John DiMarco v. Ontario Racing Commission, 2008 CanLII 88998

RULING NUMBER COM TB 006/2008

COMMISSION HEARING TORONTO, ONTARIO – SEPTEMBER 23 & 24, 2008

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

Thoroughbred licensee John DiMarco appealed a decision of the Stewards with respect to his penalty for a positive test for the Class I drugs codeine and morphine for the horse, More the Mari’er which raced at Woodbine Racetrack on November 29, 2007.

On September 23 and 24, 2008, a Panel of the Commission consisting of Chair Rod Seiling, Commissioners Brendan Walker, and Bernard Brennan, DVM, convened to hear the appeal.

Luisa Ritacca and Brennagh Smith appeared as counsel for the Administration. Larry Todd appeared as counsel for John DiMarco.

After hearing the testimony of the witnesses, and considering the exhibits filed, the Panel denies the appeal. The suspension is for a period of twelve months (March 8, 2008 to March 7, 2009 inclusive). However, in recognition of the previous good record of the appellant, the last two months of the suspension is subject to a stay. If, in the next two years Mr. DiMarco commits any medication rule violation, the stayed portion of the penalty will be added to the penalty the Stewards impose for the violation. The fine of $5,000 remains as levied.

The Panel gave oral reasons for the Ruling, a copy of which is attached hereto.

DATED this 22nd day of October 2008.

John L. Blakney

Executive Director

Overview

Thoroughbred licensee John DiMarco appealed a decision of the Stewards with respect to his penalty for a positive test for the Class I drugs codeine and morphine for the horse, More the Mari’er, which raced at Woodbine Racetrack on November 29, 2007.

Background

On September 23 and 24, 2008, a de novo hearing was held to hear Mr. DiMarco’s appeal. Legal counsel for the appellant was Mr. Larry Todd with Ms. Luisa Ritacca and Ms. Brennagh Smith representing the Ontario Racing Commission (ORC). Prior to this incident Mr. DiMarco, in his thirty-five years as an ORC licensee had only one rule violation on his record, a fifteen-day suspension for a medication infraction for bute.
The Stewards, subsequent to receiving the official notice of a positive test (Ex. 1, tab 1) issued a thoroughbred ruling, (TB) No. 5246/08 (Ex. 1, tab 2) suspending Mr. DiMarco for a period of one year, March 8, 2008 to March 7, 2009 and fining him a sum of $5,000. The horse was also unplaced as per TB Rule No. 15.04.03 from its third place finish but this aspect of the penalty was not under appeal. The basis of the penalty was that the Stewards found him to be in violation of TB Rule No. 15.06.01 (a) & (b). The rule is fundamental to the protection of the health and welfare of the horse and the integrity of the sport. Perception by the public that horses are mistreated via non therapeutic drugs, which both codeine and morphine are or allowed to be administered performance enhancing drugs, can and will ring the death bell for an industry that depends on public support for its survival.
Prior to issuing their ruling, the Stewards held a hearing on February 12, 2008, at which Mr. DiMarco was present and was afforded the right to legal counsel.
Mr. DiMarco was the trainer of the horse, More the Mari’er. He entered it in to race at Woodbine Racetrack for a $7,500 claiming event scheduled for November 29, 2007. Trainers, under the Rules of Thoroughbred Racing, Rule No. 15.06.01 (a) & (b) have a responsibility to protect the health and welfare of each horse under his or her care. Included in this duty is to ensure that the horse is not administered any illegal medications which both codeine and morphine are as they are listed as Class I drugs under the Uniform Classification Guidelines for Foreign Substances (Ex. 2, tab 4). Part (b) of this rule provides that if the trainer does not protect the horse, he/she bears the responsibility.
More the Mari’er was randomly selected for a post race test. An analysis of the urine sample from More the Mari’er (Ex. 3, tab 3) resulted in a positive test for the Class I drugs codeine and morphine. Mr. Todd and Ms. Ritacca agreed that the horse tested positive for the two drugs and that both are Class I drugs notwithstanding the information contained in her factum, (Ex. 2, tab 4), under the Uniform Classification Guidelines for Foreign Substances.
Counsel were in agreement that there were no issues in relation to the collection of the sample, the chain of custody or the testing procedures and protocols employed by Cantest Labs. Cantest Labs is designated as the official laboratory by the Canadian Pari-Mutuel Agency (CPMA). The official racing chemist, Virnolia Robillo, confirmed that normal operating procedures and safeguards were followed to ensure the sample was intact and matched the code assigned to it by the test inspector at Woodbine, 2106182 EIPH. This information along with the official Certificate of Analysis and summary of the analytical results were all contained in Ex. 1, tab 1. Ms. Robillo did the initial screening test. This test indicated the presence of both codeine and morphine in the urine sample. Subsequent tests (three) were conducted to confirm the positive results, including a review by another official racing chemist. Her testimony was not challenged by way of cross-examination.
Ms. Barbara Morrissey, Director, Forensic Equine Drug Testing Services for Cantest Labs testified as an expert witness for the respondent. Ms. Morrissey is an accredited official racing chemist in her own right, confirmed that there were, at a minimum, four separate tests (Ms. Ritacca suggested six in her closing submission) conducted on the urine sample, 2106182 EIPH that showed a positive for the two drugs. These tests are normal procedure in confirming the positive results at their lab for both codeine and morphine. She testified that there was no contamination of the sample during the testing process as the initial test identified the drugs in their conjugated state. The significance being that with the drugs in this state it provided incontrovertible proof that there was no contamination of the sample as the drugs had to pass through the horse to be found in this state.
Ms. Morrissey testified that morphine is a metabolite of codeine. This fact is confirmed by tabled research documents, (Ex. 3, tab 17, #9, p 396). The positive test results for both codeine and morphine could signal that the horse was exposed to just codeine or to a combination of codeine and morphine. She could not conclusively state how the drugs got into the horse’s system.
Dr. Tobin, a veterinary doctor, pharmacologist and toxicologist testified as an expert witness for the appellant. He suggested in his report (Ex. 3, tab 17, p7) that the sample could have been contaminated resulting in the positive test results. Ms. Morrissey explained, and was unchallenged, that her difference of opinion with Dr. Tobin’s report could be that he would not have been aware, from the litigation package (Ex, 1, tab 1), of all the methodologies utilized by her Cantest Lab in conducting the tests on the sample. Subsequent discourse between the parties confirmed that the litigation package did not cover all the testing procedures carried out by the lab.
The residue of the urine sample of More the Mari’er was re-tested by Dr. Steven Barker from Louisiana State University. (Ex. 1, tab 7). It confirmed the presence of the two drugs, codeine and morphine at concentrations of 1.0 ng/ml and 23.9 ng/ml respectively. It was agreed that both are relatively low levels with Dr. Tobin suggesting that they were less than trace levels. Canadian Pari-Mutuel Agency (CPMA) regulations do not require quantitative testing. Any quantity of these Class I drugs results in a confirmation of a positive test. The CPMA only does quantitative testing on therapeutic medications and is well recognized for its work in this area. Both codeine and morphine, being Class I drugs are not and therefore are not subject to quantitative testing (Ex. 1, tab 8).
Dr. Michael Weber, (DMV), is the Manager of the Veterinary Services for the CPMA. He was not available to testify in person at the hearing, however his written, expert report was admitted as evidence (Ex. 1, tab 8). The report revealed that codeine and morphine (both analgesics drugs) could be used to counteract pain and to alter both the mood and behaviour of a horse. Both drugs can affect performance of a horse. This opinion was supported by submitted documentation that was not challenged (Ex. 3, tab 17, att. #3, p. 1523). It reads, “narcotic analgesics are often used in equine medications to control pain and occasionally for their central stimulant actions.” It goes on to say that because of these actions that in performance horses these drugs are usually banned. Other unchallenged submitted data (Ex. 1, tab 9, p. 65) indicated that low doses of these drugs can have significant stimulating effects. The drugs can also affect locomotor activity in a horse according to Dr. Weber and it is in this aspect the “no dose effect” has merit. Dr. Tobin agreed with the painkiller supposition but not with the mood/behaviour aspect.
Dr. Tobin was emphatic that there would be no pharmacological effect of the drugs on the horse at the agreed upon levels. The basis for his opinion was what he termed a “no dose effect”. To back up his claim he cited an attachment to his report that referenced a study (Ex.3. tab 17, p1527) and stated that the levels in More the Mari’er were 1000 times below the “no dose” limit. He also claimed that at this level the drugs would not affect mood and or behaviour as cited by Dr. Weber in his report (Ex 1, tab 8, p 2 of # 2). Dr. Weber maintained in his report that the “no dose” effects were relative to only the locomotor aspects of the horse.
Central to the issue of the low levels of the drugs and agreed to by the parties were both the amount of dosage/exposure and the time of the dosage/exposure. The parties agreed that the low levels could be the result of either a low dosage administered/exposure relatively close to the time of the sample being taken or a higher dose/exposure at a time further out from the sample time.
Ms. Morrissey agreed with statements read into the record by Mr. Todd that research has proven that a horse can have and has had a positive test for morphine from either environmental contamination or the ingestion of poppy seeds. Furthermore, that any level below 110ng/ml could be consistent with the ingestion of poppy seeds (Ex. 1, tab 9 b, p 358/9). Unchallenged testimony was given as to the prevalence of morphine in a variety of substances other than just poppy seeds or its derivatives, such as hay, plants, milk, etc. (Ex.1, tab 9b, p 355 & 359).
In response, some foreign jurisdictions acted, following this published research confirming these facts and have enacted threshold limits of 50ng/ml to 100ng/ml for morphine but nothing relative to codeine (Ex.3, tab 17, att. 7). Ms. Morrissey contended the research was fine except as it related to the morphine positive but it did not explain the codeine found in More the Mari’er’s test results. She could find no literature that would explain the presence of codeine in the urine of the horse. According to Dr. Tobin there have been no studies in this area.
Ms. Morrissey confirmed that there are studies identifying trace amounts of morphine produced endogenously in mammals, however, no studies have identified the endogenous production of codeine in mammals.
The Australian research tabled (Ex 1, tab 9, c) confirmed the environmental aspect. That is the ingestion of poppies can result in the detection of morphine in the urine of the subject horses. On cross-examination, Ms. Morrissey testified that if the horse had ingested poppy seeds, based on the literature, it would not show positive for both codeine and morphine. Dr. Barker, in his unchallenged report (Ex. 1, tab 7) disagreed. No research has been done in relation to codeine (Ex. 1, tab, 9) and confirmed by Dr. Tobin. Supporting this fact is a 1990 study on racehorses in Eastern Australia, which were fed poppy seeds. The urine samples, which were tested, detected morphine but no codeine (Ex. 1, tab 7, p 6).
Dr. Tobin’s explanation for the codeine found in More the Mari’er’s urine was from a human source contamination citing the propensity of the horse to lick, as cited by Mrs. DiMarco and the wider availability of codeine products from pharmacies in Canada.
A positive test result for morphine and codeine from contamination and or the ingestion of poppy seeds or their derivatives was just one possibility amongst others according to Ms. Morrissey. She contended that the positive test results could also be the result of the administration of the drugs codeine and morphine either together or separately. It was also her unchallenged position that one could not tell from the results how the drug got into More the Mari’er’s system nor could the results indicate whether the drug was administered in a small amount closer to the test time or a higher amount further out in time from the test. Dr. Tobin agreed with Ms. Morrissey, albeit reluctantly.
A positive test for the two Class I drugs, codeine and morphine is a rarity in Canada. Figures were provided showing that in the last ten years out of about one hundred and forty thousand tests, only five positive tests have occurred for both codeine and morphine. Furthermore, in 2007, out of fourteen thousand tests only one positive test, that for More the Mari’er, has occurred. Ms. Morrissey testified that there have not been any cases of environmental morphine positives in Canada. Dr. Tobin claimed the numbers proved the sporadic nature of the incidents of the environmental exposure for horses. No positive tests occurred that racing day at Woodbine on November 29, 2007 other than that for More the Mari’er. No other positive tests occurred in 2007 or 2008 in Canada.
ORC investigator Rick Grant, on being notified of the positive test, reported back to the ORC officials (Ex. 3, tab 6) after conducting a search of Mr. DiMarco’s allotted area within Barn 10 at Woodbine, and interviewed his employees and veterinarian. The search included the stalls, two tack rooms in which he stored feed, tack and medications and his hay storage shed outside the barn area. The search did not uncover any evidence that could be said to cause the positive test nor did Mr. Grant observe anything out of the ordinary in his operation. However, the search did reveal an empty container of Tylenol 3, a potential source of the codeine, on the seat of the DiMarco vehicle.
Those interviewed by investigator Grant included Mr. DiMarco, veterinarian, Dr. Vatcher, his employees, wife Mary, son Ralph, and groom Joe Blandford as well as former employee John Wilson. The interviews did not reveal anything out of the ordinary. No one could explain the positive test. The DiMarco’s were well regarded and Dr. Vatcher did not treat the horse with any medication that would cause the positive tests for either codeine or morphine. The interviews did reveal both Mr. DiMarco and his son take oxycodone (agreed not the cause) and that he had another son, Frank, who used to work for him but had been ruled off the Woodbine property by the track for drug dealing. Mr. DiMarco told the investigator that he was shocked by the news of the positive test. Transcripts of the witness interviews were included in Exhibit 3, tabs 7 thru to 12.
Mr. Grant confirmed that Mr. DiMarco bought his feed from the Nobleton Feed Mill, and that he used two types of feed, Trimax Horse Complete and Fast Track. Neither of these feeds contains poppy seeds or their derivatives (Ex. 5) as confirmed by Ms. Cheryl Green from the feed mill. She did not rule out the possibility of contaminants. Nobleton Feed has supplied Mr. DiMarco this feed for ten years plus according to him, without any problems. During that timeframe More the Mari’er has been tested post race without any positive results. Nobleton also supplies many other trainers with similar feeds at Woodbine. There was no evidence submitted that any problems resulted from the feed or with the supplier of hay, Steve Phillpott. Mr. DiMarco admitted that he never asked to have the hay or feed tested either before or post infraction for possible contamination.
Mr. DiMarco is a hands-on trainer operating a relatively small stable. He confirmed that he does understand his responsibility as a trainer under the rules of thoroughbred racing. He does not employ extra security or utilize security cameras as he said other operations of his size do not. He relied, as do other trainers like him, on Woodbine’s security system. It consists of a high fence surrounding the entire stable area with access only via a twenty-four seven-staffed security gate. WEG security restricts access to the stable area to ORC licensees and their guests. The track also augments the security with twenty-four hour internal security patrols. Anyone, once they have entered the Woodbine backstretch, has access to the entire barn area.
Mr. DiMarco kept his tack rooms, medication box and hay storage shed locked. He testified he had the only key but that he would leave that key with his son if he had to be away. No testimony or evidence was submitted as to any policies or procedures that were to be followed in the absence of Mr. DiMarco. His wife Mary was responsible for the mixing and preparation of the feed for the horses. They fed their horses on a regular schedule but the afternoon feed, once mixed by Mrs. DiMarco, would sometimes be left in front of the respective horse’s stall. Further, there was no mention of any daily records related to control and security within his stable area.
Mr. DiMarco confirmed that he had patronized the same feed and hay suppliers for many years without any problems. He also confirmed that Exhibit 5 was a copy of the two feed mixes including ingredients that Nobleton Feed had been supplying to him for many years and that same feed company provides similar feed supplies to many other trainers on the Woodbine backstretch, all without incident. Mr. DiMarco testified that his son hired a person who looked after More the Mari’er post race but Mr. DiMarco (senior) did not know anything about this person.
Dr. Tobin advocated strongly that the positive test had to come from environmental sources citing the experience in other jurisdictions as they relate to morphine. The reason is the wide variety of products in which morphine/poppy seeds or their derivatives are found in the food and the environment. . He cited products such as hay, milk, lettuce to name just a few.
Dr. Tobin suggested the outbreaks of Environmental Morphine Identification (EMI) are sporadic in nature. It was his belief that the numbers of positive tests proved his supposition. However, he could not explain the presence of codeine in More the Mari’er’s urine other than the possibility of the ready availability of codeine “over the counter” in this country and due to changing cultures in this country, and those who concoct their own mixtures. He did admit it would also be relatively easy to administer codeine to a horse given that same availability.

Issues

Was the positive test for codeine and morphine on the horse More the Mari’er the result of environmental contamination or was one or both of the drugs administered to it? If the drugs were administered to the horse, did John DiMarco violate TB Rule No. 15.06.01 (a) & (b)? If the Panel rules in favour of the respondent, is the penalty imposed on Mr. DiMarco appropriate?

Decision

After a careful review of the admissions by counsel, the testimony of the witnesses, the exhibits filed and the submissions of counsel, the Panel denies the appeal. The suspension is for a period of twelve months (March 8, 2008 to March 7, 2009 inclusive). However, in recognition of the previous good record of the appellant, the last two months of the suspension is subject to a stay. If, in the next two years, Mr. DiMarco commits any medication rule violation, the stayed portion of the penalty will be added to the penalty the Stewards impose for the violation. The fine of $5,000 remains as levied.

Reasons for Decision

Under Section 7 of the Racing Commission Act, 2000 the Commission has power to govern, direct, control and regulate horse racing in Ontario in any and all of its forms. Under the Rules of Thoroughbred Racing both codeine and morphine are designated Class I prohibited drugs, with both having the highest potential to affect performance and no generally accepted medical use in the racing horse. The classification levels are established by the “Uniform Classification Guidelines of Foreign Substances as promulgated by the Association of Racing Commissioners International Inc.” and adopted by the Rules of Thoroughbred Racing (per Rule 15.05.01).
In reaching its decision, the Panel accepts the testimony of Ms. Morrissey supported by Dr. Weber’s evidence over that of Dr. Tobin. Ms. Morrissey would not conclude but offered opinions re possibilities as per her expertise. Dr. Tobin, on the other hand, advocated strongly that the positive was the result of EMI. The role of an expert witness as per the Manual for Ontario Adjudicators as found on p.113, para 4 is described as the following, “if the expert is to assist, he or she must participate as an independent scientist or professional rather than as an advocate for his or her client.” Dr. Tobin would not agree as to the analgesic properties of codeine and morphine as they relate to their effects on mood behaviour (stimulating effects) despite the potent evidence submitted to the contrary. On the balance of probabilities, with the support of the research to date, Dr. Tobin’s conclusions are not supportable with clear, cogent and convincing evidence. Environmental Morphine Identification (EMI) is a possible defence as it relates to the morphine but falls wanting as it relates to the codeine. The other possibility, with the inherent attraction to enhance performance, is the more probable cause.
There was an agreed statement of facts that More the Mari’er tested positive for the Class I drugs codeine and morphine. The CPMA does not do quantitative testing of either codeine or morphine as both are non-therapeutic drugs. If either of the drugs is detected in a horse post race, it calls for a positive result finding under Canadian horse racing regulations. Therefore, Dr. Tobin’s “no dose effect” argument is moot. It has no bearing on this matter.
This Commission must utilize its experience and expertise as it weighs the balance of probabilities and any mitigating factors in this case and others that come before it. This practice has been supported by the Superior Court of Justice – Ontario, Divisional Court, Court File No. 135/08 & 136/08 re Kelly Lester & Robert Zubkoff v. The Ontario Racing Commission in a decision dated September 29, 2008 as it relates to the standard of reasonableness. It reads at p 7, “In other words, the ORC is to be accorded considerable deference by an appeal court because of its broad mandate and expertise in regulating and maintaining the integrity of standardbred racing in Ontario”.
On a balance of probabilities, the Panel finds that More the Mari’er’s positive test result was caused by the administration of either codeine separately or both codeine and morphine together and not from an environmental source as the appellant attempted to establish. The evidence is clear, cogent and convincing. This scenario is the most plausible answer to the question raised by Ms. Morrissey dealing with the codeine found in the horse’s urine sample. Dr. Tobin testified that codeine is readily available. Mrs. DiMarco was taking Tylenol 3 and as the appellant admits there could be a linkage to the positive test results.
The argument that environmental factors caused the positive drug tests fails on a number of crucial points. They are as follows:

a. It cannot account for the codeine in the test results. The evidence submitted by way of the research could account for morphine positives only. None of the offered literature or testing showed a codeine positive even when codeine was identified in the ingested products. Codeine is not endogenous in the body of a horse.

b. Supporting this conclusion is the fact that there have been no outbreaks here in Canada as there were in other jurisdictions. Five positive tests in ten years with one of those admitting they administered the drugs can hardly be termed a “sporadic” occurrence as Dr. Tobin attempted to portray it.

c. If the hypothesis had validity, it is reasonable to expect other positive tests would have been identified by the Cantest Lab in the fourteen thousand tests in 2007and 2008.

d. If More the Mari’er’s positive test was caused by environmental products why did the horse not test positive during other post race tests given that its feed and local environment has not changed? Why has there not been another positive test for another horse, of which there are many according to the testimony, that have been exposed to the same feed, water, hay grass, stabling, etc. as was the racehorse, More the Mari’er?

e. The issue of possible contamination of the sample was ruled out by agreement that the drugs found in the urine sample were in their conjugated state thus ensuring they had passed through the system of More the Mari’er.

f. The feed ingredients did not contain any substances that would cause the positive test results. Even if the feed had been contaminated it is reasonable to expect other positives would have resulted, as a number of other trainers would have received the same feed batch. However, the only positive test was for More the Mari’er.

It is reasonable to accept the other offered possibilities for the positive test as being more probable. There are reasons to administer the drugs codeine and morphine to a horse given their ability to act not only as a pain killer but also to alter the mood/behaviour of a horse as either can effect proven performance as Dr. Weber indicated and supported by tendered evidence notwithstanding Dr. Tobin’s disagreement with the latter reason. The Panel accepts Dr. Weber’s opinions as credible and reliable given the independent evidence in support of his opinions. The consequences and benefits of the administrations of these drugs to a racehorse are self-evident. The low levels of the drugs are incidental. They could mean, as the testimony for both the ORC and the appellant acknowledged, a result of a low dosage relatively close to the time of the test or a high dosage administered further out in time from when the sample was collected.
The standard for Mr. DiMarco as to his responsibility as the agreed trainer of More the Mari’er is indeed a strict liability as submitted by Mr. Todd (Ex.4, tab 1, p 24) as the offence occurred in 2007 prior to the ORC rule change to absolute liability.
Mr. DiMarco testified that he understood the rules of racing. The burden of proof fell to the appellant to demonstrate that he took all reasonable care as Mr. Todd submitted (Ex. 4, tab 1, p 24) and restated re Moffatt [2008] O.R C. D. No. 4 at para 55. Mr. DiMarco did not meet that burden on a balance of probabilities for the following reasons in the opinion of the Panel.
Under TB Rule No. 15.06.01 (a) & (b) the trainer bears that responsibility whether he/she administered the drug. The issue is whether adequate care and protection was in place.
Simply declaring, “I did not do it, I don’t know how it could have happened” does not fulfill that responsibility.
The Panel recognizes that in a strict liability offence the onus is on Mr. DiMarco to establish on a balance of probabilities that he took all reasonable steps to avoid the positive test. (Montini v. O.R.C 2007 CanLII 3988 (ON LRB), 2007, CanL.I.I., 3988 (Ont.SC.Div. Ct.) There is a significant difference in this case from Montini in that in this case the appellant did not rely upon the turning over the horse to the track’s detention program 24 hours prior to the race.
Investigator Grant testified that Mr. DiMarco did do some of things that a reasonable person would undertake to fulfill his trainer responsibility undertakings. One was his passive reliance on Woodbine security, the other the locking his feed, tack rooms and medication box. However, there is more to fulfilling one’s responsibilities as a trainer according to the rules.
In the matter of thoroughbred trainer Steve Attard, Ruling No. TB 008/2004 (Ex. 4, tab 1,c, p 7), that panel found that “his stable and staff were well managed, adequately instructed and properly deployed to minimize the possibility of sabotage and/or external contamination.” The DiMarco operation did not meet that standard for the following reasons:

a. The appellant did not call as a witness or even submit statements from two of Mr. DiMarco’s employees. Both of these individuals had direct contact with the horse, his son Ralph DiMarco and groom Joe Blandford. Ralph saddled More the Mari’er on November 29, 2007. It is reasonable to expect that the person who had control of the horse for its race and was left with the key for the feed and stable medications when his father was absent would be able to provide insight into the modus operandi of the DiMarco stable. No evidence was provided as to what instructions, if any, were given by the father to the son, care exercised, or what his son did when his father left the track after having turned over the keys to the stable to his son, Ralph.

b. In a like manner, it is reasonable to expect that a person exercising his trainer responsibility under the rules as Mr. DiMarco stated he understood, would be aware of and have that knowledge of the person who took control of his horse after the race. Unfortunately, Mr. DiMarco did not have that knowledge. Mr. DiMarco testified that his son, the groom, hired that person. Is this the reasonable standard referred to in Whelan vs Ontario Racing Commission (Ex 4, tab 1 e p 2)? There was no testimony as to what standards, instructions or supervision were in place.

c. Mr. DiMarco’s other son, Frank DiMarco also used to work for his father. His employment ended when Woodbine Racetrack officials barred him from the Woodbine backstretch for drug dealing at the track. While there was no suggestion of the involvement of Frank DiMarco in the positive test, it does signal that the appellant was not as careful as he should have been regarding the kind of employees he hired. It is reasonable to expect a trainer to ensure that he safeguards his horses by only hiring individuals who follow both the rules of racing and the laws of the country.

d. In the Whelan case, the appellant kept “day to day records of control and security”. Mr. DiMarco offered no such records other than to state he did keep medication records that were submitted to the Stewards and found in good order.

e. Mr. DiMarco’s wife, Mary, was responsible for mixing the feed. Mrs. DiMarco testified that they often mixed the feed and then left the mixed feed in front of each respective horse’s stall. This practice negates the purpose of locking up the feed as it was left out in the open providing access to any person passing by or through the stable area.

f. Mrs. DiMarco was taking Tylenol 3, a potential source of the prohibited drugs. Investigator Grant observed an empty container on the front seat of the DiMarco vehicle. Is it not unreasonable to expect that in a sensitive situation such as Mrs. DiMarco’s that one would ensure that utmost protective procedures would be in place and that empty medication containers would not be left laying around and in this case, a medication that could have been the source of the codeine?

g. The DiMarcos took no action to try and find out the source of the positive test once they had been notified by the Stewards on December 9th. They did not ask for any testing of their feed or to have the feed supplier check its feed. It is reasonable that some of the feed More the Mari’er consumed for its race on November 29 would still be in the DiMarco barn given it was, according to Mr. DiMarco, ordered in November and the close of the 2007 racing season was about a week away and they would have matched their last order to finish the season.

Penalty

Mr. DiMarco’s reaction to the positive test is the same as others who have appeared before this Commission regarding a serious non-therapeutic drug rule violation. “I did not do it, I don’t know how it could have happened.” The song is the same but the fact remains the deed may very well have affected performance and provided an unfair advantage in the horse race. This Commission remains steadfast that it cannot and will not allow such rule violations to go unpunished. The punishment must act as a deterrent to those few who seek to gain an unfair advantage and a signal to the vast majority who play by the rules that there is a reckoning for those who try to cheat their peers and the public. The Commission is responsible under the Racing Commission Act, 2000 to protect the public interest. If violators are left unpunished, the public will soon abandon the sport, which would sound its death bell.
The penalty imposed by the track Stewards is at the lower end of the range for a first time Class I offence (Ex. 4, tab 1 f). The Panel is staying two months, which in effect will allow Mr. DiMarco the privilege of returning to work at the commencement of the 2009 thoroughbred season in Ontario. The Panel has taken into account Mr. DiMarco’s previous good record and balanced it with the severity of this offence in making its determination. The stayed two months is in accordance with past rulings by this Commission where the intent is reformation. The fine remains at $5,000.

DATED this 22nd day of October 2008.

Rod Seiling

Chair