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

AND IN THE MATTER OF THE APPEAL OF

STANDARDBRED OWNER/TRAINER MALCOLM LYNN

Standardbred owner/trainer Malcolm Lynn appealed from SB 385325 dated July 12, 2006, in which Mr. Lynn was found to have violated Rule 22.38 of the Rules of Standardbred Racing, fined $5000 and suspended for 1 year as a result of a positive test for elevated TCO₂ in a blood sample taken prior to racing of the horse CYBERMAN.

A Commission Panel consisting of Chair Lynda Tanaka and Commissioners Jane Garthson and Brenda Walker convened for a hearing on October 3, 2006 and on January 26, 2007.

Aaron Dantowitz and Patricia Latimer appeared at the hearing for the Administration and Edmond Paquette appeared on behalf of Mr. Lynn.

On hearing the evidence of Troy Haripersaud, Stephen Choo, Judge Chuck Fraleigh and Dr. Michael Weber, and on reading and reviewing the exhibits filed, including an Agreed Statement of Facts, and on hearing the submissions of counsel, the Commission DISMISSED the appeal. Submissions regarding penalty are to be made at a later date and will be the subject of a separate ruling (SB COM 003/2007).

The Commission gave oral reasons for the decision, the transcript of which is attached to this ruling.

DATED at Toronto this 12^th day of February 2007.

BY ORDER OF THE COMMISSION

John L. Blakney

Executive Director

ONTARIO RACING COMMISSION

STANDARDBRED HEARING

IN THE MATTER OF STANDARDBRED OWNER/TRAINER

MALCOLM LYNN

These are the oral reasons in the above mentioned matter held before The Ontario Racing Commission, Re: MALCOLM LYNN, taken before Toronto Court Reporters, Suite 1410, 65 Queen Street West, Toronto, Ontario, at 10 Carlson Court, Suite 400, Mississauga, Ontario, on the 26th day of January, 2007.

Appearances:

Aaron Dantowitz,

for the Ontario Racing Commission Administration

Edmond Paquette & Josee Paquette

for Malcolm Lynn.

Hearing continued ...

MR. FINES: All rise please.

MADAME CHAIR: I apologize for my voice. I am going to take a cough candy so I can keep talking without losing it and again, I apologize for my Blackberry going off during Dr. Weber's evidence. The panel has arrived at a unanimous decision and rather than, since this matter has been outstanding for so long, rather than issue written reasons we are going to issue oral reasons just dealing with this appeal.

Therefore it is rough and not of the same quality as we would expect of ourselves if we were giving written reasons but we believe we are covering all of the issues. This case arises from an appeal by Malcolm Lynn from a ruling SB 35325 with respect to a positive test for elevated levels of TCO2 in a blood sample taken prior to racing of the horse CYBERMAN. The evidence commenced on October 3, 2006 and there was a teleconference on November 9, 2006 dealing with procedural matters and we have completed the evidence today January 26, 2007. We heard evidence of two staff of Vita Tech who conducted the testing of the sample. Judge Fraleigh testified with respect to the timing of the race and Dr. Michael Weber of CPMA. No evidence was led by the horseman to rebut any of the evidence and specifically the evidence with respect to the import of the timing of the taking of the sample.

The arguments made in support of the appeal are these. First, the rule says that the test sample is to be taken within 20 minutes of race time. That is rule 22.38.05(ii). Within signifies an outside boundary therefore the test should be taken sometime within the 20 minutes and not outside the 20 minutes or further away from race time. The argument is that 28 minutes is beyond that outside boundary and does not come anything near what could be called approximately within a boundary of 20 minutes. The second argument is based on Judge Fraleigh's testimony that when a race time, when a scheduled race start time, is delayed everyone on the track is affected and has to adjust the jobs they have to do and therefore the technician who was taking the blood samples should adjust their work to accommodate the delay. The third argument is that the rule binds the horseman and therefore the rule should bind the technician to the 20 minute period and the fourth argument is compliance with the 20 minutes is really very easy for the technician to achieve.

We have to interpret the rules in order to give effect to the purpose and intent of the Act. We must recognize that the conduct of the race is dynamic and with a few exceptions the time limits cannot practically be enforced. We have the evidence of Judge Fraleigh that the overnight sheets which are provided to horsemen in order to let them know when they have themselves and their horses at the track showed this race running at 10:43 p.m. The races at Sudbury Downs are usually separated by eighteen minutes. Therefore the sample would be taken at the beginning of the previous race. Therefore if there were any delay in the conduct of that race, that is, the determination of the outcome of the previous race, it would necessitate by a matter of time that the sample is taken further than twenty minutes away from the time of the actual race being run in which the horse is racing.

We have to interpret the rules in the context of this very practical issue of the conduct of the races. Therefore we reject the argument that the test sample cannot be taken later than 20 minutes. Further, the evidence of Dr. Weber is that the further away from race time that the sample is taken the greater the benefit to the horseman and if he found that the samples were being taken at 28 minutes prior to a race on a consistent basis he as an intervenor or he as a regulator would intervene because of the benefit given to the horseman.

The 20 minute timeframe and the potential for a greater period of time means that a horseman whose horse may be in violation at race time might get off. In other words, if you take the test further away from race time because of the particular action of the TCO2 in increasing towards race time then a horseman whose horse is really in violation might escape being found out because they might test at less than 37 mmols. per litre.

The argument that the technician should adjust the time of taking the samples because of delay is simplistic since race delays are frequently not known at the time of taking the sample. The rule does bind the technician but the timing of the sample gave the benefit to this horseman.

We reject the argument that 20 minutes is very easy to achieve given the dynamic nature of the conduct of the racing.

TCO2 tests are different than what we normally see in drug cases. For instance, if this were a therapeutic drug such as those listed on the Schedule of Drugs, in those cases then the concentration of the drug in the horse's urine or blood would normally be decreasing and to take the test further away from race time than dictated by the rule would constitute a dis-service to the horseman. We can understand that kind of an argument in the defence. Here the evidence is clear that the horseman received a benefit by the sample being taken earlier or further from the race.

We have no evidence from the horseman to rebut anything we heard from Dr. Weber or the other evidence. We therefore can only come to the conclusion that there is a violation of the rules. If we are wrong in our interpretation of the rule then we note this. On the basis of Dr. Weber's evidence there is no reason for levels of 37.9 TCO2 in this horse's blood to be at that level other than human interference. We would therefore find the trainer in violation of rule 6.20 since there is no therapeutic benefit to this horse for this level.

Now are counsel prepared to deal with penalty issues?

MR. DANTOWITZ: The Administration is prepared to proceed on that issue.

MADAME CHAIR: Mr. Paquette?

MR. PAQUETTE: I would propose, members of the panel, that it be dealt with by way of written submissions.

MADAME CHAIR: All right. I don't have a problem with that. Then we can do it by written submissions. Now what is the timing?

MR. DANTOWITZ: If I could just have a moment to take some discussions?

MADAME CHAIR: Yes. Written submissions can often take a lot of time unfortunately.

MR. DANTOWITZ: Thank you for your indulgence. I just had some discussion with Mr. Fines and Mr. Paquette about the timing of this. The concern of the Administration is that Mr. Paquette is currently under suspension. I'm sorry, not Mr. Paquette. Mr. Paquette is not under suspension, never has been and never will be. Mr. Lynn.

MADAME CHAIR: It won't be up to us in any event.

MR. DANTOWITZ: Mr. Lynn is currently under suspension until February 12th, 2007 and it would be the Administration's position on the penalty in this case that Mr. Lynn ought not to be reinstated as of that day while the penalty in this matter is being determined.

MADAME CHAIR: I take it he is under suspension for something unrelated to this case because the stay?

MR. DANTOWITZ: That's correct.

MADAME CHAIR: From July 12th, 2006 would normally have been participating, albeit under some constraint.

MR. DANTOWITZ: That's correct. It's unrelated to this incident.

MADAME CHAIR: All right.

MR. DANTOWITZ: And so if there is a way for us to make submissions by way of teleconference before that date February 12th that would be the Administration's preference.

MADAME CHAIR: All right and how long would you think the submissions would take?

MR. DANTOWITZ: I don't know what sort of evidence Mr. Paquette would envision adducing on that issue. From the Administration's perspective our submissions would probably be no more than ten minutes.

MADAME CHAIR: Mr. Paquette?

MR. PAQUETTE: I would say probably the same.

MADAME CHAIR: All right, so we are not talking about having to accommodate witnesses in this teleconference?

MR. PAQUETTE: No.

MR. DANTOWITZ: No.

MADAME CHAIR: Are we talking about teleconference rather than written submissions or are we talking about both?

MR. DANTOWITZ: I think it would have to be ... there would have to be some limited written submissions simply because there are documents involved that haven't been filed yet.

MADAME CHAIR: All right, so today is the 26th. Can we have the documents provided to us by January 31st?

MR. DANTOWITZ: Certainly from the Administration's perspective that could be done.

MADAME CHAIR: All right. If we were able. Are there days that counsel are looking at? We are looking at what would work best because we will have to ... Mrs. Walker is down in Georgia training horses there so we need to ... between 1:00 and 2:00 would be the best time for her. Are there days when you are not available after January 31st? Between February 1 and February 12 are there days when you are not available? February 6th at 3:00 p.m.?

MR. PAQUETTE: If I may inquire what day of the week is that, Madame Chair?

MADAME CHAIR: The 6th is a Tuesday.

MR. DANTOWITZ: That's fine for me.

MR. PAQUETTE: If I may make a quick phone call?

MADAME CHAIR: Yes and I am going to go get my Blackberry just to make sure we are all right.

MR. DANTOWITZ: If I could just take care of one housekeeping matter and that is we have the final version of the agreed statement of facts and that we are prepared to file now.

MADAME CHAIR: All right. We will mark that as Exhibit 5.

EXHIBIT NO. 5: agreed statement of facts.

SHORT RECESS

Upon Resuming...

MADAME CHAIR: So February 6th at 3:00 we will do a teleconference. That will give us time to get the materials delivered January 31st and for Ms. Walker to review before that teleconference and Ms. Wright will set up the teleconference. All right, so the appeal is dismissed with respect to liability to the rule violation. Mr. Lynn is otherwise suspended for other purposes. If for any reason his suspension is lifted or short of the July 12 date 2007 the penalty remains stayed under ruling SB 148 in this case. So those limitations on his participation in racing continue while we deal with this issue. We are adjourned then to deal with submissions concerning penalty until February 6th at 3:00 by teleconference and the written submissions will be delivered to the Commission by January 31st by both parties. Thank you very much.

CERTIFIED CORRECT:____________________________

RAYMOND P. MACDONALD, B.A., CVR

Commissioner of Oaths