Ontario

Racing

Commission

TB

RULING NUMBER COM SB 023/2009

COMMISSION HEARING TORONTO, ONTARIO – AUGUST 27, 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

STANDARDBRED LICENSEE JASON KLEIN

On December 5, 2008, the Judges at Georgian Downs (the “Judges”) selected the horse, TNT (tattoo # V36987), which finished 4^th in the 5^th race that day, to provide a blood sample for Total Carbon Dioxide (“TCO₂”) analysis. At all material times, Jason Klein (“Klein”) was the trainer and owner of TNT.

On December 12, 2008, the Judges received a certificate of positive TCO₂ analysis, a laboratory report and the TCO₂ confirmatory testing document. The analysis indicated that TNT’s sample contained an excess level of TCO₂ of 39.9 millimoles per litre of blood. The laboratory report and TCO₂ confirmatory testing document indicated that the sample was tested more than 48 hours post collection.

On December 13, 2008, the Judges issued Standardbred Official Ruling SB 37392 to TNT wherein the horse was placed on the judges list for 90 days as a consequence of a TCO₂ positive (Class III), in accordance with Rules 20.01.01(i) and 11.10.01 of the Rules of Standardbred Racing (the “Rules”).

On December 30, 2008, the Judges issued Standardbred Official Ruling SB 37395 wherein Klein was fined $1500 and subject to a 60-day full suspension for a positive TCO₂ test on TNT, pursuant to Rules 9.09(b), 26.02.01, 26.02.02, 26.02.03(d), 9.13 and 18.08.01 of the Rules. The Judges also issued Standardbred Official Ruling SB 37396 to Klein wherein terms were added to his licence, pursuant to Policy Directive No. 3-2008. In addition, the Judges issued Standardbred Official Ruling SB 37397 to TNT wherein the purse was redistributed in accordance with Rule 18.08.01 of the Rules.

On January 14, 2009, Klein filed a Notice of Appeal.

On January 29, 2009, the (Acting) Executive Director issued Ruling Number S.B. 10/2009 wherein Klein was granted conditional stays of the penalties imposed in Rulings 37395 and 37396.

On August 27, 2009, a Panel of the ORC, comprised of Chair Rod Seiling, Vice Chair James M. Donnelly and Commissioner Brenda Walker, was convened to hear the appeal.

Jennifer Friedman appeared as counsel for the Administration. Mike Stoikopolous attended as Klein’s representative.

Upon considering the Agreed Statement of Facts, hearing the testimony of ORC Judge John Harper, Dr. Mike Weber and Richard Tso, reviewing the evidence filed, and upon hearing the closing submissions, the Panel denied Klein’s appeal.

Klein shall pay a $1500 fine and complete his 60-day suspension. The suspension will re-commence immediately upon the issuance of this Ruling. Moreover, the terms of Klein’s two-year probation are as follows:

1. Shall keep the peace and be of good behaviour;

2. Shall allow Commission investigators access to his stabling area at any time to conduct unannounced random searches for illegal or non-therapeutic medications or drugs;

3. Allow seizure as stated in 2 above;

4. Be subject to the Commission’s Out of Competition Program;

5. Subject to Notice of Proposed Order, in addition to penalties imposed by ORC Judges for breach of probation.

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

DATED at Toronto this 9^th day of September, 2009.

BY ORDER OF THE COMMISSION

John L. Blakney

Executive Director

REASONS FOR DECISION

Overview

1. Standardbred licensee, Jason Klein, appealed (Ex. 1, tab 21) a decision of the Judges, SB 37392, wherein he was fined $1500 and suspended for 60 days for a positive TCO₂ test on the horse TNT which raced at Georgian Downs in the 5^th race on December 5, 2008 (Ex. 1, tab 10).

Background

2. Michael Stoikopoulos, requested permission to represent the appellant, Jason Klein, as a friend. Jennifer Friedman, legal counsel for the Ontario Racing Commission (ORC) did not object. Based on the reasons from the Siddall decision, SB 022/2009, the Panel agreed with the request.

3. Mr. Stoikopoulos raised two procedural matters prior to the commencement of the hearing. His first issue related to the impartiality of the Chair based on the hearing of the Sean Sullivan appeal that he claimed was similar in nature. He also claimed that the Commission should have combined his client’s hearing with the Sullivan hearing given both matters were similar in nature.

4. Ms. Friedman argued that the hearing for Mr. Klein was a “de novo” hearing and that Mr. Stoikopoulos did understand the meaning or intent. As a new hearing there is no reliance on what transpired in a previous hearing, the decision in the case at hand is determined by the testimony, evidence and submissions made and as in every Commission hearing, a Panel attributes the appropriate weight to the evidence. As to why the Administration did not combine the Sullivan hearing with Mr. Klein, Ms Friedman stated that no request was made by the appellant and that there were differences between the two appeals, specifically the time period of communication re the test delay and the technical aspects of the ruling.

5. The Panel ruled that the Chair need not recuse himself as the issues are factual and there would be no bias and that the Administration properly did not combine Mr. Klein’s appeal with that of Mr. Sullivan. The appellant had ample time to make such a request as he should have been aware of the time delay issue as he was given the written information from Racing Forensics laboratory on December 27, 2008 (Ex. 1, tab 5), some 5 ½ months before the Sullivan hearing.

6. An agreed Statement of Facts was submitted to the Panel. It read as follows:

a. Jason Klein is licensed with the Ontario Racing Commission as a Driver/Owner/Trainer (licence #M65583). At all material times, Klein was the owner and trainer of the horse, TNT.

b. On December 5, 2008, TNT finished 4^th in the 5^th race at Georgian Downs.

c. Following the race, the Judges at Georgian Downs selected TNT to provide a blood sample for Total Carbon Dioxide (TCO₂) analysis.

d. On December 5, 2008, TCO₂ test inspector Sabine Meixner obtained an official sample from TNT with the test card assignment #576666, which sample was transferred in a locked cooler, sealed, and prepared for transport. The collection was carried out in front of Klein, and Klein signed the test card.

e. On December 8, 2008, the sample was tested, with confirmatory analysis performed.

f. On December 12, 2008, the Judges at Georgian Downs received a certificate of [positive analysis, a laboratory report and the TCO₂ confirmatory testing document. The analysis indicated that the sample, bearing test card assignment #576666, contained an excess level of TCO₂, namely a level of 39.9 millimoles per litre of blood. The laboratory report indicated that the sample was tested more than forty-eight hours after collection.

g. Rule 22.38.05(6) of the Rules of Standardbred Racing provides, among other things, that the approved laboratory is responsible for analyzing samples within forty-eight hours of collection. However, Mike Weber, Manager, Veterinary Services, CPMA, advised that “the longer the delay the lower the TCO₂ readings”. In effect, the delay in analysis works to the benefit of the subject, with no prejudice to the subject sample.

h. Notwithstanding the delay in analyzing the samples bearing test card # 576666 with the potential consequence of a lower TCO₂ concentration, the confirmatory test report reflected an excess level of TCO₂.

i. On December 13, 2008, the Judges at Georgian Downs called Klein to advise him of the positive test and, further, that ORC Investigator Russ Fernandes would be contacting him to schedule an interview.

j. On December 13, 2008, the Judges at Georgian Downs issued Standardbred Official Ruling SB 37392 to TNT wherein the horse was placed on the Judges list for 90 days as a consequence of a TCO₂ positive (Class III), in accordance with Rules 20.01.01 (i) and 11.1001 of the Rules.

k. On December 13, 2008, the Judges at Georgian Downs issued Standardbred Official Ruling SB 37392 to TNT wherein the horse was placed on the Judges list for 90 days as a consequence of a TCO₂ positive (Class III), in accordance with Rules 20.01.01 (i) and 11.1001 of the Rules.

l. On December 16, 2008, ORC Investigator Russ Fernandes interviewed Klein.

m. On December 23, 2008, the Judges at Georgian Downs contacted Klein and arranged for him to attend on December 27, 2008.

n. On December 27, 2008, all documentation in connection with TNT’s positive test was provided to Klein. In addition, the Judges sought to schedule a hearing for December 30, 2008. However, Klein waived his right to a hearing. The Judges asked Klein to speak to penalty. The Judges reserved their decision until December 30, 2008.

o. In arriving at the penalty, the Judges considered that it was a first offence and that Klein was very co-operative as mitigating factors.

p. Pursuant to Policy Directive No.1-2008, Penalty Guidelines for Equine Drug, TCO₂ and Non-Therapeutic Drug Offences, the minimum penalty for Class III, first offence is a $1500 fine and a 60-day suspension.

q. On December 30, 2008, the Judges at Georgian Downs issued Standardbred Official Ruling SB 37395 wherein Klein was fined $1500 and subject to a 60-day full suspension for a positive TCO₂ test on TNT pursuant to Rules 9.09 (b), 26.02.01, 26.02.02, 26.02.03 (d), 9.13 and 18.08.01 of the Rules. The Judges engaged in a technical error in the body of SB 37395 by applying the rules relating to a positive drug test as opposed to a positive TCO₂ test. The correct rules are as follows: 22.38, 22.38.05, 22.38.06 and 22.38.08. Notwithstanding, the errors are technical, all requisite information for a finding under the TCO₂ rules were present in the body of the Ruling, there was no prejudice to the appellant, and the appeal is a hearing de novo.

r. The Judges also issued Standardbred Official Ruling SB 37396 to Klein wherein terms were added to his licence, pursuant to Policy Directive No. 3-2008. Moreover, the Judges issued Standardbred Official Ruling SB 37397 to TNT wherein the purse was redistributed,

s. On January 14, 2009, the Judges at Mohawk Raceway met with Klein and his representative, Mike Stoikopoulos, at Mohawk Raceway. The Judges provided the investigator’s report to Klein. In addition, the Judges explained that at the time of the issuance of the ruling that they did not verbally advise him of the fact that the sample was tested outside of the standard forty-eight hour period. The Judges indicated that the sample was tested approximately sixty-nine hour’s post collection. They speculated that the delay was due to it being the first Friday of racing and, as such, samples were not picked up until Monday. However, the delay is clearly indicated in the laboratory report, which formed part of Klein’s initial disclosure. The Judges advised that, according to Dr. Mike Weber, a delay in testing worked in his favour. Klein asked whether the Judges would consider a lesser penalty as he preferred additional days as opposed to a fine. The Judges indicated that they were not in a position to impose a lesser penalty but advised Klein of his right to appeal.

t. On January 14, 2009, Klein filed his Notice of Appeal on the following grounds: “concern over proper protocol of testing procedures. Blood was not tested for over 69 hours after being drawn”.

u. On January 29, 2009 the (Acting) Executive Director issued Ruling Number SB 10/2009 wherein Klein was granted conditional stays of the penalties imposed in Ruling Numbers 37395 and 37396.

v. On July 30, 2009, a Notice of Hearing was issued to advise that a Panel of the ORC would be convening on August 27, 2009 for the purposes of hearing the Appeal.

w. On July 30, 2009, Mike Stoikopoulos sent a letter to the attention of the Executive Director of the ORC in respect to concerns he had with the scheduling of Klein’s hearing.

x. On July 31, 2009, counsel for the Administration sent a letter to Mr. Stoikopoulos advising that the Executive Director was away from the office but that response to his concerns would follow shortly.

y. On August 6, 2009, counsel for the Administration furnished Mr. Stoikopoulos with a proposed Joint Book of Documents. In addition, counsel indicated that the concerns expressed in his July 30, 2009 correspondence would be addressed in the Factum on behalf of the Administration.

7. Mr. Stoikopoulos did not lead with any evidence at the hearing but argued during cross examination that the Judges should not have tested the sample from TNT once the forty-eight hour time period had expired as per SB 22.38.05 (6). He claimed that as per ORC Judge, John Harper, testified, if a horse is late to reporting for the EIPH (lasix) program, it is scratched and as a consequence the ORC should not test TCO₂ levels beyond the 48 hours in the Rule.

8. Dr. Michael Weber, accepted as an expert witness and Manager of the Canadian Pari-Mutuel Agency’s Veterinary Services, testified via phone due to his unavailability to attend the hearing. He substantiated that he had advised the Judges as per their telephone call to him that the time delay for TNT’s TCO₂ test would not prejudice Mr. Klein as TCO₂ levels reduce over time. In support of his testimony, the Panel was referred to two published scientific studies on this matter (Ex. 1a, tabs 2 & 3). The first report, the Effects of Sampling and Analysis and Furosemide Administrations On TCO₂ Concentrations In Standardbred And Thoroughbred Horses, states on page 1, “There was no significant difference in the mean TCO₂ concentration in the population of the samples that were analyzed at 48, 72, or 96 h compared to the population analyzed within 24 h of sampling. Results useful to regulators could still be generated after 48 h.” The second report, The Detection and Performance of Sodium Bicarbonate Administration in the Racehorse, confirmed those findings as it states on page 133, “There was no significant differences (p. <0.05) between values for TCO₂, obtained by the Autoanalyzer immediately after sampling and on each of the five days. The values at Day 5 were not identical to those at Day 0, as the stored samples tended to decrease 1-2 mmol/l.”

9. Richard Tso, Vice-President of Racing Forensics Inc, the company responsible for the TCO₂ testing program, confirmed that TNT was the only horse out of twenty-four samples from that racing program that had a positive TCO₂ test with a level of 39.9 mmol/l (Ex. 1, tab 5). This document was disclosed to Mr. Klein on December 27, 2008 and on both page 10 and page 11 the laboratory clearly reports that the samples were tested more than forty-eight hours past post time.

10. With regard to the analyzing of the samples within forty-eight hours referenced in SB 22.38.05(6), Dr. Weber testified that it was not a CPMA rule. Mr. Tso stated that the objective with a forty-eight time frame was to ensure there were fewer false negatives and that in extending the time frame beyond the forty-eight hours there was no chance in calling a false positive. To not test any samples past the forty-eight hour time frame would be to miss some positive tests.

11. ORC Judge, John Harper, confirmed that the Judges had made a technical error when they issued SB Ruling No. 37395. He testified that they should have referenced the positive test but he believed that they had sufficient references to violations of the rules in the Ruling. He also admitted that the Judges did not verbally notify Mr. Klein when they first discussed the positive TCO₂ test with him on December 13, 2008, as at that time they were not aware of the time issue. He did confirm that Mr. Klein was given the disclosure package on December 27, 2008, which has the time stated as being outside of the forty-eight hours but any verbal communication re the time happened at a later date.

12. Judge Harper explained that despite the Ruling date of December 30, 2008, the effective date was January 5, 2009 as it related to the appellant. The reason was that the Judges wanted to allow Mr. Klein time to find employment and with the holiday season at hand thought it appropriate. To that end, they met with Blake McIntosh, the trainer who employed Mr. Klein (Klein had one horse) and helped facilitate where Mr. McIntosh would continue to employ Mr. Klein, albeit with horses that were not racing.

Issue

13. Was the time delay in testing TNT’s sample past the forty-eight hour time frame referenced in SB 22.38.05 (6) sufficient reason to overturn the Judges’ Ruling SB 37395? While the appellant did not argue this point, the Panel believes that it should also address the issue as to whether the technical error contained in that same Ruling would be sufficient reason to grant the appeal?

Reason for Decision

14. After carefully listening to the testimony and reviewing the evidence and submissions, the Panel denies Mr. Klein’s appeal. Mr. Klein’s penalty becomes effective with the date of this ruling.

15. The forty-eight hour time frame referenced in Rule 22.38.05 (6) does not say “must” be tested within that time frame, it is a suggested guideline as per Dr. Weber’s testimony. There was no suggestion or question as to the accuracy of the test result. The test result at sixty-nine hours did not prejudice Mr. Klein. The evidence is clear, the samples can be accurately tested up to ninety six hours. The delay was only to Mr. Klein’s advantage as per the Lynn case, [2007] O.R.C.D. No. 2, Ruling Number COM SB 002/2007. Furthermore, there was a reasonable explanation why the sample was tested late, a snow storm prevented pick up. It would be unreasonable to expect that the Commission would draft a rule knowing that there would be instances that samples could not be tested within the referenced forty-eight hours. The Panel suggests the Commission clarify the fact with the next rule amendment process.

16. The purpose in reading the rule as a suggested guideline is to protect racing in general and the public interest. It is all about integrity, the very foundation of the sport. It is why the Commission made any violation of this rule an absolute offence. “Milkshaking” a horse has no therapeutic benefit to a horse; its perpetrators do so to affect performance. It would be unreasonable not to test samples past the forty eight hour time frame and thereby, in effect, give cheaters a free ticket.

17. As Judge Harper admitted, the Judges erred when they referred to SB Rules Nos. 20.01 and 11.10 and did not reference the TCO₂ positive test, SB Rules Nos. 22.38, 22.38.05 & 06 and 22.38. However, the error is a technicality, one of form, not substance. There was no prejudice to Mr. Klein, the substance of the Ruling was correct. The Supreme Court of Canada recognized this truism in R. v. Moore, 1988 CanLII 43 (SCC), [1988] 1 S.C.R. 1097, [1088] S.C.J. No. 58, File No: 18214 where at para 17 it states, “So long as the defect does not prejudice the accused and the Crown actually proves all the elements of the offence, a conviction will be valid. Defects in form do not defeat what is valid in substance”. Through the agreed statement of facts TNT had a positive TCO₂ positive test.

18. The Panel notes that the Judges went beyond and above their duty in their efforts to accommodate Mr. Klein. They were concerned. They assessed the penalty at the lowest end of the spectrum and helped ensure that he had a job within the industry so as to be able to support his family. The onus now falls to Mr. Klein to demonstrate that their faith in him was not in vain. This Commission has a policy of rehabilitation, but it also has a duty to protect the health of the horse and the public interest. It will not and cannot allow a few to detract from those objectives.

19. While no evidence was lead, the Panel noted that Mr. Stoikopoulos raised the time delay issue in correspondence with Ms. Friedman as negatively impacting Mr. Klein. The delay clearly rested with the appellant as he did not respond to the attempts by the Administration to set a hearing date. As the Commission has noted in the past, too many times once a licensee receives a stay, the willingness to co-operate with the Administration re a hearing date decreases. This fact was a contributing factor to the Commission’s no stay policy unless for unusual circumstances. The Panel recommends that when a stay is issued there be a set period of time established wherein an agreed hearing date is set. Failing such an agreement, the Administration will arbitrarily set the date. If the licensee still is unwilling to attend the hearing, the stay is to expire on that date.

DATED this 9^th day of September 2009.

Rod Seiling

Chair