In the Matter of the Appeal of Standardbred Licensee Dr. John Flanigan, 2006 CanLII 84606

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

On September 20, 2005, the Executive Director ordered an Immediate Suspension and issued a Notice of Proposed Order to revoke the licenses of Dr. John Flanigan and to issue a lifetime suspension of the licenses of Dr. John Flanigan, pursuant to sections 21 and 23 of the Racing Commission Act, 2000. On September 23, 2005, Dr. John Flanigan requested a hearing pursuant to section 22 of the Racing Commission Act, 2000.

A Commission Panel consisting of Chair Lynda Tanaka and Commissioners Jane Garthson and Brenda Walker convened for the hearing on November 7, December 16, 2005, and on January 10 and 13, and February 1, 2, and 3, 2006. Brendan Van Niejenhuis and Patricia Latimer acted as counsel to the Administration. Gerald Sternberg acted as counsel to Dr. John Flanigan.

On hearing the evidence of Investigator Doug Griffis, Detective-Sergeant. Steve Schandlen, Detective-Constable. Cory Stewart, Martin Fischer, Dr. Bruce Duncan, and Dr. John Flanigan, and on hearing the submissions of counsel, the Commission upheld the Director's finding that Dr. John Flanigan would not act in accordance with law, integrity or the public interest, having regard to his past conduct, set aside the Director's Order, and imposed an Order:

Revoking the licenses of Dr. John Flanigan
Suspending such licenses for a period of five (5) years
Imposing a fine in the amount of $25,000

The Commission issued written reasons for decision, which are attached to this Ruling.

DATED in Toronto this 1^st day of May 2006.

John L. Blakney

Executive Director

On September 20, 2005 the Executive Director issued an Order of Immediate Suspension and a Notice of Proposed Order to revoke the licenses of John Flanigan as a Standardbred driver/owner/trainer/veterinarian pursuant to the powers under Sections 21 and 23 of the Racing Commission Act, 2000. John Flanigan requested a hearing with respect to the Order and Notice of Proposed Order pursuant to Section 22 of the Act on September 23, 2005.

The grounds for the proposed order as set out in the Notice are as follows:

“The Director proposes to order that the licenses of Dr. John Flanigan be revoked for the reason that the Licensee is not entitled to a licence under Section 19 of the Act because:

a) there are reasonable grounds to believe that, while the Licensee carries out the activities for which a licence is required, that the Licensee will not act in accordance with the law, or with integrity, honesty or in the public interest, having regard to the past conduct of the applicant; and

b) the licensee is carrying on activities that are or will be in contravention of the Act, the rules or the terms of the licence.”

The grounds for the order immediately suspending the licenses were set out in the Notice as follows:

“The Director has ordered the licenses of Dr. John Flanigan to be suspended immediately for the reason that it is necessary in the public interest, because:

a) there are reasonable grounds to believe that, while the Licensee carries out the activities for which a licence is required, the Licensee will not act in accordance with the law, or with integrity, honesty, or in the public interest, having regard to the past conduct of the applicant;

b) the licensee’s conduct has placed the integrity of the horse racing industry in Ontario in question, and in particular, the quality and integrity of veterinary care of horses; and

c) the public interest requires that the license be suspended immediately.”

The Notice sets out the particulars on which the Executive Director relied in arriving at his decision to issue the Order and Notice above, relating to the business relationship between Dr. Flanigan and one Fred Rogers (“Rogers”) with respect to the purchase of substances access to which is controlled under federal legislation, specifically under the Food and Drugs Act and the Controlled Drugs and Substances Act, and of unlabelled substances, for use on race horses either owned by or in the care of Dr. Flanigan.

The particulars also allege that Dr. Flanigan permitted Platinum Equine Services, operated by Rogers, to use his name and registration number with the College of Veterinarians of Ontario in order to secure veterinarian and pharmaceutical supplies, with the intention that the supplies be resold by Rogers. It is also alleged that Dr. Flanigan wrote prescriptions for products for Rogers in quantities in excess of what Dr. Flanigan knew Rogers required for the treatment of horses in his care, that Dr. Flanigan purchased unlabelled pharmaceutical products from Rogers and kept them in his mobile unit in his vehicle and in his office, and that he knew that products he was purchasing or administering to horses related to Rogers were not approved for sale in Canada.

Preliminary Matters and Disclosure Issues

There were a number of preliminary motions brought by both parties on the first day of the hearing.

Counsel for the licensees brought a motion with respect to the panel’s jurisdiction and requested a stay of the proceedings. The panel dealt with this motion orally and counsel then withdrew his motion as to jurisdiction and proceeded at the end of the day with the motion as to a stay. Counsel for the licensees argued that the proceedings should be stayed because the result of the order suspending the licenses immediately was to inhibit much of their veterinarian practices because of the focus on racehorses. The motion for the stay was resisted strenuously by counsel for the Administration based on the lack of notice, as well as the merits of the argument. After full argument of both the process and the merits of the application, the panel ruled to refuse the stay application for reasons given orally that day. Given the lack of a stay and the effect of the immediate suspension, the panel made every effort to accommodate counsel and the parties to effect an expeditious resolution of the matter. The stay motion was not renewed subsequently.

The Administration brought a motion to consolidate in one hearing Dr. Flanigan’s hearing and proceedings with respect to Dr. Blaine Kennedy. Counsel for the two licensees opposed the motion. The consolidation was ordered prior to the admission of any evidence. The ruling and reasons are recorded in the transcript.

On the second day of the hearing, over a month after the hearing started and following receipt of testimony from a witness as well as the admission of documentary evidence, counsel for the Administration acknowledged that under the provisions of the Statutory Powers Procedures Act, R.S.O. 1990, c. S. 22 as amended, consolidation of two or more matters could only occur with the consent of all the parties. That argument had not been raised by either counsel on the hearing of the original motion for consolidation on the first day of the hearing.

Counsel for the licensees refused that consent and argued that the hearing was at an end, that the proceedings were a nullity and that there was such prejudice to Dr. Kennedy and Dr. Flanigan in the panel’s receiving the first day of evidence, that the matter could not proceed without a new panel. The panel rejected the argument but ordered struck from the record of the proceedings pertaining to Dr. Flanigan any evidence pertaining solely to Dr. Kennedy. The reasons and ruling are set out in the transcript of December 16, 2005.

The parties ultimately agreed on the exhibits and the evidence from the first day of the hearing that is to be treated as part of the proceedings concerning Dr. Flanigan and those exhibits and the evidence that had been heard to that point that are to be treated as part of the proceedings against Dr. Kennedy. Separate reasons and rulings will issue with respect to this matter and that concerning Dr. Kennedy. The exhibits are numbered with an “F” suffix for those that are relevant to this case and with a “K” suffix for those relevant to Dr. Kennedy’s case.

Counsel for Dr. Flanigan requested an order excluding witnesses and that was granted. The case of the Administration with respect to Dr. Flanigan proceeded from that point on. Following the conclusion of the evidence and closing submissions by counsel in Dr. Flanigan’s case, the evidence in Dr. Kennedy’s case was heard, followed by counsel’s submissions in that case.

In arriving at our decision in the case concerning Dr. Flanigan, we have not taken into account any of the evidence that pertained solely to Dr. Kennedy, nor the arguments that were made with respect to Dr. Kennedy.

Counsel for the parties agreed on the admissibility of certain documents in Exhibit 2F but counsel for Dr. Flanigan insisted on formal proof of the remaining tabs through witnesses called to testify. He subsequently agreed that Tab 5 of Exhibit 2F was properly admitted. We find that all the tabs in Exhibit 2F are properly admitted in evidence either by agreement or on the basis of the proof tendered.

In the first day of the hearing (November 7, 2005), counsel for Dr. Flanigan complained that the copies of documents included at Tab 7 of Exhibit 2F were not true copies of the documents as represented but had been altered by the text of post-its that had been stuck to the first copy of the documents by one of the investigators. Without knowing that the text was on a post-it applied after seizure of the document, no one could discern that the copy of the writing there was not part of the original document. Counsel requested that copies of those documents that were photocopied at Tab 7 of Exhibit 2F, being documents alleged to represent sales to Dr. Flanigan, be produced, without the post-its. That production was ordered and the copies of those documents without that alteration were marked as Exhibit 3F.

In addition, counsel for Dr. Flanigan requested and was granted the right to review original documents that had been seized at the premises of Rogers, on terms and conditions required in order to protect the integrity of future and current investigations by limiting disclosure of what counsel learned through his review of those documents. The request arose from the evidence of one of the Administration witnesses, Investigator Douglas Griffis. Investigator Griffis testified that, based in part on his analysis of the documents that had been seized from Rogers’ premises, Dr. Flanigan was a customer of Rogers. In his review of the seized documents he had found no reference to any other individuals of the same name or initials as Dr. Flanigan. A significant time period elapsed between the days of evidence, thereby allowing counsel the opportunity to review and request copies of documents that he had reviewed. The import of this testimony and process will be reviewed later in these reasons.

The Administration’s Case

The Administration called to testify ORC Investigator Douglas Griffis, and Detective Sergeant Steve Schandlen and Detective Constable Corey Stewart, both of the OPP Illegal Gambling Unit and seconded to the ORC. All three testified with respect to their involvement in the investigation of the sale of various substances by Rogers who was apparently licensed under the Livestock Medicines Act but not under the Food and Drugs Act or the Controlled Drugs and Substances Act. Search warrants were executed at the Rogers premises on two occasions, one in July 2004 and one in October 2004. Health Canada, Standardbred Investigative Services and Dr. Bruce Duncan, ORC Supervisor of Standardbred Veterinarians, assisted in the search of the premises in advising with respect to the substances found, and whether the substances were properly packaged in accordance with the statutory requirements, etc. Rogers was charged with violations of the Controlled Drugs and Substances Act involving testosterone and marijuana but the charges were not proceeded with due to his death.

Detective Constable Stewart was the Exhibits officer for the execution of the search warrant and was responsible, with Investigator Griffis, for the lists included at Tabs 16 and 17 of Exhibit 2F. These lists documented the bottles (some empty and some full), vials, and other equipment as well as substances that were seized in October 2004, identified under categories of labelled and unlabelled. Rogers was not licensed to sell some of the substances that were seized. She also attended on April 7, 2005 at Dr. Flanigan’s clinic and, with Detective Sergeant Schandlen took a statement from Dr. Flanigan that was entered as Tab 2, Exhibit 6F. She also testified as to other inquiries that were part of the investigation.

The evidence of the investigators provided the background as to the lawful seizure of Rogers’ documents, and of the substances and paraphernalia apparently used by Rogers in his business, as well as establishing the continuity of possession of the things and documents taken from the Rogers premises in the course of the search, and the process of the preparation of various summaries as true and complete lists of what things were seized, with a proper description.

Among the documents seized at Rogers’ premises were business cards, a rolodex, shipping labels and invoices. In addition there was photographic evidence at Tab 1, Exhibit 6F that Rogers was removing labels from bottles of substances obtained from manufacturers, for the purpose of rebottling.

Exhibit 3F consisted of four documents that were submitted as proof of sales of substances from Rogers to Dr. Flanigan, since all have in common an indicator, either the name “John Flanigan” or the initials “JF”, and a list of substances, quantities and what looked to be a price. The evidence of Investigator Griffis who had gone through all the documents seized including the Rolodex, business cards and invoices was given to support the conclusion that Dr. Flanigan had purchased from Rogers the substances listed on the four pages. As noted above, counsel for Dr. Flanigan was given the opportunity to review the business records and did not produce to us any other reference to someone else with the same initials or name, or a name which could, in the interpretation of the cursive writing on the exhibit, be confused with Dr. Flanigan’s name.

A Notice to Produce Records was issued to Dr. Flanigan under Section 18 of the Act and the Rules of Standardbred Racing. A copy of that Notice was reproduced as Tab 12 of Exhibit 2F. There were no invoices with respect to transactions with Rogers produced by Dr. Flanigan nor was there any record of payment to Fred Rogers. When asked about this, Dr. Flanigan testified that he dealt entirely in cash with Fred Rogers or with trading product.

The investigators obtained during the search of Rogers’ premises a copy of a fax provided by a drug supplier, Vetoquinol, located in Quebec, and entered as Tab 8 of Exhibit 2F. This document included the following language:

“We are currently updating our files.

The Provincial laws and regulations in application hold that all veterinarian medicinal products must only be sold to a company that employs a veterinarian in good standing. To ensure that our customers meet this requirement, we need you to please provide us with the name and license number of a veterinarian employed by your company.”

The name inserted on the form for the sale of drugs by this supplier was Dr. John Flanigan. A licence number with the College of Veterinarians of Ontario was also filled in.

The form went on to request confirmation of the accuracy of a name and address, being Platinum Equine Services at the business address of Rogers in London. That information is left without correction. The form requests that it be faxed back to the company.

Dr. Flanigan testified in this hearing and told the investigators in his statement taken on April 7 that he had completed the form by filling in his name and CVO number for the purpose of it being returned to Vetoquinol and that, contrary to what the form said, he had never been employed by Rogers or Platinum Equine Services.

Tab 9 of Exhibit 2F included courier forms referring to sales to Dr. Flanigan at the Rogers address in London from A & G Pharmaceuticals Inc. in New Jersey, as well as mailings from that company advertising sales of products addressed to Dr. Flanigan at his own office in Guelph. Also produced at Tab 10 of Exhibit 2F was a copy of a label from Phoenix Pharmaceuticals of Chesterfield, Michigan, which also bore Dr. Flanigan’s name and the business address by street and number and municipality of Rogers, indicating a shipment of drugs from an American company. Dr. Flanigan did not recall any involvement in specific purchases from this company in the time frame though he had had an account with the company at one time.

Mr. Martin Fischer, an investigator with the College of Veterinarians of Ontario, testified as to his investigation concerning Dr. Flanigan including his attendance at Dr. Flanigan’s premises and search of his mobile unit in his vehicle on April 7, 2005. Mr. Martin produced photographs at Tab 13, Exhibit 2F, showing bottles labelled in handwritten notes. He testified that these “unlabelled” bottles were included and mixed in among properly labelled medications and substances. Also included was a medication from Germany, which Dr. Flanigan told Mr. Martin he had bought from Rogers. Mr. Martin’s testimony indicated a number of items of non-compliance with requirements of the College of Veterinarians of Ontario concerning control of and dispensing of medications, labelling and record keeping. The College has not commenced any disciplinary proceedings against Dr. Flanigan.

The Administration also called Dr. Bruce Duncan, Supervisor of Veterinarians for the ORC, who testified with respect to various medications and substances. He attended at the Rogers premises at the time of the October search. He testified that he saw on the premises bottles labelled with only a name. This type of labelling provides inadequate information thereby presenting a risk as to what exactly is in the bottle and what appropriate action should be taken in the event of an adverse reaction to the administration of the substance. Substances used for equine therapeutic care are supposed to be labelled so as to provide significant information including but not limited to the proper name of the contents, the route of administration and the source. Dr. Duncan testified that without that significant information there was a risk to the horse as well as to the veterinarian in that he could not call on the drug manufacturer for support if anything went wrong. Dr. Duncan testified that there were drugs found on the Rogers’ premises as part of the inventory for which a prescription was required and further that some of the substances are human use substances, whose use in equine practice would be “off label”, in other words, not the intended or approved use.

Dr. Flanigan’s evidence

Dr. Flanigan testified that in 2002 he entered into an arrangement with Rogers, of which the document at Tab 8, Exhibit 2F is part, whereby he would place orders for medications with Rogers in order to get the volume discount that was created by combining what he needed for his horses with what Rogers said he needed for his horses. He testified that Hippiron was the drug that he was getting with that volume discount through Vetoquinol and that he used it in his practice. Detective Constable Stewart said that she did not see documentation with respect to Rogers securing that drug from Vetoquinol but she did see documentation with respect to other drugs from that company.

Dr. Flanigan testified that Rogers would place the order using his prescription, would receive and pay for the shipment and then would deliver Dr. Flanigan’s share to him in Guelph. Dr. Flanigan acknowledged that other drugs were purchased for him through Rogers from Vetoquinol, that his understanding was that the company had previously been dealing with Rogers and he understood that this was just a veterinary reference to allow them to continue dealing with Rogers with the products Rogers was purchasing under his licence. Dr. Flanigan testified that he became part of the relationship in order to take advantage of the reduced prices on large volume purchases. He acknowledged that he had no knowledge of or control over the purchases that Rogers might make using his name and number.

Dr. Flanigan also explained the background on a prescription for Oxytocin he wrote for Rogers that was reproduced at Tab 9 of Exhibit 2F. The prescription was prepared after a fax from one Penny Lawless at the office of the federal regulator for confirmation that Dr. Flanigan had in fact written this large a prescription for Rogers for this substance. He testified that there was enough in that prescription for himself for use on his own horses and for Rogers for use on his own horses, though he did not know how many horses Rogers had. He testified that with that substance Rogers would make up something that was, he testified, effective on persistent cough from which a couple of Roger’s horses suffered.

He also confirmed that he had placed the Flunixin order that was recorded in the UPS courier documents in Tab 9 of Exhibit 2F, delivered to Rogers. He testified that the order was for his own use but that sometimes he would let Rogers have some portion of such an order. He testified that with respect to the shipment delivered to Rogers by UPS that included Amoxicillin (also at Tab 9, Exhibit 2F), it was ordered by him for use in his practice as well as on his own horses. He testified that in 2002 his practice was about 200 horses and that he passed the savings he made on the purchases through Rogers onto his clients when he treated their horses.

On the basis of the documents in evidence before us and the testimony of Dr. Flanigan, we find that Rogers was using Dr. Flanigan’s name and status as a licensed veterinarian, sometimes with and sometimes without his actual knowledge, to acquire products for sale to third parties, without being properly licensed. Dr. Flanigan permitted his name to be used to allow Rogers to purchase substances and drugs Rogers would not otherwise have been able to secure because of the limitations on his license.

Dr. Flanigan also acknowledged using EPO on his own racehorses, as he wanted to see what effect it would have. EPO is a human drug, which has been the subject of regulatory control by this Commission with respect to its use in racehorses.

Dr. Flanigan’s explanation for his arrangement with Rogers was that it was done to take advantage of the volume discounts and that he injected the unlabelled products into his own race horses but he would not inject them into his clients’ horses because of the potential for liability. Dr. Flanigan asserted that he felt there was no more danger in using the unlabelled products from Rogers than from using labelled products obtained elsewhere, because Rogers had told him the products were produced in a laboratory setting. Exactly what Dr. Flanigan was relying on is uncertain because he first said that Rogers had told him that the drugs came from a pharmacy, Pharm Lab. Presumably it would be in the interest of that entity to produce quality products. Later he said that the drugs were produced in a “laboratory setting”, a description which might or might not include a setting that was licensed, inspected and regulated for quality assurance and compliance with law. Dr. Flanigan did acknowledge that usually substances produced in a laboratory setting would have a label with the ingredients required under regulatory legislation. He testified that he assumed that Rogers got the products from the lab before the labels were applied. Dr. Flanigan testified that he asked Rogers “this isn’t something produced in a bathtub” and Rogers vehemently denied it, saying the products came from a quality lab.

Dr. Flanigan also acknowledged providing drugs to Rogers for which Rogers required a prescription rather than paying him for the substances he purchased from him. He said that he was aware that Fred Rogers was selling such substances, and that he had bought some himself from him.

Dr. Flanigan acknowledged purchasing some of the substances that were listed on the second and third page of the documents seized at Rogers’ premises included in Tab 7, Exhibit 2F (See also Exhibit 3F). He denied any connection with the purchase on the 4^th page, which has a date in 2001 when he said he did not do business with Rogers, or any connection to the purchases referred to on the first page of the tab. The name “John Flanigan” written in cursive writing is clearly legible on the 4^th page, as is the date. He denied ever seeing the documents before. Since the documents seem to be notes, rather than copies of actual invoices that would have been provided to a customer with a copy kept for the seller’s record, his lack of previous knowledge of the documents is not surprising.

Dr. Flanigan acknowledged purchasing from Rogers Schedule F Drugs under the Food and Drugs Act and/or drugs that were only available by means of a prescription from a veterinarian.

Dr. Flanigan also purchased products, such as Hydrocortisone (unlabelled), Baby bleeders (unlabelled), White Top, Kentucky Red and Red Top, in containers without proper labelling from Rogers. He testified that with respect to the White Top he believed it to contain a substance L-arginine, based on his discussions with other veterinarians who had had the substance analyzed. He believed the substance had bronchodilating effects, based on the anecdotal evidence of horsemen. Rogers had told him that the Red Top had Devil’s Claw and Glucosamine.

Dr. Flanigan acquired from Rogers a product known as “Jap Acid”, which Dr. Flanigan said came in a bottle with “Chinese letters” that he could not read. He would therefore not have been able easily to discern if another substance were in the bottle. He said that it was produced in a foreign country and his information was that it was quite safe to use, according to other veterinarians. He did not see a drug identification number on the bottle. He believed it to be Hyaluronic Acid with a high molecular weight though he could not read the label and he had had no analysis of the product done. This acid is a controlled substance as it is to be used as an injectible in equine practice and therefore a prescription from a veterinarian is required

He also admitted to acquiring from Rogers a substance called “Formidium” which came in a bottle with a label entirely in German, again a language he does not read or speak. Dr. Flanigan testified that with respect to those drugs labelled in a foreign language and with no Drug Identification Number, such as “Jap Acid”, he did not ask any questions about how Fred Rogers got those substances.

We find that Dr. Flanigan was a customer of Rogers, purchasing through him substances that Rogers was not properly licensed to sell, and also products that were either not labelled or were not properly labelled.

Conclusion

The position of the Administration is that Dr. Flanigan’s conduct with regard to the business arrangements and dealings with Rogers is such that the Executive Director is correct in concluding that the licensee will not conduct his activities under his licence in accordance with honesty, integrity and the public interest, given his past conduct. Counsel relied on the information provided by Dr. Flanigan to the investigators (Exhibit 6F, Tab 2) and in his evidence before this panel. Counsel submitted that Dr. Flanigan enabled Rogers to carry on a business selling substances to racing industry participants, including substances for which Rogers needed to have but did not have a licence to sell, and substances that did not meet minimum labelling and other regulatory requirements for sale, as well as substances which were subject to regulatory controls which he disregarded.

Counsel also submitted that Dr. Flanigan’s conduct, in completing the Vetoquinol form thereby allowing Rogers to order substances that could only be ordered by a licensed Veterinarian and in taking no steps to prevent the use of his name by Rogers to purchase from other sources, showed a shocking lack of judgement.

Counsel for Dr. Flanigan submits that the licenses should not be revoked and that the suspension should be lifted immediately. He submits that the Administration case is based on speculation and that the only document produced that deals with drugs other than those for which Rogers had a licence to purchase was the one Vetoquinol document and there is no evidence that the controlled drugs found on the premises of Fred Rogers were in fact from Vetoquinol. His submission was that an adverse inference should be drawn from the fact that no one from Vetoquinol was called to testify.

Counsel submitted that Rogers had been in business for many years and pointed out that Dr. Flanigan had only become involved with Rogers in 2002, and that solely for the purpose of taking advantage of the bulk purchase price that could be obtained by combining Rogers’ order and his own. He relied on Dr. Duncan’s evidence that 25 years ago he had purchased homeopathic substances through Rogers, and counsel submitted that this established that Rogers was able to get the substances through other sources than using Dr. Flanigan’s name and CVO identifying number.

He also submitted that it was important to our deliberations that Dr. Flanigan could have obtained from another source licensed under the Controlled Drugs and Substances Act and the Food and Drugs Act these same substances that he purchased either from or through Rogers. His argument is that there is therefore no harm in what Dr. Flanigan has done.

Counsel also submitted that there was no evidence that any horses had in fact been harmed by the substances that had been administered by Dr. Flanigan. There was no record of any positive test on a racehorse connected to these purchases.

Counsel also submitted that the documentary evidence seized from Rogers’ business premises was unreliable. He referred to the issue of the copies with the post-it notes that had been photocopied again for the evidence books before us. He located in his search some invoices in the documents seized that were not related to allegations against Dr. Flanigan but which were invoices dated in 2005 after the date of the search. This, he says, undermines the credibility of the evidence of the investigators as to the search and seizure conducted by them of the Rogers’ premises.

Counsel also argued that the Administration had failed to prove that Rogers had used the substances that he got using Dr. Flanigan’s name and identification number as part of the inventory that was in fact sold to third parties.

Dealing with the submission of counsel related to the documentary evidence resulting from the search warrant execution, we are satisfied as to the structure of and the procedure followed by the investigators in the compiling of the documentary and other evidence seized from the Rogers’ premises. The evidence of the OPP officers and that of investigator Griffis as to the methods of record keeping they followed and the explanations given with respect to the copies that were made and tendered before us are sufficient to support our finding that the documents proven before us were taken from the business premises of Rogers and documented business transactions of Rogers, and that where John Flanigan’s name or the initials “JF” were used on the document, the author intended to document a sale or trade with Dr. Flanigan with respect to those substances. Despite the fact that counsel for Dr. Flanigan was permitted to view all the seized records, he brought forward no evidence of any other person with the same name or initials, nor any other records.

With respect to the documents with the date 2005, absent more cogent and direct evidence as to the unreliability of the documents seized and referred to in this case, we are not prepared to disregard the documents that have been tendered before us solely because of those few documents that bear that date. There are reasons for post dating invoices, that may be quite innocent, and some that would be quite wrong.

We reject the argument that the Director has erred because there is no evidence that any horses were harmed by any of the substances and there were no positive tests. Based on the evidence of Dr. Duncan and Mr. Fischer, Dr. Flanigan exposed his own race horses to risk, and those horses belonging to his clients, by using unlabelled substances or substances whose labels he could not read and which were not properly approved under the regulatory system. We do not accept his evidence that he did not use the unlabelled products on any horses but his own, as the bottles formed part of the inventory in his mobile unit. As he acknowledged and as was testified to by Dr. Duncan, the proper labels on substances are there to provide important information related to the care of the horse. Given the lack of information on the labels, Dr. Flanigan was not in a position to provide his clients with the assurance that the substances were safe for the use to which he put them, were free of any contamination, would do what they were supposed to do and were manufactured under appropriately controlled conditions. Asking Rogers if the substance came out of a bathtub is not the same as ensuring that the product came from a reputable supplier with a quality assurance system and that the ingredients were fully and properly identified. There are many reasons why a lab would not put a label on a product at a particular point in time, including quality assurance concerns. There is no evidence that Dr. Flanigan bothered to investigate why and when the bottles left the manufacturer, even a “quality lab” as Rogers described his source to Dr. Flanigan, and why they left without a label.

Dr. Flanigan also exposed horses to risk in permitting Rogers to use his name and CVO number and his prescriptions to have substances that should have been dispensed or prescribed only by a veterinarian and used only under a veterinarian’s supervision, when he knew or alternatively ignored the fact that Rogers was in the business of selling the drugs for which he had no licence. Dr. Flanigan deliberately closed his eyes to the potential harm.

Dr. Flanigan’s own evidence is that he created a prescription after the fact in order to allay the concerns of a federal government regulator with respect to the quantity of Oxytocin (Tab 9, Exhibit 2F) that Rogers was ordering. He knew that Rogers was using the substance obtained through that prescription to create a further mixture to be used on Rogers’ horses and without regard to whether or not he subsequently sold it to others.

Dr. Flanigan admits to signing a form that would be relied on by a company, apparently properly licensed, that was attempting to ensure that it was following the proper procedures with respect to sale of its products. Dr. Flanigan in essence undercut the very safeguards the company was trying to put in place with respect to where the products ended up. There is no adverse inference issue with respect to the Vetoquinol form. Dr. Flanigan admitted that the statements in response to which he provided his name and identifying number were false.

Dr. Flanigan therefore directly participated in a scheme to undercut the regulatory system that provides confidence in the controlled drugs and substances used for therapeutic equine care. He is a part of a group of professionals who have a very special place in the horse racing industry, and on whom the public, the industry and the regulators place a significant burden of trust. Dr. Flanigan’s errors in judgment relate not to his actually harming horses, but rather to his refusal to respect the regulatory systems put in place to protect horses and the public. Veterinarians are in fact an important part of those regulatory structures and any failure to respect the integrity of those statutory procedures and systems undercuts their effectiveness, to the detriment of the public, by exposing the public and their horses to risks that have been identified as important enough to attract regulation.

We find that the Executive Director was correct in his assessment that Dr. Flanigan will not act with honesty, integrity and in the public interest in carrying out his activities under his licenses.

In considering penalty we have reviewed the letters submitted as Exhibits 10F and 11F. We have considered the penalty that is suggested by the director, and that is a lifetime suspension, and find in the circumstances of this case that it is too severe. Counsel for Dr. Flanigan submitted that in the event that the Commission found against Dr. Flanigan, the appropriate penalty would be a fine, given his licensing record with the Commission.

Dr. Flanigan is 50 years old and has a strictly equine mobile practice with his office located in Guelph, treating exclusively racehorses. His family owns presently approximately 25 horses. He testified that he first became involved with Rogers in 2002, though he had known about him for about 15 years. He was approached by Rogers to treat two or three of his horses, out of a stable that Dr. Flanigan estimated at that time to be about 20 horses. Rogers told him he was licensed to sell homeopathics and supplements and that sort of thing under a livestock medication licence.

Dr. Flanigan was only one of those who enabled Fred Rogers to survive as he did, but not the only one, and his record with the Commission is otherwise good. He has been inexcusably careless, all apparently for the sake of saving the difference between a purchase based on a bulk price and the price he could negotiate himself. We reject the submission of Dr. Flanigan’s counsel that a fine would be sufficient. Dr. Flanigan has indicated a lack of respect for the regulators whose systems give value to his veterinarian’s license and who protect the public. As a well-educated man with a university education, he is expected to be thoughtful of the consequences of his actions, and in this case he has deliberately closed his eyes to the potential harm of his actions.

While Dr. Flanigan’s errors did not relate to his driving or training or owning horses, our finding is that all his licenses should be suspended because his errors relate to his attitude towards regulatory systems and his finding ways to circumvent those systems, even if it means providing false information on a form as he did to Vetoquinol or fabricating evidence as he did in the case of the Oxytocin prescription. In our view a five-year suspension would be appropriate, together with revocation of the licenses, so that he must meet the statutory and regulatory requirements at the end of the five years if he wishes to be licensed again.

In addition we impose a fine of $25,000. The suspension on which we have settled is considerably less than that requested by the Director. The time limit leaves open the possibility of Dr. Flanigan returning to the industry. The rationale for Dr. Flanigan’s actions was apparently a monetary one. While we only have power to prevent him from being licensed in this industry, he should be able to earn a living, as a veterinarian or otherwise, given his education and the apparent high regard in which he is held by those who wrote letters on his behalf, and presumably he will do so. To be effective, a penalty should address the advantage that the licensee obtained by his wrongful actions. The fine should also be a deterrent to the licensee from any future violations of the controls in the regulatory system. In terms of the quantum, Dr. Flanigan’s counsel has succeeded in convincing us that a lifetime suspension is too severe but in suggesting a fine, he gave us no submissions as to quantum. The quantum of the fine is more than the fines listed in the Guidelines for penalties for equine drug and TCO2 offences, also related to inappropriate actions with respect to medications and drugs in racehorses, albeit in a different context. The penalty is less than the fines imposed in some of the hidden trainer/hidden owner cases, where deliberate actions were taken by licensees to defeat the regulatory structure of horse racing. Therefore the fine of $25,000 addresses the financial benefit and is large enough that it should be a deterrent and express the seriousness with which we regard Dr. Flanigan’s actions.

We therefore impose a penalty of a five-year suspension and the revocation of all of the licenses that were held by John Flanigan under the Racing Commission Act, 2000, and impose a fine of $25,000.

DATED this 1^st day of May 2006.

Lynda Tanaka

Chair