IN THE MATTER OF THE RACING COMMISSION ACT, S.O. 2000, c.20;
AND IN THE MATTER OF STANDARDBRED OWNER ROBERT MCNAMARA AND STANDARDBRED OWNER, TRAINER AND AUTHORIZED AGENT SHERRI KORNISKI
Robert McNamara and Sherri Korniski requested a hearing with respect to the Director’s Immediate Suspension dated September 27, 2005 pursuant to Section 23 of the Racing Commission Act, 2002, S.O., c.20, in addition to the Notice of Proposed Order to revoke the licenses pursuant to Section 21 of the Act.
On November 22 & 23, 2005, a Panel of the Commission consisting of Chair Lynda Tanaka and Commissioners Jane Garthson and David Gorman convened for the hearing. Brendan Van Niejenhuis acted as Counsel for the Administration and Gerry White acted as Counsel for Mr. McNamara and Ms. Korniski.
On reading the Exhibits and on hearing the evidence of Detective Schandlen, Doug Griffis, Detective Stewart, Dr. Duncan and Mr. Voldock and on hearing the submissions of Counsel, the Panel agrees with the Director that it is in the public interest to suspend the licences and to revoke the licences of Robert McNamara and Sherri Korniski for a period of 5 years.
The Commission‘s Reasons for Decision are attached to this Ruling.
Dated this 16^th^ day of December, 2006.
BY ORDER OF THE COMMISSION
John L. Blakney Executive Director
REASONS FOR DECISION
By Order of Immediate Suspension dated September 27, 2005, the Executive Director suspended the licenses of Robert McNamara and Sherri Korniski pursuant to Section 23 of the Racing Commission Act, 2000, S.O. 2000, C. 20 (“the Act”). Mr. McNamara is licensed as a standardbred owner and Ms. Korniski is licensed as a standardbred owner, trainer and authorized agent.
In addition, the Executive Director issued a Notice of Proposed Order in the same document to revoke the licenses pursuant to Section 21 of the Act.
The reasons for the order of immediate suspension were:
a) there are reasonable grounds to believe that, while the licensees carry out the activities for which a licence is required, the licensees will not act in accordance with the law, or with integrity, honesty or in the public interest, having regard to their past conduct;
b) the licensees’ conduct has placed the integrity of the horse racing industry in Ontario in question and, in particular, the quality and integrity of veterinary and training care of horses; and
c) the public interest requires that the licensees be suspended immediately.
The Notice of Proposed Order contained similar reasons to items a) and b) above, and the particulars set out a history of purchases of substances regulated under the Food and Drugs Act and the Controlled Drugs and Substances Act from one Mr. Fred Rogers, now deceased (“Rogers”). The allegations also include allegations concerning the responsiveness of the two licensees to the investigation by the Commission investigators and also the respective responsibilities carried out by them for the horses racing with Ms. Korniski listed as trainer of record. Under paragraphs 9 to 16 inclusive and 21 of the Notice of Proposed Order concerning Mr. McNamara is a series of allegations that he is a hidden trainer.
Mr. McNamara and Ms. Korniski have requested a hearing with respect to the order above and the proposed order, which would result in revocation of their licenses. For the reasons set out below this panel agrees with the Director that it is in the public interest to suspend the licenses of these two individuals and to revoke the licenses as well under Section 21 of the Act. We also agree with the Executive Director that the appropriate period of suspension is five years.
The hearing was held on November 22 and 23^rd^. An order was requested by the licensees excluding witnesses and that was granted. A volume of documents containing 29 tabs was tendered by the Administration and, on the consent of the counsel for the licensees, was admitted as Exhibit 1.
Mr. McNamara and Ms Korniski are spouses who operate a large standardbred training operation in eastern Ontario and own horses in their own name and with others. Mr. McNamara was previously licensed as an owner and trainer but his August 2005 application for his 2006 licence was only for an owner’s licence.
We received evidence with respect to the investigation of the business of Rogers and the collection of evidence including bottles and other containers of controlled substances whose distribution is provided solely to properly licensed people under the Controlled Drugs and Substances Act and of other substances whose distribution is controlled under licenses issued under the Food and Drugs Act, both acts being federal legislation. Rogers did not have such a licence. In the course of that investigation, records of Rogers were reviewed and copies of invoices believed to be addressed to Mr. McNamara and Ms. Korniski were located. In addition, Mr. McNamara and Ms Korniski provided to the investigators copies of invoices from Rogers. It was admitted that they purchased products from Rogers.
According to the Prehearing Conference Report, the issues before us are to determine if the reasons given for the immediate suspension and the proposed order to revoke the licenses are supported by the evidence and if so, are the penalties appropriate.
The evidence of the investigation with respect to Rogers was given by Detective Sergeant Steven Schandlen of the OPP Illegal Gambling Unit, Mr. Doug Griffis, an investigator with the Commission and Detective Constable Cory Stewart also of the OPP. Detective Sergeant Schandlen was the officer whose information was provided in support of the issuance of the search warrants. Searches of Rogers’ premises were conducted in July 2004 and October 2004, and the search team included representatives of both provincial, federal and municipal enforcement services as well as the Commission. Investigator Griffis provided the information to Detective Sergeant Schandlen. Commission Investigator Cory Stewart was the exhibit officer to whom all documents and items seized in the October 2004 search were provided for cataloguing and safe keeping.
Detective Sergeant Schandlen testified as to the process of the search of the Rogers residence and offices, and the court proceedings. The searches resulted in the seizure of records of the Rogers business. In addition the police seized containers of substances, some of which were unlabelled, some of which were improperly labelled, and some of which were clearly labelled as controlled substances. The outcome of the proceedings against Rogers who is since deceased was that $20,000 of the funds seized in the investigation was forfeited to the Crown as proceeds of the wrongful acts with which Rogers had been charged.
In addition, Detective Sergeant Schandlen testified as to his observations of the bottles and containers of substances that were seized, and provided photographic evidence of these items as well as a photo of a number of bottles being soaked so as to remove the labels. He acknowledged that Rogers may have been licensed to distribute livestock medication. He also acknowledged that Rogers had been carrying on business for a long time. The criminal charges that were laid against Rogers were confined to possession of testosterone and marijuana. Other charges were pending at the time for Health Canada analysis, but Rogers’ death apparently put an end to further proceedings against him.
Detective Sergeant Schandlen was also cross-examined as to whether it was an offence under the Food and Drugs Act and the Controlled Drugs and Substances Act to purchase medications included in the schedules or whether the offence provisions were confined to sale and possession. Those statutes are part of a federal regulatory system designed to ensure the quality of drugs available for sale to Canadians and to control the sale of the drugs through licensed individuals.
Investigator Griffis did a detailed review of the documents including invoices that were found in the Rogers’ documents. The invoices found at the Rogers premises did not always show a full name of the customer but rather referred to the customer with a portion of the name or merely an initial. Investigator Griffis testified that that there were only a limited number of individuals whose names appeared on the invoices with the initials that matched those of the licensees.
Detective Constable Stewart prepared a comparison of the invoices seized from the Rogers premises with invoices produced by Ms. Korniski and Mr. McNamara in response to the Notices of Requirement to Provide Documents and Information issued to both of them on May 19, 2005 (Tabs 9 to 12 inclusive, Exhibit 1). The licensees requested and were given additional time to review what was described as boxes of material to produce the information that had been requested, including invoices issued by the late Mr. Rogers. The invoices from the late Mr. Rogers’ records covered a period of April 2003 to August 2004 in the case of Mr. McNamara and a period of January 2003 to August 2004 for Ms. Korniski. The invoices from Mr. Rogers produced from the licensees’ records covered a narrower period in both cases but showed many of the same characteristics of identification of the purchaser, such as use of abbreviations or merely initials for the name.
The cross-examination of Investigator Griffis focussed on his diligence in determining that the invoices that contained only references to the customer by certain initials were to be attributed to Robert McNamara and Sherry Korniski. In this regard he testified that there were 695 invoices in the documents seized from the Rogers’ premises and some had no indication as to the customer or a date. It appeared to him that Rogers used full names at the outset of the seller/buyer relationship and then used partial names or initials after a period of time had passed. Investigator Griffis had eliminated other invoices that also had relevant initials from this investigation, but testified that investigations were proceeding against other licensees.
Counsel for the licensees wished to proceed in more depth with questions in this regard. In view of the need to protect the integrity of the investigations, a portion of Investigator Griffis’ evidence was taken in camera, at the request of the Administration. No objection was raised to this procedure and Mr. McNamara and Ms. Korniski left the hearing room for this portion of the evidence on their own initiative. Counsel for them continued his cross-examination on this point in their absence and no objection was taken to their not being in the room for this portion of the case. Investigator Griffis gave further evidence with respect to his attribution of the invoices to Mr. McNamara and Ms. Korniski.
Based on our review of the invoices produced by the licensees and those produced from the search of the Rogers premises and the testimony of investigator Griffis, we find that the conclusion as to the attribution of the invoices to these licensees was a reasonable one, given the use of the full name in some cases and initials in others and that there were clearly more invoices rendered to the licensees than were produced from their records.
It is not necessary for us to determine whether all of the invoices, which the investigators have attributed to these licensees, in fact were issued for these licensees. The conclusion of the investigators was based on a reasonable assessment of the information available to them. If that conclusion was wrong, that information is within the licensees’ knowledge and the opportunity was open to them to come forward and testify that some of those invoices were not for products sold by the late Mr. Rogers to them. It is admitted that they did buy products from him and in some instances, but not all, the invoices located from both sources match.
In addition, Ms. Korniski produced a series of cheques issued to Fred Rogers each for $2500 for February 28, March 14, April 28 and May (date illegible), 2004, and two cheques for $3077.50 each dated November 17 and November 3, 2003, and one for $2085 dated March 29, 2003. The invoices from Rogers Stables Ltd produced by Mr. McNamara totalled in excess of $61,000. Those produced by Ms. Korniski totalled around $35,000 and on one of the invoices dated April 29, 2004 there is reference to other invoices not produced but related to other dates. Clearly the cheques do not total the amount represented by the invoices. The cheques were clearly deposited to the credit of “Mr. H. Fred Rogers” as noted on the reverse side of them.
Investigator Griffis also testified as to a schedule entitled “Customer Service Sheet” for Robert McNamara for invoices for the period April 15, 2003 and August 14, 2004, included as Tab 15 in Exhibit 1 of the proceedings. In this schedule Investigator Griffis listed the drug names he derived from the invoices, the price noted on the invoice, the quantity purchased, another name by which the product is known, and then identified the category of drug under either the Controlled Drugs and Substances Act or under the Food and Drugs Act. A similar list was prepared for the drugs purchased by Ms, Korniski as identified by the investigator from the various invoices located either at the Rogers premises or in the documents produced.
Investigator Griffis noted the names of some of the substances as “P Block”, “Bleeder”, “Jap Acid”, “Kentucky Red”, “Kentucky Black”, “RXBC”, “Sarapin”, “Shakes” and “White”. These had no other name given in the schedule and the investigator testified that containers of substances labelled with these or other names, that did not correspond to the schedules under either the Controlled Drugs and Substances Act or under the Food and Drugs Act, had not yet been analyzed. For both licensees there is however evidence of the purchase of substances from Mr. Rogers whose distribution is controlled by those two statutes.
Mr. Griffis testified that he never saw any licence issued to Rogers for livestock medication. Investigator Griffis had made the inquiries with Health Canada as to Mr. Rogers’ licenses under the federal statutes referred to above. Copies of correspondence were filed with us indicating that an investigation of the records of Health Canada’s Healthy Environments and Consumer Safety Branch and Health Products and Food Branch Inspectorate indicated that Mr. Fred Rogers and Rogers Stables Ltd. were not licensed under those statutes to distribute such substances. The invoices in question for distribution of such substances were issued by Rogers Stables Ltd. and the cheques issued by Ms. Korniski were to Fred Rogers.
The Rules of Standardbred Racing require that licensees respond to questions and co-operate in investigations by Commission investigators (Rules 6.27, 6.28 and 6.29). Statements by both Robert McNamara and Sherry Korniski were taken by Detective Constable Stewart on May 19, 2005 and were marked as Tabs 17 and 18 of Exhibit 1. The two licensees refused to be interviewed separately. They were represented by counsel at the interviews.
Mr. McNamara was interviewed first, according to the time recorded on the statements. Mr. McNamara stated that he did know Rogers and had bought some vitamins from him about 10 months prior to the interview. He said that everything he bought was from pharmaceutical companies. He testified that he either went to see Rogers or he got the substances by mail. He said, first, he had no invoices and then said he did. He said that he paid Rogers either by trade or by cash and he sometimes paid by cheque. He said he paid by trade by providing Rogers with substances that he had that Rogers could not get. He said that he had bought medications for his horses from “tack shops- Univet - a pharmaceutical company”. He named five vets that he dealt with and indicated he used 10 vets.
Ms. Korniski was questioned next, with both her counsel and Mr. McNamara present. She denied knowing or ever conducting business with Rogers, despite the fact that she had written cheques to him and her name and/or initials appeared on invoices in both her own and Rogers’ records. The following series of questions is informative of Ms. Korniski’s failure to be open and truthful with the investigators, especially given the circumstances of the investigation:
“Q. How did you pay for the medications you bought?
A. Maybe with a cheque that my husband, Robert McNamara bought and I if a cheque was written I would have wrote it up for Bob.
Q. Have you ever bought any medications for your racehorses from anyone other than Fred Rogers or a licensed Veterinarian?
A. Yeah, I guess so – no I guess not.
Q. Who are the veterinarians who treat our (sic) racehorses?
A. The same list that Bob would have.”
Evidence as to the history of the licensees as trainers has been provided in Tabs 22 and 23 of Exhibit 1. As pointed out by Detective Constable Stewart, Mr. McNamara, though he has held a trainer’s licence, was not listed as trainer of record after May 1999. Ms Korniski is trainer of record on horses commencing in January 2000. According to the Standardbred Canada records at the time they were consulted by the investigator, Ms. Korniski owned and Mr. McNamara owned over 70 horses
Detective Constable Stewart was cross-examined as to whether or not she had seen a licence issued to Mr. Rogers on the wall in his premises and she indicated she had, that it was for livestock medications.
Dr. Bruce Duncan, supervisor of veterinarians for the Ontario Racing Commission testified that Rogers had a licence to sell livestock medicine under the Livestock Medicines Act and he was therefore authorized to have some substances but not others. Dr. Duncan was consulted during the search of the Rogers premises with respect to the substances located there. He was also questioned with respect to individual substances that were identified in the containers present on the Rogers premises. He testified as to concerns as to the health of the race horses with the use of prescription drugs or controlled substances without veterinarian oversight.
Dr. Duncan also testified that included in the stock of substances were substances identified by a non-specific name such as “white top” whose containers were not labelled with a manufacturer’s label and list of ingredients. Dr. Duncan testified that the 5cc or 10 cc vials containing the “white top” product had only a white sticker on the top and a white label with only the name, with no indication of who the manufacturer was. The P Block was in a large container with a printed label with only those words on it, no manufacturer’s label. Some of the substances such as Sarapin are no longer available through proper channels.
Dr. Duncan was unable to advise whether or not any prescriptions had in fact been found in the papers of Rogers. Nor was he able to advise if Rogers would provide a list of instructions for the use of the substances when he sold them when they were shipped out to horsemen. Nor was he able to testify as to what if any steps had been taken by the College of Veterinarians with respect to Rogers. He did testify that he had heard from other vets that Rogers was selling medications for less than what the veterinarians could sell the medications for. Clearly this is the benefit that horsemen would seek from buying from Rogers rather than from a veterinarian.
Dr. Duncan set out the risks attendant on the improper use of various of the drugs for which there were identifying labels and known ingredients. For the others, of course there are issues of quality control, and unsupervised use of medications on horses without regard to long term side effects or impacts that might relate to future breeding prospects or even the ongoing health of the horse. He testified as to the proper channel for obtaining medications that require a prescription, and that is through a properly licensed veterinarian who is only to prescribe medications for horses that he/she has seen and treated. He also testified that if there were an adverse reaction in a horse to the administration of one of these substances for which no ingredients were known, then a vet would have a hard time developing the right treatment program for the horse. From the veterinarian’s perspective if something goes wrong with the treatment of a horse using a manufactured and properly dispensed product, the drug company will provide support and assistance; the same is unlikely to be true of those provided by Rogers.
Dr. Duncan was well aware of Rogers since he had treated one of Mr. Rogers’ horses some 25 or 30 years previously. In the course of attending to look at the horse, Dr. Duncan had indicated he wanted to use a particular substance for the treatment but did not have it. He did not recall the name of the substance but he did recall that Rogers had a case of it, properly labelled as to the manufacturer and contents, which Dr. Duncan bought from him, both to use on Rogers’ horse and on others. Dr. Duncan did not recall the name of the substance or whether, at that time, it even fell within the schedules of substances under the various acts that now exist. He did acknowledge that the rules had changed since those days but it probably was a controlled substance that he purchased from Rogers those many years ago.
The counsel for the licensees called Jerome Voldock to testify. Mr. Voldock owns horses trained at the Korniski and McNamara stable. He is an accountant whose offices are located about an hour’s drive from where the horses are kept. He also does the books for the stable, Never Done Stable, and for McNamara and Korniski personally. Mr. Voldock’s staff do the day to day bookkeeping and he conducts only a review but not to the extent of ensuring that totals, for instance, of costs are correct.
Mr. Voldock testified that it was in the interest of the licensees to give him all the invoices of costs that had been incurred. He said that Ms Korniski was the trainer of his horses and that he was unsure of what Mr. McNamara’s position was, that he had never inquired as to Mr. McNamara’s responsibilities. He had never been out to the farm or observed who made the decisions with respect to the operation and the training of his horses. He knew other people than Ms. Korniski worked with the horses. He had no information on who was in touch with the race office to enter his horses. In the past he has used other trainers, two of whom have been suspended at one time or other by the Commission at the time they were training his horses, including one who was suspended as a hidden trainer. He said he never went to the backstretch when Ms Korniski was there to race his horses.
Ms. Korniski contacted Mr. Voldock to inquire for records to respond to the Notice from the Commission to produce documents. Mr. Voldock testified that she asked for the invoices but that his office only kept a limited number of them, since the invoices are returned to her at the end of each quarter. The office did keep a listing of all the invoices but Ms. Korniski apparently had not asked for the printout of that list, but only the invoices that the Voldock office had. On the basis of this history, Mr. Voldock would likely not have had any invoices dated prior to March 31, 2005. The request to produce was in May 2005.
As noted elsewhere, the two licensees chose not to testify.
CONCLUSIONS
It is alleged that Robert McNamara was a hidden or unlicensed trainer and this allegation is used to justify in part the proposed order. In our view there is insufficient evidence to support that conclusion. In addition, at the relevant time (2003 and 2004), it appears that Mr. McNamara was in fact licensed as a trainer. He only gave up the trainer’s licence in August 2005. The order proposed against him as a hidden trainer is not supported on this allegation; this fact, that hew was a licensed trainer, does, however, support our finding below of his responsibility with respect to the care of the horses in the stable operated by Ms. Korniski and him. In so far as the Administration also relies on the allegation of Mr. McNamara as a hidden trainer with Ms. Korniski allowing him to train, while unlicensed, under her name, those allegations against Ms. Korniski also are not proven.
The other allegations in the Notice and order recite the search and seizure of the drugs and documents at the Rogers premises, the record of purchases by the licensees of controlled substances and substances listed under the federal legislation from Rogers who was not properly licensed to sell those substances and who was also not a veterinarian, the purchase of improperly labelled substances, the misleading of the investigators and the failure to co-operate by both Mr. McNamara and Ms. Korniski with respect to their dealings with Rogers.
The Executive Director’s notice concerning Ms. Korniski provided in part as follows in paragraph 21:
“As a regulated industry in Ontario, the provision of services in racing requires that the utmost honesty and integrity be demonstrated by a licensee and that all licensees be aware of and comply with the Act, the rules and the terms of the licence in order to maintain the confidence of the public in the integrity of racing. …the Licensee is required to act in the best interests of the horses in her care, as well as to act in accordance with law, integrity and the public interest. The Licensee’s actions in relation to the unauthorized and illegal drug distribution operation of Fred Rogers…provide reasonable grounds for the Director to conclude that the Licensee will not act in accordance with law, with honesty and integrity, or in the public interest or not carry out activities in contravention of the Act, the rules or the terms of the licence”.
Similar language is used in a comparable paragraph in the notice concerning Mr. McNamara.
Despite our finding that the Administration has not proven the hidden trainer allegations, we are, however satisfied, based on the evidence, that it is appropriate to revoke these licensees’ licenses as proposed by the Executive Director and to impose the suspension period of five years. The importance of the revocation is that on revocation specific statutory provisions come into play with respect to the Director’s consideration of future licensing of these individuals. If only a suspension were imposed, then at the conclusion of the suspension, the licensees could apply for their licenses without the additional statutory restraint.
Counsel for the licensees, in the course of his cross-examination of the witnesses, raised a number of points concerning Rogers’ form of business and the involvement of his clients, to support his argument that it was not appropriate to penalize his clients or to take away their licenses based on their dealings with Rogers. Rogers held himself out to be licensed to sell some drugs and was apparently so authorized, though not with respect to the full range of products he apparently offered. It would be unfair, in counsel’s submission, to the licensees to hold them responsible if Rogers was selling drugs that he was not licensed to use. He argued that it was not illegal to purchase the drugs and that purchasing was all that the invoices established; rather it was illegal to possess the drugs and to sell them without a proper license.
He also argued that his clients were the first to be prosecuted as a result of the investigation into Rogers and that this was relevant. It was clear on the evidence that in all likelihood there are another hundred people for whom invoices exist for such purchases.
He argued that clearly his clients did not believe they were doing anything wrong or there would not have been a paper trail; they would have destroyed the evidence. He argued that there was no evidence that Rogers had not insisted on a prescription being issued before he would sell the drugs. He further argued that in the case of these licensees there was no evidence that the drugs purchased had caused any harm to any of their horses. He argued that a veterinarian had given Rogers the appearance of legitimacy and that there was no reason for his clients to be suspicious of Rogers. These arguments fly directly in the face of the evidence that a veterinarian should only be prescribing medications for a horse that the veterinarian is actively treating and that there was no connection between whatever relationship there was between Rogers and a veterinarian and the horses being cared for by these licensees. Counsel further argued that two months was more than sufficient suspension given that his clients had no reason to question the legitimacy of Rogers’ operation.
The order requested by the Executive Director is a significant constraint on the licensees. We are required to make such an order, as we are in exercising all our powers, in accordance with the principles of honesty, integrity and social responsibility, and in the public interest by the terms of our statute. We require clear and cogent evidence in support of the case against the licensees, as we are dealing with their livelihood, and in particular their ability to earn a living in the future in horse racing. While there are portions of this industry where participants are not licensed, we recognize that it requires a re-focussing of the business to participate in those parts, as compared to the actual operation of a racing stable. It is not an impossible burden for licensees to make that shift and indeed some make that shift voluntarily, but in our view we need to be cautious and careful before that burden is imposed by a regulatory order.
Before us are two licensees who sought to avoid the costs of the medications that might be otherwise obtained through their veterinarians by purchasing from Mr. Rogers. There is no evidence that the invoices they produced were for medications for which they had prescriptions. They were requested to produce prescriptions and none was pointed out to us by them. In our view the much reduced prices should caused the licensees to question why the prices were reduced and to investigate further as to the source. Certainly they should have questioned drugs offered by Rogers that were improperly labelled or had no manufacturer’s name or list of ingredients. The fact of these labels, improper or non-existent, should have put a reasonable person on an inquiry as to what was being purchased and whether or not it was in fact safe to use on a horse, as well as what the likely outcome would be if the product turned out to be tainted or if the horse had an adverse reaction to an unidentified substance. Mr. McNamara in particular appears from his answers to see nothing wrong in the sale and distribution of substances without a licence as there is no indication that he had any licence or authority to traffic in whatever he “traded” with Rogers.
Use of medications that are not properly prescribed or labelled is not in the best interest of the horse, based on Dr. Duncan’s description of the impact of these medications. Race horses may be claimed and therefore future owners may be misled because the horses have been treated by the use of inappropriate medications. The problems then are passed on to other owners who have no reason to suspect that products not properly controlled have been used on the horse. Further, the health of the horse has been jeopardized in that providing proper treatment in the event of any mishap is difficult, if not impossible, if the substances used on the horse are not controlled by a properly managed and licensed manufacturer. There is no control in these circumstances on the quality of the product being sold with the concomitant risk of positive tests or adverse effect on the horse.
We reject the technical argument that purchase of the drugs is not illegal and that the Administration’s case, so far as it is based on purchase, should be discounted. Purchase of the medications only makes sense if you intend to use them yourself or supply someone who will use them. To use them or sell or trade them, you must possess them.
Horses, unlike adults, but not unlike children, have no choice in whether or not they take medications. The trainer responsibilities set out in Chapter 26 speak directly to the issues of the potential for harming horses, the giving of medications which may cause a positive test, and protection of the horse entered to race. While there was no specific evidence that specific horses were given the medications in question and then raced, it is a logical conclusion, based on the extent of the ownership and the training record of Ms. Korniski and Mr. McNamara, that in all probability the medications purchased from Rogers were intended to be used on such horses and likely were. Such information to rebut that conclusion would be solely within the knowledge of the licensees.
The particulars indicate that the Executive Director’s view is that these two licensees will not act in accordance with the law, or with integrity, honesty or in the public interest, having regard to their past conduct. This allegation does not require proof of actual criminal activity, though proof of such conduct would go a long way to satisfying this Commission that the licensee will not act in accordance with the law. The section of the statute, referring as it does to integrity and honesty and the public interest may also be satisfied with proof of conduct that jeopardizes the health and well-being of the horse, and as well, undermines the federal structure of control of substances that may be used in animals.
While there is no specific rule of racing that directly addresses the situation of the purchase of drugs outside the regulated structure or of improperly or unlabelled drugs, in our view, trainers have a duty to protect their horses by ensuring that they use or permit to be used on their horses only properly manufactured medications obtained through the legislated channels that control quality as well as quantity, and with proper advice from veterinarians on administration and care of the horse. To hold trainers to a lesser standard would be to abandon our obligations to determine the matters before us in the public interest and in accordance with social responsibility.
We reject the defence that these licensees should go unpunished because none of the horses were harmed. The licensees did not provide testimony to contradict that of Dr. Duncan, as to, for instance, the clear risk to the horse’s reproductive ability with the use of some of these drugs. The harm in that case extends to the future owner who unknowingly buys an animal with expectations of breeding the animal that cannot be fulfilled. The burden of proving that harm would be unreasonably heavy on the Administration. In any event, it is not enough to say that no harm has come to the horses now. The importance of a structure of licensing and control on substances, that may cause harm if used improperly and without supervision of those with proper training and accountability, is well recognized and is in the public interest. These licensees sought to defeat that structure and avoid the costs necessary to abiding by it.
Their counsel argues they relied on the fact that Rogers was licensed and the allegation that a veterinarian was lending his name to give credence to Rogers’ business. We have no evidence of such reliance or of the involvement of a veterinarian in this matter, and the licensees could have given that evidence. They chose not to.
We reject the defence that they are the first to be prosecuted and there is something sinister in that. In an investigation involving several licensees, someone has to go first and we take nothing from the fact that these licensees were the first. The evidence before us is that other licensees are under investigation.
The allegations made in the particulars have therefore been proven to our satisfaction. We therefore affirm the order of the Executive Director proposed to revoke the licenses in question and to suspend the two licenses for five years.
DATED this 16^th^ day of December 2005.
Lynda Tanaka Chair