RULING NUMBER COM SB 039/2013
COMMISSION HEARING TORONTO, ONTARIO – SEPTEMBER 30, 2013
NOTICE OF DECISION
IN THE MATTER OF THE RACING COMMISSION ACT, S.O. 2000, c.20;
AND IN THE MATTER OF THE APPEAL OF KELLY GOODWIN
Kelly Goodwin appealed against Ruling Numbers SB 45842 and 45598.
ORC Panel Member: Chair Rod Seiling
Representative for Appellant: Self-represented
Counsel for the Administration: Angela Holland
The Panel allowed the appeal.
The Panel’s Reasons for Decision is attached to this Notice.
DATED at Toronto this 30th day of September 2013.
Steven Lehman
Executive Director
REASONS FOR DECISION
Overview
- Licensee, Kelly Goodwin appealed SB Rulings Nos. 45842 and 45598 dated August 23, 2013 and September 5, 2013 respectively, wherein the horses Five Towns and Kaptain Kelly were suspended for 90 days for violating SB Rules 11.10.01 and 20.01.01 (i).
Background
A hearing was held on September 30, 2013. Angela Holland represented the Ontario Racing Commission (ORC) as legal counsel with Kelly Goodwin appearing without legal counsel.
An Agreed Statement of Facts was presented, a copy of which is directed to be attached to this Decision as Appendix 1.
That Agreed Statement of Facts confirmed that, following an investigation conducted by ORC investigators, the cause of the Class II positive test results for Ractopamine for both Five Towns and Kaptain Kelly was contaminated feed, and as trainer of both horses, Goodwin was held blameless.
That same Agreed Statement of Facts contained confirmation from Dr. Adam Chambers, the Commission’s Chief Veterinarian, that both horses were now “clear” of the drug given the passage of time and were eligible to race.
Issue
- Have both horses met the three part test (extraordinary circumstances, balance of convenience and public interest) required to grant a stay from the 90 day Rule?
Decision
- Both Five Towns and Kaptain Kelly are granted stays from SB Rulings 45842 and 45598. Both horses, given Dr. Chambers’ opinion that the drug will have cleared their respective system, are eligible to race immediately.
Reasons for Decision
Both horses meet the three part test as referenced in the Reasons for Cuzpa (COM SB 010/2012) and Moreau (COM SB 037/2013). The evidence in support is cogent, clear and convincing.
There was an extraordinary circumstance. The investigation concluded that the cause of the positive tests for the Class II drug, Ractopamine, was tainted feed and that trainer Goodwin was not involved (unaware) and was held blameless.
From a balance of convenience perspective, the scales favour the appellant as does any matter related to the public interest.
The drug, given the passage of time, has cleared the horses’ systems according to the expert opinion of Dr. Chambers. The horses are already racing as per the temporary stays granted via SB 87/2013 (Kaptain Kelly) and SB 88/2013 (Five Towns).
DATED this 30th day of September 2013.
Rod Seiling
Chair
APPENDIX 1
Ontario
Racing
Commission
Commission
des courses
de l’Ontario
Suite 400
10 Carlson Court
Toronto, Ontario M9W 6L2
Tel 416 213-0520
Fax 416 213-7827
Bureau 400
10 Carlson Court
Toronto (Ontario)
M9W 6L2
Tél 416 213-0520
Téléc 416 213-7827
ONTARIO RACING COMMISSION
IN THE MATTER OF THE APPEAL AND REQUEST FOR HEARING OF
KELLY GOODWIN – FIVE TOWNS and KAPTAIN KELLI
AGREED STATEMENT OF FACTS
RESPECTFULLY SUBMITTED BY
ANGELA HOLLAND
COUNSEL FOR THE ADMINISTRATION
OF THE ONTARIO RACING COMMISSION
HEARING DATE: SEPTEMBER 30, 2013
AGREED STATEMENT OF FACTS
Kelly Goodwin (GOODWIN), ORC License Number (0169S3), is the trainer of the horse FIVE TOWNS (tattoo number 9G024) and KAPTAIN KELLY (tattoo number 7F992) and .
On August 16, 2013, FIVE TOWNS raced in 5th race at Mohawk Raceway and finished 2nd. Following the race FIVE TOWNS was sent for urine testing.
On August 23, 2013, Maxxam Laboratories delivered a Certificate of Positive Analysis for the Class 2 drug Ractopamine, for the urine taken from FIVE TOWNS on August 16, 2013.
On August 23, 2013, as a result of the Positive Test Certificate the Judges issued Ruling (SB 45842) in accordance with Rules 11.10.01 and 20.02.01 (i), which suspended FIVE TOWNS for 90 days (August 23, 2013 – November 20, 2013 inclusive).
On August 23, 2013, KAPTAIN KELLY raced in the 10th race at Mohawk Raceway and finished 1st. Following the race KAPTAIN KELLY was sent for urine testing.
On September 3, 2013, Maxxam Laboratories delivered a Certificate of Positive Analysis for the Class 2 drug Ractopamine, for the urine taken from KAPTAIN KELLY on August 23, 2013.
On September 5, 2013, as a result of the Positive Test Certificate the Judges issued Ruling (SB 45598) in accordance with Rules 11.10.01 and 20.02.01 (i), which suspended KAPTAIN KELLY for 90 days (September 5, 2013 – December 3, 2013 inclusive).
On September 13, 2013, a Judges’ Hearing was held with respect to the positive tests for Ractopamine for the horses FIVE TOWNS and KAPTAIN KELLY. After reviewing the evidence, including the results of an ORC Investigation, the Judges issued Ruling (SB 45856) which found no fault with GOODWIN. The Judges stated in their Ruling
“ … Evidence proved conclusively that the contamination occurred without the knowledge of Mr. Goodwin. This Panel finds no fault against Mr. Goodwin.”
- On September 14, 2013, GOODWIN delivered a Notice of Appeal with respect to Judges’ Ruling (SB 45842) which suspended FIVE TOWNS for 90 days and Ruling (SB 45589) which suspended KAPTAIN KELLY for 90 days. In the Notice of Appeal GOODWIN stated the following:
“I am asking that you kindly consider releasing from suspension two horses that I train (Kaptain Kelly & Five Towns) that they may return to racing in Ontario without fault based on the following facts:
ORC pulled sample tests of our grain and ADM Power Glo returned positive for Ractopamin
ADM Alliance submitted a letter stating that beyond all precautionary measures there was still the possibility of cross contamination
ADM Alliance admitted using Ractopamine in the same plant where our grain was processed
FDA regulations that protect cross contamination are only set in place to protect the ‘safety’ of equine, since no guideline or studies have proven it unsafe they are unfortunately not zero tolerance rules
We have since switched all our grain to Purina because they assure us that they process only equine fees in one plant and absolutely NO medicated feeds in the same plant
Random independent urine tests have since shown are barn to be free of Ractopamine contamination
There was absolutely no intentional wrongdoing on my part”
On September 17, 2013, the Deputy Director issued Ruling (SB 88/2103) with respect to the suspension of FIVE TOWNS and Ruling (SB 87/2013) with respect to the suspension of KAPTAIN KELLY, staying both suspensions on the following conditions:
Goodwin must provide evidence (blood/urine) that both horses are clear of Ractopamine;
Goodwin attend a hearing before the Ontario Racing Commission scheduled for September 30, 2013.
On September 17, 2013, a Notice of Hearing was delivered with respect to the within hearing.
On September 23, 2013, a report dated September 20, 2013, from Scott Stanley to Dr. Rachel Shrader was received, advising that blood samples from FIVE TOWNS and KAPTAIN KELLY had been tested and no Ractopamine was detected.
On September 23, 2013, a letter was provided by Dr. Adam Chambers stating:
“While I cannot give a guarantee of the results of any future drug test, given the facts in this case I am confident that the ingestion of the contaminated feed of four weeks ago will not trigger a further positive test in these horses.”