugs and other medicinal treatments from Fred Rogers ("Rogers").
• Rogers held a licence under the Livestock Medicines Act but not under the Food and Drugs Act or the Controlled Drugs and Substances Act. Rogers was not licensed as a veterinarian.
• Rogers' business premises was the subject of search warrants in July and October 2004 executed with the assistance of the investigative unit of the Commission.
• During the searches large amounts of various drugs and substances, documents and cash were seized from those premises.
• Rogers was charged under the Controlled Drugs and Substances Act and the Food and Drugs Act but died prior to the trial. His Estate and co-accused Laurie Rogers consented to an Order for forfeiture of $20,000 as the proceeds of crime.
• Purchases made by Levman from Rogers are recorded on invoices produced by Dr. Levman as a result of a demand by the College of Veterinarians of Ontario. The invoices span a period from September 2001 to November 2003.
• An invoice documenting a May 2004 sale from Rogers to Levman was located in the business records of Rogers obtained as a result of the search warrants.
• Dr. Levman purchased 12 substances listed under either Schedule F or Schedule D of the Food and Drugs Act and one additional substance from Rogers.
• Dr. Levman used the substances he bought from Rogers to treat racehorses in Ontario.
• Dr. Levman gave a statement to OPP Detective Constable Corey Stewart that was marked as part of Exhibit 1.

We note that Dr. Levman's agreement as to the above facts does not include agreement as to the conclusions that can be drawn from them. Further he has no record of the invoice of May 2004 found in the Rogers' business records, but he does not dispute that the substances listed on the invoice are medications that he would have purchased from Rogers. Also, there are invoices at Tab 8 of Exhibit 2, which the Administration indicated they were not including at this stage in the case against Dr. Levman and we are therefore disregarding those documents.

ORC Investigator Doug Griffis testified with respect to the history of the tabs 6, 7, and 9 of Exhibit 2 which were not agreed to as exhibits, citing how the lists of labelled and unlabelled substances, and bottles and vials were created from the seizure from Rogers' premises. The labelled bottles included some bearing labels in foreign languages as well as labels in English but without drug identification numbers or otherwise non-compliant with regulations for sale of substances in Canada.

Investigator Griffis also testified with respect to Tab 11 which is a copy of a letter dated April 16, 2004 from Bayer Business Services to Rogers with respect to Rogers' unauthorized sale of a Bayer AG German language labelled product Baycox in contravention of the Food and Drugs Act and without permission of the distributor. Baycox is one of the substances listed in the agreed statement of fact as one that Dr. Levman bought from Rogers. The drug, according to the Bayer letter, is not approved by Health Canada for sale in Canada. The letter included a demand that Rogers cease selling the product. The letter recited the following concerns:

• that Bayer takes great care to ensure that its veterinary products comply with appropriate regulations in the country in which they are intended to be sold and that indications for use are clearly communicated and understood by both purchasers and potential purchasers, and that the products are sold under conditions where professional advice with regard to their proper use can be obtained;
• that Bayer does not sell out of retail outlets on the basis of the concern that the level of advice given to consumers prior to purchase cannot be assured; and
• that Rogers' sale of the product is misleading and potentially harmful if the product is administered to species for which it was not formulated.

The evidence before us is that Baycox is a drug only approved in Canada for use in swine on an investigational permit, but is approved in the European Union and Australia. The letter of April 16, 2004 was copied to Health Canada.

As noted above the agreed statement of facts includes a list of drugs purchased from Rogers by Dr. Levman. That list includes Flunixin, which is also found in the CPMA Schedule of Drugs. Substances labelled with the same name as appears in the agreed statement of facts were found in Rogers' premises on the day of the execution of the search warrant, as identified in Tab 6 of Exhibit 2.

Dr. Levman testified that he made probably 10 to 20 purchases from Rogers over the period 2001 to 2003. He said that he usually bought from a large firm in Montreal and small boutique firms and that he and his wife who is also a veterinarian would make 200 to 300 purchases per year. He testified that he had known Rogers for 20 years and that Rogers' business of selling medications and substances meant essentially that Dr. Levman did not have a dispensing business. In other words, his clients were buying substances from Rogers at a lower price than Dr. Levman offered. Dr. Levman said that he did not buy unlabelled substances or hand-labelled substances from Rogers because he did not know what was in them; rather he bought prescription or non-prescription products from Rogers. He testified that he had never had an adverse reaction in a horse he treated with a substance he bought from Rogers and that none of the containers were missing a manufacturer's label. He paid Rogers by cheque. He also testified that he had received no warning from the Commission that buying from Rogers would result in a penalty.

With respect to Baycox, Dr. Levman said that he was in touch with a Dr. Kilmer of Bayer Canada with respect to resolution of a claim concerning an adverse reaction in a horse to another Bayer product when the topic of the use of Baycox came up. Dr. Kilmer told him that the treatment regime that he understood was being followed by people treating horses with the product was wrong and he told Dr. Levman what the correct treatment protocol was. Dr. Levman said that he was provided with a copy of a paper by Dr. Kilmer with respect to Baycox and its correct use in horses by a salesman from an entity he referred to as "Orphus". Exhibit 4 is a printout of a document entitled "Baycox Dosage Information" by Dr. Kilmer printed from a website of an entity other than Bayer. The letter, which is undated, starts off as follows:

"I thought I would take a few moments to respond to the EPM onelist about Baycox dosing. At present there is not a registered label and as a result, there may be numerous protocols being tried. Often there is confusion transferred on when everyone is depending on word of mouth which may have errors to start with."

The letter goes on to discuss the issues of trying to arrive at the correct dosage of Baycox and ends as follows:

"With time we will surely solve the puzzle and have a recommendation for some new protocol."

Dr. Levman testified that he called a swine veterinarian to try to get Baycox through that source. He was not successful because the swine vet wanted hundreds of dollars. He testified that, "it was not going to be a standard business relationship".

Dr. Levman testified as to the use of each of the substances listed in the agreed statement of facts as substances he purchased from Rogers. In the case of snake venom, he testified that it was an injectible substance he got from Florida that he used to remove pain and that it was used "off label". He said that there was an individual flying in from the United States every week and a number of his clients were using this individual to treat their horses with this substance and were achieving better results than Dr. Levman was getting with other products. He said he contacted an individual at the University of Florida to get instructions on how to use snake venom.

Dr. Levman testified that he acquired some of the substances from Rogers when he could not get them from his usual suppliers because of supply chain problems. He cited one such difficulty where a manufacturer was trying to assert its patent rights and as a result there were difficulties in getting some products. Another product he bought from Rogers was a particular form of cortisone that had more or less disappeared from the Canadian market place. He testified that use of that product had been causing too many skin problems in horses.

He testified that the norm for the products he bought from Rogers was that they were foreign manufacturers, not usually Canadian. He did not know if the labels were in compliance with the laws of the country in which they purported to be manufactured. He was familiar with the Canadian labelling requirements of labels in both French and English, with the Drug Identification Number. He thought that the Drug Identification Number meant that the drug had been registered with the Canadian government. He was also familiar with the prefixes "PR" for prescription drugs and "C" for controlled substances.

Baycox was labelled in German or in French. The Jap Acid he bought from Rogers was labelled in Japanese. He cannot read Japanese. He described the packaging for the Jap Acid as very professionally presented, that it came in a syringe and was an injectible. He had not heard of it being used orally.

He described Chorlone as a human drug that was not available but that he used on racing mares.

He said that the cheaper price that Rogers sold at was not a factor for him; rather he bought when it was necessary for his practice since there are times he felt he had to have Hyleratil or Banamine. With respect to antibiotics, he testified that there was a period when the government was becoming tough on those substances and the government was concerned about frequency of use of the more powerful antibiotics. He testified that as a result of that, Gentomicine was tough to get for a period so he bought it from Rogers.

There was a drug referred to in the Rogers invoices by the initials "EQ". Dr. Levman said that he believes it was Eqstim. He recalled that there was an issue with respect to the drug being blamed for the death of a racehorse and for that reason it came off the market. He could not say whether the drug was taken off by the manufacturer or was ordered off by the government.

While it is clear that Dr. Levman was receiving pressure from his clients to acquire certain drugs for use either "off label" or outside what was approved in Canada, he testified that the horsemen were very private when it came to their own dealings with Rogers.

With respect to the substances he was buying labelled in foreign languages, which he could not read or were not approved for the use to which he was putting them in Canada, he said that the fact that the drugs did not have Canadian labels very likely raised questions in his mind but he decided the health of his patients was more important. He did testify that in none of the purchases from Rogers was the health of any horse in immediate danger. In other words, the immediate danger to the horse from an untreated condition was not a factor driving the purchase, though some of the substances were developed to be used to treat some life threatening diseases. He said that when he could not get products that he needed from his usual suppliers or Rogers, he would approach another vet to buy some. The difficulty of course was that if the supply chain were interrupted at the manufacturer or regulator level, none of the vets would have any to spare, if it was a drug of choice in certain treatments.

Dr. Levman said that if the College of Veterinarians of Ontario or this Commission had issued a ruling or pronouncement that veterinarians should not buy from Rogers, he would have complied.

Dr. Levman was asked what he planned to do in the event that his appeal was successful. He immediately answered that he would ensure that he was always in compliance with the regulatory requirements, and then he realized how glib that sounded. He then acknowledged that he had to balance a number of pressures, including pressure from owners and trainers with respect to the cost of the medications and the requirements for the health of the horse. Clearly his evidence showed that, in the past he chose to use what he thought was the best substance whether or not its use was "off label" or not approved. Also he was competing with others who were getting results he could not from the approved substances. Obviously he was facing demands of owners and trainers who wanted to race the horses in order to earn purses.

Submissions

Dr. Levman's counsel agreed that his appeal was not based on any issue as to jurisdiction of the Commission or the Executive Director to make the rulings in question; rather the issue was the merits of whether or not the Executive Director was justified in his ruling which had the effect of closing the door in the future on Dr. Levman providing care and treatment for horses to be entered to race after September 24, 2005.

The Administration submitted that the Commission should uphold the Executive Director's decision to issue the rulings and should find that it was reasonable for him to do so. We are to have regard to the same matters, as did the Executive Director, that is the responsibility to exercise our powers in accordance with the principles of honesty, integrity and social responsibility. By treating racehorses, Dr. Levman had an impact on the regulated field by the medications he used. The Administration argued that the mechanism of control of the entry and eligibility of the horses is the appropriate way to stop the use, by veterinarians, of unapproved substances, or substances in ways that are not in accordance with their intended use, or to stop purchases by veterinarians from individuals not licensed to sell the substances they are selling.

The Administration submitted that Dr. Levman knew, in his own words, "that Rogers was no saint" and that he was selling substances that did not comply with labelling requirements for sale of medications in Canada. Dr. Levman was aware that the use of Baycox was entirely off label and he should have been suspicious about Rogers' ability to sell drugs at such a substantial price reduction and substances that others could not get through regular supply channels.

Dr. Levman's counsel argued that there was no evidence that a horse had been harmed by Dr. Levman's practices and that his solution to the unavailability of substances he wanted to use on the horses was the only solution and the only practical way to protect the horse. He said that Dr. Levman did not jeopardize the health of any of the horses and that he acted in the best interests of the patients. He submitted that there was nothing wrong in Dr. Levman prescribing the use of Baycox because its use complied with his oath as a veterinarian. He said that this Commission should only be concerned with positive tests. He submitted that this case was really about veterinary care and that the only opinion on appropriate veterinarian care of horses was that of Dr. Levman and that this Commission should not wade into the issue. He described the purchases from Rogers as being of only a small quantity compared to the totality of the purchases he made and that while some were prescription substances, others were not and they were pretty innocuous medications.

Dr. Levman's counsel described the effect of the ruling, a lifetime ban, as draconian and not the only appropriate outcome of the investigation and identification of Dr. Levman as a customer of Rogers. He pointed out that the Food and Drugs Act makes the sale of the drug by an unauthorized person a breach of the legislation, but not the purchase of the drug. Therefore Dr. Levman could not be prosecuted for violating the legislation. He distinguished the McNamara case (Ruling COM SB 032/2005) concerning the purchase by a trainer and groom of drugs from Rogers on the basis that the danger to the horse of use of substances for which the purchaser did not have adequate information was not present in the case of a veterinarian buying the substances from Rogers.

Dr. Levman's counsel requested that the rulings be vacated. He said that, if the Commission wanted to send a message, it should use other methods so that horsemen could not later complain that they did not know they were not to buy unlabelled or unapproved substances or substances from persons not licensed.

Conclusion

We have carefully considered the evidence and the submissions of counsel. In our view the Executive Director had reasonable grounds to make the rulings appealed to us.

Dr. Levman's case is based on his making a determination that it was more important for him to have the medications that he bought from Rogers than it was to abide by the regulatory restrictions that control the flow of medications to the Canadian market. His actions are based on his belief that his judgement on that issue is to be preferred to that of those responsible by statute for the decisions as to what drugs and medications should be available for sale in Canada and by whom.

In making that judgement and in buying from Rogers, he was not dealing with a scenario in which a horse would die if Dr. Levman did not get that specific drug from Rogers then and there; rather he was securing substances for his own convenience and to respond to the demands of his clients for better results. The case of the snake venom is directly on point.

He was also careless in his use of substances that came in packaging that he could not read. He was aware of the potential for adverse reaction to a drug but nonetheless used a substance he thought was Jap Acid though he could not have distinguished between that substance and any other injectible similarly packaged, whether or not by the same manufacturer. Anyone who has had to read the labels of prescription medicine in their own medicine cabinets to ensure they are taking their own medicine and not that of another family member knows the importance of being able to read labels. Dr. Levman was content not to take that basic step in his use of the products labelled in languages other than English.

Dr. Levman cannot complain of lack of notice of the need to ensure that medications used in racehorses have certain labelling. On the first page of the published Schedule of Drugs issued by the CPMA and in wide use in the industry is the following warning:

"IMPORTANT

Each drug approved for sale in Canada is assigned a 'drug identification number' (D.I.N.) which is marked on the product label

Veterinary drugs are marked '(For) Veterinary Use only' or '(For) Agricultural Use Only' on the product label.

EXAMINE ALL PRODUCT LABELS CAREFULLY!"

The text stands out on the page by virtue of it being laid out in a table format with bold table outlines.

The first page also contains the following in the second last paragraph under the heading

"WARNING"...

"Owners, trainers or any other person in charge or having care of a race horse are strongly advised to consult their own veterinarian for advice and guidance in the use of all drugs."

Clearly the advice that Dr. Levman gave his owners and trainers was premised on his disregarding of the regulatory system controlling drugs. In his own evidence we have incidents underlining the importance of that system and his determination to use substances made difficult to obtain for good policy reasons. He gave evidence of a drug he wanted to continue using on horses though it had been blamed for the death of a racehorse and withdrawn from the market in Canada. He purchased drugs to use on racehorses for which the manufacturer acknowledged there was no protocol as to dosage and he acknowledged using it in a treatment protocol that he found out later was incorrect. There is no evidence that Bayer ever determined a proper protocol for use of Baycox in horses that was satisfactory to Canadian authorities. He purchased drugs, including human drugs, to use on race horses "off label", and there is no evidence he had anything more to rely on as to the efficacy or dangers associated with using these substances on horses than word of mouth.

While there is no evidence that Rogers told any of his customers about the contents of the letter of April 2004 from Bayer, the dangers of the use of substances without due regard to the proper constraints on their use are set out clearly in the letter and are or should be well known to those trained as veterinarians.

On the basis of the evidence we have, Dr. Levman cannot complain that he did not know that what he was doing was not right. Despite the pressure from his clients to get results in the treatment of the horses, he carries the responsibility for the appropriateness of that treatment.

Dr. Levman's counsel submits that the Commission should use other methods than penalizing his client to convey the message about the purchase of drugs from an unauthorized source. The problem with that submission is that the veterinarians are already charged with the responsibility of advising horsemen, as can be seen from the Schedule of Drugs warning reproduced above. The purchase of drugs from unauthorized sources may not be in breach of the Food and Drugs Act but the sale is, and in order for there to be a sale, there has to be both a vendor and a purchaser. Dr. Levman was the purchaser who allowed Rogers to be the seller in violation of the statute. The legislature has decided that for enforcement purposes only the vendor will be prosecuted – the legislature has not gone so far as to say that the purchaser is not otherwise accountable. In the context of the Commission's legislation which requires licensees to act with honesty and integrity, such an argument cannot succeed.

Dr. Levman's counsel would have this Commission decline to exercise its jurisdiction on the basis that this is really a veterinary care issue. We find that this case has everything to do with the health and safety of horses that race in races under the Commission's jurisdiction and the protection of the public from fraudulent practices through the use of medications intended to enhance the performance of the horse. We do not accept Dr. Levman's characterization of the drugs as for the most part non-performance enhancing. At least one of the drugs he bought from Rogers appears in the Schedule of Drugs and another is intended to assist mares in making a follicle drop off, because the follicle makes the mare lame and the horse does not race well, according to Dr. Levman. Other drugs were used for treating arthritic conditions, to treat muscle soreness and to keep joints in good shape, all of which may impact on racing performance.

Penalty

In arriving at penalty we have taken a number of factors into the analysis.

Dr. Levman has one previous ruling of this Commission, in which he was suspended and fined, associated with positive tests due to medication given to horses, for a number of his clients whom he said he warned about the risk of such positive tests. Those events are 10 years ago and were prior to Commission issuing the guidelines for penalties for positive tests. The fine was substantial: $3500.

Unlike Dr. Flanigan and Dr. Kennedy, we are satisfied that, while Dr. Levman used substances whose labels he could not read, the substances were not hand-labelled or lacking any legible label at all. He used substances that came from manufacturers, albeit for the most part foreign, and without proper Canadian approval having been obtained. He has indicated in the witness stand that he recognizes the need to comply with regulatory structures, though we are not convinced that he understands the public policy reasons for those systems.

He has participated in a scheme to treat horses so as to secure advantages over other horses in races to the benefit of his clients. He has taken the benefit of the prestige and income as a veterinarian secured under a regulatory structure, while ignoring those parts of the overall system that inconvenience him, even though those parts are vital to protecting the health of the animals. He does not seem to be able to stand up to the pressure of clients seeking monetary gain at the expense and risk of the horse.

Clearly Dr. Levman's clients, both owners and trainers, must bear some of the responsibility for the use of the substances he bought from Rogers, but as the warning in the CPMA Schedule of Drugs indicates, both federal and provincial regulators place much reliance on the honesty and integrity of veterinarians. The warning assumes that veterinarians will give advice consistent with the regulatory framework. Dr. Levman has not fulfilled that expectation.

The Commission imposed five and seven year suspensions and significant monetary fines on Dr. Flanigan and Dr. Kennedy, respectively, following days of testimony of several witnesses and submissions of counsel, including motions at various points in the proceedings. Dr. Levman ameliorated some of the costs of his appeal by coming to an agreed statement of facts with the Administration. This process saved the Commission many hours, if not days, of proceedings. Also, Dr. Flanigan was not just a purchaser from Rogers but was an active participant in deceiving both a federal regulator and a drug company so as to allow Rogers' business to thrive. Dr. Kennedy's evidence was simply not credible as a truthful account of his dealings with Rogers and the documentary evidence, such as was left intact, supported a much more substantial role than the facts in Dr. Levman's case reveals. In contrast Dr. Levman appeared to us to be truthful in his evidence and to have had much more limited involvement with Rogers.

We have taken into account these factors in arriving at the penalty. We are not imposing a fine. We are not convinced that a lifetime ban is appropriate but we believe that a significant period of time should pass before horses treated by Dr. Levman can participate again in racing. As was the situation in the cases of Dr. Kennedy and Dr. Flanigan, the Commission needs to assert control on the entry of horses treated by Dr. Levman in order to ensure for at least a period of time that his practices as to substance use do not impact on the races in Ontario, as well as to deter him from continuing those practices. We therefore amend the ruling to provide a termination date of September 24, 2009, so that the operative words in the first paragraph of each of the rulings will be amended to read as follows:

"... that no horse for whom Dr. Martin Ian Levman License No. H66863 (expired) provides or has provided veterinary services at any time on or after September 24, 2005 to and including September 24, 2009, shall be eligible to be declared to race at any racetrack in Ontario."

Similarly the second paragraph of the Rulings should be amended to add after the words "after September 25, 2005" the words "up to and including September 24, 2009".

If there is any difficulty in making the appropriate amendments to incorporate the changes to the rulings outlined above, we can deal with those issues separately at the request of counsel.

DATED this 18th day of May 2006.

Lynda Tanaka

Chair