Julie Belhumeur v. Ontario Racing Commission, 2010 CanLII 98962

RULING NUMBER COM TB 011/2010

COMMISSION HEARING TORONTO, ONTARIO – JUNE 16, 2010

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

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

THOROUGHBRED LICENSEE JULIE BELHUMEUR

Thoroughbred Owner/Trainer/Exercise Person Julie Belhumeur (“Belhumeur”) appealed Thoroughbred Ruling TB 6421/10, dated May 16, 2010, wherein she was suspended from May 19, 2010, through March 31, 2011, and fined the sum of $5,000 for violation of Rules 15.06.01(a) and (b) of the Rules of Thoroughbred Racing as a result of a positive test for the Class II drug, Caffeine, and it’s Metabolites Theophylline and Theobromine, taken from the horse, BACK TO YOU, which raced in the 9th race at Fort Erie Racetrack on October 27, 2009.

On June 16, 2010, a Panel of the Commission consisting of Commissioner John Macdonald, Commissioner David Gorman and Commissioner Dan Nixon, was convened to hear the appeal.

Angela Holland appeared as counsel for the Administration. Belhumeur attended the hearing and Conrad Cohen appeared as her representative.

Upon considering the Agreed Statement of Facts, hearing the testimony of ORC Senior Steward William McMahon, ORC Investigator Richard Grant, Dr. Michael Weber, Belhumeur, Sue Milligan and Sean Coulthard, upon reviewing the exhibits filed, and upon hearing the submissions, the Panel ruled as follows:

1. The Appeal is allowed with a variance reducing the suspension to six months (to November 19, 2010), with time already served to count and the fine is reduced to $2,500.

2. Upon reinstatement, the condition of Ms. Belhumeur’s licence for a two-year probationary period shall be as set out in Policy Directive 3-2008, specifically:

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

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

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

iv. The Licensee shall be subject to the Commission’s Out of Competition Program; and

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

3. At the request of Mr. Cohen, the Panel agreed to recommend to the ORC that, if an application is made by Belhumeur to be licensed, other than as an owner or trainer, favourable consideration should be given in their discretion to the granting of such licence.

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

DATED at Toronto this 30th day of June 2010.

BY ORDER OF THE COMMISSION

John L. Blakney

Executive Director

REASONS FOR DECISION

Overview

1. The licensee, Julie Belhumeur, appealed a decision of the Ontario Racing Commission (ORC) Stewards (Ex. 2, tab L) wherein she was suspended one full year and fined $5,000 for a positive Class II drug violation for the horse, BACK TO YOU, which raced at Fort Erie on October 27, 2009, in the 9th race (Ex. 2, tab 2).

Agreed Statement of Facts

2. Counsel for the ORC, Angela Holland, and for the appellant, Conrad Cohen, provided the Panel with an Agreed Statement of Facts (Ex. 4) as follows:

3. The licensee (through her agent) and General Counsel for the Administration of the Ontario Racing Commission (the “ORC”) agree to the following facts:

4. Julie Belhumeur (“BELHUMEUR”) was licensed with the Ontario Racing Commission (ORC) as an Owner/Trainer/Exercise Person (licence #125406). At all material times, Belhumeur was the trainer of the horse, BACK TO YOU (tattoo number J21716).

5. On October 27, 2009, BACK TO YOU finished 1st in the 9th race at Fort Erie Raceway and was sent for post race testing. Plastic containers of blood were taken from the horse, sealed with tag number 329307B and sent to CanTest Laboratories for analysis.

6 On or about November 4, 2009, the Judges at Fort Erie Raceway received a Certificate of Positive Analysis from CanTest in relation to the sample bearing tag number 329307B with a positive test for Caffeine, Theophylline and Theobromine.

7. Notice of Hearing, dated November 5, 2009, was provided to Ms. Belhumeur, scheduling a Hearing for May 1, 2010.

8. A Steward’s Hearing was convened on May 1, 2010.

9. On May 16, 2010, Ruling Number TB 6421/10 was issued by the Stewards to Belhumeur wherein she was suspended from May 19, 2010, through March 31, 2011, and fined the sum of $5,000 for violation of Rules 15.06.01(a) and (b) of the Rules of Thoroughbred Racing as a result of a positive result for the Class II drug “Caffeine” taken from the Thoroughbred horse BACK TO YOU, (tattoo number J21716), which raced in the 9th race at Fort Erie Racetrack on October 27, 2009.

10. In addition, TB 6421/10 ordered at the completion of Belhumeur’s suspension in accordance with Policy Directive No. 3-2008, Belhumeur will be on probation for the next two years following completion of her suspension and must abide by the following terms:

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

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

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

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

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

11. On May 20, 2010, Belhumeur filed a Notice of Appeal with respect to Ruling Number TB 6421/10.

12. On June 3, 2010, a Notice of Hearing was issued.

Background

13. The uncontroverted testimony was that there was a caffeine concentration following the blood test that placed the horse above the legally permissible level. The evidence on behalf of the appellant was about the possibility of the horse obtaining caffeine through a contaminant in the stable from feed and/or bedding and/or the walls of the stable.

14. In addition, there was substantial evidence that the horse, at one time with a previous trainer, had a fondness for coffee which came from a groom that shared his coffee with the filly. The groom testified that the horse only had sips and while this was done on a regular basis it was never given to the horse less than four days before any race and it had been five weeks prior to the race in question that he had given the horse any coffee with the ownership having changed in the interim.

15. Dr. Michael Weber, Manager, Veterinary Services for the Canadian Pari-Mutuel Agency, testified that, in his view, the caffeine would no longer be in the filly’s system from the time it had been given to her by the groom. There were no elimination guidelines with respect to caffeine in coffee or coke. It was highly unlikely that any contaminant, urine on hay or otherwise, could have resulted in the positive test for caffeine. He pointed out that the caffeine was a stimulant that had no basic therapeutic value. It is a central nervous system stimulant and may even mask other drugs. He agreed that there could be an environmental contamination through the herbal field but that any supplements would have to be tested in order to determine the presence of any caffeine.

16. 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. He pointed out that Theophylline is also a diuretic and that caffeine and Theobromine are found in some equine feeds. Rick Grant, an ORC investigator, had checked the information available with respect to the feed supplements being used by Ms. Belhumeur and he found no indication that there was any caffeine in such supplements.

17. ORC Steward, William McMahon, testified that following the hearing on May 16, 2010, the Stewards unanimously agreed that there was a violation of TB Rule 15.06.01(a) and (b) and that Ms. Belhumeur should be assessed a penalty of a one year suspension and a $5,000 fine in accordance with the Penalty Guideline, Policy Directive No. 1-2008 (Ex. 2, tab A).

Issues

18. (i). Did the caffeine in the system of BACK TO YOU come from an external source that was not the responsibility of Ms. Belhumeur as the trainer of that filly?

(ii). Since TB Rule 15.06.01(a) and (b) has trainer responsibility for the positive Class II test result on BACK TO YOU, was there any merit in reducing the penalty assessed by the Stewards?

19. In the opinion of the Panel, there was no evidence that the presence of caffeine in the system of the filly, at the time of the test on her, came from any supplement, coffee that may have been given to the horse at one time, or any contaminant in the stable of the trainer or the surrounding area. The answer to 18 (i) is therefore “No.”

20. All Licensees deserve to see and understand that similar penalties are assessed for similar rule violations when it comes to punishment. They need to be made aware that they are treated fairly and equally and that the Stewards do take into consideration mitigating circumstances. They also need to be aware that there is a deterrent factor so as to signal those who violate the rules that this will result in a meaningful response from this Commission.

21. Ms. Belhumeur’s only prior violation as a licensee is when she acquired the services of a suspended veterinarian in August, 2007 for which she was fined $200 and was given a 30-day suspension, which was stayed.

22. In arriving at the appropriate penalty, the Stewards followed the Penalty Guideline, Policy Directive No. 1-2008 (Ex. 2, tab A). The Panel examined that directive and the four cases listed in Ex. 1, tab A. The Panel considered the security at the track where Ms. Belhumeur was stabled, the unexplained source of the caffeine and her record as a trainer.

23. The Panel examined the four cases in Ex. 1, tab A to see how they differed. The appellant has a good record and there was no suggestion that she benefited by gaining an unfair advantage in the race in question as she is not an owner of BACK TO YOU. The positive test was, at least in part, due to the failure of due diligence on her part in providing care, as well as security, to avoid caffeine being ingested by the filly. The ultimate responsibility for the health and welfare of her horse and for not violating the public trust is the obligation of the trainer. The public must be assured that every race be conducted on a level playing field and as a result the rules require full trainer responsibility.

24. Mr. Cohen argued for the more lenient penalty in the Vrablic decision [Vrablic v. O.R.C., Reasons for Decision, July 23, 2008] and the Panel was of the opinion that in this instance, the penalty in the Rebecca Rose case [Rose v. O.R.C., Reasons for Decision, June 30, 2009] would be more appropriate as an example as to the penalty to be applied.

25 (a) The answer to 18 (ii) would be “Yes” and the appeal is allowed with a variance reducing the suspension to six months (to November 19, 2010) with time already served to count and the fine is reduced to $2,500. The Panel considers mitigating circumstances in applying penalties but does not consider any financial implications to the appellant as the Commission’s mandate under the Racing Commission Act is to apply the rules, subject to its discretion where permitted.

26 (b) Upon reinstatement, the condition of Ms. Belhumeur’s licence for a two-year probationary period shall be as set out in Policy Directive 3-2008 (see Ex. 1, tab 2, page 5) which is also in paragraph 10 above.

27. At the request of Mr. Cohen, the Panel agreed to recommend to the ORC that, if an application is made by Ms. Belhumeur to be licensed, other than as an owner or trainer, favourable consideration should be given in their discretion to the granting of such licence.

DATED this 30th day of June, 2010.

John W. Macdonald, Q.C.

Commissioner

ONTARIO RACING COMMISSION

RE: THOROUGHBRED HEARING

IN THE MATTER OF AN APPEAL AND REQUEST FOR HEARING OF JULIE BELHUMEUR

Held Before:

John Macdonald, Commissioner

David Gorman, Commissioner

Dan Nixon Commissioner

This is an excerpt of a Hearing of the Ontario Racing Commission re: JULIE BELHUMEUR, taken before Toronto Court Reporters, Suite 1410, 65 Queen Street West, Toronto, Ontario, at 10 Carlson Court, Suite 400, Toronto, Ontario, on the 16th day of June, 2010.

Appearances:

Angela Holland, representative for the Ontario Racing Commission Administration

Conrad Cohen, representative for the licensee Julie Belhumeur

Hearing continued ...

MR. CHAIRMAN: Please be seated. The panel hearing is now reconvened. There will be written reasons to follow the decision. We thought you should at least be aware of what our feelings were. We are not convinced as to what happened. It is still an unknown as to how the caffeine got into the horse's system. We are not convinced that the caffeine came from the fact that the groom has been giving the horse coffee. We are not convinced that there is any contaminant involved. We have no positive indication of that. We do know that there obviously is some due diligence problems here. It may be a factor of where the barn is located that there weren't enough security so if someone did deliberately put the caffeine in its system. Those are all possibilities. We realize that this is a first offence and given there is many unknown factors we have decided that in the circumstances there is some mitigating factors and those will be set out in more detail. Our decision will be that the appeal will result in a variance of the order in that Julie Belhumeur's suspension will be six months. So that will go until November 19th and the fine will be reduced to $2,500.00. Now along with that, and that will be set out, as in the usual orders from policy directive number 3.2008 and that's including notice involving investigators, being subject to the Commissions out of competition testing, the usual one that she keep the peace and be of good behaviour and that she give access and subject to those, order in addition to any other penalty for any breach. We do appreciate the fact that there was an agreed statement of facts. The matter dragged on longer than we would have liked but we explored every possible avenue. We do thank Dr. Weber for giving us the information in relation to where the caffeine may or may not have come from. We all have that. We also recommend during the suspension time and Mr. Cohen had asked and I don't think the Commission has the power to grant or give a license but can recommend that Ms. Belhumeur should apply to the Racing Commission during the balance of time of her suspension for some other position relating to race horses except during the suspension time she may not be an owner or a trainer but would not prevent her from applying for another position at the Racing Commission. Any questions?

MR. COHEN: Am I to understand that she could apply for a groom's license or an exercise person's license under the trainer?

MR. CHAIRMAN: Yes but that would have to be done through the Administration itself.

MR. COHEN: But you would have no objection to that?

MR. CHAIRMAN: We would have no objection to that but I don't think we have the authority to do that. We can't so order. It would have to be put through the Administration procedure.

MR. COHEN: I'm trying to understand the ruling. She will make application. Does that mean that the Commission would not object?

MR. CHAIRMAN: We will not object but it would have ‑‑

MR. GORMAN: This panel would not object.

MR. COHEN: That's good enough for me.

MR. GORMAN: But somebody else might.

MR. COHEN: I see. That could possibly be the association? Is that who you are referring to?

MR. GORMAN: No, it could be the Ontario Racing Commission itself. Whoever handles the processing of the application might say no, for whatever reason.

MR. COHEN: This will be in your ruling, fine. Thank you.

MR. CHAIRMAN: Anything further?

MS. HOLLAND: No, thank you.

MR. CHAIRMAN: This hearing is terminated.

CERTIFIED CORRECT:_________________________________

RAYMOND P. MACDONALD, B.A., CVR

Commissioner of Oaths