RULING NUMBER COM SB 008/2014
COMMISSION HEARING TORONTO, ONTARIO – APRIL 22, 2014
NOTICE OF DECISION
IN THE MATTER OF THE RACING COMMISSION ACT, S.O. 2000, c.20;
AND IN THE MATTER OF THE APPEALS OF KELLY SHEPPARD
Kelly Sheppard appealed against Ruling Numbers SB 44438, SB 44437, SB 46139 and SB 46140.
Date of Hearing: April 22, 2014
ORC Panel Members: Chair Elmer Buchanan Commissioner John W. Macdonald Commissioner Anne Walker
Representative for the Appellant: Brian Tropea (as a friend)
Counsel for the Administration: Jennifer Friedman
The Panel adjourned the appeal for six months to a date in November 2014 to allow for further investigation into another causal link from a source which results in aminorex, and examine alternative measures to deal with positive aminorex drug tests.
The Panel’s Preliminary Decision is attached to this Notice.
DATED at Toronto this 26th day of April 2014.
Steven Lehman Executive Director
PRELIMINARY DECISION
1The decision is at a trial de novo and involves two Class I positive tests of the drug aminorex for horses trained by the Appellant, Kelly Sheppard, Licence No. B32660. These tests were in races on August 28, 2013 and November 18, 2013.
2In 2007 there were cases with positive tests for the same drug that were discovered as emanating through levamisole found in feed that metabolized in the system of a horse into aminorex. That drug is an amphetamine and can cause pulmonary problems and can be dangerous when ingested especially for any length of time.
3Under the rules of racing, there is trainer responsibility for the horse and there is an absolute liability under current rules for a positive test like that in this case. There are mitigating factors that may modify any penalty imposed, and judges and this Panel would review due diligence and the care of the horses involved, in determining any appropriate penalty. Where there is absolutely liability, judges are required to enforce the rules. The Administration has proposed a compromise here as to the penalty after reviewing all mitigating factors. A part of such decision is likely the fact that there has been no exact termination as to how the aminorex came into the system of each horse. The Appellant denies the use of this product and there is doubt as to its availability in Ontario, and there is no suggestion that levamisole was involved. There was no evidence before the Panel as to any recent similar cases in other jurisdictions.
4There were two acknowledged experts in veterinary medicine who appeared, Dr. Adam Chambers and Dr. Michael Weber, both of whom have had connections with CPMA. While they knew the source of the aminorex through levamisole, they had no knowledge of any other source of aminorex except for a direct purchase and use of that drug. It has been stated that “A key component of due process related to positive tests is in investigation” (Moreau-Exhibit 4 tab G paragraph 23). Until the investigation is complete and there is a report to the Commission, it is suggested that a Panel hearing may not be an appropriate forum. This Panel is of the view that a further investigation is required to determine if there is any source of the drug that is not as yet known, and for this purpose, other jurisdictions should be approached for assistance. Since such investigation will take time, this Panel will reserve its decision pending further investigation.
5This appeal shall be adjourned for six months to a date to be set in November, 2014 for further investigations to try and find another causal link from a source that results in aminorex. These investigations will not only seek causal links but will also allow consultation with the industry to examine alternate measures to deal with positive aminorex drug tests. In the meantime until such new date, there will be a conditional stay of the penalties, including suspensions of the Appellant and horses trained and/or owned by him. The redistribution of the purse monies shall not change. If there is any positive test of any kind incurred by the Appellant during such stay, it will be dealt with as a separate matter, including the possible revocation of the stay and the enforcement of the suspension and penalties that have been stayed.
DATED this 25th day of April 2014.
Elmer Buchanan John W. Macdonald Anne Walker Chair Commissioner Commissioner