Ontario

Racing

Commission

TB

RULING NUMBER COM SB 002/2008

COMMISSION HEARING TORONTO, ONTARIO – JANUARY 10, 2008

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

AND IN THE MATTER OF THE APPEAL OF

STANDARDBRED LICENSEE ANTHONY A. MACDONALD

Anthony A. MacDonald, driver/trainer/owner/authorized agent, Licence No. 194G79, appealed against the penalties imposed in Standardbred Official Ruling SB 38108, on Thursday, December 6, 2007, at Kawartha Downs Racetrack, for a TCO₂ positive test result from the horse CHUCKALO IMAGE, which raced at Kawartha Downs on November 22, 2007.

The penalties imposed were as follows:

i. 60-day full suspension (December 15, 2007 to February12, 2008 inclusive).

ii. $1,500 fine.

On Thursday, January 10, 2008, a Panel of the Ontario Racing Commission consisting of Vice Chair Hon. James Donnelly, Commissioner Bernard Brennan, DVM and Commissioner Brenda Walker, was convened to hear this matter. Anthony A. MacDonald appeared in person.

Anthony A. Williams appeared as counsel for the Administration.

On hearing the evidence tendered by both the Administration and by Anthony A. MacDonald, and upon reading the exhibits filed, and upon hearing both the submissions of Anthony A. MacDonald and counsel for the Administration, the Commission, by majority decision, ruled as follows:

The appeal by Anthony A. MacDonald against the penalties imposed is dismissed.

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

DATED at Toronto this 21^st day of January 2008.

BY ORDER OF THE COMMISSION

John L. Blakney

Executive Director

REASONS FOR DECISION

1. Standardbred licensee, Anthony MacDonald, appeals Ruling SB 38108 of December 6, 2007, whereby he was fined $1,500 and fully suspended for 60 days (December 15, 2007 to February 12, 2008 inclusive) for violation of Rules 26.02.01 (Trainer Responsibility) and 22.38 (TCO₂) for a positive test result from the horse CHUCKALO IMAGE, 4^th Race at Kawartha Downs on November 22, 2007.

2. Mr. MacDonald in his written notice of appeal and in oral submissions restricted his appeal to penalty only. The positive test was unchallenged procedurally or substantively.

3. Mr. MacDonald, although aware of his right to counsel, elected to proceed self-represented. Counsel Anthony Williams represented the Administration.

4. A substantial documentary record was complied by filings. On behalf of the Administration:

• A Document Brief as indexed
• A Summary of Facts
• The Milk Shaking Directive (Number 4, 1990)
• Rule 22.38 and subsequent rules relating to TCO₂
• A summary of Standardbred TCO₂ positive test results for 2005, 2006 and 2007
• A summary of Standardbred positive test results - December 5, 2005 to December 12, 2007
• Racing Judges’ ruling in the Fred Hoffman TCO₂ positive test, March 31, 2006 (Woodbine)
• Racing Judges’ ruling in the Danielle Soulliere TCO₂ positive test, June 25, 2005 (Hanover)

And by Mr. MacDonald:

• A record of his training and driving “stats” in November 2007
• Standardbred Canada’s lifetime driver’s summary for Anthony A. MacDonald and a similar trainer’s summary
• Standardbred Canada’s lifetime trainer’s summary for Fred Hoffman

5. Paul Cass, with a background as a trainer/driver and race secretary, and 29 years experience as a Standardbred Judge, was the presiding Judge. John Murphy and Al Caughey were the Associate Judges.

6. At the Judges’ hearing held at Kawartha Downs on December 6, 2007, Mr. MacDonald sought variation of the minimum penalty guidelines for equine drug and TCO₂ offences ($1,500 fine and a 60-day full suspension), also known as the Uniform Classification Guidelines of Foreign Substances as promulgated by the Association of Racing Commissioners International Inc.

7. The specific variation sought was reduction of the suspension and increase of the fine. This suggestion originally found some favour with Judge Caughey, who discussed the possibility of 30 days and $3,000. According to Judge Cass, the Panel of Judges conferred for two hours during which they considered but rejected Mr. MacDonald’s suggestion.

8. The Judges’ unanimous ruling conformed to the minimum penalty as per the guidelines for a Class III offence.

9. Rule 22.38.06 provides direction for the judges as follows:

"22.38.06 Penalties

Where the TCO₂ level in a horse is determined to equal or exceed the levels set forth in Rule 22.38 above, the Judges shall assess penalties in accordance with the Guidelines, Penalties for Equine Drug and TCO₂ Offences, effective March 30, 2001."

The Guidelines provide:

• "For the purposes of these Guidelines, a TCO₂ offence is considered a class III Drug Offence."
• "On a first (offence) the Commission and/or its representatives may impose a penalty beyond or below the range in the appropriate circumstances."

Mr. MacDonald sought to demonstrate “appropriate circumstances” such as to render a fit penalty something less than the guideline minimum of 60 days and $1,500.

10. The essential thrust of Mr. MacDonald’s evidence and submission was:

• At age 31 with 10 years experience and starting from nothing, he built a thriving and rapidly expanding stable ranging around 60 horses, prominent to the extent of having the second highest number of starts in Canada in 2007.
• His response to investigators was seen to be candid, honest and cooperative.
• He was not present when CHUCKALO IMAGE was fed and attended to by the groom. That horse had been treated with baking soda for 18 consecutive days. The only explanation which Mr. MacDonald could suggest was that with 58 horses and 3-4 persons feeding, there had been a feeding error.
• The test result of 42.5 mmo/l with a deviation of +or- 1.26 was certified as “confirmed TCO₂ result was >40.0 mmo/l.” (millimoles per litre of blood) The test result of 42.5 was described in evidence as being remarkably elevated. That prominent overage was contended to be compelling evidence that a radical mistake had been made. It was then contended that such a mistake may be less culpable in a busy environment. In a 14-day period Mr. MacDonald had raced 69 horses at 5 tracks and had driven the majority of the horses.
• CHUCKALO IMAGE was racing November 22, 2007 on Lasix for the first time and thereby may be expected to dehydrate or empty out quickly.
• That Mr. MacDonald was honest, professional and of good character and worked hard and well was attested to by driver Jody Jamieson, training center co-owner, Terry Hunter, one of his owners, Frank Cirillo and Chris Roberts, General Manager of Georgian Downs.

11. Mr. MacDonald contended for relief similar to that extended to Fred Hoffman by the Judges at Woodbine March 31, 2006. That is, with a positive TCO₂ test of 39.6 mmo/l, the penalty was 60 days suspension (of which 30 days were stayed) so effectively a 30-day suspension with a fine of $3,000.

12. The Racing Judges stated reasons for the Hoffman disposition were:

• Mr. Hoffman has been in the business for over 27 years.
• He has had over 10,000 starts as a trainer (without a positive as indicated by Exhibit 5).
• Fred is always a gentleman to deal with.
• Fred trains a stable of 9 horses stabled at Mohawk Raceway.
• Fred owns a piece of 7 of these horses and owns 2 of them himself.
• We felt this penalty was appropriate considering Fred’s long history in the business.

13. As well, reliance was upon the Danielle Soulliere precedent, a TCO₂ violation, 38.1 mmo/l, 45-day suspension and $2,000 fine, Hanover Raceway, June 25, 2005.

14. The Judges stated reasons for the Soulliere disposition were, “1^st offence. Has 2 horses owned by both Danielle and her husband Richard. As it is a short season in Sudbury, Danielle requested fewer days and more money. We agreed and issued the above penalty.”

15. There are secondary aspects of the suspension penalty. Mr. MacDonald estimated loss of driving fees is $8,000 per month. There is expense and inconvenience for clients and disruption for his stable and staff.

16. On December 7, 2007, Mr. MacDonald applied for a stay of penalty pending this hearing. This application was refused by the Executive Director who called for a hearing “before January 15, 2008.” As earlier noted, this hearing proceeded January 10, the 27^th day of the 60-day suspension.

17. There were evidentiary gaps. No evidence was offered:

• By person with the hands-on duty of feeding and caring for CHUCKALO IMAGE.
• About the horse’s ailment said to be treated for 18 days with baking soda or the specifics of the treatment, particularly the dates thereof.
• About the amount of baking soda which might be required (at least in a range) to produce such an elevated test result.
• About the likelihood or otherwise of a mistake of that scale being made.

18. The starting line for the analysis must be Section 6 of the Racing Commission Act 2000.

"Powers

6. The Commission shall exercise its powers and perform its duties in the public interest in accordance with the principles of honesty and integrity, and social responsibility."

7. The public interest identified in that section must prevail. Racing can bleed to death by multiple small cuts. No single mortal blow is required. The Trainer Responsibility Rule (26.02.01) is the spine that carries the integrity weight. No integrity breach is insignificant. The public interest requires vigilant enforcement.

8. That vigilance applies to the care of the horse. It is no defence to say, “We were too busy to exercise proper care.” That busy state imposes a higher duty. If turmoil or disarray threatens, counter measures are demanded. How can it be maintained even in mitigation, “we were too busy to discharge our duties responsibly.”

9. The concluding words of Rule 9.07.03 direct attention to the quality of care for the horse that is required.

"And what protection has been given to the horse prior to the race to attempt to ensure that a drug would not be improperly administered to the horse."

The word “ensure”, even as tempered by the pre-fix “attempt to”, imposes a high duty.

22. The second step in the analysis must be that the Judges acted in accordance with Rule 9.08.02 and Rule 22.38.06, both of which directed them to the Guidelines.

"Rule 9.08.02 Upon a finding of a violation of the positive test rules, the Judges shall consider the classification level of the violation as currently established by the Uniform Classification Guidelines of Foreign Substances as promulgated by the Association of Racing Commissioners International, Inc., or any other guidelines established by the Ontario Racing Commission."

23. The third step becomes, were the mitigating aspects of the evidence such that a penalty less severe than that suggested minimum is warranted?

24. The evidence of Mr. MacDonald’s good character emanated from high profile credible sources. That evidence was an important component in arriving at a just result in that it buttressed a claim for a minimum penalty under the Guidelines. However, its relevance and utility have limitations. That evidence of good character does not constitute an extraordinary circumstance justifying a penalty less than that almost universally applicable to that particular breach of racing rules (as will shortly be discussed).

25. The claim of additional hardship through loss of substantial driving fees falls by the wayside. Loss of income is necessarily incidental to a suspension. That contention carries the implicit but untenable suggestion that the less fortunate in terms of earning capacity should be compelled to endure a longer suspension.

26. That complaint of substantial income loss does call into sharp focus the central point in this unfortunate scenario. The racing industry presents enormous opportunity, which if seized at the floodtide, leads to fame and fortune. However, that opportunity is not a matter of right. It is a matter of privilege dependent upon a licence, which is in turn dependent upon rule compliance. That compliance is the foundation upon which success for the licensee and for the industry must stand.

27. A review of the TCO₂ positive test results for the last three years discloses:

• 38 positive tests.
• 36 of the 38 trainers received suspensions of 60 days or more. The exceptions, Hoffman and Soulliere as earlier noted.
• 37 trainers were fined $1,500 or more. The 38^th, Arnold Kestle, Woodstock, July 12, 2005, was fined $750 and suspended 40 days.
• One test, Western Fair, January 28, 2005, was indicated as being in excess of 41.0 (>41.0).
• Nine tests were indicated as being >40 (as was Mr. MacDonald’s). All others were for lesser amounts.

28. To this stage, the Judges had complied with the Guidelines as directed by the rules. They had imposed a penalty similar to that uniformly imposed for similar offences in the same time frame.

29. Mr. MacDonald’s claim for special status akin to that apparently extended to 27-year veteran, Fred Hoffman, falls short by substantial degree. Mr. MacDonald’s record for racing violations as compiled by Standardbred Canada, is appended to these reasons. It runs to the start of the 12^th page. Numerous brief suspensions are noted. There are whipping violations which cannot stand on the credit side of any ledger – the most recent, November 20, 2007. In the year 2007, there were 14 entries on his record. The balance of the record speaks for itself.

30. Mr. MacDonald was impressive as a young man in a hurry, and as an able advocate in his own cause. Perhaps a glance over the shoulder at the racing record which drags behind him, may be instructive. That shadow may be longer than he is tall, always a sign that the sun is rising – or setting. The line between those two events is fine, that being rule compliance.

31. Based solely on evidence of the unusually high reading and that CHUCKALO IMAGE was probably a non or minimal factor in the race (said to be 18-1 and finished 6^th), the positive test was seemingly more consistent with mistake than miscalculation.

32. On that basis alone, one member of the Panel would have granted moderate relief by imposing 45 days and $1,500.

33. As between Mr. MacDonald’s substantive claims and the public interest in the protection of the racing industry through uniform enforcement of the rules of racing, the public interest must prevail. On the basis of the majority decision, the appeal is dismissed.

34. The following comment is gratuitous and thereby perhaps of limited utility in that the issue was not argued. However, based on the appeal relating to penalty only and the Guidelines provision for a minimum penalty (suggested), the Executive Director was correct in firstly, refusing a stay, and secondly, directing that the appeal should be heard within the first 30 days of the Guidelines minimum penalty.

DATED this 21^st day of January 2008.

____________________________

James Donnelly

Vice Chair

Attachment