Frank Hincks v. Ontario Racing Commission, 2013 CanLII 33813

RULING NUMBER COM SB 026/2013

COMMISSION HEARING TORONTO, ONTARIO – JUNE 4, 2013

NOTICE OF DECISION

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

AND IN THE MATTER OF THE FRANK HINCKS APPEAL

Frank Hincks appealed against Ruling Numbers SB Ruling Numbers 45050 and 44419.

Date of Hearing: June 4, 2013

ORC Panel Members: Chair Rod Seiling

Representative for Appellant: Self-represented.

Counsel for the Administration: Jennifer Friedman

The Panel denied the appeal but varied the penalty.

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

DATED at Toronto this 6th day of June 2013.

Steven Lehman

Executive Director

REASONS FOR DECISION

Overview

1Licensee, Frank Hincks, appealed SB Ruling Numbers 45050 and 44419, issued on May 1, 2013, wherein he was suspended for 60 days and fined $1,500 and put on probation for 2 years for violating SB Rules 9.09 (b), 26.02.01 and 26.02.02. The appeal was for the penalty portion of the Ruling, therefore, the onus under a strict liability defense shifted to the appellant.

Background

2A de novo hearing was held on June 4, 2013. Jennifer Friedman represented the Ontario Racing Commission (ORC). Mr. Hincks waived his right to legal counsel.

3The horse, Victoria, finished first in the 7th race at Western Fair Raceway on February 6, 2013. The appellant was the trainer of record.

4Following the race, the horse was selected for a post race testing. On February 15, 2013, a Certificate of Positive Analysis issued for the Class III drugs, Pseudoephedrine and Norpseudoephedrine.

5As per normal procedures, the ORC instituted a regulatory investigation which commenced on February 25, 2013.

6At all material times, the appellant was co-operative with Investigator Rushton including a Directive 5 search. Mr. Hincks could not explain the source of the positive test result and was of the opinion that possibly the source could be Step Up, a supplement he has used, or from groom, Marta Antolini, who was taking Buckley's medication that day.

7Subsequent testing conducted on Step Up proved negative for either drug. According to Dr. Adam Chambers, Manager of Veterinary Services for the ORC, it was his opinion that given that Ms. Antolini took the medication some 11 hours before she had contact with the horse in the paddock late the afternoon of the race, it was highly implausible that she would be the source of the ephedrine. Furthermore, he did a search on Buckley's and he could not find any Buckley's that contained pseudoephedrine and not dextromethorpham. If Buckley’s is the source for the positive then Hincks should have also had a positive for dextromethorpham because CPMA tests for dextromethorpham.

8Mr. Hincks submitted that he would never do anything to the horse, that to him racing is all about the horse. His clean record gives proof to his assertion. His cross examination of Dr. Chambers focused on his quest for knowledge on the drug, how it could possibly have gotten into the horse's system and its potential race altering impacts.

9The appellant raised concerns about the time delays involved from the date of the notice of the positive test result to the time of his hearing. He did acknowledge that part and parcel of the delay was directly attributable to him via additional testing and his health issues.

Issue

10Did the appellant, via cogent and compelling evidence, provide sufficient evidence to grant the appellant's appeal?

Decision

11After carefully listening to the testimony and reviewing the evidence and documents filed, the Panel denies the appeal but varies the penalty. The remainder of Mr. Hincks’ suspension is stayed effective with the release of this decision. All other aspects of the Rulings SB 44050 and 44419 remain in effect. Should he incur a positive test while under probation, the stay will automatically expire.

Reasons for Decision

12The horse, Victoria, had a positive test for a Class III drug. Under the trainer responsibility provision of the Rules, Mr. Hincks bears that responsibility. The Judges’ rationale for the penalty to be at the low end of the Penalty Guidelines is readily apparent and reasonable.

13Mr. Hincks has effectively served a 60-day suspension and in conjunction with the mitigating factors, it is reasonable to stay the remaining days of his suspension. Those mitigating factors include his co-operation, his desire to ferret out the potential source of the ephedrine, his previous good record, the impact this matter has had on his health and his readily apparent concern for the health of his horse. In juxtaposition is the positive test for a Class III drug.

14For greater certainty, let no one think this decision opens “Pandora's Box” as it relates to the “Phantom” positive test result. It is self evident the effect this Class III positive test result has had on the appellant's health and it is reasonable to conclude that given his time served, it is fair to stay the remaining length of the penalty.