AND IN THE MATTER OF THE TERRANCE JORDAN APPEAL

Terrance Jordan appealed against Ruling Number TB 7948/2012.

Date of Hearing: June 10, 2013

ORC Panel Members: Chair Rod Seiling

Commissioner John Macdonald

Commissioner Brenda Walker

Counsel for Appellant David Milburn

Counsel for the Administration: Angela Holland

The Panel denied the appeal.

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

DATED at Toronto this 4^th day of July 2013.

______________________________

Steven Lehman

Executive Director

REASONS FOR DECISION

Overview

Licensee, Terrance Jordan, appealed TB Ruling Number 7948/2012 issued by the Ontario Racing Commission (ORC) Stewards on September 15, 2012, wherein he was suspended for 6 months and fined $5,000 for violating Thoroughbred Rules 15.06.01 (a), (b), and 15.06.03 (c). He was also placed on probation for a period of 2 years following the expiration of his suspension, pursuant to Policy Directive No. 3-2008. The Ruling was issued as a result of a positive test result for Acepromazine for the horse, Hollywood Hit, of which he was the trainer of record when it raced and won on September 7, 2012, at Woodbine Racetrack in the 8^th race.

Background

Hollywood Hit raced at Woodbine on September 7, 2012, winning race 8. The appellant was the trainer of record. Anita Bolton was the assistant trainer for the appellant. Following the race, the horse was selected for a post race test. That test resulted in the issuance of a positive test result for Acepromazine. Following a Stewards hearing held on September 15, 2012, the Stewards issued TB Ruling No. 7948/2012 suspending Mr. Jordan for 6 months and fining him $5,000. The suspension was to run from December 5, 2012 to December 16, 2012, with the remainder of the suspension to start with the commencement of the thoroughbred racing season in 2013. The penalty issued by the Stewards was the minimum as per the Penalty Guidelines (Ex. 1, tab 7) for a second offence for a Class III drug.
A de novo hearing was held on June 10, 2013. Angela Holland represented the ORC as legal counsel. David Milburn represented the appellant as legal counsel. A request for a stay was denied by the Deputy Director on December 7, 2012 (TB Ruling No. 73/2012).
Two preliminary matters were dealt with at the start of the hearing. Mr. Milburn informed the Panel that he would not be raising a Charter of Rights matter as referenced in his Factum (Ex. 4). Legal counsel for both sides did not, as required by the ORC's Rules of Procedure, provide advance notice of their intent to call expert witnesses and as to what areas of expertise those experts were to be qualified. Ms. Holland and Mr. Milburn both agreed to have Dr. Adam Chambers, Manager of Veterinary Services for the ORC and Research Manager for the CPMA qualified as an expert witness for the ORC and Dr. Thomas Tobin, a member of the Department of Veterinary Science for the University of Kentucky, qualified as an expert witness for the appellant. Dr. Tobin offered that he serves as the adviser to the national Horsemen’s Benevolent and Protective Association (HBPA).
An Agreed Statement of Facts was read into the record as per Part 2 of the appellant's Factum commencing on page 6 of Exhibit 4. Added to the Agreed Statement of Facts during the reading into the record, was that there was no issue with the chain of command with the sample or the positive test result.
With the admissions contained in the aforementioned, the burden of proof upon the Administration was satisfied, namely that Jordan was the trainer of record for the horse and that there was a positive test result for Acepromazine, a Class III drug.
The appellant, as per the Rules, conducted a retest using a split sample from Hollywood Hit's test blood sample. That sample showed a concentration of 59 picograms/ml for Acepromazine and HydroxyEthylPromazine [HEP] at 150 picograms/ml, the latter being the metabolite of the drug. (Ex. 5, tab 2). The horse tested positive for Acepromazine in 2009 with a concentration of the metabolite of the drug at 160 picograms/ml (Ex. 5, tab 2).
Dr. Tobin was of the opinion that this was a very low concentration level and should not have resulted in a positive test result for Acepromazine. He submitted that the CPMA must have changed its testing so that it was now more sensitive. Dr. Chambers confirmed that the CPMA changed its testing about 5 years ago, around 2008 but that there was no change to the guidelines. As of 2010, all samples tested for Acepromazine were tested under the new test. If there was a problem with the test, a spike in positive test results should have occurred, but there was none. He would not confirm, as to a question from Mr. Milburn, whether the split sample retest would constitute a positive test result. Mr. Milburn requested that the Panel order Dr. Chambers to answer his question. The CPMA does not, unlike some foreign jurisdictions, provide the threshold level for calling a positive for Acepromazine. This policy is in place to prevent trainers from tritaiting their horses to their advantage. In his opinion, withdrawal times are more important to the horse. That importance tells a trainer when to stop administering the drug.
Dr. Chambers, in his June 9, 2013 letter, (Ex. 6) on page 2, references the referee sample (split sample retest). That sample, which found the drug concentration to be 59 picograms/ml or HEPS at152 picograms/ml did not indicate the error of measurement for the concentrations. If accurate, the letter stated, “…would be indicative of an oral administration of a booklet dose, administered closer to the race than the elimination guidelines suggest. In determining a concentration level for a drug, one must know the amount of the drug administered and the time it was administered.”
Doctors Chambers and Tobin had different views on the reliability of compounded medications versus licensed medications. Dr. Chambers submitted that one cannot be sure of the amount of the drug in a compounded medicine due to the issues related to quality control. There are numerous scientific studies in support of this view and he cited a University of Ca lifornia at Davis as one example. Dr. Tobin referenced an RMTC study to support his view regarding the quality of compounded medications. The significance is that the Acepromazine administered to Hollywood Hit came via a compounder (Ex. 2, tab 2, Bolton letter to Tobin).
According to Dr. Chambers, one needs to follow the guidelines contained in the CPMA's Schedule of Drugs. In this case, he submitted that the appellant did not, given the number of time the horse was administered the drug. Hollywood Hit was administered Acepromazine 22 out of 38 days according to one furnished training schedule (Ex. 2, tab 2). In another training schedule for the horse it shows administrations of the drug 98 out of 128 days (Ex. 2, tab 2)
The amount of the drug administered did not adhere to the Guidelines. This fact was undisputed as per Dr. Chambers’ November 9, 2012 letter (Ex. 1, tab 13).
The CPMA's Schedule of Drugs, on page 1 of the publication, contains the following warning. It reads as follows: “The information on drug excretion rates does not constitute and is not a warranty, guarantee, assurance, undertaking or anything similar that the results of the use of any of the drugs in the manner set out will be as stated. Agriculture and Agri-Food Canada is not responsible for results differing in any way from the results stated herein. Use of any information in this booklet does not relieve or lessen any trainer's responsibility for assuring that during a horse race, a horse is free from any drug listed in the Schedule to Pari-Mutuel Betting Supervision Regulations and for complying with the provisions of the Regulations and provincial racing rules. Owners, trainers or any other person in charge or having care of a race horse are strongly advised to consult their own veterinarian for advice and guidance in the use of all drugs. The guidelines in this booklet may not be consistent with foreign regulations and laboratory methods.” At the bottom of page 9 dealing with Acepromazine of the same publication it states: “It is stressed these results are presented as guidelines only and should not be construed as absolute for every horse to which this drug is administered.”
Dr. Chambers opined that with the horse, given multiple doses of Acepromazine over a long period of time, that the drug could linger in the horse's system. This is not new information. Alerts to trainers were issued on the HPBA website (Ex. 7) in February of 2009 and again in 2010 that the use of Acepromazine administered orally can linger in a horse's system and that if a horse was receiving regular doses, a clearance test was advisable. Dr. Tobin was directly involved in this warning. (Ex. 6, para 5) An Australian study (Ex. 6, para 6) confirms that the “concentration level of the ACP (acepromazine) can vary markedly depending on single or multiple doses.” Dr. Tobin agreed that the drug could remain in a horse's system for a couple of weeks given the aforementioned scenario. Hollywood Hit was administered the drug orally as per Bolton's confirmation. Dr. Tobin submitted that notwithstanding multiple doses of the drug could add 10 to 15 picograms extra it would not be significant.
Notwithstanding the aforementioned, Dr. Tobin submitted that at the retest level of 59 picograms/ml Hollywood Hit should not have resulted in a positive test for Acepromazine. California, a number of years ago, adopted the CPMA's method for calling Acepromazine positive tests and according to him, based on the information made available it was his submission 59 picograms/ml would not result in a positive. Dr. Chambers would not comment on the results, referencing his letter of June 9, 2013 (Ex. 6) that the information was incomplete as it lacked the error of measurement. That letter went on to say that “if accurate, it would be indicative of an oral administration of a booklet dose, administered closer to the race than the suggested elimination guidelines.” Dr. Tobin did agree that the drug could linger in a horse's system for a couple of weeks after administration. This supports Dr. Chambers’ submission regarding the drug staying in the horse's system and is consistent with the warnings issued by the HPBA, the trainer’s organization.
The basis for Dr. Tobin's opinion was the time, 84 hours out before the race, when the last oral administration of the drug was stated to be administered. Dr. Tobin produced his own training schedule (Ex. 11) for the horse. This schedule showed that Hollywood Hit was administered Acepromazine 4 times in the 12 days leading up to the race.
The documents filed included three separate training schedules for the horse and a veterinary bill for Hollywood Hit. Included in the schedules were the medications administered to the horse. The schedules are located in Exhibit 1, tab 6 and 2 in Exhibit. 2, tab 2. One indicates that the horse received 98 administrations of Acepromazine over a 128 day period, another training schedule for the horse indicated 22 administrations of the drug over 38 days. Dr. Tobin's schedule (Ex. 11) showed 4 administrations of the drug over 12 days. The veterinary bill from Chris and Colangelo Service (Ex. 1, tab 2) indicates an administration of Altravet (Acepromazine) post race on September 7, 2012. This administration does not show up on any of the training schedules for Hollywood Hit.
Acepromazine is a Class III drug under the Racing Commissioners International Guidelines. It is a tranquillizer. It does have therapeutic value but because it can affect the performance of a horse in a race, the drug must clear the horse's system before it can race. The Panel is not in agreement with the appellant's claim that Dr. Chambers testified that the drug would have had no effect on the horse.
The CPMA, in its Schedule of Drugs, provides elimination times for its use. “There are no elimination guidelines for doses higher than 10 mg given on multiple days” (Ex. 6, para 2). There are no guidelines for dosages higher than this amount. There was no dispute that the horse’s dosages were higher (Ex. 1, tab 13).
Mr. Milburn was asked, but did not agree, that with the Agreed Statement of Facts, that the hearing was now on penalty and with a strict liability defense, the onus was on the appellant by way of cogent and compelling evidence to demonstrate why the appeal should succeed.
He submitted that it was a due diligence defense. Mr. Jordan’s assistant trainer, Anita Bolton, followed the CPMA Guidelines as published in its Schedule of Drugs (P. 9 for Acepromazine). Those guidelines state for that oral administration of the drug which was the method of administration for Hollywood Hit, the withdrawal time frame is 24 hours to 36 hours. Ms Bolton added an extra 36 hours, such that it was some 84 hours in advance of the race that the horse received the Acepromazine via a drench. Dr. Chambers submitted that with the number of administrations of the drug to the horse, the appellant had not followed the guidelines.
ORC Investigator, Rick Grant, interviewed Ms. Bolton as part of a search at the appellant's shed row at Woodbine. She was co-operative and on being asked if there was any Acepromazine present, took him to a garbage container that contained an empty plastic container of Altravet (Acepromazine). Altravet was used to settle the horse with the normal dose being 2/3 cc but she also told Mr. Grant the horse got 4/5 of a cc before the horse trained. She also provided the horse's training records which included all the medications given to the horse.

Issue

Is the split sample test result sufficient in and of itself to allow the appeal to succeed? Should the penalty assessed by the Stewards to Mr. Jordan be varied? Is the CPMA's policy of not providing the concentration levels for Acepromazine reasonable? Should the Panel, as requested by Ms. Holland, ask the ORC to investigate the discrepancies contained in the training schedules for Hollywood Hit?

Decision

After carefully listening to the testimony and reviewing the evidence and documents filed, the Panel denies the appeal. Furthermore, the ORC is directed to investigate the discrepancies in the training schedules furnished by the appellant for Hollywood Hit and take whatever action it deems appropriate.

Reasons for Decision

Hollywood Hit, as per the Agreed Statement of Facts, had a positive test result for Acepromazine from its race of September 7, 2012. Acepromazine is a Class III drug under RCI's Classification system. Under the ORC's Rules, No. 15.04.06, this is an absolute liability offense. The minimum penalty for a Class III violation, second offence, as per the Penalty Guidelines, is 6 months and a $5,000 fine.
The split sample test result is insufficient evidence to enable the appeal to succeed. Notwithstanding Dr. Tobin's assertion that the result indicates the horse was under the concentration level for a positive test, the Panel accepts Dr. Chambers’ evidence that without knowing the error of measurement, he could not comment as to whether that test reading of 59 picograms/ml or HEPS at 150 picograms/ml would constitute a positive test result. Dr. Chambers provided this information to the appellant in his June 9, 2013 letter (Ex. 6). For whatever reason, Dr. Tobin did not respond.
An appellant, under the ORC's Rules, can utilize a strict liability defense as to penalty. The onus shifts to the appellant. In this regard, that evidence must be clear, cogent and compelling. Mr. Jordan's submission as one of due diligence, does not meet that standard on a review of the evidence. The standard of proof is on a balance of probabilities (F.H. McDougall [2008] 3 SCR 11).
As per Kelly Lester and Robert Zubkoff v. the Ontario Racing Commission, Court File No. 135/08 & 136/08 at para 7, “It is not disputed that the appropriate standard of review is reasonableness, as articulated in Dunsmuir v. New Brunswick, [2008] S.J.C. No. 9. In other words, the ORC is to be accorded considerable deference by an appeal court because of its broad mandate and expertise in regulating and maintaining the integrity of standardbred racing in Ontario. This level of deference is also accorded ORC decisions on penalty: Friedman v. Ontario Racing Commission, [2008] O.J. No. 1235 at para 3 (Div. Ct.).
The appellant did not follow the Guidelines, (a) on the number of administrations outlined in the Guide, (the horse was administered the drug 98 out of 128 days), (b) on the dosage outlined in the Guide, (higher), (c) used unlicensed (compounded) medications.
The CPMA's Schedule of Drugs provides “Guidelines”. They are not guarantees as clearly stated in the publication. However, given the history of the Guidelines, it is reasonable to conclude, that if followed, trainers can rely on them for accuracy in terms of avoiding a positive test including that for Acepromazine. The organization is challenged resource wise just as virtually every other racing related regulator. It is reasonable that for those “Guidelines” to have value, one must adhere to them. It cannot and should not be expected to provide a guideline for every type of possible drug administration for Acepromazine. The possibilities are endless when one considers the potential multiples of doses versus the amounts.
Mr. Jordan ignored two separate warnings from his own association, the HPBA, on the potential danger of the repeated oral use of Acepromazine related to it remaining in the horse's system for an extended period of time. His own expert witness was directly involved in those warnings. Both expert witnesses agreed on this point. He also ignored the warning about obtaining a clean test before racing after the oral administrations of the drug. Given this was the second positive test for the drug with the same horse, one would expect that Mr. Jordan would have been careful to ensure the Guidelines were followed.
There is no merit that Mr. Jordan should have been warned, in advance, of the change in the testing for Acepromazine by the CPMA. The guidelines did not change. If the change in the testing was material to this positive test, one would expect that there would have been a spike in positive tests for the drug in 2010 post the change. Undisputed evidence was led that there was none. Four positive tests for Acepromazine in 2012 are more reasonably related to trainers not following the Guidelines than the change two years later.
On a balance of probabilities, it is reasonable to conclude that the positive test for Hollywood Hit was a result of multiple administrations of Acepromazine in combination with the amount administered and the usage of unlicensed compounded, Acepromazine. It is clear from the evidence that Hollywood Hit was “training” on the drug. This phenomenon is sometimes referenced as “stacking”. Trainers need to be aware of the dangers of this practice, both from the build up of the drug in a horse's system and from the health and welfare of the horse.
The evidence shows that the training schedules provided by the appellant with the administration of the drug, Acepromazine, do not match with the records of the attending veterinarian. Notwithstanding Mr. Milburn's attempt to explain it in his final submission, no reason was forthcoming at the hearing for this omission. Reliability of those records and therefore, of the number and amount of the administrations of the drug comes into play. Those schedules make no reference to a post race dosage of the drug while the veterinary records do. Licensees are required to be honest under the Rules. Therefore, it is prudent for an investigation as to why the discrepancies.
Mr. Jordan had a responsibility to protect his horse, Hollywood Hit, TB 15.06.01 (a). He had ample opportunity. This was the 2^nd positive test for the drug. He had the guidelines from the CPMA's Schedule of Drugs as to what amount of the drug he could administer, the suggested elimination time frame, he had the 2 warnings from his own association, the HPBA, as to the lingering effects of oral administrations of Acepromazine in a horse's system and the suggestion to get a clean test before racing. He ignored all three. Therefore, a due diligence defense is not available to him.
The ORC has a mandate to protect the public interest and the health and welfare of the horse. The CPMA's policy of not releasing concentration levels for Acepromazine positive tests supports that mandate. Releasing such data could serve to help some trainers administer the drug right up to the point a positive test would not result. The Panel agrees with Dr. Chambers that withdrawal times are preferred as one needs to do “what is best for the horse.”
The levels of concentration of the drug of 59pg/ml or HEPS at 152 pg/ml in the split sample retest are irrelevant. As per the Agreed Statement of Facts, Hollywood Hit tested positive for Acepromazine from its race on September 7, 2012, at Woodbine. So too are Dr. Tobin's comments that based on his knowledge from a prior CPMA presentation in Kentucky, they were insufficient for a positive test result. Furthermore, the accuracy of the readings was unconfirmed. The appellant has ample opportunity to address the concerns expressed by Dr. Chambers regarding the lack of error in measurement as expressed in his June 9, 2013 letter.
It is reasonable to conclude the appellant was not prejudiced by the non-disclosure of the 2012 study on Acepromazine conducted by the CPMA. The Panel accepts Dr. Chambers’ explanation that this study had minimal use in forming his opinions as the dosage used in the study was much higher.
In regards to penalty, the Panel is mindful of and agrees with Vice Chair, Donnelly's comment in Shakes, RULING NUMBER COM SB 031/2012 at para 58. It reads, “... Although not binding on the Panel, the guidelines do promote consistency and predictability of penalties thereby contributing to fairness.”
The penalty is not varied. The principles of penalty are twofold, deterrence and denunciation. Aggravating factors against a variation are: This is the appellant's second positive test for Acepromazine with the same horse in some 3 years, he did not follow the CPMA's Guidelines, he ignored warnings, he did not seek a clean test nor are the training schedules reliable as to their accuracy related to the administration of the drug. Mitigating factors were the co-operation of Ms. Bolton, all medications were locked up as required, good procedures related to drugs were in place and he had installed a security system. Notwithstanding, to vary the penalty as requested would not be in the best interests of racing. The signal it would send would be counterproductive to the Commission's objectives as they relate to penalties. The penalty assessed by the Stewards is the minimum as per the Guidelines. A second positive test for the same drug with the same horse in a relatively short time frame should not benefit from a reduction.
The appellant referenced a number of precedents to support his submission. They are not material as for example in Berringer, Ruling Number COM 016/2006 this appeal occurred before the ORC's “absolute liability rule” came into force or they deal with first time violations such as Raghunath (TB 006/2013) or Armata (TB019/2010). With regard to the Fuoco decision, the cited precedent is incorrect as per ORC records and therefore not relevant.

DATED this 4^th day of July 2013.

___________________________

Rod Seiling

Chair

Terrance Jordan Appeal (Re), 2013 CanLII 40346

Case Summary

AND IN THE MATTER OF THE TERRANCE JORDAN APPEAL