Brian Ross (Re), 2008 CanLII 89006

RULING NUMBER COM TB 008/2008

COMMISSION HEARING TORONTO, ONTARIO – OCTOBER 31, 2008

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

AND IN THE MATTER IN THE APPEAL OF

THOROUGHBRED LICENSEE BRIAN ROSS

Thoroughbred trainer Brian Ross appealed Stewards' Ruling Number TB 5172/2007, issued on October 22, 2007, suspending him for 15 days and imposing a fine of $1,000 for violation of Rule 15.06.01(a) & (b) of the Rules of Thoroughbred Racing, 2005, after the horse SILVER STRIP, which finished first in the 6th race at Fort Erie Racetrack on July 28, 2007, tested positive for Methocarbamol (Robaxin).

The Ontario Racing Commission Panel hearing the matter consisted of Chair Seiling and Commissioners Bernard Brennan, DVM and Brenda Walker. The Panel convened on October 31, 2008. Aaron Dantowitz and Paul Saguil appeared as counsel for the Administration, and Conrad Cohen appeared as representative for Mr. Ross.

On hearing the testimony of Rick Grant, William Smith, Brian Ross, Lesley Benchina and Katrina Barnhardt, and on reviewing the Exhibits filed, and on hearing the submissions of counsel for the Administration and of Mr. Cohen, the Panel denied Mr. Ross’ appeal.

The Panel's written Reasons for Decision is attached to this Ruling.

DATED at Toronto this 5^th day of November 2008.

BY ORDER OF THE COMMISSION

John L. Blakney

Executive Director

REASONS FOR DECISION

Overview

1. Thoroughbred licensee, Brian Ross, appealed the Ontario Racing Commission (ORC) Stewards’ Ruling No. 5172/07 wherein he was penalized fifteen days and fined $1,000 for a positive test on the horse SILVER STRIP for the Class IV drug, Methocarbamol, (trade name Robaxin). SILVER STRIP raced in the sixth race at Fort Erie Racetrack on July 28, 2007. The un-placing of the horse was not under appeal.

Background

2. A Certificate of Positive Analysis (Ex.1, tab 10) was issued by Cantest Labs on August 3, 2007. Subsequently the authorities conducted a search of Mr. Ross’ barn and vehicle on August 7, 2007. A copy of the report of the search was contained in the evidence submitted, (Ex. 1, tab 9).

3. A hearing was convened by the Fort Erie Stewards on October 16, 2007. Mr. Ross was represented by Mr. Conrad Cohen of the Horsemen’s Benevolent and Protective Association (HBPA) at the hearing. Subsequent to the hearing, the Stewards issued a Ruling, No. TB 5172/07 (Ex. 1, tab 2) wherein he was suspended fifteen days, fined $1,000 and the horse was unplaced.

4. Mr. Ross filed a notice to appeal the Stewards’ decision (Ex. 1, tab 3) and a request for a stay (Ex. 1, tab 4). The stay was granted by the Executive Director of the Ontario Racing Commission (ORC) (Ex. 1, tab 5).

5. The parties agreed that the matter at hand should be assessed by the Panel on a strict liability basis. Therefore, the onus was on the appellant, on a balance of probabilities, that Mr. Ross did everything reasonable to protect SILVER STRIP from a positive test.

6. Legal counsel for the Administration, Aaron Dantowitz with support from Paul Saguil in conjunction with Mr. Ross’ representative, Conrad Cohen, agreed to the following facts:

a. Mr. Ross was the trainer of record (Ex. 1, tab 6) for the horse, SILVER STRIP, when it raced at Fort Erie on July 28, 2007 in the sixth race

b. SILVER STRIP was selected for a post race urine test following the race

c. a urine sample was collected from the horse in the designated test barn area as per the Canadian Pari-Mutuel Agency’s procedures

d. the urine sample was collected according to the CPMA’s procedures, sealed and tagged (#2116817 EIPH (Ex. 1, tab 11)) and sent to the agency’s designated laboratory, Cantest Labs, for post race testing

e. Cantest Labs confirmed the presence of Methocarbamol (Robaxin) (Ex. 1, tab 10) in the urine sample

f. Robaxin is a class IV drug as per the Uniform Classification Guidelines for Foreign Substances (Ex. 2, tab 6) and approved by the Association of Racing Commissioners International

g. a residue split sample of the urine, at the request of Mr. Ross’ representative, was sent to Dr. Steven Barker at the University of Louisiana with the retest confirming the presence of Robaxin (Ex. 3, tab 5)

1. the un-placing of the horse was not under appeal

2. Mr. Dantowitz submitted that with the agreed statement of facts, Mr. Ross was in violation of TB Rule No. 15.06.01.

3. ORC investigator, Rick Grant, testified that he is familiar with the Fort Erie security. It was his opinion it was “good” relative to other Ontario tracks. At Fort Erie, admittance to the backstretch is limited by track personnel to ORC licensees and their guests. Mr. Ross added in his testimony that the track does not allow anyone to spend the night in that area of the stables but there are areas that the track does allow people to stay through the night. Those areas were limited to the other side of the stable grounds.

4. Mr. Grant testified that Mr. Ross was surprised by the positive test telling him that he has never used Robaxin. Evidence was submitted indicating that SILVER STRIP had never been administered Robaxin (Ex. 1, tab 12) but that Mr. Ross’ vet had treated at least five other horses with the drug. The evidence in question was Mr. Ross’ veterinarian at the track, Dr.Vicky Banks’ records for the treatment of SILVER STRIP. Supporting those documents were Mr. Ross’ own medication records (Ex1, tab 14) confirming the administration of Bleeder Two and Clotol drugs on the days the horse raced.

5. An issue was raised re the amount of Clotol the horse received as two separate sets of records were submitted. One indicated that the horse received 25 cc’s of Clotol, the other indicated it received 50 cc’s. This apparent contradiction was explained by both veterinary technicians, Lesley Benchina and Katrina Barnhardt who both worked for Dr. Banks, that the supplier had changed the concentration level of the medication but the billing process had not caught up and the one set of records utilized the old system and the other represented the new one. Both vet techs confirmed that SILVER STRIP’S dosage of Clotol would have been 25cc’s.

6. Mr. Ross acknowledged that he was familiar with and understood the rules of racing including trainer responsibility. Mr. Ross, who in his thirty years as an ORC licensee, had never received a positive test violation, testified that he had never used the drug Robaxin. Mr. Cohen suggested that the drug had to have been administered to the horse in error by Dr. Banks’ vet technicians.

7. Under the Rules of Thoroughbred Racing, specifically Rule No. 15.06.01 (a) and (b) more commonly referred to as the “trainer responsibility” rule, the trainer and or the person who has care, custody and control of the horse has a duty to protect the horse’s welfare. This duty includes ensuring the horse is not allowed to race with a prohibited medication in its system. Even if this person does not personally administer the prohibited medication, that person still bears the responsibility if a violation occurs.

8. SILVER STRIP was a severe bleeder according to Mr. Ross, and accordingly, the horse was put on a medication program to help control it. This program included the administration of both Bleeder Two and Clotol on the day the horse raced. Bleeder Two was administered approximately four hours prior to the race and Clotol about two hours prior.

9. Dr. Barker’s retest of SILVER STRIP’S split urine sample confirmed the presence of the Bleeder Two residue (Ex. 3, tab 8). No evidence or testimony was tendered if Clotol was present. Dr. Barker was unable to test for Clotol as he required a blood sample but it was not provided by the CPMA when it forwarded the horse’s urine sample. No testimony or evidence was submitted as to why the blood drawn from SILVER STRIP was not made available. Reference was made to the Jannone case wherein a reference was made that the CPMA only retains blood for seven days from its TCO₂ program. The HPBA letters (Ex. 3, tab1, 2 & 3) requesting both the urine and plasma samples be sent to Dr. Barker were dated August 8, 13 and 1, 2007, respectively.

10. Ms. Benchina testified that the standard procedure employed by Dr. Banks was that she (Ms. Benchina) would visit her respective trainers in the morning and confirm the race day medications each horse was to receive. The actual medications were previously identified and approved by Dr. Banks. She would then return to the office located on the backstretch and prepare the medications for each horse she had to treat.

11. This process required her to load and label the respective syringes each respective horse was to receive. She testified that the race day and non-race day medications were stored on different shelves. Both vet technicians testified that they would not mix them up and never had such a problem. Clotol is a legal race day medication, Robaxin is not. According to her, this regimen prevented any possibility of mixing up the medications. She did agree that both the bottles and medication contained in them for both Clotol and Robaxin were very similar.

12. Ms. Benchina administered SILVER STRIP the Bleeder Two syringe at the appropriate time (four pre race) but testified that she requested Ms. Barnhardt to administer the Clotol as Dr. Banks needed her assistance. Ms. Barnhardt, who testified via telephone to accommodate her personal situation as a recent new mother, confirmed that she administered the Clotol. She testified that while she did not prepare the syringe, she would never inject a horse without the assurance she knew what she was injecting. She was sure it was the Clotol based on the label and how it acted when she injected it. Evidence was submitted that one has difficulty determining the difference between the two drugs via injecting them.

13. Brian Ross had twelve horses stabled at the Fort Erie track, all of them located in Barn 16. He employed two individuals, groom William Smith and hot walker Jim Bigh. He did not have video surveillance cameras and relied on the track’s security system in part to protect his horses. The horses were overseen by either himself or his groom, William Smith, from about 5:00 a.m. to 6:00 p.m. daily. His feed and hay were under lock and key with Mr. Ross having the only key. His medications were locked in a box inside his locked tack room with him having the only key. By all accounts he kept a neat and tidy shed row. His horses’ feed was prepared and fed to them, feed tubs were not left out in the shed row. He did not leave names on halters etc. so that people would not know which horse was which and was careful who entered his stable area.

14. Mr. Ross testified that he was aware of the rules of thoroughbred racing and his responsibilities. He was not at the track according to his testimony when SILVER STRIP was administered its pre race medications but at home changing his clothes. It was his practice to give instructions for medicating his horses to the vet technicians and let them come back to administer the medications. The medication program for SILVER STRIP was identified by Dr. Banks following an examination of the horse. He never self medicated his horses.

15. Groom William Smith, who has worked for Mr. Ross for about five years, confirmed that he was at the track and never left the barn the day of the race. It was his practice to be there each day from about 5:00 a.m. to 6:00 p.m. In his opinion, Mr. Ross was a responsible trainer that cared for his horses and took precautions to protect his horses. He did not have access to the stable’s medication cabinet. He testified that he assisted the vet technicians on July 28, 2007 when they administered the pre race medications but that he had no knowledge or input on what they were to receive or received.

16. Mr. Cohen advocated that Mr. Ross did everything a reasonable person would do to protect SILVER STRIP. The cause of the positive test was not his fault but resulted from a mistake by Dr. Bank’s vet technicians who administered Robaxin to the horse in error in the belief it was Clotol.

17. It was his contention that the documentation submitted by Dr. Barker (Ex. 3, tab 7, p 155 & 157) confirmed his theory. These documents are charts published by the CPMA on the elimination times for Robaxin and they match up with an injection to a horse about two hours prior to the urine sample being collected. This is about the same time SILVER STRIP was injected by Ms. Barnhardt with the Clotol according to her testimony.

18. Mr. Cohen submitted that Mr. Ross’ situation is similar to the Attard case (Ex. 5, tab 2). In that instance, trainer Attard was not found in violation of the rules due to a possible mistake made by the attending veterinary personnel.

Issue

24. How did the Methocarbamol (Robaxin) find its way into SILVER STRIP’S system? Was Mr. Ross in violation of TB Rules No. 15.06.01 (a) and (b)?

Decision

25. After carefully reviewing the testimony and reading the submissions and reviewing the evidence the Panel denies Mr. Ross’ appeal.

Reasons for Decision

26. As per the agreed statement of facts the horse did test positive for a prohibited substance, Methocarbamol (Robaxin). This in itself is a clear violation of the rules.

27. On a balance of probabilities Mr. Ross did not fulfill his duties as a trainer to protect his horse therefore he violated TB Rule No. 15.06.01 (a) and (b). As in the Glennon decision, (TB 005/2006) the trainer was found to be in violation of the trainer responsibility rule when there was evidence the vet technician might have mixed up the medications. On p 6 of that decision it reads, “the defence of due diligence requires, however, that evidence of all the relevant circumstances be brought forward so that we can be satisfied that all reasonable steps have been taken. Whether by the trainer or the vet or the vet technician”. “The defence requires more than his own testimony pointing the finger at one of several people responsible for giving his horse medication”. In coming to this conclusion, “this Commission must utilize its experience and expertise as it weighs the balance of probabilities and any other 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 re Kelly Lester & Robert Zubkoff v. the Ontario Racing Commission, in a decision dated September 29, 2008", (DiMarco Ruling No. TB 006/2008). The court went on to say that “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.”

28. The Panel recognizes that Mr. Ross did some of things that are expected of a person to fulfill his/her requirements. However, as in the DiMarco ruling TB 006/2008, doing some of them does not satisfy the onus of TB Rule No. 15.06.01. Surely one of the most fundamental requirements of the rule is being present during the administration of medications. Mr. Ross, by his own testimony, was not and as per his practice not normally present. Compounding this fundamental responsibility he did not leave instructions to his employee to ensure that the medications being administered were those that he had previously ordered. Unlike the Berringer case (016/2006) Mr. Ross has not satisfied this Panel that he did all he could have or should have to discharge his responsibilities.

29. The appellant’s counsel, Mr. Cohen, referenced the Attard case (TB 008/2004) as a basis for this Panel to grant Mr. Ross’ appeal. In that case Dr. Bonder admitted that a mistake may have been possible in that he may have administered Robaxin instead of Clotol to the horse. In this case, there was no such admission by either vet technician, both claiming they were sure SILVER STRIP received Clotol.

30. The Panel recognizes due diligence as a reasonable defence for a strict liability case as this matter, by agreement of the parties, is. In the Whelan case (Ontario Judgements: [1989] O.J. No. 1454 Action No. 123/88) the appellant’s appeal was successful as the Court found “there was no reasonable evidence to indicate that he had failed to meet a reasonable standard”. Mr. Ross cannot claim the same for the reasons stated in the paragraph 28.

31. The Panel takes a dim view of the procedures employed by Dr. Banks and her staff as they relate to the dispensing and dosing of medications to racing horses. Preloading multiple doses for numerous horses of medications offsite from the actual site where they will be administered can lead to a possible error. While it does not release the trainer of record from his/her responsibility, it is an unneeded risk and poor practice that should be discouraged

32. Mr. Cohen argued that the blood from SILVER STRIP was not made available as requested and that having this blood would have enabled Dr. Barker to test for the presence of Clotol. As Mr. Dantowitz submitted the possibility runs both ways as it could have proved the presence of the drug. Nevertheless, as in the Jannone case (Jannone and owner Westcott LLC [2004] O.R.C.D. No. 2, Series No. COM SB 34/2004 p 71) “the failure of the administration to disclose the residue blood sample ... did not violate the appellants’ rights under Section 7 of the Charter and did not constitute procedural unfairness or breach of the principles of fundamental justice so as to justify granting of appeals”.

33. This positive test, like many others, features the same story line, I am shocked, I don’t know how it could have happened. Meanwhile the public is left to wonder how this can be allowed to happen and what the deed did do to the outcome of the race. Whether the medication affected the outcome of the race is incidental, it is the perception of the drugging of horses that damages the industry. Without public support the industry’s future is in grave peril. This Commission must act to send a signal that the public has an ally and will punish those who run afoul and signal to those few in the industry that consider cheating that there is a day of reckoning.

Penalty

34. The penalty assessed to Mr. Ross by the Stewards is at the low end of the range for a Class IV first time offence (Ex. 2, tab 6). In recognition of Mr. Ross’ excellent past record, the panel stays seven days thus reducing the suspension to eight days, the fine remains at $1,000. If Mr. Ross violates any medication resolution and is judged to so have by the Stewards, the stayed penalty will be added to whatever penalty the Stewards assess at that time.

DATED this 5^th day of November 2008.

Rod Seiling

Chair