Ontario

Racing

Commission

TB

RULING NUMBER COM SB 015/2009

COMMISSION HEARING TORONTO, ONTARIO JUNE 30, 2009

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

AND IN THE MATTER OF THE APPEAL AND REQUEST FOR A

HEARING OF STANDARDBRED LICENSEE REBECCA ROSE

On January 18, 2009, the horse, Thistrain Wontstop, trained by Rebecca Rose (“Rose”), finished 2^nd in the 7^th race at Flamboro Downs Raceway.

Following the race, the Judges at Flamboro Downs (the “Judges”) selected Thistrain Wontstop to provide a urine sample for testing.

On January 28, 2009, the Judges received a Certificate of Positive Analysis from Can-test Laboratory indicating a positive for Caffeine, Theobromine and Theophylline.

On April 24, 2009, further to the Judges’ Hearing, the Judges issued Standardbred Official Ruling SB 40641 wherein a one-year suspension (May 1, 2009 to April 30, 2010 inclusive) and a fine of $5000 were imposed upon Rose for violating Rules 9.09(a), 9.09(b), 26.02.01, 26.02.02, and 26.02.03 of the Rules of Standardbred Racing (the “Rules”) as a consequence of a class II positive. Rules 6.13.01, 9.13, 18.08.01 and 26.08 of the Rules were also listed in the Ruling.

In addition, the Judges issued Standardbred Official Ruling SB 40642 to Rose wherein, pursuant to Policy Directive No. 3-2008, conditions are to be placed on Rose’s licence upon reinstatement for a two year probationary period.

On April 30, 2009, Larry Todd, counsel for Rose, filed a Notice of Appeal on her behalf.

On June 30, 2009, a Panel of the Ontario Racing Commission (“ORC”), comprised of Chair Rod Seiling, Vice Chair the Hon. James M. Donnelly, and Commissioner Pamela Frostad, was convened to hear the appeal.

Jennifer Friedman appeared as counsel for the Administration. Larry Todd attended as counsel on behalf of Rose.

Upon considering the Agreed Statement of Facts, hearing the testimony of Dr. Weatherston DVM, Rose, ORC Investigator Oleh Kupraty, and ORC Judge Rick Rier, reviewing the evidence filed, and upon hearing the closing submissions, the Panel allowed the appeal in part as follows:

1. The Panel reduces both the penalty and fine as assessed in SB Ruling No. 40641. The penalty is reduced to 6 months with time already served to count and the fine is reduced to $2,500.

2. Ms. Rose is directed to co-ordinate the dates with the Judges at Flamboro Downs.

3. Ruling SB 49642 remains as assessed by the Judges.

Upon reinstatement, the conditions on Rose’s licence for a two-year probationary period are as follows:

1. The Licensee shall keep the peace and be of good behaviour;

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

3. The Licensee shall allow Commission investigators to seize any illegal or non-therapeutic medications or drugs found at his/her stabling area; and

4. The Licensee shall be subject to the Commission’s Out of Competition Program.

5. The Licensee may be subject to a Notice of Proposed Order in addition to any penalty imposed by the ORC Judges or Stewards for any breach of the terms of their licence.

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

DATED at Toronto this 7^th day of July, 2009.

BY ORDER OF THE COMMISSION

John L. Blakney

Executive Director

REASONS FOR DECISION

Overview

1. Standardbred licensee, Rebecca Rose, appealed a decision of the Ontario Racing Commission (ORC) Judges (Ex. 1, tab 23) wherein she was suspended one full year and fined $5,000 for a positive Class II drug violation for the horse, Thistrain Wontstop, which raced at Flamboro Downs on January 18, 2009, in the fifth race (Ex. 1, tab 3).

Background

2. Legal Counsel for the ORC, Jennifer Friedman, and for the appellant, Larry Todd, provided the Panel an Agreed Statement of Facts. It reads as follows:

• Rebecca Rose (“Rose”) is licensed with the Ontario Racing Commission (ORC) as a Trainer/Owner (licence #K17646). At all material times, Rose was the trainer of the horse, Thistrain Wontstop (tattoo #ZV659), and Everett Reid (licence #C36968) and Donald Graham (licence #E20114) were co-owners.

• On January 18, 2009, Thistrain Wontstop finished 2^nd in the 7^th race at Flamboro Downs Raceway.

• Following the race, the Judges at Flamboro Downs (the “Judges”) selected Thistrain Wontstop to provide a urine sample for testing. Test Inspector, Laura Robb, obtained the official sample, which was assigned control tag #263614. The sample was sent to Can-Test Laboratories for analysis.

• On January 28, 2009, the Judges received a Certificate of Positive Analysis from Can Test Laboratory in relation to the sample bearing control tag #263614 with a positive for Caffeine, Theobromine and Theophylline.

• On February 4, 2009, ORC Investigators Charles Beirnes and Oleh Kupraty interviewed Rose at Flamboro Downs Raceway. Among other things, Rose indicated that as part of normal procedure, she gave Step Up to Dr. John Weatherston to administer to Thistrain Wontstop, which substance the horse had been given before the last four starts.

• While Step Up is a labelled product, most of the ingredients are listed in Chinese.

• In or about the beginning of March of 2009, the analysis conducted on the product, Step Up, yielded the fact that it contains the substance Caffeine, and, therefore, ingestion of Step Up would lead to the detection in urine of Caffeine as well as its metabolites, namely Theophylline and Theobromine.

• On April 1, 2009, the Judges issued a Notice of Hearing and Videotape Review to advise Rose that they would be convening a hearing on April 24, 2009.

• On April 24, 2009, the Judges held Rose’s hearing at Flamboro Downs Raceway.

• Further to the hearing, the Judges issued Standardbred Official Ruling SB 40641 wherein a one-year suspension (May 1, 2009 to April 30, 2010 inclusive) and a fine of $5,000 were imposed upon Rose for violating Rules 9.09 (a), 9.09 (b), 26.02.01, 26.02.02 and 26.02.03 as a consequence of a class ll positive. Rules 6.13.01, 9.13, 18.08.01 26.08 were also listed in the ruling. Pursuant to Policy Directive No. 1-2008, the range enumerated in the Penalties Guideline for a first offence for a class ll positive is one to five years and a $5,000 fine. Therefore, the penalty ordered against Rose was the minimum recommended by the Guideline.

• The Judges also issued Standardbred Official Ruling SB 40642 to Rose wherein, pursuant to Policy Directive No. 3-2008, conditions are to be placed on Rose’s licence upon reinstatement for a two year probationary period.

• On April 30, 2009, counsel for Rose filed a Notice of Appeal on her behalf.

3. Mr. Todd stated that the appeal was based more on the penalty aspect assessed by the Judges as acknowledged that under SB Rule No. 26.02.03 the violation was an absolute liability. The ORC, in implementing this rule was clear in that it would consider a strict liability defence as it related to penalty. In that regard he argued that Ms. Rose deserved more leniency than that provided to the appellant in the Vrablic decision [Vrablic v O.R.C., Reasons for Decision, July 23, 2008] wherein Ms. Vrablic had her penalty reduced to 90 days from 8 months for the illegal use of Lidocaine on the horse that she was listed as trainer.

4. An undisputed clerical error occurred during the recording of Thistrain Wontstop’s urine sample identification tag. The horse’s tattoo number was recorded by Test Inspector Robb as SV659 versus ZV 659. Standardbred Canada, the official breed registrar for standardbred horses in Canada, confirmed to Investigator Kupraty and the Judges that there is no horse assigned the erroneous tattoo number. The error had no bearing on the validity of the test and Ms. Rose did not dispute this fact at the Judges’ hearing where she was represented by legal counsel.

5. Mr. Todd asked for and with Ms. Friedman’s concurrence, was granted permission to lead with his case to accommodate his witness, Dr. John Weatherston. Dr. Weatherston was the veterinary practitioner for Thistrain Wontstop and confirmed ORC investigator Oleh Kupraty’s investigative report that he administered a pre-race drench to the horse on the morning of the race at about 9:00 to 10:00 a.m. at Ms. Rose’s stable located at Jim Wellwood’s farm in Ancaster, Ontario. Dr. Weatherston’s medical records for the horse were entered into evidence, nothing other was administered that would result in the positive test.

6. Dr. Weatherston did not prepare the solution nor did he observe it being prepared. The preparation was undertaken by Ms. Rose and he accepted her explanation to him that it was a combination of Step Up and vitamins. He testified that he was unaware of the contents of Step Up but did know that other horse people used the product on their horses. It was his belief that if one was not aware of the ingredients of something one should not use it.

7. Ms. Rose has been licensed by the ORC for some 21 years and in that time frame her most serious rule violation was having her horse arrive late to the paddock for its pre-race lasix administration. She did not believe that her actions would result in a positive test for caffeine in that she purchased Step Up from a licensed vendor (Livestock Medicines Act) housed in the paddock of a licensed race track on a race day, followed the administration directions and that the listed ingredients did not make any reference to it containing caffeine. Furthermore, she arranged to have the administration of the product done by a licensed ORC veterinarian.

8. The January 18^th race was at least the third race that Step Up had been administered to the horse although that day was the first time the horse had been selected for test by the Judges. She also claimed and was unchallenged that she and other horse people had been using the product on their horses and had not had any positive tests. She alluded that perhaps the reason that Thistrain Wontstop’s positive resulted was because he is an EMP horse which restricts her ability to treat the horse with numerous products. Under questioning by Ms. Friedman, the appellant admitted that she did not know what 10 of the listed ingredients of Step Up were. She also acknowledged that she was aware of the trainer responsibility rules, including the absolute liability aspect.

9. Dr. Michael Weber, Manager, Veterinary Services for the Canadian Pari-Mutuel Agency was unable to testify. His evidence was tabled in the form of Investigator Kupraty’s interview report (Ex. 4, tab 1). That report indicated that “the decision limit for concentration of caffeine in testing procedures is 1 microgram.” Uncontroverted testimony indicated that Thistrain Wontstop’s caffeine concentration was 3 times above the legal level. The conversion was made possible by utilizing the report from Louisiana State University (Ex. 1, tab 12, p 10). In that report, Dr. Barker, Professor and Director of the laboratory, stated that on testing the split urine sample collected from the horse on January 18, 2009, they found the concentration level of caffeine at about 3.1 ug/ml. Dr. Weber added that the presence of Theophylline and Theobromine, listed drugs in their own right, “suggested that the horse ingested a substance to bring them into the positive level.” Dr. Weber went on to say that the substances referenced by Ms. Rose in her interview with the ORC investigators, namely Pyruvate, HCA, Rx650 mlgs, and Step Up contain no active ingredients to satisfy the high level of caffeine.

10. Counterbalancing this latter statement of Dr. Weber’ was the unchallenged evidence tabled by the appellant re the independent testing of Step Up she had Dr. Weatherston undertake post the positive test. That report, (Ex. 1, tab 12, p 9) from IDEX Laboratories, indicated the presence of caffeine in the sample of Step Up.

11. ORC Judge, Rick Rier, testified that following Ms. Rose’s hearing with the Judges on April 24, 2009, they needed to ensure consistency in the penalty that was to be assessed to her for her violation of Rules Nos. 9.09 (a) and (b), 26.02.01, 26.02.02 and 26.02.03. In arriving at the penalty they consulted the Penalty Guideline, Policy Directive No. 1-2008 (Ex. 2, tab 1) and looked for precedent penalties. In this regard, they found two, Todd James (Ex. 2. tab A) who was assessed a one year and $5,000 fine for a caffeine positive and George Johnson (Ex.2, tab B) who was penalized 10 months and fined $5,000 for a similar offence.

12. The Judges also identified mitigating and aggravating factors (Ex. 1, Tab 24, p 62) in helping them to arrive at the appropriate penalty. Mitigating factors as listed in Judge Minler’s notes from the hearing were “use of a vet”, “nothing on the label”, “no prior drug penalties”, “had used previously”, “bought at track” and “followed directions”. Aggravating factors listed were “post test cert. a class II”, “2 previous caffeine positives, James & Johnson”, “trainer responsibility rule” and didn’t do due diligence regarding the ingredients.”

13. Based on these past penalties, the need to have consistent penalty ranges and that Ms. Rose’s penalty was at the minimum within the guidelines, the Judges agreed that the one year, $5,000 penalty was appropriate given the circumstances.

Issue:

14. In as much as Mr. Todd agreed that Ms. Rose, under SB Rule No. 26.02.03, bore the trainer responsibility for the positive Class II test on the horse, Thistrain Wontstop, was there merit in reducing the penalty assessed by the Judges?

Decision

15. After carefully reviewing the testimony, the evidence and documents submitted, the Panel reduces both the penalty and fine as assessed in SB Ruling No 40641 (Ex. 1, tab 20). The penalty is reduced to 6 months with time already served to count and the fine is reduced to $2,500. Ms. Rose is directed to co-ordinate the dates with the Judges at Flamboro Downs. Ruling SB 49642 (Ex.1, tab 21) remains as assessed by the Judges.

Reasons for Decision

16. While Mr. Todd did not challenge the validity of the positive test on Thistrain Wontstop, for greater certainty, the Panel wants to clarify that the technical error in recording the actual tattoo number of the horse would not be reason to void the rule violation. This Commission must protect the participants and the public interest. To have allowed a technicality to trump the deed would be a failure. The Commission possesses wide powers in this regard as the Court has recognized Re Morrissey Armstrong and the Ontario Racing Commission [1960]. The Court said, “One only has to look at the powers granted to the Commission.....all with the manifest intention that the Commission should regulate horse racing as it affects those who participate in it and the public who patronize it or any odium cast upon it”.

17. The Panel applauds the Judges for how they handled Ms. Rose’s appeal, especially as it relates to identifying the mitigating factors and juxtaposing them with the aggravating factors and recognizing the need for consistency in penalties. Licensees deserve to see and understand that similar penalties are assessed for similar rule violations when it comes to punishment. Likewise they need to be made aware that they are treated fairly and equally and that the Judges do take into consideration mitigating and aggravating circumstances. They also need to see that there is a deterrent factor so as to signal those who may run afoul of the rules that doing the crime will result in a meaningful response from this Commission.

18. The Panel, in weighing the various factors identified by the Judges, looked at this case to see how it differed, if at all, from both the James and Johnson cases. In addition to the appellant’s good record over 20 plus years, the two mitigating factors stood out. The first, and not listed by Judge Minler, weighing in her favour was that there was no demonstrated intent to gain an unfair advantage. Her positive test was the result of her admitted failure to conduct the due diligence required by every trainer. Trainers must never forget that they bear the ultimate responsibility for the health and welfare of their horse and for not violating the public trust as it relates to the absolute need that every race be conducted on a level playing field.

19. The other significant factor was Ms. Rose’s use of her veterinarian, Dr. Weatherston, which weighs in her favour. Licensees should be able to rely on the professional expertise of their veterinary doctor in the administration of medicines to their horses such that when they employ them such use will not result in a positive test. In this case the evidence is clear, cogent and compelling. Ms. Rose employed Dr. Weatherston to administer the Step Up to Thistrain Wontstop. Dr. Weatherston, in his capacity as a veterinary doctor and licensed by the Commission, has a responsibility not to administer any substance to a horse, especially one “in to race” that he does not know what the ingredients are. Notwithstanding that Ms. Rose acquired the product and pre-mixed it, Dr. Weatherston needs to follow his own advice in this regard. Veterinarians practising in the province of Ontario on racehorses need to know the rules of horseracing as promulgated by the Ontario Racing Commission, and in particular, that under SB Rule No. 9.09 they could be held liable for a positive test on a horse.

20. The Panel notes that neither of these two factors was present in either the James or Johnson cases. Both flow to the credit of Ms. Rose.

21. With respect to Mr. Todd’s suggestion that his client deserved a lesser penalty than that assessed to Ms. Vrablic’s successful appeal of her positive test, the mitigating factors weigh against it as they relate to his client’s lack of any due diligence. Ms. Rose did not, as she acknowledged, fulfil her duty in that regard by using a product that included 10 ingredients she did not know what they were. Ms. Vrablic on the other hand, wrongly assumed that the children’s version of a topical medical product would not have any Lidocaine ingredient given that it was not present in the adult versions she checked.

DATED this 7^th day of July 2009.

Rod Seiling

Chair