AMENDED RULING NUMBER COM SB 009/2014

COMMISSION HEARING TORONTO, ONTARIO – MARCH 20, 2014

NOTICE OF DECISION

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

AND IN THE MATTER OF THE APPEAL OF COLIN JOHNSON

Colin Johnson, Licence # R56508, appealed against the penalty in RULING NUMBER SB 45928 imposed on January 15, 2014, by the track judges at Woodbine.

Date of Hearing: March 20, 2014

ORC Panel Members: Elmer Buchanan, Chair

Anthony Williams, Vice Chair

Daniel Nixon, Commissioner

Counsel for the Appellant: Larry Todd

Counsel for the Administration: Jennifer Friedman

Decision The Panel allowed the Appeal in part against penalty.

Transcript: A transcript of the oral Reasons for Decision of the panel delivered March 20, 2014, issued under RULING NUMBER COM SB 007/2014, is attached to this Notice.

Reasons: Further written Reasons for Decision were to follow.

These are those Reasons.

DATED at Toronto this 30^th^ day of May 2014.

______________________________

Steven Lehman

Executive Director

REASONS FOR DECISION

OVERVIEW

1. Colin Johnson (“Johnson”) was the trainer of record for Dervish Hanover, a standardbred racehorse.

2. On October 8, 2012, the horse won the seventh race at Rideau Carleton Raceway in Ontario.

3. A urine sample taken from the horse after the race resulted in a Certificate of Positive Analysis of an Official Sample for the Class II drug O-Desmethylvenlafaxine (“o-d”).

4. On January 9, 2014, the track judges held a Positive Test Hearing.

5. On January 15, 2014, the following penalty was imposed upon Johnson:

i) $2,000 fine;

ii) full suspension for 6 months;

and

iii) upon reinstatement, probation for 2 years upon conditions.

THE HEARING

6. On March 20, 2014, the appeal was heard by a panel of the Ontario Racing Commission (”ORC”).

7. Four exhibits were introduced into evidence:

i) the Agreed Statement of Facts;

ii) the Book of Documents (Joint);

iii) the Factum of the Administration;

and

iv) the Factum of the Appellant.

8. Counsel for the Administration called four witnesses:

i) Yves Tessier (“Tessier”), Groom;

ii) Jeff Minler, Senior Standardbred Judge, ORC;

iii) Charles Beirnes, Investigator, ORC;

and

iv) Adam Chambers, Doctor of Veterinary Medicine, Manager of Veterinary Services, and Research Manager for the Canadian Pari-Mutuel Agency at Jerseyville, Ontario.

9. Counsel for the Appellant called two witnesses:

i) Colin Johnson, Trainer, Owner and Authorized Agent for standardbred racehorses;

and

ii) Steve Andrew Barker, State Chemist to the Louisiana State Racing Commission and Professor of Veterinary Medicine at Louisiana State University, Baton Rouge, Louisiana.

THE EVIDENCE

The Groom

10. Yves Tessier was the groom for Dervish Hanover and four other horses trained by the Appellant on October 8, 2012.

11. Tessier took seven medications, six on a daily basis, pursuant to prescription from a doctor.

12. Five of the seven medications are prohibited drugs for racehorses.

13. One of these five medications, o-d, was detected in the urine of Dervish Hanover.

14. On race day, Tessier prepared an approved mixture for administration to the horse. Tessier placed the plunger for the syringe into his own mouth prior to placing it into the mouth of the horse. (Tessier does not put the plunger in “his mouth anymore”.)

15. The washroom was three hundred meters from the stall of Dervish Hanover.

16. It was the practice of Tessier to urinate in the stall of the horse “almost always in the same place.”

17. Tessier did not tell the Appellant, before the positive test, about his medications.

“… didn’t think I had to …”

and

“don’t have to tell nobody.” …

“Nobody ever asked about medication (in over 30 years).”

Tessier “never realized” and “never expected” that his frequent urination in the stall of the racehorse might be a causative factor in a positive test for Dervish Hanover.

The Appellant

18. Colin Johnson has been a trainer for twenty-two years. His stable is in the Province of Quebec. His last 417 starts have resulted in 106 wins/65 places/and 62 shows, for a .390 average.

19. He advised that he “never saw this coming (the positive test for o-d) in a million years.”

20. He was not aware of the medications prescribed for his groom.

21. He said that he uses therapeutic medications prescribed by a veterinarian for his racehorses.

22. Johnson stated that Dervish Hanover was “a pretty quiet horse … relaxed … raced hard every day.”

23. On October 18, 2012, Michael Brown, Senior Standardbred Judge, ORC, notified Johnson of the positive test result for o-d.

24. Johnson immediately called his veterinarian for advice. Johnson was told that the likely source was a drug with the trade name “EFFEXOR”.

25. Tessier walked into the office of Johnson and said:

“I think that’s the drug name … you have your answer.”

26. Johnson said that on October 8, 2012, he was not aware of the dangers described in the report of Dr. Chambers:

“CPMA has carried out some studies examining the likelihood that environmental contamination could trigger a positive test. In one study, a horse (1) was used to contaminate hay offered to horse (2). Horse (2) consumed the hay. Urine samples from horse (2) showed levels of O-Desmethylvenlafaxine that would trigger a positive test. From this, it seems likely that there is a significant risk of a horse incurring a positive test by consuming a sufficient amount of feed, hay or bedding contaminated with urine of a person, or other horse taking these medications.” Statement for Positive Tests for O-Desmethylvenlafaxine, dated August 14, 2013, by Dr. Adam Chambers, Exhibit 2, tab 14 at p. 1, para 5.

27. The time period in which the studies were carried out was not in evidence.

28. The report was prepared in the summer of 2013, eight months after the positive test result for the urine sample taken from Dervish Hanover.

The Experts

29. Dr. Chambers stated that Venlafaxine is an anti-depressant medication for humans.

30. Venlafaxine taken orally metabolizes to o-d which is subsequently excreted in urine.

31. The drug “can settle down a horse” and “reduce anxiety”.

32. Dr. Barker advised that “the urine level of the drug or metabolite rises and falls over time. … the sample must be collected at the right time in order to be tested as positive and meet the limits of detection of the analytical procedure applied. …It is this randomness and the existence of “hot spots” that explain the occurrences of many of these positives and why we don’t see more.” Affidavit of Steven Andrew Barker, dated February 19, 2014, Exhibit 2, Tab 21, at p. 4 of 4

THE RULES

(i) The Trainer Responsibility Rule

Rule 26.02.01

“A trainer shall be responsible at all times for the condition of all horses trained by him/her. The trainer must safeguard from tampering each horse trained by him/her and must exercise all reasonable precautions in guarding, or causing any horse trained by him/her to be guarded, from the time of entry to race until the conclusion of the race. No trainer shall start a horse or permit a horse in his/her custody to be started if he/she knows, or, if by the exercise of a reasonable degree of care having regard to his/her duty to safeguard their horse from tampering, he/she might know or have cause to believe, the horse is not in a fit condition to race or has received any drug that could result in a positive drug test. Without restricting the generality of the foregoing, every trainer must guard, or cause to be guarded by the exercise of all reasonable standards of care and protection, each horse trained by him/her so as to prevent any person from obtaining access to the horse in such a manner as would permit any person not employed by or not connected with the owner or trainer from administering any drug or other substance resulting in a pre-race or post race positive test. Every trainer must also take all reasonable precautions to protect the horse and guard it against wrongful interference or substitution by anyone in connection with the taking of an official sample.”

(ii) Offence

Rule 26.02.02

“Any trainer who fails to protect or cause any horse trained by him to be protected and a positive test thereby results or who otherwise violates this rule shall be guilty of an offence.”

(iii) Absolute Liability

Rule 26.02.03

“Notwithstanding 26.02.01, the Commission and all delegated officials shall consider the following to be absolute liability offences:

(a) any trainer whose horse(s) tests positive for any substances determined to be non-therapeutic; …

(c) any trainer whose horse(s) tests positive resulting from testing in accordance with or under the Pari-Mutuel Betting Supervision Regulations;”

THE PRECEDENTS

(i) The Rule

“The trainer responsibility rule is the foundation upon which racing integrity rests.” Brad Shakes v. ORC, November 27, 2012, RULING NUMBER COM SB 031/2012, at p. 6, para 33

(ii) The Danger

“Performance enhancing drugs cast an executioner’s shadow across horse and industry.” Dennis (Jerry) Moffatt v. ORC, March 19, 2009, RULING NUMBER COM SB 005/2008, at p.12, para 59

(iii) The Absolute Liability Standard

“… the absolute liability rule, while harsh, is reasonably justified in the public interest to protect horse racing …” Shakes v. Ontario Racing Commission 2013, August 20, 2012, ONSC 4229 at p. 7, para 35

THE TWO ISSUES

I DUE DILIGENCE

35. Did the licensee establish due diligence?

II THE PENALTY

36. If due diligence is established, what is the appropriate penalty?

ISSUE I

37. DUE DILIGENCE

(a) The Law

(i) Did the licensee establish due diligence?

If Johnson establishes due diligence, the penalty will be limited “to a fine, described as ‘non-oppressive’ in amount, and no suspension.” Shakes v. Ontario Racing Commission, 2013, ONSC 4229, Ontario Divisional Court, at p. 7, para 35

(ii) What is due diligence?

Johnson must prove that he “took reasonable care.” R. v. Sault Ste. Marie 1978 CanLII 11 (SCC), [1978] 2 S.C.R 1299 at para 67

(iii) The Burden of Proof:

Johnson bears the burden of proof on this issue.

(iv) The Standard of Proof:

The standard of proof “is a balance of probabilities.” F.H. McDougall, October 2, 2008, S.C.C. at p. 13, para 40

(v) (a) What is Reasonable?

“What is reasonable depends on the circumstances. …

Did that response (the response of the licensee) constitute ‘all reasonable care’ with the emphasis on ‘all’?” Dennis (Jerry) Moffatt v. Ontario Racing Commission, January 30, 2008, RULING NUMBER COM SB 008/2008, at p. 10, para 50

(b) Negligent Violators

“Negligent violators of the trainer responsibility rule fall within breach of due diligence standard.

The absolute liability standard protects against those who wilfully disregard the drug and medication rules thereby cheating competitors, the wagering public and the public interest in the industry at large. Brad Shakes v. ORC, November 27, 2012, RULING NUMBER SB 031/2012 at p. 8, para 51

(c) Reasonable Person in Like Circumstances

“It must not be forgotten that the standard to be applied in assessing due diligence is that of the reasonable person in like circumstances, not one of immediate perfection upon recognition of a problem.” Liat Podolsky (“Eco Justice”) v. Cadillac Fairview Corp. et al, Reasons for Judgment, Green M., O.C.J., at Toronto, February 11, 2013, at pp. 44-45, para 93

(d) Caution in Assessment

“As said Hill J. in Canadian Tire, supra, at para 85, In assessing the efficacy of a due diligence defence, the court must guard against the correcting but at times distorting, influences of hindsight. In considering the defendant’s efforts, the court “does not look for perfection.” (R. v. Safety-Kleen Canada Ltd. (1997), 1997 CanLII 1285 (ON CA), 114 C.C.C. (3d) 214 (Ont. C.A.) at 224 non “some superhuman effort” on the defendant’s part (R. v. Courtaulds Fibres Canada (1992), 1992 CanLII 12826 (ON CTPD), 76 C.C.C. (3d) 68 (Ont. Prov. Ct.) at 77) If the facts suggest a discoverable causative flaw “could readily” have been remedied, due diligence will not prevail: R. v. Rio Algon Ltd., supra at 249, 252.”

ISSUE I

DUE DILIGENCE

38. Did the licensee establish due diligence?

The Decision

(i) The Appellant has met the burden of proof upon him to establish, on a balance of probabilities, the defence of due diligence, in that he took reasonable care, in view of all the circumstances, to avoid a positive test result, for the racehorse Dervish Hanover. On October 8, 2012, there was not a “discoverable causative flaw that ‘could readily’ have been remedied.”

(ii) The following cautionary statement may impact future defences of due diligence in the horse racing industry:

“It seems likely there is a significant risk of a horse incurring a positive test by consuming a sufficient amount of feed, hay or bedding contaminated with urine of a person, or other horse taking these medications.” (underlining added) Statement for Positive Tests for O-Desmethylvenlafaxine, Report by Dr. Adam Chambers, D.V.M, dated August 14, 2013, Exhibit 2, Tab 14 at p. 1, para 5

ISSUE II

THE PENALTY

The licensee has established due diligence.

39. What is the appropriate penalty?

The Decision

(i) Mandatory Sanctions

(a) Dervish Hanover was declared ineligible to race for ninety days, Standardbred Ruling SB 45013, dated October 18, 2012, pursuant to Rules 11.10.01 (2) and 20.01.01 (2);

(b) the purse was ordered redistributed, pursuant to Rule 9.13;

(c) the driver/trainer fees were ordered to be returned, pursuant to Rule 18.08.01;

(d) the horses not owned by Johnson may be transferred to another trainer approved by the judges, pursuant to Rule 26.08;

and

(e) any horses owned in whole or in part by Johnson are ineligible to race, pursuant to Rule 6.13.01. Standardbred Ruling SB 45928 dated January 15, 2014, (i) (b) to (e) inclusive

(ii) Penalty Guidelines

(a) A first offence for a Class II drug has a suggested penalty of a fine of $5,000 and a full licence suspension range of between 1 and 5 years.

(b) “On a first offence, the Commission … may … impose a penalty … below the range in appropriate circumstances.” Penalty Guidelines for Equine Drug … Offences, Directive No 1, January 28, 2008.

(iii) The Authority

If the Appellant establishes due diligence, the penalty will be limited “to a fine, described as ‘non-oppressive’ in amount and no suspension.” Shakes v. Ontario Racing Commission 2013, ONSC 4229, Ontario Divisional Court, August 2013, at p. 7, para 35

(iv) The Invitation

The original suspension was in effect for sixty days from January15 to March 20, 2014. Counsel for the Appellant invited the panel to consider whether Johnson would be entitled, in the future to either a full or partial credit for this time already served.

(In the criminal law context, an accused is not permitted to “bank” time in custody or other offences. R. v. Wilson (2008), 2008 ONCA 510, 236 C.C.C. (3d) 285 (Ont. C.A.))

The resolution of this issue is not required for this Ruling.

PENALTY

The Decision

40. (i) Based upon the evidence and the circumstances of the Appellant, on March 20, 2014, the panel allowed the Appeal in part as to penalty.

(iii) The Result

(a) $2,000 fine;

(b) no suspension;

and

(c) Upon reinstatement, two years probation, upon the conditions set out in Standardbred Official Ruling SB 44076, dated January 15, 2014.

DATED at Toronto this 30^th^ day of May 2014.

______________________ _____________________ _____________________

Elmer Buchanan Anthony Williams Dan Nixon

Chair Vice Chair Commissioner

ONTARIO RACING COMMISSION

STANDARDBRED HEARING

IN THE MATTER OF THE RACING COMMISSION ACT, 2000, S.O. C.20 AND THE RULES OF STANDARDBRED RACING:

AND IN THE MATTER OF AN APPEAL AND REQUEST FOR HEARING OF COLIN JOHNSON:

Held Before:

Anthony Williams Vice Chairman

Elmer Buchanan Chairman

Dan Nixon Commissioner

These are an excerpt of the proceedings in the above mentioned matter held before The Ontario Racing Commission, Re: COLIN JOHNSON, taken before Toronto Court Reporters, Suite 1410, 65 Queen Street West, Toronto, Ontario, at 10 Carlson Court, Suite 400, Toronto, Ontario, on the 20th day of March, 2014.

Appearances:

Jennifer Friedman,

for the Ontario Racing Commission Administration

Larry Todd, for the appellant Colin Johnson

MR. CHAIRMAN: Please be seated. Since these proceedings will be subject to a ruling today, the full reasons for decision to follow, I have, I won't advise as to the source, a curfew in relation to today's reasons. It will be dramatically abbreviated. This is an appeal by Colin Johnson, trainer against the rulings of the Standardbred track judges made at Woodbine Racetrack on January 15th of the year 2014 in relation to a positive test for DERVISH HANOVER for a Class 2 prohibited drug on October 2012 at Rideau Carlton Raceway. The sanction imposed upon Mr. Johnson was a $2,000.00 fine, a six month suspension, two years probation. The suspension commenced on the 20th day of January, 2014. We are now in day 60 and I respect the civil law lesson I received a short time ago. The certificate of positive analysis was for a drug within the meaning of the paramutuel betting supervision regulations. In cases of this nature, absolute liability positive tests, the burden of proof is upon the appellant to show on a balance of probabilities that it was more likely than not that he exercised what has been variously called reasonable care of due diligence. I won't seek to provide the various authorities at this stage but they will materialize in the ultimate full reasons. A decision of the Ontario Court of Justice on February 11, 2012 at Toronto entitled Liat Podolsky EcoJustice against Cadillac Fairview Corporation and others stated: "It must not be forgotten that the standard to be applied in assessing due diligence is that of the reasonable person in like circumstances, not one of immediate perfection upon recognition of a problem". The decision of Brad Shakes which has been referred to in this proceeding, a decision from August 16th, 2012 of the Commission Standardbred Ruling 0312/2012 stated as it urged by Council on behalf of the Administration: "Negligent violators of the trainer responsibility rule fall within breach of due diligence standards. The absolute liability standard protects against those who willfully disregard the drug and medication rules thereby cheating competitors, the wagering public and the public interest in the industry at large". Your panel has considered this matter throughout the recesses today and we have had the opportunity to have the materials well in advance. We have come to the unanimous opinion that the appellant Colin Johnson has met the burden of proof upon him to show due diligence, that he acted as a reasonable person in view of all of the circumstances. If a similar situation were to arise in the future in relation to contamination within a stall by substances that may or may not have been consumed by an employee groom or other helper the approach may be different. There is a heightened duty of care as results of your experience here today but we have come to the conclusion attempting to follow the thrust of the decision in the Shakes case in relation to sanctions where the Ontario Racing Commission approved by the Ontario Supreme Court Divisional Court has stated that a fine for an offence of this nature must be in a non oppressive amount and that there should be no suspension. We are mindful of the fact that Mr. Johnson has served 60 days of suspension, in another context referred to as time already served. We are of the unanimous opinion that we will confirm the $2,000.00 fine that was imposed by the panel of track judges, that we will allow the appeal in part regarding penalty to delete the period of suspension in its entirety, mindful that you have served 60 days and that we will seek to maintain the two year probationary period. We are hopeful that your career continues in a successful fashion, that you are hyper vigilant in relation to these matters and that it may be at a later stage in the ultimate reasons that are provided there will be some commentary as to an approach that the Racing Commission might take in helping share information with the industry of certain dangers that are there. That abides with the curfew and thank you for your participation. Yes?

MR. TODD: Just one comment, Mr. Chairman. When you are writing the reasons or doing whatever you have to do down the road will there - it has come up before when we have cancelled days or even in English. Any observations of comments that you could make on that would be of great assistance because it comes up with some regularity. In effect, ex post facto where one of the suggestions I argued once before in front of Chairman Sandinsky was do I get banked credit or part credit. You know what I'm talking about.

MR. CHAIRMAN: Yes, yes. I had that issue on multiple occasions and still do in the criminal system.

MR. TODD: In the criminal courts and ‑‑

MR. CHAIRMAN: And although it can be a global consideration. It is apparently the case authority is that it can't be a factor.

MR. TODD: Any comments you could make; it doesn't have to be applicable here but in general, would help because in the case that Chairman Sandinsky and I were warring about in the late 1990's for other reasons it became obiter and it never got dealt with and it has been out there in half a dozen cases since then.

MR. CHAIRMAN: So heaven forbid if Mr. Colin Johnson were to be back in the future for an offence that was subject to a suspension the 60 days are really lost days.

MR. TODD: Well, just any comments you have would be of assistance because we have never got a ruling about anything like that.

MR. CHAIRMAN: Thank you.

MR. TODD: Thank you very much, sir.

MR. CHAIRMAN: The second of the three sanctions was a factor in the total consideration of the matter.

MR. TODD: I appreciate it. Thank you very much and sorry for keeping you here and missing supper.

CERTIFIED CORRECT:_______________________________

RAYMOND P. MACDONALD, B.A., CAR

Commissioner of Oaths