Jay Cochlin v. Ontario Racing Commission, 2013 CanLII 12225

RULING NUMBER COM SB 001/2013

COMMISSION HEARING TORONTO, ONTARIO – JANUARY 22, 2013

NOTICE OF DECISION

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

AND IN THE MATTER OF THE JAY COCHLIN APPEAL

Jay Cochlin (“Cochlin”) appealed against Ruling Number SB 38039 issued on May 7, 2012.

Date of Hearing January 22, 2013

ORC Panel Members Chair Rod Seiling

Vice-Chair Anthony Williams

Commissioner Anne Walker

Representative for Appellant Brian Tropea

Representative for the Administration Brian Newton

The Panel denied the appeal.

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

DATED at Toronto, Ontario, this 24^h day of January, 2013.

Steven Lehman

Executive Director

REASONS FOR DECISION

Overview

1Licensee Jay Cochlin appealed SB Ruling No. 38039 issued on May 7, 2012, wherein he was suspended for one year, fined $5,000 and given two years probation for violating SB Rules 9.09 (a & b), 26.02.01, 26.02.02 and 26.02.03 (c). The basis of the appeal was for penalty only and the Appellant was issued an interim stay pending the hearing of his appeal. The penalty assessed by the Judges as per Policy Directive No. 1-2008 was the minimum for a first time offender for a Class II drug violation.

Background

2A de novo hearing was held on January 22, 2013. Brian Newton represented the Ontario Racing Commission (ORC), with Brian Tropea, Manager, Ontario Harness Horse Association, representing the appellant as a friend. It was agreed that the appeal was on penalty only with no dispute as to the positive test result for Ethyl Glucuronide, a metabolite of Ethanol.

3Cochlin referenced Gordon McDonnell’s case wherein he had a positive test result for Ethanol and was not suspended by the Judges. The appeal case against McDonnell was withdrawn by the Administration of the ORC citing “procedural irregularities”. He claimed that those same factors are present in his situation and should receive similar consideration.

4The circumstances related to the McDonnell case were acknowledged to be substantially different. The positive test in that case was the direct result of Clotol being administered by the appellant under the supervision of an ORC licensed veterinarian. At the time in question, veterinarians were using Clotol unaware that it could result in a positive test for Ethanol.

5The appellant was the trainer of record for the horse, Milliondollarkevin, when it raced and was the winner of the first race at Flamboro Downs on February 15, 2012.

6Milliondollarkevin was selected by the ORC Judges for a post race test. On February 22, 2012, the Judges received a Certificate of Positive Analysis for Ethyl Glucuronide, a metabolite of Ethanol.

7Ethanol is listed as a Class II prohibited drug under the Canadian Pari-Mutuel Agency (CPMA) Guidelines. It was added to the prohibited list effective March 26, 2008 (Ex. 1, tab 1) with notice to the industry via its normal dissemination protocols. That dissemination included electronic emails to the industry including horse people associations, trade publications and postings at tracks.

8On January 16, 2012, the CPMA issued a memorandum to the industry and provincial horse racing regulatory authorities and to the industry (Ex. 1, tab 6, page 9) that commencing February 13, 2012, the CPMA would be testing official samples for Ethanol and that confirmed detection would result in a positive test result as per Section 165 of the Regulations. On February 23, 2012, the ORC, as a courtesy, issued a reminder notice concerning the Ethanol testing (Ex. 1, tab 6, p 8).

9On January 19, 2012, CPMA undertook a wide distribution of the memorandum. At that time, after a review of the distribution list, the Director of the ORC concluded that due to the wide distribution coverage of the memorandum, there was no need for the Commission to follow suit with a similar notice to industry (Ex. 3, p.2, # 8).

10The appellant submitted via his representative that he was unaware of the test for Ethanol commencing just days before he received the positive test result for Ethanol for Milliondollarkevin.

11Veterinarians, Drs. Allison Moore and Sandra Pineau, confirmed that they were not informed and did not know until after the positive test that the CPMA was testing all official samples for Ethanol effective February 13, 2012. They believed there was an onus on the ORC and the CPMA to communicate to them about the new testing process. Both veterinarians were aware that Ethanol had been added to the CPMA’s prohibited list of drugs on March 26, 2008.

12Both veterinarians testified that they had never injected vodka into a horse because the substance was not on the list of permitted medications nor would they have done so if asked. Both agreed with Dr. Adam Chambers, Manager of Veterinary Services, that vodka administered to a horse could affect performance as it could calm the horse. Neither vet could agree with Dr. Chambers due to insufficient knowledge that such injections were a threat to the health and welfare of the horse and to other participants. Dr. Chambers based his testimony on this matter via research injections of a horse with vodka at a level less than that used by the appellant. However, Dr. Moore agreed with Dr. Chambers that the intravenous injection of vodka into the horse by the appellant would not have been sterile and that inflammation could have been caused as a result. Undisputed evidence was led that the appellant administered vodka (60 cc’s) into the jugular vein of Milliondollarkevin three hours prior to his race. The purpose was to calm him down before his race. He has been administering vodka in this manner to horses he trains for years.

13He told ORC Investigator, Pamela Bray, that the only time he did not administer the vodka pre-race, the horse finished eighth.

14There were legal medications such as Clotol of which the appellant was fully aware (Ex. 1, tab 12, p 20). They were, at one time, administered by an ORC veterinarian and would meet the same objective. Vodka was portrayed as the “poor man’s Clotol”. The appellant opted not to utilize the legal method of treatment claiming the cost of $150 was too much versus his modus operandi. According to Dr. Chambers, the objective of Clotol use was to help stop bleeding in the horse. Drs. Moore and Pineau submitted that Clotol could have similar performance enhancing effects as vodka. No research was submitted to support this suggestion.

15The appellant, through his representative claimed ignorance regarding the CPMA January 16, 2012 notice to the industry, that testing for Ethanol would be part of the normal testing for all samples obtained by the CPMA going forward and that this notice came out after the fact (Ex. 1, tab 6). The basis of the appeal was it was unfair to hold him accountable for the positive test result for a race on February 15, eight days before the ORC’s reminder notice on the matter.

Issue

16Are there sufficient mitigating factors to vary the penalty assessed by the Judges for a Class II positive test? Should the precedent of the McDonnell case of “procedural irregularities” apply to the appellant?

Decision

17After carefully listening to the testimony and reviewing the evidence and the documents submitted, the Panel denies the appeal.

Reasons for Decision

18There is no dispute that Mr. Cochlin is in violation of the Rules with the positive test for Ethanol, a prohibited substance under the published CPMA drug guidelines since March 26, 2008. He was the trainer of record for the horse at the time of the positive test and therefore is in violation of SB 26.02.01, 26.02.02 and 26.02.03 (c).

19Under SB 26.02.03 this is an absolute liability offence. The basis for this policy of the ORC is amply explained by Justice Donnelly in the Shakes Decision (SB 031/2012) at para 40. “… the Racing Commission in reliance that the legislature intended to provide effective means for the protection of the public interest adopted the absolute liability standard for the trainer responsibility rule.” Trainer responsibility is the foundation for protecting the public interest and the health and welfare of the horse. Simply stated, no effective trainer responsibility rule, no protection of the public interest or the health and welfare of the horse. Under trainer responsibility, “every trainer must guard, or cause to be guarded by the exercise of all reasonable standards of care and protection.” Injecting a horse with vodka clearly demonstrates a failure of that responsibility.

20A Class II is a very serious violation. A substance classified as a Class II means it is not to be used as it may be abused as it may impact on the welfare of the horse or affect performance. In this case, as per the appellant’s admission. it is reasonable to conclude it did impact on Milliondollarkevin’s performance and he is in violation of SB 9.09 (a & b). The only time he did not use it the horse finished eighth.

21The inappropriateness of the deed is further supported by the appellant’s witnesses. Both Dr. Moore and Dr. Pineau stated they would not inject the vodka as it is not a permitted substance. Both Doctors raised health concerns for the horse as to the sterility of the process and the product.

22Ignorance of the Rules (SB 1.04) is not an acceptable excuse for their violation. Licensees have a responsibility to know the rules. In this case, the prohibition for Ethanol had been in effect since 2008. The onus is on licensees to know the rules, not on the regulator to remind licensees of rules. It is irrelevant that the notice from the ORC was made public after Mr. Cochlin’s positive test. That notice was communicated as a courtesy to the effect that every official sample would be tested for Ethanol. Whether there was a test for Ethanol previously is irrelevant, it was a prohibited substance since March 26, 2008.

23The McDonnell case precedent is distinguishable from this appeal as the circumstances are markedly different as acknowledged by Mr. Tropea. McDonnell, while he administered the Clotol did so under the supervision of an ORC licensed veterinarian. Mr. Cochlin did not seek any professional advice notwithstanding the warning contained on page one of the CPMA’s Schedule of Drugs which reads: “Owners, trainers or any other person in charge or having care of a race horse are strongly advised to consult with their own veterinarian for advice and guidance in the use of all drugs.” Mr. Cochlin did not heed the warning as he did not seek the advice.

24The ORC notice of February 23, 2012, on Ethanol, was simply a courtesy reminder that the drug was now going to be tested on all samples. The fact remains Ethanol was a prohibited substance as of March 26, 2008 and had been included in two subsequent editions of the CPMA schedule which is available to every licensee “free”. The Panel notes that the concluding sentences in this Notice reminded licensees that it is their responsibility to review all CPMA memos and keep up to date on the CPMA Schedule of Prohibited Drugs.

25In terms of the penalty, as per the policy of the ORC, the appellant can argue under a strict liability defence as to its appropriateness. In this regard, Panels are quite correctly drawn to the standards for justification as set out by former Vice Chair, Justice Donnelly, in the Moffatt case (Ruling Number COM SB 005/2008).

26In terms of onus, the burden of proof shifts to the appellant in a strict liability argument as it relates to penalty. The argument must be clear, compelling and cogent as to why a variance in penalty should be imposed from those outlined in the ORC’s published guidelines (Ex. 3, p 7). Penalties in and of themselves are not set just to punish the violator. The intent also is to serve as a deterrent to others.

27Therefore, the penalty structure has been set for the good of racing. Panels need to guard against lowering that standard without clear, cogent and compelling evidence lest there be an erosion of that standard to the detriment of the public interest.

28Following that strict liability format, the appellant is provided the opportunity to demonstrate the exercise of due diligence or reasonable care on a balance of probability. That onus must, with clear, cogent and compelling evidence prove the following:

• Obligation to protect the horse in the person’s control
• Type, if any, security
• Knowingly stables where security is non-existent
• Evidence of precautions taken
• Security of feed
• Security of medications and records thereof
• Steps taken to mitigate

29The appellant failed to exercise any due diligence as he admittedly was the culprit in terms of injecting the vodka. He did this with the full knowledge that there was an alternative legal medication, Clotol, but chose of his own volition and without consulting his veterinary doctor to use the unapproved vodka. These facts in and of themselves outweigh any mitigating factors such as his co-operation with the ORC officials and his clear record in terms of rule violations over the past ten years.

30The assessed penalty was already at the minimum as set out in the ORC’s Penalty Guidelines. The appellant did not provide clear, cogent, and compelling reasons to vary the penalty in his favour. Given the serious nature of the offense, the need for deterrence along with a clear signal to other licensees that there are consequences for such rule violations, the penalty was not varied. It remains a one year suspension, a $5,000 fine and two years probation with the normal conditions attached at the expiry of the suspension.