Robert Zubkoff and Kelly Lester, 2008 CanLII 88997

RULING NUMBER COM SB 011/2008

COMMISSION HEARING TORONTO, ONTARIO – MARCH 6, 2008

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

Standardbred licensee Robert Zubkoff appealed from Ruling Number SB 36551 dated December 14, 2007 wherein he was fully suspended for one year (December 21, 2007 to December 20, 2008) and fined $2500.00 for violation of Rules 1.09, 6.20(a), (b) and (c) of the Rules of Standardbred Racing as a result of the Judges finding Mr. Zubkoff guilty of tubing horses on August 4, 2007 and September 27, 2007, prior to them racing at Hiawatha Horse Park.

Standardbred licensee Kelly Lester appealed from Ruling Number SB 35577 dated December 14, 2007 wherein she was fully suspended for one year (December 21, 2007 to December 20, 2008) and fined $5000.00 for violation of Rules 1.09, 6.20(a), (b) and (c) and 26.02.01 of the Rules of Standardbred Racing as a result of the Judges finding Ms. Lester guilty of tubing a horse on September 27, 2007 and, as trainer of record, allowing horses that had been tubed to race at Hiawatha Horse Park on August 4, 2007 and on September 27, 2007.

On March 6, 2008, a panel of the Ontario Racing Commission consisting of Chair Rod Seiling, Commissioner Bernard Brennan, DVM, and Commissioner Brenda Walker convened to hear the appeals, which were heard together.

Patricia Latimer appeared at the hearing for the Administration and Gerald Sternberg appeared on behalf of Mr. Zubkoff and Ms. Lester.

On hearing the evidence of Randy Pullen, Paul Harrison, William Maertens, Franca Campisi and Dr. Bruce Duncan, and on reading and reviewing the exhibits filed, and on hearing the submissions of Mr. Sternberg and counsel for the Administration, the Commission DISMISSED the appeals, and upheld the Judges’ rulings and penalties imposed.

The Commission issued written reasons for the decision, dated March 13, 2008, which are attached to this ruling.

DATED at Toronto this 13^th day of March 2008.

John L. Blakney

Executive Director

REASONS FOR DECISION

Overview

Standardbred driver/trainer Bob Zubkoff, Licence Number 3712T7 and Standardbred owner/trainer Kelly Lester, Licence Number W80058, appealed Judges’ Rulings SB 36551 and SB 35577 respectively wherein the Judges imposed a full suspension of one year (December 21, 2007 to December 20, 2008) and a fine of $2,500 for Mr. Zubkoff for a violation of Rules 1.09 and 6.20 (a), (b) and (c) of Standardbred Racing and a full suspension of one year (December 21, 2007 to December 20, 2008) and a fine of $5,000 for a violation of Rules 1.09, 6.20 (a), (b) and (c) and 26.02.01 of Standardbred Racing for Ms. Lester.

Both Mr. Zubkoff’s and Ms. Lester’s penalties were stayed by a Panel of the Commission by Ruling Number SB 001/2008. The reasons were set out in the said Ruling.

Background

On March 6, 2008 a Panel of the Commission was convened to hear the appeals of Standardbred Licensees Bob Zubkoff and Kelly Lester. The two appeals were combined to be heard as one as allowed in the Commission’s Rules of Procedure. Ms. Patricia Latimer represented the Administration of the Commission and Mr. Gerald Sternberg represented the appellants as legal counsel. Both appellants had been granted a stay by a Panel of the Commission via Ruling Number SB 001/2008 (Exhibit 1, tab 7) following a hearing held on January 3, 2008. The Panel notes that the appellants’ legal counsel, Mr. Gerald Sternberg, had agreed with the Administration’s legal counsel at that hearing that “that they would have no problem with an expedited appeal” with the Panel suggesting the hearing be held by the end of the month.
Prior to the commencement of the hearing Mr. Sternberg stated he would object to the filing of the Administration’s Document Book as Exhibit 1 as it related to tab 9. It was agreed to have the Document Book entered as Exhibit 1 on the condition the Panel would not look at Tab 9 and that the respective legal counsel would deal with the issue at the appropriate time. The Panel ordered all witnesses excluded from the hearing prior to its commencement. During the hearing Mr. Sternberg introduced two pictures of a barn that he alleged was the Spitsig barn. Ms. Latimer objected as there was no authentication of the pictures but agreed to let them be entered as Exhibits 3 and 4 as Mr. Sternberg stated that Mr. Zubkoff had taken them and that he would testify later to authenticate both pictures. When Mr. Sternberg opened with his submission he stated that Mr. Zubkoff would not testify. Ms Latimer objected and argued that without his testimony the pictures, Exhibits 3 and 4 should be withdrawn. The Panel ruled that both Exhibits 3 and 4 be removed and that they could not be referenced in any manner.
On December 14, 2007, the Judges held a hearing at Mohawk Raceway with respect to allegations that both Mr. Zubkoff and Ms. Lester had been observed tubing horses. They had been notified by the Judges on October 11, 2007 of the alleged violations of the Rules of Standardbred Racing but a hearing was not convened at that time in order to allow both individuals to be represented by legal counsel. Mr. Sternberg represented both Mr. Zubkoff and Ms. Lester with neither testifying at the hearing.
Following the hearing on the 14^th, the Judges issued Ruling Number SB 36551 (Exhibit 1, tab 1) for Mr. Zubkoff wherein he was fully suspended for one year (December 21, 2007 to December 20, 2008) and fined $2,500 for violation of ORC Rules 1.09 and 6.20 (a), (b) and (c). The Judges found Mr. Zubkoff guilty of violating the Rules on the basis “he did “tube” the horse “Tivoli Park” before it raced at Hiawatha Horse Park on August 4, 2007, and when he “tubed” a horse before it raced at Hiawatha Horse Park on September 27, 2007.” Following that same hearing, the Judges issued Ruling Number SB 35577 (Exhibit 1, tab 2) for Ms. Lester wherein she was fully suspended for one full year and fined $5,000 for the violation of ORC Rules 1.09, 6.20 (a), (b) and (c) and 26.02.01. The Judges found Ms. Lester guilty on the basis “that Kelly Lester did allow the horse “Tivoli Park” to race at Hiawatha Horse Park on August 4, 2007 after it had been “tubed” earlier in the afternoon and that Kelly Lester did participate in the “tubing” of a horse at a farm before the horse raced at Hiawatha Horse Park on September 27, 2007.” Kelly Lester is the trainer of record of these horses.
On December 17, 2007, Mr. Sternberg filed a Notice of Appeal for both Mr. Zubkoff (Exhibit 1, tab 3) and Ms. Lester (Exhibit 1, tab 3). In both instances he requested a stay of the Rulings against his clients and included reasons for each. On December 18, 2007, the Director of the Commission, Mr. John Blakney, issued Ruling Number SB 204/2007 (Exhibit1, tab 4) and Ruling Number SB 207/2007 (Exhibit 1, tab 5) wherein he denied both Mr. Zubkoff’s and Ms. Lester’s request for a stay.
In a letter dated December 20, 2007, (Exhibit 1, tab 7) Mr. Sternberg, on behalf of both Mr. Zubkoff and Ms. Lester, requested the Chair of the Commission to convene a hearing with respect to the Director’s decision to not grant stays for both of his clients. That hearing was held before a Panel of the Commission on January 3, 2008, with an Oral Ruling issued that same day (Exhibit 1, tab 7) granting a stay for both Mr. Zubkoff and Ms. Lester. The ruling stated that the hearing would be “de novo”.
Ms. Latimer argued that with the appellants’ involvement in the tubing of the horses the Judges were correct in finding both of then guilty of violating Rules 1.09, 6.20 (a), (b) and (c) of the Rules of Standardbred Racing. Rule 1.09 provides - “If any case occurs which is not provided for by the rules, it shall be determined by the judges or the Commission as the case may be, in such a manner as they think is in the best interests of racing ...Rule 6.20 states - “a participant shall be guilty of a violation of the rules.

(a) for any conduct which is injurious to racing although not specified by the rules;

(b) for any conduct prejudicial to the best interests of racing; or

Ms. Lester was also found guilty by the Judges of violating SB Rule Number 26. 02.01,trainer responsibility, as she was listed as the trainer of the horses and thus had the responsibility for their care, custody and control. According to Senior ORC Judge Maertens, it was this reason she was fined $5,000 versus Mr. Zubkoff’s $2,500 fine.

On August 4, 2007, ORC licensee Randy Pullen testified he saw Mr. Zubkoff drive past the farm where he stables his horses in his black truck which was pulling a horse trailer that had horses in it. He decided to follow him to see for himself if the rumours that he had heard were true that Mr. Zubkoff was tubing horses. Mr. Pullen testified that Mr. Zubkoff was at the Spitsig farm every day Hiawatha Horse Park raced as he was able to observe this as he had to pass the Spitsig farm to get to where he stabled his riding horses. He got in his vehicle and drove down the road a short distance to Dwayne Spitsig’s farm where he saw Mr. Zubkoff had gone. He did not get out of his vehicle but drove very slowly, he stated, and after passing by the first time he did a u-turn to look again. On his first pass he stated he saw a horse in cross ties and on his second pass he saw Mr. Zubkoff tubing the horse with Mr. Spitsig assisting. Under cross examination he stated that he did stop his vehicle and observed for about a minute. Mr. Sternberg stated this evidence differed from the Judges’ hearing where he stated he did not stop his vehicle. Mr. Pullen testified that while he has never tubed a horse he has seen it done and is familiar with the process and that he observed a tube in the horse’s nose with Mr. Zubkoff holding the hose above his head in one hand and pouring something into the tube. He testified that it was about one hundred and fifty yards from the road to the barn, that he recognized the horse as “Tivoli Park” as he used to own the horse and that it was very distinctive due to its size and markings. Evidence was entered that the horse “Tivoli Park” did race at Hiawatha Horse Park on August 4, 2007 (Exhibit 7).
Following his observations, Mr. Pullen testified that went immediately to Hiawatha Horse Park which is a very short distance from the Spitsig stable (ten minutes) where he hoped to get the Paddock Judge to come with him and observe Mr. Zubkoff tubing horses. He wanted a witness as he was aware that tubing horses was a violation of the Rules of Standardbred Racing. On arriving at the track he met Senior ORC Judge Maertens whom he had never met before. Judge Maertens testified that Mr. Pullen recounted what he saw and asked him to accompany him to the Spitsig farm. Mr. Maertens told him that he could not and preferred to turn over his allegation to an ORC investigator and that he was not to talk about the matter. The only note in the Judges Report for that day was that ORC investigator Steve Schandlen was contacted by Judge Maertens about the allegation and asked to investigate.
Mr. Maertens testified that he likes to arrive at the track ahead of the other judges when he is the senior official and that he gets there about forty to fifty minutes before the other judges who normally arrive about 4:30 p.m.. This fact is important in that there was testimony that Mr. Pullen, at one time, stated the time of his observations at the Spitsig farm was around 4:40 p.m. on the 4^th. Mr. Pullen testified that he is sure the time was between 3:00 and 4:00 p.m. as he had a horse into race that night and it would have had to be at the track for its Lasix administration before 4.40 p.m. Mr. Pullen also originally stated that the 4^th of August was a Thursday but stated he realized his error when he was interviewed by ORC investigators two months after his allegations of August 4 that the day was actually a Saturday. Judge Maertens notes confirm Mr. Pullen spoke to him that day at 3:40 p.m.
Mr. Sternberg questioned Mr. Pullen’s past relationship with Mr. Zubkoff. Mr. Pullen denied ever threatening Mr. Zubkoff but evidence was presented the he was ordered by the Judges to stay away from Mr. Zubkoff for an alleged threat. He testified there was a second incident three to four weeks prior to the hearing, an on track incident which he reported to the Judges. Mr. Sternberg read from two notarized letters from Kerry Lynn Lester, sister to the appellant, Kelly Lester, and from Stephanie Cook. Ms. Latimer stated she would object to their being entered as exhibits but would allow Mr. Sternberg to utilize them in his cross-examination of Mr. Pullen. Kerry Lynn Lester’s letter affirmed that her boyfriend at the time, Chris Van Schyndel tubed horses for Mr. Pullen from 1995 to 2000 and named the horses. Mr. Pullen testified that he has never used Mr. Van Schyndel to train his horses. Ms. Cook, who is reportedly Mr. Spitsig’s girlfriend, alleged in her letter that she saw Mr. Pullen tube horses when she was stabled at the same training centre. Mr. Pullen testified that the allegation was not true, that while he has seen it, he has never tubed a horse and that Ms. Cook was asked to leave the stable for not caring for her horses and Mr. Spitsig for theft.
Mr. Sternberg asked to enter the two letters after utilizing them in his cross-examination and Ms. Latimer objected as she had stated previously on the basis there had been no disclosure, that they were too prejudicial and that Mr. Sternberg is aware and had the opportunity to ensure Mr. Van Schyndel was present at the hearing but admitted he chose not to pursue the matter. The Panel recessed to consider the objection and ruled after considering the arguments “to uphold Ms. Latimer’s objection to entering the letters from Ms. Lester and Cook respectively. Ms. Latimer was generous to allow Mr. Sternberg to utilize the two letters to cross-examine Mr. Pullen but she did so with the caveat that she would object to entering the two letters as exhibits. Mr. Sternberg had the benefit of the contents of the letters go on the record. Mr. Sternberg, as he is aware and admitted, had the opportunity to ensure the subpoenaed witness was present to testify”.
Paul Harrison is a Senior Judge with the Ontario Racing Commission. He has forty years experience in the standardbred industry. He has been a judge for twenty-five years and was a trainer/driver for fifteen years before becoming a standardbred judge. He testified that he was at Hiawatha Horse Park on August 4, 2007 and was aware of Mr. Pullen’s allegation that Mr. Zubkoff tubed a horse at the Spitsig farm.
On September 27, 2007, he happened to be passing the Spitsig farm on his way from his home to get to the track that day for the races at Hiawatha Horse Park where he was scheduled to work. He testified that on seeing Mr. Zubkoff get out of his truck he decided to stop and observe to see if there was any merit to the allegation of Mr. Zubkoff tubing horses. He was familiar with tubing as he has witnessed it being done previously and therefore knew what he was looking for. His notes indicated the time of day was 3:55 p.m and that he observed the activities for about fifteen minutes. He witnessed Mr. Zubkoff unload a bay horse and put it in a stall in the barn. Mr. Zubkoff then went into a tack room while Kelly Lester took the horse and put it in cross ties in the barn. He stated that he saw Mr. Zubkoff tube the horse while Ms. Lester filled the funnel attached to the hose from a pail a number of times. He stated that the horse that he saw Mr. Zubkoff unload was the same one that was put in the cross ties, that it was a bay horse, that he did not look at that time for other markings but later noted it had a “white rear stocking” and that Mr. Zubkoff raced a bay horse (Starcrazy L)that evening (September 27, 2007) but that he could not be 100% sure it was the same horse without checking the tattoo number but it was the same size and colour.
Mr. Harrison said he had a clear view of the events, that he parked right in front of the open stable door which was about seventy-five to eighty yards in distance from the road and that he got out of his car and went into the ditch to get a better view. Mr. Sternberg argued that there would be insufficient lighting to see but Mr. Harrison did not agree responding that the back door of the barn was open providing lots of lighting. He also used his binoculars which he uses when he judges at the “B” tracks to get a better view. Mr. Harrison drew a map (Exhibit 6) that outlined the location of the Spitsig farm on Blackwell and its relative location to the racetrack. It was consistent with the map Mr. Pullen drew (Exhibit 2) as to the locations and distances of the various places, (Spitsig farm, Pullen stable, Hiawatha Horse Park).
On returning to the track,Mr. Harrison reported what he had observed at the Spitsig farm to the Senior Judge Maertens. The Judges agreed not to scratch the horse according to Mr. Maertens’ evidence and that of Mr. Harrison’s but they opted to have a TCO₂ test conducted on the horse early and again at what would be the normal time. Neither test resulted in a positive TCO₂ test. Mr. Maertens testified that another reason that the Judges decided not to scratch the horse was the investigation to Mr. Zubkoff’s alleged tubing was not complete. Mr. Harrison stated that it is not a rule that the horse had to be scratched.
Mr. Harrison testified that tubing a horse on race day was improper and is bad conduct for racing. The industry has accepted it as bad practice although he could not reference a specific rule or notice to the industry prohibiting it. Tab 8 of Exhibit 1, a July 9 1990 directive to the industry was referenced wherein milk-shaking was prohibited. Milk-shaking is a term whereby an alkalizing substance is administered to a horse by tubing it. This is accomplished by passing a tube into a horse’s nose which then gets it into its stomach. The alkalizing agent acts to counteract the buildup of lactic acid in the horse which causes tiredness in the body. Milk-shaking is conducted on a horse on its race day just prior to the race. Mr. Harrison testified that both milk-shaking and tubing a horse were improper.
During Mr. Sternberg’s cross-examination of Judge Harrison, he became confrontational with the witness. The Chair of the Panel, Mr. Seiling, intervened in his cross-examination to remind him that the witness had already answered the same question. Mr. Sternberg reacted by angrily yelling at the Chair challenging what legal qualifications he had and that the only thing he knew about him was that he was a hockey player. Clearly Mr. Sternberg crossed the line and is both misinformed and incorrect in his allegations as they relate to tribunals, appointees who serve on them and the Chair’s skill sets.
Detective constable Franca Campisi is an OPP officer seconded to the ORC’s investigation unit. She testified that on October 4, 2007 as part of the ongoing investigation of the allegation of tubing against Mr. Zubkoff and Ms. Lester, the investigators set up a surveillance of the Spitsig farm (1820 Church Line) commencing at 12:47 p.m. with four other investigators, and she acted as the scribe. With that responsibility she did not have the “eye” she testified (direct view into the barn) and from her vantage point she could not see very well into the barn because of the angle and lack of light.
At 3:21 p.m. a red car with Michigan licence plates (SFQ532) driven by a female later identified as Ms. Lester, entered the Spitsig farm. It was followed by a black pick up truck with Michigan licence plates (AAZ8498) pulling a horse trailer that had writing on the side of the trailer “Bob Zubkoff” driven by a person later identified as Mr. Zubkoff. At 3:25 p.m. one horse was observed being unloaded from the horse trailer and taken into the barn and about five minutes later one horse was observed being loaded back into the trailer. At 3:32 p.m. the black truck and horse trailer and red car departed the Spitsig farm. The investigators followed them to Hiawatha Horse Park, a trip that took about five minutes with the vehicles passing through the track security checkpoint at 3:38 p.m. The vehicles and trailer were searched but no illegal medications or articles were found. Both Mr. Zubkoff and Ms. Lester were interviewed at that time as well.
Bill Maertens is a Senior Judge with the ORC. He has thirty-three years experience in the industry, eight as a Commission judge and twenty-five as a driver/trainer. He confirmed he was first made aware of the tubing complaint against Mr. Zubkoff on August 4, 2007 when Mr. Pullen met him at Hiawatha Horse Park. His notes indicated he arrived at the track around 3:30 p.m. and that he met Mr. Pullen at 3:40 p.m. that day. The next time he was made aware of a similar allegation was on September 27, 2007 when Judge Harrison reported to him what he had observed earlier at the Spitsig farm. He stated that he attempted to contact Rob McKinney who at the time was in charge of investigations for the ORC but was unable to and ended up talking with Jeremy Locke from the investigations unit who informed him that the investigation on the tubing allegations was not complete. The next day he had a conversation with Detective Sergeant Schandlen so he could interview Judge Harrison, and he also was updated on the investigation. He also revealed that as a result of an unresolved incident in Ohio, a prior agreement with Mr. Zubkoff was in place at that time whereby all of Mr. Zubkoff’s horses that raced in Ontario would be TCO₂ tested.
Mr. Maertens testified that both appellants were found guilty of tubing horses prior to a race and thus were guilty of violating SB Rules Number 1.09 and 6.20 (a), (b) and (c) as these actions were prejudicial to racing as the only possible reason was to try and affect the outcome of the races involved. Ms. Lester was guilty of violating SB Rule Number 6.20.02, trainer responsibility as the trainer she was responsible under the rules for the care, custody and control of the horses. Trainer responsibility remains the lynchpin for regulators to ensure the health of all racehorses, which is a key responsibility of the Commission. He acknowledged that there was no positive test for TCO₂ but that did not change the facts. He also added that in tubing a horse, it could be detrimental to the health of a horse and that he had prior experience in that regard.
Judge Maertens testified that horsemen have become sophisticated in their efforts to avoid

getting a TCO₂ positive test in that when they tube a horse they use just enough of the alkalizing agent to stay under the permitted TCO₂ legal limit. He did not know what products horsemen are using but stated they could be products regulators are not aware of but the sole purpose of tubing before a race was to affect the outcome.

25.When Ms. Latimer, during her submission, tried to deal with the penalty aspect, Mr. Sternberg objected but the Panel instructed her to proceed as it wanted to deal with it together as is the normal practice at Commission hearings. She also asked to enter the race lines of the horse “Tivoli Park” as an exhibit but Mr. Sternberg objected on the grounds that they were not included in the document book. Ms. Latimer stated that the lines were included in the disclosure package and that there was no requirement to include everything in the book of documents. The Panel ruled to allow the race lines to be entered as Exhibit 7. The lines showed that “Tivoli Park” raced at Hiawatha Horse Park on August 4, 2007 finishing 3rd by three lengths in a time of 1:56.1.

Mr. Maertens testified that the Judges looked at past history of tubing and the history of the appellants in determining the appropriate penalty. Ms. Lester had a clean record with Mr. Zubkoff having a November 8, 2000 positive test likely for a Class V drug and that they were aware of a Ohio violation but did not consider it as it was not resolved but they thought it likely was related to TCO₂given the agreement for all his horses that raced in Ontario to be tested.
It was difficult finding similar circumstances as it was the first time eyewitnesses had come forward to testify on the tubing of a horse. They also looked at a 1992 Ruling involving a Mr. Vanneste (Exhibit 9) where he was suspended a year and fined $5,000 that was reduced on appeal to 6 months and $2,500 as there were extenuating circumstances because a vet was involved in the tubing. A 2004 decision involving Mr. Bruyere was also referenced wherein Mr. Bruyere was suspended for three years. He was found guilty of assisting in the tubing of a horse where the tube on being inserted through the nose entered the trachea with the tube then going into the lungs instead of the stomach. When the liquid was administered it went into the lungs, in effect drowning the horse. The effect on the horse was such that it had to be euthanased. Judge Maertens stated that Mr. Zubkoff’s actions were a direct challenge to the integrity of racing on at least two occasions and possibly a third that they were aware of. The penalty had to be such that it was punitive and that it sent a message to the industry for the need of a level playing field. The penalties were within the published guidelines of the Commission with Ms. Lester receiving the additional $2,500 fine as the trainer of record.
It was agreed by both parties that Dr. Bruce Duncan could testify as an expert witness in veterinary medicine. His CV was included in Exhibit 1, tab 9, page 3. Dr. Duncan is currently the Supervisor of Veterinarians for the Commission. He has a vast knowledge of horses as he has specialized in large animals (horses), owned his own stable of racehorses, operated his own horse clinic and is a past member of the Ontario Racing Commission. He also testified at the Bruyere hearing re the pitfalls of tubing horses. It was his position that tubing is not in the best interests of racing and can negatively impact the public’s perception of the sport.
Tubing as per Dr, Duncan’s explanation, is the passing of a nasal gastric tube through the nose of a horse into its stomach. In the past it was used to worm horses and still is utilized today to treat forms of colic and impactions. It is a legitimate process if used by veterinarians or veterinarian assistants but should not be used by untrained individuals according to Dr. Duncan. The reason is that tubing can cause tissue damage from the nose to the stomach, damage large blood vessels and damage the back of the throat. Dr. Duncan confirmed that tubing by an untrained person could pass the tube into the trachea with the tube then entering the lungs. Disastrous results can occur if this happens as the Bruyere case indicates, as this would cause any liquid poured into the tube to then enter the lungs. He also confirmed he has observed via a scoping service he once offered, damage to the back of the throat on horses from tubing.
Dr. Duncan testified that there was no benefit to the tubing of a horse on race day as it is invasive and can cause damage. If a horse had to be tubed for an impaction, or dehydration for example, on race day, it should not race as it would not be fit, health wise. In terms of administering legal products into a horse, he testified that there are better ways such as using a syringe. He agreed that horsemen often treat their own horses going so far to do injections but disagreed as it related to tubing.
Regarding advertised carbo load products, Dr. Duncan agreed that they are legal as they contain mostly carbohydrates for energy but may have some alkalis in them. He also confirmed that the lack of a TCO₂ positive test is not proof that a horse has not been tubed with some type of milk-shake (alkalising agent). He stated that some horsemen now use a practice called tettering, that allows them to milk-shake the horse and avoid getting a positive test by administering just enough of the alkalizing product to stay under the legal limit set by the Canadian Pari-Mutuel Agency.
Mr. Sternberg, in presenting his defence, informed the Panel his clients had chosen not to testify and stated he wanted to play the tapes of the testimony of both Mr. Pullen and Judge Harrison from the December 14, 2007 Judges’ hearing. Ms. Latimer objected strongly on the basis the Panel had heard their testimony vive voce, the witnesses had been excused and that if the tapes were to be utilized, it is normal to do it during the cross-examination of each witness. Mr. Sternberg argued that the Chair had stated earlier in the proceedings that he could play the tapes later when he had raised the matter. The Chair responded that he did agree but was not aware this was the context that Mr. Sternberg had intended. The Panel ruled that the tapes of the two witnesses could be played but there would be no discussion about them and that it would assign the appropriate weight. In ruling, the Panel noted that Mr. Sternberg, as an experienced lawyer, was aware that the tapes, if they were to be utilized in this fashion, should have been incorporated into his cross-examination of the respective witnesses and that he was being given this permission as part of the ongoing policy at the Commission of being as fair and lenient as possible to all appellants and that the appropriate weight would be given to them.
A brief recess was taken to allow a tape player to be found and the appropriate sections of the tapes to be found as Mr. Sternberg stated he had not reviewed them prior to the hearing. The full interview of Mr. Pullen was played with Mr. Sternberg stating that only the cross- examination of Judge Harrison’s testimony need to be heard. Due to a technical problem regarding the reproduction of the tapes, only a portion of Judge Harrison’s testimony could be played. Mr. Sternberg was given the option of having the hearing adjourned until Monday morning at 9:00 a.m. when the rest of the tape could be played or continuing on utilizing his notes. He opted to continue with the hearing.
Mr. Sternberg argued that his clients cannot be found guilty of violating any ORC rules regarding tubing as there is no such rule and there has been no directive issued banning the practice. Therefore it is permitted and it is unfair to penalize them. There are numerous legal products that could be administered to a horse in this fashion he stated.
The only directive close to the matter was the 1990 directive banning milk-shakes. He argued that in the 2004 Bruyere Ruling, Vice Chair of the Commission, Mr. Todd, stated in the Ruling on page 5, second paragraph “One might wonder why the Administration would not consider steps to prohibit and/or control an obvious and prevalent practice in the industry that, as presently practised, is clearly not in the best interest and welfare of the horse.” The Commission does send notices out regarding matters it wants the industry to be aware of and he referenced the notices the Commission distributed to the industry regarding Doctors Kennedy and Flanagan.
Mr. Pullen’s testimony, according to Mr. Sternberg, should not be believed as his actions were based on a previous grudge against Mr. Zubkoff. Regarding Judge Harrison, he claimed that he is not certain what horse was in the cross ties that he testified that he saw being tubed and what horse Mr. Zubkoff raced that night, September 27, 2007, at Hiawatha Horse Park and that Ms. Campisi’s testimony proved you could not see into the barn. It was his position there was no vive voice evidence given to prove Ms. Lester was the trainer of record for the horse “Tivoli Park” however, Exhibit 5, the program page for the tenth race at Hiawatha Horse Park for September 27, 2007, indicates that Ms. Lester is the trainer of record for the horse “Starcrazy L” and Exhibit 7 she was the trainer of record for “Tivoli Park”.
Mr. Sternberg argued that if the actions of his clients were prejudicial to racing, the horses should have been scratched and not allowed to race. Because the horses were not scratched, it was his position it proved the Judges believed the actions were not prejudicial. The Commission, he argued, has overturned Judges’ ruling regarding Rule Number 1.09 in the past, most recently, the appeal by licensees regarding Coggins’ Tests being taken by suspended veterinarians Kennedy and Flanagan.
It is unfair to his clients to burden them with the suspension given this is the first such incident of alleged tubing Mr. Sternberg claimed as it would take away their livelihood and therefore the Panel must use the test of clear and convincing evidence. The Chair reminded Mr. Sternberg he has raised this issue before in a hearing and was reminded at that time what the standard of proof is in administrative law. Ms. Latimer argued that the standard is a balance of probabilities and referenced the Stetler case and stated that she did not have a copy at hand to reference with the Chair responding the Panel was familiar with the case.

Issue

Did Mr. Zubkoff and Ms. Lester tube horses entered into race prior to those races and is tubing prejudicial to horse racing? Is the tubing of horses by persons other than a veterinarian or veterinarian assistant a threat to the health of a horse? If the appellants did tube horses prior to a race that they were entered into, did they violate the Rules of Standardbred Racing, Rule Numbers 1.09, and 6. 20 (a), (b) and (c) and for Ms. Lester 26.02.01?

Decision

After carefully reviewing the evidence and reading the exhibits, the Panel rules to deny the appeals of both Bob Zubkoff and Kelly Lester. The penalties for both appellants remain, full one year suspensions with the date of commencement to be worked out with the Judges but neither appellant can enter a horse into race or commit to drive in a race in the province of Ontario commencing on the date of the release of this Ruling. The fines remain the same as ordered by the Judges, $2,500 for Mr. Zubkoff and $5,000 for Ms. Lester. At the expiry of their respective suspensions both appellants must demonstrate convincing reasons to the Director why they should be licensed in the province of Ontario. An Ontario Racing Commission license to participate in racing in Ontario is a privilege, not a right, and licensees must conduct their affairs on that basis or suffer the consequences. Before Mr. Zubkoff can petition the Director to have his Ontario licence reinstated, he must first resolve the “Ohio” situation to the satisfaction of the Director.

Reasons for Decision

This hearing, as are all appeals before a Panel of the Commission a “de novo” hearing and thus the basis for the decision is the vive voce evidence, the documentation filed including references to any legal precedents that may impact on the case.
The actions of both Mr. Zubkoff and Ms. Lester, even though there is no specific rule, are both prejudicial and injurious to standardbred racing. The Judges were right to find both in violation of Rule Numbers SB 1.09 and 6.20 (a), (b) and (c). As the testimony indicated, the only reason to tube a horse on race day is to enhance performance with the objective to gain an unfair advantage. This cheats the other participants, the overwhelming majority who play by the rules, and who expect to compete on a level playing field. It also cheats the public, a public that the industry depends on to support it with their wagering dollars. If that public perceives the “game” not to be fair, it can and will flee to other competing forms of entertainment.
The Panel agrees with the testimony of Judge Harrison that horsemen are aware that it is not right to tube a horse on its race day. Proof of this statement was the testimony of Mr. Pullen. Therefore a special directive is not required given the evidence that the industry is already aware.
There is no doubt from the evidence that both Mr. Zubkoff and Ms. Lester were observed tubing horses at the Spitsig farm. With Mr. Zubkoff doing the tubing with Mr. Spitsig on August 4, 2007 on the horse “Tivoli Park” and Mr. Zubkoff and Ms. Lester tubing the horse “Starcrazy L” on September 27, 2007. Both horses raced later those same respective dates at Hiawatha Horse Park as the evidence indicated. Furthermore, Ms. Lester was the trainer of record for both “Tivoli Park” and “Starcrazy L” and with that bears the trainer responsibility under SB Rule Number 6.02.01.
Tubing is a threat to the health of the horse. The Panel accepts Dr. Duncan’s expert testimony that only a veterinarian or a veterinarian’s assistant should tube a horse given the potential damage this invasive act can cause to the horse. Their actions put at risk, un-necessarily, the health of both “Tivoli Park” and Starcrazy L”. Furthermore, there are better ways to administer products to a horse than tubing, if required, and if tubing was necessitated on a race day, the horse would not be fit to race.
The tubing was witnessed on two different occasions by eyewitnesses who gave vive voce evidence at the hearing. The Panel accepts Judge Maertens opinion which is based on thirty- three years of experience in the industry, that the only reason to tube a horse prior to it racing is to enhance performance. No counterbalancing testimony was given as to why the horses were tubed or as to what products were administered. The Panel recognizes the issue at hand is not for a TCO₂ positive test but accepts as Dr. Duncan testified that horsemen have become proficient in administering alkalizing products of some type to stay just under the limit for a positive TCO₂ test.
The Panel views the evidence of ORC Investigator Campisi important as it, taken with the evidence of both Mr. Pullen and Judge Harrison establishes a pattern of trucking the horse to the Spitsig farm just prior to their arrival at Hiawatha Horse Park. In each case, the time between arrival of between 3:00 p.m. to 4:00 p.m. is for a very short duration in time of what appears to be about fifteen minutes. As per the maps drawn by both Mr. Pullen and Judge Harrison, the appellants had to go out of their way to make this trip. Regarding her testimony of not being able to see into the barn, it is reasonable that she could not given the angle of her sight line and the possibility the back barn door was not open as it was when Judge Harrison made his observations.
The Panel accepts both Mr. Pullen’s testimony and Judge Harrison’s testimony that the horses they witnessed being tubed were in fact “Tivoli Park” for Mr. Pullen and for Judge Harrison “Starcrazy L”. “The former raced on August 4, 2007 and the latter on September 27, 2007, both at Hiawatha Horse Park as the exhibits indicate. As a former owner of the horse “Tivoli Park”, it is reasonable to expect that Mr. Pullen would recognize the horse given its distinctive size and markings. Given Judge Harrison’s experience in the industry when he testified that the horse was the same size and colour that he observed at the Spitsig farm and then race that night, it is reasonable to expect the horse was “Starcrazy L”, especially given the established pattern of events. As well, testimony was given that at that time neither of the appellants had any other horses stabled at the Spitsig farm.
The Panel accepts Mr. Pullen’s reasons for going to report what he saw on the Spitsig farm on August 4, 2007 between 3:00 p.m. and 4:00 p.m. that he wanted to see for himself, if the rumours about Mr. Zubkoff tubing horses were true. He knew the tubing of horses is against the rules and he wanted a level playing field to compete. The unsubstantiated allegations of a grudge against the appellants is discounted as no witnesses were present to testify and it is reasonable to expect that in a competitive sport like horse racing there will be some form of conflict between participants. His confusion to the time is reasonable given the possible memory lapse over time but with the evidence available that confirms his time checking in with his horse for its Lasix treatment at the track on the 4th his time estimate for being at the Spitsig farm is accepted. Similarly, is his recount of how long he was at the Spitsig farm that day and whether he remained in his vehicle or got out. As Judge Maertens testified, Mr. Pullen was very excited when he reported to him at the track as to his observations and Judge Maertens also confirm the time of day he first met Mr. Pullen on that day, 3:40 p.m.
The Panel accepts Judge Harrison’s accounts of what he saw on September 27, 2007, and how he happened to pass by the Spitsig farm on his way from his home to the track and for his reason for stopping given his awareness of Mr. Pullen’s allegation of tubing. His testimony of there being sufficient light to witness the tubing is convincing given he testified that the back door of the barn was open and especially since he viewed the process with binoculars as well as his naked eye. With his forty years of experience in the industry, the Panel accepts his testimony that the industry is aware that horsemen are not to tube horses on race day and that it is bad conduct. He is familiar with tubing and as such it is incidental as to how many times a substance was being poured into the tube. While there is no specific rule covering tubing, given Judge Harrison’s testimony, the Panel believes SB Rule Number 1.09 is sufficient to cover the issue.

51 With respect to why not scratch the horses from racing, Judge Maertens’ explanation for the August 4, 2007 is reasonable given that all he had at the time was an unsubstantiated allegation from Mr. Pullen. With respect to September 27, 2007, the Panel accepts his answer that with there being no positive test for TCO₂ on the early test and that the investigation was not complete they let the horse “Starcrazy L” race.

This appeal is the first involving an alleged rule violation for tubing. This is a result, in the view of the Panel, because this is the first time eyewitnesses have come forward and been willing to testify. They are to be congratulated for their commitment to the integrity of the sport and to ensuring the health of the horse. Both matters are a responsibility of this Commission and one it takes very seriously. It is important that all licensees understand that the tubing of horses on their race day is prejudicial and not in the best interests of racing and will not be tolerated.
The burden of proof before administrative tribunals is the subject of comment in the Reasons for Decision in the Appeal of SB Licensee Brian Scott, August 1, 2007 as follows:
“8. As endorsed by the Divisional Court in L.S.U.C. v. Neinstein March 19, 2007:

“While the civil standard of a balance of probabilities applies in the professional discipline context the authors say:

Probability depends on the circumstances and where there are serious consequences at issue, a higher or more rigorous evidentiary standard must be met for the fact to be found probable. This more rigorous approach to the evidence involves a qualitative assessment of the evidence for cogency and persuasiveness in determining whether the fact in question has been demonstrated to be probable.”

“9. The standard of proof issue is resolved by Stetler v. Agriculture 2005 (76) O.R. 321 ONT. C.A.. Although generally categorized in administrative matters as being on the balance of probability, by reason of vital issues relating to employment and more distantly to livelihood, “clear, cogent and convincing” evidence is required (Bernstein Standard). See “Coats v. Registrar 1988 CanLII 4555 (ON HCJ), 1998 65 O.R. (2nd) 526).” For further information on this issue, please refer to Administrative Law by David T. Mullans, 2001, p. 97 and 98, Onus and Standard of proof re Further discussion Bernstein and Stetler.

DATED this 13^th day of March 2008.

Rod Seiling

Chair