RULING NUMBER COM TB 013(a)/2009

COMMISSION HEARING TORONTO, ONTARIO – OCTOBER 29, 2009

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

AND IN THE MATTER IN THE APPEAL AND REQUEST FOR HEARING OF

THOROUGHBRED LICENSEE TERANCE JORDAN

REGARDING THE HORSE HOLLYWOOD HIT

REASONS FOR DECISION

Overview

1. Terrance Jordan appealed TB 24/2009 ruling, (Ex. 1, tab 16) of the Director of the Ontario Racing Commission (ORC), wherein a requested stay for the horse, Hollywood Hit, was denied. To facilitate the urgent request by the appellant, the Commission agreed to a “quick” access to due process for the appellant. An offered adjournment to enable the Administration to provide full disclosure was not accepted. An oral decision denying the appeal was issued following the hearing with written reasons to follow.

Background

2. The thoroughbred Stewards issued Ruling No. TB 6203/09 (Ex. 1, tab 8) on October 9, 2009, suspending the horse, Hollywood Hit, for 90 days for violating ORC TB Rules Nos. 15.04.04, 16.11 and 16.11.01. The ruling was issued on the basis of a Certificate of Positive Analysis (Ex.1, tab 4) for the Class III drug, acepromazine, following a race at Woodbine Racetrack on September 30, 2009, in the 7th race in which Hollywood Hit raced (Ex.1, tab 3).

3. On October 16, 2009, Mr. McMahon requested a stay (Ex. 1, tab 15). The Director refused that request by way of TB Ruling No. 24/2009 dated October 19, 2009.

4. There was agreement between legal counsel of the Administration, Jennifer Friedman, and legal counsel for Mr. Jordan, Dan McMahon, that there were no issues related to the chain of custody of the sample obtained from the horse, Hollywood Hit, in relation to the race of September 30, 2009.

5. Mr. McMahon submitted that until the result of the retest, by way of split sample, was reported, that no action should be taken against the horse just as no action was being taken against the trainer, Mr. Jordan, for any possible rule violation.

6. Violations under TB Rules Nos. 15.04.04, 16.11 and 16.11.01 call for an automatic 90-day suspension of the horse. There is no discretion for the Stewards. Under TB Rule No. 15.04 02.02, a hearing for a trainer is not held until after the investigation related to the positive test is complete.

7. Mr. McMahon agreed that the use of the drug is inappropriate and that the 90-day suspension is appropriate but only after a hearing to decide the issue. The hearing timing, according to him, should be held after the result of the second test which was still a number of weeks into the future.

8. On that basis, Mr. McMahon submitted that the Director should have issued the stay until the retest result of the official sample was available to confirm the initial positive test result. Denying the stay was penalizing the owner of the horse from potential economic benefits via entering lucrative races such as the Dubai Cup and the Kennedy Road Stakes. The horse had already lost an opportunity to possibly enter a Breeders Cup race. As well, an alleged $900,000 sale offer for the horse was now off the table.

9. The Stewards authorized a barn search (Ex. 1, tab 7) upon notification for the positive test (Ex. 1, tab 7). That search was conducted on October 10, 2009. It was the uncontested submission that the search uncovered a bottle of the drug, acepromazine, the same drug for which the positive test was reported. The drug had been labeled (veterinarian) for use on the subject horse, Hollywood Hit.

10. Ms. Friedman submitted that the denial of the stay was appropriate, that there is no discretion as it relates to a breach of the owner responsibility provisions of the rules. She referenced both the Aimonetti (Ruling Number COM TB 009/2009) and Vanderkemp (Ruling Number COM SB 016/2009) decisions as precedents to support her submissions.

Issue

11. Should the horse, Hollywood Hit, be granted a stay until such time as the result from the second test on the split sample becomes available? Was the Director’s action appropriate in denying the stay given the facts?

Decision

12. After carefully listening to the testimony and reviewing the documents, the appeal was denied.

Reasons for Decision

13. A positive test result for a Class III drug violation is an absolute liability offence as per TB Rules Nos. 15.04.06, 16.11 and 16.11.01. The “Owner Responsibility” provisions as implemented by the Commission were deliberate as to their intent. The objective of the 90-day suspension was and is to ensure owners take a commensurate level of responsibility for their horses when it comes to how and when they are medicated. The concept of owner responsibility received broad industry support as a viable and appropriate method to help control inappropriate use of medications in horse racing.

14. The appellant agreed there were no issues related to the chain of command regarding the sample obtained from Hollywood Hit. No evidence was led as to any potential issues as to quality assurance related to the official laboratory, Cantest, which did the testing on Hollywood Hit’s official sample. In actual fact, the Commission is aware that the laboratory undergoes periodic quality assurance testing as part of its contract with the Canadian Pari-Mutuel Agency, the federal agency responsible for this type of drug testing for horse racing in Canada. Based on these facts, there is no reasonable basis to conclude that the result of the retest would invalidate the original positive test report.

15. Mr. Jordan had a right to request a split sample retest. That retest right does not entitle him the right to escape the provisions of TB Rule Nos. 15.04.06, 16. 11 and 16.11.01. To allow him to pick the timing of the suspension would negate the validity and purpose of the Commission’s policy objectives. If he wished to delay the hearing until the result was available, he was offered the opportunity and declined.

16. The argument that no action should be taken against the horse just as no action has been taken against the trainer, Mr. Jordan, is irrelevant. The Rules of Thoroughbred Racing in this regard are clear and distinct. A hearing to determine the merits of a case as they relate to an alleged breach by a trainer of those rules allows for an investigation. As agreed, that process was not yet complete therefore Mr. Jordan has not had a hearing as to his potential violation of the trainer responsibility provisions of thoroughbred racing.

17. The Stewards issued their ruling in accordance with the Rules of Thoroughbred Racing. There was no discretion; the penalty was a 90-day suspension from racing.

18. There is no need to further expound on the good reasons for the 90-day owner responsibility rule, Vice Chair Donnelly at paras 20 to 23 inclusive in Aimonetti gave it full rationale.

19. The penalty is severe; it is intended to be such. Only by removing the income earning potential has the Commission been able to directly involve the owner into the manner in which his/her horse is treated when racing. The Panel concurs with Vice Chair Donnelly in this regard in Aimonetti at paras 25 and 26. The numbers as supplied to the Commission, to date, as incomplete as they may be, indicate that the implementation of the owner responsibility provisions are working, the trend line for such violations are down.

20. The appropriate time for the commencement of the penalty is when the positive test is identified. No reasonable argument was advanced that any other outcome might result on the retest. To delay invocation of the commencement of the penalty would seriously undermine the intent of the owner responsibility provisions as previously stated. The Panel is supported in this view by Vice Chair Donnelly in the Vanderkemp Ruling at paras 27 and 28.

21. The Commission has stated policy on stays. No stay is to be granted unless an appellant can demonstrate exceptional or mitigating factors. No credible evidence was submitted to fulfill those requirements.

22. In Moffatt, Ruling Number COM SB 005/2008 at para 56, Vice Chair Donnelly wrote on “the relationship between the ORC Policy on penalty stays pending a Commission hearing and the “strict liability principle”. “In strict liability offences, the burden of proof of “all reasonable care” shifts to the defence. Accordingly, the positive drug test, absent the licensee’s demonstration of due diligence, results in a finding of breach. On the application for a stay, the positive drug test which shifts the burden of proof on a balance of probability to the defence is already before the tribunal. Given that the prima facie guilty act and its profound gravity, protection of the public, of the competing racing community and of the integrity of racing mitigate against a stay. This is particularly so in relation to illegal performance enhancers such as EPO/DPO and the more serious Class I and Class II breaches.”

23. While acepromazine is a Class III drug, the policy and the rationale remain the same. Added support of the denial is the fact that the breach is now an absolute liability offence.

24. The Director acted appropriately in denying the stay.

DATED this 3rd day of November 2009.

Rod Seiling

Chair